Opinion filed January 20, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00019-CR 

__________

BRANDON EUTAHN HARP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 011698

M E M O R A N D U M O P I N I O N

The jury convicted Brandon Eutahn Harp of continuous sexual abuse of a 

young child and assessed his punishment at confinement for forty years in the 

Institutional Division of the Texas Department of Criminal Justice. Appellant 

challenges his conviction in two issues. We affirm. 
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Background Facts

The State charged Appellant by indictment with the offense of continuous 

sexual abuse of a young child. The State alleged that Appellant committed the 

following: 

. . . did then and there during a period that was 30 or more days in 

duration, namely from on or about September 1, 2014, through 

September 1, 2016, when the Defendant was 17 years of age or older, 

commit two or more acts of sexual abuse against a child younger than 

14 years of age, namely, did then and there intentionally and knowingly 

cause the penetration of the anus of [E.B.], a child who was then and 

there younger than 14 years of age, by Defendant’s sexual organ; and 

did then and there intentionally and knowingly cause the penetration of 

the mouth of [E.B.], a child who was then and there younger than 14 

years of age, by the Defendant’s sexual organ. 

On November 8, 2017, E.B. told her elementary school principal, Laurie 

Florence, that she had been raped by her uncle, Appellant. At the time she made her 

outcry, E.B. was nine years old and in second grade. E.B. told Florence that 

Appellant had stuck his penis in her anus and that Appellant told her if she ever told 

anyone, he would kill her. Florence then took E.B. to her office, where she called 

the Jones County Sheriff’s Office. Deputy Zach Solis responded to Florence’s call. 

Florence also contacted CPS and E.B.’s father, J.B.

Deputy Solis, J.B., and M.W. (J.B.’s mother) then accompanied E.B. to the 

Abilene Child Advocacy Center (CAC), where Brandon Gurganus interviewed E.B. 

Following E.B.’s interview with Gurganus, Deputy Solis took E.B. to Hendrick 

Medical Center in Abilene for a sexual assault examination. The next day, Deputy 

Solis obtained an arrest warrant for Appellant and executed it without incident. After 

arresting Appellant, Deputy Solis then interviewed E.B. on November 15, 2017.

During the months leading up to her outcry, E.B. lived at her grandparents’ 

house with her mother, P.H. Before moving in with her grandparents, E.B. and P.H.
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lived in several different places with various friends. When E.B. was not living at 

her grandparents’ house, she would still see them about once a week. Appellant is 

P.H.’s younger brother, and while E.B. was living at her grandparents’ house, 

Appellant was living in a shed behind their house. Appellant was born with 

neurofibromatosis. This condition caused Appellant to have his leg amputated at the 

age of sixteen. From then on, Appellant has used a prosthetic leg. 

At trial, one of Appellant’s main defensive theories was that E.B.’s testimony 

was coached. This theory spawned from E.B.’s parents’ contentious divorce, which

had occurred nearly a year before she made her outcry. The divorce decree provided 

that J.B. and P.H. would be joint managing conservators of E.B. and that P.H. would 

have the right to designate E.B.’s primary residence. Additionally, the divorce 

decree provided that J.B. would pay child support. J.B. did not hire a lawyer to 

represent him during the divorce proceedings. 

Throughout the year leading up to E.B.’s outcry, P.H. and J.B. would 

exchange custody of E.B. at the Abilene Law Enforcement Center. Neither P.H. nor 

J.B. were very fond of each other. In September 2017, P.H. and J.B.’s ongoing fight 

over child support and E.B.’s primary residence boiled over and ended with J.B.

hiring a lawyer to represent him. J.B., at the time, was around $1,000 behind on his 

child support obligations and had expressed his dissatisfaction with P.H.’s parenting. 

At trial, Appellant theorized that J.B. and M.W. coached E.B. to outcry against him 

to get J.B. out of his child support obligations.

