1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-17-00319-CR

NO. 09-17-00320-CR

__________________

JAMES RAY HAGGARD, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 75th District Court

Liberty County, Texas

Trial Cause No. CR30744 (Counts 1 and 2)

__________________________________________________________________

MEMORANDUM OPINION

A jury found James Ray Haggard (Haggard or Appellant) guilty of one count 

of sexual assault of a child and one count of indecency with a child by contact. See

Tex. Penal Code Ann. §§ 21.11, 22.011(a)(2) (West 2019).1 Haggard pleaded “true” 

 1 We cite current versions of the statutes because subsequent amendments do 

not affect our disposition.
2

to enhancement paragraphs in the indictment alleging prior felony convictions, and 

the trial court sentenced Haggard to twenty-five years of confinement in each count,

with the sentences to be served consecutively. Raising seven issues, Haggard 

appeals.

Background and Evidence at Trial

A grand jury indicted Haggard for the offenses of sexual assault of a child and 

indecency with a child, and the indictment alleged that on or about October 5, 2013, 

Haggard

COUNT I

. . . intentionally or knowingly cause[d] the sexual organ of [M.W.]2 to 

contact or penetrate the mouth of the defendant, without the consent of 

[M.W.], a child younger than 17 years of age and not the spouse of the 

defendant,

and/or

then and there, intentionally or knowingly cause[d] the sexual organ of 

[M.W.] to contact or penetrate the sexual organ of the defendant, 

without the consent of [M.W.], a child younger than 17 years of age and 

not the spouse of the defendant,

and/or

then and there, intentionally or knowingly cause[d] the penetration of 

the sexual organ of [M.W.] by defendant’s finger, without the consent 

of [M.W.], a child younger than 17 years of age and not the spouse of 

the defendant,

and/or

 2 We refer to the victim, family members, and some others with initials or 

aliases. See Tex. Const. art. I, § 30 (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”).
3

then and there, intentionally or knowingly cause[d] the penetration of 

the sexual organ of [M.W.] by defendant’s sexual organ, without the 

consent of [M.W.], a child younger than 17 years of age and not the 

spouse of the defendant[.]

COUNT II

. . . with the intent to arouse or gratify the sexual desire of said 

defendant, engage[d] in sexual contact with [M.W.] by touching the 

breast of [M.W.], a child younger than 17 years of age and not the 

spouse of the defendant,

and/or

then and there, with the intent to arouse or gratify the sexual desire of 

said defendant, engage[d] in sexual contact with [M.W.] by touching 

the genitals of [M.W.], a child younger than 17 years of age and not the 

spouse of the defendant,

and/or

then and there, with the intent to arouse or gratify the sexual desire of 

said defendant, cause[d] [M.W.], a child younger than 17 years of age 

and not the spouse of the defendant, to engage in sexual contact by 

causing the said [M.W.] to touch the genitals of the defendant,

and/or

then and there, with the intent to arouse or gratify the sexual desire of 

the defendant, cause[d] [M.W.], a child younger than 17 years of age 

and not the spouse of the defendant, to expose her genitals[.] 

M.W. testified thatshe referred to Haggard as “Uncle James,” that he is related 

to her but not her uncle. According to M.W., she was close with him and spent a lot 

of time at his house. M.W. testified that her family has been divided since October 

5, 2013, due to Haggard’s assault against her. M.W. testified that on October 5, 2013, 

when she was fifteen years old, she got in Haggard’s bed with him because she did 

not want to sleep on the floor, he showed her pornography, he asked her to take her 
4

clothes off, he caused her sexual organ to contact or penetrate his mouth, he

contacted or penetrated her sexual organ without her consent, he penetrated her sex 

organ with his finger, he caused her to contact his sex organ, he touched her breast 

with a part of his body, he touched her genitals with a part of his body, he caused 

her to touch his genitals, and he caused her to expose her genitals to him. M.W. 

testified that Haggard’s actions were done to make him sexually aroused. According 

to M.W., he stopped when he thought he heard someone approaching the bedroom 

and he told M.W. to put her clothes on. M.W. testified that she texted her friend that 

night and called her boyfriend that next morning and told them what had happened. 

The morning after the assault, while Haggard was at the doughnut shop, M.W. 

called her mother crying and asked her mother to pick her up. M.W. testified that 

about an hour later her aunt picked her and her sister up. M.W. testified that on the 

way home she and her aunt discussed what took place to some extent. According to 

M.W., at some point her father arrived at the house, but she only gave an account of 

what happened to her mother and her aunt. M.W. testified that her mother bagged 

up her clothes when she changed clothes. M.W. testified that on the following 

Monday she went to the hospital for a sexual assault exam and answered questions 

asked by the nurse performing the exam and completing a report. M.W. testified that 

she also recalled being interviewed at Bridgehaven on October 15, 2013.
5

T.W., M.W.’s mother, testified that Haggard is her cousin and that she has 

known Haggard her entire life. According to T.W., on October 5, 2013, her children 

had been “hanging out with [Haggard’s] kids” at Haggard’s house as they typically 

would. T.W. testified that she left around 8 p.m. and two of her children, A.W. and 

M.W., stayed the night at Haggard’s house. T.W. testified that around 8:30 a.m. the 

following morning she received a phone call from M.W. and she sounded distressed. 

After they spoke, T.W. “took a minute to kind of grasp . . . what [M.W.] had told 

[her,] and then T.W. called L.B., her brother’s ex-wife and one of her closest friends, 

to ride with her to pick M.W. up. T.W. testified that because M.W. kept calling 

distressed and asking her to hurry up, she had L.B. pick her up instead because L.B.

lived closer and L.B. could get there faster.

