In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00020-CR

______________________________

ROBBIE JOE WELCH, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 38396-A

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
2

MEMORANDUM OPINION

A jury found Robbie Joe Welch not guilty on the two counts of aggravated sexual assault, 

but guilty on the two counts of indecency with a child; the jury assessed punishment of eight years‟ 

imprisonment on the first count of indecency with a child, and two years on the second count of 

indecency with a child. The trial court ordered the sentences to run consecutively. 

On appeal, Welch contends that: (1) the evidence is legally insufficient to support the 

conviction; (2) the trial court erred by admitting Welch‟s video-recorded statement; (3) the trial 

court erred by admitting irrelevant evidence; (4) the trial court erred by admitting hearsay 

evidence; (5) the trial court erred by refusing to allow Welch to subpoena evidence; and (6) the 

trial court erred by limiting Welch‟s cross-examination of a witness. We affirm the judgment of 

the trial court.

I. Facts 

In 2007, a few years prior to the indictments in this case, Cody Millsap, the son of Welch, 

reported that Welch was sexually abusing Jane Doe,

1

a minor child. However, based largely 

upon Jane‟s denial of the allegations, the Child Protective Services (CPS) determined that no abuse 

had occurred. A year or two later, Jane told her grandmother that Welch had sexually abused her. 

Jane‟s allegations were for the same alleged actions and time period as those of the previous CPS 

investigation. After the grandmother contacted the police, and Jane was forensically interviewed, 

Welch was arrested and indicted on two counts of aggravated sexual assault and two counts of 

 

1The pseudonym used at trial, which we will continue. 
3

indecency with a child. All of the counts allege acts involving the same complaining witness, 

Jane. 

II. Sufficiency of the Evidence

In his first two points of error, Welch contends that the evidence was insufficient2to 

support the verdict. In evaluating legal sufficiency, we review all the evidence in the light most 

favorable to the jury‟s verdict to determine whether any rational jury could have found the 

essential elements of indecency with a child beyond a reasonable doubt. Brooks, 323 S.W.3d at 

912 (citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. 

App.––Texarkana 2010, pet. ref‟d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 

2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. 

Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the 

direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly 

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

facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing 

Jackson, 443 U.S. at 318–19). 

 

2Welch argues the evidence is both legally and factually insufficient to support his conviction. In Brooks v. State, 323 

S.W.3d 893, 894–95, 912–13 (Tex. Crim. App. 2010) (a 4-1-4 decision with one judge joining the lead opinion with a 

concurring opinion and another concurring with the lead opinion and joining that concurrence), a plurality of the 

Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 

126 (Tex. Crim. App. 1996), and its progeny. The plurality and the concurring judges agreed that the Jackson v. 

Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the sole 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. Brooks, 323 S.W.3d at 894–95, 912–13. Since the Texas Court of Criminal 

Appeals has abolished factual sufficiency review, we need not address the defendant‟s challenge to the factual 

sufficiency of the evidence.
4

Legal sufficiency of the evidence is measured by the elements of the offense as defined by 

the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). Under a hypothetically correct jury charge, Welch committed the offense of indecency 

with a child by contact against Jane if (1) Welch (2) on a date before those listed in the indictment3

(3) in Gregg County, Texas (4) either engaged in sexual contact with Jane or caused Jane to engage 

in sexual contact (5) when Jane was younger than seventeen years of age at that time and not 

Welch‟s spouse. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon Supp. 2010). Sexual contact 

means “any touching by a person” of “any part of the genitals of a child” or “any touching of any 

part of the body of a child” with “any part of the genitals of a person,” “if committed with the intent 

to arouse or gratify the sexual desire of any person.” TEX. PENAL CODE ANN. § 21.11(c) (Vernon 

Supp. 2010). 

A person engages in sexual contact “by touching the anus, by touching the breast, or by 

touching the genitals with the requisite intent. Each one of these acts represents a different 

offense.” Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007). “Consequently if a 

person touches the anus, breasts, and genitals of a child with the requisite intent during the same 

transaction, the person is criminally responsible for three separate offenses.” Id. at 718.