Analysis

In his second issue, Appellant challenges the sufficiency of the evidence

supporting his conviction. He asserts that “[t]he evidence is insufficient to support 

a finding that Appellant sexually assaulted E.B. over a period exceeding 30 days.” 

A person commits the offense of continuous sexual abuse of a child if (1) during a 
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period that is thirty or more days in duration, the person commits two or more acts 

of sexual abuse, and (2) at the time of the commission of each of the acts of sexual 

abuse, the actor is seventeen years of age or older and the victim is a child younger 

than fourteen years of age, regardless of whether the actor knows the age of the 

victim at the time of the offense. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 

2021). “Sexual abuse” means an act that violates one or more penal laws as specified 

in Section 21.02(c), including aggravated sexual assault. Id. § 21.02(c)(4); see also 

id. § 22.021 (West 2019). As noted previously, the indictment alleged that Appellant 

committed two or more acts of sexual abuse against E.B., to-wit: aggravated sexual 

assault of a child, during a period of thirty or more days in duration. See PENAL

§ 22.021(1)(B)(i), (ii). 

We review a challenge to the sufficiency of the evidence under the standard 

of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 

(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all 

of the evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010). 

When conducting a sufficiency review, we consider all the evidence admitted 

at trial, including pieces of evidence that may have been improperly admitted. 

Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the 

sole judge of the witnesses’ credibility and the weight their testimony is to be 

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s 

duty to resolve conflicts in the testimony, to weigh the evidence, and to draw 
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reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; 

Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we 

presume that the factfinder resolved the conflicts in favor of the verdict and defer to 

that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. 

It is not necessary that the evidence directly prove the defendant’s guilt; 

circumstantial evidence is as probative as direct evidence in establishing a 

defendant’s guilt, and circumstantial evidence can alone be sufficient to establish 

guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing 

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not 

point directly and independently to guilt if the cumulative force of all incriminating 

circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. 

Because evidence must be considered cumulatively, appellate courts are not 

permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the 

evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, 

appellate courts must consider the cumulative force of all the evidence. Villa v. 

State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).

The uncorroborated testimony of a child victim is alone sufficient to support 

a conviction for a sexual offense. See TEX.CODE CRIM. PROC. ANN. art. 38.07 (West 

Supp. 2021); Chapman v. State, 349 S.W.3d 241, 245 (Tex. App.—Eastland 2011, 

pet. ref’d); see also Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) 

(concluding child victim’s testimony alone was sufficient to establish element of 

penetration beyond a reasonable doubt). Furthermore, corroboration of the victim’s 

testimony by medical or physical evidence is not required. Gonzalez Soto v. State, 

267 S.W.3d 327, 332 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.); see 

Cantu v. State, 366 S.W.3d 771, 775–76 (Tex. App.—Amarillo 2012, no pet.); Lee v. 

State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 
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S.W.3d 620 (Tex. Crim. App. 2006). Thus, the testimony of E.B. alone can be 

sufficient to support a conviction for continuous sexual abuse of a child. See 

Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.). 

Appellant first contends that the evidence was insufficient to support his 

conviction beyond a reasonable doubt because the sexual assault examination 

yielded no evidence of repeated trauma. But as we noted above, medical or physical 

corroboration testimony is not required in sexual abuse cases involving minors. See 

Gonzalez Soto, 267 S.W.3d at 332. Thus, the lack of any acute or chronic injury to 

E.B.’s anus was not required for Appellant’s conviction. See id. In this regard, 

Appellant’s nurse expert, Carrie Edwards, testified on cross-examination that no 

acute injury is found in 50%–75% of all sexual assault examinations. 

Second, Appellant contends that E.B.’s testimony at trial was too vague and 

contradictory to support Appellant’s conviction beyond a reasonable doubt. 

Appellant is essentially asserting that E.B.’s testimony was unreliable. For example, 

Appellant contends that E.B. gave different answers as to when the alleged sexual 

assaults by Appellant began and whether the assaults continued after she made her 

outcry. Appellant contends that the evidence was such that the jury could only 

speculate that he committed multiple acts of sexual abuse over a period of thirty or 

more days in duration.