According to T.W., L.B. brought M.W. back to T.W.’s house and M.W. 

relayed to them what had happened at Haggard’s house. T.W. explained that she 

walked in and out of the room because she did not want to hear the details, and she 

“just heard bits and pieces of it[.]” T.W. testified that she believed M.W., T.W. was 

hurt and angry and that what she heard “changed everything[,]” and that Haggard 

was “like a brother to [her].” T.W. testified that that evening they left for her niece’s 

birthday party because plans had already been made and she did not know yet how 

to handle the news of the assault. Before they left for the party, M.W. showered and 
6

T.W. had M.W. put the clothes she had worn at Haggard’s house in a “zip lock bag[]”

because “[M.W.] had said that there was stuff on the clothing[.]” According to T.W., 

L.B. picked M.W. up from school the next morning and took her to the hospital 

because T.W. could not leave work then, but T.W. met them there later after she had 

arranged with her boss for her to leave work. Hospital personnel notified law 

enforcement and T.W. provided law enforcement with her written statement.

L.B. testified that she previously had been married to T.W’s brother, and after 

the divorce, L.B. remained friends with T.W. L.B. testified that she had known M.W. 

since M.W.’s birth, and that M.W. referred to her as her “aunt[.]” According to L.B., 

on October 6, 2013, she had a phone call conversation with M.W.’s mother and

initially L.B. was going to go and see M.W. once M.W.’s mother picked M.W. up 

from Haggard’s house, but the plans changed and L.B. picked M.W. up from 

Haggard’s house. L.B. explained that she had been to Haggard’s house “probably 

seven or eight times[]” before and that when she picked up M.W., M.W. stepped out 

on the porch as L.B. pulled up and then L.B. walked into Haggard’s house. L.B. 

testified that she was at Haggard’s house for approximately four or five minutes, she 

spoke to Haggard, and that his demeanor “seemed normal.”

According to L.B., she picked up M.W. and A.W and that on the way to 

M.W.’s house M.W. seemed quieter than usual. L.B. testified that M.W. recited the 
7

events of what had taken place at Haggard’s house several times to her and M.W.’s 

mother, and that although the basis of the account did not change, the account 

became more detailed. L.B. testified that she saw a mark on M.W.’s breast that was 

consistent with her having been assaulted. After several hours, L.B. left to allow 

M.W.’s parents to decide how to proceed. L.B. testified that M.W.’s mother was 

struggling with how to proceed because of the potentially “devastating” impact to 

the family and she was “really scared, really upset, really lost.” L.B. explained that 

at the time of the incident she worked in a sex offender rehabilitation program in the 

prison, that she called a rape crisis center to get information on what she should do 

because she felt like M.W. needed to go to a doctor and be examined, and that later 

that day she called T.W. and told her she was going to pick up M.W. and take her to 

the hospital, that M.W.’s mother was agreeable to that, and L.B. took M.W. to the 

hospital. According to L.B., M.W. was nervous and scared on the way to the hospital 

and that “[s]he cried quite a bit that day.” L.B. testified that she gave the clothes that 

M.W. had been wearing on the day of the assault in a plastic bag to hospital 

personnel. M.W.’s mother arrived at the hospital later.

Suzanne Devore, a sexual assault nurse examiner (SANE) employed by 

Memorial Hermann Hospital on October 7, 2013, testified that she performed a 

sexual assault exam on M.W. According to the SANE’s report, M.W. was brought 
8

in by her aunt, L.B., and that M.W. reported being sexually assaulted on October 5, 

2013. The SANE testified that, according to her report, M.W. stated the following 

to her just prior to the exam:

I was in my uncle’s, James Haggard, house on Saturday and he 

pulled me back to his bedroom. He’s my uncle, and I didn’t think he 

would do anything perverted.

He told me to take off my shirt. I told him I felt uncomfortable. 

He wasn’t forcing me, but he took my bottoms off and started playing 

with my boobs with his fingers and started licking them.

On my right boob I have a hickey. . . . 

. . . .

He went down on me, his mouth inside and outside my vagina, 

and then started doing the dirty deed, his penis inside my vagina[.]

He heard someone walking down the hall and said, “Hurry up 

and put on your clothes.” He kept saying [] I better not tell because he 

would lose his baby and if anyone found out he would go to jail. 

. . . .

He said, “You better not tell your mom.” I had an hour of sleep. 

I woke up, called my mom, and told her to come get me. She asked if 

he had tried to touch me; and I said yes, he did. 

My mom asked me because my sister who is six doesn’t want to 

go over there anymore, and my mom thinks my uncle’s boy who is 10 

touched me. 

After the sexual assault exam of M.W., the SANE noted in her report that 

there was no trauma to M.W.’s sexual organs, but that M.W. had a bruise on her 

right breast that the SANE believed was recent based on its coloring. The sexual 
9

assault exam report and photographs of M.W.’s bruise taken the day of the exam 

were admitted into evidence.

Detective Stephen Clappart, the chief investigator for the Harris County 

District Attorney’s Office, testified that he observed via closed circuit television the 

forensic interview of M.W. at Bridgehaven. Detective Clappart testified that he 

noted in his report that the account of events that M.W. gave to the SANE examiner 

was slightly different from what she gave to the Bridgehaven examiner in that she 

reported to one of the examiners that Haggard had pulled her into the bedroom but 

she did not report that to the other examiner. According to Detective Clappart, he 

obtained buccal swabs from Haggard. 

Jessica Lake, a forensic scientist at the Texas Department of Public Safety 

crime lab, testified that she performed serology testing on evidence she had received 

for the case. According to Lake, M.W.’s vaginal and anal swabs from the sexual 

assault kit tested negative for the presence of semen and sperm, and that panties, bra, 

a sports bra, and a shirt allegedly worn by M.W. on the day of the alleged sexual 

assault also tested negative for the presence of semen. Lake’s Forensic Biology 

Laboratory Report was admitted into evidence.

