                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-07-00043-CR

ROY ALTON SHAW,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 18th District Court
                            Johnson County, Texas
                             Trial Court No. F40536


                                O P I N I O N


      After his eight-year-old niece made an outcry to her mother that her great-uncle,

Appellant Roy Shaw, had inappropriately touched her, an investigation brought forth

allegations by three other female relatives that Shaw had committed sexual offenses

against them as well. Shaw was eventually charged by indictment with nineteen felony

counts. A jury found him guilty on Counts Two and Nineteen, each of which alleged

indecency with a child by contact, and not guilty on the remaining counts. The jury

assessed a three-year prison sentence and a $5,000 fine on Count Two; on Count
Nineteen, the jury assessed a ten-year sentence and a $10,000 fine but recommended

that the sentence and fine be probated. Shaw appeals, asserting three issues. We will

affirm.

                                Sufficiency of the Evidence

          We begin with Shaw’s second and third issues, which respectively challenge the

factual and legal sufficiency of the evidence on both indecency-by-contact convictions.

A person commits the offense of indecency with a child “if, with a child younger than

17 years and not the person’s spouse, . . . the person . . . engages in sexual contact with

the child or causes the child to engage in sexual contact.” TEX. PEN. CODE ANN. §

21.11(a)(1) (Vernon 2003). Sexual contact means the following, if committed with the

intent to arouse or gratify the sexual desire of any person: “any touching of any part of

the body of a child, including touching through clothing, with the anus, breast, or any

part of the genitals of a person.” Id. § 21.11(c)(2).

          Standards of Review

          When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The standard is

the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d

180, 184 (Tex. Crim. App. 1999). We do not resolve any conflict of fact or assign

credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v.

Shaw v. State                                                                         Page 2
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421

(Tex. Crim. App. 1992). Instead, our duty is to determine if the findings of the trier of

fact are rational by viewing all of the evidence admitted at trial in the light most

favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in

the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000).

        In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The

appellate court “does not indulge in inferences or confine its view to evidence favoring

one side of the case. Rather, it looks at all the evidence on both sides and then makes a

predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff,

Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519

(1991)).    The nature of a factual sufficiency review authorizes an appellate court,

although to a very limited degree, to act as the so-called “thirteenth juror” to review the

factfinder’s weighing of the evidence and disagree with the factfinder’s determination.

Watson, 204 S.W.3d at 416-17.

Shaw v. State                                                                         Page 3
        Count Two Evidence

        In Count Two, Shaw was charged with committing the offense of indecency with

a child by contact against “JoAnn,”1 Shaw’s grand-niece who was around eight years

old at the time of the offense. JoAnn, a nine-year-old fourth grader at the time of trial,

testified that she and her two siblings had previously lived with Roy and Brenda Shaw,

her aunt and uncle who lived “down the street.” She said that while her brother and

sister were cleaning a bedroom on the opposite end of the Shaws’ trailer and Brenda

had gone to the store, Shaw took her into his bedroom and had her take her clothes off

and get on the bed. Shaw, while holding her down and dressed only in pants, then

touched her with his hand on the outside of her private parts (her “tee-tee” and her

“hiney bo”). On that occasion, she was probably in the second grade and it happened

after Christmas; she was either six, seven, or eight years old. She also said that Shaw

did the same thing to her “a few more times.” Shaw’s touching her made her feel “bad”

and he told her that if she told anyone about it, he would whip her. JoAnn repeated

several times that the things that Shaw had done to her really happened, and she said

that no one, including her mother, had told her to say things about Shaw that were not

true.

        JoAnn’s videotaped interview was shown to the jury. JoAnn admitted that in her

videotaped interview she said that Shaw’s fingers went inside her, but she does not

remember that happening.


1The indictments used pseudonyms for the four victims. We have added a pseudonym for the minor
victims’ mother, “Brooke,” to further protect their anonymity and also because Brooke alleged at trial that
Shaw had molested her when she was a child.

