In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-24-00158-CR ___________________________
MACK FEAGINS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 462nd District Court Denton County, Texas Trial Court No. F23-4474-462
Before Birdwell, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction
Appellant Mack Feagins appeals his conviction for continuous sexual abuse of
a young child for which he was sentenced to life in prison. In four issues, he argues
that his constitutional rights were violated because he was not allowed to present a
complete defense, that the evidence is insufficient to support his conviction, that the
trial court abused its discretion by denying him the opportunity to discuss an
alternative perpetrator, and that the trial court erred by denying his motion to
suppress. Because we hold against Appellant on each of his issues, we affirm.
II. Background
The complainant, who was nine years old at the time of the offense and
thirteen years old at the time of the trial, testified that while she was home sick from
school on October 30, 2020, she was left with her stepdad—Appellant1—and her
disabled maternal uncle Joshua 2 when her mother (Mother) went to pick up her
siblings from school. According to the complainant, Appellant came to her room,
said that he wanted to watch a movie, and locked the door. They did not, however,
watch a movie.
1 The complainant referred to him as her dad even though he was not her biological father. 2 The complainant did not mention Joshua’s being at the house, stating that he lived with her grandparents but that he visited regularly and sometimes spent the night; Joshua’s presence during the incident at the home came up during Mother’s testimony. He was still at the home when the police arrived.
2 Appellant took off the complainant’s pants and underwear; he then took off his
clothes and lay down next to her on the couch in her bedroom. Appellant put his
private part in the complainant’s private part, touched her butt, and put his private
part in her butt. The complainant said that it had hurt and that she had cried.
The complainant could not recall whether on this specific occasion Appellant
had licked her private part, but he had done that before on more than one occasion.
Also on more than one occasion Appellant had tried to make the complainant touch
his private part, but she had pulled away. The complainant testified that Appellant’s
sticking his private part into her private part had started when she was in the second
grade and had occurred more than fifteen times. The October 30, 2020 incident while
she was in fourth grade was the final time.
After Appellant left the complainant’s room, she texted her mother:
“[M]ommy, daddy’s raping me.” After the complainant’s mother saw the text, she
called her mother and stepfather (Grandmother and Grandfather), and they went to
the hospital with Mother, the complainant, and the complainant’s sister.3
3 The complainant later testified that only her sister, Mother, and Grandmother had gone to the hospital with her. On cross-examination when the complainant was specifically asked whether Grandfather and Grandmother had gone with her, she said only Grandmother.
3 The complainant also testified about seeing Appellant do something
inappropriate with her younger sister Lydia.4 The complainant said that she and Lydia
had been eating breakfast when Appellant told Lydia to go with him to the garage,
which was his man cave. They were gone for a long time, so the complainant went to
“spy on them” and saw that Lydia was crying. The complainant said that Lydia’s
bottoms were off, that Appellant’s bottoms were halfway off, that he was holding her
on top of him, and that he was touching her butt. The complainant approximated
that she was seven years old at that time and that Lydia was four or five years old.
On cross-examination, the defense asked whether the complainant often went
to her grandparents’ house after school, and she answered that she had gone every
day. The complainant said that she and her sisters spent the night at their
grandparents’ house once a month or every two months.
Mother testified that she was married to Appellant from 2014 to 2020; that he
is the father of two of her daughters—not the complainant or Lydia; and that she
divorced him after the October 2020 incident. Regarding the October 2020 incident,
Mother recalled receiving a text from the complainant, and Mother recounted how
the complainant had not ridden with her to pick up her siblings from school because
4 We use a pseudonym to protect the child’s identity. See Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982); cf. Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).
4 the complainant was sick. Mother said that Joshua and Appellant were at home with
the complainant. Mother rushed home when she saw the complainant’s text.
Mother testified that she had taken the complainant and Lydia to the hospital
and that Grandmother had met them there. 5 Mother explained that she had taken
Lydia because she said that something had also happened to her but had not given
any specifics. Mother said that the hospital had called the police and that the police
had come to the hospital. Both girls underwent sexual-assault examinations.
