Jaqualien Grant v. State ( 2015 )

ACCEPTED
14-13-01078-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/20/2015 6:13:14 PM
CHRISTOPHER PRINE
CLERK
NO. 14-13-01077-CR, 14-13-01078-CR
IN THE COURT OF APPEALS FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT OF TEXAS
2/20/2015 6:13:14 PM
CHRISTOPHER A. PRINE
AT HOUSTON, TEXAS Clerk
_____________________________________________________________
JACQUALIEN GRANT
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
_____________________________________________________________
ON APPEAL FROM CAUSE NOS. 1386096 and 1386097
IN THE 185TH DISTRICT COURT OF HARRIS COUNTY, TEXAS.
_____________________________________________________________
APPELLANT’S SUPPLEMENTAL BRIEF
_____________________________________________________________
CARMEN M. ROE
TBN: 24048773
440 Louisiana, Suite 900
Houston, Texas 77002
713.236.7755
713.236.7756 Fax
ATTORNEY FOR APPELLANT
[ON APPEAL ONLY]
ORAL ARGUMENT REQUESTED
1
IDENTIFICATION OF INTERESTED PARTIES
Pursuant to TEX. R. APP. P. 28.1(a), a complete list of the names and
addresses of all interested parties is provided below so the members of this
Honorable Court may at once determine whether they are disqualified to serve or
should recuse themselves from participating in the decision of this case.
Complainants, victims, or aggrieved party:
Irene Garza
Counsel for Defendant:
Mr. Allen M. Tanner
917 Franklin Street, Suite 550
Houston, Texas 77002
Counsel on Appeal for the Appellant:
Carmen M. Roe
440 Louisiana, Suite 900
Houston, Texas 77002
Counsel for the State:
Mr. Coby Leslie
Mr. David Abrams
Harris County District Attorney's Office
1201 Franklin
Houston, Texas 77002
Trial Judges:
Honorable Susan Brown
Presiding Judge, 185th District Court
Harris County, Texas
2
TABLE OF CONTENTS
Page
IDENTIFICATION OF INTERESTED PARTIES ....................................... 2
INDEX OF AUTHORITIES .......................................................................... 6
STATEMENT REGARDING ORAL ARGUMENT .................................... 9
STATEMENT OF THE CASE ...................................................................... 9
APPELLANT’S POINT OF ERROR ......................................................... 10
SUMMARY OF THE ARGUMENT........................................................... 10
STATEMENT OF THE FACTS.................................................................. 11
ARGUMENT AND AUTHORITIES .......................................................... 13
POINT OF ERROR NUMBER ONE .......................................................... 13
THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S OBJECTION TO THE ADMISSION OF A PRIOR
EXTRANEOUS OFFENSE, THAT WAS NOT RELEVANT APART FROM
SHOWING CHARACTER CONFORMITY, AND ANY RELEVANCE IT
HAD WAS OUTWEIGHED BY UNFAIR PREJUDICE.
A. Standard of Review: Abuse of Discretion ............................................... 13
Barb. 404 (b): Extraneous Offense is Inadmissible as Conformity Evidence... 15
1. State failed to Demonstrate that the Extraneous Offense was
Proffered for a Relevant Purpose.................................................. 17
2. State Failed to Demonstrate Relevance of Extraneous to Issue of
Consent.......................................................................................... 20
3. State Failed to Demonstrate Relevance of Extraneous to Issue of
Fabrication………………………………………………………..21
3
4. State Failed to Demonstrate Relevance of Extraneous to Show
Handiwork of Appellant............................................................... 24
C. The Specifics of the “Manner” or “the Type of Crime”…………….…..27
1. “The Way he Targeted Her”.......................................................... 28
2. “The Specific Threat he Made” ..................................................... 28
3. “Close Proximity of the Crimes” ................................................... 28
4. “Both Offenses Occurred within Weeks of Each Other” ............... 28
D. Rule 403: The Danger of Unfair Prejudice.............................................. 32
1. The Strength of the Evidence in Making a Fact More or Less
Probable ....................................................................................... 32
2. The Potential the Extraneous Offense will Impress the Jury in
Some Irrational but Indelible Way ................................................ 33
3. The Amount of Time the Proponent Needed to Develop the
Evidence………………………………………………………….34
4. The Strength of the Proponent’s Need for this Evidence to Prove
a Fact of Consequence………………………………………....…35
E. The Improper Admission of Extraneous Evidence Affected Appellant’s
Substantial Rights…………………………………………....………….36
1. Severity of the Misconduct............................................................. 38
2. Steps Taken to Cure the Misconduct.............................................. 39
3. Certainty of Conviction Absent Error………………………....…41
CONCLUSION AND PRAYER.................................................................. 43
CERTIFICATE OF SERVICE..................................................................... 44
4
CERTIFICATE OF COMPLIANCE ........................................................... 44
5
INDEX OF AUTHORITIES
CASES PAGE
Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972)………………………..16
Avila v. State, 18 S.W.3d 736 (Tex. App.- San Antonio, 2000)……………....…..16
Booker v. State, 103 S.W.3d 251 (Tex. App.-Forth Worth, 2003)………………..37
Brown v. State, 978 S.W.2d 708 (Tex. App.- Amarillo, 1998)…………………...37
Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002)………………………...37
Cobb v. State, 503 S.W.2d 249 (Tex. Crim. App. 1973)………...…………....…39
Collazo v. State, 623 S.W.2d 647 (Tex. Crim. App. 1981)………………………30
Curtis v. State, 89 S.W.3d 163 (Tex. App.- Fort Worth 2002)…………………..41
Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005)…………………..13,15
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)………………..14,16
Delane v. State, 369 S.W.3d 412 (Tex. App.- Houston [1st District] 2012)……..38
Ford v. State, 484 S.W.2d 727 (Tex. Crim. App. 1972)………………….…Passim
Jackson v. State, 320 S.W.3d 873 (Tex. App. – Texarkana, 2010)…………Passim
Johnson v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004) ………………..15,37
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)………………………..36
United States v. Lane, 474 U.S. 438 (1986)………………………………….…37
Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005)…………………Passim
McGautha v. California, 402 U.S. 183 (1971)…………………………………15
6
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)………...…Passim
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)……………………37,41
Nelms v. State, 834 S.W.2d 110 (Tex. App.- Houston [1st District] 1992)……...38
Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992)……………….…Passim
Pollard v. State, 255 S.W.3d 184 (Tex. App.- San Antonio, 2008)……24,34,39,43
Rubio v. State, 607 S.W.2d 498 (Tex. Crim. App. 1980)………………………..17
Rhyne v. State, 387 S.W.3d 896 (Tex. App.-Fort Worth 2012)………………....38
Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App. 2004)…………………….13
Seguendo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008)…………………….26
Sims v. State, 273 S.W.3d 291 (Tex. Crim. App. 2008)………………………...39
Taylor v. State, 920 S.W.2d 319 (Tex. Crim. App. 1992)………………………25
United States v. Walker, 722 F.2d 1172 (5th Cir. 1985)…………………………14
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)……………………………...…14
West v. State, 124 S.W.3d 732 (Tex. App.-Houston [1st District] 2003)………..43
Wilton v. Seven Falls Co., 515 U.S. 277 (1995)……………………………...…14
OTHER SOURCES:
TEX. R. EVID.401……………………………………………………...……...…17
TEX. R. EVID. 403……………………………………………………...…….10,31
TEX. R. EVID. 404(B)……………………………………………………….Passim
7
TEX. R. APP. P. 39.1……………………………………………………………9
TEX. R. APP. P. 44.2 (B)………………………………………………………36
8
STATEMENT REGARDING ORAL ARGUMENT
This supplement brief presents an important issue regarding the admission of
a prior sexual assault that occurred two weeks before the charged offense that was
inadmissible because it did not meet any of the 404(b)(2) requirements permitting
the use of such evidence at trial. Because argument would assist this Court in its
decision-making process, argument is warranted in this matter. See TEX.R.APP.P.
