Wesley Henderson v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00727-CR

Wesley HENDERSON,
Appellant

v.

The STATE of Texas,
Appellee

From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CR4006
Honorable Kevin M. O’Connell, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice
Lori Massey Brissette, Justice
Adrian A. Spears II, Justice

Delivered and Filed: December 3, 2025

AFFIRMED

Appellant Wesley Henderson appeals his conviction for continuous sexual abuse of a child.

He argues the trial court abused its discretion when it admitted certain evidence under Article

38.37 of the Code of Criminal Procedure, and the State violated his right to due process when it
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failed to correct false or misleading testimony. 1 Based upon our review of the law and the record,

we affirm the trial court’s judgment.

BACKGROUND

A jury found Henderson guilty of continuous sexual abuse of his granddaughter, C.G. 2 See

TEX. PEN. CODE § 21.02. The trial court sentenced him to ninety-nine years with the Texas

Department of Criminal Justice Institutional Division and imposed a $10,000 fine. Henderson

moved for a new trial, which was denied by operation of law. See TEX. R. APP. P. 21.8. This appeal

followed. 3

ARTICLE 38.37

Before trial, the State filed notice to introduce evidence that Henderson committed two or

more sexual acts against a different granddaughter, A.F., between December 23, 2014 and May

15, 2020, while she was under fourteen years of age. Henderson moved to exclude the evidence.

The trial court held a hearing and denied Henderson’s motion, permitting the State to introduce

the evidence.

Henderson argues the trial court abused its discretion in admitting evidence of his alleged

prior sexual abuse of A.F. under Article 38.37. He specifically contends the jury could not have

found he committed the offense beyond a reasonable doubt, and the evidence was substantially

more prejudicial than probative. We disagree.

1
The Honorable Kevin M. O’Connell presided over the Article 38.37 hearing and the trial and denied on the record
Henderson’s motion to exclude the article 38.37 evidence. But the order admitting the evidence was signed by the
Honorable Catherine Torres-Stahl.
2
To protect the identity of minor children in this appeal, we refer to the children by their initials. See TEX. R. APP.
P. 9.10(a)(3), (b).
3
Henderson was granted leave to file an out of time appeal by the Court of Criminal Appeals. See Ex parte Henderson,
No. WR-95,946-01, 2024 WL 4553989, at *1 (Tex. Crim. App. Oct. 23, 2024).

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A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence pursuant to article 38.37 for an abuse

of discretion. See, e.g., Singleton v. State, 631 S.W.3d 213, 217 (Tex. App.—Houston [14th Dist.]

2020, pet. ref’d); Ryder v. State, 514 S.W.3d 391, 399 (Tex. App.—Amarillo 2017, pet. ref’d).

Section 2 of Article 38.37 is applicable in cases involving an underlying offense of

continuous sexual abuse of a child, making it applicable here. TEX. CODE CRIM. PRO. 38.37, § 2(a).

Section 2 further provides that evidence a defendant has committed continuous sexual abuse of a

separate child may be admitted “for any bearing the evidence has on relevant matters, including

the character of the defendant and acts performed in conformity” therewith. Id. § 2(b). 4 A trial

court must hold a hearing and determine if “the evidence likely to be admitted at trial” will

adequately support a finding by the jury the defendant committed the extraneous offense beyond

a reasonable doubt. Id. § 2-a. During a Section 2-a hearing, the trial court is the factfinder and

entitled to credit, weigh, and draw reasonable inferences from witness testimony. See, e.g., Deggs

v. State, 646 S.W.3d 916, 924 (Tex. App.—Waco 2022, pet. ref’d).

Here, the notice provided Henderson intentionally and knowingly engaged in sexual

contact with A.F. with intent to gratify his sexual desire by touching the child’s genitals, having

the child touch his genitals, as well as by penetrating the sexual organ of the child with his sexual

organ. Texas Penal Code § 21.02 provides a person over seventeen years old commits the offense

of continuous sexual abuse of a child under fourteen years old if, during a period of thirty or more

days, “the person commits two or more acts of sexual abuse.” TEX. PEN. CODE § 21.02(b). “Sexual

abuse” is “any act” violating sections 21.11(a)(1) (indecency with a child), 22.011 (sexual assault

4
Section 38.37(b) is an exception to the prohibition, in Rules 404 and 405 of the Texas Rules of Evidence, of the use
of extraneous offense evidence to show a defendant’s character. See TEX. CODE CRIM. PRO. 38.37, § 2(b).