Lydia, who was eleven at the time of the trial, testified about the day that
Appellant had asked her to go into the garage with him. Appellant took his and
Lydia’s clothes off and put his private part in her private part. Lydia said that it had
hurt a lot.
The sexual-assault nurse examiner (the SANE) testified that she had performed
sexual-assault exams on the complainant and on Lydia. When the SANE asked what
had brought the complainant to the hospital, she replied that her stepdad “did this
today, around 3:00 today.” The complainant then provided more details, which the
SANE wrote in her report:
[Appellant] took my pants off and my panties. He put his thing -- clarified and says his boy part -- in my part, points to between legs[, which the SANE clarified was the vaginal area]. He only had a shirt and underwear on. He pulled down his underwear.
Mother was asked why her last name differed from Grandmother’s, and she 5
said that Grandmother had later married Grandfather, who happened to share Appellant’s last name. Other testimony revealed that Grandfather was Appellant’s uncle.
5 I have a little couch in my room, and it happened on there. He put his thing inside my private part. It hurt really bad, and I was crying. He kept trying to make me touch his thing, but I kept pulling away. She made a motion of how she pulled away. His hands were on my thigh and butt. His private part was long, brown, and curled at the end.
The other times were the same as far as what he did, but once was in the living room and once was in my sister’s room.[6] He told me today he wanted to watch a movie. He didn’t want to watch a movie at all. He locked the door and did that to me. He saw my mom out the window[,] and then he quit.
Sometimes he would try to put his tongue right there. Points to between legs.
Sometimes I would spy on him. He would go into [Lydia’s] room, and I would hear her crying. But I couldn’t see, just hear her cry. I started telling her what he did to me, and we decided to tell my mom.
Based on this history, the SANE had reason to believe that there was penetration of
the complainant’s vagina. The SANE swabbed the inside of the complainant’s
cheeks, vulva, and vagina.
The SANE testified that Lydia had given fewer details about what Appellant
had done to her—stating only that it had occurred in the garage and in other rooms,
that he had taken off her pants and underwear, that it was dark, and that she could
not see what he was doing—before shutting down and refusing to talk.
Several days after the incident, both Lydia and the complainant underwent
forensic interviews. The forensic interviewer testified that during the complainant’s
interview, she said that Appellant had sexually abused her more than one time, and
6 The hospital records noted that the complainant said that this “ha[d] been going on for a long time.”
6 she was able to articulate sensory details, such as how her body felt. The forensic
interviewer said that then eight-year-old Lydia was more reserved, which made it
difficult to gather details. But Lydia was able to articulate facts and circumstances that
gave rise to a sexual offense involving Appellant that had occurred in the garage. The
forensic interviewer said that she had no concerns that the children had been coached
regarding what to say during the interview.
Detective April McDonough with the Denton Police Department watched
from a one-way mirror while the forensic interviews were conducted. She said that
she had reviewed the SANE’s report and that the complainant’s version of the events
that was relayed to the SANE was consistent with what she had said during her
forensic interview and with what she had told Mother.
Detective McDonough testified that she had gone to the complainant’s home
and had spoken to Appellant and Joshua. Joshua consented to Detective
McDonough’s collecting his DNA via a buccal swab of the inside of his mouth.
Appellant denied the allegations.
Detective McDonough later obtained a search warrant and swabbed the inside
of Appellant’s cheek to obtain a sample of his DNA.