39.1.
STATEMENT OF THE CASE
Appellant was charged by indictment with the felony offenses of aggravated
kidnapping in Cause No. 1386096 and sexual assault in Cause No. 13860971.
(1CR2 at 8; 2CR at 8; 4 RR 5-10), alleged to have been committed on December
13, 2012. On November 7, 2013, the jury found Appellant guilty of both charges,
(6 RR 32-33), and assessed punishment at twenty (20) years imprisonment for the
sexual assault charge, and life in prison for the aggravated kidnapping charge. (6
RR 32-33). The trial courts Certification of the Defendant’s Right to Appeal, (1CR
at 125; 2CR at 120), and notice of appeal were timely filed. (1CR at 123; 2CR at
118).
1
Cause No. 1386097 was amended and corrected to charge only sexual assault and not
aggravated sexual assault.
2
“1CR” followed by page number refers to Cause No. 1386096 and “2CR” refers to Cause No.
1386097 followed by page number.
9
Appellant filed an original Appellant’s Brief on April 15, 2014. The State
filed its brief on June 18, 2014 and oral argument was scheduled for December 18,
2014. On December 12, 2014, a letter was issued from this Court instructing
Appellant to file a brief on the merits, Ander’s brief, or motion to dismiss the
appeal in Cause No. 14-13-01087-CR. Appellant filed a motion to postpones
submission and extend time to file a brief on the merits. After this Court granted an
extension of time, Appellant files this Supplemental Brief on guilt-innocence in
Cause Nos. 14-13-01077-CR and 14-13-01087-CR.
APPELLANT’S POINT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S OBJECTION TO THE ADMISSION OF A PRIOR
EXTRANEOUS OFFENSE, THAT WAS NOT RELEVANT APART FROM
SHOWING CHARACTER CONFORMITY, AND ANY RELEVANCE IT
HAD WAS OUTWEIGHED BY UNFAIR PREJUDICE.
SUMMARY OF ARGUMENT
The trial court abused its discretion in overruling Appellant’s objection to
the admission of an extraneous offense in violation of Texas Rules of Evidence
Rules 404(b) and 403 because the prior sexual assault was not relevant for the
permissible purpose proffered by the state, did not tend to make any issue of fact of
consequence more or less likely, and was not sufficiently similar to show the
modus operandi of Appellant. Therefore, the only relevant purpose in admitting the
extraneous offense evidence was to show Appellant was a criminal generally, an
10
impermissible purpose, and thus its probative value was substantially outweighed
by the danger of unfair prejudice. The trial court’s ruling admitting the extraneous
offense evidence was an abuse of discretion and outside the zone of reasonable
disagreement because it was “… without reference to any guiding rules and
principles.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1991)(op. on reh'g).
STATEMENT OF FACTS
The state’s case in chief maintained that Appellant kidnapped and sexually
assaulted Irene Garza. Ms. Garza testified that although she previously worked as
an escort, she was neither working on the night in question, nor had she worked as
an escort in the months leading up to this incident. (4 RR 41). Instead, Ms. Garza
testified that her interaction with Appellant began after she arbitrarily chose to pull
into an apartment complex – around 1:00-2:00 p.m.—so that she could consult her
cell phone’s GPS.
At the apartment complex, Ms. Garza parked her vehicle when Appellant
opened the door and told her, with his hand in his pocket, to do what he said. (4 RR
24). Ms. Garza testified she did not see a weapon. (4 RR 24). She exited her
vehicle and was escorted into an empty apartment, where she engaged in non-
consensual intercourse with Appellant, and another man. (4 RR 30-35). Thereafter,
Ms. Garza testified that both men instructed her to wash herself repeated, before
11
leaving, and also remarked that if she went to the authorities, they would use the
information from her phone to hurt her family. (4 RR 41). She subsequently left,
drove to McDonald’s and called 911. (4 RR 44-45).
During cross-examination, trial counsel sought to introduce a series of
exhibits that showed Ms. Garza was working as an escort at the time of the offense.
The trial court admitted evidence of Ms. Garza’s advertisements as an escort
because it was relevant to the issue of consent, but redacted the photographs
featured on the advertisement as not relevant to any issue. (4 RR 70 –79).
Based on trial counsel’s cross examination of Ms. Garza, the state argued
that the door had been opened to extraneous evidence of a prior sexual assault
because counsel raised the issue of consent and to rebut the defensive theory of
fabrication. (4 RR 106). The state argued,
“The specifics of the manner, the type of crime, the way he targeted
her and more specifically the specific threat that he made shows
identity, a specific modus operandi, the close proximity of where
these crimes occurred to each other, which we have the map that we
can show, within less than a mile apart, within blocks of each other,
within weeks of each other.
Both – the DNA comes back on both individuals to him and because
the defense has, through cross-examination, opened the door by
raising issues of fabrication and consent by bringing up her past
sexual history as an escort, that thereby invokes, as the brief says, the
doctrine of chances and allows us to put Ms. Marchand as evidence
that he committed this crime.”
(4 RR 107-108).
12
The trial court expressed concerns about the state’s theory of admissibility,
which the state reiterated was fabrication and consent. (4 RR 111-12). The court
ultimately relied on Martin v. State, 173 S.W.2d 463 (Tex. Crim. App. 2005) and
Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005), in holding the
extraneous of Ms. Marchand was admissible, concluding that when the defense
brought out the issue of fabrication or consent, the jury was entitled to hear from
another unrelated complaining witness. (4 RR 110).
ARGUMENT AND AUTHORITIES
POINT OF ERROR NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S OBJECTION TO THE ADMISSION OF A PRIOR
EXTRANEOUS OFFENSE, THAT WAS NOT RELEVANT APART FROM
SHOWING CHARACTER CONFORMITY, AND ANY RELEVANCE IT
HAD WAS OUTWEIGHED BY UNFAIR PREJUDICE.
