Edward Marquez v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00672-CR
Edward Marquez, Appellant
v.
The State of Texas, Appellee
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
NO. CR-17-1284, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
MEMORANDUM OPINION
Edward Marquez was charged with failing to comply with sex-offender
registration requirements, and the State also alleged as an enhancement that Marquez had been
convicted of a prior felony offense. See Tex. Code Crim. Proc. art. 62.102; Tex. Penal Code
§ 12.42. At the end of the guilt-or-innocence phase, the jury found Marquez guilty of the alleged
offense. At the end of the punishment phase, the jury found the enhancement allegation to be
true and recommended that Marquez be sentenced to fourteen years’ imprisonment. See Tex. Penal
Code § 12.33. Consistent with the jury’s verdicts, the district court rendered its judgment of
conviction. On appeal, Marquez asserts that the district court erred by admitting evidence regarding
his arrest for another offense. We will affirm the district court’s judgment of conviction.
BACKGROUND
As set out above, Marquez was charged with failing to comply with the sex-
offender registration requirements. Specifically, the indictment alleged that Marquez had been
convicted of indecency with a child by sexual contact; that his prior conviction required him
“to register with the local law enforcement authority in the municipality where [he] resided
or intended to reside for more than seven days, to-wit: San Marcos, Texas”; and that he
“intentionally or knowingly fail[ed] to register with the local law enforcement authority” within
seven days of his arrival in San Marcos or “failed to report his change in job status” within seven
days of the change “[o]n or about the 5th day of October, 2017.” See Tex. Code Crim. Proc.
arts. 62.051, .057.
During his opening statement at the trial, Marquez asserted that he had been
“registering for approximately 20 years without fail” and that he moved to San Marcos but
believed that he needed to continue registering in Robstown, Texas, because he considered
Robstown to be his home. In addition, Marquez repeatedly insisted that he “was confused”
about the registration requirements and that he “made a mistake” when he failed to register.
At the start of the trial, the State introduced an agreed stipulation stating that Marquez was
previously convicted of indecency with a child by sexual contact in 1994 and that he was
required to register as a sex offender because of that conviction.
When presenting its case, the State called the following witnesses: Franklin Rivas,
Detective Nadia Muraira from the Kyle Police Department, Officer Jonathan Lopez from the
Hays County Sheriff’s Office, Detective Juan Villarreal from the Hays County Sheriff’s Office,
and Detective David Campbell from the San Marcos Police Department. In addition, recordings
of interviews of Marquez taken from Detective Muraira’s and Detective Campbell’s body
cameras were admitted into evidence and played for the jury.
In his testimony, Rivas explained that he owns a business in San Marcos, that
he met Marquez in Robstown, that he offered Marquez a job, that Marquez worked for him
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“from February to August” of 2017, and that Marquez lived in a San Marcos home belonging to
members of Rivas’s family for that entire period. When the State called Detective Muraira to the
stand, she explained that she interviewed Marquez two times as part of an unrelated
investigation, that Marquez stated that he lived in San Marcos during both interviews, that
Marquez was working for Rivas before the first interview, that Marquez was working for
Saucedo’s Wrecker and Towing Service at the time of the second interview, and that he was
living with his employer at the time of the second interview. During Detective Muraira’s testimony,
two recordings of interviews of Marquez were played for the jury. On those recordings, Marquez
admitted in the first interview that he was living in San Marcos but was no longer working for
Rivas, and he similarly admitted in the second interview that he was living in San Marcos with
his new boss.
After Detective Muraira testified, Marquez objected outside the presence of the
jury to the State’s next witness, Officer Lopez, and to the State’s plan to offer as an exhibit
during Officer Lopez’s testimony a prerelease form that Marquez was given in September 2017
when he was released from jail for a separate offense more than two weeks before being charged
in this case. See Tex. R. Evid. 103(b). In particular, Marquez argued that the admission of the
testimony and the prerelease form would constitute impermissible extraneous-offense evidence
and that the probative value of the evidence was outweighed by the danger of unfair prejudice.
See id. R. 403, 404. After considering the parties’ arguments, the district court overruled
Marquez’s objections.
