IN THE

TENTH COURT OF APPEALS

No. 10-18-00353-CR

WINSTON LUKE MCDANIEL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 43956 CR

MEMORANDUM OPINION

In eleven issues, appellant, Winston Luke McDaniel, challenges his convictions for 

four counts of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021 

(West 2019). We affirm.
McDaniel v. State Page 2

I. THE ADMISSION OF OUTCRY TESTIMONY

In his second issue, McDaniel complains that the trial court abused its discretion 

by admitting the testimony of two outcry witnesses—the child victim’s mother, Amanda, 

and the forensic interviewer, Teresa Evans. We disagree.

We review a trial court’s admission or exclusion of evidence for an abuse of 

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court 

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any 

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 

1990). When considering a trial court’s evidentiary decision, we will not reverse the trial 

court’s ruling unless it falls outside the “zone of reasonable disagreement.” Id. at 391; see 

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

To be admissible under article 38.072 of the Code of Criminal Procedure, outcry 

testimony must be elicited from the first adult to whom the outcry is made. See TEX. CODE 

CRIM. PROC. ANN. art. 38.072 (West Supp. 2019); see also Chapman v. State, 150 S.W.3d 809, 

812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Article 38.072 requires “that the 

outcry witness . . . be the first person, 18 years or older, to whom the child makes a 

statement that in some discernible manner described the alleged offense” and provides 

more than “a general allusion that something in the area of child abuse was going on.” 

Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).
McDaniel v. State Page 3

Testimony of a second outcry witness is admissible if it concerns a separate, 

discrete instance of sexual abuse from the instance testified about by the first outcry 

witness. See Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d). 

The outcry testimony of a second witness is not admissible, however, when the witness 

merely provides additional details regarding the same instance of sexual abuse. Brown 

v. State, 189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet. ref’d) (“[B]efore more than 

one outcry witness may testify, it must be determined the outcry concerned different 

events and was not simply a repetition of the same event told to different individuals.”); 

Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d) (“[T]he proper 

outcry witness is not to be determined by comparing statements the child gave to 

different individuals and then deciding which person received the most detailed 

statement about the offense.”). The outcry witness is not person-specific, but rather 

event-specific. Broderick, 35 S.W.3d at 73; see Mireles v. State, 413 S.W.3d 98, 104 (Tex. 

App.—San Antonio 2013, pet. ref’d); Josey v. State, 97 S.W.3d 687, 692 (Tex. App.—

Texarkana 2003, no pet.) (concluding that the mother was the proper outcry witness for 

an act of oral conduct, but the forensic interviewer was the proper outcry witness for an 

act of digital penetration).

Before trial, the trial court conducted a hearing on the admissibility of outcry 

statements pursuant to article 38.072 of the Code of Criminal Procedure. The State offered 

two outcry witnesses—Amanda and Evans. During the hearing, Amanda noted that the 
McDaniel v. State Page 4

child victim first stated that she was being sexually abused in December 2014, when she 

was four years old, at Amanda’s grandparents’ house. Amanda further testified that the 

child victim first told Amanda’s grandmother, Joyce, about the abuse; however, Joyce 

passed away before the trial. Amanda recalled that the child victim told her: “[Y]ou 

know how like when big people basically kiss and how sometimes they use their 

tongue? . . . [T]hat happened but on my tee-tee.” When referring to her “tee-tee,” the 

child victim pointed to her vagina. The child victim stated that the kissing happened “a 

lot,” and she demonstrated for Amanda how McDaniel touched her vaginal area with his 

hands, spreading her vaginal lips apart and rubbing between them. The child victim also 

told Amanda that McDaniel: put his “wee-wee . . . in her butt,” moved up and down, 

and peed “on her back”; and also tried to put his penis in her mouth and “pushed her 

head really, really hard,” but she said “no, no, no, no.”

Evans recounted that she conducted a forensic interview of the child victim on 

December 30, 2014. During the interview, the child victim described how McDaniel took 

off his clothes and stood on top of the bed over her, showing her his penis. The child 

victim also stated that McDaniel kissed her butt while she was lying on the bed watching 

a video, specifically mentioning that McDaniel’s tongue went “in her butt” when he 

kissed her.

In the trial court, McDaniel objected to the outcry statements for extraneous 

offenses and objected that Amanda was the only proper outcry witness. The trial court 
McDaniel v. State Page 5

overruled both objections and permitted both Amanda and Evans to testify about the 

child victim’s statements.

On appeal, McDaniel first argues that Amanda and Evans were not the proper 

outcry witnesses because Joyce was the first adult to whom the child victim spoke about 

the sexual abuse. This argument was not made in the trial court and, thus, was not 

preserved. See TEX. R. APP. P. 33.1(a).