A. Standard of Review: Abuse of Discretion
This Court reviews the admissibility of an extraneous offense under an abuse
of discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App.
2004). “Extraneous-offense evidence is admissible under both Rules 404(b) and
Rule 403 if that evidence satisfies a two-prong test: whether the extraneous offense
evidence is relevant to a fact of consequence in the case apart from its tendency to
prove conduct in conformity with character; and whether the probative value of the
evidence is not substantially outweighed by unfair prejudice.” Martin v. State, 173
13
S.W.3d at 467. Appellate courts should uphold a trial court’s ruling on the
admissibility of evidence as long as it is within the zone of reasonable
disagreement. Id. A trial court's ruling is generally within this zone if the evidence
shows that, (1) an extraneous transaction is relevant to a material, non-propensity
issue, and (2) the probative value of that evidence is not substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). “A trial court
abuses its discretion and goes beyond the zone of reasonable disagreement in
evidentiary rulings when it acts without reference to any guiding rules and
principles.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1991)(op. on reh'g).
While the abuse of discretion standard is deferential, it does not insulate the
trial court’s decision from reversal. Montgomery v. State, 810 S.W.2d 372, 392
(Tex. Crim. App. 1991)(op. on rehr’g). “‘Abuse of discretion’ is a phrase which
sounds worse than it is. The term does not imply intentional wrong or bad faith, or
misconduct, nor any reflection on the judge.” United States v. Walker, 772 F.2d
1172, 1176 n. 9 (5th Cir. 1985). A trial court lacks the discretion to determine what
the law is, or in applying the law to the facts, and has no discretion to misinterpret
the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “But discretion, to be
worthy of the name, is not unchanneled judgment; it is judgment guided by reason
14
and kept within bounds. Otherwise, ... it is ‘the law of tyrants: It is always
unknown.’” McGautha v. California, 402 U.S. 183, 285 (1971)(Brennan, J.,
dissenting); see also Wilton v. Seven Falls Co., 515 U.S. 277, 289 (1995)(review
for abuse of discretion is not “tantamount to no review at all”).
B. 404(b): Extraneous Offense is Inadmissible as Conformity Evidence
“It is axiomatic that that evidence of other offenses is not generally
admissible as evidence of guilt.” Ford v. State, 484 S.W.2d 727, 729 (Tex. Crim.
App. 1972). TEX.R.EVID. 404(b). Similarly, an accused must be tried only for the
offense he is charged and must not be tried for a collateral crime, or for being a
criminal in general.
Generally, evidence of extraneous offense may not be used against the
accused in a criminal trial … While such evidence will almost always
have probative value, it forces the defendant to defend himself against
uncharged crimes as well as the charged offense and encourages the
jury to convict a defendant based upon his bad character, rather than
proof of the specific crime charged.
Jackson v. State, 320 S.W.3d 873, 882(Tex. App. – Texarkana, 2010)(extraneous
was not sufficiently similar for admissibility to prove intent); citing Daggett v.
State, 187 S.W.3d 444, 450-51 (Tex. Crim. App. 2005)(footnotes omitted).
Rule 404(b) provides that extraneous evidence may “be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Johnson v. State, 145
S.W.3d 215, 219 (Tex. Crim. App. 2004), quoting Rule 404(b). This list is
15
illustrative, however, and extraneous evidence may also be admissible to rebut a
defensive issue that negates any element of the offense. Martin v. State, 173
S.W.3d at 467–68; De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009).
Therefore, a “party may introduce evidence of other crimes, wrongs, or acts if such
evidence logically serves to make more or less probable an elemental fact, an
evidentiary fact that inferentially leads to an elemental fact, or defensive evidence
that undermines an elemental fact.” De La Paz v. State, 279 S.W.3d at 343. The
Court of Criminal Appeals has said that, “[e]vidence of other crimes committed by
the accused may be admitted… where such evidence is shown to be both material
and relevant to a contested issue in the case.” Avila v. State, 18 S.W.3d 736, 740
(Tex. App. – San Antonio, 2000), citing Albrecht v. State, 486 S.W.2d 97, 100
(Tex. Crim. App. 1972). So too, in Owens v. State, 827 S.W.2d 911, 915 (Tex.
Crim. App. 1992), the Court observed that “[e]vidence of a defendant’s particular
modus operandi is a recognized exception to the general rule precluding extraneous
offense evidence, if the modus operandi evidence tends to prove a material fact at
issue, other than propensity.” Modus operandi refers to “a defendant’s distinctive
and idiosyncratic manner of committing criminal acts.” Id. at 914. To be relevant,
and therefore admissible, the extraneous offense evidence must have some
distinguishing characteristic common both to it and the charged offense for which
the accused is on trial. Ford v. State, 484 S.W.2d 727, 729 (Tex. Crim. App.
16
1972). If there is no common distinguishing characteristic, “then the evidence is
offered only to show that the accused has once committed a crime, and is therefore
likely to have committed the principal offense. This is not permitted.” Id.
The State, as the proponent of any extraneous offense evidence, bears the
burden of showing admissibility at trial. TEX.R.EVID. Rules 401, 404(b). To be
convicted of sexual assault, the defendant must have engaged in conduct without
the complainant’s consent. “When the defensive theory of consent is raised, a
defendant necessarily disputes his intent to do the act without the consent of [the
complainant]. His intent is thereby placed in issue.” Rubio v. State, 607 S.W.2d
498, 501 (Tex. Crim. App. 1980). The Court has also held that modus operandi
encompasses the “doctrine of chances” to show lack of consent in a sexual assault
case. Martin v. State, 173 S.W.3d 463, 467–68 (Tex. Crim. App. 2005).
1. State Failed to Demonstrate that the Extraneous Offense was
Proffered for a Relevant Purpose.
Ms. Garza was cross-examined about her work as an escort before, and at
the time of the charged offense. The state argued counsel’s cross-examination
opened the door to otherwise inadmissible evidence of a prior sexual assault. (4 RR
106). The court held the extraneous involving Ms. Marchand was admissible,
concluding that when the defense brought out the issue of fabrication or consent on
cross examination, the jury was entitled to hear from another unrelated
complaining witness. (4 RR 110). The extraneous offense was admitted for its
17
relevance to the issue of consent and fabrication after a finding that this probative
value was not outweighed by the prejudicial value of the testimony. (5 RR 26).
In response to trial counsel’s objection to Ms. Marchand’s extraneous, the
state as its proponent was required to demonstrate there was a relevant link
between the charged offense and the extraneous, so that it satisfied the relevance
exception under Rule 404(b). Instead, the state substantiated its basis by providing
the trial court with little more than a recitation of the general exceptions under
Rule 404(b) when it argued:
“The specifics of the manner, the type of crime, the way he targeted
her and more specifically the specific threat that he made shows
identity, a specific modus operandi, the close proximity of where
these crimes occurred to each other, which we have the map that we
can show, within less than a mile apart, within blocks of each other,
within weeks of each other.”