In his testimony, Officer Lopez related that he “worked in the booking
department” for the Hays County Jail during the time relevant to this appeal, that his job required
him to give individuals being released from jail a packet of paperwork, and that those packets
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included a “pre-release form” or “a sex offender registration form” if the individual being
released was a registered sex offender. Further, Officer Lopez stated that he would explain to the
individual being released which portions of the release packet needed to be filled out and would
ask the person “to read each section and . . . initial on each question that’s asked” to show that he
understood the contents of each section. Regarding Marquez, Officer Lopez related that he gave
Marquez a prerelease form, that Marquez placed his initials next to the sex-offender registration
requirements, and that Marquez signed the form.1
During Officer Lopez’s testimony, the prerelease form was admitted as an exhibit
and shown to the jury. The 2017 prerelease form is entitled “Pre-Release Notification Form
Texas Sex Offender Registration Program,” specifies that the form is given to individuals
released or discharged from a “[p]enal [i]nsitution,” lists Marquez’s name and other identifying
information, includes Marquez’s and Officer Lopez’s signatures at the end of the document,
identifies the agency with whom Marquez needed to register, and contains the phone number for
that agency. In addition, the form shows Marquez’s initials next to various paragraphs in the
document warning him that the failure to comply with the sex-offender registration requirements
is a felony offense and specifying, among other requirements, his obligations to register with a
“local law enforcement authority in any municipality” in which he “reside[s] or intend[s] to reside
for more than seven days” no “later than the 7th day after [his] arrival” and to inform his “primary
registration authority” of any change in his home address and “job status (includ[ing] beginning
and leaving employment and changing work location)” within seven days “of the change.”
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Although the date next to Marquez’s signature indicated that he signed the prerelease
form in 2018, the date next to Officer Lopez’s signature stated that the document was signed in
2017, and the testimony presented at trial demonstrated that Marquez signed the prerelease form
in 2017 before he was charged with failing to register as a sex offender.
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The State next called Detective Villarreal who testified that he worked in the sex-
offender registration division of the Hays County Sheriff’s Office in San Marcos during the time
at issue, that he received Marquez’s 2017 prerelease form from the jail, and that he informed
Detective Campbell about having received the form. Further, Detective Villarreal recalled that
although the prerelease form provided his contact information for registration purposes, Marquez
never contacted him.
Finally, the State called Detective Campbell to the stand. Detective Campbell
explained that he works for the San Marcos Police Department, that he is responsible for
monitoring sex-offender registration compliance in San Marcos, and that he opened an
investigation regarding Marquez after being contacted by Detective Villarreal. Further, Detective
Campbell testified that his investigation revealed that Marquez worked for two different
employers in San Marcos—Rivas and Tommy Saucedo—between February and September of
2017 and that Marquez was living with his employer (Saucedo) in San Marcos. Moreover,
Detective Campbell explained that when he met with Marquez more than two weeks after he
signed the 2017 prerelease form, Marquez stated that he had not had time to register. In his
testimony, Detective Campbell also stated that Marquez had signed another prerelease form in
2013 that listed the same registration requirements and warnings as the 2017 form. The 2013
form was admitted into evidence and shown to the jury.
During Detective Campbell’s testimony, a recording of his interview with Marquez
taken with Detective Campbell’s body camera was admitted into evidence and played for the
jury. On the recording, Marquez admitted that he had been working for Saucedo for approximately
a month, that he had been living with Saucedo, that he previously worked for Rivas for months
in San Marcos, that he did not inform anyone of his changes in his job status or his change in
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address because he forgot, that he was in jail in July when he got the 2017 prerelease form
reminding him of the need to register, and that he had not yet registered in San Marcos.
After considering the evidence and the parties’ arguments, the jury found Marquez
guilty of failing to register as a sex offender.
DISCUSSION
In his sole issue on appeal, Marquez contends that the district “court’s admission
of” evidence of his “separate and distinct arrest during the guilt innocence phase of trial” through
Officer Lopez’s testimony and the 2017 prerelease form “constitutes reversible error.” Because
Officer Lopez’s testimony and the prerelease form itself explained that those types of forms are
given to individuals who are released from jail, Marquez contends that the evidence constituted
impermissible extraneous-offense evidence. Further, Marquez argues that the probative value of
the evidence was outweighed by the danger of unfair prejudice. Accordingly, Marquez urges
that the evidence was inadmissible under the Rules of Evidence. See Tex. R. Evid. 403, 404(b).
Appellate courts review a trial court’s ruling regarding the admission or exclusion
of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). Under that standard, a trial court’s ruling will only be deemed an abuse of discretion if
it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State,
86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler,
153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that
the trial court’s decision “is reasonably supported by the record and is correct under any theory
of law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
In addition, an appellate court reviews the trial court’s ruling in light of the record before the
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court “at the time the ruling was made.” Khoshayand v. State, 179 S.W.3d 779, 784 (Tex.
App.—Dallas 2005, no pet.).
