Raymond Arrendondo Moreno v. State ( 2013 )

Opinion issued July 16, 2013.
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00320-CR
RAYMOND ARRENDONDO MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1316184
OPINION
A jury convicted Raymond Arrendondo Moreno of the first degree felony of
continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02(b) (West
Supp. 2012). The trial court sentenced Moreno to life in prison. Moreno appeals,
asserting that the trial court erred by (1) denying his motion to suppress evidence
based on an illegal seizure and (2) admitting, over Moreno’s objection, explicit
photographs of the complainant found on Moreno’s cell phone. Finding no
reversible error, we affirm.
Background
Deputy James Savell of the Harris County Sheriff’s Office stopped Moreno
for a traffic violation. Savell testified that he was driving on Interstate 10, when he
passed Moreno’s car. Savell noticed Moreno, a middle-aged Hispanic male, look
over at Savell, then lower his head and speak to his three passengers. Savell then
observed the people in the back seat reach down and look in Savell’s direction.
Savell positioned his car in front of Moreno’s and observed him through the rear-
view mirror. Savell saw Moreno fail to signal a lane change and twice fail to
maintain a single lane, and Savell pulled him over for these traffic violations.
As Savell walked toward Moreno’s vehicle, he noticed the occupants
making furtive movements, bending and reaching, as if to conceal weapons or
narcotics from view. Through the car windows, Savell could see several
pharmaceutical bags and medicine bottles with the labels removed. Based on his
training and experience, Savell suspected that Moreno and his passengers may
have been illegally dealing prescription drugs, and this caused him to shift his
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focus from Moreno’s traffic violations to the pill bottles. Savell asked the
passenger in the front, a girl in her early teens who would become the complainant
in this case, for identification. She replied that she did not have identification.
Savell separated the complainant and the other passengers from Moreno while he
investigated. Savell spoke briefly with Moreno, but the complainant was the first
person he interviewed.
The complainant told Savell that she was thirteen years old. She did not
know Moreno by name; when Savell asked what she called the driver of the car,
she replied, “Babe.” The complainant told Savell that she had known Moreno for
around a year and that he had had sexual intercourse with her at least twelve times.
The complainant was taken to the Children’s Assessment Center for a
forensic interview. She also underwent a sexual assault examination, which
showed abrasions to her vagina. The doctor who examined her testified at trial that
the abrasions were caused by a penis penetrating the complainant’s vagina.
After the complainant’s forensic interview and exam, Savell obtained search
warrants for Moreno’s home and electronics. Officers found condoms with both
Moreno’s and the complainant’s DNA. They also found, on Moreno’s cell phone,
pictures of the complainant, including some in which she was on a bed nude, and
others of her genitalia.
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At trial, the complainant testified that the first time that she had sexual
intercourse with Moreno was the night before her thirteenth birthday, November 6,
2010. She testified that she did not see Moreno again until after school ended in
2011. The complainant testified that in the summer of 2011, she stayed with
Moreno almost every week for a few days at a time, and that Moreno had sexual
intercourse with her between ten and fifteen times. Although she could not
remember every date on which Moreno had sexual intercourse with her, the
complainant said that the sexual intercourse occurred on the days that Moreno
photographed her. The complainant also testified that the last time they had
intercourse was the night before Moreno was arrested, August 9, 2011.
The forensic analysis of Moreno’s cell phone revealed that the photographs
of the complainant were taken on several different dates. The first was taken on
November 6, 2010. The next images of the complainant, including photographs of
the complainant’s genitalia, were taken after the school year ended. A forensic
analyst testified that these photographs were taken on several different dates
between June 6, 2011 and July 30, 2011.
The jury found Moreno guilty of continuous sexual abuse of a child, and the
trial court sentenced Moreno to life in prison. Moreno appealed.
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Motion to Suppress
In his first issue, Moreno contends the trial court erred by denying his
motion to suppress and admitting evidence obtained from the complainant and
during the execution of the search warrants, because the evidence was obtained as
a result of a traffic stop that violated the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution. See U.S. CONST. amend. XIV.
Specifically, Moreno claims Savell stopped him because of his race, in violation of
the Equal Protection Clause. The State responds that Moreno did not preserve the
issue for review, because his argument on appeal does not comport with the ground
for suppression that he raised in the trial court.
A motion to suppress is a specialized objection to the admissibility of
evidence. Simmons v. State, 288 S.W.3d 72, 76 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (citing Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App.
1981)); Obryant v. State, No. 01-08-00740-CR, 2009 WL 4724667, at *6 (Tex.
App.—Houston [1st Dist.] Dec. 10, 2009, pet. ref’d) (mem. op., not designated for
publication) (citing Galitz, 617 S.W.2d at 952 n.10). To preserve a complaint for
appellate review, a party must have presented to the trial court a timely request,
objection, or motion stating the specific grounds for the ruling desired. TEX. R.
