George Glynn Banta v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00286-CR
__________________

GEORGE GLYNN BANTA, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 20-11-14200-CR
__________________________________________________________________

MEMORANDUM OPINION

In February 2021 a grand jury indicted appellant, George Glynn

Banta, and alleged that in a period of 30 or more days between November

1, 2014, and November 1, 2020, he committed two or more acts of sexual

abuse against children who were identified in the indictment by their

1
initials. 1 We will call the two children who are identified as the alleged

victims of Banta’s offenses as Darla and Willow, and we note they are

Banta’s daughters. 2 After the trial court signed the judgment, Banta

appealed and filed a brief in which he complained that he did not receive

a fair trial. In one issue, Banta argues he is entitled to another trial

because the trial court excluded evidence that Willow “had made a claim

of sexual misconduct by another man which she later recanted as having

been a false report.” For the reasons discussed below, we will affirm.

Background

Since Banta doesn’t argue the evidence is insufficient to support his

conviction, we limit our discussion to the information needed to explain

the Court’s resolution of the issue raised in Banta’s appeal. The case

against Banta went to trial in August 2022. The following discussion of

1Tex. Penal Code Ann. § 21.02(b) (Continuous Sexual Abuse of
Young Child).
2We have used pseudonyms to protect the privacy of several

individuals who are mentioned in the opinion. See Tex. Const. art. I, § 30
(granting crime victims “the right to be treated with fairness and with
respect to the victims’ dignity and privacy throughout the criminal justice
process”). We identify that we have used a pseudonym in lieu of the actual
name with italics when the person is first mentioned in the opinion.
2
the evidence views the evidence admitted before the jury in the light that

favors the verdict. 3

It was undisputed that Banta and his wife, Joanna, had seven

children during their marriage, which began in 1999 and ended in divorce

in 2014. After they divorced, the children continued to reside with their

father except for the occasions they had visitation with their mother at

her home.

In November 2020, Willow was fifteen years old when her

grandmother took her to see a sexual assault nurse named Angie Chacko.

At trial, Nurse Chacko testified that she interviewed Willow while

conducting a sexual assault exam. According to Nurse Chacko, during

the exam Willow told her that Banta touched her on her “boobs, butt,

[and] private.” Nurse Chacko added that when she asked Willow to point

to her “private” Willow pointed to her sexual organ. Nurse Chacko also

testified that Willow told her that her father began sexually abusing her

when she was five or six years old.

3Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State,

520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
3
In August 2022 when the case was tried, Willow was seventeen

years old. At trial, Willow testified that when she was fourteen, Banta

touched her “private” with a massager. Willow described her “private” as

the part she uses to “pee.” According to Willow, the incident with the

massager occurred in the kitchen of the home where the family lived in

2014. Willow added that the incident occurred while her sister Darla was

in the room. Willow told the jury that when the incident involving the

massager occurred, Banta smiled “[l]ike he enjoyed it.”

During the trial, the prosecutor asked Willow whether she had

made “an allegation against one of [her] mom’s old boyfriends after her

parents were divorced?”4 Willow acknowledged that she had, told the

prosecutor that the incident involving her mother’s old boyfriend (whom

Willow didn’t name) had occurred, but later told another it did not

4Before the prosecutor called Willow to testify, the parties’
attorneys and the trial court discussed the possibility that Willow might
testify about accusing her mother’s boyfriend of sexual assault and that
in May 2022, Willow told a forensic interviewer that the assault didn’t
occur. In discussing what Willow’s possible testimony might be with the
court outside the presence of the jury, the prosecutor told the trial court
that “[t]his morning, Willow informed me that, that recant was false.”
According to the prosecutor, testimony that Willow “made the allegation
and recanted” . . . “would be admissible[,]” but “the surrounding facts
would not.” The trial court advised the parties to approach the bench
before going into “any evidence of previous sexual conduct[.]”
4
because she “didn’t want to do the same thing that we are doing right

now.” 5 When the State finished questioning Willow, Banta’s attorney

approached the bench and asked that the court allow him to question

Willow about why she had accused her mother’s former boyfriend, a man

we will refer to in the opinion as Leo Smith, of sexual assault. 6 Banta’s

attorney explained that two reasons justified his asking Willow about

why she had accused Smith of sexual assault. First, he claimed the

evidence he intended to develop would reveal why Willow had accused

Smith of sexual assault, making it relevant to proving why Willow had a

motive or bias to testify against Banta. That made the evidence

admissible, the attorney argued, under Texas Rule of Evidence 613

because the evidence was relevant to Willow’s bias. 7 Second, Banta’s

attorney claimed the evidence he wanted to develop would establish that

Willow had a “habit of making false allegations, getting people arrested.”8

5In a hearing outside the presence of the jury, the prosecutor told

the trial court that Willow told a forensic investigator the assault that
she had claimed Smith committed had not actually occurred.
6A pseudonym.
7Tex. R. Evid. 613 (Witness’s Prior Statement and Bias or Interest).
8Despite the fact that Banta’s attorney didn’t refer the trial court to