Furthermore, “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character,” but this type of “evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Tex. R. Evid. 404(b). In addition, courts have explained
that “extraneous-offense evidence, under Rule 404(b), is admissible to rebut a defensive theory
raised in an opening statement or raised by the State’s witnesses during cross-examination.”
Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
Furthermore, “extraneous offense evidence may be admissible as contextual evidence,” Swarb v.
State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d), because juries
are “entitled to know all relevant surrounding facts and circumstances of the charged offense;
an offense is not tried in a vacuum,” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)
(quoting Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)).
On appeal, Marquez recognizes that extraneous-offense evidence may be admitted
as contextual evidence, but he contends that this type of evidence should only be admitted where
the two crimes are blended and where proof of the charged offense cannot be given without
providing proof of the extraneous offense. See, e.g., id. at 25-26 (concluding that “[t]he evidence
of the sexual assault was so intertwined with the murder that the jury’s understanding of the
offense would have been obscured without it”); LaPointe v. State, 196 S.W.3d 831, 837-38 (Tex.
App.—Austin 2006) (affirming trial court’s ruling admitting evidence of offenses occurring in
Travis County in trial for offenses occurring in Williamson County because “offenses were so
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intermixed that they formed an indivisible criminal transaction” and because excluding evidence
pertaining to offenses occurring in Travis County “would have left an unexplained twelve-hour
gap in” victim’s “narrative of the crime”), aff’d, 225 S.W.3d 513 (Tex. Crim. App. 2007). Further,
Marquez insists that his alleged failure to register was not “tightly intertwined with the unrelated
arrest” for which he was jailed weeks prior to being charged in this case and “that the jury did
not need to know why Detective Campbell began investigating” him to determine if he was
guilty of the charged offense.
Although Marquez correctly notes that the State urged at trial that the prerelease
form should be admitted as contextual evidence, see Swarb, 125 S.W.3d at 681 (explaining that
“[t]here are two types of contextual evidence: (1) evidence of other offenses connected with the
primary offense, referred to as same transaction contextual evidence; and (2) general background
evidence, referred to as background contextual evidence”), the district court could have also
determined that the evidence was admissible under Rule 404 as evidence rebutting Marquez’s
defensive theory presented during his opening statement that he mistakenly failed to register or
was confused as to how to comply with the requirements, cf. Varnes v. State, 63 S.W.3d 824, 833
(Tex. App.—Houston [14th Dist.] 2001, no pet.) (explaining that if State alleged that defendant
knowingly failed to register, courts treat “the mens rea requirement . . . as going to the actual
knowledge of the defendant’s duty to register”). By presenting this defensive theory in his opening
statement, Marquez opened “the door to rebuttal evidence in the form of extraneous offenses.”
See Gaytan v. State, 331 S.W.3d 218, 225 (Tex. App.—Austin 2011, pet. ref’d). In addition, the
evidence helped to rebut his defensive theory by establishing that Marquez had been reminded of
his statutorily imposed obligations to register his new address and his change in employment
status weeks before his arrest in this case, that he acknowledged those obligations by placing his
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initials next to each one and by signing the prerelease form, and that he had been given the
contact information for the agency overseeing sex-offender registration in San Marcos.
For these reasons, we conclude that the district court did not abuse its discretion
by admitting the prerelease form because it was admissible under Rule 404(b) as evidence
rebutting Marquez’s defensive theory. See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.
App. 2011) (stating that “[a] trial court’s 404(b) ruling admitting evidence is generally within . . .
zone [of reasonable disagreement] if there is evidence supporting that an extraneous transaction
is relevant to a material, non-propensity issue”).
As discussed previously, Marquez also argued during trial that the evidence
should not be admitted under Rule of Evidence 403, and the district court overruled that
objection. In his brief, Marquez also challenges that ruling by the district court.
Under the Rules of Evidence, “[r]elevant evidence is admissible unless” provided
otherwise by “the United States or Texas Constitution,” “a statute,” the Rules of Evidence, or
“other rules prescribed under statutory authority,” Tex. R. Evid. 402, but relevant evidence may
be excluded under Rule 403 “if its probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needlessly presenting cumulative evidence,” id. R. 403; see also id. R. 401 (specifying
that “[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it
would be without the evidence” and if “the fact is of consequence in determining the action”).
“Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger
of unfair prejudice. The rule envisions exclusion of evidence only when there is a clear disparity
between the degree of prejudice of the offered evidence and its probative value.” Hammer v.