Andrea Smith, a forensic scientist with the Texas Department of Public Safety 

crime laboratory, testified that she works on the same team as Lake and completed 
10

DNA testing in the case. Smith testified that the DNA profile from the vaginal swab 

was consistent with M.W. Smith tested the swab of M.W.’s right breast and 

concluded that M.W. and Haggard could not be excluded as contributors to the 

profile. According to Smith, under DNA Minifiler testing of the swab of M.W.’s 

right breast, the DNA profile “is 339 billion times more likely if the DNA came from 

[M.W.] and James Haggard than if the DNA came from [M.W.] and one unrelated 

unknown individual.” Smith testified that using newer and more advanced testing 

with STRmix probabilistic genotyping software, the profile obtained from the swab

is “219 quadrillion times more likely if the DNA came from [M.W.] and James 

Haggard than if the DNA came from [M.W.] and one unrelated unknown 

individual.” Smith’s DNA Laboratory Report, Supplemental DNA Laboratory 

Report, and Minifiler Laboratory Report were admitted into evidence.

Testimony via Facebook Live3

In issue one, Haggard argues the trial court erred in permitting the SANE to 

testify, over Haggard’s objection, via “Facebook Live” and that he was harmed by 

 3 On appeal, Appellant refers to the live two-way video streaming capability 

as “Facebook Live[,]” but the trial record reflects that the application used for the 

SANE’s testimony was “FaceTime[,]” which is “an application that allows 

individuals to make video calls from telephones[,]” and “FaceTime may also be run 

from other electronic devices.” Perone v. State, No. 14-12-00969-CV, 2014 Tex. 

App. LEXIS 4078, at *6 (Tex. App.—Houston [14th Dist.] Apr. 15, 2014, no pet.) 

(mem. op., not designated for publication) (footnotes omitted).
11

such error. The central purpose of the Sixth Amendment’s Confrontation Clause is 

to ensure the reliability of the evidence against a criminal defendant by subjecting it 

to rigorous testing in an adversarial proceeding before the trier of fact. Maryland v. 

Craig, 497 U.S. 836, 845 (1990). Accordingly, “‘the Confrontation Clause reflects 

a preference for face-to-face confrontation at trial[.]’” Id. at 849 (emphasis in 

original) (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980). In the absence of an 

actual face-to-face confrontation, a defendant’s right to confront accusatory 

witnesses may be satisfied if (1) denial of such confrontation is necessary to further 

an important public policy and (2) the reliability of the testimony is otherwise 

assured. Id. at 850.

After voir dire but prior to the presentation of evidence, the State made an oral 

motion to allow the SANE, as an expert and a fact witness to the extent of what the 

sexual assault examination entailed and evidence she gathered incident to the 

examination, to testify via “Face Time.” The defense objected under the Sixth 

Amendment confrontation clause and the Fifth Amendment due process clause, and 

cited Maryland v. Craig, and U.S. v. Yates, 438 F.3d 1307 (11th Cir. 2006) in 

support. The trial court went over the FaceTime procedure on the record. The trial 

court confirmed that the SANE would be displayed “at least on the 60 or 65-inch TV 

that the jury can view[,]” defense counsel and the defendant could see the testimony,
12

the jury would have view of the SANE’s face at all times during her testimony, the 

SANE could see the person asking questions, and that the SANE would be given 

instructions to “stay[] in front of the camera system . . . which is whatever her device 

is[.]” 

Prior to the trial court overruling the objection, the trial court, State’s counsel, 

and Haggard’s counsel engaged in the following discussion:

THE COURT: Well, I think [Maryland v. Craig] was a situation where 

they put the witness behind a screen and asked questions of the witness. 

We’re not talking -- I mean that way the jury would be deprived 

of viewing the witness’ demeanor or expressions and other indicia of 

the reliability or lack of reliability that a face to face confrontation 

would otherwise supply.

It’s the court’s understanding that the Sixth Amendment 

confrontation clause is designed to ensure the reliability of the evidence 

that’s actually received, and the reliability of that evidence has to be 

testified through rigorous cross examination.

It’s the court’s opinion that anything that would have the chilling 

effect on the right of cross examination would by its very nature be 

suspect but --

. . . .

[Defense Counsel]: That case, Maryland versus Craig came up with the 

Craig ruling; and then you have Yates in 2006. The reason in Yates, the 

Australian witnesses could not testify in Alabama is they were 

unwilling to travel.

The government asserted that the important public policy reasons 

for allowing them to testify utilizing two-way video conference for 

providing the fact-finder with crucial evidence expeditiously and justly 

resolving the case in ensuring that foreign witnesses can so testify.
13

The 11th Circuit held that these concerns were not the type of 

public policies that are important enough to outweigh the defendant’s 

rights to confront their accusers face to face.

My understanding of the Maryland versus Craig, what came out 

of that, Judge, was that -- let’s see.

THE COURT: Counsel, I don’t mean to interrupt; but I think what’s 

crucial to a determination of the state’s request is the function that this

witness is going to provide in the case.

Now, if we’re talking about a witness that is a fact witness to the 

point that that witness will be called upon to make an identification of 

the defendant as the alleged perpetrator cross examination face to face 

I think is crucial; but here we’re talking about an expert witness that is 

not going to be called upon to make any in-court identification or is not 

going to be called upon to testify to any of the factual allegations 

contained in the indictment.

[Defense Counsel]: Judge, I don’t think the Supreme Court 

differentiates between a state’s witness. They have the power to 

subpoena a witness or have them come. 

She has chosen not to come. There is no public policy that 

alleviates what -- I believe even the 9th Circuit says they should be able 

to have confrontation face to face. In doing so you will set a precedent 

not only in this court but all over, Judge.

The only time I have seen them allow someone not to be present 

is because of some type of medical issue or maybe they are out of 

Country or something to that or in the military or something to that 

effect, but just because they don’t want to come --

THE COURT: I agree with you, counsel; but those were witnesses as 

to the operative facts of the case. They were not a witness situated such 

as this witness and that is as an expert witness.

