IN THE

TENTH COURT OF APPEALS

No. 10-13-00121-CR

JOHN JAMES SCHOEPLEIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2011-1359-C1

MEMORANDUM OPINION

Appellant John James Schoeplein was charged by indictment with two counts of 

aggravated sexual assault (Counts I & II) and two counts of indecency with a child 

(Counts III & IV). A jury acquitted Schoeplein on Count I of the indictment, which 

alleged that he intentionally or knowingly causing the penetration of the sexual organ 

of L.L., a child younger than fourteen years of age and not his spouse, by means of his 

sexual organ. But the jury found him guilty on Counts II, III, and IV of the indictment 

and assessed his punishment at life imprisonment, twenty years’ confinement, and 
Schoeplein v. State Page 2

twenty years’ confinement, respectively. The trial court ordered the sentences to run 

consecutively. This appeal ensued.

Sufficiency of the Evidence

In his first three issues, Schoeplein contends that the evidence is insufficient to 

support his convictions on Counts II, III, and IV. The Court of Criminal Appeals has 

expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support 

a conviction, a reviewing court must consider all of the evidence in the 

light most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 

13 (Tex. Crim. App. 2007). This “familiar standard gives full play 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. “Each fact need not point 

directly and independently to the guilt of the appellant, as long as the 

cumulative force of all the incriminating circumstances is sufficient to 

support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

The Court of Criminal Appeals has also explained that our review of “all of the 

evidence” includes evidence that was properly and improperly admitted. Conner v. 

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting 

inferences, we must presume that the factfinder resolved the conflicts in favor of the 

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further, 

direct and circumstantial evidence are treated equally: “Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial 

evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it 
Schoeplein v. State Page 3

is well established that the factfinder is entitled to judge the credibility of witnesses and 

can choose to believe all, some, or none of the testimony presented by the parties. 

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

In this case, the State had to prove for Count II that, on or about October 1, 2004, 

Schoeplein intentionally or knowingly caused the penetration of the sexual organ of 

L.L., a child under the age of fourteen and not his spouse, by means of his finger. See

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2013). For Count III, 

the State had to prove that, on or about October 1, 2004, with the intent to arouse or 

gratify his sexual desire, Schoeplein intentionally or knowingly engaged in sexual 

contact with L.L., a child younger than seventeen years of age and not his spouse, by 

touching L.L.’s genitals by means of his hand. See id. § 21.11(a)(1), (b-1), (c)(1) (West 

2011). For Count IV, the State had to prove that, on or about October 1, 2004, with the 

intent to arouse or gratify his sexual desire, Schoeplein intentionally or knowingly 

engaged in sexual contact with L.L., a child younger than seventeen years of age and 

not his spouse, by touching L.L.’s breast by means of his hand. See id.

The evidence presented was as follows: S.L. testified that she married J.S. right 

out of high school, and they quickly had two children—son T.L., born October 11, 1991, 

and daughter L.L., born September 16, 1992. S.L.’s and J.S.’s relationship was abusive, 

however, and they soon divorced. Any meaningful relationship between J.S. and T.L. 

and L.L. also quickly ended.

S.L. stated that she thereafter met Schoeplein while L.L. was still a toddler. S.L. 

and Schoeplein married when S.L. became pregnant with her second son. S.L.’s mother 
Schoeplein v. State Page 4

testified that L.L. began calling Schoeplein her dad. S.L. and Schoeplein also had a 

daughter together during their marriage, but the two eventually separated and then 

divorced in April 2003.

S.L. testified that after the divorce, she “broke.” She was very depressed and 

often laid in bed. S.L.’s mother stated that she had concerns about S.L.’s mental health 

and parenting abilities. S.L. dealt with her depression by sleeping a lot, resulting in 

S.L.’s house being dirty, the children being dirty, and S.L.’s parents having to furnish 

food for the children. S.L. acknowledged that she was not an active or good parent to 

T.L. and L.L. at that time.