And even if McDaniel had preserved his complaint regarding Joyce’s failure to 

testify, the complaint lacks merit because the record demonstrated that Joyce had passed 

away before trial and a person who is unable or unavailable to testify at trial is not a 

proper outcry witness. See Foreman v. State, 995 S.W.2d 854 (Tex. App.—Austin 1999, pet. 

ref’d) (interpreting the “first person” in article 38.072, section 2(a)(2) as “the first adult 

who can remember and relate at trial the child’s statement that in some discernible manner 

describes the alleged offense” (emphasis added)); see also Reynolds v. State, 227 S.W.3d 

355, 369 (Tex. App.—Texarkana 2007, no pet.) (same); Carty v. State, 178 S.W.3d 297, 306 

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (same). Furthermore, McDaniel 

conceded at the article 38.072 hearing that Amanda was the proper outcry witness. 

Moreover, Evans was the proper outcry witness because she testified about a different 

instance of abuse perpetrated against the child victim than Amanda. See Tear v. State, 74 

S.W.3d 555, 559 (Tex. App.—Dallas 2002, pet. ref’d) (“Multiple outcry witnesses can 

testify about different instances of abuse committed by the defendant against the victim. 
McDaniel v. State Page 6

If the child victim first described one type of abuse to one outcry witness, and first 

described a different type of abuse to a second outcry witness, the second witness could 

testify about the different instance of abuse.” (citing Hernandez v. State, 973 S.W.2d 787, 

789 (Tex. App.—Austin 1998, pet. ref’d))).

Next, McDaniel argues that the outcry witnesses impermissibly testified about 

extraneous offenses. However, in his appellant’s brief, McDaniel did not identify what 

extraneous offenses were impermissibly testified to by the outcry witnesses. Therefore, 

this complaint is inadequately briefed and, thus, presents nothing for review. See TEX. R.

APP. P. 38.1(i) (requiring clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record); see also Busby v. State, 253 S.W.3d 

661, 673 (Tex. Crim. App. 2008) (“This Court has no obligation to construct and compose 

appellant’s issues, facts, and arguments ‘with appropriate citations to authorities and to 

the record.’” (quoting TEX. R. APP. P. 38.1(i))).

And even if this complaint had been preserved, the purported extraneous offenses 

were admissible as same-transaction contextual evidence. See Prible v. State, 175 S.W.3d 

724, 731-32 (noting that evidence of “other crimes, wrongs, or acts” may be admissible as 

same-transaction contextual evidence when “several crimes are intermixed, or blended 

with one another, or connected so that they form an indivisible criminal transaction”); see 

also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (stating that sametransaction contextual evidence is “admissible to show the context in which the criminal 
McDaniel v. State Page 7

act occurred” and that “events do not occur in a vacuum, and the jury has a right to hear 

what occurred immediately prior to and subsequent to the commission of that act so that 

it may realistically evaluate the evidence”). We overrule McDaniel’s second issue.

II. VOIR DIRE OF A LAY WITNESS

In his third issue, McDaniel asserts that he was improperly prevented from 

conducting voir dire of a witness prior to the admission of the State’s Exhibit 1, which 

were telephone calls the witness recorded.

Between juror selection and the start of the guilt-innocence phase of trial, the trial 

court conducted a hearing outside the presence of the jury on the admissibility of State’s 

Exhibit 1, which were recordings of cell phone conversations between McDaniel and 

Amanda. At this hearing, Amanda testified about the conversations, how she made the 

recordings using the “Tape-A-Call” app, and that the recordings fairly and accurately 

depicted the conversations. McDaniel extensively cross-examined Amanda regarding 

the recordings, asking her about blank space at the front of each call, what Amanda told 

McDaniel during the blank space before the recording began, whether she had edited any 

of the calls after they were made, and whether she had deleted any calls.

At trial, Amanda testified that she used the “Tape-A-Call” app to make the 

recordings and that she had used both the cell phone and the app prior to calling 

McDaniel to ensure that the app recorded calls. She also accounted for the blank space 

at the beginning of each call, explaining that it was the time the app took to “merge” into 
McDaniel v. State Page 8

the call and start recording. After listening to State’s Exhibit 1, Amanda testified that the 

exhibit was a fair and accurate representation of her conversations with McDaniel. When 

the State offered the exhibit into evidence, McDaniel requested to take Amanda on voir 

dire. He stated that he did not believe the State “met the predicate” and wanted to voir 

dire Amanda to see if she knew how the app worked. The trial court overruled 

McDaniel’s objection, denied him the opportunity to take the witness on voir dire, and 

told McDaniel that he could cross-examine Amanda on that issue. The record reflects 

that McDaniel later cross-examined Amanda on whether she could control when the calls 

merged and what she had told McDaniel during the silent portion before the recordings 

began.

As discussed earlier, the trial court held a pretrial hearing where McDaniel was 

given the opportunity to cross-examine Amanda about the tapes. In fact, McDaniel 

extensively cross-examined Amanda about the tapes at the pretrial hearing and later 

before the jury—more than thirty pages of the record. The trial court has broad discretion 

managing trial, see Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005), and 

McDaniel does not automatically get an opportunity to interrupt the State’s case-in-chief 

to cross-examine a witness by use of voir dire questioning. See TEX. R. EVID. 611 

(providing the trial court with broad discretion in controlling the mode and order of 

interrogation of witnesses and presentation of evidence so long as the exercise of 
McDaniel v. State Page 9

discretion is reasonable, efficient, and in the pursuit of justice). Therefore, we conclude 

that the trial court did not err. Accordingly, we overrule McDaniel’s third issue.

