TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00421-CR
Leo Davis, Appellant
v.
The State of Texas, Appellee
FROM THE 426TH DISTRICT COURT OF BELL COUNTY NO. 83246, THE HONORABLE STEVEN J. DUSKIE, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Leo Davis guilty of indecency with a child by sexual contact.
See Tex. Penal Code § 21.11(a)(1). The trial court sentenced Davis to ten years’ confinement.
See id. § 12.33. In two issues on appeal, he contends that the evidence was insufficient to support
the jury’s guilty finding and that the trial court abused its discretion by admitting the testimony of
Deborah Wycoff and Mary Salmond, both of whom he asserts “never examined or interviewed the
complaining witnesses and were called by the prosecution to give irrelevant and improper expert
testimony.” We affirm the trial court’s judgment of conviction. BACKGROUND
The indictment in this case alleged that Davis engaged in sexual contact by touching
the genitals of Alice Mitchell, 1 an eight-year-old distantly related to his wife, Elsie Davis.
Alice, who was eleven at the time of trial, and her sister Katherine, who was
thirteen, testified about being abused by Davis at a sleepover at his and Elsie’s double-wide trailer
on the night of September 27, 2020. Alice, Katherine, and their sister Stacie were related to Elsie—
whom they referred to as “Aunt Lu”—through their father (Father). 2 During the sleepover, Davis,
Elsie, and the three sisters watched a movie in the living room. Elsie sat in a recliner; Davis sat
on the couch; and Alice and Katherine moved around, each sitting next to Davis at one point.
Stacie fell asleep on the floor. 3
Katherine, who first sat next to Davis on the couch, testified about his touching her
and used diagrams of a nude girl and boy during her testimony. Indicating the girl’s vagina and
the boy’s hand, she testified, “He touched it.” After Davis touched her vagina, she got up but said
nothing because she “didn’t feel like talking about it.” She had not discussed what happened with
her sisters or with Morgan Bailey, their cousin.
After Katherine got up, Alice sat down next to Davis. He touched her vagina both
above and below her underwear and moved his hand up and down. She was too scared to say
anything. Eventually, she went into the kitchen and began to color. While she was standing at the
1 We refer to all child-victims—Alice, Katherine Dupont, Stacie Driscoll, and Morgan Bailey—by pseudonyms in the interest of privacy. See Tex. R. App. P. 9.10(a)(3).
Elsie testified that the children were her nieces. Mother testified that Father was Elsie’s 2
nephew. And Davis testified that Father was the nephew of Elsie’s ex-husband. 3 Stacie, who was fourteen at the time of trial, testified only that she had been asleep and did not know what happened to her sisters. 2 kitchen table, Davis sat in a chair next to her and “was touching her panties” and “going up and
down with his hand.” She was again scared but continued to color.
Elsie, who had gone to refill her drink, saw what Davis was doing and pushed him
off of his chair. He fell down and hit his head on the wall, which frightened Alice, who began to
cry. Elsie took Alice and Katherine into a bedroom and called 911. Elsie did not question the
girls, but the police questioned Elsie after arresting Davis.
Harker Heights Police Department Officer Daniel Huff testified about his actions
on responding to the trailer around 4 a.m. After arriving, he handcuffed and detained Davis in the
back of a patrol car. Although he did not see any alcohol containers, Officer Huff could smell the
odor of alcohol on Davis and noticed “a very faint smell” of alcohol on Elsie. Once he had secured
Davis, Officer Huff questioned Elsie and advised her that he was unqualified to speak directly with
the children. She, however, relayed each of his questions to the girls, and he wrote down their
answers. He explained that Elsie “wasn’t asking leading questions that would lead to a specific
answer,” and he had no “inclination” that the children had been coached in their responses. He
acknowledged that detectives generally separate children during questioning and that he had failed
to do so.