S.L.’s parents both testified that T.L. and L.L. lived with them for a time after 

S.L.’s and Schoeplein’s divorce. All four children also continued to see Schoeplein. L.L. 

testified that in contrast to her mother’s house, Schoeplein’s house was spotless and had 

a whole cabinet full of food.

L.L. stated that Schoeplein had told her that he was not her biological father at 

about the same time that he had separated from S.L. in 2002. L.L. was nine years old at 

that time. L.L. said that after the divorce, Schoeplein then treated her more like a friend 

than a daughter. L.L. testified that when she was at Schoeplein’s house, she was able to 

do whatever she wanted. Schoeplein would provide them alcohol to drink even though 

L.L. was only eleven or twelve years old at the time, but Schoeplein would not let T.L. 

drink as much as he would let her drink. Schoeplein would also buy L.L. more new 

things than her siblings. He would take her shopping for new clothes and shoes. S.L.’s 

mother testified that Schoeplein was showing favoritism to L.L. at that time. S.L.’s 
Schoeplein v. State Page 5

mother stated that there was a period around that time when Schoeplein was picking 

L.L. up from school and bringing her home late. Schoeplein would also call L.L. 

frequently, and they would talk on the phone for long periods of time. Schoeplein did 

not act the same way with T.L.

L.L. testified that the sleeping arrangements when the children stayed at 

Schoeplein’s house were generally as follows: T.L. would sleep on the recliner, L.L.’s 

half-brother would sleep on the floor, and L.L. and her half-sister would sleep in the 

bed with Schoeplein. L.L. stated that Schoeplein always wore just his underwear to 

bed. L.L. noted that there were times when she and Schoeplein were in the bed alone. 

L.L. said that when she was eleven years old, Schoeplein would often rub her back. He 

would put his hand underneath her shirt and bra and rub from the top of her shoulders 

down to “where your butt and your back meet.” L.L. said that Schoeplein’s hands 

would also sometimes “go off to the side” underneath the underwire of her bra and 

onto the side of her breast. L.L. denied that Schoeplein ever put his hand on the full 

front of her breast. L.L. stated that these backrubs happened for about a year.

L.L. testified that one night when she was twelve years old, she was lying in the 

bed with Schoeplein when he began rubbing her back. L.L.’s half-brother and halfsister were sleeping on the floor. L.L. was lying on her stomach when she felt 

Schoeplein’s hand slide underneath her pants and reach around her hip. L.L. turned 

onto her side away from Schoeplein and scooted away from him, but Schoeplein 

scooted closer to her. L.L. said that Schoeplein then took off her pants and pulled down 

her underwear. Schoeplein put his hand between her legs, and L.L. felt a really sharp 
Schoeplein v. State Page 6

pain in her vagina being caused by Schoeplein’s hand. After Schoeplein moved his 

hand away, he then put his penis inside her for “like a second.” When asked how she 

knew it was his penis, L.L. replied that “[i]t definitely wasn’t his hand” and that it did 

not feel the same. L.L. said that Schoeplein’s hand hurt worse than when he put his 

penis inside her. She said that when it was over, Schoeplein just scooted back, flipped 

over, and laid there while she put her pants back on.

L.L. stated that this incident was the only time when Schoeplein put either his 

penis or his fingers inside her vagina. L.L. explained, however, that, at other times, 

Schoeplein had put his fingers “around the outside” of her vagina and had also 

“grope[d]” her. L.L. clarified that in saying that Schoeplein had “grope[d]” her, she 

meant that he had frequently grabbed and slapped her butt. L.L. also testified that 

Schoeplein “fondle[d]” her, meaning that he would “grab my butt and rub underneath 

my bra and rub my back a lot.” L.L. stated that the sexual abuse happened at 

Schoeplein’s house in Waco. L.L. said that Schoeplein also allowed his friends to grab 

and slap her butt. The friends also touched her breasts and made inappropriate 

comments to her about them.