(4 RR 108). The state provided the trial court with generic 404(b) factors, but
never provided the link between factors like modus operandi or identity, and the
extraneous evidence offered. For example, the state fails to provide specifics facts
that support its conclusory assertion that Ms. Marchand was targeted or threatened,
or how it shared sufficient similarities to Ms. Garza’s allegations. The state further
omits how identity, which is not an issue in this case, or modus operandi is
applicable, or relevant, to any issue of fact in this case.
The state’s mere assertion that the two crimes share a geographic proximity,
without more is insufficient. Similarly, the fact that the offenses occurred weeks
18
apart is not a sufficient basis for the trial court to find the exception to 404(b)
under “identity, or specific modus operandi”. Neither separately, nor conjunctively,
do these facts surmount to the heightened threshold of showing Appellant’s
“handiwork” as required by the case law. Consequently, this Court should find that
the state has failed to meet its burden, thereby depriving the trial court of any
reasonable basis to admit the extraneous offense for the purpose of showing
“identity, a specific modus operandi” exception.
Further, the state argued that Ms. Marchand’s extraneous evidence should be
admitted, because:
“Both – the DNA comes back on both individuals to him and because
the defense has, through cross-examination, opened the door by
raising issues of fabrication and consent by bringing up her past
sexual history as an escort, that thereby invokes, as the brief says, the
doctrine of chances and allows u to prove Appellant sexually
assaulted Ms. Garza by putting forth evidence of Ms. Marchand’s
unrelated allegations.
(4 RR 108). The State attempts to argue that Appellant’s line of questioning related
to Ms. Garza’s sexual history as an escort translated into Appellant actually raising
the issue of fabrication or consent, thereby invoking the doctrine of chances and
allowing the state to prove Appellant sexually assault Ms. Garza by offering
evidence of Ms. Marchand’s unrelated allegation. Contrary to this argument, the
state, and not Appellant, is the proponent of the extraneous evidence.
Consequently, it is the state that holds the burden of substantiating its relevancy to
19
Ms. Garza’s allegations. Merely by claiming Appellant “opened the door” does not
permit the state to introduce evidence without first demonstrating how that
evidence applies or otherwise “fits” through the opened door. The state, however,
failed to make any such showing, and therefore this Court should find that the
state’s basis for admitting the extraneous evidence was not only premised upon an
erroneous interpretation of the doctrine of chances, but also failed to demonstrate
any rational connection that would permit a trial court’s decision to admit Ms.
Marchand’s extraneous under a theory of fabrication, consent or the doctrine of
chances.
2. State Failed to Demonstrate Relevance of Extraneous to Issue of
Consent
The state argued the extraneous of Ms. Marchand was relevant to the issue
of consent. Consent, or the lack of consent, is an element of sexual assault and
aggravated kidnapping. Here, the state proffered Ms. Marchand’s extraneous to
prove the lack of consent by Ms. Garza. (4 RR 109). The state argued that trial
counsel’s cross-examination of Ms. Garza about being an escort at the time of the
offense opened the door to the prior extraneous and raised the issue of consent3. (4
RR 112).
3
Trial insisted at trial that, “he never asked her if she had sex with him. She never identified him
or identified who raped her. I never brought up consent. I just asked her about her background
information. (4 RR 112).
20
The state never provided any basis for its contention that trial counsel raised
the issue of consent in his cross-examination of Ms. Garza. In fact, the state
elicited testimony from Ms. Garza that she had previously worked as an escort on
direct examination. (4 RR 41). Trial counsel cross-examined her about the fact that
she claimed she stopped working as an escort six months before the incident. (4
RR 41; 61). In addition, the state failed to show how Ms. Marchand’s sexual
assault was relevant to the issue of lack of consent by Ms. Garza. The state as the
proponent of the evidence was required to demonstrate the relevance of any
extraneous to the trial court. If the state fails to make such a showing, the trial
court lacks the basis to admit the evidence. Here, the state never demonstrated to
the trial court how Ms. Marchand’s extraneous allegation was relevant to prove
intent, or the lack of consent, by Ms. Garza. Therefore, the state failed to provide
the trial court with a sufficient legal basis to admit the evidence at trial.
3. State Failed to Demonstrate Relevance of Extraneous to Issue of
Fabrication
The state also claimed the extraneous of Ms. Marchand was admissible to
rebut the defensive theory of fabrication. The state again argued that trial counsel
opened the door through cross-examination of Ms. Garza about her occupation as
an escort in the months leading up the offense. (4 RR 53). On cross-examination,
Ms. Garza testified she was an escort for four years and admitted that she had sex
with people for money that responded to her online advertisements. (4 RR 41).
21
However, she insisted she was not working as an escort during the six months prior
to the incident. (4 RR 41). While she admitted she allowed the photographs
featured in the advertisements to be taken, she claimed she did not authorize the
posting of her photo to solicit business as an escort in the six months before the
incident. (4 RR 61-66; 85). The state specifically argued:
“Both – the DNA comes back on both individuals to him and because
the defense has, through cross-examination, opened the door by
raising issues of fabrication and consent by bringing up her past
sexual history as an escort, that thereby invokes, as the brief says, the
doctrine of chances and allows you to prove Appellant sexually
assaulted Ms. Garza by putting forth evidence of Ms. Marchand’s
unrelated allegations.
***
(4 RR 108)
And it is to rebut the implication raised by cross of fabrication, which
he raised by going through the details and pointing out the details that
were inconsistent from one telling to the next and also the issue of
consent, which he raised through the issue of the implication of her
being a continued escort. And many of these cases are very closely
directly on point on that issue, Judge.
***
(4 RR 112).
The so-called fabrication elicited on cross-examination was that Ms. Garza lied
about being an escort in the six months leading up to the offense. (4 RR 85). Trial
counsel impeached her testimony using “backpage” advertisements that featured
her as an escort during the six months prior to the offense. The state objected to the
22
admission of the “backpage” ads as not relevant. Trial counsel argued these
exhibits were relevant to show consent. (4 RR 72). The trial court admitted the
advertisements but redacted Ms. Garza’s photograph even though they purported to
be a woman by the name of “Amy Lovett”. (4 RR 62). Trial counsel impeached
Ms. Garza’s credibility with the exhibits and raised the issue of fabrication,
however, whether she was, or was not, an escort at the time of the offense was not
an element of the offense. In addition, any extraneous about Ms. Marchand’s
alleged rape and kidnapping did not logically rebut the defensive theory of
fabrication. Even assuming that trial counsel opened the door to the extraneous
evidence through cross-examination of Ms. Garza about being an escort, the fact
that Ms. Marchand was raped and kidnapped did not make more, or less likely that
Ms. Garza was telling the truth about not being an escort at the time of the offense.