APP. P. 33.1(a)(1)(A); Simmons, 288 S.W.3d at 77. On appeal, the appellant’s
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contention must comport with a specific objection made at trial. Simmons, 288
S.W.3d at 77 (citing Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002));
Obryant, 2009 WL 4724667, at *6 (citing Wilson, 71 S.W.3d at 349). Equal
protection claims are subject to this rule. Saldano v. State, 70 S.W.3d 873, 889
(Tex. Crim. App. 2002). The Court of Criminal Appeals has “consistently held
that the failure to object in a timely and specific manner during trial forfeits
complaints about the admissibility of evidence[,] . . . even though the error may
concern a constitutional right of the defendant.” Id. (footnotes omitted).
Moreno’s argument on appeal does not comport with his objection in the
trial court. On appeal, Moreno contends that his equal protection rights were
violated because Savell initiated the traffic stop based on Moreno’s race, and,
therefore, any evidence obtained as a result of the illegal stop is inadmissible.
Moreno did not make the same argument in the trial court. In his motion to
suppress, Moreno argued that Savell’s detention became unreasonable because he
detained Moreno longer than was necessary to investigate a simple traffic
violation. Moreno’s motion to suppress stated:
On August 10, 2011, law enforcement officers stopped the
vehicle being driven by the Defendant for a traffic violation. Once the
officers had stopped the Defendant’s vehicle and approached it,
however, they did not issue a citation to the Defendant. Additionally,
although the officers observed prescription pill bottles in the interior
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of the car, there was nothing to suggest that the prescriptions weren’t
valid.
Nonetheless, the officers, based on a mere hunch that
something may be amiss, ordered the occupants, including the
defendant and the complainant, out of the car and began questioning
them. These questions elicited responses and evidence that were the
result of an unreasonable detention and which served to develop
incriminating evidence against the Defendant. Such prolonged
duration of the detention violated the Fourth and Fourteenth
Amendments to the United States Constitution, article I, section 9 of
the Texas Constitution and article 38.23 of the Texas Code of
Criminal Procedure because there were no articulable facts to support
a reasonable suspicion to justify the continued detention and
investigation. St. George v. State, 237 S.W.3d 720 (Tex. Crim. App.
2007).
The day after the motion to suppress hearing, immediately before trial began,
Moreno offered the following summary of his position on the motion to suppress:
The short version, as I read [Davis v. State, 947 S.W.2d 240 (Tex.
Crim. App. 1997),] it states what we said, what I argued yesterday,
that a legal stop—and we did not argue with the stop itself, even
though it was a pretext—a legal stop for traffic offenses, or any other
stop can, after a certain period of time, become unreasonable. And
that’s Davis v. State. The other is Florida, 463, U.S. 491, 1983 [sic].
It said that there was no simple test for when and how long a
temporary detention becomes unreasonable, but two of the factors
were moving the suspect or the defendant and the length of time for
the encounter. We ask those to be included in the record for whatever
purposes.
Moreno never made an equal protection argument and never claimed Savell
made the traffic stop based on Moreno’s race. Because an equal protection claim
must be raised by a timely and specific objection before the trial court and Moreno
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did not object or otherwise raise the equal protection issue in conjunction with his
motion to suppress, we hold that his complaint is not preserved for review. See
Saldano, 70 S.W.3d at 889–90 (holding appellant waived complaint that admission
of expert testimony concerning recidivism and race violated his equal protection
rights when he failed to object below); see also Obryant, 2009 WL 4724667, at *6
(holding appellant’s argument on appeal that traffic stop based on his race violated
his equal protection rights was not preserved because appellant did not raise equal
protection issue in his motion to suppress).
We overrule Moreno’s first issue.
Admission of Photographs
Moreno contends in his second issue that the trial court erred by admitting
nude photographs of the complainant recovered from his cell phone, over his Rule
403 objection, because the evidence was unfairly prejudicial and duplicative of
evidence already admitted.
A. Standard of Review
We review a trial court’s decision to admit evidence for an abuse of
discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006);
Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d). A trial court abuses its discretion only if its decision is “so clearly wrong as
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to lie outside the zone within which reasonable people might disagree.” Taylor v.
State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). “When a trial court further
decides not to exclude the evidence, finding that the probative value of the
evidence is not outweighed by the danger of unfair prejudice, this decision too
shall be given deference.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003).
B. Texas Rule of Evidence 403
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” TEX. R. EVID. 403. “Unfair prejudice”
refers to more than the fact that the evidence has an adverse or detrimental effect
on the defendant’s case. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App.
2007). “Virtually all evidence that a party offers will be prejudicial to the
opponent’s case, or the party would not offer it.” Id. Rather, unfair prejudice
refers to “an undue tendency to suggest a decision on an improper basis,
commonly an emotional one.” Id. When undertaking a Rule 403 analysis, “a trial
court must balance (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against (3) any
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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).
C. Law Applicable to Continuous Sexual Assault of a Child
To establish continuous sexual abuse of a child, the State must prove that,
“during a period that is 30 or more days in duration,” the defendant “commit[ted]
two or more acts of sexual abuse . . . at the time of the commission of each of the
acts of sexual abuse, the [defendant was] 17 years of age or older and the victim
[was] a child younger than 14 years of age.” TEX. PENAL CODE ANN. § 21.02(b);
Smith v. State, 340 S.W.3d 41, 47 (Tex. App. —Houston [1st Dist.] 2011, no pet.).
