Court of Appeals of Texas, Sixth District, Texarkana
Submitted: December 21, 2017
Appeal from the 5th District Court Bowie County, Texas Trial
Court No. 15-F-0870-005
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice.
Webb was convicted in Bowie County, Texas, of aggravated
sexual assault of a child (his step-granddaughter) and
indecency with the same child by sexual contact,
receiving a life sentence.
appeal, Webb raises three points of error, contending: (1)
that the trial court erred in allowing a witness to testify
that the victim was telling the truth when reporting the
incident, (2) that error was committed when the statements
given by Webb to the police were allowed into evidence, and
(3) that the evidence was legally insufficient to support the
trial court's assessment of $534.00 in court costs
affirm the trial court's judgment because: (1) the
neighbor testified concerning whether the victim was upset
rather than the veracity of the victim's statements; (2)
if any error was committed in permitting the introduction of
Webb's statements to the police, Webb waived any such
error as a point for appeal; and (3) the record is sufficient
to support the assessed court costs.
Factual and Procedural Background
the victim (fourteen-year-old Susan) had known Webb her entire
life as her step-grandfather, whom she called "Pop,
" she and her sister enjoyed spending time with him.
Because of their close relationship, they would sometimes
spend the night with him at his house. After making
arrangements with Susan's mother, Melissa, Susan spent
the night of September 19, 2015, at Webb's house. Even
though Susan's sister did not go, Susan, who had just
turned fourteen years' old, "wanted to still go to
spend time with her grandfather for her birthday."
testified that Susan called her that evening from Webb's
house and asked if she could take some Tylenol, and Melissa
told her she could. Susan testified that she told Webb that
she was not feeling well. Because the bed she usually slept
in was dirty and cluttered with things, Webb told her to lie
down in his bed, an instruction she followed. Susan went on
to relate that Webb entered the bedroom naked and got into
the bed with her. She claimed that Webb touched and squeezed
her breasts, put his hand inside her panties, inserted his
finger in her vagina, and made her touch his penis with her
hand. Webb removed her pants and "stuck his penis in
[her]" vagina, causing her pain. She testified that even
though his actions caused her to cry and she yelled at him to
cease, he did not stop until later. After Webb stopped, he
exited the bedroom and went into the living room, where he
fell asleep. Susan then grabbed the house wireless telephone,
called her mother, and ran outside.
testified that about an hour after the first telephone call,
Susan called her again, from Webb's bedroom telephone,
only this time she was "hysterical" and crying. She
told Melissa that Webb had raped her. Susan ran out of the
house and hid under a boat that was in Webb's yard. While
she was under the boat, Webb came outside looking for her,
and he said, "[Susan], where are you? I'm going to
kill you and whoever you tell." Melissa told her,
"Run, get as fast as you can to a neighbor's
house." At some point, the call disconnected. Melissa
ran to the house next door, the home of Jennifer McDonald.
McDonald testified that she, her husband Larry, her two
children, and one of their friends were in the house that
night. She testified that it was about midnight when she
heard "knocks on all the doors, all the windows."
She and her family became afraid because it sounded to them
as if someone was running around the house knocking.
McDonald's husband opened the door and Susan "almost
knocked [Larry] down trying to get into [the] house."
McDonald did not know who Susan was, but she noticed that the
child was holding a telephone, was wearing only a tee shirt
and shorts, and was not wearing any shoes. Susan was
screaming, crying, and saying, "He raped me. He raped
me." When they asked her the identity of the person to
whom she referred, Susan said that Webb had raped her and
told her that if she told anyone, "he was going to kill
her and whoever she told." McDonald described Susan as
"absolutely hysterical." McDonald and her husband
tried to calm Susan, and they called 9-1-1 for police
assistance. It is a portion of McDonald's testimony that
is the basis of one of Webb's complaints on appeal.
Baggett, a deputy with the Bowie County Sheriff's
Department, was the first to arrive at McDonald's house.
He described Susan as "distraught, upset, looked like
she'd been crying, looked like she was scared." She
said that her grandfather, Webb, had raped her in his bedroom
and related what she said had occurred to upset her. Between
midnight and 1:00 a.m., other officers arrived at
McDonald's house, and they went next door to speak with
Webb. He invited the officers inside, and when asked if
anyone else was in the house, he said his granddaughter was
"in the back bedroom." Baggett testified that
"someone had asked him you know, if he knew why we were
there, and he said that his granddaughter could've
possibly made a statement that he had did something sexual or
he hit her or hurt her, something of that nature." Brent
Caudle (a lieutenant with the Bowie County Sheriff's
Department) said that he remembered Webb's answer to the
question being, "Well, I guess it, you know, maybe I did
something sexual or I assaulted my granddaughter."
consented to a search of the house by the deputies, who
collected the bedding from Webb's bed, the pajama bottoms
that Webb was wearing, and a washcloth that was on the
nightstand. The officers photographed Webb, the bed, bedding,
bedroom, living area, bathroom, and other areas of the house.
Baggett testified that Webb told the officers that they
"may find something on that bedding as a couple of
mornings earlier he woke up aroused." Baggett further
testified that Webb seemed nervous when he was responding to
questions that were posed to him and that "he'd come
up with an answer for everything before we even asked him a
question a lot of times . . . as he had his story together
before we were questioning." After a forensic
examination, Webb's DNA was found on Susan's bra and
panties, and semen was found on Webb's sheets.
testified that by the time she arrived, the police were
already there, Susan was very upset, and she "jumped
in[to her] arms." They drove to St. Michael's
Hospital in Texarkana, where a nurse wrote down Susan's
statement of what happened and performed a sexual assault
examination on Susan. Susan was later interviewed at the
Children's Advocacy Center.
Did the Trial Court Err in Admitting Testimony
Regarding the Victim's Veracity?
first point of error, Webb contends that the trial court
erred in admitting what Webb maintains was a statement by
McDonald that Susan was truthful in what she told McDonald.
review a trial court's decision to admit or exclude
evidence for an abuse of discretion. Martinez v.
State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse
of discretion occurs only if the decision is "so clearly
wrong as to lie outside the zone within which reasonable
people might disagree." Taylor v. State, 268
S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.
on reh'g). We may not substitute our own decision for
that of the trial court. Moses v. State, 105 S.W.3d
622, 627 (Tex. Crim. App. 2003). We will uphold an
evidentiary ruling if it was correct on any theory of law
applicable to the case. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
testified that a barefooted Susan ran into her house
screaming and crying and that "all she was saying was,
'He raped me. He raped me.'" When she asked
Susan who she was talking about, Susan told her that Webb had
raped her. The State continued its direct examination of
Q Okay. In addition to just being absolutely hysterical,
would you say she was displaying sort of like a ...