In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-18-00031-CR ___________________________
JOHN MICHEAL MCBRIDE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 90th District Court Young County, Texas Trial Court No. 10678
Before Sudderth, C.J., Meier and Kerr, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
A jury found appellant John Micheal1 McBride guilty of sexually assaulting a
child and assessed his punishment at 15 years in the penitentiary, and the trial court
sentenced him accordingly. Holding that McBride failed to preserve his first appellate
issue and waived his second, we affirm.
McBride’s two issues
In his first issue, McBride asserts that the trial court erroneously admitted an
extraneous offense because the State had not given him the required article 38.37 30-
day notice. See Tex. Code Crim. Proc. Ann. art. 38.37, § 3 (West 2018). And in his
second issue, he asserts that the trial court erroneously admitted the same extraneous
offense because the danger of unfair prejudice substantially outweighed its probative
value. See Tex. R. Evid. 403, 404(b). The extraneous act about which McBride
complains in both issues is that he engaged in oral sex with the complainant, which, as
he correctly notes, was not alleged in the indictment. The State’s indictment charged
McBride only with intentionally and knowingly digitally penetrating a child’s sexual
organ. Tex. Penal Code Ann. § 22.011(a)(1)(A), (a)(2)(A), (c)(1) (West Supp. 2018).
The State responds that the complained-of evidence is not an extraneous
offense but same-transaction contextual evidence, which is intrinsic to the offense and
thus admissible. See Worthy v. State, 312 S.W.3d 34, 39 (Tex. Crim. App. 2010). But
1 So spelled.
2 because we hold that McBride has not preserved his first complaint and waived his
second, we need not decide whether the State is correct.
First Issue
McBride never objected at trial that the State failed to give him timely notice.
Without an objection and adverse ruling, we hold that he has not preserved his
appellate complaint and overrule his first issue. See Tex. R. App. P. 33.1; Belcher v. State,
474 S.W.3d 840, 850 (Tex. App.—Tyler 2015, no pet.).
Second Issue
McBride’s next issue complains about the trial court’s admitting oral-sex
evidence generally and, more specifically, about its admitting DNA evidence. As we
understand his argument, saliva more likely produced the DNA evidence than any
touching did, so the DNA evidence was far more likely to prove that he engaged in
oral sex than that he digitally penetrated the complainant.2 Because the State did not
charge McBride with oral sex and because McBride contends that oral sex inflames
jurors’ judgment more than digital penetration, he maintains that the danger of unfair
prejudice greatly outweighed the DNA evidence’s probative value. See Tex. R. Evid.
403, 404(b).
Assuming that digital penetration was less likely than saliva to leave DNA 2
evidence, this argument ties in with the State’s contention that, for the jury to properly understand the evidence, it needed to know that oral sex, which was more likely to leave DNA evidence, was part of an indivisible criminal transaction and thus admissible. See Beltran v. State, 517 S.W.3d 243, 248–49 (Tex. App.—San Antonio 2017, no pet.). Our holding that McBride waived his second issue moots this question.
3 To the extent that McBride complains about the trial court’s admitting oral-sex
evidence generally, in his brief he does not point to where in the record he objected to
non-DNA-related oral-sex testimony. Indeed, as we will show, oral-sex testimony
unrelated to the DNA evidence came in repeatedly without objection. McBride thus
failed to preserve this complaint. See Tex. R. App. P. 33.1.
But to the extent that McBride complains about the trial court’s admitting
DNA evidence and the accompanying testimony showing that the DNA was more
likely the product of oral sex than digital penetration, both McBride’s brief and the
record show that he consistently objected and obtained adverse rulings. For analytical
purposes, though, McBride’s DNA arguments dovetail with and are ultimately
decided by the oral-sex testimony generally.
That is, McBride’s failure to keep out the non-DNA-related oral-sex testimony
guts his attacking the DNA evidence on the theory that it more likely proved oral sex
than digital penetration. When the same evidence comes in without objection, either
before or after a complained-of ruling, we will not reverse. See Leday v. State,
983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Cantrell v. State, No. 02-04-00083-CR,
2005 WL 1119808, at *5 (Tex. App.—Fort Worth May 12, 2005, no pet.) (mem. op.,
not designated for publication). Here, both before and after DNA analyst Heather
Kramer testified, evidence that McBride engaged in oral sex with the complainant
came in numerous times without objection.
