James William Bryan v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-23-00061-CR
________________

JAMES WILLIAM BRYAN, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A210532-R
________________________________________________________________________

MEMORANDUM OPINION

Appellant James William Bryan appeals his conviction for the offense of

continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02. In

three issues, Bryan complains about the sufficiency of the evidence and the

exclusion of evidence. For the reasons explained below, we affirm the trial court’s

judgment.

1
BACKGROUND

A grand jury indicted Bryan for the offense of continuous sexual abuse of a

young child, alleging Bryan:

did then and there, during a period that was 30 or more days in duration,
to-wit: from on or about November 3, 2013 through November 3, 2017,
when the defendant was 17 years of age or older, commit two or more
acts of sexual abuse against a child younger than 14 years of age,
namely on or about November 3, 2013, in Orange County, Texas, did
then and there with the intent to arouse and gratify the sexual desire of
. . . Bryan, engage in sexual contact by touching [] the genitals of
[Betsy], 1 a child younger than 14 years of age and not the spouse
of . . . Bryan[;]

. . . that on or about November 3, 2015, . . . Bryan, did then and there
with the intent to arouse and gratify the sexual desire of . . . Bryan,
engage in sexual contact by touching [] the genitals of [Betsy], a child
younger than 14 years and not the spouse of . . . Bryan[;]

. . . that on or about November 3, 2016, . . . Bryan, did then and there
intentionally and knowingly cause the penetration of the sexual organ
of [Betsy], a child who was then and there younger than 14 years of age
and not the spouse of . . . Bryan, by his sexual organ[;]

. . . that on or about November 3, 2017, . . . Bryan, did then and there
intentionally and knowingly cause the penetration of the mouth of
[Betsy], a child who was then and there younger than 14 years of age
and not the spouse of . . . Bryan, by his sexual organ

against the peace and dignity of the State.

1
We use pseudonyms and familial titles to refer to the victim, her family
members, and other witnesses to conceal their identities. See Tex. Const. art. I §
30(a)(1) (granting crime victims “the right to be treated with fairness and with
respect for the victim’s dignity and privacy throughout the criminal justice
process[.]”
2
See id. § 21.02(b), (c)(2), (4); see also id. §§ 21.11(a)(1), 22.021(a)(1)(B)(i), (ii).

In January 2023, the trial court conducted a jury trial. Betsy’s father (“Father”)

testified that Bryan is his father-in-law and Betsy’s grandfather. Father testified that

Betsy was currently sixteen years old, and he explained that in early 2020, Betsy

exhibited bad behaviors when she was in middle school. Father explained that Betsy

was hanging out with a girl around her age who was eleven or twelve years old and

became “real defensive and kind of aggressive.” Father testified that when he asked

Betsy why she was so attached to the girl, Betsy commented that the girl had been

sexually abused, and Betsy told Father she had also been sexually abused by

“Pepaw[,]” which was the name Bryan went by. Father testified that Bryan denied

Betsy’s allegations. Father explained they took Betsy to the hospital to get checked

out by a sexual assault nurse examiner (“SANE”).

Father testified that from the ages of two to eleven Betsy spent a significant

amount of time at Bryan’s home. Father explained that after the outcry, he tried to

recall the signs he missed, and he testified that when Betsy was three or four years

old, Betsy commented that Bryan “tickled her tootie.” When Father questioned

whether Bryan had touched Betsy inappropriately, Bryan claimed it was a

misunderstanding. Father also explained that he was concerned that Bryan was

showering with Betsy when she was five or six years old and sleeping in the same

bed with Betsy when she was seven or eight years old. Father testified that when

3
Betsy was around eleven years old, she detached from Bryan and did not want to

hug him or go to his home. At the time of trial, Father was divorcing Betsy’s mother

(“Mother”), who had supervised visitation with Betsy.

Betsy testified that she refers to her grandfather, Bryan, as “Pepaw.” Betsy

testified that she remembers staying at Bryan’s home from the ages of five to twelve,

and she slept in between her grandparents in their bed because she feared the dark.

