Willietroy Black v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00269-CR

Willietroy Black,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
443rd District Court of Ellis County, Texas
Senior Judge David Evans, presiding
Trial Court Cause No. 47837CR

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

A jury found Appellant, Willietroy Black, guilty of the felony offense of

indecency with a child by sexual contact. The jury assessed his punishment at

confinement for five years. The trial court sentenced Black accordingly. This

appeal ensued. We will affirm.
A. Background

In 2018, J.B. stayed with her grandparents, Black and his wife, Debbie,

in Waxahachie for three weeks while her parents were handling a move from

Oklahoma to California. During this stay, J.B. stated that she was sitting on

the armrest of Black’s chair when he pulled her into his lap, reached under her

sweater, and groped her breast “a few times.” Debbie was not home, so J.B.

stated she wrote Debbie a note saying that Black had touched her

inappropriately. J.B. said that Debbie never said anything to her about the

note, but that Debbie did come into J.B.’s room with J.B.’s parents on speaker

phone. She said her parents asked if she wanted them to come pick her up and

that Debbie shook her head no, so J.B. told her parents that she was okay.

J.B.’s mother testified that Debbie told her that while Black and J.B. were

playing, Black had “unintentionally grazed [J.B.’s] breast” and that it was just

a misunderstanding. Later in her stay, J.B. said that while she was in the

bathroom looking for her toothbrush, Black came into the bathroom and locked

the door behind him. J.B. said he sat down, pulled her over to him, and stuck

his fingers inside her vagina. She stated that she yelled for Debbie, but Debbie

did not respond. J.B. testified that she thought Debbie had told her parents

about the allegations she made and that her parents did not care, so she did

Black v. State Page 2
not discuss the incidents with her parents after she left her grandparents’

house.

In 2021, J.B.’s parents noticed that her behavior had changed, especially

around her grandparents. The family was considering moving back to Texas

and planned to stay with Black and Debbie for some time. J.B.’s mother asked

if she was excited about returning to Texas and seeing her grandparents. At

this point, J.B. told her mother that during the 2018 visit, Black had “touched

her boobs” and that he made a comment about her vagina that made her

uncomfortable. J.B.’s parents confronted Black with the allegations and he did

not deny the allegations, but just said “ah” in response. Later that year, J.B.

asked her mother if she knew “what it meant to be fingered,” and she said that

Black had done that to her in the bathroom during the 2018 visit. J.B.’s

parents reported the outcries, and an investigation followed. J.B. underwent

a forensic interview and SANE exam.

At trial, D.H., Black’s adult niece, testified that Black sexually abused

her starting when she was about nine or ten years old. She testified to many

incidents, including that he would often put his hand under her shirt and grab

her breast. D.H. stated she did not report the incidents because Black had

been telling other adults that D.H. was going to make claims that Black

molested her if Black didn’t give D.H. her way. D.H. testified that she never

Black v. State Page 3
said this but that, because of this, she thought no one would believe her if she

made an outcry.

Black also testified at trial. He testified that in 2018, there was an

argument between J.B. and her parents over her use of a tablet. He originally

said the argument occurred in July 2018, but later said it happened right

before J.B.’s 2018 visit, which was in October. Black said that during the

argument, J.B.’s father threatened violence against J.B. and that he had seen

bruises on J.B. before. Black claimed that after the argument, J.B. was angry

with her parents and Debbie, but not with Black. Black described an incident

during J.B.’s visit involving a water fight that he thought was playful, but

ended with J.B. getting angry. He stated that after the water fight, Debbie

told him that J.B. had claimed he touched her inappropriately. He stated that

he and Debbie talked to J.B. and that he thought the issue was resolved. He

also stated that he did not notice any difference in how J.B. acted around him

after the 2018 visit.

B. Issue One

In his first issue, Black argues that the trial court erred in allowing

Emily Mason, the SANE nurse, to provide opinion testimony as to J.B.’s

credibility.

Black v. State Page 4
1. Authority

Expert testimony is admissible if it assists “the trier of fact to understand

the evidence or to determine a fact in issue.” TEX. R. EVID. 702. However,

expert testimony does not assist the jury if it constitutes “a direct opinion on

the truthfulness” of a child victim's allegations. Yount v. State, 872 S.W.2d

706, 709 (Tex. Crim. App. 1993) (testimony regarding an opinion of

truthfulness does more than assist the trier of fact to understand the evidence

or to determine a fact in issue; it decides an issue for the jury). An expert may

testify that the witness exhibits symptoms consistent with sexual abuse, but

not that a witness is truthful. Cohn v. State, 849 S.W.2d 817, 818–19 (Tex.