Therefore, the state’s proffered reason for admitting the extraneous offense was not
relevant to rebut the defensive theory of fabrication– that Ms. Garza lied about
being an escort at the time of the offense – and should not have been admitted for
that purpose. As discussed above, any prior rape or kidnapping of Ms. Marchand
had no relevance to whether Ms. Garza was fabricating being an escort at the time
of the offense. Therefore, the purpose for the state’s proffered extraneous failed to
provide the trial court with a sufficient legal basis to admit the evidence at trial.
23
4. State Failed to Demonstrate Relevance of Extraneous to Show
“Handiwork” of Appellant
Finally, the state argued that Ms. Marchand’s testimony was relevant to
show the “modus operandi” of Appellant.
“The specifics of the manner, the type of crime, the way he targeted
her and more specifically the specific threat that he made shows
identity, a specific modus operandi, the close proximity of where
these crimes occurred to each other, which we have the map that we
can show, within less than a mile apart, within blocks of each other,
within weeks of each other.”
(4 RR 108). Trial counsel objected arguing it was not relevant – it was not
sufficiently similar to the charged offense—and that its prejudicial value was
greatly outweighed by any probative value. (5 RR 7). The trial court stated, (1)
“I’m not sure that similarity plays into the fact that the allegation – that the defense
is consent but (2) assuming it does, because the Court of Appeals is much smarter
than me, is that I’m going to allow in Ms. Marchand because I believe that those
are similar.” (5 RR 25).
“In the context of evaluating the admissibility of extraneous offenses, modus
operandi refers to ‘a defendant’s distinctive and idiosyncratic manner of
committing criminal acts.’” Jackson v. State, 320 S.W.3d at 882, citing Owens v.
State, 827 S.W.2d at 914. When evidence of an extraneous is offered to show
consent, its relevance is derived from the doctrine of chances. Daggett v. State, 187
S.W.3d at 453 n. 18 (“evidence of a remarkably similar act might be admissible to
24
prove the corpus delicti (the crime itself), intent, or lack of consent under ‘the
doctrine of chances.’”). “Before an extraneous offense is admissible to negate the
possibility of accident under Wigmore’s “doctrine of chances”, such offense must
be sufficiently similar in nature to the charged offense that the inference of
improbability of accident logically comes into play.” Martin v. State, 173 S.W.3d
at 467, citing Imwinkelried, Uncharged Misconduct Evidence, §§ 5:05, 5:10
(1984). Therefore, to be admissible the extraneous must be so nearly identical in
method to the charged offense as to earmark it as the handiwork of the accused.
Owens v. State, 827 S.W.2d at 917. The characteristics must be so unusual and
distinctive so as to be like a signature. Avila v. State, 18 S.W.3d at 741, Taylor v.
State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1992). Therefore, extraneous
evidence is not relevant simply by showing similar characteristics that are common
to the type of crime itself, instead the uncharged conduct must reveal the
“handiwork of the accused”. Ford v. State, 484 S.W.2d 730. Importantly,“[n]o
rigid rules dictate what constitutes sufficient similarities, rather, the common
characteristics may be proximity in time and place, mode of commission of the
crimes, the person’s dress, or any other elements which mark both crimes as
having been committed by the same person.” Segundo v. State, 270 S.W.3d 79, 88
(Tex. Crim. App. 2008)(emphasis added).
25
Relying on the state’s argument that the extraneous was admissible to prove
a lack of consent, the trial court admitted the evidence of Ms. Marchand
concluding that it was sufficiently similar to the charged offense and that it was
admissible to rebut the defensive theory of consent. (5 RR 25). Here, there are
insufficient details that mark the two offenses as “remarkably similar” or as the
“handiwork” of a single individual. Id. So too, the characteristics of the prior
extraneous and the charged offense are not “so unusual as to act as the defendant’s
‘signature.’” Jackson, 320 S.W.3d at 884. Here, there are no distinguishing
characteristics common to both crimes that mark it as the signature of one person.
While there are similarities, these similarities are common to the type of crime
itself, rather than peculiar similarities to both offenses that distinguish it as the acts
of one man. Owens, 827 S.W.2d at 915, (“The State must show more than the mere
repeated commission of crimes of the same type or class…”). Inaddition, the
Court of Criminal Appeals has made clear that, “if extraneous offense evidence is
not ‘relevant’ apart from supporting an inference of character conformity,’ it is
absolutely inadmissible under Rule 404(b).” Montgomery, 810 S.W.2d 386-87.
Here, the state argued at trial that the similarities between the extraneous and
the charged offense, which allegedly revealed the “modus operandi” of the
Appellant, were as follows:
“The specifics of the manner, the type of crime, the way he targeted
her and more specifically the specific threat that he made shows
26
identity, a specific modus operandi, the close proximity of where
these crimes occurred to each other, which we have the map that we
can show, within less than a mile apart, within blocks of each other,
within weeks of each other.”
(4 RR 107-108).
C. “The Specifics of the “Manner” or “the Type of Crime”
In State v. Ford, the Court “recognize[d] that there will always be
similarities in the commission of the same type of crime. That is, any case of
robbery by firearms is quite likely to have been committed in much the same way
as any other. What must be shown to make the evidence of extraneous crime
admissible is something that sets it apart from its class or type of crime in
general, and marks it distinctively in the same manner as the principal crime.”
484 S.W.2d at 730 (emphasis added). Much like the robbery example, sexual
assault cases will also have similarities because they are in the nature of the
offense itself. In order to be admissible to show modus operandi, the similarities
must go further to reveal something specific and distinctive about the crimes, such
that it reveals an inference of improbability of accident. See Martin v. State, 173
S.W.3d at 467.
1. “The way he targeted her”.
Ms. Garza testified that she merely happened upon the apartment complex
where she encountered Appellant. Appellant did not target Ms. Garza. Instead the
27
testimony revealed circumstances that were borne of opportunity. Ms. Marchand,
by contrast, was targeted as she exited a CVS store, but before she entered her car.
2. “The specific threat he made...”
The threats made to both women were essentially not to go to the police or
they would be hurt. The specifics of the threat were different in each case. Ms.
Garza testified Appellant and the other man kept her identifying information to
locate her if she went to the police. Ms. Marchand, however, testified that
Appellant wrote down information from her phone and threatened to have gang
members come after her family.
3. “Close proximity of the crimes”
Contrary to the state’s argument, which is not evidence, there were no maps
or other evidence admitted at trial to show the proximity between where Ms.
Marchand was allegedly kidnapped and sexually assaulted and where Ms. Garza
was located at the time of her alleged assault.
4. “Both offenses occurred within weeks of each other”
The only factor the state argued that provided some evidence of similarity
between the two offenses was that Ms. Marchand was assaulted two weeks prior to
Ms. Garza’s alleged attack. This fact alone, however, would not make the two
offenses sufficiently similar to be admissible. Because “[t]he similarities between
the charged offense and the extraneous offense … were not so unusual or
28
idiosyncratic as to signal conclusively that they were the handiwork of the same
person” the trial court abused its discretion in admitting the testimony of Ms.