Bell County Sheriff’s Office Investigator Donald Lohman testified about his role
in the investigation. He arrived after Davis had been detained and questioned Elsie, Alice, and
Katherine separately. Both of the girls “ma[de] outcries” 4 to him. He then Mirandized and
questioned Davis, who was still seated in the patrol car’s backseat. The questioning was recorded
4 An “outcry” refers to the first statement describing an alleged sexual offense made by the child-victim of the offense to a person, other than the defendant, who is eighteen years of age or older. See Tex. Code Crim. Proc. art. 38.072. Elsie was the State’s outcry witness in this case. 3 by Officer Huff’s body-camera, video from which was admitted into evidence. Davis stated that
he did not know what was going on and that all he had done was tap Alice—whose name he could
not remember—on the leg while she was coloring. He admitted that Alice and Katherine had sat
next to him, but when asked if he had accidentally touched them on their “midsection[s],” he
replied, “I don’t think so.” Told that one of the girls had alleged he touched her “privates,” he
responded, “That’s not possible.” He said that he did not know why the girls would make such
accusations but that he and Elsie had been having marital problems.
During his investigation, Investigator Lohman learned that a month or two before
the sleepover, Morgan, the girls’ cousin, had reported being abused by Davis to the Killeen Police
Department. It was later determined that the Bell County Sheriff’s Office had jurisdiction of the
case, and he attempted unsuccessfully to contact members of her family. Morgan’s case was not
resubmitted to the District Attorney’s Office.
On cross-examination, Investigator Lohman testified that he watched a video of
Alice’s forensic interview. Although Alice had said in the interview that the “boy” who touched
her was named “Uncle Luke”—who defense counsel asserted was Elsie’s brother—Investigator
Lohman testified that he did not contact or reach out to Uncle Luke.
Alice, Katherine, and Stacie’s mother (Mother) testified about her family’s
relationship with Elsie and Davis. Katherine and Stacie “grew up” with Elsie and were excited
about the sleepover; Alice, on the other hand, had first been to Elsie and Davis’s trailer for Easter
that year. Although her daughters loved Elsie, they did not often interact with Davis and would
see him only on holidays. Morgan was Father’s niece and the girls’ cousin, and Mother was not
aware of her allegation against Davis before the sleepover.
4 Mother testified that the morning after the sleepover, an officer came to her house.
Mother called Elsie, who told her what had happened and brought the girls home. Mother and
Father questioned them separately but did not ask suggestive questions, such as, “Did he touch
you?” Katherine was upset, withdrawn, and would not make eye contact. Alice began crying and
told Mother that “she was touched.” Mother and Father took Alice and Katherine for sexual assault
forensic examinations (SAFE) and forensic interviews. The children were not the same after the
sleepover; they were no longer trusting and did not want to “stay over at people’s houses.”
Morgan, who was seventeen at the time of trial, testified about an incident that
occurred when she was around ten in which Davis touched her vagina. At the time, she and her
father were living with Davis and Elsie, whom she knew as her aunt. Morgan asked Davis, who
was sitting on the living room couch, to fix a backyard swing set for her. Davis told her to give
him a hug first, and when she did, he held her against his body, reclined his seat, and “put his hand
in [her] pants and started touching” her. Touching skin, he rubbed his hand back and forth on her
“private part,” which she uses to urinate. She told him to stop because it hurt, but he did not. He
pulled out his penis, which touched her shirt over her stomach, and only then was she able to push
away from him and run into her father’s room. Davis came to the door, told her to stop crying,
and asked her not to tell anyone. She told her father and Elsie, but neither believed her. Her father
threw a pack of cigarettes at her face and called her a liar. Elsie had her draw a picture of Davis’s
penis, which Elsie claimed was inaccurate. Morgan later told her aunt Nicole and her father’s
girlfriend about the abuse, but they likewise did nothing. It was only years later, after Morgan’s
grandmother saw a Facebook post made by Elsie, that Morgan’s grandparents called the police.
Morgan did not know Alice and had not discussed her allegation against Davis with Katherine
or Stacie.
5 Elsie testified about the sleepover, her marriage to Davis, and Morgan’s accusation.
On September 27th, Elsie took Alice, Katherine, and Stacie to get toys and called Davis to let him
know about the sleepover. Davis had “never really paid a whole lot of attention to the kids most
of the time.”
