Joe Cecil Tiner v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00038-CR
___________________________

JOE CECIL TINER, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1855598

Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

A jury convicted Appellant Joe Cecil Tiner of two counts of aggravated sexual

assault of a child and two counts of indecency with a child by sexual contact. See Tex.

Penal Code §§ 22.021(a)(2)(B), (e), 21.11(a)(1), (d). The jury assessed punishment at

confinement for life for each aggravated-sexual-assault conviction and 20 years’

confinement for each indecency-with-a-child conviction; the trial court pronounced the

punishment, ordering that the sentences run consecutively. See id. §§ 12.32, 12.33,

3.03(b)(2)(A), (b)(2–a)(A). On appeal, Tiner complains that the trial court abused its

discretion by excluding testimony under Texas Rule of Evidence 412.1 We will affirm.

I. Texas Rule of Evidence 412

In his sole issue on appeal, Tiner argues that the trial court abused its discretion

by excluding extraneous-offense-witness testimony from J.L. and A.W.2 about prior

sexual abuse they suffered at the hands of someone other than Tiner.3 In particular, he

1
The Texas Supreme Court repealed former Rule 412 and replaced it with a new
rule; the final amended version took effect on January 1, 2026. See Sup. Ct. of Tex.,
Final Approval of Amendments to Texas Rule of Evidence 412, Misc. Docket
No. 25-9102 (Dec. 19, 2025). But “[a]s stated in Misc. Dkt. No. 25-9064, for criminal
proceedings commencing before September 1, 2025, the rule in effect on the date the
proceeding commences governs.” Id. Thus, the new rule and amendments are
inapplicable here. All citations to Rule 412 are to the prior version, which continues to
govern those cases commencing before September 1, 2025.
2
Because both extraneous-offense witnesses were minors at the time of the
alleged offenses, we refer to them using initials. See Tex. R. App. P. 9.10(a)(3).
3
Both J.L. and A.W. testified during their respective Rule 412 hearings that they
had been sexually abused by someone other than Tiner around the time that each was

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asserts that (1) Rule 412 does not apply to nonconsensual sexual activity and (2) even if

Rule 412 does apply, the evidence was more probative than prejudicial and should have

been admitted.

A. Standard of Review

We review a trial court’s ruling to admit or exclude evidence for an abuse of

discretion and will not reverse the ruling of the trial court absent a clear abuse of

discretion. Hart v. State, 688 S.W.3d 883, 891 (Tex. Crim. App. 2024); Bautista v. State,

189 S.W.3d 365, 368 (Tex. App.—Fort Worth 2006, pet. ref’d). As long as the trial

court’s ruling is within the “zone of reasonable disagreement,” there is no abuse of

discretion, and the trial court’s ruling will be upheld. De La Paz v. State, 279 S.W.3d 336,

343–44 (Tex. Crim. App. 2009) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh’g)).

B. Applicable Law

Rule 412, known as the “rape shield” law, is designed to limit abusive,

embarrassing, and irrelevant inquiries into a complainant’s private life. Alvarez v. State,

No. 02-23-00108-CR, 2024 WL 2066361, at * 6 (Tex. App.—Fort Worth May 9, 2024,

pet. ref’d) (mem. op., not designated for publication) (first citing Hammer v. State,

296 S.W.3d 555, 566 (Tex. Crim. App. 2009), then citing Dees v. State,

also sexually abused by Tiner. We do not expand on this testimony, as it is under seal.
See Tex. R. Evid. 412(d).

3
Nos. 02-12-00488-CR, 02-12-00489-CR, 2013 WL 6869865, at *6 (Tex. App.—Fort

Worth Dec. 27, 2013, pet. ref’d) (per curiam) (mem. op., not designated for

publication)). Generally, evidence of a “specific instance[] of a victim’s past sexual

behavior” is not admissible. Tex. R. Evid. 412(a)(2). But Rule 412(b) provides that a

defendant may offer evidence of a specific instance of an alleged victim’s past sexual

behavior if the trial court determines that the evidence’s probative value outweighs the

danger of unfair prejudice to the alleged victim and that the evidence:

(A) is necessary to rebut or explain scientific or medical evidence offered
by the prosecutor;
(B) concerns past sexual behavior with the defendant and is offered by the
defendant to prove consent;
(C) relates to the victim’s motive or bias;
(D) is admissible under Rule 609; or
(E) is constitutionally required to be admitted.
Tex. R. Evid. 412(b)(2), (3).