Crim. App. 1993).

2. Analysis

At trial, Mason testified to the medical history J.B. provided during the

SANE exam, including her mental health and physical health. Mason stated

that J.B. reported a history of sadness, stomachaches, headaches, terrors, and

self-harming behavior. Mason also stated that J.B. declined an anogenital

exam. After describing J.B.’s history and Mason’s observations of J.B. during

the exam, Mason was asked whether her “findings were consistent with there

being sexual abuse of [J.B.].” Black objected that this question was eliciting

testimony of whether Mason found J.B. truthful, but the trial court overruled

Black v. State Page 5
the objection. Mason then testified that her findings were consistent with J.B.

having been sexually assaulted. While an expert may not testify directly about

a victim’s truthfulness, they may testify that the witness exhibited symptoms

consistent with sexual abuse. See Cohn, 849 S.W.2d at 818. Therefore, the

trial court did not abuse its discretion in allowing Mason to give her opinion on

whether her findings were consistent with J.B. having been sexually assaulted.

We overrule Black’s first issue.

C. Issue Two

In his second issue, Black argues that the trial court erred in applying

Rule 412 to exclude evidence that J.B. was caught with sexual images and

messages on her tablet.

1. Authority

We review a trial court’s evidentiary rulings under an abuse-of-

discretion standard. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).

We will not disturb such rulings unless they lay outside “the zone of reasonable

disagreement.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh'g)).

Generally, in prosecutions for certain sex cases, a party cannot admit

either reputation or opinion evidence of a complainant’s past sexual behavior;

or specific instances of a complainant’s past sexual behavior. TEX. R. EVID.

Black v. State Page 6
412(a). However, such evidence is admissible where it relates to the

complainant’s motive or bias or is constitutionally required to be admitted; and

its probative value outweighs the danger of unfair prejudice. TEX. R. EVID.

412(b)(2)(C) and (E).

2. Analysis

Black states that while “the jury heard evidence that J.B. was texting

strangers on [her] tablet and pretending to be 18, resulting in an argument

between J.B. and her parents and [Black] having to take away the tablet,” the

jury should have also heard evidence that J.B. had also been using the tablet

to take sexually suggestive photos and was shown pornography by an older

friend who shared the tablet with J.B. Black argues that this evidence should

have been excepted from the Rule 412 exclusion because the evidence would

have “given the jury perspective as to J.B.’s motive to lie” and would have

helped “flesh out the theory put forth through [a defense witness’s] testimony

that J.B. was unhappy with [Black] for providing discipline for the incident by

taking away the tablet, thus providing bias against [Black].”

Assuming without deciding that the trial court erred in excluding the

evidence, any error was harmless.

On appeal, Black argues that “the trial court committed constitutional

error by excluding the evidence, thus impairing [his] substantial right to

Black v. State Page 7
confrontation.” See TEX. R. APP. P. 44.2(a). At trial, Black did not argue that

the evidence should have been admitted based on due process, the

confrontation clause, or any other constitutional claims. The record shows that

the trial court was only asked to rule on arguments made under the rules of

evidence. Black’s trial arguments did not articulate confrontation or due

process as grounds for admission of the excluded evidence, and therefore he

has failed to preserve these constitutional arguments for appeal. See Lovill v.

State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); see also Merrick v. State,

567 S.W.3d 359, 368 (Tex. App.—Fort Worth 2018, pet. ref’d).

Black also argues on appeal that the exclusion of the evidence was an

abuse of the trial court’s discretion under the applicable rules of evidence. The

erroneous exclusion of a defendant’s evidence generally constitutes non-

constitutional error unless the excluded “evidence forms such a vital portion of

the case that exclusion effectively precludes the defendant from presenting a

defense.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Here,

Black’s defense was that J.B. had a motive to lie about the allegations because

she was upset about being disciplined. The record shows that Black was not

precluded from presenting the substance of this defense to the jury. See id. at

666. Accordingly, we will determine whether the erroneous exclusion of the

evidence requires reversal using the harm analysis set out in Rule of Evidence

Black v. State Page 8
103(a) and Rule of Appellate Procedure 44.2(b). See TEX. R. EVID. 103(a); TEX.