L.L. testified that she continued to go over to Schoeplein’s house for about a year 

and a half after he had sexually assaulted her. When asked why she continued to go 

there, she replied, “I didn’t have anywhere else to go.” L.L. stated, however, that she 

felt the need to tell someone about the sexual assault because she hated herself and 

because she thought that it might happen again. L.L. also said that she did not fully 

understand how someone became pregnant and, because she was not menstruating, she 
Schoeplein v. State Page 7

was concerned that she might be pregnant.

When L.L. was thirteen years old, she initially told a couple of her friends that 

she had had sex with one of Schoeplein’s friends at a party. L.L. then approached S.L.’s 

boyfriend, who went directly to S.L., who in turn took L.L. to the Advocacy Center for 

an interview. During the interview, L.L. said that she had had sex with a boy named 

Josh on a Wednesday night at the Valley Mills First Baptist Church. L.L. testified at trial 

that she had made up the story and that Josh did not exist. L.L. said that she thought 

that if she said it was another kid, then he could not get in trouble yet she could still get 

whatever help her mother said that she needed. L.L. also stated that she was scared and 

not fully ready to talk about everything that had happened with Schoeplein. She did 

not want to feel like she was ruining her family and hurting her siblings. L.L. said that 

Schoeplein had also told her that if she ever told anyone about the abuse, he would tell

everyone that she was a liar.

L.L. testified that after the Advocacy Center interview, she told her mother S.L. 

that S.L.’s boyfriend had touched her inappropriately. L.L. said that as soon as her 

mother starting asking her questions about it, she told her mother the truth—that it was 

a dream and that, “No, he never touched me.” L.L. stated at trial that she wanted her 

mother to find out that Schoeplein was the one who had really sexually assaulted her 

but that S.L. completely dropped the subject once S.L. knew that L.L. was not accusing 

her boyfriend.

Former Valley Mills Chief of Police Tommy Roach testified that he was at the 

Advocacy Center while L.L. was being interviewed. He had concerns after the 
Schoeplein v. State Page 8

interview about whether L.L. was telling the whole truth because she was “real 

evasive” in her answers to certain questions and would not look at the interviewer. 

Chief Roach therefore interviewed L.L. himself. During the interview, L.L. told him 

that the sexual assault did not actually happen in Valley Mills but rather in Waco. L.L. 

also said that the boy named Josh was not the perpetrator. Because the sexual assault 

did not happen in Valley Mills, Chief Roach referred the family to the Waco Police 

Department.

L.L. testified that she finally told her mother that it was Schoeplein who had 

sexually abused her. L.L. stated that since the time when she identified Schoeplein as 

her abuser, she has not taken that back or said it was anyone else. When asked why the 

jury should believe her, L.L. replied that she is stronger now and tired of her life being 

controlled by fear.

Psychologist Dr. William Lee Carter testified that he had not evaluated or 

counseled L.L. but that he was there as an educational source for the jury. He stated 

that grooming refers to the pulling of a child into victimization and that it commonly 

occurs by giving special status or favor to a child. When asked what in this case 

suggested that L.L. had been groomed, Dr. Carter replied that L.L. was basically 

allowed to do whatever she wanted when she went over to Schoeplein’s house and that 

Schoeplein would give her alcohol and back rubs and treat her favorably. Dr. Carter 

also testified that it would be fair to say that L.L.’s different allegations could be 

interpreted as cries for help. All of the different allegations occurred within about one 

month, and then once L.L. identified her assailant in 2006 as Schoeplein, the details 
Schoeplein v. State Page 9

remained consistent. Dr. Carter stated that he was not saying that L.L. was being 

truthful or untruthful. He acknowledged that it could cause concern that L.L. has 

changed her story several times, but he also said that L.L.’s consistency since identifying 

Schoeplein as the perpetrator was one of the things one would look for in a reliable 

outcry. 