“[A]lthough the exact dates of the abuse need not be proven, the offense of 

continuous sexual abuse of a child does require proof that there were two or more 

acts of sexual abuse that occurred during a period that was thirty or more days in 

duration.” Michell v. State, 381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no 

pet.); see Smith v. State, 340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, 

no pet.) (“[T]he offense of continuous sexual abuse of a child does require proof that 

the last act of sexual abuse occur on at least the 29th day after the day of the first 
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act.”). Appellant asserts that a jury is prohibited from drawing conclusions based on 

speculation. See Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) 

(citing Hooper, 214 S.W.3d at 15). 

“Speculation is mere theorizing or guessing about the possible meaning of the 

facts and evidence presented.” Id. (quoting Hooper, 214 S.W.3d at 16). Conversely, 

“an inference is a conclusion reached by considering other facts and deducing a 

logical consequence from them.” Id. “Juries are permitted to draw multiple 

reasonable inferences from the evidence as long as each inference is supported by 

the evidence presented at trial[.]” Id. (citing Hooper, 214 S.W.3d at 15). Appellant 

primarily relies on the fact that E.B.’s trial testimony about when the abuse started 

was contradictory to what she had said in previous interviews.

At trial, E.B. testified that she thought that Appellant began sexually abusing 

her when she was five years old and that the abuse continued almost weekly until 

she was ten years old. During an interview with the CAC, E.B. stated that the abuse 

began when she was seven years old and continued until she was nine. A week after 

her interview with the CAC, E.B. stated that the abuse began when she was six years 

old and continued until she was eight.

As we noted in Michell, “[t]he legislature created the offense of continuous 

sexual assault against young children who are normally unable to identify the exact 

dates of the offense when there are ongoing acts of sexual abuse.” 381 S.W.3d at 

561; see Williams v. State, 305 S.W.3d 886, 890 n.7 (Tex. App.—Texarkana 2010, 

no pet.) (citing Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) 

(Cochran, J., concurring) (“Perhaps the Texas Legislature can address this 

conundrum and consider enacting a new penal statute that focuses upon a continuing 

course of conduct crime—a sexually abusive relationship that is marked by a pattern 
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or course of conduct of various sexual acts.”)). The Texas Court of Criminal 

Appeals noted in Villalon that: 

[There is an] important public policy that we cannot expect the child 

victims of violent crimes to testify with the same clarity and ability as 

is expected of mature and capable adults. To expect such testimonial 

capabilities of children would be to condone, if not encourage, the 

searching out of children to be the victims of crimes such as the instant 

offense in order to evade successful prosecution. 

791 S.W.2d at 134. 

Even though E.B.’s trial testimony regarding when the abuse started may have 

been contradicted by her statements in prior interviews, as an appellate court, when 

there are contradictions in the evidence, we are to assume that the jury resolved the 

conflict in favor of the verdict. See Clayton, 235 S.W.3d at778. Irrespective of when 

the sexual abuse started, E.B.’s testimony established that acts of sexual abuse 

committed against her spanned more than thirty days. Whether E.B.’s abuse started 

when she was five, six, or seven and lasted until she was either eight, nine, or ten, 

her testimony clearly established that she was sexually abused more than ten times. 

E.B. testified that she was sexually abused almost weekly during the period of abuse.

Even though E.B. was unable to definitively state the exact date of each 

instance of abuse, she was able to provide consistent detail regarding the abuse. In 

both of her interviews and in her testimony, E.B. alleged that Appellant had sexually 

abused her multiple times. E.B. testified that each time Appellant abused her, he 

took off his prosthetic leg. E.B. stated that each time Appellant abused her, he would 

first put his penis in her mouth and then put his penis in her anus. E.B. testified that 

Appellant would only abuse her when either all occupants of the house were away 

from the home or were asleep. Viewed in the light most favorable to the jury’s 

verdict, we conclude that a rational trier of fact could have found beyond a 
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reasonable doubt that Appellant committed the offense of continuous sexual abuse 

as alleged in the indictment. We overrule Appellant’s second issue.