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by penetration of a child), or 43.25 (sexual performance by a child). 5 TEX. PENAL CODE § 21.02(c).

The State’s notice matches the foregoing provisions of the Penal Code, and the State therefore

sought to introduce evidence Henderson committed continuous sexual abuse of A.F. through

indecency, penetration, and sexual performance.

B. Analysis

1. Whether Evidence Demonstrated Henderson Committed Sexual Abuse
Beyond a Reasonable Doubt

Henderson argues the jury could not have found he sexually abused A.F. beyond a

reasonable doubt because A.F.’s testimony included inconsistencies, proving she was not credible.

We disagree.

A.F. testified Henderson, on multiple occasions, touched and rubbed her vagina with his

hands beginning around six years old through her twelfth birthday. 6 She testified the abuse

occurred in her grandmother’s room, the grandkids’ room, in Henderson’s office, while she was

asleep, and at the family’s vacation home in Maine when she was about nine or ten years old. 7 She

testified the abuse consisted of Henderson touching her vagina with his hands. He also told her he

was “giving [her] the love that my mother never gave me.”

Defense counsel introduced a letter written by A.F. detailing the abuse, confirming many

of the details of A.F.’s testimony. In the letter, A.F. stated she was about five or six years old when

5
A person commits the offense of indecency with a child if the person has sexual contact with the child under
seventeen years old. TEX. PEN. CODE § 21.11. Sexual contact includes any touching of any part of the body of a child
intended “to arouse or gratify . . . sexual desire.” Id. § 21.11(c). Sexual assault of a child by penetration includes the
penetration of the anus or sexual organ of a child. Id. § 22.011(a)(2). Sexual performance by a child means “any
performance . . . that includes sexual conduct by a child,” and sexual conduct includes “sexual contact.” Id.
§ 43.25(a)(1)–(2).
6
On one occasion, she stopped him. She testified on her twelfth birthday he kept “trying to touch me and like grab
me,” but she “didn’t really let anything happen” because she kept moving away.
7
She testified they were in Maine alone for a week. A.F. also testified when she slept in the bed with her step-
grandfather and her grandmother, which took place until the age of ten, nothing ever happened.

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Henderson’s abuse of her started and twelve when it ended. Henderson abused her whenever they

were alone including in the car, motor home, and bedroom, as well as the vacation house in Maine.

She stated he would “caress” her body under her clothes. He would not penetrate her but did rub

her “down there.” Her testimony reiterated the details of the letter.

A.F. testified she waited to say something because she felt guilty and did not want to cause

any trouble for the family. She eventually told her cousin C.G., the victim in the case, as well as

elementary school counselors in December 2020. 8 She later told police detectives and ChildSafe

representatives she had been touched inappropriately. She told police Henderson touched the front

part of her body, there was never any penetration, and the last time it occurred was during spring

break of 2020. In June 2020, when first asked by her mom and grandma, she denied Henderson

abused her. She further testified she did not remember all the conversations she had with people

and that she had forgotten some details.

On cross-examination, A.F. testified the last time Henderson tried to touch her was her

birthday in May 2020 and that when she told officers the last incident was spring break of 2020,

that was not true. She clarified that during spring break he grabbed her thighs in the car. When

asked whether she remembered that during her ChildSafe interviews she stated that during the

spring break incident he raped her in a restroom and he touched her on her vagina on her twelfth

birthday, she testified she did not remember. She also testified she did not remember saying that

during spring break he threw her on the bed, spread her legs, or that he hurt her when he penetrated

her with his penis. A.F. also clarified Henderson tried to touch her on her birthday, but did not do

so. 9

8
She testified C.G. never told her it was happening to her.
9
She further testified she did not tell anyone before her testimony that day that the abuse in Maine happened in two
different bedrooms.