Texas Rule of Evidence Rule 406, which is the rule of evidence applicable
to evidence a party wants to introduce regarding someone’s habit, we
assume the trial court would have known that Rule 406 makes evidence
5
Banta’s attorney told the trial court that on cross-examination, he

could establish the reason Willow accused Smith of sexually assaulting

her was that she didn’t want her mother, Joanna, dating Smith and

instead, she wanted Joanna to be dating Jay Peak. 9 The attorney

represented that Peak was the person the evidence would show that

Willow was hoping that her mother would marry, and he could show that

Willow wanted to change her name to Peak. Second, Banta’s attorney

argued that by questioning Willow about Smith, he could show that

Smith was arrested. That evidence, the attorney continued, would show

that Willow was in the “habit of making false allegations, getting people

arrested.”

After Banta’s attorney made his argument to explain his theory

about why allowing the scope of his cross-examination to include

questioning Willow about why she had accused Smith of sexual assault,

as discussed above, Banta’s attorney asked the trial court: “Understand

what I’m saying.” In response, the trial court stated: “No, I do not.” The

prosecutor argued that on the record before the trial court, the details of

of a person’s habit admissible if the person’s “character trait is an
essential element of a charge, claim or defense[.]” Tex. R. Evid. 406(b).
9A pseudonym.

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the accusation Willow made against Smith and later withdrew were

relevant only to the extent that Willow had made the accusation and

subsequently withdrawn it.

The trial court sustained the prosecutor’s objection based on lack of

relevance. Then the trial court added that even if evidence about the fact

that Smith had been arrested and the reasons for his arrest were relevant

to an issue of material fact in Banta’s trial, there wasn’t a foundation

showing that Willow knew for a fact that Smith had been arrested based

on her accusation or showing that Willow knew what police had relied on

when they made the arrest.

When Banta cross-examined Willow, he did not ask Willow whether

she had falsely accused another man of sexual assault, whether she had

accused Smith of sexual assault, or whether she had a reason to make a

false claim against Banta asserting that he had touched her

inappropriately when she was a child. Stated another way, he never

asked Willow whether the reason she accused Banta of molesting her was

that she didn’t want to live in his home or because she would have

preferred living with her mother.

7
Darla, who was fifteen years old when she testified, told the jury

that Banta touched her many times on her sexual organ while “he was

supposed to be putting medicine on [her], and he was instead enjoying

himself while putting his hand in me[.]” When asked to demonstrate,

Darla used a box of tissues and inserted her fingers in and out of the

opening of the box to show the jury how her father had inserted his

fingers in and out of her sexual organ. Darla also testified that Banta

“put a machine up against my vagina” that “look[ed] like a showerhead.”

Darla added that she saw Banta use the vibrator on Willow and her two

sisters, Tonya and Beth. 10

Grant―Willow’s brother―was fourteen years old when he testified

at the trial. 11 The State called him to show that Banta sexually molested

Darla and Willow. According to Grant, Banta made his sisters “sit on his

lap, and he would rub them.” Asked to be more specific, Grant explained

he saw Banta grab Willow’s “titty[,]” and that he saw his father touch

Willow on the leg and slowly move his hand up her leg.

10Pseudonyms.
11A pseudonym.

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Banta, who testified in his defense, denied that he sexually abused

any of his children. Banta also called Tonya, the oldest of his daughters,

as one of the eight witnesses called to testify in his defense. Tonya was

twenty-one years old when she testified in the trial. Tonya explained that

she understood Darla and Willow were claiming that their father

sexually abused them. When asked what her response was to the

allegations, Tonya testified: “Never happened.” Tonya also said that if

Banta did ever touch Darla or Willow inappropriately, Banta did so solely

to treat “boo-boos,” and when he did that, he always wore a glove.

Beth, another of Banta’s children, was eighteen years old when she

testified in Banta’s trial. Beth told the jury that she never saw her father

touch her sisters inappropriately on any of their private parts. According

to Beth: “He did not do anything wrong.”

Nevertheless, the jury weighed the evidence, assessed the

credibility of the witnesses, and found Banta guilty of continuous sexual

abuse as charged in the indictment. In the punishment phase of the trial,

the jury assessed a ninety-nine-year sentence. The trial court signed a

judgment consistent with the jury’s verdict and Banta appealed.

