AFFIRMED and Opinion Filed July 8, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00105-CR
ROY LEE WELCH III, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-80550-2022
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Carlyle Opinion by Justice Reichek Following a jury trial, Roy Lee Welch III appeals his conviction for sexual
assault of child. In a single issue on appeal, he contends the evidence is legally
insufficient to support the conviction because the offense could not have occurred at
the time and place alleged. We affirm.
Background
Appellant was charged with five sexual offenses against complainant B.H.—
four counts of sexual assault of a child (Counts I, III, IV, and V) and one count of
indecency with a child by contact (Count II). Counts III and IV alleged appellant intentionally and knowingly caused B.H.’s anus to contact his sexual organ. The
indictment alleged Count III took place on or about November 1, 2017, and Count
IV took place on or about November 4, 2017. The jury found appellant guilty of
Count III and not guilty of the other four counts. The jury assessed punishment at
confinement for five years.
B.H., age 21 at the time of trial, testified that appellant is her second cousin
and is 12 years older than she is. Growing up, B.H. saw appellant at occasional
family functions, but when she was in high school he began spending more time with
her family. Appellant and his girlfriend Leslie, who later became his wife, had a
young daughter. When B.H. was 14, she started babysitting for them and did so
often throughout high school. Appellant became very important to B.H. She
admired him and confided in him. They had long conversations that included sexual
topics. Sometimes B.H. spent the night at appellant and Leslie’s apartment after
babysitting. B.H. did not drive, and at times appellant and Leslie came home very
late and/or drunk.
Appellant and Leslie lived in three different apartments during the time B.H.
babysat for them. B.H. turned 16 shortly after appellant’s family moved into the
third apartment, and the sexual abuse began there. Appellant started offering B.H.
alcohol, and occasionally cocaine, and alcohol was involved in most of the
occurrences of sexual abuse.
–2– B.H. testified about appellant’s various acts of sexual abuse. She stated the
first time she had anal sex with appellant was on “Halloween night of 2017,” when
she was age 16. That night she babysat while appellant and Leslie went to a
Halloween party. B.H. was not happy about babysitting on Halloween because she
wanted to be with her friends. B.H.’s friend Nicole came over and brought marijuana
brownies, which B.H. and Nicole ate. When appellant and Leslie came home at
about 2:30 a.m., B.H. was in their daughter’s bedroom, and Nicole was sick in
appellant’s bathroom. Leslie tended to Nicole. Nicole passed out on the couch, and
Leslie passed out in her bedroom. B.H. and appellant talked until the morning on
the dining room floor. Appellant told her he wanted to have anal sex with her. After
much discussion, B.H. agreed and they went into the daughter’s bathroom. Appellant
positioned B.H. on all fours facing the shower wall and pulled her pants down to her
knees. B.H. stated, “[H]e tried to stick his penis in my butt and it really hurt. He
couldn’t get it in so he like got lotion.” After appellant came back with the lotion,
he penetrated B.H.’s anus and ejaculated inside her. B.H. remembered the lotion
smelled like lavender and the bottle had a purple flower on it. B.H. also testified
about a second instance of anal sex that occurred later that day. Nicole left to go
work at the mall and Leslie left as well. When B.H. was trying to nap in appellant’s
bed, appellant came in and said he wanted to “do that again.” He positioned her on
all fours and penetrated her anus with his penis. B.H. testified she was at appellant’s
house until about 6 p.m. that day.
–3– A few days later, on the morning of November 4, 2017, appellant picked B.H.
up from a friend’s house and brought her to his house and had anal sex with her
again. B.H. estimated that in 2017 and 2018, appellant had anal sex with her 7 or 8
times. It was hard for her to remember each individual time, partly because she was
often drunk when it happened. The last incident of sexual assault occurred in
December 2018, when she was 17. After that, B.H. had an “epiphany” about
appellant’s behavior and told him she “couldn’t do this anymore.” In July of 2020,
B.H. reported appellant to the police.
On cross-examination, appellant’s counsel showed B.H. her school district’s
calendar for the 2017-2018 school year. November 1, 2017, fell on a Wednesday, a
school day. B.H.’s school records were admitted into evidence. They included an
attendance report that showed B.H. was not absent from school on November 1,
2017.
On re-direct, the prosecutor asked B.H. if she associated the first time
appellant had anal sex with her with Halloween. B.H. did because she remembered
that appellant and Leslie had gone to a Halloween party and came home in costumes.
Appellant dressed as “the Antichrist with a cross on his head,” and Leslie dressed as
a witch.
Leslie testified for the defense. She did not remember going out for
Halloween in 2017 and doubted that she did because it fell on a Tuesday. She did
not remember B.H. being at her apartment on Halloween or being there all day on
–4– November 1, 2017. Later she testified that appellant went through a phase where he
described himself as the Antichrist, and he dressed up as the Antichrist for
Halloween one year. She believed she dressed as a witch that year, and they may
have gone to a party. Leslie testified it was possible B.H. babysat while they went
to that party. Leslie remembered helping B.H.’s friend Nicole when she was sick
but said it was not on Halloween.