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Here, because the trial court admitted the evidence, we presume the trial court credited

A.F.’s testimony, gave it weight, and drew any reasonable inferences from it. See Deggs, 646

S.W.3d at 924 (“In the Article 38.37, Section 2-a hearing, the trial court is the fact finder and as

such, is the sole arbiter of the credibility of the witness and the weight given to his or her

testimony.” (citing Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978))). The trial

court was entitled to credit A.F.’s testimony as well as the letter she wrote and give great weight

to such evidence, evidence which establishes Henderson committed the separate crime of

continuous sexual abuse of A.F. when he touched her vagina more than once over a period of years

to gratify his sexual desires. TEX. PEN. CODE §§ 21.02(b); 21.11(c). The trial court therefore did

not abuse its discretion when it determined the evidence would adequately support a finding by

the jury Henderson committed continuous sexual abuse of A.F. beyond a reasonable doubt. TEX.

CODE CRIM. PRO. 38.37, § 2-a.

2. Rule 403 Balancing

Henderson further argues the trial court abused its discretion when it admitted the Article

38.37 evidence because A.F.’s testimony was substantially more prejudicial than probative, went

to conduct completely unrelated to what Henderson was on trial for, the State had no need for it,

and it caused undue delay. We disagree.

a. Law

Even if a court determines the article 38.37 evidence is admissible for any bearing it has

on relevant matters, including the character of the defendant and acts performed in conformity

therewith, Rule 403 may still preclude its admission. See TEX. CODE CRIM. PRO. 38.37, § 2;

Perkins v. State, 664 S.W.3d 209, 216 (Tex. Crim. App. 2022) (providing Rule 403 applies to

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extraneous offense evidence); Distefano v. State, 532 S.W.3d 25, 37 (Tex. App.—Houston [14th

Dist.] 2016, pet. ref’d) (same, applying to article 38.37 evidence).

In addressing a Rule 403 objection, the trial court must balance: (1) how compelling the

evidence is in terms of making a consequential fact more or less probable; (2) the evidence’s

potential to impress the jury in some irrational, indelible way; (3) the time to develop the evidence,

distracting the jury from the indicted offense; and (4) the State’s need for the evidence. See, e.g.,

Perkins, 664 S.W.3d at 216. 10 These factors may significantly overlap in application. Gigliobianco

v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006). We are also mindful that Rule 403 ought

to “be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the

credibility of either the defendant or complainant in . . . ‘he said, she said’ cases.” Hammer v. State,

296 S.W.3d 555, 562 (Tex. Crim. App. 2009); Deggs, 646 S.W.3d at 925 (same, quoting Hammer

and providing that, because article 38.37 evidence is probative on issues of intent and defendant’s

character or propensity to commit sexual assaults on children, its probative value is generally not

substantially outweighed by the danger of unfair prejudice, confusing issues, misleading jury,

undue delay, or needlessly presenting cumulative evidence); Dickson v. State, 246 S.W.3d 733,

739 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (“Rule 403 favors admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than

prejudicial.”).

10
We may not simply conclude the trial court conducted the requiring balancing test; we must examine the trial court’s
ruling against the four factors. See Perkins, 664 S.W.3d at 216.

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b. Four Factors Analysis

i. Probative Value

Henderson argues the evidence was not probative because (1) A.F.’s inconsistent

testimony called her credibility into question, and (2) it relates to a completely separate allegation.

But, as we have already explained, the trial court was entitled to credit A.F.’s testimony, and we

therefore reject Henderson’s first contention. See TEX. R. APP. P. 47.1. As to Henderson’s second

point: that evidence of continuous sexual abuse of A.F. is admissible even though it is an

extraneous offense is made plain by the language of Article 38.37. TEX. CODE CRIM. PRO. 38.37,