In his first issue, Appellant asserts that the trial court erred in denying his 

motion for mistrial. Appellant’s trial counsel made the motion after the trial court 

received a note from a juror during a recess taken during E.B.’s cross-examination. 

The note stated as follows: “Ms. Florence said [E.B.] had learning problems and the 

child mentioned being in a class for dyslexia. I don’t see why [Appellant’s trial 

counsel] asked her to read a page from counseling instead of reading it aloud.” 

Appellant contends that the note from the juror demonstrated the juror’s bias toward 

him, thus denying him his right to an impartial jury.

The trial court and the attorneys extensively discussed the note outside the 

presence of the jury. At the outset, the trial court stated: 

I don’t know how many jury trials I’ve been through. I’ve never had a 

juror send me a note questioning how I’m conducting business or what 

I’m allowing and not allowing. I’m concerned about the prejudice of 

the undertone of this note, is what I’m concerned about. 

In further discussing the note, the trial court stated: 

I’ve never had a juror send me a note, period, not until they deliberate. 

I mean, look, she clearly has an issue with the way the young lady was 

cross-examined about a written document. 

. . . .

We’re all solid legal minds. Why would they send this note? This isn’t 

asking for a smoke break. It’s not asking for a legal definition. It’s not 

asking for an explanation. It’s chastising me for allowing [Appellant’s 

trial counsel] to insult this young lady by asking her -- and this jury is 

pissed off because he asked this young lady to read a document when 

we all know she’s dyslexic and can’t read.

. . . .
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[Appellant’s trial counsel’s] law license and his freedoms are not at 

stake. The reality is the person that pays the price for this is his client, 

who’s facing 25 to 99 or life. My point is that. Why -- I mean, this 

isn’t -- if it just asked, Could you ask the witness to speak up, wouldn’t 

bother me. Could you ask her to look at us? Wouldn’t . . . bother me. 

Could you ask [trial counsel] to be a little nicer? That wouldn’t bother 

me. She is taking issue -- she is so emboldened . . . that she thought she 

needed to pen a note to the Court and make it clear to me that she had 

issue with that. 

After learning what the note said, Appellant’s trial counsel moved for a 

mistrial based on the prejudice that he perceived that it presented to Appellant. The 

trial court denied Appellant’s motion for a mistrial. However, the trial court 

announced that it would permit Appellant’s trial counsel to take remedial measures 

to address the juror’s concern. Trial counsel subsequently advised E.B. that because 

of evidentiary rules, he is required to hand a document to a witness to read. He 

further advised E.B. that he was not trying to put her “on the spot” or embarrass her. 

A mistrial is a device used to halt trial proceedings when error is so prejudicial 

that expenditure of further time and expense would be wasteful and futile. Young v. 

State, 283 SW.3d 854, 878 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d 547, 

567 (Tex. Crim. App. 1999). A mistrial is an extreme remedy for a narrow class of 

highly prejudicial and incurable errors during the trial process. Ocon v. State, 284 

S.W.3d 880, 884 (Tex. Crim. App. 2009). “Because it is an extreme remedy, a 

mistrial should be granted ‘only when residual prejudice remains’ after less drastic 

alternatives are explored.” Id. at 884–85 (quoting Barnett v. State, 161 S.W.3d 128, 

134 (Tex. Crim. App. 2005)). 

A defendant need not request lesser remedies before moving for a mistrial. 

Id. (citing Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004)). However, 

“when the movant does not first request a lesser remedy, we will not reverse the 

court’s judgment if the problem could have been cured by the less drastic 
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alternative.” Id. at 884. Before granting a mistrial, the trial court must consider all 

of the facts of the particular case. Id. The trial court should only grant a motion for 

mistrial if there is still residual prejudice even after curative measures are taken. Id. 

at 885 (citing Barnett, 161 S.W.3d at 134). 