 

3The State may allege in an indictment that an offense occurred “on or about” a date certain. Sledge v. State, 953 

S.W.2d 253, 255–56 (Tex. Crim. App. 1997). “[T]he „on or about‟ language of an indictment allows the State to 

prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the 

indictment and within the statutory limitation period.” Id. at 256. 
5

Count three of the indictment alleges that Welch touched Jane‟s genitals and count four 

alleges contact with Jane‟s breast. Welch contends that: (1) “a finding of guilt as to more than 

one count is clearly not justified” because the State failed to prove that the actions alleged in both 

counts occurred in Gregg County, Texas,

4

and (2) the evidence supporting the verdict is 

insufficient because it is inconsistent and inaccurate, and “taken in total, simply paint[s] a picture 

that cannot result in a conviction.”5 

Jane testified that Welch first sexually touched her while she lived in Kilgore with her 

mother, her stepbrother, Millsap, and Welch. It happened after she turned thirteen. She testified 

that Welch touched her breasts and her genitals6 with his hands. Rebecca Cunio, the forensic 

interviewer, testified that during the forensic interview, Jane told her that during this episode of 

contact, Welch was “touching her on her breasts, on her vagina, and on her bottom.” During the 

forensic interview, Jane recalled Welch asking her “if it feels good while he rubs her on these 

places.” Kilgore Police Officer Tony Stone testified that the Kilgore home Welch and Jane lived 

in at the time of the alleged contact was located in Gregg County, Texas. 

In his argument, Welch directs our attention to several issues. The sexual abuse 

allegations in this case are the same allegations that Millsap made in 2007, when Jane denied being 

 

4

Specifically, he argues that “[t]he CAC interview indicates that the child said only one incident of fondling took place 

in Gregg County” and that “[a]ll other allegations relate to alleged incidents in Dallas or Tyler.” 

5Welch‟s sufficiency argument does not challenge that the evidence is sufficient that the alleged offenses occurred: 

(1) on a date or dates prior to those listed in the indictment; (2) at a time Jane was younger than seventeen years of age; 

or (3) at a time when Jane was not Welch‟s spouse. Therefore, we do not address these elements on appeal. 

6At trial, Jane referred to her breasts as “bubbles” and her genitals as her “pee pee.”
6

abused and CPS found no abuse to have occurred. Millsap made the allegations after running 

away from home and being found by the police. During the CPS investigation of Millsap‟s 

allegations, Jane and her mother both pointed out that Millsap had behavioral issues and would lie 

to get attention or to get the “heat” off of him. 

In the current investigation, two days after Jane told her grandmother of the alleged abuse, 

Watson first spoke with relative and family friend, Officer Stone, and at his direction, she spoke 

with the child and typed a written statement of what Jane told her. Welch asserts that the 

grandmother, the outcry witness, was not a credible witness because of her previous negative 

financial dealings7 with Welch, her visitation with Jane had been restricted, her anger at Welch 

over Jane‟s allegations, and the fact that she waited two days to report the initial outcry. Welch 

also attacks the written statement, the basis of Stone‟s police report, because Cunio and others 

testified that it was best for an allegedly abused child to be forensically interviewed by a trained 

professional “so as not to lead the child or to implant memories that did not exist, not to make the 

child -- not to suggest things to the child that did not occur.” 

Last, Welch points out that Jane‟s testimony was conflicting and inconsistent. Paula 

Bradley, Jane‟s counselor, testified that Jane was easily manipulated and that approval from her 

grandmother was important to her. Bradley stated that Jane would need frequent breaks when 

talking to an investigator about sexual abuse, and during the trial, Jane did take several breaks 

 

7

Jane‟s grandmother had cosigned with Welch on a vehicle that Welch and Jane‟s mother were purchasing. 

However, Welch defaulted, leaving the grandmother to pay the note.
7

during cross-examination, but only one during direct. Jane testified that the abuse occurred in 

“my -- in his bedroom,” but on cross she admitted that the Kilgore home only had one bedroom, 

occupied by her and sometimes Millsap, and that Welch and her mother slept on a futon in the 

living room. Jane testified that Millsap knew of the abuse because, on one occasion, he saw it 

happening when he walked into the room; however, Millsap testified that he never saw any abuse 

occur, and the only way he knew about it was because Jane told him. 

Because there is evidence that Welch, with the requisite intent, touched Jane‟s breast and 

genitals during the same transaction, Welch could be legally charged and convicted of two 

separate offenses. Pizzo, 235 S.W.3d at 718. There was also testimony from both Jane and 

Cunio that the breast and genital contact occurred while Jane and Welch were at home in Kilgore, 

and Officer Stone testified that their home in Kilgore was located in Gregg County, Texas. The 

evidence is of sufficient strength to support the jury‟s finding that the separate offenses alleged in 

counts three and four occurred in Gregg County, Texas.