Now, who is this witness associated with at the time? A hospital?

[Prosecutor]: Yes, sir. I believe it was part of the Hermann Hospital 

group.
14

THE COURT: [T]here is a procedure available to secure the presence 

of out of state witnesses.

Now, you represented to the court that at all times this witness 

indicated her willingness to accept reimbursement of compensation for 

travel expenses and would actually appear in person; is that true?

[Prosecutor]: That is true. I have [someone] that has been in direct 

contact with her that can testify to that.

THE COURT: When did this change?

[Prosecutor]: Friday.

THE COURT: Friday being --

[Prosecutor]: Three days ago.

THE COURT: The 11th, and today is August 14th. Obviously[,] you 

don’t have time to secure an order from the appropriate court in 

Montana to direct the witness to do anything.

[Prosecutor]: Judge, it was 2:00 o’clock in the afternoon, between 1:00 

and 2:00 when we even found out about it, Judge.

THE COURT: Well, the best authority in Texas is [Stevens v. State, 234 

S.W.3d 748 (Tex. App.—Fort Worth 2007, no pet.).] [I]t found that the 

decision of the court to allow or not to allow should be examined on an 

abuse of discretion standard.

This again constituted a fact witness that appeared by Skype or 

some other device similar to what is being proposed here. It went on to 

note the salutary effects of face to face confrontation include the giving 

of testimony under oath.

I’m assured this will occur in this particular case. We won’t allow 

any testimony not to be under oath by a person authorized to administer 

oaths. [Also], [t]he opportunity for cross examination.

The court concludes the manner in which it’s being proposed will 

not have a chilling effect on the right of cross examination, the ability 

of the fact-finder to observe demeanor evidence -- and you assure me 
15

that the witness will be instructed to stay in front of a TV that will be 

broadcast on a 60 to 65-inch TV for the jury’s consideration -- the 

reduced risk that a witness will wrongfully implicate an innocent 

defendant when testifying in his presence.

That is not an element in this case because this witness is an 

expert witness and will be testifying only to perhaps her training and 

then what she did incident to her sexual assault examination, right?

[Prosecutor]: That’s correct.

. . . . 

[Prosecutor]: She collected the SANE kit and submitted the SANE kit 

to the sheriff’s department to put in the chain of custody to send it to 

the DPS lab along with everything else.

. . . .

[Defense Counsel]: Again, Judge, my belief is that this can only happen 

with exceptional circumstances that outweigh or public policy that 

outweighs my client’s constitutional rights to confront the witness face 

to face here in the courtroom.

THE COURT: [I]f this is anything other than an expert witness I think 

I would have to agree with you. I think the Texas cases also recognize 

that exceptional circumstances must exist to allow.

. . . .

THE COURT: . . . . If [Defense counsel] wants to recall her in his case 

in chief, then he cannot be deprived of that opportunity. . . . 

. . . . 

THE COURT: . . . . Assuming that the manner in which this testimony 

will be presented is exactly as represented to the court, that counsel will 

have a full opportunity to observe the witness, the witness will be able 

to see the questioner be it the state or the defense counsel, that the 
16

witness will at all times be in full view for the jury’s consideration as 

to demeanor, etc., and that the witness has no personal knowledge of 

any facts as alleged in the indictment and only testify as an expert 

witness as far as being a SANE examiner and what she did incident to 

that examination in identifying anything that she retrieved from the 

examination, the court is going to allow the testimony in that manner. 

Haggard objected again when the State called the SANE to testify, arguing it 

violated due process as contained in the Sixth Amendment right to confrontation,

and the trial court overruled the objection. The trial court further noted that crossexamination would be available, the witness was in full view, and that that witness 

was an expert witness and not a fact witness for identification purposes. The SANE 

testified that she chose to not appear at trial, had no medical issue preventing her 

from appearing at the trial, and she was not subpoenaed. According to the SANE, 

she is a consultant for hospitals and attorneys, and she chose not to attend the trial 

for personal and economic reasons because she had travelled to Houston the prior 

week to testify in another trial and had to travel back to Houston soon to be with a 

family member in hospice care. The SANE explained that she had agreed to appear 

and testify and the State did not subpoena her, but the Friday before the trial she 

changed her mind. 

On appeal, Haggard contends that as to the SANE’s testimony via live 

videoconference “there was no important public interest for her to do so, nor was the 

reliability of her testimony assured to override Appellant’s right to confront her[,]” 
17

and that the testimony contributed to Haggard’s convictions. According to Haggard, 

(1) the SANE’s failure to appear was voluntary and the State did not issue a 

subpoena, (2) the SANE was given an oath in Montana by a notary public and not 

by the clerk of the court or judge in Liberty County, (3) the record does not reflect 

that Haggard was moved so that the SANE could see him or that the trial court 

instructed the SANE be able to see Haggard, and (4) the jury’s ability to observe the 

SANE’s demeanor was impaired when the live videoconference connection was lost 

momentarily as the SANE recited what M.W. had reported to her.

Even assuming without deciding that the trial court abused its discretion in 

allowing the SANE’s testimony, the violation of the Sixth Amendment right of 

confrontation constitutes constitutional error that is subject to a harmless error 

analysis. Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (citing 

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

When assessing harm under a Confrontation Clause issue, we apply a threepronged test. Id. at 547. First, we assume that the damaging potential of the crossexamination was fully realized. Id. Second, with that assumption in mind, we review 

the error by considering the following factors: the importance of the witness’s 

testimony in the State’s case, whether the testimony was cumulative, the presence 

or absence of evidence corroborating or contradicting material points of the 
18

witness’s testimony, the extent cross-examination was otherwise permitted, and the 

overall strength of the State’s case. Id. Third, we determine whether the error was 

harmless beyond a reasonable doubt. Id.