Shaw v. State                                                                                       Page 4
        The first person whom JoAnn told about Shaw’s conduct was her mother,

“Brooke.” JoAnn admitted that Brenda approached her once and that she told Brenda

that she was lying about what she had said Shaw had done to her, but JoAnn testified

that she was lying to Brenda. JoAnn also told her grandmother and another aunt

(Janice) that she was lying when Brenda had approached her and got her to say that she

had lied about what Shaw had done. JoAnn denied telling Brenda that Brooke had

asked her to lie about Shaw: “My mom didn’t tell me to lie about Roy.”

        “Janice,” Brooke’s half-sister, recounted JoAnn’s encounter with Brenda, saying

that it happened at her mother’s house. Brenda showed up, came storming in without

knocking, and said she needed to talk to JoAnn. Brenda sat with JoAnn on the couch

and talked to her and then brought JoAnn in the kitchen. JoAnn was crying, and

Brenda told her to say to Debbie (Brenda’s sister and Janice’s mother) what she had just

said. JoAnn said, “I lied.” Brenda said, “Well, that’s all I need. I’m going to talk to my

lawyer now.” Janice then talked to JoAnn, who was still crying, and told her that Shaw

had done the same thing to her when she was a child and had spent the night at the

Shaws’ house. (Shaw’s alleged offenses against Janice were Counts Thirteen, Fourteen,

and Fifteen, asserting indecency with a child by contact. He was acquitted on those

counts.) Janice asked JoAnn why she just said that she had lied, and she said that

Brenda had told her to do so. Janice said that JoAnn then confirmed that Shaw had

touched her.

        JoAnn told her mother about Shaw’s touching her after she went back to live

with her. JoAnn testified that she started talking about it because she “just wanted to

Shaw v. State                                                                       Page 5
tell [Brooke] it.” Brooke testified that on March 25, 2005, after JoAnn had gotten out of

the shower and was wrapped in a towel, she told JoAnn: “I love you very much and if

anyone ever hurts you, I want you to know that I will protect you.” She said that

JoAnn’s demeanor changed:

        She put her finger in her mouth. I remember this part perfectly. And she
        put her finger in her mouth and she put her head down and her eyes
        started to water. And I said, “What’s wrong?” And she said, “He said if I
        told anyone he would whoop me.” And I said, “Who”? And she said,
        “Roy.”

        Brooke then asked if Shaw touched her, and JoAnn said that he had touched her

“privates.”     Brooke called the Johnson County Sheriff’s Department and Laura

McWhorter, a friend, to be with the children while she spoke to the responding officer.

Brooke wrote a statement for the responding officer that day, and she admitted writing

in the statement that JoAnn had told her that what Shaw had done had happened “on

the couch.” She confirmed that JoAnn had said it happened on the couch. She also

admitted that, in trying to get details from JoAnn, she asked her how many times it had

happened: “One, two, three, four, five times?” And JoAnn answered, “yeah, four or

five times.”

        Brooke testified that her three children had been living with the Shaws from

about November of 2004 to February of 2005. Brooke’s mother Debbie is Brenda’s

sister. She admitted that she was on probation for forgery and DWI. She also admitted

that the Shaws had taken care of her children “for free,” that Shaw had tired of her

“dumping” her kids at his house, and that Shaw disapproved of her lifestyle and that

she “had dated out of her race.” Brooke also admitted that a motion to adjudicate had

Shaw v. State                                                                       Page 6
been filed against her on March 23, 2005, but she said that her report to law enforcement

about Shaw was not done to curry favor with the State in her probation matter. Rather

than being revoked, her probation was amended.

        Brooke admitted that while on probation, she committed and pled guilty to

felony intoxication assault and received probation again, but she also served 120 days in

jail as “overnights.” While serving that time, she reported that Shaw had penetrated

her female organ with his fingers and had fondled her when she was a young teenager.

In spite of that allegation, Brooke admitted that she had thought the Shaws’ home was a

safe place to leave her children and that she had told CPS that as well. She also

admitted that she did not reveal Shaw’s offenses against her when she reported the

offenses against JoAnn, saying that she had not mentioned it before because she

thought the statute of limitations had run, but she had told her grandmother about it

soon after it happened.