4 For example, before Kramer took the stand, Christa Thornhill (the
complainant’s sexual-assault nurse-examiner) testified that the complainant had
described her medical history, and Thornhill then related, without objection, what the
complainant had told her:
A. [The complainant said,] “I went to the bathroom about 1:00 a.m. When I came back to the living room, he came over to me and started to rub my leg. I was afraid. I just laid there very still. He pulled off my shorts and panties. I said, No. He licked me down there.”
Q. Where is down there?
A. She pointed, so I asked her what she called that area, and she said “vagina.”
Q. Okay.
A. “I didn’t want him to. I told him to stop; that I just needed to go to bed. He kept on; going for 30 minutes. Then he stopped. I was crying when he left. . . .”
And when asked if the complainant described any other sexual act, Thornhill
responded, “Yes. She said, ‘He licked me down there,’ and pointed at the vagina, ‘and
fingered me down there,’ and indicated her vagina.” On yet another occasion,
Thornhill added:
A. I asked about oral copulation of genitals.
Q. What’s oral copulation?
A. Well, so how I explain it to a 14-year old is did he put his mouth on your vagina—
A. —or did he put his mouth on your anus.
5 Q. And what is her response to that?
A. It was “yes” that he put his mouth on her.
Similarly, when recounting the oral medical history that the complainant’s mother had
given her, Thornhill said, “[The complainant] had told her mom he pulled off her
shorts and panties, and he put his fingers inside of her and licked her.” And in her
written findings, which were also admitted into evidence, Thornhill indicated that
there was digital contact with the vagina and genital “[o]ral copulation of the patient
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-18-00031-CR ___________________________
JOHN MICHEAL MCBRIDE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 90th District Court Young County, Texas Trial Court No. 10678
Before Sudderth, C.J., Meier and Kerr, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
A jury found appellant John Micheal1 McBride guilty of sexually assaulting a
child and assessed his punishment at 15 years in the penitentiary, and the trial court
sentenced him accordingly. Holding that McBride failed to preserve his first appellate
issue and waived his second, we affirm.
McBride’s two issues
In his first issue, McBride asserts that the trial court erroneously admitted an
extraneous offense because the State had not given him the required article 38.37 30-
day notice. See Tex. Code Crim. Proc. Ann. art. 38.37, § 3 (West 2018). And in his
second issue, he asserts that the trial court erroneously admitted the same extraneous
offense because the danger of unfair prejudice substantially outweighed its probative
value. See Tex. R. Evid. 403, 404(b). The extraneous act about which McBride
complains in both issues is that he engaged in oral sex with the complainant, which, as
he correctly notes, was not alleged in the indictment. The State’s indictment charged
McBride only with intentionally and knowingly digitally penetrating a child’s sexual
organ. Tex. Penal Code Ann. § 22.011(a)(1)(A), (a)(2)(A), (c)(1) (West Supp. 2018).
The State responds that the complained-of evidence is not an extraneous
offense but same-transaction contextual evidence, which is intrinsic to the offense and
thus admissible. See Worthy v. State, 312 S.W.3d 34, 39 (Tex. Crim. App. 2010). But
1 So spelled.
2 because we hold that McBride has not preserved his first complaint and waived his
second, we need not decide whether the State is correct.
First Issue
McBride never objected at trial that the State failed to give him timely notice.
Without an objection and adverse ruling, we hold that he has not preserved his
appellate complaint and overrule his first issue. See Tex. R. App. P. 33.1; Belcher v. State,
474 S.W.3d 840, 850 (Tex. App.—Tyler 2015, no pet.).
Second Issue
McBride’s next issue complains about the trial court’s admitting oral-sex
evidence generally and, more specifically, about its admitting DNA evidence. As we
understand his argument, saliva more likely produced the DNA evidence than any
touching did, so the DNA evidence was far more likely to prove that he engaged in
oral sex than that he digitally penetrated the complainant.2 Because the State did not
charge McBride with oral sex and because McBride contends that oral sex inflames
jurors’ judgment more than digital penetration, he maintains that the danger of unfair
prejudice greatly outweighed the DNA evidence’s probative value. See Tex. R. Evid.