While the children, Davis, and Elsie were watching a movie in the living room,
Alice got up from the couch where she had been sitting with Davis. The two had been covered by
a blanket. Elsie noticed that Alice’s pants were unbuttoned and asked her why. Alice only
shrugged. Davis told her to fix her pants, which she did.
Alice went to color at the kitchen table. Elsie testified that “she went in there
because I started getting nervous about [Davis’s] behavior.” The “biggest trigger” alerting Elsie
that something was wrong occurred when Katherine lied down on the floor, and Davis reached
toward her, saying, “[H]ey, come sit with me. Hey, come sit with me.” Elsie was confused by his
behavior because he never acted that way with the children.
Davis eventually followed Alice into the kitchen and colored with her, which was
not something he would normally do. Elsie began paying close attention to them. She pretended
to sit in her recliner but was “peeking around the corner” to “keep an eye” on Alice. “[O]ut of
nowhere, []Davis put his hand on the inside of [Alice’s] leg and started rubbing his hand up her
leg . . . up the inside of her thigh.” Elsie moved to confront him but realized that she had “jumped
the gun” and “had nothing to do but maybe accuse him of something [of which she] had no idea.”
She continued to watch him from the chair. He turned to face Alice so that she was between his
legs, put one hand on the child’s back, and rubbed her vagina with the other.
Elsie panicked, ran into the kitchen, and rammed Davis out of his chair and into
cabinets, yelling, “[Y]ou don’t touch them!” She took Alice into a sunroom adjoining the kitchen
6 and asked if Davis had touched her. Alice told Elsie that he had put his hand inside her pants when
they were sitting on the couch. Elsie called 911.
Davis asked them what was going on, and Elsie took Alice into the living room and
had her sit on the couch. He followed them into the living room, leaned over Alice, and asked her
“why did she tell that he had touched her.” Elsie told him not to talk to or question Alice and took
her into a bedroom. He again followed them and attempted to reach around Elsie toward Alice.
Elsie told him to get away from them and, at the 911 operator’s direction, took Alice and Katherine
into the bathroom and leaned against the door. While in the bathroom, Elsie “learn[ed] something”
from Katherine and related it to the operator. Officers responded to the trailer, and Elsie relayed
the children’s statements to them.
Davis and Elsie were married for around ten years and divorced in 2022; he filed
for the divorce. She had been diagnosed with an STD, and at first he had accused her of cheating.
However, at the time of the sleepover, Elsie thought their marriage was “fine.” They continued to
live together for a year or two after the sleepover because she had nowhere else to go, but their
relationship during that time was “nonexistent.”
Morgan, who Elsie described as “a daughter of a nephew from a previous
marriage,” accused Davis of sexual impropriety in 2014 or 2015, when she and her father were
living with Davis and Elsie. Elsie “had no idea what to believe” and did not report Morgan’s
allegation to the police. She had picked up the phone to do so, but Morgan’s father asked her not
to. Elsie did not remember calling Morgan a liar or asking her to draw a picture of Davis’s penis.
Elsie had not told Mother about the accusation but assumed that it was “community knowledge
that [Morgan] raised a flag.”
7 On cross-examination, Elsie testified that she had drunk only one beer the night of
the sleepover, that she did not have access to Davis’s cell phone after his arrest, and that she did
not transfer money from his bank or retirement accounts.
Salmond, the head of the SANE program at Baylor Scott & White McClane
Children’s Medical Center, testified about Alice’s and Katherine’s SAFEs, which were performed
within thirty-six hours of the offense by Tanya Foster, a former SANE who had relocated out of
state and whose reports were admitted without objection. Salmond testified that Foster had
recorded the children’s statements in “real time word for word.” Both girls referred to the female
sexual organ as the “pee pee spot” and the male sexual organ as the “wiener.” Alice told Foster
that “wherever he was touching me was wrong and now I don’t feel okay.” She added that “he is
probably mad at me because I told my aunt what was going on and then I had to tell her.” Asked
who “he” was, Alice answered that “it starts with an L and L-O, something”; that she knew the
man from her aunt’s house; and that “he is probably my aunt’s boyfriend or husband.” Alice stated
that the man had touched her on the couch and at the kitchen table and had touched her vagina
both above and below her underwear. Because of Alice’s discomfort with the exam, Foster limited
her DNA swabbing to a single swab of Alice’s vulva.