Amy Perkins, the Executive Director for the Advocacy Center for Crime Victims 

and Children and the custodian of records for the agency, testified that L.L. began 

therapy on January 27, 2009. L.L. had a total of fourteen therapy sessions, ending on 

April 11, 2012. She also attended six group sessions. Perkins said that L.L. would fill 

out a survey at each session for the therapist to use as a tool. These records were 

admitted into evidence. In these surveys, L.L. had at times responded “[n]ever” to the 

statements, “I feel that what happened was my fault” and “I feel dirty or ashamed 

about what happened to me.” Perkins stated, however, that L.L. had also consistently 

shown concern in the surveys that she often felt like everyone knew what had 

happened to her. L.L. was also experiencing anxiety-based behaviors, and she 

struggled with the continued contact that Schoeplein had with her siblings. When 

speaking on the phone with Schoeplein, her siblings would tell him that they loved and 

missed him. 

Schoeplein first argues that the evidence is insufficient to support his convictions 

on Counts II, III, and IV because the jury was not a rational trier of fact by believing 

L.L., an admitted and documented liar who: (1) materially changed her story from the 

date she alleged he assaulted her to the date of trial and (2) admitted to other lies, 
Schoeplein v. State Page 10

including making another false accusation of the same nature against her mother’s 

longtime and present boyfriend. But the jury is the exclusive judge of the facts, the 

credibility of the witnesses, and the weight to be given to the witnesses’ testimony. 

Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A 

jury may believe all, some, or none of any witness’s testimony. Sharp v. State, 707 

S.W.2d 611, 614 (Tex. Crim. App. 1986). Here, by finding Schoeplein guilty, the jury 

obviously believed L.L.’s testimony. As the reviewing court, we “should not 

substantially intrude upon the jury’s role as the sole judge of the weight and credibility 

of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). 

Furthermore, a child victim’s testimony alone is sufficient to support a conviction for 

aggravated sexual assault of a child or indecency with a child. TEX. CODE CRIM. PROC.

ANN. art. 38.07 (West 2005); Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, 

pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d).

Schoeplein argues, however, that no rational jury could decide to believe L.L.’s 

testimony. Schoeplein states that this is not a question of witness demeanor. Rather, 

Schoeplein claims that the only evidence supporting the allegations in this case was 

from L.L., that L.L. is an admitted and documented liar, and that L.L. is therefore 

simply not believable by a rational jury. Schoeplein likens this case to the hypothetical 

in Brooks v. State, 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010):

The store clerk at trial identifies A as the robber. A properly authenticated 

surveillance videotape of the event clearly shows that B committed the 

robbery. But, the jury convicts A. It was within the jury’s prerogative to 

believe the convenience store clerk and disregard the video. But based on 

all the evidence the jury’s finding of guilt is not a rational finding.
Schoeplein v. State Page 11

But this case is distinguishable from the Brooks hypothetical. The jury here did not 

disregard affirmative evidence establishing that Schoeplein did not commit the actions 

alleged in Counts II, III, and IV of the indictment. The jury in this case merely believed 

L.L.’s testimony during which she explained why she had told several lies before 

identifying Schoeplein as her abuser and confirmed that she has been consistent in her 

allegations since identifying Schoeplein as her abuser.

Schoeplein next argues that the evidence is insufficient to support his conviction 

on Count III because the State failed to prove that on or about October 1, 2004, in 

McLennan County, Texas, with the intent to arouse or gratify his sexual desire, he 

intentionally or knowingly engaged in sexual contact with L.L. by touching her genitals. 

More specifically, Schoeplein claims that the evidence is insufficient because L.L. did 

not testify, nor was there any outcry testimony, that Schoeplein actually touched her 

genitals within the meaning of the statute.