The SANE was an expert witness who testified about what M.W. reported to 

her, the findings from her examination of M.W., and the chain of custody regarding 

evidence the SANE obtained. After reviewing the entire record, we conclude that 

much of the SANE’s testimony was cumulative of M.W.’s testimony, and the SANE 

was not a crucial identification or fact witness. The record demonstrates that the trial 

court permitted Haggard to fully cross-examine the SANE. There was evidence 

introduced from M.W., L.B., and T.W., as well as from the forensic witnesses that 

corroborated the material points of the SANE’s testimony, and the State’s case was 

not dependent upon the SANE’s testimony. 

M.W.’s testimony alone is sufficient to support Haggard’s convictions. See

Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West Supp. 2018); Garcia v. State, 563 

S.W.2d 925, 928 (Tex. Crim. App. 1978) (sexual assault of a child); Jones v. State, 

428 S.W.3d 163, 169-70 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (indecency 

with a child). M.W. testified that on October 5, 2013, when she was fifteen years 

old, she got in Haggard’s bed with him because she did not want to sleep on the 

floor, he showed her pornography, he asked her to take her clothes off, he caused 
19

her sexual organ to contact or penetrate his mouth, he contacted or penetrated her 

sexual organ without her consent, he penetrated her sex organ with his finger, he 

caused her to contact his sex organ, he touched her breast with a part of his body, he 

touched her genital with a part of his body, he caused her to touch his genitals, and 

he caused her to expose her genitals to him. M.W. testified that Haggard’s actions 

were done to make him sexually aroused. Also, the jury heard the testimony of a 

forensic scientist that the profile obtained from the swab from M.W.’s breast is “219 

quadrillion times more likely if the DNA came from [M.W.] and James Haggard 

than if the DNA came from [M.W.] and one unrelated unknown individual.” 

Because our review of the record shows that the properly admitted evidence 

overwhelmingly established Haggard’s guilt, we conclude, beyond a reasonable 

doubt, that the admission of the SANE’s testimony via live videoconferencing did 

not contribute to Haggard’s convictions. We overrule issue one.

“T’s” Presence During M.W.’s Testimony

In issue two, Haggard argues that the trial court erred in allowing “T” to stand 

behind nineteen-year-old M.W. during her testimony. According to Haggard, M.W. 

was an adult at the time of trial and the trial court made no findings pursuant to 

article 38.074 of the Texas Code of Criminal Procedure. Prior to M.W.’s testimony, 

the following exchange occurred outside of the jury’s presence:
20

[Prosecutor]: Judge, pursuant to the code [M.W.]’s requesting that she 

be allowed a support person to stand in the courtroom with her. She 

was a child victim. 

Although she’s an adult now she would like to have T[] stand 

behind her.

THE COURT: It will be permitted. All right. We’re going to bring the 

jury in. If you will just stand where you are. In a moment I will ask 

your name and swear you in.

Section 3(b) of article 38.074, titled “Testimony of Child in Prosecution of 

Offense[,]” provides that 

“[o]n the motion of any party . . ., the court shall allow the child to have 

a toy, blanket, or similar comforting item in the child’s possession while 

testifying or allow a support person to be present in close proximity to 

the child during the child’s testimony if the court finds by a 

preponderance of the evidence that: (1) the child cannot reliably testify 

without the possession of the item or presence of the support person, as

applicable; and (2) granting the motion is not likely to prejudice the 

trier of fact in evaluating the child’s testimony.” 

Tex. Code Crim. Proc. Ann. art. 38.074, § 3(b) (West Supp. 2018). Section 

1(2) provides that a “‘[s]upport person’ means any person whose presence would 

contribute to the welfare and well-being of a child.” Id. § 1(2). Section 1(1) states 

that in Article 38.074 “child” has the meaning assigned by section 22.011(c) of the 

Penal Code, which defines “child” as “a person younger than 17 years of age.” Id. 

§ 1(1); Tex. Penal Code Ann. 22.011(c)(1). Section 3(d) provides that the “court 

may set any other conditions and limitations on the taking of the testimony of a child 

that it finds just and appropriate, considering the interests of the child, the rights of 
21

the defendant, and any other relevant factors.” Tex. Code Crim. Proc. Ann. art. 

38.074, § 3(d). “A support person who is present during a child’s testimony may not: 

(1) obscure the child from the view of the defendant or the trier of fact; (2) provide 

the child with an answer to any question asked of the child; or (3) assist or influence 

the testimony of the child.” Id. § 3(c).

Haggard’s counsel did not object to “T’s” presence nor did Haggard’s counsel 

request findings pursuant to article 38.074, section 3(b). Accordingly, his complaint 

about “T’s” presence during M.W.’s testimony is not preserved for appellate review. 

See Tex. R. App. P. 33.1(a) (preserving error for appellate review requires the 

complaining party to show that he presented his complaint to the trial court in a 

timely request, objection, or motion and that the trial court ruled on the request). We 

overrule issue two.

Ineffective Assistance of Trial Counsel

In issue three, Haggard claims his trial counsel was ineffective for not 

objecting to opinion testimony as to M.W.’s credibility and in not objecting to “T’s” 

presence behind M.W. during her testimony. Haggard argues these errors deprived 

him of a fair trial.

A defendant has a Sixth Amendment right to the effective assistance of 

counsel at trial. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 
22

685-86 (1984). To establish that he received ineffective assistance of counsel, 

Haggard must demonstrate that (1) counsel’s performance fell below an objective 

standard of reasonableness, and (2) there is a reasonable probability that, but for 

counsel’s errors, the result of the proceeding would have been different. See 

Strickland, 466 U.S. at 687-88, 694. The party alleging ineffective assistance has the 

burden to develop facts and details necessary to support the claim. See Jackson v. 