Welch attacks the credibility of witnesses and points to the conflicts and inconsistencies in 

the evidence as he argues that the evidence is so unreliable that the convictions must be reversed. 

However, the “jury is the exclusive judge of the credibility of witnesses and of the weight to be 

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the 

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see also TEX. CODE 

CRIM. PROC. ANN. art. 38.04 (Vernon 1979). The jury may reasonably infer facts from the 
8

evidence presented, and is free to believe or disbelieve all or part of a witness‟ testimony. Jones 

v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998); Sharp v. State, 707 S.W.2d 611, 614 (Tex. 

Crim. App. 1986).

While there was conflicting evidence in this case as well as questions regarding witness 

credibility, the jury in this case was free to weigh the credibility of the witnesses and resolve any 

conflicts in the evidence against Welch. Here, when viewing the evidence in the light most 

favorable to the verdict, there is sufficient evidence from which a rational jury could find that the 

State proved beyond a reasonable doubt the elements alleged in counts three and four of the 

indictment. Accordingly, we overrule Welch‟s first two points of error. 

III. The Admission of Welch’s Video-Recorded Statement

After Welch was taken into custody, the Kilgore police questioned him and video-recorded 

his statement. At trial, the recorded statement was admitted into evidence as State‟s Exhibit 3 and 

Defense Exhibit 1.8 In his third point of error, Welch contends that the trial court erred in 

admitting his recorded statement because he invoked his right to counsel twice near the beginning 

of the statement.9

Generally, a party must object to preserve error on appeal. See TEX. R. APP. P. 33.1(a). 

However, pursuant to Rule 103(d) of the Texas Rules of Evidence, appellate courts may take 

 

8At trial, Welch orally objected and sought to suppress the last two or three minutes of the statement because, at the 

time in the video, Welch asserted his right to counsel. The trial court sustained the objection. The last three minutes 

of the statement are not at issue in this appeal. 

9The alleged invocations occur at approximately 1 minute 57 seconds and again at the 5-minute mark.
9

“notice of fundamental errors affecting substantial rights although they were not brought to the 

attention of the court.” TEX. R. EVID. 103(d). Fundamental errors fall into “two relatively small 

categories of errors: violations of „rights which are waivable only‟ and denials of „absolute 

systemic requirements.‟” Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). 

“Waivable only” rights include the right to the assistance of counsel and the right to trial by jury. 

Id. “Absolute, systemic rights” include jurisdiction of the person, jurisdiction of the subject 

matter, a penal statute‟s compliance with the Separation of Powers Section of the state 

constitution, a constitutional requirement that a district court must conduct its proceedings at the 

county seat, the constitutional prohibition of ex post facto laws, and certain constitutional restraints 

on the comments of a judge. Id. at 888–89. Notably, neither of the fundamental error categories 

includes the admission or exclusion of evidence, regardless of how probative or prejudicial the 

evidence might be. See id.

Here, Welch is arguing that the trial court erred in admitting evidence, but he failed to 

object to the statement‟s admissibility at any time before or during trial.10 In order to be preserved 

for appeal, an error regarding the admission or exclusion of evidence must be brought to the trial 

court‟s attention, be it through oral objection or written motion. Therefore, Welch failed to 

preserve this issue for our review. 

 

10In its brief, the State mentions that four months after his conviction, Welch, acting pro se, filed a motion to suppress 

evidence on June 10, 2010. No such motion was included in the record before us. Therefore, we will not consider it 

for any purpose. 
10

IV. The Admissibility of the Terrel and Ward Testimony 

The State asked Bunny Terrel about a specific instance of delayed outcry that Welch had 

previously asked Officer Stone about. Welch objected, arguing that there was “no probative 

value to this line of testimony.” The trial court overruled the objection. Later, the State asked 

David Ward about Millsap‟s behavior after he was interviewed by the Kilgore officers 

investigating Jane‟s allegations. Welch, again, objected, arguing that the information was 

irrelevant. The trial court overruled the objection. In his fourth point of error, Welch contends 

that the trial court erred by admitting irrelevant testimony from Terrel and Ward. We disagree.

Because trial courts are in the best position to decide substantive admissibility questions, 

we must review the trial court‟s ruling on admissibility under an abuse of discretion standard. 

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion 

standard, an appellate court should not disturb the trial court‟s decision if the ruling was within the 

zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). 

Therefore, the question that we must determine is whether the trial court‟s decision that the 

specific testimony from Terrel and Ward was relevant is within the zone of reasonable 

disagreement.