        Don Beeson, a former detective in the crimes-against-children unit of the Johnson

County Sheriff’s Department, investigated JoAnn’s outcry. He made arrangements for

her to be interviewed at the advocacy center and for both JoAnn and Debra to be

interviewed at Cook’s hospital in Fort Worth. In early April, Beeson called Shaw to

come in and talk to him about an allegation of a sexual offense that Shaw had

committed. When Shaw came in, Beeson gave Shaw his Miranda rights even though he

was not in custody and wrote a statement for Shaw that Shaw signed. The statement

says that he and his wife Brenda have raised Brooke’s three children “on and off” for

the past twelve years, that he has never touched either girl in a sexual way, and that to

Shaw v. State                                                                      Page 7
his memory he has never been left alone with them. During their meeting, Shaw never

offered Beeson a reason why Brooke would have gotten her two daughters to make

false allegations against him. Beeson was trained in how to spot false allegations by

children, and he did not see any in this case.

         Beeson also asked Shaw if he would agree to meet with Bobby Jones, a forensic

interviewer, and Shaw agreed. Beeson drove Shaw to that interview in July, and on the

way back Shaw started talking out loud to himself and then volunteered that he had

had a problem with alcohol and didn’t drive, and that there were times when he would

drink too much and would not be able to remember the previous evening. In the course

of Beeson’s investigation, two other female relatives came forward with allegations that

Shaw had committed sexual offenses against them when they were minors: Janice,

Shaw’s adult niece, and “Teresa,” Shaw’s adopted daughter.

        Beeson admitted on cross-examination that it appeared that Brooke had elicited

JoAnn’s outcry, that Brooke’s interrogation of JoAnn was not done under the protocols

of how law enforcement would have interviewed JoAnn, that he did not investigate

whether Brooke had a motive or agenda or a bias to have such allegations made against

Shaw, and that to his knowledge JoAnn and her sister “Debra” were with their mother

from the time of JoAnn’s outcry to the time of their advocacy center interviews. Beeson

also acknowledged that he did not investigate the other men whom JoAnn and Debra

had been around.

        Virginia Caldwell, a registered nurse and trained sexual assault nurse examiner,

performed sexual assault exams on JoAnn and Debra. JoAnn told Caldwell that Shaw

Shaw v. State                                                                     Page 8
(“Roy, my uncle”) had touched her on her genital and anal areas with his hand more

than one time. Caldwell’s physical exam of those areas was normal, which was not

surprising. Caldwell said that the relevant literature reports that the percentage of false

allegations of sexual abuse among all victims is less than one percent. On cross-

examination, Caldwell admitted that an authority figure such as a parent can induce a

memory of something that didn’t happen with a child.

        Karen Rayburne, a licensed social worker and CPS investigator with the

Department of Family and Protective Services, specializes in child sexual abuse. She

testified that outcries by children generally are not spontaneous and usually something

triggers an outcry, such as questioning by a parent about touching. Both Rayburne and

Caldwell said that it is common for children to initially disclose only part of the abuse

and to provide more or different information over time and to different people.

Rayburne said that it is common for children to recant, that recantation is most common

in a family setting, that family conflict and pressure can cause recantation, and that

spontaneous recantations are different than recantations upon questioning. As a result

of the allegations against Shaw, a CPS safety plan was implemented that prevented

Shaw from having contact with Brooke’s children, so she could no longer leave them

with the Shaws.

        Rayburne investigated Shaw’s alleged sexual abuse of JoAnn and Debra,

including interviewing Brooke and Brenda, and she did not discover any reason why

Brooke would be lying about her children’s allegations or that they had been pressured

to make false allegations. She interviewed “Dale,” the girls’ older brother, who was

Shaw v. State                                                                        Page 9
with them when they stayed with the Shaws, and he had no knowledge of any sexual

abuse against the girls.    Rayburne admitted that a parent or authority figure can

pressure a child to make a false allegation, that a parent with a motive can be behind the

false allegation, that sometimes an investigation will not uncover that motive, but that

usually the motive is discovered.

