Harold Higgins A/K/A Harold Leon Sparks v. State ( 2002 )

                                   NUMBER 13-99-401-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

HAROLD HIGGINS,                                                             Appellant,

                                                   v.

THE STATE OF TEXAS,                                                       Appellee.

       On appeal from the 184th District Court of Harris County, Texas.

                          MEMORANDUM OPINION

                 Before Justices Hinojosa, Yañez, and McCormick^[1]

                                   Opinion by Justice Yañez

A jury convicted appellant, Harold Higgins a/k/a Harold Leon Sparks, of aggravated sexual assault of a child^[2] and assessed his punishment at ten years community supervision.  By three issues, appellant contends: (1) the trial court erred in admitting and considering evidence of extraneous offenses against persons other than the victim; and (2) the evidence is legally and factually insufficient to establish that the victim was not his spouse.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here.  See Tex. R. App. P. 47.1. 

A trial judge=s admission of extraneous offense evidence is reviewed for abuse of discretion.  Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh=g); Perry v. State, 933 S.W.2d 249, 253 (Tex. App.BCorpus Christi 1996, pet. ref=d).   If the trial court=s decision to admit the evidence was correct on any theory of law applicable to the case, it will be sustained.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Hernandez v. State, 900 S.W.2d 835, 838 (Tex. App.BCorpus Christi 1995, no pet.). 

Appellant complains of the extraneous offense evidence offered by two witnesses:  (1) his daughter, Carolyn Ann Lockridge, and (2) his stepdaughter, Shantina Lister.^[3]  Appellant argues that the testimony of Carolyn Ann and Shantina violated rules 402, 403, and 404(b) of the Texas Rules of Evidence.  See Tex. R. Evid. 402, 403, 404(b).  We conclude the trial court did not abuse its discretion in admitting the evidence.

Rule 404(b) states as follows:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction.

Tex. R. Evid. 404(b).

If extraneous offense evidence is not relevant except to show character conformity, it is inadmissible under rule 404(b).  Id.; Powell, 63 S.W.3d at 438; Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991)(op. on reh=g); Perry, 933 S.W.2d at 253.  However, extraneous offense evidence may be admissible when it is relevant to a noncharacter conformity fact of consequence in the case, such as rebutting a defensive theory.  Powell, 63 S.W.3d at 438; Montgomery, 810 S.W.2d at 387-88. 

Relevant evidence is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice to the defendant.  See Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 389.  Factors to be considered in determining whether the testimony's probativeness was outweighed by the potential for unfair prejudice include (1) the testimony's inherent probative value, (2) its potential to impress the jury in some irrational but indelible way, (3) the amount of trial time the proponent needs to develop such testimony, and (4) the proponent's need for the testimony.  See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)); Montgomery, 810 S.W.2d at 389-90.  There is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).  The party objecting to the evidence bears the burden of showing that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.  Hinojosa v. State, 995 S.W.2d 955,  958 (Tex. App.BHouston [14th Dist.] 1999, no pet.).  In overruling a defendant=s rule 403 objection, the court is assumed to have applied a rule 403 balancing test and determined the evidence was admissible.  Id. at  957. Rule 403 does not require that the balancing test be performed on the record.  Id.

In the present case, the State initially urged the court to consider admission of the extraneous offense evidence following presentation of the State=s case-in-chief. A hearing was held outside the presence of the jury, and the trial court denied the State=s request, noting that it would reconsider admissibility on rebuttal. Thereafter, Charlene Sparks, appellant=s niece, testified for the defense.  Sparks testified that prior to appellant=s arrest in the instant case, she overheard a conversation between Carolyn Ann and Lillie Lockridge, the mother of Carolyn Ann and C.M.L., in which they discussed Asetting up@ appellant.  Sparks testified that C.M.L. was present when the conversation occurred.

After the defense rested, the State urged the trial court to reconsider admission of the extraneous offense evidence.  Following a hearing, the trial court found the extraneous offenses Amuch more probative than they were at the conclusion of the State=s case@ and allowed admission of the evidence.  Thereafter, Carolyn Ann testified that when she was thirteen years old, appellant had sex with her.  Shantina Lister testified that when she was eight years old, appellant fondled her breasts and vagina and kissed her vagina.  She also testified that appellant had intercourse with her on at least four occasions when she was eight and nine years old. 