403, 404(b).
Assuming that digital penetration was less likely than saliva to leave DNA 2
evidence, this argument ties in with the State’s contention that, for the jury to properly understand the evidence, it needed to know that oral sex, which was more likely to leave DNA evidence, was part of an indivisible criminal transaction and thus admissible. See Beltran v. State, 517 S.W.3d 243, 248–49 (Tex. App.—San Antonio 2017, no pet.). Our holding that McBride waived his second issue moots this question.
3 To the extent that McBride complains about the trial court’s admitting oral-sex
evidence generally, in his brief he does not point to where in the record he objected to
non-DNA-related oral-sex testimony. Indeed, as we will show, oral-sex testimony
unrelated to the DNA evidence came in repeatedly without objection. McBride thus
failed to preserve this complaint. See Tex. R. App. P. 33.1.
But to the extent that McBride complains about the trial court’s admitting
DNA evidence and the accompanying testimony showing that the DNA was more
likely the product of oral sex than digital penetration, both McBride’s brief and the
record show that he consistently objected and obtained adverse rulings. For analytical
purposes, though, McBride’s DNA arguments dovetail with and are ultimately
decided by the oral-sex testimony generally.
That is, McBride’s failure to keep out the non-DNA-related oral-sex testimony
guts his attacking the DNA evidence on the theory that it more likely proved oral sex
than digital penetration. When the same evidence comes in without objection, either
before or after a complained-of ruling, we will not reverse. See Leday v. State,
983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Cantrell v. State, No. 02-04-00083-CR,
2005 WL 1119808, at *5 (Tex. App.—Fort Worth May 12, 2005, no pet.) (mem. op.,
not designated for publication). Here, both before and after DNA analyst Heather
Kramer testified, evidence that McBride engaged in oral sex with the complainant
came in numerous times without objection.
4 For example, before Kramer took the stand, Christa Thornhill (the
complainant’s sexual-assault nurse-examiner) testified that the complainant had
described her medical history, and Thornhill then related, without objection, what the
complainant had told her:
A. [The complainant said,] “I went to the bathroom about 1:00 a.m. When I came back to the living room, he came over to me and started to rub my leg. I was afraid. I just laid there very still. He pulled off my shorts and panties. I said, No. He licked me down there.”
Q. Where is down there?
A. She pointed, so I asked her what she called that area, and she said “vagina.”
Q. Okay.
A. “I didn’t want him to. I told him to stop; that I just needed to go to bed. He kept on; going for 30 minutes. Then he stopped. I was crying when he left. . . .”
And when asked if the complainant described any other sexual act, Thornhill
responded, “Yes. She said, ‘He licked me down there,’ and pointed at the vagina, ‘and
fingered me down there,’ and indicated her vagina.” On yet another occasion,
Thornhill added:
A. I asked about oral copulation of genitals.
Q. What’s oral copulation?
A. Well, so how I explain it to a 14-year old is did he put his mouth on your vagina—
A. —or did he put his mouth on your anus.
5 Q. And what is her response to that?
A. It was “yes” that he put his mouth on her.
Similarly, when recounting the oral medical history that the complainant’s mother had
given her, Thornhill said, “[The complainant] had told her mom he pulled off her
shorts and panties, and he put his fingers inside of her and licked her.” And in her
written findings, which were also admitted into evidence, Thornhill indicated that
there was digital contact with the vagina and genital “[o]ral copulation of the patient
by the assailant.” By the time Kramer later testified, Thornhill’s testimony had already
shown (if the jury found her credible) that McBride had both digitally penetrated the
complainant and had oral sex with her.
And after Kramer had left the stand, the complainant herself testified—without
objection—as follows:
[Prosecutor] Q. . . . . So go ahead and finish telling us what happened.
A. He had laid me down, pushed back on my shoulders, and then he took off my shorts and started kissing me down there, and then he put his fingers in me. I tried to tell him to stop, but I was being very quiet. I didn’t want to wake [up his daughter with whom I was spending the night]. I didn’t want her to hear anything, because I didn’t want her to see any of that happening because I knew it would hurt her.