Marchand.
In Ford v. State, the Court reversed a robbery conviction where the
extraneous was not sufficiently similar to the charged offense to be admissible to
show intent. 484 S.W.2d 727 (Tex. Crim. App. 1972). The defendant was involved
in a robbery-murder and the state attempted to introduce a supermarket robbery
that occurred two months earlier. Id. at 729. Although there were similarities, they
were neither distinguishing, novel, nor unusual. Id. at 730. The robbery-murder
involved a tall, black male. Id. Both crimes involved pistols and persons were
injured in both cases. Id. The Appellant allegedly wore purple in both robberies. Id.
The dissimilarities included the fact that there was two months between the
robberies, four men committed one robbery, and only one man committed the
other. Id. Appellant gained access to one under the pretext that he was looking for
work, however there was no evidence that he gained entry to the supermarket in
the same way. Id. In reversing the trial court’s decision, the Court held there was
“no distinguishing characteristic[s] common to both crimes. There are similarities,
but they are more in the nature of the similarities common to the type of crime
itself rather than similarities peculiar to both offense alone.” Id.
29
Similarly, the Court reversed the erroneous admission of an extraneous
offense in Owens v. State, a sexual assault case where the extraneous was not
sufficiently similar to show the handiwork of the same person. 827 S.W.2d at 915.
The Court held that two incidents of sexual assault, allegedly committed by the
defendant, were not so similar as to render evidence of the extraneous admissible
where the two offenses were alike only in that they were both sexual assaults
against minor females, of approximately the same age, both of whom were the
defendant’s daughters. Id. The Court said,
When the State seeks to admit extraneous offense evidence under a
theory of “system” or modus operandi, “there must be a showing that
the extraneous offense which was committed by the defendant was ‘so
nearly identical in method [to the charged offense] as to earmark
them as the handiwork of the accused.’”
Id. at 915 (emphasis added); Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim.
App. 1981), quoting E. Cleary, McCormick's Handbook of the Law of Evidence
449 (2d ed. 1972).
By contrast, in Martin v. State, the Court found the extraneous offense and
charged offense were sufficiently similar to be admissible to rebut the defensive
theories of consent and lack of intent. 173 S.W.3d at 463. The defendant admitted
he falsely claimed to be a law enforcement officer as a ruse to pick up both the
complainant and the victim of the extraneous. Id. at 467. In addition both women
testified they agreed to meet him in residential areas, and that he took both women
30
to a residence to sexually assault them after the initial meeting. Id. The Court held
these facts –-that he claimed in both cases to be a law enforcement officer to pick
up the women, took them to a residential area and sexually assaulted them in a
home-- were sufficient to show modus operandi, because they were sufficiently
distinctive to qualify as an exception to the general rules that preclude the
admission of extraneous-offense evidence. Id.
The present case does not present the distinguishing characteristics found in
Martin v. State, but instead provide general characteristics that are common to the
type of crime committed, similar to the Court’s holdings in Ford and Owens.
While an extremely high degree of similarity is not required, the Court of Criminal
Appeals has made clear that the relevance of any extraneous evidence derives from
the fact that it is sufficiently similar and “so unusual as to act as the defendant’s
‘signature.’” Jackson, 320 S.W.3d at 884, and it must be so identical in method to
the charged offense as to earmark it as handiwork of the accused. Even where a
case presents some similarities, they must be distinguishing, novel and unusual,
Ford, 484 S.W.2d at 730, to warrant its admission, because “there will always be
similarities in the commission of the same type of crime.” Ford, 484 S.W.2d at
730. It is not just the similarity of the offenses that permits its admission but that
level of sufficiency so as “to signal conclusively that [it is] the handiwork of the
same person.” Martin, 173 S.W.3d at 467; see also Owens, 827 S.W.2d at 915-16.
31
Because the trial court’s admission of Ms. Marchand’s testimony about an alleged
prior extraneous was outside the zone of reasonable disagreement, the trial court
abused its discretion.
D. Rule 403: The Danger of Unfair Prejudice
Even if the trial court properly admitted the extraneous evidence pursuant to
Rule 404(b), it still must exclude the evidence if the probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues
or misleading the jury. TEX.R.EVID. 403; Montgomery v. State, 810 S.W.2d at 387.
The following factors are balanced to determine whether the trial court abused its
discretion in admitting the extraneous offense evidence: (1) the strength of the
evidence in making a fact more or less probable; (2) the potential of the extraneous
offense evidence to impress the jury in some irrational but indelible way; (3) the
amount of time the proponent needed to develop the evidence; (4) the strength of
the proponent’s need for this evidence to prove a fact of consequence.
1. The Strength of the Evidence in Making a Fact More or Less
Probable.
As discussed thoroughly above, the first factor weighs against admissibility.
To be admissible, the extraneous must be relevant to some theory, other the general
proposition that one who commits one crime is prone to commit another. Ford, 484
S.W.2d at 729. The trial court admitted the extraneous to to prove consent or to
rebut the defensive theory of fabrication operandi of Appellant. Because the
32
extraneous was not sufficiently similar to the charged offense, it could not have
provided the jury with any permissible evidence that would make the issue of
consent more or less probable. In addition, the state did not use the evidence for its
purported purpose of showing a lack of consent. Instead, the state offered the
evidence and argued it to show character conformity. Therefore, the extraneous
evidence was not relevant to any fact issue, other than a propensity to commit
crime, and it was therefore not relevant because the sexual assault of Ms.
Marchand does not make a fact of consequence more or less probable. Jackson,
320 S.W.3d at 885.
2. The Potential the Extraneous Offense to Impress the Jury in Some
Irrational but Indelible Way.
The second factor also falls on the Appellant’s side of the ledger. Since the
extraneous served no permissible purpose, and because it was a prior sexual
assault, it had the very real potential to impress the jury in some irrational but
indelible way. All “[e]xtraneous offense evidence is ‘inherently prejudicial, tends
to confuse the issues, and forces the accused to defend himself against charges not
part of the present case against him.’” Jackson v. State, 320 S.W.3d at 889. Sims v.
State, 273 S.W.3d 291 (Tex. Crim. App. 2008)(quoting Pollard v. State, 255
S.W.3d 184, 185 (Tex. App. – San Antonio, 2008), aff’d, 277 S.W.3d 25 (Tex.