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffectiveassistance claim must overcome the “strong presumption that counsel’s conduct fell 

within the wide range of reasonable professional assistance.” See Thompson v. State, 

9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An 

appellant’s failure to make either of the required showings of deficient performance 

or sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State, 

101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 

675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the 

Strickland test negates a court’s need to consider the other prong.”).

The right to effective assistance of counsel ensures the right to “reasonably 

effective assistance[,]” and it does not require that counsel must be perfect or that 

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. 

Crim. App. 1984). The appropriate context is the totality of the representation; 
23

counsel is not to be judged on isolated portions of his representation. See Thompson, 

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated 

failures to object to improper evidence or argument ordinarily do not constitute 

ineffective assistance of counsel. See Ingham, 679 S.W.2d at 509; Ewing v. State, 

549 S.W.2d 392, 395 (Tex. Crim. App. 1977). To meet his burden regarding his 

claim that his counsel was ineffective for failing to object to evidence, Appellant 

must also establish that the trial court would have committed error in overruling such 

objection had an objection been made. See Vaughn v. State, 931 S.W.2d 564, 566 

(Tex. Crim. App. 1996).

Ordinarily, on direct appeal, the record will not have been sufficiently 

developed during the trial to demonstrate in the appeal that trial counsel provided 

ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d 

591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel’s actions as 

ineffective, counsel should normally be given an opportunity to explain the 

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005). When counsel has not been given an opportunity to explain the challenged 

actions, we will only find deficient performance if the conduct was “‘so outrageous 

that no competent attorney would have engaged in it.’” Id. (internal citations 

omitted).
24

Haggard asserts that trial counsel was deficient in failing to object to the 

State’s questioning of T.W. regarding whether she believed what M.W. told her 

about the incident. According to Haggard, there is no objectively reasonable reason 

for not objecting to the question as the testimony decides a critical issue for the jury, 

the credibility and truthfulness of the complainant, and that the trial court would 

have erred if it had overruled the objection had counsel objected. Haggard also 

argues that an objectively reasonable trial attorney would have objected to M.W. 

having a support person (“T”) present during M.W.’s testimony because section 

38.074 of the Texas Code of Criminal Procedure does not permit a person testifying 

at age nineteen to have a support person present during her testimony. As to both 

instances, Haggard argues that the jury used the evidence as proof of Haggard’s guilt 

or to find M.W.’s testimony more credible, and therefore, there is a reasonable 

probability that, but for these deficiencies, the result of the trial would have been 

different.

As to trial counsel’s failure to object to the State’s questioning of T.W. 

regarding whether she believed M.W.’s account of the incident, counsel’s trial 

strategy could have been to permit the State to predicate its case on M.W.’s 

credibility and then undermine M.W.’s credibility by cross-examining M.W., T.W., 

and L.B. regarding the details given by M.W. in her accounts of the incident. The 
25

record before us does not support Haggard’s contention that no reasonable trial 

strategy could have existed for his counsel’s failure to object to the questioning of 

T.W. regarding whether she believed M.W. Based on the record before us, Haggard 

has failed to overcome the “strong presumption” that his trial counsel provided 

reasonably professional assistance by not objecting to this question by the State. See

Thompson, 9 S.W.3d at 813 (citing Strickland, 466 U.S. at 689). Furthermore, 

Haggard has failed to show that there is a reasonable probability that, but for 

counsel’s failure to object to the State’s question, the result of the proceeding would 

have been different. See Strickland, 466 U.S. at 694. The jury heard M.W.’s own 

testimony, saw photographs of M.W. after the incident, and heard testimony by a 

forensic scientist of the likelihood that Haggard was a contributor to the DNA swab 

of M.W.’s right breast. A reasonable jury could have found Haggard guilty even if 

it had not heard T.W.’s testimony that she believed M.W.

Even assuming without deciding that the trial court would have sustained an 

objection by Haggard’s trial counsel to “T’s” presence during M.W.’s testimony and 

that “T’s” presence was error, Haggard has not met his burden to demonstrate that 

the result would have been different if the presence of “T” as a “support person” had 

not been allowed. See id. at 687-88, 694. Haggard does not argue that “T” in any 

way influenced M.W.’s testimony, and Haggard’s claim that the jury found M.W. 
26

more credible due to the presence of “T” is purely speculative. We overrule issue 

three.

Jury Charge Error

In issues four and five, Haggard contends the trial court erred because the jury 

charge in each count allowed for a non-unanimous verdict and, as a result, Haggard 

suffered egregious harm.

As to Count I, Haggard asserts the State’s indictment alleged four separate 

and distinct offenses, the jury was not instructed that it cannot return a guilty verdict 

unless it unanimously agrees upon the commission of any one of the criminal acts, 

and the unanimity requirement is undercut when a jury risks convicting the 

defendant of different acts instead of agreeing on the same act for a conviction. The 

jury charge verdict form for Count I asked the jury to find Haggard guilty or not 

guilty of “the felony offense of Sexual Assault of a Child as charged in Count I of 

the indictment.” The application paragraph of the jury charge as to Count I stated 

the following:

You must decide whether the State has proved, beyond a 

reasonable doubt, four elements. The elements are that:

1. On or about the 5th day of October, 2013, in Liberty County, 

Texas;

2. The defendant . . . did then and there[] intentionally or 

knowingly; 

3. Cause:
27

a. The sexual organ of [M.W.] to contact or penetrate the 

mouth of the defendant, and/or

b. The sexual organ of [M.W.] to contact or penetrate the 

sexual organ of the defendant, and/or

c. The penetration of the sexual organ of [M.W.] by 

defendant’s finger, and/or

d. The penetration of the sexual organ of [M.W.] by 

defendant’s sexual organ;

4. Without the consent of [M.W.], a child younger than 17 years 

of age and not the spouse of the defendant.

You must all agree on elements 1, 2, 3, and 4 listed above. 