§ 2(b) (providing evidence defendant committed separate offense of continuous sexual abuse of

child admissible for its bearing on character of defendant and acts performed in conformity with

character). Indeed, Section 2 plainly states we do not default to the traditional rules of evidence

like Rules 404 and 405. TEX. CODE CRIM. PRO. 38.37, § 2(b) (providing rule is applied

notwithstanding Rules 404 and 405 of the Texas Rules of Evidence). In other words, if evidence

of an extraneous offense is admissible under Article 38.37, it is because such evidence is probative

of relevant matters, including the defendant’s character and acts performed in conformity with that

character. See TEX. CODE CRIM. PRO. 38.37, § 2(b). And as relevant evidence of character, it carries

a presumption it is more probative than prejudicial on those matters. See Deggs, 646 S.W.3d at

925; Dickson, 246 S.W.3d at 739. This is what the trial court found, explaining during its Article

38.37 evidentiary ruling that its probative value outweighed its prejudicial effect, specifically

singling out that it dispelled Henderson’s other contentions as a motive for C.G.’s testimony

including that “these allegations were . . . made up due to [the grandparents’] divorce[] [and] due

to . . .a [family] money grab.”

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C.G.’s and A.F.’s trial testimony support the probative value of the evidence. C.G. testified

Henderson was her step-grandfather, and he abused her multiple times beginning when she was

eight years old through age twelve or thirteen. 11 She recalled the abuse consisting of inappropriate

touching all over her body and massaging it, including her vagina. Henderson would tell her he

was giving her the love she was not receiving elsewhere. Henderson used his penis to rub her and

made her touch it once. Henderson’s abuse occurred at his house in the bedroom and in the RV.

Henderson abused her while she was asleep when they were in Maine. C.G. also testified she was

sixteen when she told a family member for the first time—a few days after Henderson served his

divorce papers on her step-grandmother.

During cross-examination, C.G. agreed she had previously stated to a forensic interviewer

at ChildSafe that the abuse happened over her clothes. She also testified she previously told the

forensic interviewer she did not recall when the abuse stopped. C.G. told the defense’s investigator,

and not the forensic interviewer, that Henderson penetrated her with his fingers in Maine, with her

understanding that that meant rubbing the outside of her vagina with his fingers. She was also

uncertain as to whether an incident where her step-grandmother caught Henderson abusing her

took place in front of her siblings or not. She conceded when her grandmother first asked her about

it, she told her nothing happened. C.G. also did not recall some of her statements to the forensic

interviewer, and acknowledged some of the statements she made to a defense investigator were

different than those made to the forensic interviewer. She also testified she omitted some things

when speaking with the forensic interviewer because she was scared. She did not remember writing

a letter to her pastor, nor the contents of any such letter. C.G. conceded Henderson owned an

11
C.G. testified she told a defense investigator Henderson abused her over 100 times and reiterated at trial that that
figure was possible.

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engineering company, but she denied she was filing a separate lawsuit to secure some of his

wealth. 12

The testimony of C.G. and A.F. establish Henderson was grandfather to both children,

touched their vagina on numerous occasions, began touching both between the ages of six and

eight years old, the abuse ended when they were both approximately twelve years old, and

Henderson told both of them he was providing them the love they were not getting elsewhere. Both

also denied, on cross-examination, that their testimony had anything to do with potential civil

litigation against Henderson. The testimony was therefore highly probative of Henderson’s

character and acts performed in conformity with his character. See TEX. CODE CRIM. PRO. 38.37,

§ 2(b); Deggs, 646 S.W.3d at 925; Dickson, 246 S.W.3d at 739. 13

Thus, this factor weighs in favor of admission of the Article 38.37 evidence.

ii. Potential to Impress Jury in Irrational, but Nevertheless
Indelible Way

Henderson argues A.F. was the second to last witness to testify for the State and testified

on a different day creating potential for the jury to focus on her testimony over C.G.’s testimony.

However, as Henderson admits, the trial court provided a limiting instruction regarding the

evidence and, as Henderson correctly notes courts “generally presume the jury follow[ed] the trial

court’s instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.

App. 2005). Still, Henderson contends, without citation to any authority, that a general limiting

instruction is not enough in cases involving extraneous offense evidence of a separate sex offense

12
Once A.F. was permitted to testify before the jury, her testimony was consistent with her Article 38.37 hearing
testimony. She added, on cross-examination, that her family had not discussed filing a lawsuit against Henderson.
13
Moreover, as the State argued during the hearing, the common facts of abuse including his statements about love,
his rubbing of their vagina, and his using electronic devices to distract them, also go to establishing Henderson’s
identity, a separate permissible evidentiary purpose under Rule 404(b). See TEX. R. EVID. 404(b).