Katherine told Foster that “Aunt Lu’s husband [] has been acting weird with me
and [Alice].” Gesturing to her vagina, Katherine explained that Davis had “been touching us right
here and stuff” and that “he rubbed up and down like six times but his hand stayed there the whole
time.” She told Foster that it “was gross and weird and it felt uncomfortable”; she was “never ever
going by him again.” Davis had only touched Katherine on the couch.
Patricia Rogers, a forensic scientist with the Department of Public Safety (DPS)
Crime Lab in Waco, testified that she conducted biological-evidence screening of a cutting from
8 Alice’s underwear and the swab of her vulva. Presumptive testing for the presence of semen was
negative for both. Although Rogers did not perform the DNA testing in this case, she testified that
the vulva swab and a swab of the underwear had both generated a single-source DNA profile
consistent with the victim. Rogers explained that neither single-source nor mixture results are
uncommon and that transfer DNA may not have been deposited because of washing or friction or
because not enough material was transferred.
Sharon Cheatum, a sexual assault nurse examiner (SANE), testified about Morgan’s
SAFE on December 17, 2020, when Morgan was fourteen years old. Cheatum saw no injury on
Morgan’s vagina but testified that touching “would not damage” the vagina. Morgan’s account of
what had happened was similar to her trial testimony. She had asked Davis to raise the swing set,
and he had asked for a hug in exchange. When she hugged him, he reclined his couch seat, held
her “with force,” and “started putting his hand in [her] pants and pushing his fingers inside of
[her].” Pointing to a diagram of a vagina, she explained, “in the middle like the hole.” Davis then
“pulled out his wee wee,” which touched “the lower part of [her] belly,” but she was able to push
him away and ran into her father’s room. When she disclosed the abuse, Davis denied having
touched her, and Elsie told her to draw a picture of “his pee pee.” When Morgan did so, Elsie
“said it didn’t look like [his] pee pee and then said that [Morgan] was lying.” Although that was
the only time that Davis touched Morgan’s vagina, he “always tried to grab [her] butt and boobs.”
Cheatum explained why she had not attempted to gather DNA evidence. Morgan’s
SAFE occurred around four years after the abuse she described, and a SANE will not attempt to
collect DNA after 120 hours because “DNA is no longer viable after that point.”
Wycoff, a forensic interviewer, first testified about the Child Advocacy Center
referral process and about forensic-interview procedure. Although she did not conduct Alice’s,
9 Katherine’s, or Morgan’s interviews, Wycoff next testified about her observations and conclusions
from having watched videos of their interviews. The interviewer followed “the accepted practice
or procedure for doing a forensic interview.” Both Alice and Katherine were talkative. Morgan
was much shyer and more reserved. All three children were fairly calm; Wycoff did not recall
“major crying.” Each girl made an outcry, and Wycoff did not see any indications of coaching or
dishonesty from them, though she was “not a hundred percent sure” that the interviewer asked the
coaching questions. A small portion of Alice’s interview video was admitted by the parties’
agreement. Alice answered “Uncle Luke” when asked for “the name of the boy who did
something wrong.”
Davis testified during his case-in-chief about his account of the sleepover as well
as why he believed the girls had accused him of sexual abuse. Alice and Katherine, who knew
him as Uncle Leo, had taken turns sitting next to him. He had touched the girls because they were
“bouncing around [him] all night” but did not “sexually touch them.” Throughout the night, he
drank six-to-eight beers, and Elsie drank a six-pack of beer. He was dozing and wanted to go to
bed, but Elsie wanted him to stay up to put on another movie after the first one ended, which he
testified she could not have done. When Alice went to color in the kitchen, he got up to move
around and drew a puppy for her. She yelled at Katherine, so he “bopped her on the leg with the
back of [his] hand to keep her focused on the picture.” Elsie had been staring at him from the
sunroom, and he supposed that it was the “bop” that caused her to run in and knock him off his
chair, causing him to hit his head. He did not really remember what happened after that. He denied
ever having touched a child for “sexual gratification.”
