COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00193-CR

NO. 02-09-00194-CR

JEFFREY LEE LITTLEPAGE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Jeffrey Lee Littlepage of three counts of 

aggravated sexual assault of a child—by digital penetration, oral-genital contact, 

and genital-genital contact—and two counts of indecency with a child by 

contact—by touching the child’s female sexual organ and breast. Appellant pled 

true to the repeat offender notice in both indictments, and the trial court 

sentenced him to twenty years’ confinement on each conviction for indecency 

 

1See Tex. R. App. P. 47.4.
2

with a child and sixty years’ confinement on each conviction for aggravated 

sexual assault of a child, with all sentences running concurrently. In ten issues, 

Appellant contends that the evidence is insufficient to support his convictions, 

that the trial court abused its discretion in admitting and excluding certain 

evidence, that the trial court erred by denying his objection to the State’s 

improper closing argument, and that the two judgments for indecency with a child 

by contact should be modified. Because we hold that the evidence is sufficient to 

support all five convictions, that Appellant forfeited two of his complaints, that the 

trial court did not abuse its discretion by excluding evidence of a prior allegation 

by one complainant, and that the trial court’s judgments for indecency with a child 

by contact should be modified, we affirm the trial court’s three judgments for 

aggravated sexual assault of a child, and we affirm as modified the trial court’s 

two judgments for indecency with a child by contact.

I. Background Facts

The two complainants, J.S. and S.S., are sisters and are Appellant’s 

nieces. When they were nine and eight years old, respectively, they visited 

Appellant and his wife at Appellant’s home in Tarrant County on Christmas 2007. 

The girls made an outcry to an aunt, Dalena W., in January 2008 and in turn to 

the paternal aunt with whom they lived, Stephanie S., regarding Appellant’s 

conduct. Stephanie took the girls to Cook Children’s Medical Center, where they 

spoke with a sexual assault nurse, Crystal Utley, and underwent sexual assault 

examinations. The results of the examinations were normal.

II. Evidence Sufficiently Supports Appellant’s Five Convictions

In his fourth through eighth issues, Appellant contends that the evidence is 

factually insufficient to support his five convictions. After the parties briefed this 
3

case on appeal, the Texas Court of Criminal Appeals held ―that there is no 

meaningful distinction between a Clewis factual-sufficiency standard and a 

Jackson v. Virginia legal-sufficiency standard‖ and that

the Jackson v. Virginia standard is the only standard that a reviewing 

court should apply in determining whether the evidence is sufficient 

to support each element of a criminal offense that the State is 

required to prove beyond a reasonable doubt. All other cases to the 

contrary, including Clewis, are overruled.2

Accordingly, we apply the Jackson standard of review to all of Appellant’s 

sufficiency complaints.3 In reviewing the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the 

prosecution in order to determine whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.4

This standard gives full play to the responsibility of the trier of fact to 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.5 The trier of fact is the sole judge of 

the weight and credibility of the evidence.6 Thus, when performing a sufficiency 

review, we may not re-evaluate the weight and credibility of the evidence and 

 

2Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *14 (Tex. Crim. 

App. Oct. 6, 2010).

3

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979).

4

Id. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. 

Crim. App. 2007).

5

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

6See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 

270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 

(2009).
4

substitute our judgment for that of the factfinder.7 Instead, we ―determine 

whether the necessary inferences are reasonable based upon the combined and 

cumulative force of all the evidence when viewed in the light most favorable to 

the verdict.‖8 We must presume that the factfinder resolved any conflicting 

inferences in favor of the prosecution and defer to that resolution.9

A. Counts of Indecency with a Child by Contact

J.S., ten years old at trial, testified that Appellant touched her with his 

hands underneath her panties on her ―middle spot‖ and answered, ―Yes,‖ when 

the prosecutor asked her if that was where she ―pee[d]‖ from. J.S. also 

demonstrated where and how Appellant touched her ―middle spot‖ by using an

anatomically correct doll. J.S. denied that Appellant had touched her breast.