The Court of Criminal Appeals has held that the term “genitals” in the indecency 

statute “includes more than just the vagina in its definition; ... [it] includes the vulva 

which immediately surrounds the vagina.” Clark v. State, 558 S.W.2d 887, 889 (Tex. 

Crim. App. 1977). Additionally, child victims of crime are not expected to testify with 

the same clarity and ability as is expected of mature and capable adults. Villalon v. 

State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Wallace v. State, 52 S.W.3d 231, 235 

(Tex. App.—El Paso 2001, no pet.). Consequently, a child’s use of unsophisticated 

language will not render the evidence insufficient to establish guilt. Furthermore, as 
Schoeplein v. State Page 12

stated above, a child victim’s testimony alone is sufficient to support a conviction for 

aggravated sexual assault of a child or indecency with a child. TEX. CODE CRIM. PROC.

ANN. art. 38.07; Abbott, 196 S.W.3d at 341; Tear, 74 S.W.3d at 560.

Here, L.L. testified that in addition to the time when Schoeplein sexually 

assaulted her, Schoeplein had at other times put his fingers “around the outside” of her 

vagina. This evidence is sufficient to establish that Schoeplein actually touched her 

genitals within the meaning of the statute.

Finally, Schoeplein argues that the evidence is insufficient to support his 

conviction on Count IV because the State failed to prove that on or about October 1, 

2004, with the intent to arouse or gratify his sexual desire, he intentionally or knowingly 

engaged in sexual contact with L.L. by touching her breast. More specifically, 

Schoeplein claims that the evidence is insufficient because L.L. did not testify, nor was 

there any outcry testimony, that Schoeplein actually touched her breast within the 

meaning of the statute.

L.L. testified that when Schoeplein was giving her back rubs, his hands would 

sometimes “go off to the side” underneath the underwire of her bra and onto the side of 

her breast. L.L. denied, however, that Schoeplein ever put his hand on the full front of 

her breast. Schoeplein argues that this is not indecency with a child by contact on the 

breast. Schoeplein contends that even if we believe L.L., he at most touched her chest, 

which is insufficient proof to support his conviction. See Nelson v. State, 505 S.W.2d 551, 

552 (Tex. Crim. App. 1974) (holding that testimony “He rubbed my chest” was 

insufficient proof to sustain averment in indictment that appellant did “place his hand 
Schoeplein v. State Page 13

against the breasts” of victim).

We disagree with Schoeplein. L.L.’s specific testimony that Schoeplein touched 

the side of her breast is sufficient to establish that Schoeplein actually touched her 

breast within the meaning of the statute.

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

sufficient to support Schoeplein’s convictions on Counts II, III, and IV. We overrule 

Schoeplein’s first three issues.

Extraneous-Offense Evidence

In his fourth issue, Schoeplein contends that the trial court erred and abused its 

discretion by allowing the State to present evidence of his giving other children alcohol 

because: (1) evidence of this alleged extraneous offense presented to the jury during the 

guilt/innocence phase was not admissible based upon the relationship between L.L. 

and him; (2) he did not “open the door” to the admission of such evidence; and (3) the 

probative value of admitting such evidence was substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, and clearly misled the jury.

During the guilt/innocence phase of the trial, S.L.’s sister Suzanne testified as 

follows:

Q. [BY Defense Counsel] Did you ever -- you spent time over at 

[S.L.] and John’s house?

A. Yes.

Q. And it was fun?

A. Yes.
Schoeplein v. State Page 14

[Defense Counsel]: That’s all, Judge. I pass the witness.

REDIRECT EXAMINATION

BY [Prosecutor]:

Q. Why was it fun at the defendant’s house?

A. Because we got to do what we wanted to do.

Q. And by doing what you wanted to do, what would he let 

you do that you wanted to do as a teenager?

A. Drink alcohol, smoke cigarettes, whatever we wanted to do.

Q. And the alcohol and the cigarettes, did you furnish those or 

were those furnished to you?