Betsy testified that when she was seven years old, she was sleeping with her

grandparents when Bryan put his finger inside her sexual organ, and she stated that

it happened “[a] lot.” Betsy explained that on one occasion, her grandma

(“Grandmother”) felt his hand and immediately got up and started yelling at Bryan,

and when Betsy tried to talk to Grandmother about the incident, she “immediately

got shut down.”

Betsy testified about an incident that occurred in her grandparents’ bathroom

when Bryan took off his clothes, got into the shower with her, pushed her down, and

made her put her mouth on his genitals. Betsy explained that she was under ten years

old when she started sleeping in her own room at her grandparents’ home, and Bryan

came into the room and asked for “tootie.” Betsy testified that Bryan used the word

“tootie” when he wanted her genitals and that when she told him no, he got into the

bed “in between my legs and took my clothes off and put his genitals inside of me.”

Betsy testified that Bryan used a rag to wipe his ejaculation or the lotion he used off

4
their genitals. Betsy explained that she felt sharp pain when Bryan penetrated her

sexual organ with his sexual organ. Betsy also had bed-wetting issues and wore Pull-

Ups at Bryan’s home, and there were times when she woke up with her Pull-Up off

and a puddle beside her. Betsy testified that Bryan offered her surprises at Walmart

if she did not resist and told her if she ever told anyone he would go to jail for a very

long time, and she explained that “as a kid I did not want that because he was my

grandpa.”

Betsy testified about another incident when Bryan penetrated her sexual organ

with his sexual organ in the camper at an RV park. Betsy stated Bryan asked for her

“tootie,” and when she said no, he chased her with a leather belt. Betsy explained

that in 2020, when she was thirteen years old, she told her parents she was hanging

out with a certain girl because she “ha[d] been through the same stuff as me.” Betsy

then told her parents about the abuse. Betsy testified that Bryan penetrated her sexual

organ with his sexual organ “[m]ultiple times[,]” penetrated her mouth “[m]aybe

twice[,]” and penetrated her bottom where she sits down once. Betsy stated that the

abuse occurred over “[m]any years[,]” and when she was eleven years old, Bryan

made her take a pregnancy test because she started her menstrual cycle. Betsy

explained she stopped wanting to see Bryan when she was twelve years old because

she “didn’t really know what it was, but I knew it was wrong.”

5
Sergeant Daryl Cowart of the Orange County Sheriff’s Office testified that in

January 2020, he responded to a service call for a sexual assault case at the hospital,

where he interviewed Betsy’s parents and spoke briefly to Betsy. Cowart completed

an offense report and forwarded it to the detective who would be handling the case.

Detective Matthew Wappler, who was with the Orange County Sheriff’s

Department, testified that he was initially assigned Betsy’s sexual assault case.

Wappler explained that he interviewed Betsy, who made a delayed outcry and

reported Bryan was the suspect. Detective Jennifer Bradberry of the Orange County

Sheriff’s Office testified that she took over Betsy’s case from Wappler. Bradberry

explained she reviewed Betsy’s victim statement, took Betsy’s parents’ witness

statements, obtained Betsy’s SANE report, and assembled the case file for the grand

jury. Bradberry explained that Grandmother never gave a statement and wanted to

consult Bryan’s attorney.

Rachel Thomas, a forensic nurse, testified she performed a SANE exam on

Betsy, who was thirteen years old. Thomas testified that Betsy reported that when

she was four years old, Bryan put his hand on her female sex organ and put his whole

finger in her “hole thingy. He done his whole finger a lot.” Thomas testified that

Betsy reported that Bryan told her she could sleep with them, and when Grandmother

felt his hand “on there[,]” she slapped Bryan’s hand and argued with him. Thomas

explained that Betsy also reported that when she was nine years old, Bryan grabbed

6
her female sex organ, pulled her clothes down, and put his penis in her “hole thingy,

my vagina.” Thomas testified that Betsy stated that Bryan “calls it sex tootie.” Betsy

reported that the abuse happened “so many times[]” after Grandmother went to bed

and while she was at work. Thomas testified that she did not observe any injuries,

scars, or tearing during Betsy’s SANE exam, which is “very normal[.]” Thomas

explained that Betsy’s SANE exam was consistent with her patient history she

provided.