The Rule 412 balancing test generally favors excluding the evidence. Alvarez,

2024 WL 2066361, at *7 (citing Zamora v. State, No. 08-99-00284-CR, 2000 WL 1757960,

at *9 (Tex. App.—El Paso Nov. 30, 2000, pet. ref’d) (not designated for publication)).

The burden is on the proponent of the evidence—in this case, the defendant—to show

that its probative value outweighs the danger of unfair prejudice. Id.

The erroneous exclusion of evidence is subject to a nonconstitutional-harm

analysis under Texas Rule of Appellate Procedure Rule 44.2(b). See Good v. State,

4
No. 02-24-00239-CR, 2026 WL 547519, at *5 n.13 (Tex. App.—Fort Worth Feb. 26,

2026, pet. ref’d) (mem. op., not designated for publication) (citing Solomon v. State,

49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). This analysis will disregard any error “that

does not affect substantial rights.” Tex. R. App. P. 44.2(b). If the error has no influence

or only a slight effect on the verdict, then it is harmless. Nguyen v. State, 693 S.W.3d 732,

740 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (citing Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998)). To determine the effect on the verdict, we consider

(1) the character of the alleged error and its connection with other evidence, (2) the

nature of the evidence supporting the verdict, (3) the existence and weight of additional

evidence supporting the verdict, and (4) whether the State emphasized the error. Macedo

v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021) (citing Gonzalez v. State, 544 S.W.3d

363, 373 (Tex. Crim. App. 2018)).

C. Analysis

Tiner’s argument on appeal differs slightly from that presented to the trial court.

During the Rule 412 hearings, Tiner argued that J.L.’s and A.W.’s testimony was

admissible under one of the enumerated exceptions to Rule 412: to show motive or

bias. See Tex. R. Evid. 412(b)(2)(C). He also argued that the evidence would be more

probative than prejudicial. See Tex. R. Evid. 412(b)(3). On appeal, Tiner has abandoned

his argument related to motive or bias and asserts that Rule 412 does not apply to the

excluded testimony because it does not contain prior consensual sexual behavior, or, if

Rule 412 does apply, the evidence is more probative than prejudicial.

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Tiner argues that Rule 412 does not apply to nonconsensual sexual history. Tiner

raised this argument only for J.L.’s testimony at trial; thus, as it relates to A.W.’s

excluded testimony, he has forfeited that part of his argument for our review. See Miller

v. State, 333 S.W.3d 352, 356 (Tex. App.—Fort Worth 2010, pet. ref’d) (per curiam)

(citing Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (“[W]hen the

objection made in the trial court does not comport with the argument made on appeal,

the appellant fails to preserve the argument for our review.”)).

Further, we need not decide the applicability of Rule 412 to either witness’s prior

nonconsensual sexual behavior or history because we must affirm the trial court’s

evidentiary ruling if any theory of law supports it. See Sauceda v. State, 129 S.W.3d 116,

120 (Tex. Crim. App. 2004). Rule 401 requires that evidence be relevant to be

admissible. See Tex. R. Evid. 401. Relevant evidence is evidence having any tendency to

make the existence of any fact of consequence to the determination of the action more

or less probable than it would be without the evidence. Id. Thus, to be relevant, evidence

must be material and probative. Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App.

2001). “If the evidence is offered to help prove a proposition which is not a matter in

issue, the evidence is immaterial.” Id. Irrelevant evidence is not admissible. Tex. R. Evid.

402.

Here, Tiner did not articulate how the evidence of J.L.’s and A.W.’s prior sexual

assaults at the hands of others would have made it more or less probable that he did or

did not sexually assault them—or more to the matter of his convictions—that he did

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not sexually assault the victim in this case. He merely stated that the evidence was

necessary to form his defense that possibly both J.L. and A.W. had confused him with

someone else who assaulted them.4 But both witnesses stated that their memories were

clear and that they were not confused regarding Tiner’s prior sexual assaults of them.5

Further, evidence about any prior sexual assaults would not have made it more or less

probable that J.L.’s or A.W.’s testimony regarding Tiner’s sexual assaults on them was

either true or false. See Griffin v. State, No. 02-19-00020-CR, 2021 WL 126650, at *4 (Tex.

