Court of Appeals Tenth Appellate District of Texas
10-23-00349-CR
Thomas Webb, Appellant
v.
The State of Texas, Appellee
On appeal from the 19th District Court of McLennan County, Texas Senior Judge Roy Sparkman, presiding Trial Court Cause No. 2018-1415-C1
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
A jury convicted Appellant Thomas Webb of the first-degree felony
offense of continuous sexual abuse of a young child. See TEX. PENAL CODE ANN.
§ 21.02(b). The jury assessed punishment at confinement for life, and the trial
court sentenced him accordingly. In three issues, Webb argues that (1) the
evidence is insufficient to support his conviction because there was a material
and fatal variance between the indictment and the evidence at trial, (2) the trial court abused its discretion in admitting an outcry statement, and (3) the
judgment should be revised to reflect the correct date of the offense. We will
modify the judgment and affirm as modified.
A. Background
T.C. 1 and K.C. are half-sisters with the same father and different
mothers. T.C. lived with her mother, her stepfather, and her siblings. At some
point, Webb, who is T.C.’s mother’s uncle, lived with T.C. and her family. On
occasion, K.C. would come to T.C.’s house to visit.
T.C., who was nineteen years old at the time of trial, testified that when
she was around nine years old, Webb came into her room and touched her
vagina over her clothes. She recalled that every other week from the time she
was nine years old until she was twelve years old, Webb would take her to the
store to buy her a toy and that he would touch her vagina over her clothes while
they were in his truck. T.C. described that when she was twelve years old, she
and K.C. were playing a game of hide-and-seek, and she hid in the closet. T.C.
said that Webb came into the closet and touched her vagina over her clothes.
T.C. later told her dad that Webb had touched her.
K.C. testified at trial that on one occasion when she was at T.C.’s house,
she and T.C. went into Webb’s bedroom. K.C. said that Webb pulled down his
1 T.C. and K.C. were both minors at the time of the offense. To protect their identities, we will use initials to refer to them.
Webb v. State Page 2 boxer shorts and exposed his penis to the girls. She also described that
another time when she went to visit T.C., she was in Webb’s room hiding under
his bed when she observed Webb throw T.C. onto his bed and get on top of her.
K.C. said that T.C. was yelling for Webb to get off of her. K.C. testified at trial
that Webb never touched her but that one time he offered to give her money if
she would let him touch her.
The father of T.C. and K.C. testified at trial that T.C. told him Webb had
touched both her and K.C. T.C. also told her father that Webb exposed himself
to both girls. T.C.’s father contacted the sheriff’s office and gave a statement.
McLennan County Sheriff Detective Rose Peterson was assigned to the case.
Detective Peterson testified at trial that she scheduled a forensic
interview for both T.C. and K.C. at the Children’s Advocacy Center. T.C. and
K.C. both made outcries of sexual abuse during their respective forensic
interviews. Detective Peterson then began interviewing other people involved
in the case. During her investigation, Detective Peterson learned that there
were other victims. Detective Peterson testified that she interviewed C.Y. 2
C.Y. told her that when he was twelve years old, he shared a bunk bed with
his sister, K.Y. He described a time when he was on the top bunk, and he saw
Webb on the bottom bunk with K.Y. According to C.Y., he saw Webb touching
2 Because C.Y. and K.Y. were minors at the time of the allegations, we will refer to him by initials to protect their identities.
Webb v. State Page 3 K.Y.’s vagina. Detective York testified that C.Y. said when Webb saw that he
was watching, he told C.Y. to take out his penis. Webb then performed oral
sex on C.Y.
K.Y. testified at trial that she is related to Webb by marriage. She said
that when she was around thirteen years old, Webb touched her vagina. K.Y.
testified that she lived with Webb when she was around fourteen years old.
During that time, she said that Webb regularly touched her vagina with his
mouth and had vaginal sex with her. K.Y. further testified that she saw Webb
perform oral sex on C.Y.
C.Y. also testified at trial and described the events that occurred in the
bunk beds with Webb. C.Y. said that he saw Webb put his mouth on K.Y.’s
private area. C.Y. described that Webb then undid C.Y.’s pants and performed
oral sex on C.Y.
B. Issue One
In his first issue, Webb argues that the evidence is insufficient to
support his conviction because there was a material and fatal variance between
the indictment and the evidence at trial.
1. Authority
The Court of Criminal Appeals has expressed our standard of review of
sufficiency issues as follows:
Webb v. State Page 4 When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 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. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury 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 unnecessarily
Webb v. State Page 5 restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018).
A variance occurs when there is a discrepancy between the allegations
in the charging instrument and the evidence presented at trial. Johnson v.
State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012). “In a variance situation,
the State has proven the defendant guilty of a crime but has proven its
commission in a manner that varies from the allegations in the charging
instrument.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).
In an evidentiary-sufficiency analysis, there are two types of variances:
material and immaterial variances. Thomas v. State, 444 S.W.3d 4, 9 (Tex.