Appellant testified and denied having any sexual contact with B.H. He denied
that she ever spent the night after babysitting. He denied drinking alcohol with her
or giving her alcohol or cocaine. Appellant testified it was possible B.H. babysat for
him and Leslie the Halloween they dressed up as the Antichrist and a witch, but he
did not remember. Nicole had been to appellant’s apartment, but he said it was not
the night of that Halloween party.
Analysis
Appellant asserts no rational jury could have found him guilty of Count III,
while acquitting him of the other charges. B.H. testified about multiple acts of anal
sex, but because the jury found him not guilty of the November 4 offense alleged in
Count IV and B.H.’s testimony about the other times was too general, appellant
argues his conviction could be only for the November 1 instances. Because B.H.
testified the sexual assault alleged in Count III occurred on the day following
Halloween 2017, and “properly authenticated and unimpeached school records”
–5– showed B.H. was not absent from school on November 1, 2017, appellant contends
the jury’s verdict was not rational.
As charged in this case, a defendant commits sexual assault of a child if he
intentionally or knowingly causes the anus of a person younger than 17 years of age
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AFFIRMED and Opinion Filed July 8, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00105-CR
ROY LEE WELCH III, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-80550-2022
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Carlyle Opinion by Justice Reichek Following a jury trial, Roy Lee Welch III appeals his conviction for sexual
assault of child. In a single issue on appeal, he contends the evidence is legally
insufficient to support the conviction because the offense could not have occurred at
the time and place alleged. We affirm.
Background
Appellant was charged with five sexual offenses against complainant B.H.—
four counts of sexual assault of a child (Counts I, III, IV, and V) and one count of
indecency with a child by contact (Count II). Counts III and IV alleged appellant intentionally and knowingly caused B.H.’s anus to contact his sexual organ. The
indictment alleged Count III took place on or about November 1, 2017, and Count
IV took place on or about November 4, 2017. The jury found appellant guilty of
Count III and not guilty of the other four counts. The jury assessed punishment at
confinement for five years.
B.H., age 21 at the time of trial, testified that appellant is her second cousin
and is 12 years older than she is. Growing up, B.H. saw appellant at occasional
family functions, but when she was in high school he began spending more time with
her family. Appellant and his girlfriend Leslie, who later became his wife, had a
young daughter. When B.H. was 14, she started babysitting for them and did so
often throughout high school. Appellant became very important to B.H. She
admired him and confided in him. They had long conversations that included sexual
topics. Sometimes B.H. spent the night at appellant and Leslie’s apartment after
babysitting. B.H. did not drive, and at times appellant and Leslie came home very
late and/or drunk.
Appellant and Leslie lived in three different apartments during the time B.H.
babysat for them. B.H. turned 16 shortly after appellant’s family moved into the
third apartment, and the sexual abuse began there. Appellant started offering B.H.
alcohol, and occasionally cocaine, and alcohol was involved in most of the
occurrences of sexual abuse.
–2– B.H. testified about appellant’s various acts of sexual abuse. She stated the
first time she had anal sex with appellant was on “Halloween night of 2017,” when
she was age 16. That night she babysat while appellant and Leslie went to a
Halloween party. B.H. was not happy about babysitting on Halloween because she
wanted to be with her friends. B.H.’s friend Nicole came over and brought marijuana
brownies, which B.H. and Nicole ate. When appellant and Leslie came home at
about 2:30 a.m., B.H. was in their daughter’s bedroom, and Nicole was sick in
appellant’s bathroom. Leslie tended to Nicole. Nicole passed out on the couch, and
Leslie passed out in her bedroom. B.H. and appellant talked until the morning on
the dining room floor. Appellant told her he wanted to have anal sex with her. After
much discussion, B.H. agreed and they went into the daughter’s bathroom. Appellant
positioned B.H. on all fours facing the shower wall and pulled her pants down to her
knees. B.H. stated, “[H]e tried to stick his penis in my butt and it really hurt. He
couldn’t get it in so he like got lotion.” After appellant came back with the lotion,
he penetrated B.H.’s anus and ejaculated inside her. B.H. remembered the lotion
smelled like lavender and the bottle had a purple flower on it. B.H. also testified
about a second instance of anal sex that occurred later that day. Nicole left to go
work at the mall and Leslie left as well. When B.H. was trying to nap in appellant’s
bed, appellant came in and said he wanted to “do that again.” He positioned her on
all fours and penetrated her anus with his penis. B.H. testified she was at appellant’s
house until about 6 p.m. that day.
–3– A few days later, on the morning of November 4, 2017, appellant picked B.H.
up from a friend’s house and brought her to his house and had anal sex with her
again. B.H. estimated that in 2017 and 2018, appellant had anal sex with her 7 or 8
times. It was hard for her to remember each individual time, partly because she was
often drunk when it happened. The last incident of sexual assault occurred in
December 2018, when she was 17. After that, B.H. had an “epiphany” about
appellant’s behavior and told him she “couldn’t do this anymore.” In July of 2020,
B.H. reported appellant to the police.
