Robbie Joe Welch v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________

No. 06-10-00020-CR
______________________________

ROBBIE JOE WELCH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 38396-A

Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
 MEMORANDUM OPINION

A jury found Robbie Joe Welch not guilty on the two counts of aggravated sexual assault,

but guilty on the two counts of indecency with a child; the jury assessed punishment of eight years‟

imprisonment on the first count of indecency with a child, and two years on the second count of

indecency with a child. The trial court ordered the sentences to run consecutively.

On appeal, Welch contends that: (1) the evidence is legally insufficient to support the

conviction; (2) the trial court erred by admitting Welch‟s video-recorded statement; (3) the trial

court erred by admitting irrelevant evidence; (4) the trial court erred by admitting hearsay

evidence; (5) the trial court erred by refusing to allow Welch to subpoena evidence; and (6) the

trial court erred by limiting Welch‟s cross-examination of a witness. We affirm the judgment of

the trial court.

I. Facts

In 2007, a few years prior to the indictments in this case, Cody Millsap, the son of Welch,

reported that Welch was sexually abusing Jane Doe,1 a minor child. However, based largely

upon Jane‟s denial of the allegations, the Child Protective Services (CPS) determined that no abuse

had occurred. A year or two later, Jane told her grandmother that Welch had sexually abused her.

Jane‟s allegations were for the same alleged actions and time period as those of the previous CPS

investigation. After the grandmother contacted the police, and Jane was forensically interviewed,

Welch was arrested and indicted on two counts of aggravated sexual assault and two counts of
1
The pseudonym used at trial, which we will continue.

2
indecency with a child. All of the counts allege acts involving the same complaining witness,

Jane.

II. Sufficiency of the Evidence

In his first two points of error, Welch contends that the evidence was insufficient 2 to

support the verdict. In evaluating legal sufficiency, we review all the evidence in the light most

favorable to the jury‟s verdict to determine whether any rational jury could have found the

essential elements of indecency with a child beyond a reasonable doubt. Brooks, 323 S.W.3d at

912 (citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.

App.––Texarkana 2010, pet. ref‟d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented.

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the

direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318–19).

2
Welch argues the evidence is both legally and factually insufficient to support his conviction. In Brooks v. State, 323
S.W.3d 893, 894–95, 912–13 (Tex. Crim. App. 2010) (a 4-1-4 decision with one judge joining the lead opinion with a
concurring opinion and another concurring with the lead opinion and joining that concurrence), a plurality of the
Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d
126 (Tex. Crim. App. 1996), and its progeny. The plurality and the concurring judges agreed that the Jackson v.
Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the sole standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal offense that the State is required
to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894–95, 912–13. Since the Texas Court of Criminal
Appeals has abolished factual sufficiency review, we need not address the defendant‟s challenge to the factual
sufficiency of the evidence.

3
 Legal sufficiency of the evidence is measured by the elements of the offense as defined by

the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Under a hypothetically correct jury charge, Welch committed the offense of indecency

with a child by contact against Jane if (1) Welch (2) on a date before those listed in the indictment3

(3) in Gregg County, Texas (4) either engaged in sexual contact with Jane or caused Jane to engage

in sexual contact (5) when Jane was younger than seventeen years of age at that time and not

Welch‟s spouse. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon Supp. 2010). Sexual contact

means “any touching by a person” of “any part of the genitals of a child” or “any touching of any

part of the body of a child” with “any part of the genitals of a person,” “if committed with the intent

to arouse or gratify the sexual desire of any person.” TEX. PENAL CODE ANN. § 21.11(c) (Vernon

Supp. 2010).

A person engages in sexual contact “by touching the anus, by touching the breast, or by

touching the genitals with the requisite intent. Each one of these acts represents a different

offense.” Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007). “Consequently if a

person touches the anus, breasts, and genitals of a child with the requisite intent during the same

transaction, the person is criminally responsible for three separate offenses.” Id. at 718.

3
The State may allege in an indictment that an offense occurred “on or about” a date certain. Sledge v. State, 953
S.W.2d 253, 255–56 (Tex. Crim. App. 1997). “[T]he „on or about‟ language of an indictment allows the State to
prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the
indictment and within the statutory limitation period.” Id. at 256.