III. ALLEGED JUROR BIAS

In his fourth issue, McDaniel argues that he was denied his Sixth Amendment 

right to an unbiased jury when the trial court denied his request to question a juror about 

purportedly disparaging remarks made about defense counsel.

A juror must keep an open mind as to the ultimate question before him or her until 

all the evidence has been received. Quinn v. State, 958 S.W.2d 395, 403 (Tex. Crim. App. 

1997) (noting that “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”). When a 

sitting juror makes statements outside of deliberations that indicate bias or partiality, 

such as 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). If a 

juror’s statements or conduct raise a question as to whether the juror is biased, the trial 

court should conduct an inquiry to determine the juror’s intent when making the 

statement. Id. at 236; see Ocon v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009) (stating 

that juror questioning “is a helpful tool for measuring the necessity for a mistrial,” but “it 

is not required”). The trial court retains discretion in determining whether a juror is 

biased, and we review the trial court’s decision in the light most favorable to its recorded 

findings. Granados, 85 S.W.3d at 236; see Anderson v. State, 633 S.W.2d 851, 853-54 (Tex. 
McDaniel v. State Page 10

Crim. App. [Panel Op.] 1982) (“When bias or prejudice are not established as a matter of 

law, the trial court has discretion to determine whether bias and prejudice actually exists 

to such a degree that the prospective juror is disqualified and should be excused from 

jury service.”). The trial court also has discretion in determining whether to grant a 

motion for mistrial based on allegations of juror misconduct. Granados, 85 S.W.3d at 236.

In Ocon, the Court of Criminal Appeals opined that:

Our case law does not establish juror questioning as a mandatory remedy, 

nor do the Texas Rules of Evidence. Rule 606(b) permits, but does not 

require, juror testimony relating to improper outside influence or 

qualification to serve. And, contrary to Appellant’s assignment of the 

burden to the court and the State, if jurors are questioned, it should be at 

the behest of the movant. Precedent on this issue, including the case cited 

in Appellant’s brief, establishes that it is incumbent upon the party moving 

for a mistrial to request an inquiry of the jurors. . . .

That the party alleging juror misconduct, not the State nor the court, 

should initiate juror questioning, is consistent with our rules of error 

preservation. Questioning jurors who allegedly participated in misconduct 

is a less drastic remedy than a mistrial. An appellant who moves for a 

mistrial without first requesting a less drastic alternative forfeits appellate 

review of that class of events that could have been cured by the lesser 

remedy.

284 S.W.3d at 886-87 (internal citations omitted).

In the instant case, defense counsel informed the trial judge of the following: 

Your Honor, I went to the restroom on the break. When I walked in, two 

jurors were talking. I didn’t say anything to them. One said something 

along the lines of, I wish I could object. I proceeded into the stall and didn’t 

hear the rest of the conversation. But it—it is possible they were discussing, 

if not the matter of the case, then definitely commenting on the lawyers and 

opinions there—thereof.
McDaniel v. State Page 11

Defense counsel later stated:

My fear would be that the one making that statement is trying to poison the 

rest of the panel. And it is talking about what’s occurring in the courtroom. 

And the Court has admonished them not to do so.

Because of the foregoing, and because defense counsel believed that the particular 

juror “is ready to kill [him]” and had been “staring [him] down,” defense counsel 

requested to question the juror. The trial judge refused to allow questioning of the juror 

and instead issued further detailed admonishments and warnings to the jury and 

instructed his bailiff to “monitor the situation very carefully.” McDaniel did not request 

a mistrial or file a motion for new trial with affidavits alleging juror misconduct.

Because he failed to move for a mistrial or file a motion for new trial raising the 

issue of juror misconduct with accompanying affidavits, McDaniel did not preserve this 

issue for appellate review. See Castillo v. State, 319 S.W.3d 966, 970 (Tex. App.—Austin 

2010, pet. ref’d) (“To preserve error caused by juror misconduct, the defendant must 

either move for a mistrial or file a motion for new trial supported by affidavits of a juror 

or other person in a position to know the facts alleging misconduct.”); see McIntire v. State, 

698 S.W.2d 652, 658 (Tex. Crim. App. 1985).

Nevertheless, even if this issue had been preserved, nothing in this record 

indicates that the trial judge abused his discretion by refusing to question the 

complained-of juror. See Granados, 85 S.W.3d at 236; see also Anderson, 633 S.W.2d at 853-

54. Indeed, the Ocon Court mentioned that questioning a juror for juror misconduct is 
McDaniel v. State Page 12

not required. See 284 S.W.3d at 886-87. Furthermore, by itself, nothing in the brief 

statement presented to the trial judge—“I wish I could object”—necessarily indicated a 

bias on the part of the juror. To hold otherwise would require inappropriate speculation 

on our part. The filing of a motion for new trial with affidavits from other jurors could 

have provided the necessary context for the comments. McDaniel chose not to do this. 