        The defense presented numerous witnesses (relatives and neighbors) who

testified about Brooke’s reputation for dishonesty and bad lifestyle and about Shaw’s

good character. Brenda testified that her relationship with Brooke initially was good

but that once Brooke started having children, she would dump her kids on the Shaws

and not return for several days. Brenda said that Brooke accused Shaw of molesting

JoAnn when she was two years old when Brooke was angry after Shaw had made

Brooke’s boyfriend leave the Shaw’s pool.

        Brenda said that Brooke’s children began staying with them in November of 2004

because Brooke was in jail for two weeks, and when she got out of jail, she did not get

them back, although she would drop by to visit. The girls were never left alone with

Shaw because he did not want to babysit them, and if Brenda went to the store, the girls

always went with her. She testified about her numerous back surgeries, back pain and

use of pain medication, and the related difficulties with caring for children.

        She and Shaw got “fed up” with Brooke’s leaving her kids with them while she

got to “run around” while they had to care for her kids, and in January they sent the

children to Brooke’s mother’s (Debbie’s) house, where Brooke was staying. The Shaws

told Debbie and Brooke that they would no longer keep Brooke’s three kids. Brenda

Shaw v. State                                                                      Page 10
recounted that after JoAnn’s outcry, she ran into JoAnn and Debra with their

grandmother Debbie at Wal-Mart, and while JoAnn was alone with her, she asked her if

Shaw had “messed with her,” and JoAnn put her head down. Brenda then recounted

the occasion at Debbie’s house where she asked JoAnn to tell Debbie what JoAnn had

told her at Wal-Mart.

        Shaw testified; he denied all the allegations against him, including Brooke’s

allegation that he had molested JoAnn when she was two. He related his problems

with Brooke’s boyfriends’ stealing things and her leaving her kids with them. He

denied ever being alone with JoAnn or Debra, and he explained that the children were a

difficulty on Brenda because of her back problems. He confirmed that Brooke’s three

kids stayed with them from November of 2004 to January of 2005, and he was never

alone with JoAnn or Debra in that time frame either. In January he told Brooke that he

“was tired of her dumping the kids off on us.”

        Shaw said he freely went to talk to Beeson without a lawyer because he had not

done anything wrong. When he talked to Jones, he was nervous and scared and that

Jones asked him if a lot of things were “possible.” He denied drinking so much that he

could not remember the day before, but he said he told Jones it was “possible,” but it

had never happened. He admitted to telling Beeson that he had sometimes drank too

much, but he did not remember telling him that he drank so much he couldn’t

remember what had happened. Shaw also admitted that he did not tell Beeson about

Brooke’s first false allegation or about telling Brooke that he wouldn’t keep her kids

anymore and she thus “had an ax to grind” with him. Shaw also admitted telling Jones

Shaw v. State                                                                   Page 11
that it was possible that he may have accidentally touched the girls while bathing them

or playing with them. Jones asked him if it was possible that he got so drunk that he

touched JoAnn’s genital area, and Shaw said he told Jones it was “possible,” but he did

not do it.

        In the State’s rebuttal, Lauren McWhorter, a social worker and Brooke’s friend

since grade school, confirmed that Brooke had called her the day of JoAnn’s outcry. She

received a call from Brooke, who was very upset and crying and told her the situation

that had just occurred with JoAnn’s outcry. McWhorter said to call the police and she

immediately went to Brooke, who was at Debbie’s house. When she arrived Brooke

was crying and upset. McWhorter stayed outside with the kids while Brooke spoke

with the responding officer, whose patrol car was parked in front of Debbie’s house.

While they were outside, Brenda drove up and the first thing she said to McWhorter

was “did somebody touch the girls?,” which McWhorter found curious. McWhorter

confirmed Brooke’s bad qualities and poor choice in men and that she did not have a

good opinion of Brooke’s truthfulness.