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Standard of Review

We review a trial court’s decision to limit or exclude evidence under

an abuse of discretion standard. 12 We must uphold the ruling if the trial

court made the correct ruling under any theory of law that applies.13 We

will reverse the ruling only if it “falls outside the zone of reasonable

disagreement.” 14

Analysis

On appeal, Banta complains the trial court erred in ruling that his

attorney “would not be allowed to cross-examine [Willow] on the issue of

having made a false report regarding a sexual offense by another man

which she later recanted.” Banta contends that had the trial court

allowed his attorney to cross-examine Willow, Willow’s testimony “would

have revealed the witness was not trustworthy in relation to such a

serious allegation and its serious implications.”

12Johnson v. State, 490 S.W.3d 895, 917 (Tex. Crim. App. 2016); see

Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (noting
that “trial judge has wide discretion in limiting the scope and extent of
cross-examination”).
13Id.
14Id.

10
As we pointed out, the prosecutor elicited testimony from Willow

when presenting the State’s case-in-chief that Willow had accused one of

her mother’s old boyfriends of touching her inappropriately and then

changed her story later to say the assault didn’t happen. At trial, Willow

testified the assault did happen. So then the prosecutor asked Willow to

explain why she changed her story about the accusation involving her

mother’s boyfriend twice, once to say it didn’t happen and a second time

at trial to say that it did. The prosecutor asked Willow: “Why did you tell

them that it didn’t happen?” Willow answered: “Because I didn’t want to

do the same thing that we are doing right now.” Thus the jury knew that

Willow had equivocated on a prior accusation she made on an alleged

sexual offense that she made against another man.

At trial, Banta’s attorney argued that under Rule 412 of the Texas

Rules of Evidence, he had a right to cross-examine Willow about the

details of the sexual assault claim she made against Smith because it was

relevant to her bias and motive. “In a criminal case, subject to the

limitations in Rule 412, a defendant may offer evidence of a victim’s

pertinent trait, and if the evidence is admitted, the prosecutor may offer

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evidence to rebut it.” 15 Although subject to five exceptions, Texas Rule of

Evidence 412 constrains the admissibility of evidence of specific

instances of the victim’s past sexual behavior in a prosecution for

aggravated sexual assault. 16 The exception that Banta argued applied at

trial is the exception in Rule 412(b)(2)(C), which provides that evidence

of specific instances of a victim’s past sexual behavior is admissible if the

evidence “relates to the victim’s motive or bias[.]” 17 But even when the

evidence of the specific instances of the victim’s past sexual conduct

relates to the victim’s motive or bias, the probative value of the evidence

must still outweigh the danger of unfair prejudice. 18

In the trial court, Banta’s attorney argued that Willow’s motive in

accusing Smith—that she wanted her mother to marry Peak—would

reveal Willow’s bias or interest in testifying against Banta. Except for

arguing that the evidence was admissible under Rule 412, he did not

complain about the trial court’s ruling or offer any proof that

demonstrates the evidence was relevant to Willow’s alleged bias or

15Tex. R. Evid. 404(2)(A).
16Id. 412(b).
17Id. 412(b)(2)(C).
18Id. 412(b)(3).

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motive in testifying against Banta. 19 The record shows Banta and

Willow’s mother were already divorced when Willow accused Smith of

sexual assault. Further, nothing in the record shows that Willow’s

mother and Banta were dating or were considering getting back together

following their divorce in 2014. Understandably, since Willow’s desire to

change her name to Peak did not appear to be relevant to any motive

Willow might have had in accusing her father of sexually molesting her,

we hold the trial court did abuse its discretion in ruling the evidence

inadmissible under Rule 412.

Like the trial court, we don’t understand how evidence that Willow

wanted to change her name to Peak is connected to a claim that she would

have had a motive to accuse her father of sexual abuse. Additionally, we

have carefully reviewed the record and it does not show that the trial

court prohibited Banta’s attorney from examining Willow about the fact

that she accused Smith of sexual assault or the fact that she later

withdrew her accusation. Instead, the record shows the trial court

refused to allow Banta’s attorney to cross-examine Willow about why she

accused Smith because Banta’s attorney never explained why the reason

19See id. 103(a)(2).

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for her accusing Smith was logically connected to a motive or bias that

she might have had to testify against her father or to accuse him of sexual

abuse.