Therefore, for the foregoing reasons, we overrule McDaniel’s fourth issue. See Granados, 

85 S.W.3d at 236; see also Anderson, 633 S.W.2d at 853-54.

IV. OPINION TESTIMONY AND WITNESS BOLSTERING

In his fifth issue, McDaniel alleges that the State offered improper opinion 

testimony from Sergeant Timothy Scott of the Midlothian Police Department regarding 

whether the child victim showed signs of being coached. Specifically, McDaniel 

complains that Sergeant Scott’s testimony constituted improper witness bolstering and 

that Sergeant Scott’s testimony on coaching was inadmissible because he had not been 

qualified as an expert witness on coaching.

A review of Sergeant Scott’s testimony shows that defense counsel first raised the 

possibility that the child victim was coached “or maybe somebody had coached her.” 

Later, during re-direct, the State asked: “Now, all this, did it appear as though [the child 

victim] had been coached to say these things?” Sergeant Scott answered, “No.” Defense 

counsel then objected on the ground of speculation.
McDaniel v. State Page 13

To preserve error for appellate review, a complaining party must make a timely 

and specific objection. See TEX. R. APP. P. 33.1(a)(1); see also Wilson v. State, 71 S.W.3d 346, 

349 (Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must 

correspond or comport with objections and arguments made at trial. Dixon v. State, 2 

S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex. 

App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the 

issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154 

S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding 

that an issue was not preserved for appellate review because appellant’s trial objection 

did not comport with the issue he raised on appeal). Because McDaniel’s bolstering and 

expert-witness complaints in this issue do not comport with his speculation objection 

made in the trial court, we cannot say that he has preserved this complaint for appellate 

review. See TEX. R. APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Dixon, 2 S.W.3d 

at 273; Wright, 154 S.W.3d at 241.

And even if this complaint was preserved, it lacks merit because McDaniel had 

already opened the door to the child victim possibly being coached through the 

questioning of Sergeant Scott. See Kipp v. State, 876 S.W.2d 330, 335-36 (Tex. Crim. App. 

1994) (concluding that, if the defendant introduces evidence regarding whether a child 

has been coached into making allegations, the State may respond with evidence that the 

child was not coached). Accordingly, we overrule McDaniel’s fifth issue.
McDaniel v. State Page 14

V. THE ADMISSION OF EXPERT TESTIMONY

In his sixth issue, McDaniel argues that the State offered improper testimony from 

Evans and Angela Marquart, the child victim’s therapist at the Children’s Advocacy 

Center, regarding the phases of abuse and outcry, reporting dynamics, and behavioral 

characteristics of sexual-abuse victims. Specifically, McDaniel asserts that the improper 

testimony from Evans and Marquart “allowed the witnesses to report what the 

complainant said out-of-court and give their speculative conclusions about its 

reliability.”

The record reflects that McDaniel did not object to any of Evans’s testimony 

pertaining to the phases of abuse and outcry, reporting dynamics, and behavioral 

characteristics of sexual-abuse victims. And though McDaniel objected to whether 

Marquart was properly qualified as an expert, he did not object to the substance of her 

testimony.

As stated earlier, to preserve error for appellate review, a complaining party must 

make a timely and specific objection. See TEX. R. APP. P. 33.1(a)(1); see also Wilson, 71 

S.W.3d at 349. Regarding McDaniel’s complaints about Evans’s testimony, McDaniel’s 

failure to object to the above-referenced subject matter preserves nothing for appellate 

review as to Evans. See TEX. R. APP. P. 33.1(a)(1); see also Wilson, 71 S.W.3d at 349. 

Furthermore, McDaniel’s complaints on appeal regarding Marquart’s testimony do not 

comport with the objection made at trial and, thus, present nothing for appellate review. 
McDaniel v. State Page 15

See TEX. R. APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Dixon, 2 S.W.3d at 273; 

Wright, 154 S.W.3d at 241.

And even if McDaniel had preserved this complaint, we note that McDaniel 

opened the door to Evans’s testimony when he questioned Evans about coaching. This 

allowed the State to follow up on that subject. With respect to Marquart’s testimony, she 

never touched on whether the child victim was telling the truth; she only opined on the 

characteristics of child sexual abuse victims and the abuse process. We therefore overrule 

McDaniel’s sixth issue.

VI. ADMISSION OF THE SANE (“SEXUAL ASSAULT NURSE EXAMINER”) RECORDS

In his seventh issue, McDaniel asserts that State’s Exhibit 25, the child victim’s 

medical records from her SANE examination, were improperly admitted because they 

were not records for medical diagnosis and treatment. We disagree.

The medical-diagnosis exception to the hearsay rule is outlined in Texas Rule of 

Evidence 803(4) and provides the following:

The following are not excluded by the rule against hearsay, regardless of 

whether the declarant is available as a witness:

. . .

(4) Statement made for Medical Diagnosis or Treatment.

A statement that:

(A)is made for—and is reasonably pertinent to—medical 

diagnosis or treatment; and
McDaniel v. State Page 16

(B) describes medical history; past or present symptoms or 

sensations; their inception; or their general cause.