        Bobby Jones, the forensic interviewer, testified in rebuttal about his interview

with Shaw, stating that Shaw admitted that he had changed JoAnn’s diapers when she

was an infant and he had touched her genital area then and when he had bathed her,

but not sexually. He also told Jones that, about six months before their interview,

JoAnn had slipped and fallen in the bathtub and he was in the bathroom and when he

grabbed her, it was possible he may have touched her genital area. Shaw also brought

up to Jones that it was “very possible” that, while playing with JoAnn and tossing her

Shaw v. State                                                                    Page 12
in the air, his hand slipped into her underwear and he touched her genital area, and he

also indicated that he played a game with JoAnn where he flipped her over and his

hand may have gone up her shirt and touched her breast. Shaw told Jones about a time

when both girls were taking a bath and a mouse got in the tub, and in trying to get the

mouse, Shaw might have touched JoAnn’s genital area. While he admitted possibly

touching JoAnn, he denied that he ever touched her sexually.

        Finally, Jones said that Shaw told him it was possible he had drank too much and

touched JoAnn and didn’t remember because “a time or two” he had gotten drunk and

couldn’t remember what he had done. Shaw gave Jones an example of being drunk and

waking up the next day to learn that a taco he had put in the refrigerator was gone

because he had eaten it the night before but did not remember eating it.

        Count Two Disposition

        With respect to the jury’s guilty verdict on Count Two involving JoAnn, a minor

complainant’s testimony alone is sufficient to support a conviction for indecency with a

child. See Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet ref’d). In

addition to JoAnn’s testimony and her videotape, the jury heard the outcry testimony

from Brooke and Caldwell’s similar testimony. JoAnn’s versions of the offenses were

inconsistent, but Caldwell and Rayburne said that was normal and common for child

victims.    And while JoAnn recanted to Brenda, she immediately claimed that her

recantation was a lie. Also, while Brooke’s reputation for truthfulness was impugned,

JoAnn’s was not. Shaw denied the allegations and had numerous character witnesses

testify on his behalf, but he made near-incriminating statements to Jones.

Shaw v. State                                                                     Page 13
        On Shaw’s legal sufficiency complaint on Count Two, our duty is to determine if

the jury’s guilt finding is rational by viewing all of the evidence admitted at trial in the

light most favorable to the verdict. In so doing, any inconsistencies in the evidence are

resolved in favor of the verdict, and we do not resolve any conflict of fact or assign

credibility to the witnesses, as this was the jury’s function. Viewing the evidence in the

light most favorable to the verdict, we find that a rational trier of fact could have found

beyond a reasonable doubt that Shaw committed the offense alleged in Count Two.

        In our factual sufficiency review of the jury’s guilt finding on Count Two, we

conduct a neutral review of all the evidence to determine if the proof of guilt is so weak

or that conflicting evidence is so strong as to render the jury’s verdict clearly wrong and

manifestly unjust. Shaw primarily posits that the jury’s acquittal on seventeen of the

nineteen counts is an integral factor in our factual sufficiency review. We disagree. The

jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to

be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex.

Crim. App. 1981)). The jury may believe all, some, or none of any witness’s testimony.

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers, 125 S.W.3d at 670.

Furthermore, most of the seventeen acquittals were the counts pertaining to Janice and

Teresa, who were adults whose allegations against Shaw were made many years after

the alleged offenses occurred, whereas JoAnn’s and Debra’s allegations were made

within a couple of months.        Under those plainly different circumstances, a jury

rationally could have found that JoAnn’s and Debra’s allegations pertaining to Counts

Shaw v. State                                                                         Page 14
Two and Nineteen were proved beyond a reasonable doubt, while the allegations

involving Janice and Teresa were not.

        The jury was faced with conflicting evidence.        As the reviewing court, we

“should not substantially intrude upon the jury’s role as the sole judge of the weight

and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.

App. 2002); see also Sharp, 707 S.W.2d at 614; Jaggers, 125 S.W.3d at 670.