An “act of sexual abuse” includes, as relevant here, aggravated sexual assault of a
child under section 22.021(a)(2)(B) of the Texas Penal Code. TEX. PENAL CODE
ANN. § 21.02(c)(4); see Smith, 340 S.W.3d at 47.
A person commits aggravated sexual assault of a child if he intentionally or
knowingly causes his sexual organ to contact or penetrate the sexual organ of a
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child younger than fourteen years of age. TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(i), 22.021(a)(2)(B). Although the exact dates of the abuse need
not be proven, the offense of continuous sexual abuse of a child does require proof
that one act of sexual abuse occur on at least the 29th day after the day of another
act of sexual abuse. Smith, 340 S.W.3d at 48 (citing TEX. PENAL CODE ANN.
§ 21.02(d) (“The jury must agree unanimously that the defendant, during a period
that is 30 or more days in duration, committed two or more acts of sexual
abuse.”)).
D. Analysis
Under the first two factors of Rule 403 balancing test, we examine the
probative value of the evidence in question and the State’s need for the evidence.
Gigliobianco, 210 S.W.3d at 641. “Probative value refers to the inherent probative
force of an item of evidence—that is, how strongly it serves to make more or less
probable the existence of a fact of consequence to the litigation—coupled with the
proponent’s need for that item of evidence.” Id. The photographs have probative
value because they, together with the complainant’s testimony that Moreno had
intercourse with her on the dates he photographed her, establish the dates on which
Moreno had sexual intercourse with the complainant. See TEX. PENAL CODE ANN.
§ 21.02(d); Smith, 340 S.W.3d at 48. The State’s need for this evidence was great.
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The complainant could not recall the precise dates on which Moreno had
intercourse with her, but she testified that Moreno had sex with her on the days he
photographed her. Thus, the photographs establish that the acts of sexual abuse
occurred during a period that was thirty or more days in duration, a necessary
element of the crime charged. 1 Additionally, in prosecutions for sexual offenses, a
successful conviction often depends on whether the jury believes the complainant.
See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Therefore,
photographic evidence corroborating the complainant’s testimony was highly
probative and necessary to the State’s case. These factors weigh strongly in favor
of admissibility.
Under the third factor, we examine the unfair prejudice, that is, the tendency
of the evidence to suggest decision on an improper basis. Gigliobianco, 210
S.W.3d at 641. Evidence might have this tendency if “it arouses the jury’s hostility
or sympathy for one side without regard to the logical probative force of the
evidence.” Id. The photographs likely did arouse the jury’s hostility for Moreno
because they were disturbing, graphic images and evidence of the separate offense
of possession of child pornography. See Wheeler, 67 S.W.3d at 889 (noting that
1
The testimony of the forensic analyst demonstrated that the photographs were
taken on the following dates: November 6, 2010; June 11, 18, 25, and 26, 2011;
and July 9 and 30, 2011.
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“evidence of an extraneous sexual offense will always carry emotional weight and
the danger of impressing the jury in an irrational and indelible way”). Thus, this
factor weighs against admissibility.
In considering the fourth factor, we examine the tendency of the evidence to
confuse or distract the jury from the main issue. Gigliobianco, 210 S.W.3d at 641.
“Evidence that consumes an inordinate amount of time to present or answer, for
example, might tend to confuse or distract the jury from the main issues.” Casey,
215 S.W.3d at 880. Here, the testimony about the photographs was not lengthy
and did not distract the jury’s attention from the main issue. Rather, the
photographs related directly to an element of the offense. See Manning v. State,
114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (holding that evidence of cocaine in
defendant’s blood could not distract jury from indicted offense of manslaughter
because it was “proof of the indicted offense”). This factor weighs in favor of
admissibility.
Under the fifth factor, we weigh any tendency of the evidence to be given
undue weight by a jury that has not been properly equipped to evaluate the
probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Here, although
the forensic examiner’s testimony about recovering the photographs from
Moreno’s cell phone was somewhat technical in nature, the photographs
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themselves were not technical or scientific in nature. The photographs and the
dates on which they were taken were matters “comprehensible by laypeople.”
Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d). Thus,
nothing suggests that the jury was not equipped to evaluate the probative force of
the photographs. This factor weighs in favor of admissibility.
Finally, under the sixth factor, we consider the time required to develop the
evidence. Gigliobianco, 210 S.W.3d at 641. As mentioned above, the testimony
of the forensic examiner was not lengthy. Thus, the presentation of the
photographs did not “consume an inordinate amount of time.” Id. at 641–42. This
factor weighs in favor of admissibility.
Balancing all of the factors, we conclude that the trial court did not abuse its
discretion in determining the testimony was not substantially more prejudicial than
probative under Rule 403. See Garreans v. State, No. 05-06-00934-CR, 2008 WL
311002, at *7–8 (Tex. App.—Dallas Feb. 5, 2008, no pet.) (op., not designated for
publication) (holding trial court did not abuse discretion in admitting images from
appellant’s computer depicting child pornography and incest website where
appellant denied sexual abuse).
We overrule Moreno’s second issue.
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Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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