If you all agree the State has proved each of the four elements 

listed above, beyond a reasonable doubt, you must find the defendant

“guilty.” 

If you all agree the State has failed to prove, beyond a reasonable 

doubt, one or more of elements 1, 2, 3, or 4 listed above you must find 

the defendant “not guilty.”

Haggard argues that the jury charge as to the sexual assault charge was infirm 

because the indictment sought to convict Haggard of sexual assault of a child in one 

conviction by proving any of the two offenses alleged within one count, the trial 

court instructed the jury in the application paragraph that they could find Haggard 

guilty if they believed either of the two offenses, and that the unanimity requirement 

is undercut when a jury risks convicting the defendant of different acts instead of 

agreeing on the same act for a conviction.

As to Count II, the jury charge verdict form asked the jury to find Haggard 

guilty or not guilty of “the felony offense of Indecency with a Child by Sexual 
28

Contact as charged in Count II of the indictment.” The application paragraph of the 

jury charge as to Count II stated the following:

You must decide whether the State has proved, beyond a 

reasonable doubt, four elements. The elements are that:

1. On or about the 5th day of October, 2013, in Liberty County, 

Texas;

2. The defendant . . . did then and there[] with the intent to 

arouse or gratify the sexual desire of said defendant; 

3. Engage in sexual contact with [M.W.] by:

a. Touching the breast of [M.W.], and/or

b. Touching the genitals of [M.W.], and/or

c. Causing the said [M.W.] to touch the genitals of the 

defendant, and/or

d. Causing [M.W.] to expose her genitals;

4. [M.W.] was a child younger than 17 years of age and not the 

spouse of the defendant.

You must all agree on elements 1, 2, 3, and 4 listed above. 

If you all agree the State has proved each of the four elements 

listed above, beyond a reasonable doubt, you must find the defendant 

“guilty.” 

If you all agree the State has failed to prove, beyond a reasonable 

doubt, one or more of elements 1, 2, 3, or 4 listed above you must find 

the defendant “not guilty.”

Under Texas law, jury unanimity is required in all criminal cases. Jourdan v. 

State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). A jury must reach a unanimous 

verdict about a specific felony that the defendant committed, meaning the jury must 

agree upon “a single and discrete incident that would constitute the commission of 

the offense alleged.” See Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 

2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). 
29

While jury unanimity generally is not required on the alternate modes or means of 

commission, the jurors must all agree “that the defendant committed the same, 

single, specific criminal act.” See Jourdan, 428 S.W.3d at 94; Ngo v. State, 175 

S.W.3d 738, 745 (Tex. Crim. App. 2005).

A defendant may choose to require the State to elect a specific criminal act 

that it relies upon for conviction. See Cosio, 353 S.W.3d at 775. Even if the 

defendant does not require an election, “guaranteeing unanimity is ultimately the 

responsibility of the trial judge[,]” and “[t]he trial judge is therefore obligated to 

submit a charge that does not allow for the possibility of a non-unanimous verdict.” 

Id. at 776.

Haggard argues that the jury could have relied on separate acts of criminal 

conduct, which constituted different offenses or separate units of prosecution, and 

the jury instructions in the application paragraph for Count I and Count II that the 

jurors must all agree that the State has proved each of the four elements beyond a 

reasonable doubt did not rectify the error.

That said, Haggard also concedes that for both Counts I and II his trial counsel 

did not object to the charge and did not request the State to make an election as to 

which acts they were proceeding on for conviction. Reversal for an unobjected-to 

erroneous jury instruction is proper only if the error caused actual, egregious harm 
30

to the appellant, not merely theoretical harm. Arrington v. State, 451 S.W.3d 834, 

840 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1985) (op. on reh’g). Actual egregious harm is established if the jury charge

affected the very basis of the case, deprived the defendant of a valuable right, or 

vitally affected a defensive theory. Arrington, 451 S.W.3d at 840; Almanza, 686 

S.W.2d at 172. This analysis is fact-specific and is done on a case-by-case basis. 

Arrington, 451 S.W.3d at 840 (citing Gelinas v. State, 398 S.W.3d 703, 710 (Tex. 

Crim. App. 2013)). When assessing harm based on the particular facts of the case, 

we consider (1) the entire jury charge, (2) the state of the evidence, including 

contested issues and the weight of the probative evidence, (3) the parties’ arguments, 

and (4) all other relevant information in the record. See id. (citing Almanza, 686 

S.W.2d at 171). An appellate court will “inquire about the likelihood that the jury 

would in fact have reached a non-unanimous verdict on the facts of the particular 

case.” Jourdan, 428 S.W.3d at 98.

Assuming without deciding that the jury charge permitted non-unanimous 

verdicts on the evidence presented in the case, neither the parties nor the trial judge 

compounded the alleged error by telling the jury that it did not have to be unanimous 

regarding the specific instances of criminal conduct in rendering its verdicts. The 

record indicates that M.W. testified that during the incident Haggard committed all
31

the separate acts of criminal conduct alleged in the application paragraphs for Counts 

I and II and as alleged in the indictment, and Haggard’s defense was that M.W. was 

not credible. The jury was not persuaded that he did not commit the offenses or that 

there was any reasonable doubt. On this record, it is logical to infer that the jury 

unanimously agreed that Haggard committed all the separate instances of criminal 

conduct alleged in Counts I and II during the incident. See Cosio, 353 S.W.3d at 

777-78. We conclude that the Appellant has failed to demonstrate that any error 

regarding unanimity caused actual egregious harm to Appellant. See Arrington, 451 

S.W.3d at 845. We overrule issues four and five.