TEX. R. EVID. 803(4).

Teresa Fugate, a nurse at Cook Children’s Medical Center, testified that the 

purpose of the SANE exam is to “diagnose and treat, to make sure that they’re okay as 

far as anything they may have been exposed to based on the type of contact that’s 

happened.” Nurse Fugate recounted that she performed a medical exam on the child 

victim on January 6, 2015, and that she explained the process to the child victim “to make 

sure they’re physically and mentally okay.” Nurse Fugate later affirmed that the child 

victim was “made aware that she [was] here for the purpose of medical diagnosis and 

treatment . . . .” Additionally, the record reflects that Nurse Fugate did a physical 

examination of the child victim for injuries, tested for gonorrhea and chlamydia, and 

referred the child victim for additional treatment, including counseling through the 

Gingerbread House and additional testing for sexually-transmitted diseases, such as HIV 

and syphilis.

Based on the foregoing testimony, the trial court did not abuse its discretion by 

finding that the medical records from the child victim’s SANE exam were for medical 

diagnosis and treatment and, thus, satisfied the Rule 803(4) hearsay exception. See TEX.

R. EVID. 803(4); Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d) 

(“The object of a sexual assault exam is to ascertain whether the child has been sexually 

abused and to determine whether further medical attention is needed. Thus, statements 
McDaniel v. State Page 17

describing acts of sexual abuse are pertinent to the victim’s medical diagnosis and 

treatment.”); Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, pet. ref’d) 

(“We conclude that the child’s statements to [a pediatrician and a mental health therapist] 

describing the abusive acts and identifying the abuser were reasonably pertinent to 

medical diagnosis and treatment, and were properly admitted pursuant to Rule 803(4).”); 

see also Martinez, 327 S.W.3d at 736.

And even if it was error to admit the medical records from the child victim’s SANE 

exam, the substance of the records was admitted elsewhere through the child victim’s 

testimony without objection. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) 

(holding that any error in the admission of evidence is cured when the same evidence is 

admitted elsewhere without objection); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. 

Crim. App. 1998) (same). Accordingly, we overrule McDaniel’s seventh issue.

VII. SUFFICIENCY OF THE EVIDENCE

In his first issue, McDaniel contends that the evidence supporting his convictions 

in Counts 2 and 4 is insufficient. We disagree.

The Court of Criminal Appeals has expressed our standard of review of a 

sufficiency issue as follows:

When addressing a challenge to the sufficiency of the evidence, we 

consider whether, after viewing all of the evidence in the light most 

favorable to the verdict, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. 

State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires 
McDaniel v. State Page 18

the appellate court to defer “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. We may not re-weigh the evidence or substitute our 

judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 

(Tex. Crim. App. 2007). The court conducting a sufficiency review must 

not engage in a “divide and conquer” strategy but must consider the 

cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although 

juries may not speculate about the meaning of facts or evidence, juries 

are permitted to draw any reasonable inferences from the facts so long 

as each inference is supported by the evidence presented at trial. Cary 

v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 

U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 

2007). We presume that the factfinder resolved any conflicting 

inferences from the evidence in favor of the verdict, and we defer to that 

resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). 

This is because the jurors are the exclusive judges of the facts, the 

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

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct 

evidence and circumstantial evidence are equally probative, and 

circumstantial evidence alone may be sufficient to uphold a conviction 

so long as the cumulative force of all the incriminating circumstances is 

sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 

(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient to 

support a conviction by comparing it to “the elements of the offense as 

defined by the hypothetically correct jury charge for the case.” Malik v. 

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically 

correct jury charge is one that “accurately sets out the law, is authorized 

by the indictment, does not unnecessarily increase the State's burden of 

proof or unnecessarily restrict the State's theories of liability, and 

adequately describes the particular offense for which the defendant was 

tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. 

App. 2013). The “law as authorized by the indictment” includes the 

statutory elements of the offense and those elements as modified by the 

indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
McDaniel v. State Page 19

As noted above, McDaniel was convicted of four counts of aggravated sexual 

abuse of a child; however, on appeal, he only challenges the sufficiency of the evidence 

as to Counts 2 and 4. In Count 2, McDaniel was charged with intentionally or knowingly 

causing his sexual organ to contact or penetrate the anus of the child victim, who was 

then and there younger than six years of age. See TEX. PENAL CODE ANN. § 

22.021(a)(1)(B)(i), (iv). In Count 4, McDaniel was charged with intentionally or 

knowingly causing his mouth to contact or penetrate the anus of the child victim, who 

was then and there younger than six years of age. See id. § 22.021(a)(1)(B)(i), (iv).

The child victim, who was nine years old at the time of trial, testified that McDaniel 

put his penis on her “butt,” which she described as the area she uses to go “number two” 

in the bathroom, and “peeing inside her butt.” The child victim also noted that McDaniel 

used his lips to tongue and kiss her butt. The record reflects that the child victim used a 

tissue box to demonstrate how McDaniel touched her butt with his penis and mouth.