State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (footnotes and internal quotation marks
9
omitted). Accordingly, “the plain language of Rule 403 does not allow a trial court to exclude
otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against
a defendant is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807,
811 (Tex. Crim. App. 2013) (internal citation omitted). Moreover, reviewing courts should bear
in mind that trial courts are given a high level of deference regarding a determination that
evidence should be admitted under Rule 403. See Robisheaux v. State, 483 S.W.3d 205, 218
(Tex. App.—Austin 2016, pet. ref’d).
Regarding the admissibility of evidence under Rule 403, courts performing a Rule
403 analysis should balance the following factors:
(1) the inherent probative force of the proffered item of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the evidence
to suggest decision on an improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5) any tendency of the evidence
to be given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat evidence
already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see
Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining that “probative value”
refers to how strongly evidence makes existence of fact more or less probable and to how much
proponent needs evidence and that “unfair prejudice” considers how likely it is that evidence
might result in decision made on improper basis, including emotional one).
On appeal, Marquez argues that the evidence had little probative value because,
according to him, evidence establishing that he “was arrested on an unrelated charge several
weeks before the investigation of the charges at hand[] does not make the fact that he failed to
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comply with the sex offender registration requirements more or less probable.” Even if the
prerelease form and Officer Lopez’s testimony on their own may not have helped to establish
whether Marquez was actually in compliance with the registration requirements, the admonition
of the sex-offender requirements given more than two weeks before Marquez’s charged conduct
rebutted his defensive theory that he was confused about his duty to register. Accordingly, the
district court could have determined that the probative value of the exhibit weighed in favor
of admission.
Next, Marquez contends that the State did not need to introduce the evidence “to
show that he knew he was required to register as a sex offender” because the district court
admitted into evidence “an identical pre-release document signed and initialed by him” in 2013
that also informed him “of what his duties were in regard to complying with the sex offender
registration.” Similarly, Marquez highlights that he stipulated at the start of trial that he was
obligated to register as a convicted sex offender and points to testimony from Detective Campbell
indicating that “when defendants are convicted of a case requiring sex offender registration, . . .
they are told all the requirements to comply with sex offender registration upon conviction.” For
these reasons, Marquez urges that the State’s need for Officer Lopez’s testimony and the 2017
prerelease form did not weigh in favor of admission.
Although Marquez points out that other evidence was presented at trial indicating
that he was given warnings identical to or similar to those found in the 2017 prerelease form, the
evidence presented at trial demonstrated that Marquez was given those similar warnings in 1994
when he was convicted of indecency with a child and in 2013 when he was given a separate
prerelease form and that he had been living in another town before moving to San Marcos. In
contrast, the 2017 prerelease form and the testimony from Officer Lopez demonstrated that
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Marquez was reminded about the need for complying with the sex-offender registration
requirements just a few weeks before he was charged in this case and while he was living in
San Marcos. Moreover, the testimony from Detective Campbell and the 2013 prerelease form
were not admitted until after the district court made its ruling regarding the 2017 prerelease form
and Officer Lopez’s testimony. See Khoshayand, 179 S.W.3d at 784. Similarly, although the
recording from Detective Campbell’s body camera chronicles Marquez stating that he was in jail
shortly before talking with Detective Campbell and that he was reminded of his registration
requirements when he was released from jail, that recording was not admitted and played for the
jury until after Detective Lopez testified and after the 2017 prerelease form was admitted into
evidence. Accordingly, the district court could have concluded at the time of its ruling that the
State’s need for Detective Lopez’s testimony and the 2017 prerelease form either weighed in
favor of admission or was neutral regarding the admission.
Regarding the potential for the evidence to suggest a decision on an improper
basis, Marquez asserts that “allowing the jury to know during the guilt/innocence phase that [he]
committed theft . . . had to have the harmful effect on the jury that [he] was an untrustworthy and
dishonest person, and that therefore [he] intentionally circumvented the sex offender registration
for some malicious reason.” See Gigliobianco, 210 S.W.3d at 641 (stating that evidence might
encourage decision on improper basis if it arouses jury’s “hostility or sympathy . . . without regard
to the logical probative force of the evidence”). However, nothing in the prerelease form or in the
testimony at trial stated what type of offense led to his being jailed before signing the prerelease
form. Cf. Powell v. State, 189 S.W.3d 285, 289 (Tex. Crim. App. 2006) (affirming admission of
evidence demonstrating that defendant was on parole and noting that danger of unfair prejudice
was minimized by fact that jury “was not informed of the crime for which [defendant] was on
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parole”). Moreover, nothing in the language of the 2017 prerelease form or Officer Lopez’s
testimony was inflammatory or otherwise prejudicial beyond stating that Marquez was released
from some type of correctional facility before signing the form, and the remainder of Officer
Lopez’s testimony and the language in the form was consistent with Marquez’s stipulation that
he was required to comply with the sex-offender registration requirements. Cf. Norwood v. State,
No. 03-13-00230-CR, 2014 WL 4058820, at *5 (Tex. App.—Austin Aug. 15, 2014, pet. ref’d)
(mem. op., not designated for publication) (explaining that “[w]hen the extraneous offense is no
more heinous than the charged offense, evidence concerning the extraneous offense is unlikely to
cause unfair prejudice”). Accordingly, the district court could have reasonably determined that
the potential for the evidence to result in a decision on an improper basis either weighed slightly
against admission or was neutral regarding admission.