R. APP. P. 44.2(b); Potier, 68 S.W.3d at 666. Under Rule 44.2(b), an appellate

court must disregard an error when no substantial rights of the defendant are

affected because the error did not influence the jury, or had but a slight effect.

Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).

Here, Black states that admission of the excluded evidence would have

given the jury perspective as to J.B.’s motive to lie, “as she could pivot in her

neglectful parents’ eyes from being a precocious child misbehaving to a child

acting out after being a victim of sexual abuse.” However, Black was able to

develop his defensive theory through multiple witnesses’ testimony about J.B.

being disciplined for her inappropriate use of the tablet and for lying about her

age online. The jury also heard testimony about arguments between J.B. and

her parents before the outcry occurred. While the excluded evidence could have

provided more details about J.B.’s behavior that led to the arguments with her

parents and the discipline over the tablet use, the admitted testimony was

sufficient to develop Black’s theory about J.B.’s motive to lie.

Black also states that the excluded evidence would have helped flesh out

the theory put forth through testimony that J.B. was unhappy with Black for

disciplining her for the incident by taking away the tablet, thus providing a

bias against him. However, this claim does not accurately reflect the evidence.

Black v. State Page 9
The record shows that it was J.B.’s mother, not Black, who disciplined J.B. by

taking her tablet away. In his own testimony, Black stated that he was not

involved in the argument between J.B. and her parents and that J.B.’s

behavior towards him never changed. He stated that while J.B. was “bitter

and sad” after the fight, it was not aimed at him.

In light of the foregoing evidence, we cannot say that Black’s substantial

rights were affected by the exclusion of the evidence. The record does not

support the claim that J.B. was unhappy with Black or that he was even the

one to discipline her. Therefore, the exclusion of the evidence likely had no

more than a slight effect, if any, upon the verdict. See Thomas v. State, 137

S.W.3d 792, 796 (Tex. App.—Waco 2004, no pet.). Additionally, Black was not

prevented from presenting the substance of his defense to the jury. See Davis

v. State, 104 S.W.3d 177, 182–83 (Tex. App.—Waco 2003, no pet.).

We overrule his second issue.

D. Issue Three

In his third issue, Black argues that the trial court erred in denying his

motion for new trial without a hearing.

1. Authority

The purposes of a new trial hearing are (1) to determine whether the case

should be retried or (2) to complete the record for presenting issues on appeal.

Black v. State Page 10
Smith v. State, 286 S.W.3d 333, 339–40 (Tex. Crim. App. 2009). Such a hearing

is not an absolute right. Id. A trial court abuses its discretion in failing to hold

a hearing if the motion and accompanying affidavits raise matters which are

not determinable from the record and establish reasonable grounds showing

that the defendant could potentially be entitled to relief. Id. A motion for new

trial must be supported by an affidavit specifically setting out the factual basis

for the claim. Id. If the affidavit is conclusory, is unsupported by facts, or fails

to provide requisite notice of the basis for the relief claimed, no hearing is

required. Id. Additionally, a defendant must give the trial court notice that

he timely filed a motion for new trial and desires a hearing on the motion. See

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).

2. Analysis

In his motion for new trial, Black requested that the trial court “grant

him a new trial herein” because (1) the verdict is contrary to the law and

evidence, (2) evidence of the victim’s prior sexual behavior was improperly

excluded under Rule 412, and (3) the verdict was a product of jury misconduct.

In support of his third reason, Black included two affidavits, one from his trial

attorney and another from a juror. The order on the motion for new trial

included an option for the trial court to grant or deny the motion or set a

hearing on the matter. The record does not show that Black requested a

Black v. State Page 11
hearing on his motion for new trial. The motion does not contain a request for

a hearing, and while the order included an option of having a hearing or ruling

on the motion without a hearing, which, “without a more specific request, left

to the trial court’s discretion whether a hearing should be held.” See id. at 231.

Since Black did not adequately advise the trial court of his desire for a hearing,

he has not preserved his argument that the trial court erred in failing to hold

a hearing. Id.

Therefore, we overrule his third issue.

E. Conclusion

Having overruled Black’s three issues, we affirm the judgment of the

trial court.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: June 18, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
CR25

Black v. State Page 12