Joel Thomas Dies v. the State of Texas ( 2022 )

Affirm and Opinion Filed August 4, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00951-CR
JOEL THOMAS DIES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-83177-2019
OPINION
Before Justices Myers, Carlyle, and Goldstein
Opinion by Justice Myers
A jury convicted appellant Joel Thomas Dies of continuous sexual abuse of a
child under the age of fourteen and assessed punishment at sixty years in prison.
Appellant raises two issues, arguing he was denied his constitutional right to
confront adverse witnesses and the trial court erred in admitting extraneous offense
evidence. We affirm.
DISCUSSION
I. Right to Confrontation
In his first issue, appellant argues he was denied his constitutional right to
confront two adverse witnesses that the trial court allowed to testify remotely.
Appellant was charged with continuous sexual abuse of a child under the age
of fourteen.1 The trial court held a pretrial hearing on Thursday, October 15, 2020,
four days before the start of trial. The State notified the court and defense counsel
that it was experiencing difficulties with two of its witnesses’ appearing in person.
The first witness, Eli Molina, who conducted complainant’s forensic interview, was
in quarantine because of his exposure to the COVID-19 virus, and he would not be
out of quarantine until the following Wednesday.
The second witness was AD, the extraneous child abuse victim, who was now
an adult. The State explained that she was thirty-eight weeks pregnant; she lived
two hours away; and she had been advised not to travel. The trial court proposed
calling Molina out of order or having him testify remotely by “Zoom,” which is a
type of teleconferencing software. The defense objected to both suggestions. The
State requested that AD be permitted to testify via Zoom given her medical condition
and the threat of exposure to COVID-19, and defense counsel again objected. The
State argued that if it was not going to be able to reach an agreement with the defense,
1
The indictment charged that on or about June 14, 2014, through December 18, 2018, during a period
of thirty or more days in duration, appellant committed two or more acts of sexual abuse against
complainant, including aggravated sexual assault of a child by intentionally and knowingly causing the
sexual organ of complainant, a child then younger than fourteen years of age, to contact the defendant’s
male sexual organ; causing complainant’s anus to contact the defendant’s male sexual organ; causing the
penetration of complainant’s anus by means of the defendant’s finger; causing complainant’s mouth to
contact the defendant’s male sexual organ; and causing the penetration of complainant’s anus by means of
a sex toy. The indictment also alleged indecency with a child by contact by intentionally and knowingly,
and with intent to arouse or gratify the sexual desire of any person, engaging in sexual contact by touching
part of the genitals of complainant, a child younger than seventeen years of age, by means of the defendant’s
hand; and by causing complainant’s hand to touch part of the defendant’s genitals. The indictment further
alleged that at the time of the commission of each of these acts of sexual abuse, the defendant was seventeen
years of age or older and complainant was a child younger than fourteen years of age.
–2–
it would request a continuance based on a material witness not being available. The
trial court denied the State’s request. Jury selection took place the following day,
Friday, October 16, 2020.
On Monday, October 19, before the start of trial, the State notified the court
that, following the prior hearing, Molina had again tested positive for COVID-19.
He would therefore not be ready to testify by Wednesday, as previously expected.
The State asked the court to allow Molina to testify remotely by video conferencing,
and it pointed to the Office of Court Administration’s (OCA’s) guidelines permitting
remote testimony during the pandemic. Defense counsel objected to the witness’s
testifying remotely based on confrontation grounds, citing Maryland v. Craig, 497
U.S. 836 (1990), and he also objected to a continuance. The State replied that the
witness’s upper body would be visible on videoconferencing, and that the screen
was large enough that defense counsel would be able to see, hear, and cross-examine
the witness as though he were testifying in person.
The court ruled that Molina could testify remotely. In doing so, the court
noted the need to “get the cases moving” and the defendant’s right to a speedy trial,
as well as the defense’s rejection of a continuance. The court observed that the
pandemic had made it “very difficult for the Court to balance the different interests
between criminal cases, specifically, between the State and the Defense, trying to
get the cases moving, having the Defense have a speedy trial.”
The court then took up the question of the admissibility of AD’s testimony
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under article 38.37 of the Code of Criminal Procedure,2 and whether she would be
allowed to testify remotely. During that part of the hearing, AD testified remotely
that the defendant was her uncle; she lived in Bowie County; she was pregnant with
her second child, which was due in two weeks; and she had been advised by her
doctor not to travel out of town. She also recounted how, years before, appellant
had sexually abused her. AD testified that the abuse occurred when she and
appellant were both living in the same house in Louisiana with AD’s grandparents.