Crim. App. 2009). Here, the extraneous evidence allowed the jury to find
Appellant guilty if it believed he committed the sexual assault of Ms. Marchand,
33
even if it did not believe Ms. Garza. The prosecutor reinforced this belief in its
closing argument by telling jurors, “Just in case you don’t believe Irene – that’s
why we brought in evidence of another girl raped just 2 weeks before.” (5 RR
117). Importantly, the prosecutor’s argument also never limits the jury’s
consideration of the extraneous to whether or not Ms. Garza consented to the
sexual assault with Appellant. Instead the prosecutor argued this evidence could
be used to prove Appellant committed the charged offense, thus the sexual assault
of Ms. Marchand “had a significant potential ‘to lure the person in order to show
that he acted in conformity therewith.’” Jackson v. State, 320 S.W.3d at 886, citing
TEX.R.EVID. “As stated by the Texas Court of Criminal Appeals: ‘if extraneous
offense evidence is not ‘relevant’ apart from supporting an inference of character
conformity,’ it is absolutely inadmissible under Rule 404(b). Id. at 885; citing
Montgomery v. State, 810 S.W.2d 386-87.
3. The Amount of Time the Proponent Needed to Develop the Evidence.
The third factor does not fall in favor of admission since Ms. Marchand’s
testimony distracted the jury from the charged offense for a significant period of
time during trial. This evidence was then reiterated during the state’s closing
argument, where it was argued that if the jury did not believe the charged offense
occurred, they could substitute the testimony of Ms. Marchand for the testimony of
Ms. Garza. The testimony outside the presence of the jury and in front of the jury
34
spanned approximately 50 pages furthering the conclusion that the time to develop
the evidence was significant.
4. The Strength of the Proponent’s Need for this Evidence to Prove a
Fact of Consequence.
The fourth and final factor weighs heavily against admission of the
extraneous to prove consent or to rebut the defensive theory of fabrication. As
discussed, the only evidence contesting consent was based on the cross
examination of Ms. Garza about her work as an escort. (5 RR 26). A jury could
reasonably infer a lack of consent from the evidence introduced at trial that Ms.
Garza: (1) called police to report the attack; (2) went to the hospital for a rape kit;
(3) had physical injuries consistent with an attack; and (4) her personal
identification was taken. Therefore, the prosecutor did not need the additional
evidence of a prior sexual assault to prove a fact of consequence in this trial. This
is particularly true since the relevance of this evidence to the issue of consent
hinged on whether the sexual assault of Ms. Marchand was sufficiently similar to
show the “signature” or modus operandi of Appellant. Because it was not
sufficiently similar, it only provided jurors with evidence of Appellant’s propensity
to commit sexual assaults, an impermissible purpose.
For all the foregoing reasons, the trial court’s decision to admit the
extraneous was outside the zone of reasonable disagreement because the probative
value of the extraneous evidence was substantially outweighed by the danger of
35
unfair prejudice. Thus, the extraneous would not be admissible to show a lack of
consent by the complainant or rebut the defensive theory of fabrication, and
therefore such evidence did not make a fact of consequence more or less probable.
E. The Improper Admission of Extraneous Evidence Affected Appellant’s
Substantial Rights
If this Court concludes that the trial court erroneously admitted the
extraneous evidence, it must determine whether such error was harmless. The
erroneous admission of an extraneous does not constitute constitutional error so
this Court applies Texas Rule of Appellate Procedure, Rule 44.2(b). Therefore, any
error “that does not affect substantial rights must be disregarded.”
TEX.R.APP.PROC. 44.2(b). The rule requires this Court to determine if this error
had “a substantial and injurious effect or influence in determining the jury’s
verdict.” King v. State, 953 S.W.2d 266, 270 (Tex. Crim. App. 1997). If this Court
has “grave doubt” that the result was free from the substantial influence of the
error, it must treat the error as if it did. United States v. Lane, 474 U.S. 438, 449
(1986); Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002)(“In cases of
grave doubt as to the harmlessness the [appellant] must win.”); Brown v. State, 978
S.W.2d 708, 716 (Tex.App.–Amarillo 1998, pet. ref’d)(emphasis in original)(“The
determination of harm is little more than an educated guess. What the jurors
actually thought persuasive or actually considered is seldom, if ever, available to
us. So, we ... assess potentialities.”).
36
Appellant is not required to prove harm, instead it is this Court’s duty to
review the record and assess harm. Johnson v. State, 43 S.W.3d 1, 4-6 (Tex. Crim.
App. 2001). The proper inquiry is whether the error substantially swayed or
influenced the verdict. Booker v. State, 103 S.W.3d 521, 538 (Tex. App.– Fort
Worth 2003, pet. ref’d). This Court must consider the erroneous admission of the
extraneous in the context of the entire record, and not merely whether there was
sufficient, or even overwhelming evidence of guilt. Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002). In conducting its Rule 44.2(b) harm analysis,
this Court cannot lose sight of two interrelated considerations. First, if there is any
doubt that this error affected a substantial right, it is dispelled by the prosecutor’s
closing argument that urged the jury to convict Appellant based not on their belief
that Appellant committed the charged offense, but instead asked jurors to find him
guilty based on the extraneous offense evidence that he committed another rape
just two weeks prior. (5 RR 117).
This Court has long held that prosecutorial emphasis on erroneously
admitted evidence at trial and in final argument, is powerful evidence that an error
affecting a substantial right warrants reversal. See Delane v. State, 369 S.W.3d
412 (Tex. App – Houston [1st Dist.] 2012)(misapplication of rules of evidence
affected substantial rights where State emphasized erroneously admitted evidence
during final argument); Nelms v. State, 834 S.W.2d 110, 114 (Tex.App. – Houston
37
[1st Dist.] 1992, pet. ref’d)(same); see also Rhyne v. State, 387 S.W.3d 896, 906
(Tex. App.– Fort Worth 2012, no pet.)(erroneous admission of breath test result
affected substantial rights when State advised jury in summation that breath-test
evidence was “best evidence” Appellant was intoxicated.”).
1. Severity of the Misconduct
There can be little doubt that the introduction of Ms. Marchand’s alleged
rape to prove Appellant committed the sexual assault of Ms. Garza, would
adversely affect the jury’s verdict. The prosecutor’s final argument improperly
directed the jury to convict Appellant based, not on the evidence at trial, but
instead on the impermissible evidence that he kidnapped and raped another woman
just two weeks prior. Considering the lack of unique similarities between the two
offenses, the extraneous was not relevant to any issue at trial, including lack of
consent by the complainant or to rebut the defensive theory of fabrication. Since
the extraneous was not relevant to any fact issue of consequence, it carried little
probative value and tended to impress the jury with the fact that Appellant acted in
conformity with his character, an impression the law seeks to avoid. See
TEX.R.EVID. 402; Cobb v. State, 503 S.W.2d 249, 250 (Tex. Crim. App. 1973).
Because “[e]xtraneous offense evidence is ‘inherently prejudicial, tends to confuse
the issues, and forces the accused to defend himself against charges not part of the
present case against him,’” it is unlikely this evidence had only a slight effect on
38
the jury’s deliberation. Jackson at 889. Sims v. State, 273 S.W.3d 291 (Tex. Crim.