Grandmother, who had been married to Bryan for 39 years, testified that

Betsy slept in the bed with them for many years, and she denied Betsy’s allegation

that she discovered Bryan touching Betsy’s vagina. Grandmother testified that Betsy

never told her Bryan was touching her, and she explained that she made Betsy sleep

in her own bed because Betsy was “messing with herself” and she told Betsy “‘to

leave tootie alone.’” Grandmother told Mother about Betsy’s behavior, and Mother

said Betsy would grow out of it. Grandmother testified that Betsy was spoiled and if

Betsy wanted anything, “she pitched a fit, she got.” Grandmother stated that Betsy

was “very jealous[,]” and she would get mad when other family members wanted to

call Bryan “Pepaw[]” and say “‘No, that is not your pepaw. It is my pepaw.’”

Grandmother explained that Bryan had been unable to achieve an erection for

the past nine to ten years, and they had not had intercourse for “[q]uite a few[]” years

because she did not “want him to have a heart attack or anything of that sort.”

7
Grandmother denied that Bryan had intercourse with Betsy and stated that she

showered with Betsy when she was five or six years old and had Bryan dry Betsy

off and dress her. Grandmother explained she first learned of Betsy’s allegations

from Mother.

Bryan called several relatives and friends who testified in his defense, and

none of the witnesses observed Bryan act inappropriately with Betsy, but some of

them had observed Betsy being affectionate towards Bryan and jealous when other

children got his attention. One defense witness, James, a registered nurse who works

in emergency services and hospice, testified that although he is not a SANE, his

profession has familiarized him with the anatomy of young girls. When defense

counsel attempted to offer James as an expert witness, the State objected that the

proper predicate for an expert witness had not been laid, any lay testimony was

inadmissible, the testimony was irrelevant, and the defense had failed to disclose

James as an expert. The trial court sustained the State’s objection that James could

not testify as an expert because defense counsel failed to provide adequate notice.

Bryan testified in his defense and denied Betsy’s allegations. Bryan explained

that he had not had an erection in about ten years because he has erectile dysfunction

due to his diabetes medications. Bryan also explained that Grandmother was a light

sleeper and knows when he gets up to go to the bathroom in the middle of the night.

8
Bryan testified that Betsy touched herself until she was seven or eight years old, and

Mother got on to her for doing it.

The State called Thomas, the forensic nurse, as a rebuttal witness. Thomas

explained that Betsy’s jealousy and possessive nature toward Bryan indicated a

“trauma bond[,]” which is created when “there is an unhealthy relationship between

a perpetrator and a victim,” “[i]t’s not unnatural for anyone that’s in that position to

feel love. Because they honestly do love the person, just not that one bad thing that

they do when no one is watching.” Thomas testified that “[t]here is that strong

trauma bond where they are told, ‘We have to keep this a secret. I will go to jail if

you tell anybody[.]’” Concerning testimony about Betsy touching herself, Thomas

explained that “when a child is introduced to the nerve endings in their genitalia, it

doesn’t typically hurt[,]” and “it can be pleasurable.” Thomas testified that the child

does not know they are not supposed to touch themselves and that the behavior is

inappropriate. Thomas also testified that a regression in potty training or bed-wetting

can be a symptom in a child who has been sexually abused.

The jury found Bryan guilty of continuous sexual abuse of a young child and

assessed his punishment at life in prison.

9
ANALYSIS

Sufficiency of the Evidence

In issue one, Bryan argues the evidence was insufficient to prove he

committed the offense of continuous sexual abuse of a child. Bryan complains that

the evidence from Betsy’s SANE exam does not support Betsy’s allegations and that

it was impossible for him to have sexual relations with Betsy because he had erectile

dysfunction for the past ten years.