        The degree of deference a reviewing court provides must be proportionate
        with the facts it can accurately glean from the trial record. A factual
        sufficiency analysis can consider only those few matters bearing on
        credibility that can be fully determined from a cold appellate record. Such
        an approach occasionally permits some credibility assessment but usually
        requires deference to the jury’s conclusion based on matters beyond the
        scope of the appellate court’s legitimate concern. See GEORGE E. DIX &
        ROBERT O. DAWSON, 42 TEXAS PRACTICE—CRIMINAL PRACTICE AND
        PROCEDURE § 36.69 (Supp. 1999). Unless the available record clearly
        reveals a different result is appropriate, an appellate court must defer to
        the jury’s determination concerning what weight to give contradictory
        testimonial evidence because resolution often turns on an evaluation of
        credibility and demeanor, and those jurors were in attendance when the
        testimony was delivered.

Johnson, 23 S.W.3d at 8.

        We must defer to the jury’s determination concerning what weight to give the

contradictory testimonial evidence. See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex.

App.—Dallas 2004, no pet.); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.—San

Antonio 1997, no pet.); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th

Dist.] 1989, pet. ref’d); see also Johnson, 23 S.W.3d at 7-8. Considering all of the evidence

in a neutral light, we find that the jury was justified in finding Shaw guilty on Count

Two because the evidence is factually sufficient: The proof of guilt is not so weak and


Shaw v. State                                                                         Page 15
the conflicting evidence is not so strong as to render the jury’s verdict clearly wrong

and manifestly unjust.

        Count Nineteen Evidence

        In Count Nineteen, Shaw was charged with committing the offense of indecency

with a child by contact against Debra, Shaw’s grand-niece who was around six years

old at the time of the offense. In addition to the above evidence, the evidence showed

that at the time of trial, Debra was an eight-year-old second grader, and she testified

that she had previously lived with the Shaws. She said that when she lived with the

Shaws, Shaw touched her private parts under her clothing (a nightgown) and

underwear—her “tee-tee,” “hiney bo,” and “boobies,” and his fingers went inside of

her. He did it while she and Shaw were lying on the living-room couch on their sides

(with Shaw behind her) under a blanket, and they were watching the “Grinch,” a

Christmas movie, around Christmastime. JoAnn was there, but she was sitting on the

floor in front of the television, and Brenda was there but was either cooking in the

kitchen or cleaning the bathroom.

        Debra said that the first person she told about it was her mother on the next day,

and JoAnn was there when she told her mother about it. She later said she didn’t

remember telling her mother what Shaw had done. Debra’s videotaped interview was

shown to the jury. Like JoAnn, Debra’s versions of her allegations against Shaw were

inconsistent.

        Brooke said that after JoAnn’s outcry, she asked Debra if anything had happened

to her, and she said, “no, I don’t want to talk about it.” When Brooke took JoAnn to the

Shaw v. State                                                                      Page 16
advocacy center to be interviewed, Debra went with them. While they were there,

Brooke told Debra that if she needed to say anything, “now is the perfect time for it,”

and Debra hesitantly said that Shaw had touched her breasts in the Shaws’ living room

while Brenda was in bed or not there. She also told Brooke that Shaw often would lay

on the couch with her. Brooke then told an advocacy center employee that Debra had

something to say.

        Brooke admitted that when she brought up the subject with Debra, she asked her

if Shaw had touched her. She denied telling Debra to say that they were watching the

“Grinch” when it happened.

        Debra told Caldwell that “Roy” touched her private part by putting his hand in

her panties, that he did it lot, and that sometimes it hurt. Caldwell’s genital/anal exam

of Debra was normal. Caldwell did not think that Brooke’s initial questioning of Debra

by asking if Shaw had done anything to her was inappropriate because JoAnn had

already alleged that he had touched her. Debra did not report to her that Shaw had

touched her breasts.

        Count Nineteen Disposition

        We find that the evidence is legally and factually sufficient on the jury’s guilt

finding on Count Nineteen for essentially the same reasons set forth in our discussion

on Count Two.

        Shaw’s second and third issues are overruled.