A. They were furnished to us or to me.

Q. By who?

[Defense Counsel]: Object, Your Honor. Calls for 

extraneous. This was all in the motion in limine the Court granted.

[Prosecutor]: Your Honor, the defendant opened the door 

by asking about the fun at the defendant’s house.

[Defense Counsel]: No. She testified on direct, Judge, that 

she enjoyed going over there. I said, “You went over there because you 

had fun.” I didn’t go into any details about that. The State set that up.

THE COURT: Overruled.

Q. (BY [Prosecutor]) Who furnished the alcohol --

[Defense Counsel]: Your Honor, at this point I’m going to 

object under 403, then.

THE COURT: Overruled.

[Defense Counsel]: I’m going to ask the Court to make 

findings on that, make that balancing test, Judge.
Schoeplein v. State Page 15

THE COURT: All right. I find this matter is admissible to 

explain the relationship here. I also find that the relevance outweighs any 

-- the probative value of the relevance outweighs any prejudicial value.

Q. (BY [Prosecutor]) Suzanne, who gave you the cigarettes and 

the alcohol?

A. John.

Q. You mean the defendant?

A. Yes.

....

Q. (BY [Prosecutor)] And is this the same John Schoeplein that 

would give you cigarettes and alcohol when you were a minor?

A. Yes.

Q. How old were you when this was going on, the cigarettes 

and the alcohol?

A. 12.

Q. So this is during the time that he was still married to your 

sister --

A. Yes.

Q. -- that it started?

A. Yes.

[Prosecutor]: Pass the witness, Your Honor.

RECROSS-EXAMINATION

BY [Defense Counsel]:

Q. And during this time your sister, [S.L.], was there drinking 

with you-all, wasn’t she?
Schoeplein v. State Page 16

A. Occasionally, yes.

[Defense Counsel]: Pass the witness.

FURTHER REDIRECT EXAMINATION

BY [Prosecutor]:

Q. You said that occasionally your sister was there. Was that 

every time that you drank?

A. No.

Q. The majority of the time, was your sister there?

A. No.

Q. The majority of the time, was it you and the defendant?

A. Yes.

After Suzanne, Sarah, another of S.L.’s sisters, then testified as follows:

A. Well, [Schoeplein] was a very good friend to have for an 

independent teenage girl. I mean, he would let us -- he wouldn’t tell on 

me if I was smoking, and he allowed us to drink.

Q. [By Prosecutor] Now, when you say, “us,” who do you 

mean?

A. Well, anybody that was with me. Any of my friends that 

were with me would be able to drink as well.

Q. And there is no doubt the defendant knew you weren’t 18?

A. Oh, yeah.

Q. You weren’t close to 21 but not 18 either.

A. Yeah.

Q. You were in high school?
Schoeplein v. State Page 17

A. Yeah.

Q. So you were underage?

A. Yes.

Q. Did you bring alcohol over and drink it there, or was it 

provided to you?

A. It was provided.

Q. What was provided?

A. It would depend. There was wine coolers. There was -- he 

made Amaretto shots. That was one of my favorites. He had a whole lot 

of liquor that he would make shots with and stuff.

Q. And would your sister, [S.L.], know this was going on?

A. She would turn a blind eye to it. She got mad if she knew I 

was drinking. She didn’t allow me to drink, but she wasn’t going to tell 

on me either.

Q. Did you stay at her house and do this --

A. Yes.

Q. -- and not drive around?

A. That is correct.

Q. Okay. Were these parties that your sister and the defendant 

kind of had for you and your friends, or were these parties with the 

defendant?

A. It wasn’t -- there was only one party that I can think of 

offhand that was actually a party we went to, and that was whenever he 

lived in his house on Erath before he moved in with [S.L.] out on the land. 

Other than that, it was there at the house, so we just made a party. It 

wasn’t like he was planning a party.