Davis had learned of Elsie’s STD in late August 2020. He thought she was
unfaithful and was using the girls’ allegations “as an excuse to cover herself for that, to save face
10 and get rid of [him].” It seemed to him that she had conspired with the children and “set all this
up” to get his money. She was a “master manipulator” and had influenced the children, convinced
them to lie, and planted memories in them. After his arrest, Elsie took his wallet, cell phone, and
computer. She sold $50,000 of his stock holdings and removed $2,000 from their joint checking
account and $6,000 from their joint savings account. He had to barricade his door when they lived
together following his arrest because she repeatedly tried to break into his room while he was
sleeping. Although Elsie’s brother Luke had not been present for the sleepover, and Davis did not
think he was involved, Davis did not know for sure.
On cross-examination, Davis agreed that he and Elsie had not had marital problems
when Morgan made her allegation. Asked whether he had accidentally touched Alice’s “female
sexual organ,” Davis answered, “As far as I remember, no, I did not.” He agreed when asked
whether that testimony was correct. However, when the State asked if he was saying that it was
possible, but he did not remember, Davis testified that it was “not possible,” that he had
“mis-spoke,” and that he “did not touch her in that manner.”
The jury found Davis guilty of indecency with a child by sexual contact. After a
punishment hearing, the trial court sentenced him to ten years’ confinement. This appeal followed.
DISCUSSION
I. Sufficiency of the Evidence
In his first issue, Davis contends that the evidence was legally and factually
insufficient to support the jury’s guilty finding. 5 Specifically, he argues that Elsie was not a
5 The Court of Criminal Appeals has held that there is no meaningful distinction between the legal- and factual-sufficiency standards in the criminal context and that the Jackson standard is the only standard a reviewing court should apply in evaluating evidentiary sufficiency. 11 credible witness, that Alice’s and Katherine’s accounts were possibly tainted by investigators’
leading questions and by Officer Huff’s failure to separate them during questioning, that Morgan’s
accusation lacked probative value because of its remoteness, and that there was “absolutely zero
DNA evidence” that he touched Alice. The State responds that the evidence was sufficient, that
the jury was responsible for making credibility determinations, and that DNA evidence was
not required.
Due process requires that the State prove, beyond a reasonable doubt, every element
of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State, 561 S.W.3d 174,
179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence to support a
conviction, we consider all the evidence in the light most favorable to the verdict to determine
whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We measure the
sufficiency of the evidence against the hypothetically correct jury charge. Garcia v. State,
667 S.W.3d 756, 762 (Tex. Crim. App. 2023).
In conducting our review, we evaluate all the evidence in the record, whether direct
or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense.
Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State,
493 S.W.3d 583, 599 (Tex. Crim. App. 2016). “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). We presume that
See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307 (1979)); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). 12 the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable
inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Our concern is whether the factfinder reached a
rational decision. Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan
v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal
“‘is restricted to guarding against the rare occurrence when a fact finder does not act rationally’”
(quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010))).
The trier of fact is the sole judge of the weight and credibility of the evidence.
Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); see Tex. Code Crim. Proc. art. 36.13
(explaining that “the jury is the exclusive judge of the facts”). Thus, when performing an
evidentiary-sufficiency review, we may not re-evaluate the weight and credibility of the evidence
and substitute our judgment for that of the factfinder. Arroyo, 559 S.W.3d at 487. When the record
supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in
favor of the verdict, and we defer to that resolution. Zuniga, 551 S.W.3d at 733; see Musacchio
v. United States, 577 U.S. 237, 243 (2016) (reaffirming that appellate sufficiency review “does not
intrude on the jury’s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. at 319)). We
must “‘determine whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the verdict.’”