Stephanie testified that J.S. had told her that Appellant was ―feeling on her 

private.‖ Utley testified that J.S. had told her that Appellant had digitally 

penetrated her female sexual organ and had touched her genitals and chest 

area. Utley clarified that J.S. was referring to the breast area, where her nipples 

are. Employing the Jackson standard of review, we hold that the evidence is 

sufficient to support Appellant’s two convictions for indecency with a child by 

contact. We overrule his seventh and eighth issues.

 

7Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. 

denied, 529 U.S. 1131 (2000).

8Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

9

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
5

B. Counts of Aggravated Sexual Assault of a Child

Nine years old at trial, S.S. testified that Appellant touched her private with 

his private and demonstrated with anatomically correct dolls. She testified that

he pulled her panties down and that his private went inside of her private. 

Stephanie testified that S.S. told her that Appellant pulled down her pants and 

―stuck his thing‖ in her; Utley testified that S.S. told her,

Jeff did something bad. He put his thing inside of me. . . .

Something wet came out of his thing. It went in my panties. I took a 

bath. He did it more than once at his house. It started when I was 

seven.

S.S. also testified that Appellant digitally penetrated her female sexual 

organ and demonstrated with the anatomically correct doll. Utley testified that 

S.S. told her that Appellant put his finger inside of S.S., and Utley explained that 

S.S. meant that Appellant had penetrated her.

S.S. also testified that Appellant had pulled her panties down and had put 

his mouth on her ―private.‖ Utley testified that S.S. had told her that Appellant 

had put his mouth on her female sexual organ and had licked it.

Employing the Jackson standard of review, we hold that the evidence is 

sufficient to support Appellant’s three convictions for aggravated sexual assault

of a child. We overrule his fourth, fifth, and sixth issues.

III. Evidence About S.S.’s Prior Allegation Properly Excluded

In his first issue, Appellant contends that the trial court erred by excluding 

evidence that S.S. had previously made a false accusation. The following 

exchange took place at trial when defense counsel questioned S.S.:

Q. Okay. Did you—do you—well, if you don’t remember talking 

to Lindsey Dula, you probably don’t remember this, but do you 
6

remember telling her or someone that no one had ever 

touched you besides [Appellant]?

A. Yes.

Q. And is it true that nobody else had ever touched you?

[PROSECUTOR]: Objection, relevance. We’ve got a motion in 

limine—

A. Yes.

[PROSECUTOR]: Excuse me. Hold on a second.

THE COURT: Hold on.

[PROSECUTOR]: We’ve got a motion in limine on this. If we’re—

we need to have a hearing.

THE COURT: Sustained.

The State did not object to S.S.’s testimony that she remembered telling 

someone that no one but Appellant had ever touched her. Nor does the record 

reflect that the trial court instructed the jury to disregard her post-objection but 

pre-ruling answer that it was true that no one else had ever touched her.

In the hearing that occurred outside the presence of the jury following the 

exchange, the trial court announced,

Okay. In reviewing the case law, it seems clear that under 

608(b) and 412, specific instances of conduct involving the victim 

would not be admissible, unless there’s a showing specifically that it 

was under similar circumstances as the current case, as well as that 

there was a finding that those allegations were false. . . . [D]ue to 

the age of the child, what I would like to do is for y’all to just proffer 

orally what basis you have—good-faith basis or documentation that 

you have that would establish either of those grounds.
7

No one objected to the unavailability of S.S. to be called as a witness in the 

hearing despite her trial testimony in open court prior to the hearing, nor did 

anyone object to not being allowed to call other witnesses at the hearing.