Crim. App. 2014). A variance is material if it: (1) fails to adequately inform
the defendant of the charge against him or (2) subjects the defendant to the
risk of being prosecuted later for the same crime. Ramjattansingh v. State,
548 S.W.3d 540, 547 (Tex. Crim. App. 2018). “Only material variances will
affect the hypothetically correct jury charge” and render the evidence legally
insufficient. Hernandez v. State, 556 S.W.3d 308, 312 (Tex. Crim. App. 2017).
On the other hand, “[a]llegations giving rise to immaterial variances may be
Webb v. State Page 6 disregarded in the hypothetically correct [jury] charge.” Gollihar, 46 S.W.3d
at 257.
2. Discussion
The indictment used the pseudonyms Jane Doe and Sarah Doe to refer
to T.C. and K.C. During trial, T.C. and K.C. were both referred to by their
legal names. No pseudonyms were used at trial. Webb specifically argues that
the State offered no evidence at trial to establish which pseudonym applied to
which victim or if either pseudonym applied to either T.C. or K.C.
In Stevens v. State, the Court held that the fatal variance doctrine is not
applicable to pseudonym cases so long as the defendant’s due process right to
notice is satisfied. 891 S.W.2d 649, 651 (Tex. Crim. App. 1995) (en banc). Webb
argues, however, that Stevens is inapplicable because it was a case involving
only one victim and one pseudonym. He contends that unlike the appellant in
Stevens, his due process rights were not satisfied.
Stevens specifically stated that the “pseudonym is used to protect the
victim—not to deprive the defendant of notice.” Stevens, 891 S.W.2d at 651.
There is nothing to suggest that Stevens is not applicable to cases involving
more than one victim.
In Maldonado v. State, there were multiple victims referred to by initials
in the indictment. No. 13-08-00360-CR, 2010 WL 2473772 at *1 fn 2 (Tex.
App.—Corpus Christi–Edinburgh June 17, 2010, no pet.) (mem. op., not
Webb v. State Page 7 designated for publication). The appellant argued that he was denied due
process because there was a material and fatal variance between the
allegations in the indictment and the proof at trial. Id. at *4. The appellant
claimed that because the State used a pseudonym for each child, there was no
evidence that the children who testified at trial were the same persons named
in the indictment. Id. The court applied Stevens and noted that the fatal
variance doctrine is inapplicable to pseudonym cases so long as the defendant’s
due process right to notice is satisfied. Id. at *5. The court noted that the
appellant did not claim that he did not have actual notice of the identity of the
children named in the indictment or that he was not given proper notice of the
charges against him. Id. The court held that there was no material variance.
Id.
In Greeno v. State, the three victims were referred to by initials in the
indictment. 46 S.W.3d 409, 412 (Tex. App.—Houston [14th Dist.] 2001, no
pet.). The appellant argued that there was no proof at trial to establish the
victims who testified at trial were the same persons identified in the
indictment. Id. at 412–13. Again, the court noted that the fatal variance
doctrine is inapplicable to pseudonym cases so long as the defendant’s due
process right to notice is satisfied. Id. at 414. The court held because the
appellant was not surprised by the victim’s identity, his due process rights
were satisfied and there was no material variance. Id.
Webb v. State Page 8 We agree with the courts in Maldonado and Greeno and conclude that in
cases with more than one victim, the fatal variance doctrine is inapplicable to
pseudonym cases so long as the defendant’s due process right to notice is
satisfied. We must therefore determine whether Webb’s due process right to
notice was satisfied. See Stevens, 891 S.W.2d at 651.
Webb does not claim that he did not have notice of the identity of the
children named by pseudonym in the indictment or that he did not have notice
of the charges against him. See Maldanado, 2010 WL 2473772 at *5. Further,
he did not object at trial that he was unable to prepare his defense or that he
was confused about the victim’s identities due to the use of the pseudonyms.
Both victims were identified by their legal names on the State’s witness
list. In its Notice of Intent to Use Child Abuse Victim’s Hearsay Statement,
the State specifically informed Webb of “intent to offer hearsay statements of
the complainants, Jane Doe (T.C.) and Sarah Doe (K.C.), the victims of child
abuse.” In addition, at trial during opening statements, Webb’s counsel
informed the jury that they would hear from T.C. and K.C. and stated, “of
course their names are, you know Doe.” Therefore, any variance between the
indictment and the proof offered at trial was not material as it did not operate
to Webb’s surprise or deny him his due process right to notice. See Id. We
overrule the first issue.
Webb v. State Page 9 C. Issue Two
In his second issue, Webb argues that the trial court abused its discretion
by admitting the outcry statement of an extraneous victim of sexual abuse
against a child when the outcry was first made when the victim was an adult.
Article 38.072 of the Texas Code of Criminal Procedure provides that
some hearsay statements of a child are admissible in prosecuting certain
offenses. TEX. CODE CRIM. PROC. ANN. art. 38.072. The statute applies to
statements that describe the alleged offense and that (1) were made by the
child against whom the offense allegedly was committed, and (2) were made to
the first person, eighteen years of age or older, other than the defendant, to
whom the child made a statement about the offense. Id.