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against a separate child victim. See TEX. R. APP. P. 38.1(i). But the trial court’s limiting instruction

was, by no means, general. It tracked the language of the statute, providing:

You are instructed that if there was—if there is any testimony before you in this
case regarding evidence of a separate sexual offense committed by the Defendant
against a child who is not the complainant in this case, and if you find and believe
beyond a reasonable doubt that the Defendant committed such other offense, if any
was committed, you may consider the same in determining what bearing such
evidence has, if it does, on relevant matters in this case, including the character of
the Defendant and acts performed in conformity with the character of the
Defendant.

Moreover, Henderson does not identify anything to rebut the presumption the jury followed the

trial court’s instruction. See Thrift, 176 S.W.3d at 224.

C.G. and A.F. also testified on different days and to different facts. C.G. specifically

testified as to more graphic incidents involving Henderson’s penis and Henderson making her

touch him. A.F disclaimed any such actions by Henderson. Moreover, after C.G. and A.F. testified,

Henderson testified on his own behalf, repeatedly and strenuously denying the allegations against

him and suggested C.G.’s outcry was a result of his filing for divorce.

Based on the foregoing, the trial court could have reasonably determined the evidence was

not so overwhelming as to distract the jury from the charged conduct. Thus, this factor weighs in

favor of admission of the Article 38.37 evidence.

iii. Time to Develop Evidence

Henderson argues A.F.’s testimony was the same length as C.G.’s testimony. But C.G.’s

testimony before the jury spanned approximately eighty-eight pages of reporter’s record transcript,

while A.F.’s testimony before the jury spanned just forty-two pages of 462 pages of transcript—

or less than ten percent. 14 See Fisk v. State, 510 S.W.3d 165, 175 (Tex. App.—San Antonio 2016,

14
Even including her duplicative testimony in the Article 38.37 hearing, A.F.’s testimony was still less than C.G.’s
testimony.

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no pet.) (rejecting contention testimony took inordinate amount of time where testimony consumed

only eighteen percent of total testimony). Moreover, A.F. was one of thirteen witnesses. And the

State’s discussion of A.F. during its closing consisted of two paragraphs after an extensive

discussion of her testimony by defense during closing.

This factor weighs in favor of admission of the Article 38.37 evidence.

iv. State’s Need for Evidence

Henderson argues the State did not need A.F.’s testimony because C.G.—the alleged

victim in the crime for which Henderson was indicted—testified at the trial as an adult at the age

of 19. It is unclear why the victim’s age at the time of trial matters, and Henderson does not identify

any support for such a contention. See TEX. R. APP. P. 38.1(i). But Henderson is correct the State

also had C.G. testify, an outcry witness testify, as well as multiple family members who testified

C.G. told them about Henderson’s actions. The State clearly did not need the evidence. Indeed,

A.F.’s testimony arguably harmed the State’s case as defense counsel during closing repeatedly

referenced A.F.’s testimony as not credible, pointing to purported discrepancies between the

testimony at trial and earlier statements made to interviewers, and an alleged effort to coordinate

the testimony of C.G. and A.F. Moreover, other witnesses testified as to Henderson’s abuse of

A.F. including the children’s grandmother.

Thus, this factor weighs against admission of the Article 38.37 evidence. But, taken

together, the Rule 403 balancing factors show the trial court did not abuse its discretion by

admitting the testimony of A.F.

STATE’S USE OF FALSE OR MISLEADING TESTIMONY

Henderson argues the State violated his due process rights because it allowed A.F. to

provide materially false or misleading testimony at trial. We disagree.

