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Webb v. State

Court of Appeals of Texas, Sixth District, Texarkana

February 22, 2018

LARRY WEBB, Appellant

          Submitted: December 21, 2017

         On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 15-F-0870-005

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Bailey C. Moseley Justice.

         Larry 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, [1] receiving a life sentence.[2]

         On 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 against him.

         We 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.

         I. Factual and Procedural Background

         Because the victim (fourteen-year-old Susan[3]) 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."

         Melissa 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, [4]called her mother, and ran outside.

         Melissa 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 dialed 9-1-1.

         Susan 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."[5] 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.

         Randall 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."

         Webb 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.

         Melissa 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.

         II. Did the Trial Court Err in Admitting Testimony Regarding the Victim's Veracity?

         In his 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.

         We 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).

         McDonald 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 McDonald:

Q Okay. In addition to just being absolutely hysterical, would you say she was displaying sort of like a ...

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