The two outcry witnesses—Amanda and Evans—supported the child victim’s 

testimony. Specifically, Amanda recounted that the child victim stated that McDaniel 

“put his wee-wee in my butt and peed on my back.” Later, the child victim told Evans 

that McDaniel kissed her butt and stuck his tongue in it on two separate occasions.

Despite the foregoing, McDaniel argues on appeal that the evidence cannot be 

sufficient because the child victim’s testimony was “confusing” and inconsistent, and 

because there was no physical evidence. These arguments are merely attacks on the jury’s 
McDaniel v. State Page 20

determination of the weight and credibility of the evidence. The jury resolves conflicts 

in the evidence and decides what weight to assign each piece of evidence. Jackson, 443 

U.S. at 319; Cary, 507 S.W.3d at 757; Brooks, 323 S.W.3d at 899; Hooper, 214 S.W.3d at 16-

17. And we are to defer to the jury’s resolution of such conflicts in the evidence. See 

Merritt, 368 S.W.3d at 525.

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

for aggravated sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 

Supp. 2019); 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); see also Cantu v. State, 366 

S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.). Moreover,

[t]he courts will give wide latitude to testimony given by child victims of 

sexual abuse. The victim’s description of what happened need not be 

precise, and the child is not expected to communicate with the same level 

of sophistication as an adult. Corroboration of the victim’s testimony by 

medical or physical evidence is not required.

Cantu, 366 S.W.3d at 776 (internal citations omitted). We therefore reject these 

complaints.

McDaniel also argues that the evidence did not establish that he penetrated the 

child victim’s anus, as opposed to merely her buttocks. Though she did not identify her 

anus specifically, the child victim did describe her “butt” or “bottom” as the place where 

she went “number two” in the bathroom and that McDaniel “peed inside her butt.” She 

also identified her “butt” on anatomical drawings. Amanda noted that the child victim 
McDaniel v. State Page 21

stated that McDaniel “put his wee-wee in my butt and peed on my back.” Because the 

child victim is not expected to testify with the same degree of precision as an adult, and 

because the jury could have inferred that the child victim was referring to her anus when 

she spoke about her “butt” or “bottom,” the foregoing evidence is sufficient to show 

penetration of the child victim’s anus by McDaniel’s sexual organ. See TEX. PENAL CODE 

ANN. § 22.021(a)(1)(B)(i), (iv); Saldana v. State, 287 S.W.3d 43, 61 (Tex. App.—Corpus 

Christi 2008, pet. ref’d) (“We have previously held that evidence showing penetration of 

the complainant’s ‘butt’ was legally sufficient to sustain a conviction for penetration of 

the ‘anus.’”); Mallet v. State, 9 S.W.3d 856, 864 (Tex. App.—Fort Worth 2000, no pet.) 

(“[T]he jury could reasonably infer that K.A.’s reference to ‘butt’ or ‘backside where she 

goes to the bathroom’ was a reference to her anus.”); see also Martinez v. State, Nos. 14-03-

00596-CR & 14-03-00597-CR, 2004 Tex. App. LEXIS 4949, at *4 (Tex. App.—Houston [14th 

Dist.] May 25, 2004, pet. ref’d) (mem. op.) (“The jury could have rationally concluded that 

‘in my butt’ indicated penetration of the anus.”).

Finally, McDaniel complains that the evidence only demonstrated that he 

penetrated the child victim’s anus with his tongue, rather than his mouth. Given that 

other courts have rejected McDaniel’s argument, and because the child victim testified 

that McDaniel’s tongue went inside her butt, the jury was entitled to conclude that 

McDaniel used his mouth to contact or penetrate the anus of the child victim, as alleged 

in Count 4. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iv); Montoya v. State, 841 
McDaniel v. State Page 22

S.W.2d 419, 422 (Tex. App.—Dallas 1992), rev’d on other grounds, 906 S.W.2d 528 (Tex. 

Crim. App. 1995) (“If we limit mouth to the cavity containing the tongue, gum, and teeth, 

then we defeat the intent of the statute because a cavity cannot make contact with another 

object or person as required under the statute. Common sense and common usage leads 

us to conclude that the legislature intended the word ‘mouth’ to include its parts, such as 

the teeth and tongue.”); Johnson v. State, 882 S.W.2d 39, 41 (Tex. App.—Houston [1st Dist.] 

1994, pet. ref’d); see also Smith v. State, No. 08-03-00384-CR, 2005 Tex. App. LEXIS 4203, at 

*27 (Tex. App.—El Paso 2005, pet. ref’d) (mem. op., not designated for publication) 

(“[C]ommon sense requires that the word ‘mouth’ as used in Section 22.01(a)(1)(B)(iii) 

must be read to include its parts such as the tongue.”).

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude 

that a rational trier of fact could have concluded that McDaniel committed the offense of 

aggravated sexual assault of a child, as alleged in Counts 2 and 4. See id.; see also Jackson, 

443 U.S. at 319; Zuniga, 551 S.W.3d at 732-33; Villa, 514 S.W.3d at 232. As such, we 

conclude that McDaniel’s convictions in Counts 2 and 4 are supported by sufficient 

evidence. See id.; see also Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732-33; Villa, 514 

S.W.3d at 232. We overrule McDaniel’s first issue.
McDaniel v. State Page 23

VIII. STACKING MCDANIEL’S SENTENCES

In his eighth and ninth issues, McDaniel complains that the trial court improperly 

stacked his sentences and that the stacking of the sentences amounted to cruel and 

unusual punishment and infringed on the jury’s authority.