We note that Welch only objected to the relevancy of the testimony. Relevant evidence is 

evidence 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 have been without the 
11

evidence. TEX. R. EVID. 401. “If the trial court believes that a reasonable juror would conclude 

that the proffered evidence alters the probabilities involved to any degree, relevancy is present.” 

Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). Relevant evidence is 

presumed admissible. TEX. R. EVID. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex. Crim. App. 

2004). Evidence that is not relevant is inadmissible. TEX. R. EVID. 402. 

Terrel was admitted as an expert, without objection, “in the area of child sexual abuse, 

child physical abuse, forensive [sic] interviewing, and child abuse.” After asking her a few 

questions about delayed outcry, which Terrel testified was common, the State asked her whether 

she recalled a specific case of delayed outcry where a child “who had been interviewed and 

recanted and then was interviewed again and made an outcry” and the case later went to trial. 

Terrel testified she was familiar with the case and that it took some time before the child was able 

to make an outcry. Welch objected on the ground that “there‟s no probative value to this line of 

testimony.”11 

During his opening statement, cross-examinations, and closing arguments, Welch used 

Jane‟s previous denial of abuse and CPS‟s determination that no abuse had occurred to attack the 

credibility of Jane‟s testimony and that of the allegations against him. Testimony by an expert 

witness that provides useful background information to aid the jury in evaluating the testimony of 

 

11In his brief on this point of error, Welch cites Rule 403 of the Texas Rules of Evidence and its requirement that even 

relevant evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 

However, his “not probative” objection failed to raise an issue with the trial court regarding whether the probative 

value was substantially outweighed by any unfair prejudicial effect the testimony might have. Because the Rule 403 

issue was not invoked at trial, it is not preserved for review. 
12

another witness is probative and admissible. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. 

App. 1997). Here, the trial court found Terrel‟s testimony to be relevant. The trial court was 

within the zone of reasonable disagreement because Terrel‟s testimony could help the jury 

evaluate the credibility and content of Jane‟s delayed outcry.

Welch also objected to the relevance of testimony given by David Ward, the 

superintendent of the Arkansas Sheriffs‟ Youth Ranch. Detective David Merrell had gone to the 

Youth Ranch and questioned Millsap about Welch‟s and Jane‟s allegations, and at trial, the State 

asked whether Ward was “able to observe anything about Cody that happened during the 

questioning or immediately thereafter in regards to his behavior?” Welch objected, arguing that 

the testimony was irrelevant.12 The trial court overruled the objection, and Ward testified that 

Millsap was afraid of “what would happen if [Welch] found out,” and quoted Millsap as saying,

“You don‟t understand. . . . We‟re talking about a bad man.” Ward pointed out that after being 

questioned about Welch, Millsap‟s behavior “regressed to the point that he got really upset one 

night and banged his head against the wall until he was almost unconscious and he had to be placed 

in acute care for ten days at Methodist Behavioral Health.” 

Here, Welch only objected regarding the relevance of Ward‟s testimony about Millsap‟s 

behavior after being interviewed about Jane‟s allegations against Welch. Evidence that has any 

tendency to make the existence of any material fact more or less probable is relevant. TEX. R.

 

12At trial, Welch also objected on the ground that Ward was not qualified to testify regarding psychological issues. 

However, Welch does not raise that issue on appeal, so we do not address it. 
13

EVID. 401. The trial court was within its discretion to find that a reasonable juror could view 

Millsap‟s fear of Welch as relevant and explanatory for Jane‟s fear of Welch, the proffered reason 

for her prior denial and delayed outcry. The trial court‟s decision was within the zone of 

reasonable disagreement. Accordingly, we overrule this point of error.

V. Alleged Hearsay and Unchallenged Evidence 

The State asked Cunio what Jane wanted to happen to Welch. Welch objected because it 

called for hearsay,

13 but the trial court overruled his objection. Cunio testified that Jane had a 

strong desire to see someone punished. Later in the trial, Jane‟s grandmother testified, over 

Welch‟s hearsay objection, that Jane was afraid of Welch. In his fifth point of error, Welch 

contends that the trial court erred in admitting the testimony from Cunio and the grandmother 

because their testimony was hearsay. 

Even if the witnesses‟ testimony amounted to hearsay and the trial court erred by admitting 

it, any error was harmless because the same or similar testimony was admitted without objection at 

another point in the trial. McNac v. State, 215 S.W.3d 420, 425 (Tex. Crim. App. 2007) (citing 

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) (“improper admission of evidence is not 

reversible error if the same facts are shown by other evidence which is not challenged”).