Appellant was an adult; AD was about 5 years old. AD recalled two incidents, first
testifying how she remembered lying on a futon in appellant’s bedroom on her back
with appellant on top of her and their pants down. Appellant kissed her and his
breath tasted like powdered milk. He touched her vagina with his hand and his penis,
and she felt very uncomfortable. The assault ended when AD’s grandfather knocked
on the locked bedroom door. AD also recalled that one morning, when her
grandparents were sleeping, appellant had her squat outside of his doorway with her
pants down, and appellant spanked her on her buttocks.
After the parties argued over whether AD’s testimony was admissible under
article 38.37, and the court ruled AD could testify, the State again urged the court to
allow her to testify remotely. The State reiterated how dangerous it would be for
AD to travel and appear in-person because of her late-stage pregnancy and the
2
TEX. CODE CRIM. PROC. art. 38.37 (“Evidence of extraneous offenses or act.”).
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pandemic. The State also argued for the materiality of AD’s testimony and its need
for her testimony, given the absence of physical evidence or eyewitness testimony
corroborating complainant’s account of the abuse. As with Molina, the defense
objected to AD’s remote testimony on confrontation grounds and restated its
objection to a continuance. The court ruled that AD could testify remotely and
“appear by Zoom.”
The following morning, Tuesday, October 20, defense counsel moved for a
continuance. Counsel informed the trial court he decided to ask for a continuance
after conferring with his client following the previous day’s hearing and discussing
with appellant how turning down the opportunity to continue the case would impact
his confrontation clause claim on appeal. Defense counsel told the court that after
discussing matters such as “waivers and constitutional rights” with appellant, “he
informed me that he understands that there could be certain appellate issues if you’re
giving him a remedy to something for which I am objecting to.” Counsel also stated:
But ultimately, at the end of the day, it’s [appellant’s] decision. It’s not
[defense counsel’s] decision, his attorney. I explained to him that the
Court was giving him a remedy and allowing him to rectify something
that I was objecting to, i.e., the Zoom—witnesses being able to testify
via Zoom.
He understood that. He understands he does have a United States
Constitutional right and the Supreme Court has provided he does have
a right of confrontation. And after me explaining that to him again, he
informed me that he does hereby request a continuance of his case in
order that we do not have to go forward and he does not have to give
up his constitutional right of confrontation of these witnesses.
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The trial court then questioned the court administrator for Collin County, Kim
Alvarado, who was described by the court as “our go-to person for the technology it
takes to call a witness via Zoom.” She testified regarding the videoconferencing
technology that would be used for remote testimony, explaining that the courtroom
was equipped with a sound system that included microphones at each of the counsel
tables and the bench. She also stated that audio from the videoconferencing system
would be broadcast over the courtroom’s audio system. In addition, a laptop would
be set up at each counsel table so that the attorneys and the defendant could see the
witness, and the witness and the attorneys could, in turn, see each other. The video
would be displayed on two large TV screens in the courtroom (a 90-inch TV screen
and a 75-inch screen), and Alvarado agreed that the witness would appear “larger
than life in the courtroom.” Alvarado also explained that the equipment had been
tested to ensure it was functioning properly. The State pointed out that the witnesses
would be positioned on camera so that they were visible to the jury from the waist
up. The State also said it would be willing to provide Molina’s notes to defense
counsel in advance of his testimony. The trial court observed that the same Zoom
videoconferencing technology had been used when AD testified remotely during the
pretrial hearing. Although the audio was not connected to the courtroom’s audio
system, the court noted that it was able to see the witness from the waist up and it
had no difficulties hearing her on the court’s computer.
The trial court judicially noticed the following:
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The Court takes judicial notice of the Supreme Court’s emergency
orders dealing with Covid. The Court will note too they have charged
the OCA, the Office of Court Administration, to come up with
guidelines on how to proceed.
The OCA, through that directive by the Supreme Court, is requiring the
Court to provide a safety plan for each trial tried to Collin County
approved by the OCA and the local regional judge. And Collin County
has done all of those things. This has been approved by the OCA for a
trial, and this specific one. We have to do it case by case and
[appellant’s] case has been approved for the trial.
I’m not saying they said specifically for a witness to appear by Zoom,
but the emergency order does say to accommodate any witnesses via
Zoom. And they didn’t really make a specification only on these cases,
only on CAC [Crimes Against Children] cases and, so, that’s what
we’ve done.
