1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00286-CR

__________________

GEORGE GLYNN BANTA, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause No. 20-11-14200-CR

__________________________________________________________________

MEMORANDUM OPINION

In February 2021 a grand jury indicted appellant, George Glynn 

Banta, and alleged that in a period of 30 or more days between November 

1, 2014, and November 1, 2020, he committed two or more acts of sexual 

abuse against children who were identified in the indictment by their 
2

initials.1 We will call the two children who are identified as the alleged 

victims of Banta’s offenses as Darla and Willow, and we note they are 

Banta’s daughters.2 After the trial court signed the judgment, Banta 

appealed and filed a brief in which he complained that he did not receive 

a fair trial. In one issue, Banta argues he is entitled to another trial 

because the trial court excluded evidence that Willow “had made a claim 

of sexual misconduct by another man which she later recanted as having 

been a false report.” For the reasons discussed below, we will affirm.

Background

Since Banta doesn’t argue the evidence is insufficient to support his 

conviction, we limit our discussion to the information needed to explain 

the Court’s resolution of the issue raised in Banta’s appeal. The case 

against Banta went to trial in August 2022. The following discussion of 

1Tex. Penal Code Ann. § 21.02(b) (Continuous Sexual Abuse of 

Young Child). 2We have used pseudonyms to protect the privacy of several 

individuals who are mentioned in the opinion. See Tex. Const. art. I, § 30 

(granting crime victims “the right to be treated with fairness and with 

respect to the victims’ dignity and privacy throughout the criminal justice 

process”).We identify that we have used a pseudonym in lieu of the actual 

name with italics when the person is first mentioned in the opinion. 
3

the evidence views the evidence admitted before the jury in the light that 

favors the verdict.3 

It was undisputed that Banta and his wife, Joanna, had seven 

children during their marriage, which began in 1999 and ended in divorce 

in 2014. After they divorced, the children continued to reside with their 

father except for the occasions they had visitation with their mother at 

her home.

In November 2020, Willow was fifteen years old when her 

grandmother took her to see a sexual assault nurse named Angie Chacko. 

At trial, Nurse Chacko testified that she interviewed Willow while 

conducting a sexual assault exam. According to Nurse Chacko, during 

the exam Willow told her that Banta touched her on her “boobs, butt, 

[and] private.” Nurse Chacko added that when she asked Willow to point 

to her “private” Willow pointed to her sexual organ. Nurse Chacko also 

testified that Willow told her that her father began sexually abusing her 

when she was five or six years old. 

3Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State, 

520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
4

In August 2022 when the case was tried, Willow was seventeen 

years old. At trial, Willow testified that when she was fourteen, Banta 

touched her “private” with a massager. Willow described her “private” as 

the part she uses to “pee.” According to Willow, the incident with the 

massager occurred in the kitchen of the home where the family lived in 

2014. Willow added that the incident occurred while her sister Darla was

in the room. Willow told the jury that when the incident involving the 

massager occurred, Banta smiled “[l]ike he enjoyed it.” 

During the trial, the prosecutor asked Willow whether she had 

made “an allegation against one of [her] mom’s old boyfriends after her 

parents were divorced?”4 Willow acknowledged that she had, told the 

prosecutor that the incident involving her mother’s old boyfriend (whom 

Willow didn’t name) had occurred, but later told another it did not 

4Before the prosecutor called Willow to testify, the parties’ 

attorneys and the trial court discussed the possibility that Willow might 

testify about accusing her mother’s boyfriend of sexual assault and that 

in May 2022, Willow told a forensic interviewer that the assault didn’t 

occur. In discussing what Willow’s possible testimony might be with the 

court outside the presence of the jury, the prosecutor told the trial court 

that “[t]his morning, Willow informed me that, that recant was false.” 

According to the prosecutor, testimony that Willow “made the allegation 

and recanted” . . . “would be admissible[,]” but “the surrounding facts 

would not.” The trial court advised the parties to approach the bench 

before going into “any evidence of previous sexual conduct[.]” 
5

because she “didn’t want to do the same thing that we are doing right 

now.”5 When the State finished questioning Willow, Banta’s attorney 

approached the bench and asked that the court allow him to question 

Willow about why she had accused her mother’s former boyfriend, a man 

we will refer to in the opinion as Leo Smith, of sexual assault.6 Banta’s 

attorney explained that two reasons justified his asking Willow about 

why she had accused Smith of sexual assault. First, he claimed the 

evidence he intended to develop would reveal why Willow had accused 

Smith of sexual assault, making it relevant to proving why Willow had a 

motive or bias to testify against Banta. That made the evidence 

admissible, the attorney argued, under Texas Rule of Evidence 613

because the evidence was relevant to Willow’s bias.7 Second, Banta’s 

attorney claimed the evidence he wanted to develop would establish that 

Willow had a “habit of making false allegations, getting people arrested.”8

5In a hearing outside the presence of the jury, the prosecutor told 

the trial court that Willow told a forensic investigator the assault that 

she had claimed Smith committed had not actually occurred. 