We review a trial court’s ruling regarding an outcry witness designation
for an abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.
App. 1990). We will not disturb the trial court’s decision “if the ruling was
within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360,
367 (Tex. Crim. App. 2008). We will uphold an evidentiary ruling on appeal if
it is correct on any theory of law that finds support in the record. Gonzalez v.
State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
Webb v. State Page 10 The State sought to admit evidence of extraneous sexual offenses or acts
committed by Webb. See TEX. CRIM. PROC. ANN. art. 38.37. The State called
Detective Peterson to testify as an outcry witness pursuant to article 38.072
for the statements C.Y. made to her concerning sexual abuse by Webb. C.Y.
was under the age of fourteen at the time of the sexual abuse, but he was
twenty-three years old when he made the statements to Detective York. The
trial court allowed Detective York to testify as an outcry witness.
Webb argues that C.Y.’s statement to Detective York was not admissible
as an outcry statement under article 38.072 because he made the statement
when he was an adult. The State acknowledges that this Court has not ruled
on whether an outcry statement is admissible when it relates to an incident of
sexual abuse when the victim was a child, but the child did not tell an adult
until after the child became an adult. However, our sister courts have held
that an outcry made after the child victim becomes an adult is not admissible
under article 38.072. Cordero v. State, 444 S.W.3d 812, 819 (Tex. App.—
Beaumont 2014, pet. ref’d); Harvey v. State, 123 S.W.3d 623, 629 (Tex. App.—
Texarkana 2003, pet. ref’d). Assuming without deciding that the trial court
erred in allowing Detective Henderson to testify as an outcry witness, we hold
that Webb was not harmed by any error.
The erroneous admission of hearsay testimony under the outcry statute
is non-constitutional error. Gibson v. State, 595 S.W.3d 321, 327 (Tex. App.—
Webb v. State Page 11 Austin 2020, no pet.); Rosales v. State, 548 S.W.3d 796, 808 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d). Non-constitutional error regarding the
admission of evidence is harmful, and thus requires reversal, only if the error
affects the defendant’s substantial rights. Gonzalez v. State, 544 S.W.3d 363,
373 (Tex. Crim. App. 2018); see TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103(a).
Error affects the defendant’s substantial rights when it has a substantial and
injurious effect or influence in determining the jury’s verdict. Gonzalez, 544
S.W.3d at 373. “If, [however,] we have a fair assurance from an examination
of the record as a whole that the error did not influence the jury, or had but a
slight effect, we will not overturn the conviction.” Id.
C.Y. testified at trial that Webb performed oral sex on him—the same
facts described by Detective York in her testimony concerning the outcry
statement. In addition, K.Y. also testified that she observed Webb perform
oral sex on C.Y. In cases involving the improper admission of outcry testimony,
the error is generally harmless when the victim testifies to the same or similar
statements that were improperly admitted or when other evidence setting
forth the same facts is admitted without objection. See, e.g., Allen v. State, 436
S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d); Zarco v. State, 210
S.W.3d 816, 833 (Tex. App.—Houston [14th Dist.] 2006, no pet.); West v. State,
121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, pet. ref'd); Duncan v. State,
95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Webb v. State Page 12 Moreover, the trial court instructed the jury that they could not consider
any testimony regarding Webb committing any offenses other than those
alleged against him in the indictment unless they found beyond a reasonable
doubt that Webb committed such other offenses. The trial court further
instructed that the jury could only consider any such offenses for its bearing
on relevant matters. We presume that the jury followed the trial court’s
instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
After an examination of the record as a whole, we conclude that any error
in allowing Detective Henderson’s testimony concerning C.Y.’s outcry
statement did not influence the jury’s verdict, or had but a slight effect, and
was thus harmless. See Gonzalez, 544 S.W.3d at 373. We overrule Webb’s
second issue.
D. Issue Three
In his third issue, Webb argues that the judgment states an incorrect
date of the offense. The judgment reflects the date of the offense as
“09/03/2003.” Webb notes that he was found guilty of committing continuous
sexual abuse of a young child “on or about the 1st day of October, 2013 through
the 1st day of September, 2016.” Webb asks this Court to modify the judgment
to reflect the date of the offense as 10/01/2013 through 09/01/2016. The State
concedes that the judgment should be modified as requested by Webb.
Webb v. State Page 13 We have authority to modify incorrect judgments when the necessary
information is available to do so. See TEX. R. APP. P. 43.2(b) (authorizing court
of appeals to modify trial court’s judgment and affirm it as modified); Bigley v.
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that rules of
appellate procedure empower courts of appeals to reform judgments).
Accordingly, we modify the trial court’s judgment to reflect the date of the
offense as “10/01/2013 through 09/03/2016.” We sustain Webb’s third issue.
E. Conclusion
Because we overruled Webb’s first and second issues and sustained his
third issue, we modify the judgment to reflect the date of the offense as
“10/01/2013 through 09/03/2016,” and we affirm the judgment as modified.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: August 28, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed as modified Do not publish CRPM
Webb v. State Page 14