The State’s DNA expert testified that male DNA had been detected on the
complainant’s vaginal and vulval swabs and that semen had been detected on the
complainant’s underwear. As to the male DNA that was detected on the
complainant’s vaginal and vulval swabs, the expert said that Y-STR testing revealed
7 that Appellant could not be excluded as a contributor of the male DNA profile and
that any of his paternally related male relatives could not be excluded as the
contributor of that male DNA. The expert explained that the known sample from
Appellant had been compared to the epithelial cell fraction that was obtained from
the complainant’s underwear and that “[t]he probability of obtaining this mixture
profile if the DNA came from the victim[; Appellant;] and one . . . unknown
individual is 4.74 million times greater than the probability of obtaining this profile if
the DNA [was] from the victim and two . . . unknown individuals.” She further
explained that this likelihood ratio indicates support for the proposition that
Appellant is a possible contributor of the profile. The expert said that Joshua was
excluded as a contributor of the profile found on the complainant’s underwear and
that he was also excluded as a contributor to the male DNA profile that was found on
the complainant’s vaginal and vulval swabs. On cross-examination, the defense asked
the extent of the paternal lineage that would be included as possible contributors of
the profile, and the expert said that the paternal lineage would include a grandfather,
his sons, and any male sons the uncles or brothers had.
Detective McDonough testified that she decided to charge Appellant with
continuous sexual abuse of a child when “the DNA that came back matched his
DNA.” She later clarified that the DNA matched Appellant’s male lineage.
After hearing the above evidence, the jury found Appellant guilty of continuous
sexual abuse of a young child as alleged in the indictment. The punishment trial
8 commenced, and the jury assessed Appellant’s punishment at life in prison. The trial
court sentenced Appellant in accordance with the jury’s verdict. He then perfected
this appeal.
III. Constitutional Arguments Not Preserved
In his first issue, Appellant argues that the trial court prevented him from
presenting a complete defense in violation of his Fifth and Sixth Amendment rights.
Appellant implicitly acknowledges that this court could determine that his
constitutional arguments “somehow [were] not sufficiently preserved.” That is indeed
the conclusion that we reach.
A. Applicable Law
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion sufficiently stating the specific grounds, if
not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);
Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party
must have obtained an express or implicit adverse trial-court ruling or objected to the
trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216,
223 (Tex. Crim. App. 2020). While the right to present a complete defense is rooted
in constitutional protections, even constitutional rights may be forfeited if the proper
request, objection, or motion is not asserted in the trial court. See Saunders v. State,
No. 03-19-00191-CR, 2021 WL 1031343, at *4 (Tex. App.—Austin Mar. 18, 2021, no
pet.) (mem. op., not designated for publication).
9 B. What the Record Shows
During a hearing on Appellant’s motion in limine, it was brought to the trial
court’s attention that he wanted to discuss Grandfather’s prior criminal conviction
during opening statement. The State noted that Grandfather’s prior conviction for
aggravated sexual assault of a child was almost twenty years old, and the State
objected to the use of that conviction based on Rule 609 (due to the conviction’s
remoteness), Rule 403 (due to its prejudicial effect substantially outweighing any
probative value), and Rule 404 (due to the impropriety of offering character-
conformity evidence). Appellant responded that Grandfather had access to the
complainant and Lydia because they went to their grandparents’ house after school
and that he could therefore possibly have been the perpetrator. Appellant brought up
the fact that Grandfather may have gone with the children to the hospital on October
30, 2020, and might have made the children afraid to implicate him. Appellant,
however, never mentioned his Fifth and Sixth Amendment rights. The trial court
ruled that Appellant could ask the children about whether Grandfather was in the car
with them when they went to the hospital and whether he had said anything to them.7
7 To the extent that Appellant’s argument encompasses his attempt during punishment to question Grandmother about Grandfather’s prior criminal history— which he characterizes as a bill—an offer of proof must be made before the reading of the jury charge and was thus not timely. See Gladney v. State, No. 05-11-01088-CR, 2012 WL 5949473, at *3 (Tex. App.—Dallas Nov. 28, 2012, pet. ref’d) (mem. op., not designated for publication) (holding that appellant’s offer of proof regarding limited cross-examination during guilt–innocence was not made in a timely fashion when it
10 After the guilt–innocence trial started, Appellant approached the bench and
stated that he wanted to ask the detective if Grandfather had been a suspect. The trial
court agreed to that. Appellant then asked if he could question the detective about
Grandfather’s being a registered sex offender and whether the detective was
concerned that Grandfather had access to the complainant. As noted by the State and
as borne out by the record, Appellant never articulated a legal basis for the admission
of Grandfather’s criminal history; Appellant merely noted that the detective had
discussed who had access to the complainant. When the trial court ruled that
Appellant could ask only whether the detective had considered Grandfather as a
suspect, Appellant did not object to the ruling or mention his need for the evidence
on the basis that he presents on appeal—to present a complete defense. When
Appellant asked the detective whether she had any concerns about “anybody else
in . . . [M]other’s household or . . . [G]randmother’s household” other than Appellant,
the detective answered, “I did not.” Appellant did not call Grandfather to testify.