6A pseudonym. 

7Tex. R. Evid. 613 (Witness’s Prior Statement and Bias or Interest).

8Despite the fact that Banta’s attorney didn’t refer the trial court to 

Texas Rule of Evidence Rule 406, which is the rule of evidence applicable 

to evidence a party wants to introduce regarding someone’s habit, we 

assume the trial court would have known that Rule 406 makes evidence 
6

Banta’s attorney told the trial court that on cross-examination, he 

could establish the reason Willow accused Smith of sexually assaulting 

her was that she didn’t want her mother, Joanna, dating Smith and 

instead, she wanted Joanna to be dating Jay Peak.9 The attorney 

represented that Peak was the person the evidence would show that 

Willow was hoping that her mother would marry, and he could show that 

Willow wanted to change her name to Peak. Second, Banta’s attorney 

argued that by questioning Willow about Smith, he could show that 

Smith was arrested. That evidence, the attorney continued, would show 

that Willow was in the “habit of making false allegations, getting people 

arrested.”

After Banta’s attorney made his argument to explain his theory 

about why allowing the scope of his cross-examination to include 

questioning Willow about why she had accused Smith of sexual assault, 

as discussed above, Banta’s attorney asked the trial court: “Understand 

what I’m saying.” In response, the trial court stated: “No, I do not.” The 

prosecutor argued that on the record before the trial court, the details of 

of a person’s habit admissible if the person’s “character trait is an 

essential element of a charge, claim or defense[.]” Tex. R. Evid. 406(b).

9A pseudonym.
7

the accusation Willow made against Smith and later withdrew were 

relevant only to the extent that Willow had made the accusation and 

subsequently withdrawn it.

The trial court sustained the prosecutor’s objection based on lack of 

relevance. Then the trial court added that even if evidence about the fact 

that Smith had been arrested and the reasons for his arrest were relevant 

to an issue of material fact in Banta’s trial, there wasn’t a foundation 

showing that Willow knew for a fact that Smith had been arrested based 

on her accusation or showing that Willow knew what police had relied on 

when they made the arrest. 

When Banta cross-examined Willow, he did not ask Willow whether 

she had falsely accused another man of sexual assault, whether she had 

accused Smith of sexual assault, or whether she had a reason to make a 

false claim against Banta asserting that he had touched her 

inappropriately when she was a child. Stated another way, he never 

asked Willow whether the reason she accused Banta of molesting her was 

that she didn’t want to live in his home or because she would have 

preferred living with her mother.
8

Darla, who was fifteen years old when she testified, told the jury 

that Banta touched her many times on her sexual organ while “he was 

supposed to be putting medicine on [her], and he was instead enjoying 

himself while putting his hand in me[.]” When asked to demonstrate, 

Darla used a box of tissues and inserted her fingers in and out of the 

opening of the box to show the jury how her father had inserted his 

fingers in and out of her sexual organ. Darla also testified that Banta 

“put a machine up against my vagina” that “look[ed] like a showerhead.” 

Darla added that she saw Banta use the vibrator on Willow and her two 

sisters, Tonya and Beth.10

Grant―Willow’s brother―was fourteen years old when he testified 

at the trial.11 The State called him to show that Banta sexually molested 

Darla and Willow. According to Grant, Banta made his sisters “sit on his 

lap, and he would rub them.” Asked to be more specific, Grant explained 

he saw Banta grab Willow’s “titty[,]” and that he saw his father touch 

Willow on the leg and slowly move his hand up her leg. 

10Pseudonyms.

11A pseudonym.
9

Banta, who testified in his defense, denied that he sexually abused 

any of his children. Banta also called Tonya,the oldest of his daughters, 

as one of the eight witnesses called to testify in his defense. Tonya was 

twenty-one years old when she testified in the trial.Tonya explained that 

she understood Darla and Willow were claiming that their father 

sexually abused them. When asked what her response was to the 

allegations, Tonya testified: “Never happened.” Tonya also said that if 

Banta did ever touch Darla or Willow inappropriately, Banta did so solely 

to treat “boo-boos,” and when he did that, he always wore a glove. 

Beth, another of Banta’s children, was eighteen years old when she 

testified in Banta’s trial. Beth told the jury that she never saw her father 

touch her sisters inappropriately on any of their private parts. According 

to Beth: “He did not do anything wrong.”