4
Tiner cites Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2022), to support
that he had a right to identify alternative perpetrators in the offenses he allegedly
committed against J.L. and A.W. Although the Wiley court stated that “a defendant
obviously has a right to attempt to establish his innocence by showing that someone
else committed the crime,” the court also held that the defendant “must still show that
his proffered evidence regarding the alleged alternative perpetrator is sufficient . . . to
show a nexus between the crime charged and the alleged ‘alternative perpetrator.’” Id.
Both J.L. and A.W. were asked during their respective Rule 412 hearings if there was
any confusion about who had committed the sexual offenses against them, and both
responded in the negative. Tiner presented no other evidence that either J.L. or A.W.
was confused about the type of abuse suffered or by whom; thus, he also failed to
present a proper nexus between the crime and any alleged alternative perpetrator. See
id. And, aside from arguing that the jury needed to “hear that there are potentially other
perpetrators that could have performed this [sexual abuse],” Tiner provides no
substantive argument about how the probative value of the evidence of other sexual
offenses committed against J.L. and A.W. outweighed the danger of unfair prejudice.
We have held that a failure to illustrate why nonmaterial evidence’s probative value
outweighs the danger of unfair prejudice results in a defendant’s failure to carry his
burden under Rule 412(b)(3). See e.g., Alvarez, 2024 WL 2066361, at *9 (collecting cases).
Because Tiner has failed to meet his burden, the trial court did not abuse its discretion
by excluding the evidence that Tiner sought to introduce.
5
J.L.’s testimony was that her memory was clear and that she had no fear of
confusing the facts. A.W.’s testimony was similarly explicit—when asked if there was
any confusion in her mind related to Tiner’s sexual abuse, she answered, “Not at all.”

7
App.—Fort Worth Jan. 14, 2021, pet. ref’d) (mem. op., not designated for publication).

It likewise would have had no effect on the potential truth or falsehood of the victim’s

testimony in this case. Id. Accordingly, because it was not relevant, the trial court did

not abuse its discretion by excluding the evidence of the additional prior sexual assaults

committed against J.L. and A.W. See id.

And even if we assume that the trial court erred by excluding this testimony, the

record does not demonstrate that the exclusion harmed Tiner. See Tex. R. App. P.

44.2(b), 47.1. Here, the excluded evidence would have merely reflected that both J.L.

and A.W. had suffered multiple instances of sexual abuse when they were children.

Given that both J.L. and A.W. unequivocally stated they had no trouble remembering

the details of Tiner’s alleged sexual offenses against them, it is unlikely that this

testimony would have meaningfully supported Tiner’s alternative-perpetrator theory.

See Nguyen, 693 S.W.3d at 740. Moreover, Tiner provided no evidence to support his

theory that J.L. and A.W. were confused about whether he had sexually abused either

of them.

Additionally, J.L. and A.W. were extraneous-offense witnesses. The victim listed

in the charged offenses also testified about the multiple instances of sexual abuse Tiner

inflicted on her.6 Thus, even if J.L. and A.W. had been confused about whether or not

6
We note that Tiner does not challenge evidentiary sufficiency and that the
victim’s extensive testimony about Tiner’s multiple instances of sexual abuse
undoubtedly influenced the jury’s verdict. See Macedo, 629 S.W.3d at 240. The victim
testified that Tiner had been abusing her for four years when, at age seven, he had told

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Tiner had sexually abused them, and even if Tiner had been able to persuade the jury

that he did not sexually abuse either of them, it is unlikely that this would have either

prejudiced the jury’s view of the victim’s testimony or influenced the jury’s verdict.

Consequently, even if we presume trial-court error, we conclude that excluding

evidence of any alleged prior sexual abuse did not have a substantial or injurious effect

on the jury’s verdict and did not affect Tiner’s substantial rights. See Tex. R. App. P.

44.2(b); see also Lang, 2024 WL 273591, at *9.

We overrule Tiner’s sole issue.

II. Conclusion

Having overruled Tiner’s sole issue, we affirm the trial court’s judgments.7

her to “bounce up and down” on him because “it would feel good and that [she] would
like it and it would help him.” She also testified that Tiner had told her that he had
married her mom because he “just wanted to be with [the victim].” In addition, the
victim detailed the various places and ways that Tiner abused her: while she was in bed;
while out riding bikes; and while sitting in his lap, often pinning her feet behind him
and pressing so hard she could feel his clothing and penis go into her vagina. The victim
stated that Tiner had threatened to abuse her sister if the victim refused, she had often
attempted to hide from him, and she had even blacked out more than once because of
his abuse.
7
Any pending motions for relief in this court are denied.

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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 11, 2026

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