4
 Count three of the indictment alleges that Welch touched Jane‟s genitals and count four

alleges contact with Jane‟s breast. Welch contends that: (1) “a finding of guilt as to more than

one count is clearly not justified” because the State failed to prove that the actions alleged in both

counts occurred in Gregg County, Texas, 4 and (2) the evidence supporting the verdict is

insufficient because it is inconsistent and inaccurate, and “taken in total, simply paint[s] a picture

that cannot result in a conviction.”5

Jane testified that Welch first sexually touched her while she lived in Kilgore with her

mother, her stepbrother, Millsap, and Welch. It happened after she turned thirteen. She testified

that Welch touched her breasts and her genitals6 with his hands. Rebecca Cunio, the forensic

interviewer, testified that during the forensic interview, Jane told her that during this episode of

contact, Welch was “touching her on her breasts, on her vagina, and on her bottom.” During the

forensic interview, Jane recalled Welch asking her “if it feels good while he rubs her on these

places.” Kilgore Police Officer Tony Stone testified that the Kilgore home Welch and Jane lived

in at the time of the alleged contact was located in Gregg County, Texas.

In his argument, Welch directs our attention to several issues. The sexual abuse

allegations in this case are the same allegations that Millsap made in 2007, when Jane denied being

4
Specifically, he argues that “[t]he CAC interview indicates that the child said only one incident of fondling took place
in Gregg County” and that “[a]ll other allegations relate to alleged incidents in Dallas or Tyler.”
5
Welch‟s sufficiency argument does not challenge that the evidence is sufficient that the alleged offenses occurred:
(1) on a date or dates prior to those listed in the indictment; (2) at a time Jane was younger than seventeen years of age;
or (3) at a time when Jane was not Welch‟s spouse. Therefore, we do not address these elements on appeal.
6
At trial, Jane referred to her breasts as “bubbles” and her genitals as her “pee pee.”

5
abused and CPS found no abuse to have occurred. Millsap made the allegations after running

away from home and being found by the police. During the CPS investigation of Millsap‟s

allegations, Jane and her mother both pointed out that Millsap had behavioral issues and would lie

to get attention or to get the “heat” off of him.

In the current investigation, two days after Jane told her grandmother of the alleged abuse,

Watson first spoke with relative and family friend, Officer Stone, and at his direction, she spoke

with the child and typed a written statement of what Jane told her. Welch asserts that the

grandmother, the outcry witness, was not a credible witness because of her previous negative

financial dealings7 with Welch, her visitation with Jane had been restricted, her anger at Welch

over Jane‟s allegations, and the fact that she waited two days to report the initial outcry. Welch

also attacks the written statement, the basis of Stone‟s police report, because Cunio and others

testified that it was best for an allegedly abused child to be forensically interviewed by a trained

professional “so as not to lead the child or to implant memories that did not exist, not to make the

child -- not to suggest things to the child that did not occur.”

Last, Welch points out that Jane‟s testimony was conflicting and inconsistent. Paula

Bradley, Jane‟s counselor, testified that Jane was easily manipulated and that approval from her

grandmother was important to her. Bradley stated that Jane would need frequent breaks when

talking to an investigator about sexual abuse, and during the trial, Jane did take several breaks

7
Jane‟s grandmother had cosigned with Welch on a vehicle that Welch and Jane‟s mother were purchasing.
However, Welch defaulted, leaving the grandmother to pay the note.

6
during cross-examination, but only one during direct. Jane testified that the abuse occurred in

“my -- in his bedroom,” but on cross she admitted that the Kilgore home only had one bedroom,

occupied by her and sometimes Millsap, and that Welch and her mother slept on a futon in the

living room. Jane testified that Millsap knew of the abuse because, on one occasion, he saw it

happening when he walked into the room; however, Millsap testified that he never saw any abuse

occur, and the only way he knew about it was because Jane told him.

Because there is evidence that Welch, with the requisite intent, touched Jane‟s breast and

genitals during the same transaction, Welch could be legally charged and convicted of two

separate offenses. Pizzo, 235 S.W.3d at 718. There was also testimony from both Jane and

Cunio that the breast and genital contact occurred while Jane and Welch were at home in Kilgore,

and Officer Stone testified that their home in Kilgore was located in Gregg County, Texas. The

evidence is of sufficient strength to support the jury‟s finding that the separate offenses alleged in

counts three and four occurred in Gregg County, Texas.