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). The factfinder may rely on common sense and
apply observation and experience gained in ordinary affairs when drawing inferences from the
evidence. Acosta, 429 S.W.3d at 625.
13 As charged in this case, a person commits indecency with a child by sexual contact
if he touches the genitals of a child younger than seventeen years of age with the intent to arouse
or gratify the sexual desire of any person. See Tex. Penal Code § 21.11(a)(1), (c)(1); Gonzalez
v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.). “Touching a child
through her clothing is encompassed by the offense.” Gonzalez, 522 S.W.3d at 57; see Tex. Penal
Code § 21.11(c)(1). “[I]t is well established that ‘the requisite specific intent to arouse or gratify
the sexual desire of any person can be inferred from the defendant’s conduct, his remarks and all
surrounding circumstances.’” Corporon v. State, 586 S.W.3d 550, 562 (Tex. App.—Austin 2019,
no pet.) (quoting McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981)); see Moore
v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998) (“Mental states are almost always inferred from
acts and words.”). “Intent can be inferred from conduct alone, and no oral expression of intent or
visible evidence of sexual arousal is necessary.” Tienda v. State, 479 S.W.3d 863, 873 (Tex.
App.—Eastland 2015, no pet.). The uncorroborated testimony of a child-victim or outcry witness
alone is sufficient to support a conviction for indecency with a child. See Corporon, 586 S.W.3d
at 562; Gonzalez, 522 S.W.3d at 57.
The testimony of Alice, Katherine, and Elsie regarding the sleepover was detailed
and largely consistent and agreed with statements made by the two girls during their SAFEs and
forensic interviews. Alice and Katherine each testified that Davis rubbed her vagina in a manner
that made her deeply uncomfortable. The touching was surreptitious. Elsie testified that Davis
touched Alice beneath a blanket. And Alice told Foster that he “grabbed the blanket and hid with
my sissy” and that he would stop touching Alice when Elsie looked over at him. Although Alice
told the interviewer that “Uncle Luke” was the “boy who did something wrong,” she identified
Davis in open court as her abuser and stated during her SAFE—which was conducted the same
14 day that officers responded to the trailer—that the man who touched her was probably her aunt’s
boyfriend or husband and that his name “starts with an L and Lo something.” Davis testified that
the children knew him as Uncle Leo. The witnesses’ credibility and the weight to be given to
Alice’s and Katherine’s testimony and statements were matters for the jury to resolve. See Zuniga,
551 S.W.3d at 733; Arroyo, 559 S.W.3d at 487. It is not for this Court to act as a thirteenth juror
and reweigh the evidence. See Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993).
Alice’s and Katherine’s allegations were similar to that of Morgan, who testified
that Davis, while sitting on a couch, held her tightly and rubbed her vagina underneath her
underwear. The jury could have reasonably inferred that Morgan’s account did much to undermine
Davis’s defensive theory, as he testified that he and Elsie were not having marital problems at the
time of Morgan’s outcry. And far from suggesting that Elsie orchestrated the accusation, Morgan
testified that Elsie did not believe her and accused her of lying. We assume that the jury resolved
any contradictions or conflicts in the evidence in favor of its guilty verdict. See Musacchio,
577 U.S. at 243; Zuniga, 551 S.W.3d at 733.
The absence of DNA evidence was not dispositive of Davis’s innocence. See Pena
v. State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (recognizing that
Texas does not require DNA evidence to support criminal conviction). Moreover, the jury was
given an explanation for the absence at trial. Due to Alice’s discomfort with the SAFE, only one
swab was taken, so less evidence than usual was available for testing. Rogers testified that it was
not uncommon to obtain a single-source profile and that transfer DNA may not have been left
because of washing or friction. Alternatively, Davis simply may not have deposited enough DNA.
The negative results from the presumptive tests for the presence of semen were explained by the
fact that Alice alleged only that Davis had touched her vagina with his hand.
15 On this record and viewing the evidence in the light most favorable to the jury’s
verdict, we conclude that a rational juror could have found Davis guilty beyond a reasonable doubt.
See Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360. We overrule his first issue.