We review complaints of legal insufficiency under the standard in Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979). See Fernandez v. State, 479 S.W.3d 835, 837

(Tex. Crim. App. 2016). Under Jackson, we review all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have

found the essential elements of the offense beyond a reasonable doubt. Jackson, 443

U.S. at 319; see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We

defer to the jury’s responsibility to resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record contains

conflicting inferences, we must presume that the factfinder resolved such facts in

favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at 899 n.13;

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury as factfinder

is the sole judge of the weight of the evidence and credibility of the witnesses, and

10
it may believe all, some, or none of the testimony presented by the parties. See

Metcalf v. State, 597 S.W.3d 847, 865 (Tex. Crim. App. 2020) (citing Febus v. State,

542 S.W.3d 568, 572 (Tex. Crim. App. 2018)); Heiselbetz v. State, 906 S.W.2d 500,

504 (Tex. Crim. App. 1995). The appellate court does not reweigh the evidence or

determine the credibility of the evidence, nor does it substitute its own judgment for

that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007).

We treat direct and circumstantial evidence equally and consider the

“‘combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d

at 16-17). Each fact need not point directly and independently to the guilt of the

defendant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction. Temple v. State, 390 S.W.3d 341, 359 (Tex.

Crim. App. 2013); Hooper, 214 S.W.3d at 13; Johnson v. State, 871 S.W.2d 183,

186 (Tex. Crim. App. 1993). The testimony of a child victim, standing alone and

without corroboration, is sufficient to support a conviction for indecency with a child

and aggravated sexual assault of a child. Tex. Code Crim. Proc. Ann. art. 38.07(a),

(b)(1) (providing that child’s testimony alone is sufficient to support a conviction

for a sexual offense when the child is under the age of seventeen at the time of the

alleged offense); see Obey v. State, No. 09-23-00315-CR, 2024 WL 3593517, at

11
**10-11 (Tex. App.—Beaumont July 31, 2024, no pet.) (mem. op., not designated

for publication); Chasco v. State, 568 S.W.3d 254, 258 (Tex. App.—Amarillo 2019,

pet. ref’d).

The indictment alleges that Bryan committed the offense of continuous sexual

abuse of a young child against Betsy “from on or about November 3, 2013 through

November 3, 2017,” by committing two acts of aggravated sexual assault by

penetrating Betsy’s sexual organ with his sexual organ and by penetrating Betsy’s

mouth with his sexual organ, and one act of indecency with a child by touching

Betsy’s genitals with intent to arouse or gratify his sexual desire. See Tex. Penal

Code Ann. §§ 21.02(b), (c)(2), (4), 21.11(a)(1), 22.021(a)(1)(B)(i), (ii). A person

commits the offense of continuous sexual abuse of a child if:

(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more victims;
and

(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is . . . a child
younger than 14 years of age, regardless of whether the actor knows
the age of the victim at the time of the offense[.]

Id. § 21.02(b).

Section 21.02 of the Penal Code defines “act of sexual abuse” as including,

among other things, an act that constitutes the offense of indecency with a child

under section 21.11(a)(1) if the actor committed the offense in a manner other than

12
by touching, including touching through clothing, the breast of a child; and an act

that constitutes the offense of “aggravated sexual assault under Section 22.021[.]”

Id. § 21.02(c)(2), (4). A person commits the offense of indecency with a child under

section 21.11(a)(1) if the person engages in sexual contact with a child younger than

17 years of age or causes the child to engage in sexual contact. Id. § 21.11(a)(1).

Section 21.11 defines “sexual contact” to mean “any touching by a person, including

touching through clothing, of the anus, breast, or any part of the genitals of a child[.]”

Id. § 21.11(c)(1). A person commits the offense of aggravated sexual assault of a

child under Section 22.021 if the person intentionally or knowingly causes the

penetration of the sexual organ of a child by any means or causes the penetration of

the mouth of a child by the sexual organ of the actor. Id. § 22.021(a)(1)(B)(i), (ii).

The State need not prove the exact dates of the abuse, only that “there were

two or more acts of sexual abuse that occurred during a period that was thirty or

more days in duration.” Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland

2012, no pet.); Lane v. State, 357 S.W.3d 770, 773-74 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d); see also Tex. Penal Code Ann. § 21.02(d) (“[M]embers of

the jury are not required to agree unanimously on which specific acts of sexual abuse

were committed by the defendant or the exact date when those acts were

committed.”).