Turning to the potential for the evidence to confuse the jury and for the jury to
give undue weight to the evidence, the district court could have reasonably concluded that
the evidence regarding the prerelease form would not “distract the jury from the main issues
in the case” because the evidence related to the charged offense of failing to register. See
Gigliobianco, 210 S.W.3d at 642. Similarly, given that the evidence did not address a complex
subject matter, the district court could have reasonably concluded that the jury would not give
undue weight to the evidence. See id. at 641 (explaining that scientific evidence is one type of
evidence that might mislead jury not properly equipped to consider probative value). Moreover,
the jury charge included a limiting instruction specifying the permissible purposes for which the
jury could consider evidence of Marquez’s prior bad acts. Cf. Stokes v. State, 74 S.W.3d 48, 51
(Tex. App.—Texarkana 2002, pet. ref’d) (providing that absent evidence to contrary, reviewing
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courts must presume that jury understood and followed jury instructions). Accordingly, the
district court could have reasonably determined that these factors weighed in favor of admission.
Finally, Marquez argues that the amount of time needed to present the evidence
weighed against admission. In particular, Marquez notes that the State only called five witnesses
during the trial; that the testimony of one of the State’s witnesses, Officer Lopez, was solely
dedicated to providing a general background on prerelease forms and to discussing the 2017
form signed by Marquez; that the State also questioned other witnesses about the 2017 prerelease
form; that the form and Marquez’s placement in jail were also mentioned in the recording from
Detective Campbell’s body camera; and that the State repeatedly mentioned the form during its
closing arguments. For these reasons, Marquez contends that the amount of time dedicated to
the prerelease form was significant given the short duration of the trial and weighed against
admission of the evidence.
Although it is true that Detective Lopez’s testimony discussed prerelease forms
generally and the circumstances surrounding Marquez’s signing and initialing of the form at
issue, his testimony was only thirteen pages in length, and the prerelease form itself is only two
pages in length. Moreover, the testimony from witnesses other than Detective Lopez regarding the
prerelease form and the discussion of the form on the recording from Detective Campbell’s body
camera were relatively brief. However, the portion of the record containing all of the testimony
from individuals other than Officer Lopez during the guilt-or-innocence phase was just roughly
sixty pages in length. Accordingly, the district court could have reasonably determined that the
time needed to develop the evidence either weighed against admission of the evidence or was
neutral regarding the admission.
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Given our standard of review, the presumption in favor of admissibility, and the
resolution of the factors discussed above, we cannot conclude that the district court abused its
discretion by overruling Marquez’s Rule 403 objection. Compare Schiele v. State, No. 01-13-
00299-CR, 2015 WL 730482, at *7, *8 (Tex. App.—Houston [1st Dist.] Feb. 19, 2015, pet. ref’d)
(mem. op., not designated for publication) (determining that fact that evidence in dispute spanned
50 pages of 118-page record and was also admitted through two recordings weighed against
admissibility because evidence consumed “not insignificant” amount of time but still finding that
trial court did not abuse its discretion where half of factors relevant to Rule 403 analysis weighed
in favor of admissibility), and McGregor v. State, 394 S.W.3d 90, 121-22 (Tex. App.—Houston
[1st Dist.] 2012, pet. ref’d) (concluding that fact that evidence of extraneous offenses constituted
one-third of trial weighed against admissibility but upholding trial court’s decision to admit
evidence because other factors favored admission), with Russell v. State, 113 S.W.3d 530, 543-
49 (Tex. App.—Fort Worth 2003, pet. ref’d) (determining that trial court erred by admitting
evidence of extraneous offenses where evidence was 30 percent of testimony, where State’s need
for evidence was low “because ample evidence” existed regarding intent, and where evidence of
extraneous offense was “more heinous” than charged offense).
For all of these reasons, we overrule Marquez’s issue on appeal.
CONCLUSION
Having overruled Marquez’s issue on appeal, we affirm the district court’s
judgment of conviction.
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__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: October 25, 2019
Do Not Publish
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