                                 Exclusion of Evidence

        Shaw’s first issue complains about the trial court’s exclusion of evidence that a

Shaw v. State                                                                     Page 17
boyfriend of the victims’ mother was a registered sex offender. We review a trial

court’s admission or exclusion of evidence for abuse of discretion. McDonald v. State,

179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Questions of relevance should be left

largely to the trial court, relying on its own observations and experience, and will not be

reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim.

App. 1993). “A trial court abuses its discretion when its decision is so clearly wrong as

to lie outside that zone within which reasonable persons might disagree.” Id.

        Various witnesses, including Brooke and her two daughters, testified about the

various men whom Brooke had been involved with or lived with and her children had

thus been exposed to. One was Glen Walker, a registered sex offender. The jury heard

evidence from the two girls that they had been around Walker and, with their mother

and brother, had stayed overnight some at Walker’s residence, and several witnesses

said that the girls should not have been around Walker. But the trial court excluded

evidence that Walker was a registered sex offender on the State’s objections that it was

not relevant and, if relevant, was more prejudicial than probative and was confusing.

In an offer of proof, Shaw’s counsel elicited evidence from Rayburne that Walker was a

registered sex offender.

        Shaw’s brief does not explicitly explain the relevance of Walker’s registered-sex-

offender status.   He argues that “there is little doubt that the probative value of

Walker’s contact with the children in this case could have undermined the State’s case,”

but his brief does not explain why. Moreover, the jury heard numerous witnesses say

that JoAnn and Debra were around Walker. We therefore assume that Shaw’s relevance

Shaw v. State                                                                       Page 18
argument is premised on Walker’s being an alternative perpetrator of the offenses

alleged by the children.

        “Evidence which is not relevant is inadmissible.” TEX. R. EVID. 402. Relevant

evidence is “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Id. 401. “A defendant has a fundamental right to

present evidence of a defense as long as the evidence is relevant and is not excluded by

an established evidentiary rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App.

2001) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297

(1973)). Evidence is considered relevant if it is material and probative. Id. To be

material, the evidence “must be shown to be addressed to the proof of a material

proposition, i.e., ‘any fact that is of consequence to the determination of the action.’” Id.

(quoting 1 STEVEN GOODE       ET AL.,   TEXAS PRACTICE: GUIDE     TO THE   TEXAS RULES    OF


EVIDENCE § 401.1). Evidence is considered probative if it “tend[s] to make the existence

of the fact ‘more or less probable than it would be without the evidence.’” Id.

         It is axiomatic that in a criminal prosecution, the State must prove each element

of the alleged offense beyond a reasonable doubt, and those elements are material

issues in the prosecution. See Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987)

(“The material issues in a criminal prosecution always consist of the elements of the

offense.”). But the identity of the accused is not an issue in every prosecution; the main

issue can be whether an offense was committed at all. See, e.g., Eubanks v. State, 113

S.W.3d 562, 566 n.1 (Tex. App.—Dallas 2003, no pet.); Morris v. State, 110 S.W.3d 100,

Shaw v. State                                                                         Page 19
103 (Tex. App.—Eastland 2003, pet. ref’d). In this case, the identity of the perpetrator of

the sexual offenses allegedly committed against JoAnn and Debra was not an issue.

They both knew Shaw very well and unequivocally and consistently said that he

committed the charged offenses against them. The main issue on the charges against

Shaw was whether the offenses occurred at all.

        Evidence of Walker’s registered-sex-offender status would only have been

relevant if the identity of the alleged perpetrator of the offenses was an issue in the case.

But in this case, evidence of an alternative perpetrator, such as Walker, is not relevant,

i.e., is immaterial, to the determination of whether the alleged offenses occurred. Cf.

Turner v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980). Therefore, we cannot say

that the trial court abused its discretion in excluding evidence of Walker’s sex-offender

status on relevance grounds. We overrule Shaw’s first issue.

                                        Conclusion

        Having overruled all of Shaw’s issues, we affirm the trial court’s two judgments

of conviction.



                                                  BILL VANCE
                                                  Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed December 3, 2008
Do not publish
[CR25]


Shaw v. State                                                                         Page 20