13
Betsy testified that between the ages of five and twelve, she stayed at Bryan’s

home. Betsy testified that when she was seven years old, she was sleeping in between

her grandparents when Bryan put his finger inside her sexual organ, and she stated

that it happened “[a] lot.” Betsy described another incident that occurred in her

grandparents’ bathroom when Bryan made her put her mouth on his genitals. Betsy

explained that she was under ten years old and sleeping in her own room at her

grandparents’ home when Bryan got into the bed “in between my legs and took my

clothes off and put his genitals inside of me.” Betsy also testified that Bryan

penetrated her sexual organ with his sexual organ while they were in the camper.

Betsy stated that the abuse occurred over many years and it included Bryan

penetrating her sexual organ with his sexual organ “[m]ultiple times[,]” and

penetrating her mouth “[m]aybe twice.”

Betsy’s testimony alone was sufficient to support the verdict. See Tex. Code

Crim. Proc. Ann. art. 38.07(a), (b)(1); Obey, 2024 WL 3593517, at **10-11; Chasco,

568 S.W.3d at 258. The jury, in its role as factfinder, could have found Betsy’s

testimony was credible. The jury could have believed Betsy’s testimony that Bryan

put his finger inside her sexual organ “[a] lot[,]” penetrated her sexual organ with

his sexual organ “[m]ultiple times[,]” and penetrated her mouth with his sexual

organ “[m]aybe twice.” Based on Betsy’s testimony, the jury could have also

believed that the alleged offenses occurred prior to the date of the indictment and

14
continued over a period of many years. Based on the evidence at trial, the jury could

have concluded that Bryan, during a period that is 30 or more days in duration,

committed two or more acts of sexual abuse, namely aggravated sexual assault of a

child and indecency with a child. See Tex. Penal Code Ann. §§ 21.02(b), (c)(2), (4),

21.11(a)(1), 22.021(a)(1)(B)(i), (ii); Lane, 357 S.W.3d at 773-74; see also Tex.

Penal Code Ann. § 21.02(d). Viewing the evidence in the light most favorable to the

verdict and deferring to the jury’s authority to determine the credibility of the

witnesses and the weight to give their testimony, we conclude that a reasonable

factfinder could have found the essential elements of the offense beyond a

reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); Metcalf, 597

S.W.3d at 865; Brooks, 323 S.W.3d at 902 n.19; Clayton, 235 S.W.3d at 778;

Hooper, 214 S.W.3d at 13; Obey, 2024 WL 3593517, at **10-11; Chasco, 568

S.W.3d at 258; Lane, 357 S.W.3d at 774. We overrule issue one.

Exclusion of Alleged Expert Testimony Based on Lack of Notice

In issue two, Bryan argues the trial court erred by excluding the testimony of

James, his nursing expert, who attempted to testify about evidence of trauma or

injury one would expect to see on a young girl who had been raped numerous times.

Bryan admits he did not provide notice to the State, but he claims his failure to

disclose James as a testifying expert was not in bad faith because he first learned of

his qualifications at trial and the State could have reasonably anticipated James

15
would offer testimony to dispute the SANE’s testimony that lack of physical

evidence was consistent with sexual abuse. Bryan also argues James’s testimony

qualified as lay witness testimony and the exclusion of the testimony affected his

substantial rights by denying his right to present a defense.

The record shows that when defense counsel called James, Bryan’s friend of

ten years, to testify about his observations of Bryan’s interactions with Betsy,

defense counsel stated, “I notice you’re in scrubs[,]” and proceeded to ask what

James did for a living. When James testified that he was not a SANE nurse but a

registered nurse who worked in emergency services and hospice, defense counsel

attempted to ask James a hypothetical question about a patient who presented to him

with a history of being violently raped 20 to 50 times. The State objected that the

proper predicate for an expert witness had not been laid, any lay testimony was

inadmissible, and the testimony was irrelevant because James was not a SANE

nurse. After the trial court allowed defense counsel to lay the predicate for an expert

witness, the State requested to take James on voir dire, and the trial court carried the

objection and allowed James to testify that he had never performed a SANE exam

and had only referred patients to a SANE nurse a “handful[]” of times.