Under Texas law, “[t]he proponent of evidence to show bias must

show that the evidence is relevant. The proponent does this by

demonstrating that nexus, or logical connection, exists between the

witness’s testimony and the witness’s potential motive to testify in favor

of the other party.” 20 On appeal, Banta argues that the limitation on his

cross-examination of Willow violated his rights under the Confrontation

Clause of the Sixth Amendment. We don’t question that “[t]he

constitutional right of confrontation includes the right to cross-examine

the witnesses and the opportunity to show that a witness is biased or that

his testimony is exaggerated or unbelievable.” 21 “Nonetheless, the trial

judge retains wide latitude to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’s safety, or interrogation

that is repetitive or only marginally relevant.”22 “The constitutional right

20Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004).
21Irby v. State, 327 S.W.3d 138, 143 (Tex. Crim. App. 2010).
22Id. (cleaned up).

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to cross-examine concerning the witness’s potential bias or prejudice does

not include cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” 23

We conclude it was within the trial court’s discretion to restrict the

cross-examination that Banta’s attorney proposed because Banta failed

to meet his burden to “show a logical connection between the evidence

suggesting bias or motive and the witness’s testimony.” 24 Furthermore,

even assuming for purposes of argument that the trial court erred in

refusing to allow Banta’s attorney to question Willow about the reasons

she accused Smith of sexual assault, the record from the trial shows the

ruling didn’t prevent Banta from presenting his defense. 25 To show the

exclusion of the evidence deprived an appellant of a fair trial such that it

amounted to a constitutional error, as Banta argues, the appellant must

show that “the evidence forms such a vital portion of the case that

exclusion effectively precludes the defendant from presenting a

defense.” 26 Errors like the one Banta complains of in admitting evidence

23Id. (cleaned up).
24Id. at 152.
25Tex. R. App. P. 44.2(a).
26Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).

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are considered non-constitutional, and we will not overturn a criminal

conviction for non-constitutional error if, after examining the record as a

whole, we have fair assurance the error did not influence the jury or

influenced the jury only slightly. 27

There are at least three reasons the record shows the district court’s

ruling did not prevent Banta from presenting his defense. First, the jury

had the benefit of testimony from a friend of the Banta family who was

familiar with Willow and expressed the opinion that Willow had a poor

reputation for telling the truth. Cheryl Phillips testified that she has

known the defendant for more than twenty years and “know[s] all about

his family.” When Banta’s attorney asked Phillips whether she had an

opinion about Willow’s reputation for trustworthiness and truthfulness,

Phillips answered: “She will lie.” 28

Second, Banta presented his theory to the jury that the children

who testified against him—Darla, Willow, and Grant—were lying

because he was a strict parent compared to their mother and there were

advantages to living with her. Third, Banta’s attorney did develop his

27Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).
28See Tex. R. Evid. 608 (A Witness’s Character for Truthfulness or

Untruthfulness).
16
theory that Willow wanted her mother to marry Peak. During the trial,

Banta’s attorney asked Willow whether she recalled that her mother

dated Peak, and Willow acknowledged that she did. Then he asked: “Did

you want to change your name to [Peak] at one time?” Willow answered:

“Yes, sir.” When Banta called his daughter Beth to testify in his defense,

she also testified that her brother (Grant) and sister (Willow) wanted to

change their names to Peak.

To sum it up, the exceptions in Rule 412 don’t automatically open

the door to a witness being examined on matters not shown to be relevant

to a witness’s bias or motive. 29 On this record, we conclude that even were

we to agree (and we don’t) that the trial court erred in restricting the

scope of Willow’s cross-examination to prevent Banta’s attorney from

exploring why Willow accused Smith of sexual assault, the “error” didn’t

deprive Banta of a substantial right. Therefore since any alleged “error”

would have been non-constitutional, it must be disregarded. 30

29See Irby, 327 S.W.3d at 152 (“It is not enough to say that all
witnesses who may, coincidentally, be on probation, have pending
charges, be in the country illegally, or have some other ‘vulnerable status’
are automatically subject to cross-examination with that status
regardless of its lack of relevance to the testimony of that witness.”).
30See Tex. R. App. P. 44.2(b); Potier, 68 S.W.3d at 666.

17
Conclusion

For the reasons explained above, we conclude that Banta failed to

establish the trial court erred in ruling that his attorney could not

question Willow about why she accused Smith of sexual assault. We also

conclude that even if the trial court erred in limiting the scope of Banta’s

cross-examination on grounds of relevance, the error was non-

constitutional and must be disregarded. We overrule Banta’s sole issue.

Accordingly, the trial court’s judgment is

AFFIRMED.
HOLLIS HORTON
Justice

Submitted on August 1, 2023
Opinion Delivered November 1, 2023
Do Not Publish

Before Horton, Johnson and Wright, JJ.

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