Nevertheless, the jury weighed the evidence, assessed the 

credibility of the witnesses, and found Banta guilty of continuous sexual 

abuse as charged in the indictment. In the punishment phase of the trial, 

the jury assessed a ninety-nine-year sentence. The trial court signed a 

judgment consistent with the jury’s verdict and Banta appealed.
10

Standard of Review

We review a trial court’s decision to limit or exclude evidence under 

an abuse of discretion standard.12 We must uphold the ruling if the trial 

court made the correct ruling under any theory of law that applies.13 We 

will reverse the ruling only if it “falls outside the zone of reasonable 

disagreement.”14

Analysis

On appeal, Banta complains the trial court erred in ruling that his 

attorney “would not be allowed to cross-examine [Willow] on the issue of 

having made a false report regarding a sexual offense by another man 

which she later recanted.” Banta contends that had the trial court 

allowed his attorney to cross-examine Willow, Willow’s testimony “would 

have revealed the witness was not trustworthy in relation to such a 

serious allegation and its serious implications.” 

12Johnson v. State, 490 S.W.3d 895, 917 (Tex. Crim. App. 2016); see 

Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (noting 

that “trial judge has wide discretion in limiting the scope and extent of 

cross-examination”). 

13Id. 14Id. 
11

As we pointed out, the prosecutor elicited testimony from Willow 

when presenting the State’s case-in-chief that Willow had accused one of 

her mother’s old boyfriends of touching her inappropriately and then 

changed her story later to say the assault didn’t happen. At trial, Willow 

testified the assault did happen. So then the prosecutor asked Willow to 

explain why she changed her story about the accusation involving her 

mother’s boyfriend twice, once to say it didn’t happen and a second time 

at trial to say that it did. The prosecutor asked Willow: “Why did you tell 

them that it didn’t happen?” Willow answered: “Because I didn’t want to 

do the same thing that we are doing right now.” Thus the jury knew that 

Willow had equivocated on a prior accusation she made on an alleged 

sexual offense that she made against another man. 

At trial, Banta’s attorney argued that under Rule 412 of the Texas 

Rules of Evidence, he had a right to cross-examine Willow about the 

details of the sexual assault claim she made against Smith because it was 

relevant to her bias and motive. “In a criminal case, subject to the 

limitations in Rule 412, a defendant may offer evidence of a victim’s 

pertinent trait, and if the evidence is admitted, the prosecutor may offer 
12

evidence to rebut it.”15 Although subject to five exceptions, Texas Rule of 

Evidence 412 constrains the admissibility of evidence of specific 

instances of the victim’s past sexual behavior in a prosecution for 

aggravated sexual assault.16 The exception that Banta argued applied at 

trial is the exception in Rule 412(b)(2)(C), which provides that evidence 

of specific instances of a victim’s past sexual behavior is admissible if the 

evidence “relates to the victim’s motive or bias[.]”17 But even when the 

evidence of the specific instances of the victim’s past sexual conduct 

relates to the victim’s motive or bias, the probative value of the evidence 

must still outweigh the danger of unfair prejudice.18

In the trial court, Banta’s attorney argued that Willow’s motive in 

accusing Smith—that she wanted her mother to marry Peak—would 

reveal Willow’s bias or interest in testifying against Banta. Except for 

arguing that the evidence was admissible under Rule 412, he did not 

complain about the trial court’s ruling or offer any proof that 

demonstrates the evidence was relevant to Willow’s alleged bias or 

15Tex. R. Evid. 404(2)(A). 

16Id. 412(b).

17Id. 412(b)(2)(C). 

18Id. 412(b)(3). 
13

motive in testifying against Banta.19 The record shows Banta and 

Willow’s mother were already divorced when Willow accused Smith of 

sexual assault. Further, nothing in the record shows that Willow’s 

motherand Banta were dating or were considering getting back together 

following their divorce in 2014. Understandably, since Willow’s desire to 

change her name to Peak did not appear to be relevant to any motive 

Willow might have had in accusing her father of sexually molesting her, 

we hold the trial court did abuse its discretion in ruling the evidence 

inadmissible under Rule 412. 

Like the trial court, we don’t understand how evidence that Willow 

wanted to change her name to Peakis connected to a claim that she would 

have had a motive to accuse her father of sexual abuse. Additionally, we 

have carefully reviewed the record and it does not show that the trial 

court prohibited Banta’s attorney from examining Willow about the fact 

that she accused Smith of sexual assault or the fact that she later 

withdrew her accusation. Instead, the record shows the trial court 

refused to allow Banta’s attorney to cross-examine Willow about why she 

accused Smith because Banta’s attorneynever explained why the reason 

19See id. 103(a)(2). 
14

for her accusing Smith was logically connected to a motive or bias that 

she might have had to testify against her father or to accuse him of sexual 

abuse. 