C. Analysis
The record demonstrates that Appellant did not object on the ground that his
constitutional right to present a complete defense was compromised by the exclusion
of the evidence of Grandfather’s remote conviction. Because Appellant did not
articulate that his right to present a complete defense required the admission of
was made at the end of the punishment phase of trial—well after the jury charge was read for the guilt–innocence phase).
11 Grandfather’s prior conviction, the trial court never had the opportunity to rule on
this rationale. See id. The record thus reflects that Appellant failed to satisfy the
preservation-of-error requirements concerning his constitutional complaint because
he did not raise a violation of his right to present a complete defense in any way to the
trial court. See id.; see also Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim. App.
2018) (explaining that to preserve argument that exclusion of defensive evidence
violates constitutional principles, defendant must state the grounds for the ruling
sought with sufficient specificity to make the trial court aware of the constitutional
grounds).
Accordingly, we hold that Appellant’s complaint—that the exclusion of
evidence regarding Grandfather’s prior aggravated-sexual-assault conviction violated
his constitutional right to prevent a complete defense—is not preserved for appellate
review. We therefore overrule Appellant’s first issue.
IV. Sufficient Evidence Supports Conviction
In his fourth issue, Appellant argues that the evidence is insufficient to support
a finding of guilt.8 Appellant bases his argument on the DNA evidence, claiming that
it “alone is enough for an acquittal,” and also contends that there would have been
“more reasonable doubt” had he been able to present “a full account and defense.”
8 We address Appellant’s fourth issue challenging the sufficiency of the evidence next because it could afford him an acquittal. See Prince v. State, No. 14-23-00786-CR, 2025 WL 899853, at *2 n.2 (Tex. App.—Houston [14th Dist.] Mar. 25, 2025, pet. filed) (mem. op., not designated for publication).
12 Appellant’s arguments ignore the standard of review that we are required to apply;
applying the correct standard of review leads to a conclusion that the evidence is
sufficient to support Appellant’s conviction.
A. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt.9 Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.
2021). We may not re-evaluate the evidence’s weight and credibility and substitute
our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Braughton v. State, 569
9 We note that Appellant argues that the State was tasked with proving the elements of the offense at trial and “failed to prove [them] beyond all reasonable doubt.” Appellant misquotes the standard, which is beyond a reasonable doubt, not beyond all reasonable doubt.
13 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a
‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at
608.
To determine whether the State has met its burden to prove a defendant’s guilt
beyond a reasonable doubt, we compare the crime’s elements as defined by a
hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,
622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568,
572 (Tex. Crim. App. 2018) (“The essential elements of an offense are determined by
state law.”). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or restrict the
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the
indictment means the statutory elements of the offense as modified by the charging
instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021);
see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads
a specific element of a penal offense that has statutory alternatives for that element,
the sufficiency of the evidence will be measured by the element that was actually
pleaded, and not any alternative statutory elements.”).
14 B. Applicable Law
A person commits the offense of continuous sexual abuse of a young child if
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is:
(A) a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense . . . .
Tex. Penal Code Ann. § 21.02(b).
The indictment alleged that Appellant, in Denton County,
during a period that was 30 days or more in duration, to-wit: from on or about the 3rd day of January, 2018, through on or about the 30th day of October, 2020, did then and there commit two or more acts of sexual abuse, namely, [a]ggravated [s]exual [a]ssault of [a] [c]hild against [the complainant], to-wit: intentionally or knowingly caus[ing] the penetration of the sexual organ of [the complainant] by [Appellant’s] sexual organ, and at the time of the commission of each of those acts, [Appellant] was at least 17 years of age, and [the complainant] was a child younger than 14 years of age, and not the spouse of [Appellant.]
A child complainant’s testimony, standing alone, can be sufficient proof of a
sexual offense. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1).
Here, Appellant makes general arguments that “it is clear [that] the evidence
establishes reasonable doubt” and that “the evidence presented was insufficient to
support a conviction by proof beyond a reasonable doubt.” He does not specifically
attack any of the elements of the offense. Instead, he claims that “[t]he DNA
15 evidence alone is enough for an acquittal” but provides no analysis to support that
statement.
Contrary to Appellant’s general contentions, the evidence presented at trial is
sufficient to support every element of the offense of continuous sexual abuse of a
child. The complainant testified that the first instance of sexual abuse that Appellant
perpetrated on her occurred when she was in second grade and that the sexual abuse
took place approximately fifteen times, and the evidence reflected that she was nine
years old and in the fourth grade at the time of the October 30, 2020 offense; this
evidence satisfies the duration element and demonstrates that the complainant was
younger than fourteen. Appellant never challenged his age, and Mother testified that
he was older than seventeen. Moreover, the complainant clearly and consistently
identified Appellant as the perpetrator, and the evidence does not show that she had
ever indicated that someone else had sexually abused her.
The complainant’s testimony, standing alone, is sufficient to prove that she was
continuously sexually abused by Appellant. See id. The jury was entitled to believe her
testimony about what had occurred on October 30, 2020, as well as her testimony that
Appellant had sexually assaulted her on multiple occasions beginning when she was in
the second grade. See Keith v. State, No. 02-24-00034-CR, 2024 WL 4899022, at *5 (Tex.
App.—Fort Worth Nov. 27, 2024, no pet.) (mem. op., not designated for publication).
Moreover, the DNA evidence that Appellant contends acquits him of the
offense does no such thing. Instead, it shows that he could not be ruled out as the
16 contributor of the male DNA on the vaginal and vulval swabs taken from the
complainant and that “[t]he probability of obtaining this mixture profile [from the
complainant’s underwear] if the DNA came from the victim[; Appellant;] and one . . .
unknown individual is 4.74 million times greater than the probability of obtaining this
profile if the DNA [was] from the victim and two . . . unknown individuals.”
Appellant was one of two males at the home at the time of the October 30, 2020
offense, and the other male—Joshua—was ruled out as a contributor when the DNA
evidence from the complainant was tested against his buccal swab.
We therefore overrule Appellant’s fourth issue.