Appellant wanted to question S.S. before the jury about a prior outcry that 

she had made against a man who had allegedly touched her female sexual 

organ. According to a police report, which the trial court admitted for purposes of 

the record, S.S. had claimed in a CPS interview that a family friend had touched 

her female sexual organ by placing his hand on top of her clothing and rubbing 

with his hand. The investigative police officer had closed the investigation after 

interviewing the alleged perpetrator but not the complainant or the complainant’s 

family, because they would not appear for interviews, or the CPS caseworker 

who took S.S.’s videotaped statement and alerted the police, because that 

worker was no longer with the agency. The officer had concluded that the 

allegations were ―unfounded.‖ Specifically, he stated in his report that he did not 

―see any reason based upon the evidence and non-cooperation from the victim’s 

family to continue with this investigation‖ and that the alleged perpetrator, who 

denied the allegations, ―appeared to be telling the truth.‖ The videotaped 

statement was not discussed in the hearing or entered into evidence, and there is 

no indication that the officer reviewed it.

Appellant conceded at trial that rules 608 and 412 would bar him from 

delving into the prior allegation but argued that rule 613 would allow him to 

impeach S.S. with the evidence and contended that the trial court’s refusal to 
8

allow him to ask S.S. about the prior alleged incident before the jury violated his 

rights of confrontation, a fair trial, and effective assistance of counsel. On 

appeal, Appellant mentions no rules but limits his argument to alleged violations 

of his right to fully cross-examine his accuser.

Rule 613 provides,

(a) Examining Witness Concerning Prior Inconsistent 

Statement. In examining a witness concerning a prior inconsistent 

statement made by the witness, whether oral or written, and before 

further cross-examination concerning, or extrinsic evidence of, such 

statement may be allowed, the witness must be told the contents of 

such statement and the time and place and the person to whom it 

was made, and must be afforded an opportunity to explain or deny 

such statement. If written, the writing need not be shown to the 

witness at that time, but on request the same shall be shown to 

opposing counsel. If the witness unequivocally admits having made 

such statement, extrinsic evidence of same shall not be admitted.

This provision does not apply to admissions of a party-opponent as 

defined in Rule 801(e)(2).

(b) Examining Witness Concerning Bias or Interest. In 

impeaching a witness by proof of circumstances or statements 

showing bias or interest on the part of such witness, and before 

further cross-examination concerning, or extrinsic evidence of, such 

bias or interest may be allowed, the circumstances supporting such 

claim or the details of such statement, including the contents and 

where, when and to whom made, must be made known to the 

witness, and the witness must be given an opportunity to explain or 

to deny such circumstances or statement. If written, the writing need 

not be shown to the witness at that time, but on request the same 

shall be shown to opposing counsel. If the witness unequivocally 

admits such bias or interest, extrinsic evidence of same shall not be 

admitted. A party shall be permitted to present evidence rebutting 

any evidence impeaching one of said party's witnesses on grounds 

of bias or interest.
9

(c) Prior Consistent Statements of Witnesses. A prior 

statement of a witness which is consistent with the testimony of the 

witness is inadmissible except as provided in Rule 801(e)(1)(B).10

But to preserve error in the exclusion of evidence, the substance of the 

excluded evidence must be shown by offer of proof unless it is apparent from the 

context of the questions asked.11 Error may be preserved by an offer of proof in 

question and answer form or in the form of a concise statement by counsel.12

Counsel=s concise statement must include a summary of the evidence offered.13

Error is not preserved if the offer of proof is inadequate.14

Because Appellant did not introduce S.S.’s prior statement itself at the 

hearing, did not object to the trial court’s decision to allow no evidence at the 

hearing other than the police report, and did not otherwise make an offer of proof 

of the excluded testimony by S.S., Appellant did not develop beyond speculation 

his theory that S.S. had bias or motive to lie in this case.15 That is, Appellant did 

not provide at the hearing or elsewhere below a sufficient record of the actual, as 

 

10Tex. R. Evid. 613.

11Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2). 

12Tex. R. Evid. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 

1998).

13Warner, 969 S.W.2d at 2.

14Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (holding 

error was not preserved when appellant failed to proffer, with some degree of 

specificity, the substantive evidence he intended to present).

15See Tex. R. Evid. 613.
10

opposed to the speculative, evidence that he wished to use to impeach S.S. We 

therefore cannot conclude on the record before us that the trial court abused its 

discretion or violated Appellant’s right to fully cross-examine his accuser by 

barring him from questioning S.S. about the prior incident in the jury’s presence. 

We overrule Appellant’s first issue.

IV. Forfeited Complaint Regarding Shawntia M.’s Testimony

The State offered the testimony of Shawntia M., Appellant’s sister, as 

rebuttal testimony. Appellant objected,

I understand that [the prosecutor] is saying that this is a continuing—

just one of several continuing patterns or shows a pattern and is 

trying to get this extraneous offense into evidence at this point, and

we strongly object.

Obviously, it’s—many, many years ago is not a pattern. If it is 

true—and, of course, this witness is in custody, and we have not had 

the opportunity to visit with her, so we don’t know what she is going 

to say, but I just don’t think it’s admissible, and to allow it would be to 

deny our client his constitutional rights to confrontation and a fair 

trial.

I mean, it’s just not admissible under the rules. It’s not a 

pattern. Two people—an additional incident is not a pattern.

After Appellant’s initial objection, the prosecutor explained that he was offering 

the testimony under rule 404(b) to rebut the defensive theories of lack of 

opportunity and fabrication; cited case law to support his argument; stated, ―Your 

Honor, if their objection is going to be 403, according to the case law, you’ve got 

to do a balancing test, . . . ‖; and argued the four factors of the balancing test. 

Appellant responded, 
11

Regarding the State’s great need and—well, basically, 

everything the State has said, if—based on his theory, the accused 

person of an offense like this would never be able to come in and 

defend themselves in order to avoid an extraneous offense or an 

alleged extraneous offense come into evidence. We would never be 

able to say there was not opportunity.

That was a fact. We know that people were there. We would 

never be able to say or cross-examine the girls, the victims, and try 

to challenge their credibility, because somebody else might come in

to testify.

For years and years, many cases have been tried and people 

convicted based on just the testimony of the victim. There is no 

great need. He had a video—he said he had no videos. He had a 

video. He could have offered it. We don’t know if we would have 

objected or not. We might not have.

As far as fabrication, if we don’t challenge the victims, we 

have not done our job. The Court of Appeals would reverse the 

conviction based on ineffective assistance of counsel.

So what [the prosecutor] is saying is we can’t do our job, and if 

we do, then, oh, that just blows it open. That does not allow our 

client—for a fair trial, allow for effective assistance of counsel, and it 

does not allow him his rights to properly confront his accusers, and 

it’s just not necessary in this case.

We would strongly object based on the United States 

Constitution, Texas, and Code of Criminal Procedure. That just 

not—we object. It’s our opinion it’s not admissible at this point.

We understand that if we get to the punishment phase, it may 

become admissible, but at this point in this case, under these 

circumstances, and the testimony that’s been given, it’s not 

admissible.

And if we protected ourselves or did not do all of the things 

[the prosecutor] wanted to do, we would be sitting here mute, and 

that is certainly not what a defendant is entitled to.
12

In his second issue on appeal, Appellant contends that the trial court 

abused its discretion by ―admitting Shawntia M[.]’s testimony because its 

probative value was substantially outweighed by the danger of unfair prejudice 

and by the confusion of the issues.‖16 The complaint made on appeal must 

comport with the complaint made in the trial court or the error is forfeited.17 We 

agree with the State that Appellant’s objections to the testimony did not preserve 

his complaint on appeal.

18

 We therefore overrule Appellant’s second issue.

V. Objection to State’s Closing Argument Forfeited

During the State’s final argument in the guilt phase, the prosecutor stated,

And whether or not you have two kids, two kids, four kids, a 

two-year-old, a 23-month-year-old (sic), a three-year-old, two kids, or 

three kids, you know how to judge the credibility of a child. Those 

girls were telling the truth.