We review a trial court’s decision to cumulate sentences for an abuse of discretion. 

See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West 2018). The trial judge has absolute 

discretion to cumulate sentences if the law authorizes the imposition of cumulative 

sentences. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016). A trial court abuses 

its discretion if it imposes consecutive sentences where the law requires concurrent 

sentences. Id. at 446-47.

Pursuant to section 3.03 of the Penal Code:

(b) If the accused is found guilty of more than one offense arising out of the 

same criminal episode, the sentences may run concurrently or 

consecutively if each sentence is for a conviction of:

. . . 

(2) an offense:

(A)under Section 33.021 or an offense under Section 21.02, 

21.11, 22.021, 25.02, or 43.25 committed against a victim 

younger than 17 years of age at the time of the commission 

of the offense regardless of whether the accused is 

convicted of violations of the same section more than once

or is convicted of violations of more than one section . . . .

TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2019).
McDaniel v. State Page 24

In the instant case, McDaniel was convicted of four counts of aggravated assault 

of a child under section 22.021 of the Penal Code. See id. § 22.021. These operate as four 

separate convictions—all of which were subject to cumulation under section 3.03(b)(2)(A) 

of the Penal Code.1 See id. § 3.03(b)(2)(A).

Despite the foregoing, McDaniel complains that the sentences could not be 

cumulated under section 3.03 because the convictions were not part of the same criminal 

episode. We are not persuaded by this argument because the convictions were for the 

repeated commission of a similar criminal offense. See id. § 3.01(2) (West 2011) (defining 

a “criminal episode” as “the commission of two or more offenses” where “the offenses 

are the repeated commission of the same or similar offenses.”).

McDaniel further argues that the stacking of his sentences constituted cruel and 

unusual punishment. However, McDaniel did not object to the stacking of his sentences 

on the ground of cruel and unusual punishment. Rather, he focused his objection to the 

stacked sentences on the applicability of article 42.08 of the Code of Criminal Procedure 

and that the trial court invaded the province of the jury. Because McDaniel did not object 

in the trial court to his stacked sentences as tantamount to cruel and unusual punishment, 

1 Among McDaniel’s arguments in these issues is that Counts 1 and 3 could not be stacked because 

they alleged alternative means of committing the same offense. Count 1 alleged that McDaniel penetrated 

the child victim’s sexual organ with his finger. In Count 3, the State alleged that McDaniel contacted or 

penetrated the child victim’s sexual organ with his mouth. Contrary to McDaniel’s assertion, each of these 

are separate and distinct statutory offenses, rather than merely alternate means for committing the same 

offense. See Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). And because Counts 1 and 3 are 

separate and distinct offenses, they were subject to stacking. 
McDaniel v. State Page 25

we conclude that this argument is not preserved. See Ham v. State, 355 S.W.3d 819, 825 

(Tex. App.—Amarillo 2011, pet. ref’d) (“Constitutional rights, including the right to be 

free from cruel and unusual punishment, can be forfeited by a failure to raise a complaint 

on specific constitutional grounds in the trial court.”); see also Rhoades v. State, 934 S.W.2d 

113, 120 (Tex. Crim. App. 1996) (holding that a complaint of the constitutional right to be 

free from cruel and unusual punishment was forfeited when no objection on this basis 

was made in the trial court).

Next, McDaniel argues that the stacking of his sentences invaded his Sixth 

Amendment right to a jury trial and to be punished by a jury. McDaniel characterizes 

this argument as an Apprendi violation. See generally Apprendi v. New Jersey, 520 U.S. 466, 

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

In Apprendi, the United States Supreme Court determined that “[o]ther than the 

fact of a prior conviction, any prior fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. The Court of Criminal Appeals 

has stated that Apprendi and its progeny clearly deal with the upper-end extension of 

individual sentences, when that extension is contingent upon findings of fact that were 

never submitted to the jury. Barrow v. State, 207 S.W.3d 377, 379 (Tex. Crim. App. 2006). 

These decisions do not, however, speak to a trial court’s authority to cumulate sentences 

when that authority is provided by statute and is not based upon discrete fact-finding, 
McDaniel v. State Page 26

but is wholly discretionary. Id.; see TEX. CODE CRIM. PROC. ANN. art. 42.08(a). In the 

instant case, the trial court imposed a valid sentence within the statutorily-prescribed 

range for each of McDaniel’s four convictions. See Barrow, 207 S.W.3d at 379. 

Accordingly, we cannot say that the trial court’s cumulation order violated Apprendi.

2

 See 

id. We overrule McDaniel’s eighth and ninth issues.

IX. LIMITING THE TESTIMONY OF MCDANIEL’S EXPERT WITNESS

In his tenth issue, McDaniel argues that the trial court improperly limited his 

expert’s testimony regarding the possibility that the child victim’s allegations were based 

on a dream.