Q. Did he stop?
A. No.
Q. Did he just continue on? Did you struggle, or did you just kind of lay there? What happened?
6 A. I tried to push his head up off of me, and it didn’t work. I continued to try to get him to stop, and I was saying “no,” but I just—I didn’t want to make too much noise, or, if I had maybe struggled a little more, I didn’t want to get hurt I guess. I was just scared of what would happen if I fought more.
Q. And you said that he kissed you down there. Are you saying that he licked your genital area?
A. Yes.
Q. And you said that he put his finger inside of you. Was that in between your lips of your genitalia?
The complainant indicated that the ordeal lasted for 20 to 30 minutes, and when
asked which activity McBride had done more often during that time, she responded,
“Him licking my vagina.” Once again, other unobjected-to evidence showed that
McBride’s sexual assault encompassed oral sex as well as digital penetration.
McBride also argues that because identity was not an issue, the danger of unfair
prejudice greatly outweighed the DNA evidence’s probative value. We disagree. The
question was not whether the complainant correctly identified her assailant but
whether the complainant had been assaulted at all. Based on the record, McBride was
apparently willing to take his chances with he-said, she-said evidence but was not
willing to do so against DNA evidence, which gave the jury something other than the
complainant’s word to weigh when deciding whether McBride committed the digital-
penetration offense. Under the circumstances, regardless of the DNA evidence’s
origins, its probative value was great because it showed that inappropriate contact of
7 some kind had occurred, and the other oral-sex evidence effectively mooted any
prejudicial value that the DNA evidence might otherwise have had if it had been the
only link introducing oral sex into the overall assault. See Leday, 983 S.W.2d at 718.
Next, McBride points to the evidence that the complainant had two fresh
abrasions on her right and left inner labia majora that Thornhill said were consistent
with digital penetration, which he contends eliminated the State’s need for the DNA
evidence. We again disagree. During final argument, McBride argued that the
complainant had manufactured the whole scenario to get attention. In this light, the
abrasions did not necessarily point to McBride’s digitally penetrating the complainant,
but the DNA evidence and Kramer’s testimony did by showing that McBride engaged
in some sort of inappropriate contact—oral, digital, or both—with the complainant.
McBride could perhaps easily explain away the abrasions, but whether he could
explain away his DNA on the complainant’s vagina and underwear would not be so
easy.
With DNA evidence, the State could directly corroborate part of the
complainant’s testimony—but the question remained: which part? It was either direct
evidence of oral sex and circumstantial evidence of digital penetration, or it directly
proved digital penetration and circumstantially supported oral sex. But this is a
distinction without substance because circumstantial evidence is no less trustworthy
than direct evidence. See Jiminez v. State, 953 S.W.2d 293, 297 (Tex. App.—Austin
8 1997, pet. ref’d). And circumstantial evidence suffices if reasonable inferences taken
from it prove a disputed fact beyond a reasonable doubt. See id.
In Jiminez, the jury convicted the defendant of causing the complainant’s sexual
organ to contact his mouth. Id. at 296. But when testifying, the complainant said that
the defendant rubbed his face against her naked genitals and that she felt his nose
inside them, but even she could not say whether his mouth had contacted her sexual
organ. Id. On appeal the defendant attacked the evidentiary sufficiency. See id. After
reviewing the evidence, the court overruled his sufficiency complaint, holding that a
rational factfinder could infer beyond a reasonable doubt that when he rubbed his
face against the complainant’s genitals and penetrated them with his nose, he also
caused his mouth to contact her sexual organ. See id. at 297.3
So assuming McBride’s DNA evidence did not directly confirm digital
penetration, it circumstantially made digital penetration much more likely. See id.
Because other evidence repeatedly informed the jury that McBride had engaged
in oral sex in addition to digital penetration, we hold that McBride waived any
complaint about Kramer’s testimony and the DNA evidence. See Leday, 983 S.W.2d at
718; Cantrell, 2005 WL 1119808, at *5; see also Tex. R. Evid. 403, 404(b).
We overrule McBride’s second issue.
3 On the same facts, the defendant also lost his factual-insufficiency complaint. Id. at 297–98.
9 Conclusion
Having overruled McBride’s issues, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: December 6, 2018