And the most damning piece of evidence throughout this 

whole trial was not anything anybody said or any evidence that was 

presented to you, but when [J.S.] walked in, [Appellant] sat there 

and hung his head in shame. He couldn’t even look at her. He 

didn’t even look at her until she started testifying. He hung his head 

because he knew that he was in trouble.

What about Shawntia? I want to be very clear why I brought 

her to you, because they have wasted two days of our time talking 

about how this couldn’t have happened.

 

16See Tex. R. Evid. 403.

17Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (―Whether a 

party=s particular complaint is preserved depends on whether the complaint on 

appeal comports with the complaint made at trial.‖).

18See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 

(Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999).
13

[DEFENSE COUNSEL]: Objection, Your Honor. I object to 

that argument, because it is every defendant’s right in this country to 

come in and present a defense. He is misstating the law. He is 

misleading the jury. He is making a statement that is just not true.

THE COURT: Overruled.

The prosector then repeated that the defense had wasted time twice with no 

objection. While the jury was deliberating, defense counsel asked for a mistrial

based on the argument of the prosecutor . . . when he said 

something to the effect that the Defense has wasted the jurors’ last 

two days by presenting a defense for [Appellant].

It’s our position that that is striking at the defendant over 

counsel’s shoulder; that is denying or telling the jury that it is right to 

deny any accused citizen their right to a defense, their constitutional 

right to a defense, which, of course, is just absolutely improper 

argument.

And for that reason, we ask for a mistrial.

The trial court denied the request for mistrial. On appeal, Appellant contends in 

his third issue that ―[t]he prosecutor struck at defendant over the shoulders of 

counsel during final arguments.‖ This complaint does not comport with 

Appellant’s timely objection at trial.19 Appellant’s request for mistrial mirroring his 

appellate complaint came during jury deliberations and was therefore untimely.20

Accordingly, Appellant forfeited his complaint. We overrule Appellant’s third 

issue.

 

19See Pena, 285 S.W.3d at 464.

20See Tex. R. App. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265.
14

VI. Modifying the Two Judgments of Conviction for Indecency with a Child 

by Contact

As Appellant points out in his ninth and tenth issues, the jury convicted him 

of the conduct alleged in Count Two and Count Three of the indictment in cause 

number 02-09-00194-CR (trial court cause number 1107358D), but the 

judgments and the jury charge bear the notations Count One and Count Two,

respectively, regarding such conduct. It appears that the confusion arose 

because the conduct alleged in Count Two is also a lesser included offense of 

the conduct alleged in Count One, a count on which the jury acquitted Appellant. 

Both parties agree that we should modify the judgments.

21 Accordingly, we 

sustain Appellant’s ninth and tenth issues. We therefore modify the judgment in 

cause number 02-09-00194-CR (trial court cause number 1107358D) currently 

indicating ―COUNT TWO‖ to instead state ―COUNT THREE,‖ we modify the 

judgment in the same cause currently indicating ―COUNT ONE‖ to instead state 

―COUNT TWO,‖ and we delete ―(LESSER INCLUDED OFFENSE)‖ from the 

description of ―Offense for which Defendant Convicted:‖ in that judgment.

 

21See Hughes v. State, 493 S.W.2d 166, 170 (Tex. Crim. App. 1973) 

(allowing modification of judgment to show the offense of which the accused was 

found guilty).
15

VII. Conclusion

Having overruled all issues concerning cause number 02-09-00193-CR 

(trial court cause number 1107352D), we affirm the trial court’s three judgments 

in that cause. Having sustained Appellant’s ninth and tenth issues concerning 

cause number 02-09-00194-CR (trial court cause number 1107358D) but having 

overruled all other issues, we affirm the trial court’s two judgments in that cause 

as modified.

LEE ANN DAUPHINOT

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 16, 2010