When defense counsel attempted to ask James if hypothetically, he would

expect to see some evidence of trauma, past injury, or healed scars in “a young 11-,

12-, 13-year-old girl who was violently raped 20 to 50 times,” the State renewed its

16
previous objection and asked to approach to lodge a procedural objection as to any

attempt to elicit expert testimony. The State explained that it had filed a motion for

defense counsel to disclose expert witnesses, the defense counsel did not disclose

any, and it was surprised and unprepared for any expert testimony. The State argued

that James’s testimony was irrelevant, and he could not testify as an expert because

defense counsel failed to provide adequate notice. At that point, the trial court stated,

“now I understand why you wanted to approach. So, that’s sustained.” Defense

counsel then explained that he “just found out today.”

The record shows the State filed a Motion to Disclose Experts, requesting the

trial court to order defense counsel to disclose before trial the name and address of

each person the defendant may use to present evidence under Rules of Evidence 702,

703, and 705 as required by article 39.14(b) of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 39.14(b). The trial court granted the

State’s Motion and ordered defense counsel to disclose any person who would testify

as an expert witness by January 16, 2023. See Tex. R. Evid. 702 (Testimony by

Expert Witnesses). Defense counsel did not disclose any expert witnesses prior to

trial.

We review a trial court’s decision on whether to allow an undisclosed expert

witness to testify for an abuse of discretion. See Wood v. State, 18 S.W.3d 642, 649

(Tex. Crim. App. 2000) (citations omitted); Zhigang Wang v. State, No. 09-17-

17
00462-CR, 2019 WL 5057206, at *10 (Tex. App.—Beaumont Oct. 9, 2019, pet.

ref’d) (mem. op., not designated for publication). A trial court abuses its discretion

when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439

(Tex. Crim. App. 2005); see Webber v. State, Nos. 03-21-00572-CR, 03-21-00573-

CR, 03-21-00574-CR , 2023 WL 2603390, at *7 (Tex. App.—Austin Mar. 23, 2023,

no pet.) (mem. op., not designated for publication). We must uphold the trial court’s

ruling if it falls within the zone of reasonable disagreement. Montgomery v. State,

810 S.W.2d 372, 390-91 (Tex. Crim. App. 1991) (op. on reh’g).

When a defendant fails to disclose the identity of a testifying expert witness

pursuant to a trial court’s discovery order and the State objects based on a lack of

notice, we apply the same test used when the prosecution fails to notify the defense

of expert witnesses. Chakravarthy v. State, 516 S.W.3d 116, 136 (Tex. App.—

Corpus Christi-Edinburg 2017, pet. ref’d) (citing Johnson v. State, 233 S.W.3d 109,

114-15 (Tex. App.—Houston [14th Dist.] 2007, no pet.)); see also Strawn v. State,

No. 2-02-170-CR, 2003 WL 21235537, at **2-4 (Tex. App.—Fort Worth May 29,

2003, pet. ref’d) (not designated for publication). The test includes two factors: (1)

whether the party’s action in failing to timely disclose the expert witness was in bad

faith; and (2) whether the opposing party could have reasonably anticipated that the

undisclosed expert would testify at trial. Chakravarthy, 516 S.W.3d at 136 (citing

Johnson, 233 S.W.3d at 115). In determining whether the defense acted in bad faith,

18
we inquire as to whether the State showed the defense intended to deceive the State

by failing to provide the State with notice that it intended to elicit expert testimony

from the witness. See Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston

[1st Dist.] 2014, pet ref’d) (citing Nobles v. State, 843 S.W.2d 503, 514-15 (Tex.

Crim. App. 1992)). In determining whether the State could have reasonably

anticipated that the defense would call the witness as an expert, we examine (1) the

degree of surprise to the State; (2) the degree of disadvantage inherent in that

surprise; and (3) the degree to which the trial court was able to remedy that surprise

by granting a recess, postponement, or continuance. See id. (citations omitted).