Welch attacks the credibility of witnesses and points to the conflicts and inconsistencies in

the evidence as he argues that the evidence is so unreliable that the convictions must be reversed.

However, the “jury is the exclusive judge of the credibility of witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see also TEX. CODE

CRIM. PROC. ANN. art. 38.04 (Vernon 1979). The jury may reasonably infer facts from the

7
evidence presented, and is free to believe or disbelieve all or part of a witness‟ testimony. Jones

v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998); Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986).

While there was conflicting evidence in this case as well as questions regarding witness

credibility, the jury in this case was free to weigh the credibility of the witnesses and resolve any

conflicts in the evidence against Welch. Here, when viewing the evidence in the light most

favorable to the verdict, there is sufficient evidence from which a rational jury could find that the

State proved beyond a reasonable doubt the elements alleged in counts three and four of the

indictment. Accordingly, we overrule Welch‟s first two points of error.

III. The Admission of Welch’s Video-Recorded Statement

After Welch was taken into custody, the Kilgore police questioned him and video-recorded

his statement. At trial, the recorded statement was admitted into evidence as State‟s Exhibit 3 and

Defense Exhibit 1.8 In his third point of error, Welch contends that the trial court erred in

admitting his recorded statement because he invoked his right to counsel twice near the beginning

of the statement.9

Generally, a party must object to preserve error on appeal. See TEX. R. APP. P. 33.1(a).

However, pursuant to Rule 103(d) of the Texas Rules of Evidence, appellate courts may take

8
At trial, Welch orally objected and sought to suppress the last two or three minutes of the statement because, at the
time in the video, Welch asserted his right to counsel. The trial court sustained the objection. The last three minutes
of the statement are not at issue in this appeal.
9
The alleged invocations occur at approximately 1 minute 57 seconds and again at the 5-minute mark.

8
“notice of fundamental errors affecting substantial rights although they were not brought to the

attention of the court.” TEX. R. EVID. 103(d). Fundamental errors fall into “two relatively small

categories of errors: violations of „rights which are waivable only‟ and denials of „absolute

systemic requirements.‟” Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002).

“Waivable only” rights include the right to the assistance of counsel and the right to trial by jury.

Id. “Absolute, systemic rights” include jurisdiction of the person, jurisdiction of the subject

matter, a penal statute‟s compliance with the Separation of Powers Section of the state

constitution, a constitutional requirement that a district court must conduct its proceedings at the

county seat, the constitutional prohibition of ex post facto laws, and certain constitutional restraints

on the comments of a judge. Id. at 888–89. Notably, neither of the fundamental error categories

includes the admission or exclusion of evidence, regardless of how probative or prejudicial the

evidence might be. See id.

Here, Welch is arguing that the trial court erred in admitting evidence, but he failed to

object to the statement‟s admissibility at any time before or during trial.10 In order to be preserved

for appeal, an error regarding the admission or exclusion of evidence must be brought to the trial

court‟s attention, be it through oral objection or written motion. Therefore, Welch failed to

preserve this issue for our review.

10
In its brief, the State mentions that four months after his conviction, Welch, acting pro se, filed a motion to suppress
evidence on June 10, 2010. No such motion was included in the record before us. Therefore, we will not consider it
for any purpose.

9
IV. The Admissibility of the Terrel and Ward Testimony

The State asked Bunny Terrel about a specific instance of delayed outcry that Welch had

previously asked Officer Stone about. Welch objected, arguing that there was “no probative

value to this line of testimony.” The trial court overruled the objection. Later, the State asked

David Ward about Millsap‟s behavior after he was interviewed by the Kilgore officers

investigating Jane‟s allegations. Welch, again, objected, arguing that the information was

irrelevant. The trial court overruled the objection. In his fourth point of error, Welch contends

that the trial court erred by admitting irrelevant testimony from Terrel and Ward. We disagree.

Because trial courts are in the best position to decide substantive admissibility questions,

we must review the trial court‟s ruling on admissibility under an abuse of discretion standard.

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion

standard, an appellate court should not disturb the trial court‟s decision if the ruling was within the

zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

Therefore, the question that we must determine is whether the trial court‟s decision that the

specific testimony from Terrel and Ward was relevant is within the zone of reasonable

disagreement.