Q. Was your sister involved in these parties, [S.L.]?
Schoeplein v. State Page 18

A. The one on Erath, yes. She was there. She didn’t -- she 

didn’t plan the parties, but, I mean, she was there, like, talking to 

everybody and everything like that. If she knew I was going to be 

drinking, she didn’t -- and especially like on the one at Erath, she got mad 

at me and didn’t want people giving me alcohol, but I drank and didn’t 

really care what she said.

Q. Did the defendant get mad at you that you drank?

A. No.

Q. Did you know the defendant gave Suzanne, your younger 

sister, alcohol too?

A. Suzanne didn’t drink in front of me. I did not know that he 

was -- that that was happening with her too. She really wasn’t a part of 

when I would go over there and drink because she was my little sister, 

and I would say, “Shoo.” I didn’t really want her to be there because I 

didn’t want her telling on me.

Q. So at what point did you find out the defendant gave 

Suzanne alcohol too?

A. It was -- you now [sic], I’m not actually for sure because I 

didn’t really think it was a big deal, so I really didn’t -- I really didn’t 

think much about it.

[Prosecutor]: I’ll pass the witness.

RECROSS-EXAMINATION

BY [Defense Counsel]:

Q. [Sarah,] just a few questions to follow up on what you have 

already testified to on direct. You indicated that your sister, [S.L.], was 

present. Is that correct?

A. Yes.

Q. And she was present on the times that you were drinking 

alcohol. Is that right?
Schoeplein v. State Page 19

A. Yes. She was there at the house.

Q. And as you testified to, she turned a blind eye to it and 

didn’t tell your parents. Is that correct?

A. That is correct.

Q. And [S.L.] was an adult at that point in time too. Is that 

right?

A. Yes.

Q. So you stated that on occasion that she would get onto you 

for drinking. Is that right?

A. She wouldn’t get onto me. It wasn’t like a lashing after the 

fact. It was if she came in and saw me taking a shot, she was like, “Where 

did you get that? What are you doing?” It was one of those types of 

things. But then when I told her, “I’m taking a shot,” she would walk 

away, but I knew she was not happy with me.

Q. But you knew that -- you knew she wouldn’t tell your 

parents?

A. Yes.

Q. Okay. And there were times that [S.L.] drank with you. Is 

that correct?

A. Not until I got older.

[Defense Counsel]: I’ll pass the witness.

FURTHER REDIRECT EXAMINATION

BY [Prosecutor]:

Q. So, Sarah, are you making shots with this stuff sometimes?

A. I did make shots after -- I mean, I would make mixed drinks. 

After he would go to bed, you know, I would help myself to the alcohol, 

but mainly it was him. He’s the one who taught me how to make the 

Amaretto shots and the little cocktails.
Schoeplein v. State Page 20

Q. You’re saying he’s the one that taught you. You’re talking 

about the defendant?

A. Yes.

....

Q. (BY [Prosecutor]) And how old would you have been when 

the defendant taught you how to make shots and mixed drinks?

A. 14.

[Prosecutor]: I’ll pass the witness.

[Defense Counsel]: No questions.

....

THE COURT:

....

(Open court, defendant present, no jury)

Before we bring the jury back in, I want to get a matter on 

the record here. If this case goes to an appellate court, it might be helpful 

to have a clear record. Earlier when the issue of the extraneous conduct

regarding the defendant provided alcohol to the aunts of the complaining 

witness – that is the relationship, isn’t it?