II. Admission of Wycoff’s and Salmond’s Testimony
In his second issue, Davis contends that the trial court abused its discretion by
admitting Wycoff’s and Salmond’s testimony. Davis argues that both witnesses lacked personal
knowledge, that their testimony was irrelevant, that they gave “improper expert testimony,” that
their “conclusions” were “drawn from inadmissible hearsay,” and that testimony about “red flags”
and coaching was inadmissible. The State responds that Davis failed to preserve error.
Alternatively, the State argues that the trial court did not abuse its discretion and that any error
was harmless.
To preserve a complaint for appellate review, there must ordinarily be a timely,
specific objection and a ruling by the trial court. Tex. R. App. P. 33.1(a). The objecting party
must “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly
enough for the judge to understand him at a time when the judge is in the proper position to do
something about it.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see Lankston
v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). “This gives the trial judge and the opposing
party an opportunity to correct the error.” Pena, 285 S.W.3d at 464 (citing Reyna v. State,
168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).
Salmond testified before Wycoff. Defense counsel did not object at any point
during Salmond’s testimony, including the admission of Alice’s and Katherine’s SAFE reports,
which were prepared by Foster. Counsel objected only once during Wycoff’s testimony:
16 DEFENSE COUNSEL: Judge I object as personal knowledge. I don’t believe Ms. Wycoff was the actual interviewer.
THE COURT: Response.
THE STATE: She has reviewed it Judge.
THE COURT: Any other response.
THE STATE: No, sir.
THE COURT: I will take this up at the bench, come on up.
After a brief bench conference, which was held off the record, the trial court
excused the jury and allowed the parties to confer:
THE COURT: We are still on the record, we are outside the presence of the jury. Do you want to take up anything further or you want to talk off the record with [the State] first[?] All right we will go off the record, I will let you guys talk. Let me know if you need me to get involved.
....
THE COURT: Back on the record in case 83246. I am about to bring the jury out. Are there objections outstanding[?]
DEFENSE COUNSEL: No, Judge, I believe everything has been cured. I withdraw my objection.
THE COURT: No rulings that are necessary at this time.
A withdrawn objection preserves nothing for appellate review. See Harrington
v. State, 547 S.W.2d 616, 620 (Tex. Crim. App. 1977) (“The objection having been withdrawn,
nothing is presented for review.”); Rodriquez v. State, 496 S.W.2d 46, 48 (Tex. Crim. App. 1973)
(“[A]ppellant caused to be deleted the portions of the affidavit that he complained about and then
stated that he had no objection. Hence, he withdrew his original objection and preserved no error
reviewable on appeal.”); see also Salazar v. State, 38 S.W.3d 141, 148 n.3 (Tex. Crim. App. 2001)
17 (“We . . . do not address that issue here, as any potential 606(b) objection was waived by both
parties when they withdrew their initial objections.”), abrogated on other grounds as recognized
by Nazar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021); Rotondo v. State, 860 S.W.2d 575,
578 (Tex. App.—El Paso 1993, no pet.) (concluding, where defense counsel withdrew his
objection, that objection was waived). What is more, even if counsel had not withdrawn his
objection, the issue would not have been preserved because counsel did not secure a ruling on his
objection. 6 See Ex parte Covarrubias, 665 S.W.3d 605, 611–12 (Tex. Crim. App. 2023) (“It is
axiomatic that an adverse ruling is necessary to preserve error.”).
Accordingly, we conclude that Davis failed to preserve any error regarding the
admission of Wycoff’s or Salmond’s testimony. See Tex. R. App. P. 33.1; Pena, 285 S.W.3d at
464. We overrule his second issue.
CONCLUSION
Having overruled both of Davis’s issues, we affirm the trial court’s judgment
of conviction.
__________________________________________ Rosa Lopez Theofanis, Justice
Before Justices Triana, Theofanis, and Crump
Affirmed
Filed: January 15, 2026
Do Not Publish
6 It is obvious from the trial court’s statement that no ruling was necessary that the court did not implicitly rule on the objection. See Tex. R. App. P. 33.1(a)(2)(A). 18