We note that Welch only objected to the relevancy of the testimony. 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 have been without the

10
evidence. TEX. R. EVID. 401. “If the trial court believes that a reasonable juror would conclude

that the proffered evidence alters the probabilities involved to any degree, relevancy is present.”

Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). Relevant evidence is

presumed admissible. TEX. R. EVID. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex. Crim. App.

2004). Evidence that is not relevant is inadmissible. TEX. R. EVID. 402.

Terrel was admitted as an expert, without objection, “in the area of child sexual abuse,

child physical abuse, forensive [sic] interviewing, and child abuse.” After asking her a few

questions about delayed outcry, which Terrel testified was common, the State asked her whether

she recalled a specific case of delayed outcry where a child “who had been interviewed and

recanted and then was interviewed again and made an outcry” and the case later went to trial.

Terrel testified she was familiar with the case and that it took some time before the child was able

to make an outcry. Welch objected on the ground that “there‟s no probative value to this line of

testimony.”11

During his opening statement, cross-examinations, and closing arguments, Welch used

Jane‟s previous denial of abuse and CPS‟s determination that no abuse had occurred to attack the

credibility of Jane‟s testimony and that of the allegations against him. Testimony by an expert

witness that provides useful background information to aid the jury in evaluating the testimony of

11
In his brief on this point of error, Welch cites Rule 403 of the Texas Rules of Evidence and its requirement that even
relevant evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
However, his “not probative” objection failed to raise an issue with the trial court regarding whether the probative
value was substantially outweighed by any unfair prejudicial effect the testimony might have. Because the Rule 403
issue was not invoked at trial, it is not preserved for review.

11
another witness is probative and admissible. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim.

App. 1997). Here, the trial court found Terrel‟s testimony to be relevant. The trial court was

within the zone of reasonable disagreement because Terrel‟s testimony could help the jury

evaluate the credibility and content of Jane‟s delayed outcry.

Welch also objected to the relevance of testimony given by David Ward, the

superintendent of the Arkansas Sheriffs‟ Youth Ranch. Detective David Merrell had gone to the

Youth Ranch and questioned Millsap about Welch‟s and Jane‟s allegations, and at trial, the State

asked whether Ward was “able to observe anything about Cody that happened during the

questioning or immediately thereafter in regards to his behavior?” Welch objected, arguing that

the testimony was irrelevant.12 The trial court overruled the objection, and Ward testified that

Millsap was afraid of “what would happen if [Welch] found out,” and quoted Millsap as saying,

“You don‟t understand. . . . We‟re talking about a bad man.” Ward pointed out that after being

questioned about Welch, Millsap‟s behavior “regressed to the point that he got really upset one

night and banged his head against the wall until he was almost unconscious and he had to be placed

in acute care for ten days at Methodist Behavioral Health.”

Here, Welch only objected regarding the relevance of Ward‟s testimony about Millsap‟s

behavior after being interviewed about Jane‟s allegations against Welch. Evidence that has any

tendency to make the existence of any material fact more or less probable is relevant. TEX. R.

12
At trial, Welch also objected on the ground that Ward was not qualified to testify regarding psychological issues.
However, Welch does not raise that issue on appeal, so we do not address it.

12
EVID. 401. The trial court was within its discretion to find that a reasonable juror could view

Millsap‟s fear of Welch as relevant and explanatory for Jane‟s fear of Welch, the proffered reason

for her prior denial and delayed outcry. The trial court‟s decision was within the zone of

reasonable disagreement. Accordingly, we overrule this point of error.

V. Alleged Hearsay and Unchallenged Evidence

The State asked Cunio what Jane wanted to happen to Welch. Welch objected because it

called for hearsay,13 but the trial court overruled his objection. Cunio testified that Jane had a

strong desire to see someone punished. Later in the trial, Jane‟s grandmother testified, over

Welch‟s hearsay objection, that Jane was afraid of Welch. In his fifth point of error, Welch

contends that the trial court erred in admitting the testimony from Cunio and the grandmother

because their testimony was hearsay.

Even if the witnesses‟ testimony amounted to hearsay and the trial court erred by admitting

it, any error was harmless because the same or similar testimony was admitted without objection at

another point in the trial. McNac v. State, 215 S.W.3d 420, 425 (Tex. Crim. App. 2007) (citing

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) (“improper admission of evidence is not

reversible error if the same facts are shown by other evidence which is not challenged”).