We review the denial of a motion for mistrial for an abuse of discretion. 

Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). “An appellate court 

views the evidence in the light most favorable to the trial court’s ruling, considering 

only those arguments before the court at the time of the ruling.” Ocon, 284 S.W.3d 

at 884. A trial court does not abuse its discretion unless its decision falls outside the 

zone of reasonable disagreement. Archie, 221 S.W.3d at 699. “Only in extreme 

circumstances, where the prejudice is incurable, will a mistrial be required.” 

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

A juror must keep an open mind as to a defendant’s guilt until all of the 

evidence is presented. Quinn v. State, 958 S.W.2d 395, 403 (Tex. Crim. App. 1997).

When a juror makes “statements outside of deliberations that indicate bias or 

partiality, such bias can constitute jury misconduct that prohibits the defendant from 

receiving a fair and impartial trial.” Granados v. State, 85 S.W.3d 217, 235 (Tex. 

Crim App. 2002) (citing Quinn, 958 S.W.2d at 402). Juror disqualification based

upon bias is not ordinarily appropriate unless the bias stems from an extrajudicial 

source. Quinn, 958 S.W.2d at 402–03 (analyzing juror disqualification for bias on 

the same basis as judicial disqualification for bias). In this regard, “it defies common 

sense and human nature to require that a juror have no impressions or opinions until 

the judge sends the jury to deliberations. Jurors must necessarily engage in at least 

some assessment of credibility and evaluation of the evidence as the proceedings 

occur.” Id. at 403. Thus, “opinions based upon evidence received in judicial 

proceedings do not ordinarily raise questions about impartiality.” Id.
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Here, the alleged bias concerned an opinion expressed by a juror about the 

manner in which Appellant’s trial counsel questioned the child victim. Thus, the 

alleged bias did not arise from an extrajudicial source. See id. at 402–03. Appellant 

did not request for the juror making the statement to be questioned to determine if 

he or she was biased against Appellant because of the expressed opinion, or if he or 

she had shared that opinion with other jurors. See Ocon, 284 S.W.3d at 886 (the 

questioning of a juror to determine misconduct should be at the behest of the party 

seeking relief). “Ultimately, when a sitting juror expresses bias against the accused, 

the trial court must determine whether the juror can set aside that bias and remain 

fair and impartial.” State v. Hernandez, 363 S.W.3d 745, 751–52 (Tex. App.—

Austin 2011, pet. ref’d) (citing Granados, 85 S.W.3d at 235–36; Quinn, 958 S.W.2d 

at 403). That inquiry simply did not occur. Furthermore, Appellant did not request 

the removal of the juror that expressed the opinion. These would have been less 

drastic remedies than a mistrial. See Ocon, 284 S.W.3d at 884–85. 

The trial court did not abuse its discretion by denying Appellant’s motion for 

mistrial. The record does not indicate that the juror’s opinion about the method used 

by Appellant’s trial counsel to question E.B. would ultimately affect the juror’s 

ability to render a verdict based upon the evidence offered at trial. Additionally, the 

trial court permitted Appellant’s trial counsel to offer an explanation to cure any 

prejudice. Specifically, the trial court announced as follows:

I’m going to allow great latitude, [Appellant’s trial counsel]. . . . 

[I]f you want to fabricate a reason to approach the young lady and ask 

her a question on something and be apologetic to her and say, Ma’am, 

I’m sorry I’m asking you to read this, but the rules of law require that I 

do it this way, if you would like to backdoor that, you’re free to do that. 

Or if you want to just leave it alone, that’s up to you. But you are free 

to somehow address the issue artfully through your expertise, if you 

would like to do so. 
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As we noted previously, Appellant’s trial counsel took advantage of this opportunity 

upon the jury’s return to the courtroom. We conclude that this approach taken by 

the trial court and Appellant’s trial counsel was sufficient to address the juror’s 

concern about the manner in which trial counsel questioned E.B. Accordingly, we 

overrule Appellant’s first issue. 

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

January 20, 2022

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.