Here, Welch objected to Cunio‟s testimony that Jane had a strong desire to see someone 

punished. The video-recorded interview between Cunio and Jane was admitted into evidence, 

 

13Welch also objected on the ground that the question called for a conclusion, but he does not raise that issue on appeal, 

so we do not address it. 
14

without objection, as State‟s Exhibit 3, and played for the jury. During deliberations, the jury 

requested and viewed the video again. On the video, Jane tells Cunio that she wants Welch to go 

to jail for a long time. The record indicates that Welch‟s trial counsel muted portions of the video 

pursuant to an agreement between the attorneys; however, the record does not indicate which 

specific portions were so muted. There is nothing in the record or in Welch‟s brief indicating that 

the jury did not hear Jane‟s video-recorded wishes that Welch be punished. 

Welch also objected to the grandmother‟s testimony that Jane was afraid of Welch;

however, both Jane‟s mother and Jane, herself, testified, without objection, that Jane was afraid of 

Welch. During her interview with Cunio, Jane repeatedly states that she is afraid of Welch. 

Texas law requires a party to continue objecting each time inadmissible evidence is offered.14 

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (citing Hudson v. State, 675 

S.W.2d 507, 511 (Tex. Crim. App. 1984) (“[d]espite the improper form and content of the 

question, it is well settled that an error in admission of evidence is cured where the same evidence 

comes in elsewhere without objection; defense counsel must object every time allegedly 

inadmissible evidence is offered”). By failing to object to the statements made in the video, as 

well as the above-referenced testimony of Jane and her mother, any previous hearsay error on 

these issues was rendered harmless. Accordingly, we overrule Welch‟s fifth point of error.

VI. The Subpoena Duces Tecum Request 

 

14There are two exceptions to the “contemporaneous objection” rule. The first is via a running objection, and the 

second is via a one-time objection, outside the presence of the jury, to all the testimony counsel deems objectionable 

on a given subject. Ethington, 819 S.W.2d at 858–59. Neither of these exceptions apply in this case. 
15

In a pretrial motion, Welch orally requested that he “be allowed a subpoena for the 

production of any computers that are in the property or possession of the victim in this case, [Jane], 

or [Jane‟s mother] or Cody Millsap.” Welch believed “that there may be some contact between 

the alleged victim and some witnesses that maybe -- may shed some light on this situation and 

possibly have some evidence that might be available for trial.”15 The State argued that the request 

was a baseless “fishing expedition.” The trial court denied the request. In his sixth point of 

error, Welch argues that the trial court erred by refusing to allow Welch to subpoena the 

computers.

Welch failed to specify the nature of his requested subpoena. As there is neither written 

application for the subpoena nor extensive argument during the pretrial hearing, it is unclear 

whether Welch was requesting that the witnesses produce the computers for pretrial examination 

or that the witnesses bring the computers with them on the day of trial.16

Under both the United States Constitution and the Texas Constitution, a defendant has a 

right to compulsory process for witnesses and information in the possession of witnesses. U.S.

CONST. amend. VI; TEX. CODE CRIM. PROC. ANN. arts. 24.01–.29 (Vernon 2009 & Supp. 2010); 

Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994). Chapter 24 of the Texas Code of 

 

15In his brief, Welch maintains that “[t]he record in the case at bar shows that there was communication via computer 

between [these witnesses] regarding the case.” However, the record does not support that assertion. Jane confirmed 

that Millsap was a Facebook “friend” of hers, but she denied chatting with him through Facebook. There is no 

evidence indicating that Jane, Millsap, or Jane‟s mother used their computers to communicate with each other about 

this case.

16Nothing in Welch‟s pretrial argument or his brief on appeal indicates that he was asking the State to seize the 

computers and then produce them for inspection via the disclosure process. 
16

Criminal Procedure authorizes a defendant to obtain a subpoena to secure the presence of 

witnesses whose testimony is material to its case. TEX. CODE CRIM. PROC. ANN. arts. 24.01–.29. 

Issuance of the subpoena is a matter of right on written, sworn application identifying the witness 

and stating that the testimony is material to the State or defense. TEX. CODE CRIM. PROC. ANN.

art. 24.03. Article 24.02 specifically authorizes the issuance of a subpoena duces tecum directing 

the witness to produce in court writings or other things in their possession. TEX. CODE CRIM.