Under Texas law, “[t]he proponent of evidence to show bias must 

show that the evidence is relevant. The proponent does this by 

demonstrating that nexus, or logical connection, exists between the 

witness’s testimony and the witness’s potential motive to testify in favor 

of the other party.”20 On appeal, Banta argues that the limitation on his 

cross-examination of Willow violated his rights under the Confrontation 

Clause of the Sixth Amendment. We don’t question that “[t]he 

constitutional right of confrontation includes the right to cross-examine 

the witnesses and the opportunity to show that a witness is biased or that 

his testimony is exaggerated or unbelievable.”21 “Nonetheless, the trial 

judge retains wide latitude to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, 

prejudice, confusion of the issues, the witness’s safety, or interrogation 

that is repetitive or only marginally relevant.”22 “The constitutional right 

20Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004).

21Irby v. State, 327 S.W.3d 138, 143 (Tex. Crim. App. 2010). 

22Id. (cleaned up). 
15

to cross-examine concerning the witness’s potential bias or prejudice does 

not include cross-examination that is effective in whatever way, and to 

whatever extent, the defense might wish.”23

We conclude it was within the trial court’s discretion to restrict the 

cross-examination that Banta’s attorney proposed because Banta failed 

to meet his burden to “show a logical connection between the evidence 

suggesting bias or motive and the witness’s testimony.”24 Furthermore, 

even assuming for purposes of argument that the trial court erred in 

refusing to allow Banta’s attorney to question Willow about the reasons 

she accused Smith of sexual assault, the record from the trial shows the 

ruling didn’t prevent Banta from presenting his defense.25 To show the 

exclusion of the evidence deprived an appellant of a fair trial such that it 

amounted to a constitutional error, as Banta argues, the appellant must 

show that “the evidence forms such a vital portion of the case that 

exclusion effectively precludes the defendant from presenting a 

defense.”26 Errors like the one Banta complains of in admitting evidence 

23Id. (cleaned up). 

24Id. at 152.

25Tex. R. App. P. 44.2(a). 26Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). 
16

are considered non-constitutional, and we will not overturn a criminal 

conviction for non-constitutional error if, after examining the record as a 

whole, we have fair assurance the error did not influence the jury or 

influenced the jury only slightly.27

There are at least three reasons the record shows the district court’s 

ruling did not prevent Banta from presenting his defense. First, the jury 

had the benefit of testimony from a friend of the Banta family who was 

familiar with Willow and expressed the opinion that Willow had a poor 

reputation for telling the truth. Cheryl Phillips testified that she has 

known the defendant for more than twenty years and “know[s] all about 

his family.” When Banta’s attorney asked Phillips whether she had an 

opinion about Willow’s reputation for trustworthiness and truthfulness, 

Phillips answered: “She will lie.”28

Second, Banta presented his theory to the jury that the children 

who testified against him—Darla, Willow, and Grant—were lying 

because he was a strict parent compared to their mother and there were 

advantages to living with her. Third, Banta’s attorney did develop his 

27Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

28See Tex. R. Evid. 608 (A Witness’s Character for Truthfulness or 

Untruthfulness).
17

theory that Willow wanted her mother to marry Peak. During the trial, 

Banta’s attorney asked Willow whether she recalled that her mother 

dated Peak, and Willow acknowledged that she did. Then he asked: “Did 

you want to change your name to [Peak] at one time?” Willow answered: 

“Yes, sir.” When Banta called his daughter Beth to testify in his defense, 

she also testified that her brother (Grant) and sister (Willow) wanted to 

change their names to Peak. 

To sum it up, the exceptions in Rule 412 don’t automatically open 

the door to a witness being examined on matters not shown to be relevant 

to a witness’s bias or motive.29 On this record, we conclude that even were 

we to agree (and we don’t) that the trial court erred in restricting the 

scope of Willow’s cross-examination to prevent Banta’s attorney from 

exploring why Willow accused Smith of sexual assault, the “error” didn’t

deprive Banta of a substantial right. Therefore since any alleged “error” 

would have been non-constitutional, it must be disregarded.30

29See Irby, 327 S.W.3d at 152 (“It is not enough to say that all 

witnesses who may, coincidentally, be on probation, have pending 

charges, be in the country illegally, or have some other ‘vulnerable status’ 

are automatically subject to cross-examination with that status 

regardless of its lack of relevance to the testimony of that witness.”).

30See Tex. R. App. P. 44.2(b); Potier, 68 S.W.3d at 666.
18

Conclusion

For the reasons explained above, we conclude that Banta failed to 

establish the trial court erred in ruling that his attorney could not 

question Willow about why she accused Smith of sexual assault. We also 

conclude that even if the trial court erred in limiting the scope of Banta’s 

cross-examination on grounds of relevance, the error was nonconstitutional and must be disregarded. We overrule Banta’s sole issue. 

Accordingly, the trial court’s judgment is

AFFIRMED.

HOLLIS HORTON

Justice

Submitted on August 1, 2023

Opinion Delivered November 1, 2023

Do Not Publish

Before Horton, Johnson and Wright, JJ.