Here, Welch objected to Cunio‟s testimony that Jane had a strong desire to see someone

punished. The video-recorded interview between Cunio and Jane was admitted into evidence,

13
Welch also objected on the ground that the question called for a conclusion, but he does not raise that issue on appeal,
so we do not address it.

13
without objection, as State‟s Exhibit 3, and played for the jury. During deliberations, the jury

requested and viewed the video again. On the video, Jane tells Cunio that she wants Welch to go

to jail for a long time. The record indicates that Welch‟s trial counsel muted portions of the video

pursuant to an agreement between the attorneys; however, the record does not indicate which

specific portions were so muted. There is nothing in the record or in Welch‟s brief indicating that

the jury did not hear Jane‟s video-recorded wishes that Welch be punished.

Welch also objected to the grandmother‟s testimony that Jane was afraid of Welch;

however, both Jane‟s mother and Jane, herself, testified, without objection, that Jane was afraid of

Welch. During her interview with Cunio, Jane repeatedly states that she is afraid of Welch.

Texas law requires a party to continue objecting each time inadmissible evidence is offered. 14

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (citing Hudson v. State, 675

S.W.2d 507, 511 (Tex. Crim. App. 1984) (“[d]espite the improper form and content of the

question, it is well settled that an error in admission of evidence is cured where the same evidence

comes in elsewhere without objection; defense counsel must object every time allegedly

inadmissible evidence is offered”). By failing to object to the statements made in the video, as

well as the above-referenced testimony of Jane and her mother, any previous hearsay error on

these issues was rendered harmless. Accordingly, we overrule Welch‟s fifth point of error.

VI. The Subpoena Duces Tecum Request

14
There are two exceptions to the “contemporaneous objection” rule. The first is via a running objection, and the
second is via a one-time objection, outside the presence of the jury, to all the testimony counsel deems objectionable
on a given subject. Ethington, 819 S.W.2d at 858–59. Neither of these exceptions apply in this case.

14
 In a pretrial motion, Welch orally requested that he “be allowed a subpoena for the

production of any computers that are in the property or possession of the victim in this case, [Jane],

or [Jane‟s mother] or Cody Millsap.” Welch believed “that there may be some contact between

the alleged victim and some witnesses that maybe -- may shed some light on this situation and

possibly have some evidence that might be available for trial.”15 The State argued that the request

was a baseless “fishing expedition.” The trial court denied the request. In his sixth point of

error, Welch argues that the trial court erred by refusing to allow Welch to subpoena the

computers.

Welch failed to specify the nature of his requested subpoena. As there is neither written

application for the subpoena nor extensive argument during the pretrial hearing, it is unclear

whether Welch was requesting that the witnesses produce the computers for pretrial examination

or that the witnesses bring the computers with them on the day of trial.16

Under both the United States Constitution and the Texas Constitution, a defendant has a

right to compulsory process for witnesses and information in the possession of witnesses. U.S.

CONST. amend. VI; TEX. CODE CRIM. PROC. ANN. arts. 24.01–.29 (Vernon 2009 & Supp. 2010);

Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994). Chapter 24 of the Texas Code of

15
In his brief, Welch maintains that “[t]he record in the case at bar shows that there was communication via computer
between [these witnesses] regarding the case.” However, the record does not support that assertion. Jane confirmed
that Millsap was a Facebook “friend” of hers, but she denied chatting with him through Facebook. There is no
evidence indicating that Jane, Millsap, or Jane‟s mother used their computers to communicate with each other about
this case.
16
Nothing in Welch‟s pretrial argument or his brief on appeal indicates that he was asking the State to seize the
computers and then produce them for inspection via the disclosure process.

15
Criminal Procedure authorizes a defendant to obtain a subpoena to secure the presence of

witnesses whose testimony is material to its case. TEX. CODE CRIM. PROC. ANN. arts. 24.01–.29.

Issuance of the subpoena is a matter of right on written, sworn application identifying the witness

and stating that the testimony is material to the State or defense. TEX. CODE CRIM. PROC. ANN.

art. 24.03. Article 24.02 specifically authorizes the issuance of a subpoena duces tecum directing

the witness to produce in court writings or other things in their possession. TEX. CODE CRIM.