V. Exclusion of Alternative-Perpetrator Evidence
In his second issue, Appellant argues that if this court holds that his
constitutional arguments in his first issue were not sufficiently preserved, then the trial
court’s evidentiary ruling was nonetheless erroneous.10 Specifically, Appellant
10 Within his first and second issues complaining about his inability to present a complete defense, Appellant contends that “[w]hether the nexus requirement [from Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002),] remains viable after Holmes [v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727 (2006),] is not settled.” Relying on Holmes, Appellant urges that only defensive evidence “that serve[s] no legitimate purpose or that [is] disproportionate to the ends that [it is] asserted to promote” can be excluded. Id. at 326, 126 S. Ct. at 1732. We disagree; this court has continued to apply the Wiley nexus requirement. See Ruiz v. State, No. 02-19-000016-CR, 2020 WL 1173712, at *2 (Tex. App.—Fort Worth Mar. 12, 2020, pet. ref’d) (mem. op., not designated for publication) (“Before a court may admit alternative-perpetrator evidence, the defendant must show that his proffered evidence—on its own or in combination with other evidence—suffices to link the alleged crime and the alleged alternative perpetrator.” (citing Wiley, 74 S.W.3d at 406)). Appellant alternatively argues that even if the nexus requirement continues to exist, he met that nexus. But
17 contends that “[t]he trial court’s exclusion of defensive evidence denied [him] a full
and complete defense of his life at trial” because he “was denied the opportunity to
tell the jury [that] they could believe in the [complainant’s] trauma but find the identity
of [the] person who [had] inflicted it misplaced.” Because the alternative-perpetrator
defense is not applicable to the facts here and, alternatively, because the trial court did
not prevent Appellant from questioning witnesses about Grandfather’s access to the
complainant, we conclude that the trial court did not abuse its discretion by excluding
Grandfather’s remote conviction.
We review a trial court’s ruling whether to admit or exclude evidence for an
abuse of discretion. Hart v. State, 688 S.W.3d 883, 891 (Tex. Crim. App. 2024). Under
that standard, the trial court’s decision to admit or exclude evidence will be upheld as
long as it was within the “zone of reasonable disagreement.” Id. (quoting Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). If the trial
court’s evidentiary ruling is correct on any applicable theory of law, we will not disturb
it. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
as detailed below, Appellant failed to demonstrate the requisite nexus between the charged crime and Grandfather as the “alternative perpetrator” where the complainant unequivocally and consistently identified solely Appellant as the perpetrator. See Rojas v. State, No. 08-23-00305-CR, 2024 WL 4689052, at *6 (Tex. App.—El Paso Nov. 5, 2024, no pet.) (mem. op., not designated for publication) (holding that appellant failed to demonstrate the requisite nexus between the charged crimes and the victim’s father as the “alleged perpetrator” simply because he was a registered sex offender).
18 B. Applicable Law
We borrow from the Beaumont Court of Appeals’s opinion in Rubino v. State,
which sets forth the law that applies when a defendant is denied the right to present a
meaningful defense and when the defendant seeks to raise an alternative-perpetrator
defense:
Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional right to present a meaningful defense. Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). “[T]he exclusion of a defendant’s evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.” Id. at 665; see Wiley . . . , 74 S.W.3d [at] 405 . . . . The Court of Criminal Appeals has held that
[a]lthough a defendant obviously has a right to attempt to establish his innocence by showing that someone else committed the crime, he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged “alternative perpetrator.”
Wiley, 74 S.W.3d at 406. It is not sufficient if a defendant merely offers up unsupported speculation that another person may have committed the crime. Martinez v. State, 212 S.W.3d 411, 424 (Tex. App.—Austin 2006, pet. ref’d). Such speculation intensifies the grave risk of confusing the jury, and it invites the jury to base its findings on emotion or prejudice. Id.
The alternative[-]perpetrator defense typically arises in cases in which the complaining witness is attacked by a stranger. Ex parte Huddlestun, 505 S.W.3d 646, 661 (Tex. App.—Texarkana 2016, pet. ref’d).
Rubino v. State, Nos. 09-15-00442-CR, 09-15-00443-CR, 2017 WL 1953275, at *3 (Tex.
App.—Beaumont May 10, 2017, no pet.) (mem. op., not designated for publication).
19 Rubino is also factually similar to the case at hand, as shown by its alternative-
perpetrator-defense analysis:
[The victim], who was sixteen years old at the time of trial, testified that Rubino was her stepfather and that he had sexually abused her. [The victim] testified that she was seven years old when Rubino sexually abused her for the first time. [The victim] explained that Rubino [had] touched her with his penis and his hands and that he had penetrated her both vaginally and anally with his penis. [The victim] testified that Rubino would often put his penis in her mouth, and Rubino made [the victim] rub his penis with her hand. [The victim] also testified that Rubino [had taken] pictures of her when she was naked. According to [the victim], the abuse occurred a few times a week from the age of seven until she turned twelve.