PROC. ANN. art. 24.02. But neither the Sixth Amendment nor Article 24 “include the power to 

require the pretrial disclosure of any and all information that might be useful in contradicting 

unfavorable testimony.” Pennsylvania v. Ritchie, 480 U.S. 39, 52–53 (1987). The oral motion 

generally requesting information from computers was neither written nor specific. The trial court 

did not abuse its discretion in denying the pretrial motion for production of the computers. 

Welch could have been seeking a subpoena requiring the witnesses to produce the 

computers on the day of trial. However, before a subpoena may be issued, the Texas Code of 

Criminal Procedure requires a defendant to file an application for a subpoena with the trial court‟s 

clerk. TEX. CODE CRIM. PROC. ANN. art. 24.03(a). Here, the record does not contain a sworn 

application asserting the materiality of the information contained in the witnesses‟ computers and 

requesting that they produce the computers on the day of trial. Therefore, Welch was not entitled 

to the requested relief and we overrule Welch‟s sixth point of error. 

VII. Underwood’s Status as a Sex Offender 
17

During cross-examination by Welch, Jane‟s mother testified that she had known a man 

named Brandon Underwood for about two years. He was “just a person that [she knew] through 

[her] ex . . . a friend of the family.” She also testified that she had spent some time with him and 

that Jane knew him “[j]ust from the family.” Welch then asked her whether she was aware that 

Underwood was a registered sex offender, and the State objected.17 After a bench conference, 

which was not on the record, the trial court sustained the objection as to Underwood‟s status as a 

sex offender. Outside the presence of the jury, Welch made an offer of proof, examining Jane‟s 

mother regarding Underwood. The offer of proof produced the following relevant testimony 

from Jane‟s mother:

She had known Underwood for about two years. 

Underwood is a friend of Jane‟s father. 

Underwood knows Jane and has had contact with her.

Jane had not been around Underwood until “just recently.”

She was aware that Underwood was on community supervision for sexual assault of a 

child.

She knew of Underwood‟s criminal status when Jane was associating with Underwood. 

She did not believe that it was in Jane‟s best interest to be associating with Underwood.

 

17The basis of the State‟s objection does not appear in the record.
18

For record purposes only, Welch admitted certified copies of the criminal indictment and order of 

deferred adjudication of Underwood into evidence. After the offer of proof, the trial court, again, 

sustained the State‟s objection. 

In his final point of error, Welch argues that the trial court violated his right to “due process 

under the Federal Constitution (due process clause of the 14th Amendment) and due course of law 

under Texas law (Texas Code of Criminal Procedure, Article 1.04)” and that “such a denial by the 

trial court denied [him] his fundamental right of cross examination and the ability to adequately 

place before the jury a valid defense.” 

We review a trial court‟s decision to admit or exclude evidence under an abuse of 

discretion standard. See Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Brown 

v. State, 189 S.W.3d 382, 385 (Tex. App.––Texarkana 2006, pet. ref‟d). Even though neither the 

grounds for the State‟s objection, nor the trial court‟s basis for granting it, appear in the record, we 

may uphold a trial court‟s ruling on any legal theory or basis applicable to the case. Martinez v. 

State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002); cf. Cameron v. State, 241 S.W.3d 15, 18–20 

(Tex. Crim. App. 2007).

The trial court could have had several reasons to exclude the evidence. One valid legal 

theory or basis for excluding the evidence is that the probative nature of the evidence is 

substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. Under Rule 403, 

we examine the probative nature of the evidence and balance it against the danger of unfair 
19

prejudice should the evidence be admitted. TEX. R. EVID. 403. Under Rule 403, a reviewing 

court is to reverse the trial court‟s judgment “rarely and only after a clear abuse of discretion.” 

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d 

at 389).

Here, Welch is charged with sex offenses against a child. There is no evidence or 

allegation in the record that Underwood had any opportunity to molest Jane. Evidence of his 

status does not serve to support or attack the credibility of any other witness regarding a fact of 

consequence. In these circumstances, the trial court would be justified in excluding the evidence 

by finding the probative value of the evidence to be very minimal while the unfair prejudicial 

effect was substantial. We find that the record supports the trial court‟s ruling because the danger 

of unfair prejudice substantially outweighed the minimal probative value of Underwood‟s sex 

offender status. Accordingly, we overrule Welch‟s final point of error. 

We affirm the judgment of the trial court. 

Jack Carter

Justice

Date Submitted: February 9, 2011

Date Decided: April 12, 2011

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