App. 2008)(quoting Pollard v. State, 255 S.W.3d 184, 185 (Tex. App. – San
Antonio, 2008), aff’d, 277 S.W.3d 25 (Tex. Crim. App. 2009).
2. Steps Taken to Cure the Misconduct
As discussed above the State was permitted to tell jurors in final argument
that, “Just in case you don’t believe Irene – that’s why we brought in evidence of
another girl raped just two weeks before.” (5 RR 117). The State was also allowed
to argue that: “his DNA was in both women – women who never met,” “that both
girls were raped at different locations” and “that DNA evidence doesn’t lie.” (5 RR
117).
Although the trial court did give jurors a limiting instruction4 after the state
rested, it did not instruct the jury that it should only consider the evidence to rebut
the defensive theory of fabrication or to show a lack of consent by the complainant,
if it did. (5 RR 87-88). The trial court also failed to limit the jury’s consideration
of the extraneous evidence in the jury charge. Jurors were provided with the
4
The Court:
“And before you do that, ladies and gentlemen, I have some instructions for you
regarding the testimony concerning the defendant’s involvement in another act.
You are instructed that if there is any evidence in this case regarding the defendant’s
committed an alleged offense or offenses other than the offense alleged against him in the
indictment in this case, you cannot consider such evidence for any purpose unless you find and
believe beyond a reasonable doubt the defendant committed such other offense or offenses, if
any, and even then you may only consider the same in determining the motive, opportunity,
intent, knowledge or absence of mistake or accident of the defendant, if any, in connection with
the offense, if any, alleged against him in the indictment, and for no other purpose.” (5 RR 86-
87).
39
standard list of 404(b) exceptions, however the court never identified the limited
purpose the evidence was to be considered in this case; the lack of consent or to
rebut the defensive theory of fabrication. An instruction that tells jurors not
consider inadmissible evidence, except for a limited purpose, still instructs jurors
to consider inadmissible evidence. Jackson, 320 S.W.3d at 889. Here, the evidence
should not have been considered for any purpose during the guilt/innocence phase
of trial therefore, this Court should not hold that the limiting instruction renders the
error harmless.
The Court of Criminal Appeals held “that an appellate court cannot affirm a
trial court’s decision to admit extraneous—offense evidence to rebut a defensive
theory if the trial court failed to instruct the jury, in the trial court’s limiting
instruction, on the extraneous evidence admissibility to rebut a defensive theory.”
Owens, 827 S.W.2d at 917, see Curtis v. State, 89 S.W.3d 163, 177 (Tex. App. –
Fort Worth 2002, pet ref’d)(refusing to consider whether admission of extraneous
offense evidence to rebut defensive theory was proper because jury was not
instructed on that basis). The Owens Court said this is because, “[a]bsent such
additional instruction, there is no way for an appellate court to know whether the
jury properly applied the evidence of appellant’s ‘system’ to rebut the weight or
credibility of appellant’s ‘frame-up’ theory or relied on it for an improper basis
such as character conformity.” Owens, 827 S.W.2d at 917. Because the trial court
40
did not instruct the jury to limits its consideration of the extraneous to rebut the
defensive theory of fabrication or to show a lack of consent by the complainant,
effectively no methods were taken to cure this harm.
3. Certainty of Conviction Absent Error
The Court of Criminal Appeals has stressed that “an appellate court should
consider overwhelming evidence of guilt, but that should be only one factor in the
analysis.” Motilla v. State, 78 S.W.3d 352, 355, 357 (Tex. Crim. App. 2002). As
previously stated, extraneous evidence is inherently prejudicial because it forces
the defendant to defend himself against charges not before the jury. Therefore, the
improper admission of an extraneous offense tends to be harmful because it
encourages a jury to base its decisions on character conformity, rather than
evidence that the defendant committed the offense charged.
Although evidence suggests Appellant committed the sexual assault and
aggravated kidnapping of Ms Garza, it was not without contradiction. The
evidence showed that Ms. Garza claimed she was not working as escort in the six
months prior to the offense however evidence was also admitted that showed she
did work as an escort in the months prior to the offense. Extraneous evidence of
the prior sexual assault of Ms. Marchand likely had a profound effect on the jury’s
decision to believe or disbelieve Ms. Garza. The allegation that Appellant
committed the sexual assault and aggravated kidnapping of Ms. Marchand likely
41
influenced the jury’s ultimate conclusion that Ms. Garza was a credible witness.
The State’s closing argument emphasizing this connection between Ms. Marchand
and Ms. Garza, which urged jurors to consider Appellant’s tendency to act in
conformity with his character, reinforces the likelihood that this improper evidence
played a significant role in the jury’s deliberations.
Based on this record, this Court cannot say with fair assurance that the
erroneous admission of the extraneous that Appellant committed a prior sexual
assault, and the state’s emphasis on this evidence in urging jurors to convict him,
not for the sexual assault of Ms. Garza, but because he acted in conformity with his
character, did not influence jurors, or had but a slight effect on their verdict. See
e.g., Pollard v. State, 255 S.W.3d 184, 190 (Tex. App.– San Antonio, 2008), aff’d,
277 S.W.3d 25 (Tex. Crim. App. 2009)(“[W]e conclude the State’s emphasis of the
murder conviction prejudiced the jury’s decision-making, causing a substantial and
injurious effect or influence on the jury’s verdict...”); West v. State, 124 S.W.3d
732, 736 (Tex. App.– Houston [1st Dist.] 2003, pet. ref’d)(State’s emphasis of
error during final argument was powerful indicia that trial court’s misapplication of
rules of evidence affected defendant’s substantial rights). This Court should hold
that the introduction of the extraneous was harmful and sustain Appellant’s point
of error.
The judgment of conviction entered below must be reversed and the cause
42
remanded for a new trial.
CONCLUSION AND PRAYER
Appellant respectfully prays that this Honorable Court sustain the appellate
contention here advanced, reverse the trial court’s order and hold the trial court
abused its discretion in admitting the extraneous offense in violation of Texas
Rules of Evidence Rules 404(b) and 403 because the prior sexual assault was not
relevant for the permissible purpose proffered by the state, did not tend to make
any issue of fact of consequence more or less likely, and was not sufficiently
similar to show the modus operandi of Appellant.
RESPECTFULLY SUBMITTED,
/s/ Carmen Roe
____________________________
CARMEN ROE
TBN: 24048773
440 Louisiana, Suite 900
Houston, Texas 77002
713.236.7755
713.236.7756 Fax
ATTORNEY FOR APPELLANT
43
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Brief was served on the Harris County District Attorney, Appellate Division, 1201
Franklin, 6th Floor, Houston, Texas 77002 by electronic filing, on 20th day of
February, 2015.
/s/ Carmen M. Roe
______________________________
CARMEN M. ROE
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it
contains 8,441 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Carmen M. Roe
______________________________
CARMEN M. ROE
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