Punishment

In issue six, Haggard argues his punishment in Count II is void. Specifically, 

Haggard asserts that his twenty-five-year sentence for indecency with a child 

exceeds the maximum allowed by the Legislature. Despite Haggard’s contention on 

appeal otherwise, the jury charge for Count II tasked the jury with finding Haggard 

not guilty or guilty of the felony offense of Indecency with a Child by Sexual Contact

as charged in Count II of the indictment but did not task the jury to find Haggard not 

guilty or guilty of the offense of Indecency with a Child by Exposure. Haggard did 

not object to the jury charge. As to Count II, the jury found Haggard guilty of 

indecency with a child by contact. Haggard stipulated that he was the same person 
32

convicted in the punishment enhancement allegations, and the trial court assessed 

punishment at twenty-five years in prison to run consecutively with the sentence in 

Count I. The twenty-five-year sentence was within the statutory range. See Tex. 

Penal Code Ann. §§ 12.32 (West 2019) (first-degree-felony punishment range is 

imprisonment for life or for any term not more than 99 years or less than 5 years), 

12.42(b) (West 2019) (enhancement of second-degree felony to first-degree felony 

if defendant has previous felony conviction), 21.11(d) (offense of indecency with a 

child by contact is a second-degree felony). We overrule issue six.

Sufficiency of the Evidence

In issue seven, Haggard challenges the sufficiency of the evidence supporting 

the convictions in Count I and Count II. According to Haggard, M.W.’s testimony 

was not credible, and she was impeached with prior statements as to the details of 

the alleged offenses. 

In reviewing the legal sufficiency of the evidence to determine whether the 

State proved the elements of the offense beyond a reasonable doubt, we apply the 

Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. 

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that 

standard, a reviewing court must consider all the evidence in the light most favorable 

to the verdict and determine whether a rational justification exists for the jury’s 
33

finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson, 443 U.S. at 

319. “A jury may accept one version of the facts and reject another, and it may reject 

any part of a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. 

App. 2018). As the trier of fact, the jury is the sole judge of the weight and credibility 

of the witnesses’ testimony, and on appeal we must give deference to the jury’s 

determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains 

conflicting inferences, we must presume the jury resolved such facts in favor of the 

verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 326). 

On appeal, we serve only to ensure the jury reached a rational verdict, and we may 

not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 

562 (Tex. Crim. App. 2000). In our review, we consider both direct and 

circumstantial evidence and all reasonable inferences that may be drawn from the 

evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Hooper 

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In indecency and sexual assault 

cases involving a child, the testimony of a child victim alone is sufficient to support 

a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(b)(1); Garcia, 563 S.W.2d 

at 928 (sexual assault of a child); Jones, 428 S.W.3d at 169-70 (indecency with a 

child). The State has no burden to produce any corroborating or physical evidence. 

Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no 
34

pet.). The appellate court views the sufficiency of the evidence against a 

hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 

(Tex. Crim. App. 1997).

A person commits the offense of sexual assault of a child if the person 

knowingly (1) causes the penetration of the anus or sexual organ of a child by any 

means; (2) causes the penetration of the mouth of a child by the sexual organ of the 

actor; (3) causes the sexual organ of a child to contact or penetrate the mouth, anus, 

or sexual organ of another person, including the actor; (4) causes the anus of a child 

to contact the mouth, anus, or sexual organ of another person, including the actor; or 

(5) causes the mouth of a child to contact the anus or sexual organ of another person, 

including the actor. See Tex. Penal Code Ann. § 22.011(a)(2). “‘Child’” means a 

person younger than 17 years of age.” Id. § 22.011(c)(1).

To establish the offense of indecency with a child by contact, the State had to 

prove that Appellant engaged in sexual contact with M.W., a child younger than 

seventeen years of age. See Tex. Penal Code Ann. § 21.11(a)(1). Section 21.11’s 

definition of “sexual contact” includes acts, if committed with the intent to arouse 

or gratify the sexual desire of any person, of “any touching by a person, including

touching through clothing, of the . . . breast . . . of a child[.]” See id. § 21.11(c)(1).
35

M.W. testified that on October 5, 2013, when she was fifteen years old, 

Haggard caused her sexual organ to contact or penetrate his mouth, he contacted or 

penetrated her sexual organ without her consent, he penetrated her sex organ with 

his finger, he caused her to contact his sex organ, he touched her breast with a part 

of his body, he touched her genitals with a part of his body, he caused her to touch 

his genitals, and he caused her to expose her genitals to him. M.W. testified that 

Haggard’s actions were done to make him sexually aroused. M.W.’s testimony alone 

was sufficient to support the convictions. See Tex. Code Crim. Proc. Ann. art. 

38.07(b)(1); Garcia, 563 S.W.2d at 928 (sexual assault of a child); Jones, 428 

S.W.3d at 169-70 (indecency with a child). The jury also heard Smith’s expert 

testimony that using newer and more advanced testing with STRmix probabilistic 

genotyping software, the profile obtained from the swab from M.W.’s breast is “219 

quadrillion times more likely if the DNA came from [M.W.] and James Haggard 

than if the DNA came from [M.W.] and one unrelated unknown individual.” 

Viewing all the evidence in the light most favorable to the verdict, we 

conclude that a rational jury could have found the essential elements of the charged 

offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 319. The jury was the 

exclusive judge of the facts, the credibility of the witnesses, and the weight to be 

given their testimony, and could have found M.W.’s testimony, as well as testimony 
36

of other witnesses credible and resolved any conflicting evidence in favor of the 

verdict. See id.; Brooks, 323 S.W.3d at 899; see also Tex. Code Crim. Proc. Ann. 

art. 38.07. We overrule Haggard’s challenge to the legal sufficiency of the evidence. 

Having overruled all of Haggard’s appellate issues, we affirm the trial court’s 

judgments.

AFFIRMED.

_________________________

LEANNE JOHNSON

Justice

Submitted on April 17, 2019

Opinion Delivered May 29, 2019

Do Not Publish

Before Kreger, Horton and Johnson, JJ.