The record shows that [the victim] identified Rubino as the only person who had sexually assaulted her. [The victim] did not allege that she had been sexually assaulted by a stranger[] or that she was unsure of her attacker’s identity. Thus, based on the facts in this case, the alternative[-]perpetrator defense is not applicable. See . . . Huddlestun, 505 S.W.3d at 661.
Id.
Here, the complainant gave consistent statements to Mother, the SANE, and
the forensic interviewer regarding who the perpetrator was, and in each statement, she
identified Appellant. The complainant described the sexual abuse that Appellant had
perpetrated against her and testified that it had occurred from the time she was in the
second grade to fourth grade. Moreover, during the October 2020 incident, only
Appellant and Joshua were in the home with the complainant, and the DNA testing
excluded Joshua as a contributor to the male DNA profile that was found. As in
20 Rubino, the record demonstrates that the complainant identified Appellant as the only
person who had ever sexually assaulted her. Based on the facts presented, the
alternative-perpetrator defense is not applicable.
Even assuming the alternative-perpetrator defense does apply, the trial court, as
noted by the State, did not prohibit Appellant from advancing an alternative-
perpetrator defense; it solely prohibited him from using Grandfather’s criminal history
to support that defense. The record demonstrates that Appellant was allowed to
inquire about Grandfather’s access to the children, whether he was present at the
hospital, and whether he was included within the DNA test results (i.e., the DNA
testing did not exclude Appellant’s paternally related male relatives, such as
Grandfather). And during the defense’s closing argument, Appellant asserted, “It
could be the grandfather.” Appellant then pointed out that “[t]here’s family
interaction of [G]randmother, [G]randfather, . . . Joshua . . . , [and Appellant] with the
children. I ask you to take all of that into consideration when you’re examining and
giving thoughts to the DNA, how does that fit in?” Appellant later reiterated that the
“DNA evidence fits all [of Appellant’s] paternal line” and that “Grandfather and
[Grandmother] are in the picture and active in these children’s [lives].” Appellant thus
failed to demonstrate that the trial court abused its discretion by excluding
Grandfather’s remote conviction as part of Appellant’s alternative-perpetrator
evidence. See Rojas, 2024 WL 4689052, at *6 (holding that appellant failed to
21 demonstrate that the trial court abused its discretion by excluding the CPS evidence as
part of appellant’s alternative-perpetrator evidence).
We overrule Appellant’s second issue.
VI. Failure to Bring Forward a Record to Support Search-Warrant Challenge
In his third issue, Appellant argues that the trial court committed error when it
denied his motion to suppress DNA evidence that was obtained based on an allegedly
invalid search warrant. Appellant contends that “[a]ccording to the [m]otion to
[s]uppress, the search warrant stated [that he] could be found in Tarrant County” and
that “[t]his is problematic” because he was located in Denton County when the search
warrant was obtained. Appellant acknowledges that the search-warrant affidavit is not in
the record and argues that because the affidavit is not available, this court should reverse
the trial court’s motion-to-suppress decision. Appellant’s argument ignores that it was his
burden to bring forth a sufficient record to support his search-warrant challenge.
Just as in Ali v. State, a prior decision from this court,
[c]ritical to the resolution of this appeal are the burdens of proof that apply in a motion to suppress when the State has shown that a warrant is in existence. Simply,
“[o]nce the State shows that a valid search warrant is in existence at the time of the search[,] the burden of going forward is then on a defendant to prove that the affidavit is insufficient as a matter of law and to see that the search warrant and the affidavit are included in the record on appeal.” Ortega v. State, 464 S.W.2d 876, 877 (Tex. Crim. App. 1971); see Underwood v. State, 967 S.W.2d 925, 927–28
22 (Tex. App.—Beaumont 1998, pet. ref’d); [see also] Davidson v. State, 249 S.W.3d 709, 717–18 (Tex. App.—Austin 2008, pet. ref’d) (it is defendant’s burden to establish warrant’s invalidity).