On cross-examination, appellant’s counsel showed B.H. her school district’s
calendar for the 2017-2018 school year. November 1, 2017, fell on a Wednesday, a
school day. B.H.’s school records were admitted into evidence. They included an
attendance report that showed B.H. was not absent from school on November 1,
2017.
On re-direct, the prosecutor asked B.H. if she associated the first time
appellant had anal sex with her with Halloween. B.H. did because she remembered
that appellant and Leslie had gone to a Halloween party and came home in costumes.
Appellant dressed as “the Antichrist with a cross on his head,” and Leslie dressed as
a witch.
Leslie testified for the defense. She did not remember going out for
Halloween in 2017 and doubted that she did because it fell on a Tuesday. She did
not remember B.H. being at her apartment on Halloween or being there all day on
–4– November 1, 2017. Later she testified that appellant went through a phase where he
described himself as the Antichrist, and he dressed up as the Antichrist for
Halloween one year. She believed she dressed as a witch that year, and they may
have gone to a party. Leslie testified it was possible B.H. babysat while they went
to that party. Leslie remembered helping B.H.’s friend Nicole when she was sick
but said it was not on Halloween.
Appellant testified and denied having any sexual contact with B.H. He denied
that she ever spent the night after babysitting. He denied drinking alcohol with her
or giving her alcohol or cocaine. Appellant testified it was possible B.H. babysat for
him and Leslie the Halloween they dressed up as the Antichrist and a witch, but he
did not remember. Nicole had been to appellant’s apartment, but he said it was not
the night of that Halloween party.
Analysis
Appellant asserts no rational jury could have found him guilty of Count III,
while acquitting him of the other charges. B.H. testified about multiple acts of anal
sex, but because the jury found him not guilty of the November 4 offense alleged in
Count IV and B.H.’s testimony about the other times was too general, appellant
argues his conviction could be only for the November 1 instances. Because B.H.
testified the sexual assault alleged in Count III occurred on the day following
Halloween 2017, and “properly authenticated and unimpeached school records”
–5– showed B.H. was not absent from school on November 1, 2017, appellant contends
the jury’s verdict was not rational.
As charged in this case, a defendant commits sexual assault of a child if he
intentionally or knowingly causes the anus of a person younger than 17 years of age
to contact the defendant’s sexual organ. TEX. PENAL CODE ANN. § 22.011(a)(2)(D).
A child victim’s testimony alone can be sufficient to support a conviction for sexual
assault. TEX. CODE CRIM. PROC. ANN. art. 38.07.
In assessing the sufficiency of the evidence to support a criminal conviction,
we consider all the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences therefrom, a rational
factfinder could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Alfaro-Jimenez v. State, 577
S.W.3d 240, 243, 243–44 (Tex. Crim. App. 2019). The factfinder may choose to
believe all or any part of any witness’s testimony. See Sharp v. State, 707 S.W.2d
611, 614 (Tex. Crim. App. 1986). The Jackson standard gives full play to the
responsibility of the factfinder to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). Additionally, the
jury may use common sense, common knowledge, personal experience, and
observations from life when drawing inferences. Edwards v. State, 666 S.W.3d 571,
574 (Tex. Crim. App. 2023). “A court’s role on appeal is restricted to guarding
–6– against the rare occurrence when the factfinder does not act rationally.” Nisbett, 552
S.W.3d at 262.
The jury’s decision to find appellant guilty of sexual assault of a child as
alleged in Count III was not irrational. At trial in 2023, B.H. testified about a sexual
assault that occurred in 2017, when she was 16 years’ old. She associated the first
time appellant had anal sex with her with Halloween because she remembered
babysitting while appellant and Leslie went to a Halloween party in costumes. She
spent the night at their apartment and stayed until 6 p.m. the next day. Although
B.H. stated the assault occurred “on Halloween night,” and school records did not
indicate B.H. was absent on November 1, we presume the jury resolved any
evidentiary inconsistencies in favor of the verdict. The jury could have rationally
concluded the Halloween party B.H. remembered appellant going to was not on
Tuesday, October 31, 2017, but rather on a weekend night near Halloween, as is
often the case when Halloween falls on a weekday. The State was not required to
prove the exact date of the sexual assault. See Sledge v. State, 953 S.W.2d 253, 255–
56 (Tex. Crim. App. 1997). From B.H.’s testimony about the first time appellant
had anal sex with her, a rational factfinder could have found the essential elements
of sexual assault of a child beyond a reasonable doubt. We overrule appellant’s sole
issue.
–7– We affirm the trial court’s judgment.
/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE Do Not Publish. TEX. R. APP. P. 47.2(b). 230105F.U05
–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROY LEE WELCH III, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-23-00105-CR V. Trial Court Cause No. 416-80550- 2022. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Reichek. Justices Partida-Kipness and Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of July, 2024.
–9–