[Prosecutor]: (Moving head up and down)

THE COURT: That came up. I wanted to kind of put on the 

record why I thought that was relevant and why I let it come in, because it 

was a little confusing about the way it all happened. When you look at 

this diagram on the board here that outlines the family tree of the folks 

involved in this case, and it’s a pretty complex relationship, and a great 

deal of time has been spent up to this point both by the State and the 

defense explaining that relationship and the context in which it occurred, 

and cross-examination of the defense has emphasized that these aunts of 

the complaining witness frequently visited the home of the defendant and 

that they had a normal, wonderful, caring, close-knit relationship, and 
Schoeplein v. State Page 21

that point was emphasized a number of times, and I think the jury could --

it was emphasized for a good tactical purpose on the part of the defense to 

show that there weren’t any problems in the family, that it was a normal 

type relationship, and the last -- the witness -- I can’t remember which one 

it was where the actual alcohol incident came in was Suzanne ... ?

[Prosecutor]: Suzanne ....

THE COURT: The defense was emphasizing how much fun 

it was for these young ladies at the time -- they were young ladies at the 

time to go there, and then the State asked the question, “Why was it fun to 

go there,” and that’s when the issue came up, and in conducting a 

balancing test about whether the probative value outweighed the 

prejudicial effect, I made the balancing test and ruled as I did, and I did it 

because I think it gives context to the relationship of the parties and the 

whole issue here, and I think the jury was entitled to have a complete 

understanding of the relationship.

[Prosecutor]: Your Honor, I do think Rule 403 requires you 

to find that the probative value of the extraneous offense is substantially 

outweighed.

THE COURT: And I do make that finding.

[Prosecutor]: Okay. The danger of, and I think it would be 

misleading the jury, that that line of questioning could be misleading.

THE COURT: That’s what I’m trying to say, maybe not very 

artfully.

[Prosecutor]: Okay. Or would leave a false impression of 

the kind of person the defendant was and what it was like to be over 

there.

THE COURT: Correct. I just wanted to get all that on the 

record. 

Subsequently, T.L. also testified as follows:

Q. [BY Prosecutor] Was there drinking at the defendant’s 

house with you?

A. Yes.
Schoeplein v. State Page 22

Q. Was there drinking with your sister, [L.L.]?

A. Yes.

....

Q. So who would give you this alcohol?

A. John J. Schoeplein would give me the alcohol.

....

Q. Are you-all going out and buying this yourselves or is this 

something that is always at the defendant’s?

A. That was something that was always there, you know, had 

some in the refrigerator. It was never bought to go out and intentionally --

Q. So it was never like you went to the store and picked out 

what you wanted?

A. No, it was nothing like that. No, ma’am.

Q. Were these drinks mixed for you by the defendant?

A. Yes, yes. I never mixed them myself, no.

Q. And how old were you when this started?

A. I would say approximately 13, 14, around that age.

Q. So that would have made [L.L.] 12 or 13?

A. Yes.

Any error in the admission of evidence is rendered harmless if the same or 

similar evidence is subsequently admitted without objection. See Lane v. State, 151 

S.W.3d 188, 193 (Tex. Crim. App. 2004) (“‘An error [if any] in the admission of evidence 

is cured where the same evidence comes in elsewhere without objection.’”) (quoting 
Schoeplein v. State Page 23

Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); Leday v. State, 983 S.W.2d 713, 

718 (Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection to evidence will 

not result in reversal when other such evidence was received without objection, either 

before or after the complained-of ruling.”). Therefore, assuming without deciding that 

the trial court abused its discretion in overruling Schoeplein’s objections to Suzanne’s 

testimony about Schoeplein providing alcohol to her as a child, we conclude that the 

error was harmless because Sarah and T.L. both testified without objection about 

Schoeplein providing them alcohol when they were minors and because Sarah even 

briefly responded to questioning about Schoeplein giving alcohol to Suzanne. We 

overrule Schoeplein’s fourth issue.

Having overruled all of Schoeplein’s issues, we affirm the trial court’s judgments 

on Counts II, III, and IV of the indictment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray concurs with a note)*

Affirmed

Opinion delivered and filed July 24, 2014

Do not publish

[CRPM]

*(Chief Justice Gray concurs in the judgment to the extent it affirms the trial 

court’s judgment. A separate opinion will not issue.)