We review a trial court’s decision to admit or exclude expert testimony for an 

abuse of discretion. See Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A 

trial court abuses its discretion when its decision lies outside the zone of reasonable 

disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

The Texas Rules of Evidence set out three separate conditions regarding the 

admissibility of expert testimony. First, Rule 104(a) requires a trial judge to determine 

“[p]reliminary questions concerning the qualification of a person to be a witness.” TEX.

2 As a corollary to his Apprendi argument, McDaniel directs us to the recent United States Supreme 

Court decision in United States v. Haymond, where the Court held that a mandatory consecutive sentencing 

scheme is unconstitutional. 139 S. Ct. 2369, 2378, 204 L. Ed. 897 (June 26, 2019). However, the Haymond

decision centered on the fact that the defendant was only eligible for an additional sentence because the 

judge made a fact finding. Id. In contrast, as mentioned above, Texas’s stacking scheme is purely 

discretionary and is not based on any fact finding by the trial judge. See Barrow v. State, 207 S.W.3d 377, 

379-80 (Tex. Crim. App. 2006); see also TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West 2018). As such, we 

do not find the Haymond decision to be applicable in this case. 
McDaniel v. State Page 27

R. EVID. 104(a). Second, Rule 702 states: “If scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a fact 

in issue, a witness qualified as an expert by knowledge, skill, experience, training, or 

education may testify thereto in the form of an opinion or otherwise.” Id. at R. 702. Third, 

Rule 402 renders relevant evidence admissible. Id. at R. 402. Rule 401 defines “relevant 

evidence” as “having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it 

would be without the evidence. Id. at R. 401.

These rules require the trial judge to make the following inquires, prior to 

admitting expert testimony: “(1) the witness qualifies as an expert by reason of his 

knowledge, skill, experience, training, or education; (2) the subject matter of the 

testimony is an appropriate one for expert testimony; and (3) admitting the expert 

testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 

S.W.3d 525, 527 (Tex. Crim. App. 2006). These inquiries are commonly referred to as 

qualification, reliability, and relevance, respectively. Vela v. State, 209 S.W.3d 128, 131 

(Tex. Crim. App. 2006).

The proponent of scientific evidence bears the burden of demonstrating by clear 

and convincing evidence that the evidence is reliable. Jackson v. State, 17 S.W.3d 664, 670 

(Tex. Crim. App. 2000). “This is accomplished by showing: (1) the validity of the 

underlying scientific theory; (2) the validity of the technique applying the theory; and (3) 
McDaniel v. State Page 28

proper application of the technique on the occasion in question.” Id. (citing Kelly v. State, 

824 S.W.2d 568, 573 (Tex. Crim. App. 1992)).

In this case, the trial court conducted a hearing outside the presence of the jury 

and qualified McDaniel’s expert, Dr. Aaron Pierce, on several subjects. However, 

McDaniel never qualified Dr. Pierce regarding dream interpretation, nor did he present 

evidence regarding the reliability of dream interpretation contributing to false allegations 

of sexual abuse. Because McDaniel offered no evidence on the qualifications of Dr. Pierce 

regarding dream interpretation, and because McDaniel also failed to proffer evidence 

establishing the reliability of this subject, we cannot say that the trial court abused its 

discretion by limiting Dr. Pierce’s testimony on dream interpretation under Rule 702. See

TEX. R. EVID. 702; Rodgers, 205 S.W.3d at 527; see also Ellison, 201 S.W.3d at 723. We 

overrule McDaniel’s tenth issue.

X. CUMULATIVE ERROR

In his eleventh issue, McDaniel asserts that the cumulative effect of the 

aforementioned errors violated his due process rights under the Fourteenth Amendment 

of the United States Constitution.

An appellate court should consider the cumulative effect when there are multiple 

errors. See Martin v. State, 151 S.W.3d 236, 242 (Tex. App.—Texarkana 2004, pet. ref’d). It 

is possible that a number of errors may be harmful in their cumulative effect. See Feldman 

v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002); Hughes v. State, 24 S.W.3d 833, 844 
McDaniel v. State Page 29

(Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). 

However, non-errors cannot produce harm in their cumulative effect. See Hughes, 24 

S.W.3d at 844; Chamberlain, 998 S.W.2d at 238; see also Stooksbury v. State, No. 10-08-00174-

CR, 2009 Tex. App. LEXIS 7128, at *14 (Tex. App.—Waco Sept. 9, 2009, pet. ref’d) (mem. 

op., not designated for publication). We have not found error; therefore, we cannot say 

that there is cumulative error. See Hughes, 24 S.W.3d at 844; see also Stooksbury, 2009 Tex. 

App. LEXIS 7128, at *14. Accordingly, we overrule McDaniel’s eleventh issue.

XI. CONCLUSION

Having overruled all of McDaniel’s issues on appeal, we affirm the judgment of 

the trial court.

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

*(Chief Justice Gray concurring with a note)

Affirmed

Opinion delivered and filed March 23, 2020

Do not publish

[CRPM]

*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)