PROC. ANN. art. 24.02. But neither the Sixth Amendment nor Article 24 “include the power to

require the pretrial disclosure of any and all information that might be useful in contradicting

unfavorable testimony.” Pennsylvania v. Ritchie, 480 U.S. 39, 52–53 (1987). The oral motion

generally requesting information from computers was neither written nor specific. The trial court

did not abuse its discretion in denying the pretrial motion for production of the computers.

Welch could have been seeking a subpoena requiring the witnesses to produce the

computers on the day of trial. However, before a subpoena may be issued, the Texas Code of

Criminal Procedure requires a defendant to file an application for a subpoena with the trial court‟s

clerk. TEX. CODE CRIM. PROC. ANN. art. 24.03(a). Here, the record does not contain a sworn

application asserting the materiality of the information contained in the witnesses‟ computers and

requesting that they produce the computers on the day of trial. Therefore, Welch was not entitled

to the requested relief and we overrule Welch‟s sixth point of error.

VII. Underwood’s Status as a Sex Offender

16
 During cross-examination by Welch, Jane‟s mother testified that she had known a man

named Brandon Underwood for about two years. He was “just a person that [she knew] through

[her] ex . . . a friend of the family.” She also testified that she had spent some time with him and

that Jane knew him “[j]ust from the family.” Welch then asked her whether she was aware that

Underwood was a registered sex offender, and the State objected.17 After a bench conference,

which was not on the record, the trial court sustained the objection as to Underwood‟s status as a

sex offender. Outside the presence of the jury, Welch made an offer of proof, examining Jane‟s

mother regarding Underwood. The offer of proof produced the following relevant testimony

from Jane‟s mother:

She had known Underwood for about two years.

Underwood is a friend of Jane‟s father.

Underwood knows Jane and has had contact with her.

Jane had not been around Underwood until “just recently.”

She was aware that Underwood was on community supervision for sexual assault of a
child.

She knew of Underwood‟s criminal status when Jane was associating with Underwood.

She did not believe that it was in Jane‟s best interest to be associating with Underwood.

17
The basis of the State‟s objection does not appear in the record.

17
For record purposes only, Welch admitted certified copies of the criminal indictment and order of

deferred adjudication of Underwood into evidence. After the offer of proof, the trial court, again,

sustained the State‟s objection.

In his final point of error, Welch argues that the trial court violated his right to “due process

under the Federal Constitution (due process clause of the 14th Amendment) and due course of law

under Texas law (Texas Code of Criminal Procedure, Article 1.04)” and that “such a denial by the

trial court denied [him] his fundamental right of cross examination and the ability to adequately

place before the jury a valid defense.”

We review a trial court‟s decision to admit or exclude evidence under an abuse of

discretion standard. See Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Brown

v. State, 189 S.W.3d 382, 385 (Tex. App.––Texarkana 2006, pet. ref‟d). Even though neither the

grounds for the State‟s objection, nor the trial court‟s basis for granting it, appear in the record, we

may uphold a trial court‟s ruling on any legal theory or basis applicable to the case. Martinez v.

State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002); cf. Cameron v. State, 241 S.W.3d 15, 18–20

(Tex. Crim. App. 2007).

The trial court could have had several reasons to exclude the evidence. One valid legal

theory or basis for excluding the evidence is that the probative nature of the evidence is

substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. Under Rule 403,

we examine the probative nature of the evidence and balance it against the danger of unfair

18
prejudice should the evidence be admitted. TEX. R. EVID. 403. Under Rule 403, a reviewing

court is to reverse the trial court‟s judgment “rarely and only after a clear abuse of discretion.”

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d

at 389).

Here, Welch is charged with sex offenses against a child. There is no evidence or

allegation in the record that Underwood had any opportunity to molest Jane. Evidence of his

status does not serve to support or attack the credibility of any other witness regarding a fact of

consequence. In these circumstances, the trial court would be justified in excluding the evidence

by finding the probative value of the evidence to be very minimal while the unfair prejudicial

effect was substantial. We find that the record supports the trial court‟s ruling because the danger

of unfair prejudice substantially outweighed the minimal probative value of Underwood‟s sex

offender status. Accordingly, we overrule Welch‟s final point of error.

We affirm the judgment of the trial court.

Jack Carter
Justice

Date Submitted: February 9, 2011
Date Decided: April 12, 2011

Do Not Publish

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