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A. Applicable Law

The State violates a defendant’s due process rights under the Fifth and Fourteenth

Amendments to the United States Constitution if it uses materially false testimony to procure a

conviction, regardless of whether the falsity is known to the State. See, e.g., Ukwuachu v. State,

613 S.W.3d 149, 156 (Tex. Crim. App. 2020); Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex.

Crim. App. 2015). See generally Glossip v. Oklahoma, 604 U.S. 226, 246 (2025) (comprehensively

addressing due process claim based on false or misleading testimony). In examining such a claim,

we first determine whether the testimony was false and, if so, whether it was material. Ukwuachu,

613 S.W.3d at 156. Absent one of these requirements, the claim fails. See, e.g., Ukwuachu, 613

S.W.3d at 155; De La Cruz, 466 S.W.3d at 866.

To establish falsity, we decide whether the testimony, taken as a whole, gives a misleading

or false impression to the jury. Ukwuachu, 613 S.W.3d at 156. The evidence does not need to

demonstrate perjury, and the witness’s good or bad faith is irrelevant. Ukwuachu, 613 S.W.3d at

156. The record however, “must contain some credible evidence that clearly undermines the

evidence adduced at trial, thereby demonstrating that the challenged evidence is, in fact, false.”

Ukwuachu, 613 S.W.3d at 156. See, e.g., Ex parte Weinstein, 421 S.W.3d 656, 666 (Tex. Crim.

App. 2014) (finding mental health records demonstrated witness gave false testimony at trial about

whether he had hallucinations); Ex parte Chavez, 371 S.W.3d 200, 208 (Tex. Crim. App. 2012)

(concluding another person’s confession to shooting victim during armed robbery demonstrated

witnesses provided false testimony at defendant’s trial by identifying defendant as shooter); Ex

parte Ghahremani, 332 S.W.3d 470, 478–79 (Tex. Crim. App. 2011) (determining police reports

indicating sexually-assaulted minor had been assaulted by others and had abused drugs

demonstrated parents’ testimony that minor’s need for mental health treatment solely result of

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defendant’s abuse of minor to be false). To meet the falsity prong and undermine the truthfulness

of the evidence adduced at trial, “definitive or highly persuasive evidence” is required. Ukwuachu,

613 S.W.3d at 157. Inconsistencies in testimony do not demonstrate falsity but instead go to the

weight and credibility of the evidence to be afforded by the factfinder. See De La Cruz, 466 S.W.3d

at 867–68, 870–71 (holding inconsistencies in testimony with respect to shooting did not support

finding witness’s testimony false because, among other things, jury entitled to reconcile conflicts

in testimony).

False or misleading testimony is material if there is a reasonable likelihood that it could

have affected the jury’s judgment. See, e.g., Ex parte Reed, 670 S.W.3d 689, 767 (Tex. Crim. App.

2023). This standard is the same as that for constitutional harmless error which provides we must

reverse a conviction unless we determine beyond a reasonable doubt that the error did not

contribute to the conviction. See TEX. R. APP. P. 44.2(a); see, e.g., Ex parte Ghahremani, 332

S.W.3d 470, 478 (Tex. Crim. App. 2011). 15 In essence, we ask “whether a correction could have

made a material difference.” Glossip, 604 U.S. at 253.

False testimony may be material if the witness’s credibility is at the heart of the State’s

conviction. See Glossip, 604 U.S. at 248 (concluding false testimony provided by witness was

material where testimony was only direct evidence of guilt of capital murder and jury’s assessment

of witness’s credibility was necessarily determinative; explaining false testimony also supported

prosecution theory, featured prominently in opening and closing statements, that witness was

15
The Supreme Court describes the materiality standard as applicable if there is “any reasonable likelihood.” Glossip,
604 U.S. at 246 (emphasis added) (quoting the leading false testimony case of Napue v. People of State of Ill., 360
U.S. 264, 271 (1959)). The Texas Court of Criminal Appeals has identified the standard as “a reasonable likelihood”
in various cases. See, e.g., Weinstein, 421 S.W.3d at 665. We observe that Judge Finley of the Texas Court of Criminal
Appeals explains “a reasonable likelihood” and “any reasonable likelihood” differ, and that the Court of Criminal
Appeals ought to reconsider its formulation and consider whether it should adopt the Napue-Glossip formulation. See,
e.g., Ex parte Warner, No. WR-96,439-01, 2025 WL 2406434, at *2 (Tex. Crim. App. Aug. 20, 2025) (Finley, J.,
concurring). Regardless of the formulation, we do not believe Henderson’s claim that A.F. provided false testimony
is material.