Rudd v. State, No. 06-13-00034-CR, 2013 WL 5866057, at *6 (Tex. App.—Texarkana Oct. 28, 2013, no pet.) (mem. op., not designated for publication) (footnote omitted).
The State meets its burden to establish the existence of a warrant by exhibiting the warrant to the trial court, and if the appellant wishes to challenge the validity of the warrant, it falls on him to include the warrant in the record. As the First Court of Appeals has noted,
“When a defendant objects to the court[’s] admitting evidence on the ground that it was unlawfully seized and the State relies on a search warrant, in the absence of a waiver, reversible error will result unless the record reflects that the warrant was exhibited to the trial judge.” Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App. [Panel Op.] 1979); see Miller v. State, 736 S.W.2d 643, 648 (Tex. Crim. App. 1987)[ (op. on reh’g)] . . . (holding that once warrant and supporting affidavit are produced by State and exhibited to trial court, it is the responsibility of the defendant to see that the warrant and the supporting affidavit are in the record if they are to be reviewed on appeal). “[I]f defense counsel desires a review of the search warrant and affidavit on appeal, it is necessary for him to offer for the record on a bill of exception copies of the search warrant and of the affidavit.” Cannady, 582 S.W.2d at 469.
Boldon v. State, No. 01-12-00486-CR, 2013 WL 5637031, at *7 (Tex. App.—Houston [1st Dist.] Oct. 15, 2013, pet. ref’d) (mem. op., not designated for publication).
No. 02-21-00205-CR, 2022 WL 2353093, at *2 (Tex. App.—Fort Worth June 30,
2022, no pet.) (mem. op., not designated for publication).
23 B. What the Record Shows
The record reflects that the trial court took up the motion to suppress after
voir dire was completed. The trial court noted that it had received the search-warrant
affidavit and the search warrant. The trial court stated on the record that it had read
the motion to suppress and that it was denying the motion. The trial court further
stated that it found the search warrant to be lawful. None of the documents were
admitted during the hearing.
Here, Appellant challenges the wording of the search warrant because it
referenced a county in which he was not located, and he questions whether the
affidavit provided additional information to help locate him. But the record does not
include the search warrant or the affidavit, even though both were exhibited to the
trial court and the trial court concluded that the search warrant was lawful. After the
trial court stated that it had read the motion and had “looked at this [possibly the
search warrant and/or affidavit,]” the trial court asked, “Anything else anybody wants
to add or argue?” Appellant’s counsel responded, “I think the motion speaks for
itself, Your Honor.” He did not attempt to offer the search-warrant affidavit and the
search warrant into evidence.
Because Appellant has failed in his burden to bring forward a record that
enables us to review the trial court’s determination, we are left without any means to
determine whether the trial court was correct in its view that the search warrant was
24 lawful. See id. at *4; see also Moreno v. State, 858 S.W.2d 453, 461 (Tex. Crim. App.
1993) (stating that “the appellate record shows that the affidavit in question was not
made a part of the record” and that “[w]ithout the affidavit[,] we are not in a position
to review the merits of appellant’s complaints”); Washington v. State, Nos. 14-23-00723-
CR, 14-23-00724-CR, 14-23-00725-CR, 2025 WL 926468, at *4 (Tex. App.—Houston
[14th Dist.] Mar. 27, 2025, no pet.) (mem. op., not designated for publication) (stating
that appellant had the responsibility to ensure that the warrant and affidavit were
included in the appellate record and holding that because the affidavit did not appear
in the record, appellant had failed to preserve any alleged error for review).
Accordingly, we overrule Appellant’s third issue.
VII. Conclusion
Having overruled Appellant’s four issues, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: June 19, 2025