Appellant=s defensive theory was essentially that Lillie Lockridge and Carolyn Ann were angry with him for his failure to visit Carolyn Ann when she was in prison, and  that in retaliation, they encouraged C.M.L. to fabricate the allegations against him. The testimony by Carolyn Ann and Shantina served to rebut appellant=s Aframe-up@ theory by showing he had engaged in prior similar misconduct in circumstances where no retaliation motive appeared to be present.  We conclude that the extraneous offense evidence was relevant to rebutting appellant=s fabrication theory.  See Wheeler, 67 S.W.3d at 887 n.22 (extraneous offense evidence of similar misconduct may be admissible to rebut defense in child sexual assault case that defendant is innocent victim of a Aframe-up@ by the complainant or others).

Having determined that the trial court correctly admitted the extraneous offense evidence under rule 404(b), we next consider whether the evidence should have been excluded under rule 403 because of its unfairly prejudicial nature. 

Here, appellant denied sexually assaulting C.M.L.  Three of his daughters testified that they were in the house playing with appellant and C.M.L. the day the assault occurred and did not see any sexual misconduct by appellant.  Appellant=s defensive theory was that C.M.L., Lillie Lockridge, and Carolyn Ann had fabricated the allegations against him.  The extraneous offense testimony was thus needed by the State to rebut appellant=s defensive theory.  In addition, the evidence that appellant had on prior occasions sexually assaulted his daughter and stepdaughter when they were approximately the same age as C.M.L. made it more probable that he had the intent and motive to sexually assault C.M.L. We conclude the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.  We hold the trial court did not abuse its discretion in admitting the extraneous offense evidence.  We overrule appellant=s first issue. 

In his second and third issues, appellant contends the evidence is legally and factually insufficient to establish that C.M.L. was not his spouse.

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).  The standard is the same for cases based on both direct and circumstantial evidence.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Escobar v. State, 28 S.W.3d 767, 773 (Tex. App.BCorpus Christi 2000, pet. ref=d).   

In contrast, in determining the factual sufficiency of the elements of the offense, we view all the evidence in a neutral light, favoring neither party.  Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Evidence is factually insufficient if is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence.  Johnson, 23 S.W.3d at 11.  These standards for review apply equally to direct and circumstantial evidence cases.  Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).   

Here, the indictment alleged that appellant, on or about March 29, 1997, unlawfully, intentionally and knowingly caused the female sexual organ of C.M.L., a person younger than fourteen years of age and not the spouse of the defendant, to contact the mouth of the defendant.  See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(iii) (Vernon Supp. 2002).  Appellant argues that:

To the extent that the present tense assertions that Appellant and [C.M.L.] were not married on either 06 April 1999 and 07 April 1999 fail to prove that they were not married on or about 29 March 1997, the evidence is both legally and factually insufficient to prove that Carolyn Ann Lockridge was Anot the spouse of the defendant.@ (emphasis in original)

We construe appellant=s argument to be that although appellant and C.M.L. testified that they were not married at the time of trial, the State failed to establish they were not married at the time the offense occurred.^[4]  We find appellant=s arguments to be without merit.  

Appellant testified as to the names of all the women he had been married to and the approximate dates and duration of each marriage.  Appellant did not assert that he was ever married to C.M.L.  We hold that the evidence is legally and factually sufficient to establish that C.M.L. was not appellant=s spouse and overrule his second and third issues.

The judgment of the trial court is AFFIRMED.  

LINDA REYNA YAÑEZ

Justice

Do not publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this the

20th day of June, 2002.

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^[1]Retired Justice Michael J. McCormick assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' ' 74.003 and 75.002 (Vernon 1998).

^[2]See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2002).  At the time of the offense, on or about March 29, 1997, the victim, C.M.L., was ten years old.  

^[3]At the time of trial, Carolyn Ann Lockridge was twenty-nine years old and Shantina Lister was twenty-four.  Carolyn Ann Lockridge=s mother is also the mother of the victim, C.M.L.; thus, Carolyn Ann is C.M.L.=s half-sister.  

^[4]Thus, we assume that appellant=s assertion that the evidence is legally and factually insufficient to prove that Carolyn Ann Lockridge was not the spouse of the defendant is in error, and that he intended to challenge the legal and factual sufficiency of the evidence that C.M.L. was not his spouse at the time of the offense.