Here, there is no evidence defense counsel acted in bad faith. Thus, we

conclude defense counsel’s failure to timely disclose James as an expert witness was

not in bad faith. See Chakravarthy, 516 S.W.3d at 136. That said, the record does

show that the State could not have reasonably anticipated that James would offer

expert testimony. See id. Based on this record, we cannot conclude the trial court

abused its discretion by not allowing James to offer expert testimony.

We need not consider Bryan’s argument that James’s testimony qualified as

lay witness testimony and the exclusion of the testimony affected his substantial

rights by denying his right to present a defense because he failed to inform the trial

court that he was offering the testimony as lay testimony and he failed to make an

offer of proof on this point. Accordingly, his argument is not preserved for our

19
review. See Tex. R. App. P. 33.1(a) (stating that to preserve error, the record must

show a specific and timely complaint was made to the trial judge and that the trial

judge ruled on the complaint). The Appellant did not make an offer of proof as to

exactly what this proposed expert’s testimony would have been. “To preserve error

regarding the exclusion of evidence, the offering party must make an ‘offer of proof’

conveying the substance of the proffered evidence. Because appellant failed to do

so, he failed to preserve error.” Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim.

App. 2007); Tex. R. Evid. 103. Nor is the answer apparent from the context of this

case showing only that the proposed expert was a nurse, wearing scrubs, had worked

in an emergency room and briefly seen only a handful of outcry victims. See

Villarreal v. State, Nos. 09-21-00116-CR, 09-21-00117-CR, 2022 Tex. App. LEXIS

2362, at *6 (Tex. App.—Beaumont Apr. 13, 2022, pet. ref’d) (mem. op., not

designated for publication) (appellate court cannot speculate how witness would

have answered). We overrule issue two.

Exclusion of Alleged Relevant Testimony

In issue three, Bryan complains the trial court abused its discretion by

sustaining the State’s objection to his inquiry about whether he had abused other

children. Bryan argues that the testimony was relevant because most child abusers

abuse multiple children and the fact that Bryan was never accused of abusing other

children is relevant evidence of his innocence.

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We review a trial court’s decision on the admission or exclusion of evidence

for an abuse of discretion and must uphold the trial court’s ruling if it was “within

the zone of reasonable disagreement.” Wells v. State, 611 S.W.3d 396, 427 (Tex.

Crim. App. 2020); Montgomery, 810 S.W.2d at 391. A trial court abuses its

discretion if it acts without reference to any guiding rules and principles or acts

arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.

2019). We will uphold the trial court’s decision if it is 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); Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). Evidence

having any tendency to make the existence of any fact of consequence to the

determination of the action more probable or less probable than it would be without

the evidence is relevant. See Tex. R. Evid. 401.

The record shows when defense counsel sought to elicit testimony concerning

whether a defense witness’s daughters had ever complained about Bryan touching

them, the State objected based on hearsay and relevance. Defense counsel argued

that testimony about whether Bryan had touched other children who were the same

age as Betsy was relevant. The State reiterated its hearsay objection and stated that

any possible response was not relevant to Betsy’s allegations because the “absence

of evidence is not evidence of absence.” Defense counsel argued that the fact that

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the witness’s daughters were not touched was “very relevant to this case.” The trial

court sustained the State’s objection.

Based on this record and considering Bryan’s argument on appeal that

evidence showing Bryan was never accused of abusing other children is relevant

evidence of his innocence, we cannot conclude the evidence had any tendency to

make a fact more or less probable than it would be without the evidence or that the

fact was of consequence in determining the action. See Tex. R. Evid. 401. We

conclude the trial court’s decision to exclude the evidence was within the zone of

reasonable disagreement. See Wells, 611 S.W.3d at 427 (stating we must uphold the

trial court’s ruling if it was “within the zone of reasonable disagreement”). We

overrule issue three. Having overruled all of Bryan’s issues, we affirm the trial

court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on April 11, 2024
Opinion Delivered October 30, 2024
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

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