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harmless and testifying truthfully; and additional conduct by prosecution at trial undermined

confidence in verdict). But inconsequential testimony does not meet the materiality standard. See

De La Cruz, 466 S.W.3d at 869–71 (holding inconsistencies in number of times victim shot not

consequential). In other words, if the jury could have discredited the testimony and still found a

defendant guilty, the evidence is not material. See De La Cruz, 466 S.W.3d at 871 (explaining jury

was aware of inconsistencies in testimony between witness and expert and nevertheless chose to

convict defendant).

B. Analysis

Henderson argues the State intentionally elicited false or misleading testimony from A.F.

that contradicted her previous pre-trial statements and allowed her to state she did not remember

her previous statements during cross-examination. Henderson identifies the following trial

testimony from A.F. as specific examples of her contradicting earlier forensic interviews:

1. A.F. testified that during her twelfth birthday, Henderson tried to touch her, but nothing
happened.
2. She testified that Henderson never made her touch his body.
3. She denied on cross-examination that Henderson, on one occasion, put her on the bed, took
her clothes off, penetrated her, and then raped her. 16

Henderson also argues his due process rights were violated when A.F. testified she could not

remember what she had stated during earlier forensic interviews. Henderson contended, at oral

argument, that these statements left a misleading impression that A.F. did not make the more

16
Henderson also contends his due process rights were violated when the State did not correct the same false or
misleading testimony during the Article 38.37 hearing. But Henderson cites no caselaw, and we are not aware of any,
to support the proposition that an appellant can raise a due process claim based on purportedly false testimony for
testimony made at an Article 38.37 hearing. See TEX. R. APP. P. 38.1(i). Indeed, even if such testimony were false,
any such testimony would have been outside the presence of the jury and could not have affected the jury’s judgment.
See Reed, 670 S.W.3d at 767; see also TEX. R. APP. P. 44.2(a).

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damaging statements during her forensic interviews or, at best, that she did not remember, and the

jury was therefore deprived of making a credibility determination based on A.F. statements.

As to her twelfth birthday, A.F. testified that nothing happened both on direct and cross-

examination because she moved away from Henderson. Later during cross-examination, she

testified she did not remember what she said during her second forensic interview and in her very

next answer she testified she did remember that during her second forensic interview she told the

interviewer Henderson touched her on her vagina. As to the rape and the touching of Henderson’s

genitals, A.F. testified she did not remember saying during her second forensic interview that

Henderson raped her and made her touch his genitals. She then testified those things did not

happen. The State also elicited testimony from A.F. that she did not tell ChildSafe what happened

during her initial interview with them, but she did tell them during her second interview. She also

testified that at various times she denied something had happened with Henderson, explaining she

did not know why she denied it, but admitted it may have been because she felt guilty and was still

processing everything.

Here, there is nothing in the record to demonstrate A.F.’s testimony at trial, as opposed to

her second forensic interview, was false or misleading. It is impossible to know. And the

discrepancies between her trial testimony and her second forensic interview actually inure to his

favor —that Henderson did not touch her on her twelfth birthday, did not make her touch his body,

did not rape her, and did not penetrate her—were false or gave a false or misleading impression to

the jury. See Ukwuachu, 613 S.W.3d at 157. Separately, Henderson does not identify any authority

to support the contention that a person’s statement that they do not remember could constitute

definitive or highly persuasive evidence of false or misleading testimony. Nor are we aware of

any. See Losada v. State, 721 S.W.2d 305, 312 (Tex. Crim. App. 1986) (finding nothing in record

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showing witness’s trial testimony was false where witness had given earlier contradictory

statement to authorities but at trial admitted when he turned himself in he was scared and wanted

to tell story in best light in order to protect himself).

Moreover, even if such testimony were false or misleading, there is no reasonable

likelihood A.F.’s testimony made a material difference by contributing to Henderson’s conviction.

TEX. R. APP. P. 44.2(a); Glossip, 604 U.S. at 253; Ghahremani, 332 S.W.3d at 478; Reed, 670

S.W.3d at 767. Here, unlike in Glossip, A.F.’s testimony is not at the heart of Henderson’s

conviction: that would be C.G.’s extensive, damaging, and detailed testimony. Glossip, 604 U.S.

at 248. Indeed, even in the absence of A.F.’s testimony, the jury could have convicted Henderson

of continuous sexual abuse of C.G. based on the strength of the evidence against him for his actions

against C.G. alone, including multiple witnesses testifying as to what happened to C.G. See De La

Cruz, 466 S.W.3d at 871; cf. Glossip, 604 U.S. at 248. 17

In fact, A.F’s testimony arguably harmed the State because of the inconsistencies drawn

out by defense counsel during cross-examination and reiterated during closing and the fact that it

cast doubt on A.F.’s more serious sexual abuse allegations against Henderson. See Glossip, 604

U.S. at 248. But the jury appeared to ultimately determine any such inconsistencies in A.F’s

testimony were not especially consequential. See Reed, 670 S.W.3d at 768 (rejecting purportedly

false testimony was material where trial attorneys presented jury with other testimony undermining

purportedly false testimony and jury convicted defendant anyway); De La Cruz, 466 S.W.3d at

869–71 (rejecting false evidence claim because conflicting evidence was largely before jury that

already reconciled any inconsistencies against defendant); Ex parte Weinstein, 421 S.W.3d 656,

17
Moreover, C.G. and A.F.’s grandmother also testified as to Henderson’s abuse of A.F. See De La Cruz, 466 S.W.3d
at 871.

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667 (Tex. Crim. App. 2014) (rejecting contention false testimony material where defense had

ample ammunition at trial to argue witness was thoroughly discredited and dishonest who should

not be believed, and did make such argument).

During oral argument, Henderson referred to our decision in Cantu v. State as support,

specifically that “[a] lie is a lie, no matter what its subject, and, if it is in any way relevant to the

case, the district attorney has the responsibility and duty to correct what he knows to be false and

elicit the truth.” Cantu v. State, 678 S.W.3d 331, 354 (Tex. App.—San Antonio 2023, no pet.)

(cleaned up). Cantu quotes the Court of Criminal Appeals decision in Valdez v. State for that

proposition. 18 No. AP-77,042, 2018 WL 3046403, at *3 (Tex. Crim. App. June 20, 2018). 19 In

Valdez, the appellant also argued trial testimony gave the jury the false impression that the witness

was credible. But, like here, the court rejected appellant’s argument, explaining contradictory

witness testimony during trial merely established a credibility question for the jury to decide. Id.

at *9. The court also rejected the any such false impression was material because defense counsel

drew out the inconsistencies during cross-examination and because the evidence of guilt was

overwhelming. Id. Cantu is also distinguishable on its own facts for the same reasons. In Cantu,

the appellant argued the child victim, A.C., and two others provided false testimony at trial about

a cut on her anus. Cantu, 678 S.W.3d at 354. Cantu contended it was a lie because it was actually

a perineal defect and not the result of abuse. Id. After the purportedly false testimony, a sexual

assault nurse explained the cut was not due to abuse. Id. at 355. We rejected appellant’s contention,

explaining that his contention, at best, amounted to a discrepancy in testimony which appellant did

18
The quote originates from the U.S. Supreme Court’s seminal decision on false testimony-due process violations:
Napue v. Illinois, 360 U.S. 264, 269–71 (1959).
19
Valdez is an unpublished opinion, has no precedential value, and “must not be cited as authority” by this court. See
TEX. R. APP. P. 77.3. We do not cite it here as authority but to provide context to why Cantu does not support
Henderson’s contention.

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not show to be false or material. Id. 20 Accordingly, Henderson has failed to sufficiently

demonstrate that the State violated his due process rights, and we overrule his final point of error.

CONCLUSION

Accordingly, the trial court’s judgment is affirmed.

Lori Massey Brissette, Justice
DO NOT PUBLISH

20
Moreover, we see no reason to impose a duty upon the State to do what Henderson himself strategically decided
not to do, specifically to effectively impeach A.F. with the transcript of her second interview.

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