The court also stated:
[T]he Court has tried to and continues to try to, like all courts in Texas
during this pandemic, to weigh the different interests of each of the
parties. That is to a [sic] speedy trial, to move the case forward, to
balance the safety and health of the jurors, and the Defendant’s right to
go to a speedy trial. And you’ve asked for a continuance, and that is
noted.
And the court concluded as follows:
And so, the Court has balanced all of those interests. I think we would
be in a different spot if the victim of the case wanted to appear by Zoom.
I think that might be a little different. But I think I’m comfortable with
balancing all of those interests in my earlier decision that this case is
going to proceed. The witnesses will appear by Zoom.
I do believe the technology is excellent compared to the 1990 case that
you cited. Things have changed a lot. And under the conditions I think
it’s appropriate for those witnesses to appear by Zoom and your motion
for continuance is denied.
Both Molina and AD subsequently testified before the jury on Zoom. An
audio issue briefly delayed the start of Molina’s testimony. At the outset of AD’s
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testimony, she was asked to speak louder, but no other sound issues with either
witness are apparent from the reporter’s record. Both witnesses confirmed before
the jury that they were alone at their respective locations. Both also confirmed that
they could see the judge, defense counsel, and the State, but not the jury. Molina
said he could not see appellant but could see the trial judge and counsel for both
parties.3 AD said she could see appellant, and she identified him based on an article
of clothing he was wearing. She tried covering him up with her finger because she
did not want to look at him, but she could see him.
The Sixth Amendment of the United States Constitution as applied to the
states through the Fourteenth Amendment provides criminal defendants with the
right to be confronted with the witnesses against them. U.S. CONST. amend. VI.
This provision, known as the Confrontation Clause, guarantees the defendant a face-
to-face meeting with witnesses appearing before the trier of fact. Coy v. Iowa, 487
U.S. 1012, 1016 (1988).
But the right to a physical face-to-face meeting is not absolute and “must
occasionally give way to considerations of public policy and the necessities of the
case.” Craig, 497 U.S. at 848. In Craig, the Supreme Court rejected a defendant’s
Sixth Amendment challenge, upholding a Maryland rule that allowed child victims
of abuse to testify by one-way closed-circuit television from outside the courtroom.
3
This may have been because the defendant moved out of the videoframe he shared with defense
counsel.
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Id. at 858. The defendant could see the testifying child witness on a video monitor,
but the child witness could not see the defendant. Id. at 841–42. The defendant
argued the procedure violated his Sixth Amendment right to confrontation because
he was denied a physical face-to-face encounter with the witness. Id. at 842. The
Supreme Court rejected this argument, stating that although “we reaffirm the
importance of face-to-face confrontation with witnesses appearing at trial, we cannot
say that such confrontation is an indispensable element of the Sixth Amendment’s
guarantee of the right to confront one’s accusers.” Id. at 849–50. The Court
explained that “a defendant’s right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only where denial of such
confrontation is necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured.” Id. at 850. The Supreme Court
stated that “the Confrontation Clause reflects a preference for face-to-face
confrontation,” id. at 849 (citing Ohio v. Roberts, 448 U.S. 56, 63 (1980)), but
criminal defendants do not have “the absolute right to a face-to-face meeting with
witnesses against them at trial.” Id. at 844. The Court also acknowledged that “use
of the one-way closed circuit television procedure, where it is necessary to further
an important state interest, does not impinge upon the Confrontation Clause’s truth-
seeking or symbolic purposes.” Id. at 852. However, “[t]he requisite finding of
necessity must of course be a case-specific one.” Id. at 855.
Like Craig, Texas law stresses that there must be a case-specific finding of
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necessity and that the trial court must hear evidence. Haggard v. State, 612 S.W.3d
318, 325 (Tex. Crim. App. 2020); see also Craig, 497 U.S. at 855. In Haggard, a
sexual assault nurse examiner (SANE) was allowed to testify from Montana through
FaceTime, over defense objections. 612 S.W.3d at 323–24. The State argued at trial
that the witness’s testimony was essential because only she could prove-up the chain
of custody of the SANE kit and its contents. Id. at 323. The State, however, did not
subpoena the witness, who notified prosecutors that she would not voluntarily appear
and testify. Id. The court of criminal appeals stated that, since Craig was decided,
the court “has required a necessity finding in every case in which we have considered
a Confrontation Clause challenge to the cross-examination of a witness via two-way
video system.” Haggard, 612 S.W.3d at 325. Applying Craig, the court noted that
“the judge heard no evidence and made no case-specific finding.” Id. at 327. The
court concluded it did “not think it is an important public policy to allow the State
to procure a witness’s testimony remotely when the State had sufficient time and
ability to subpoena the witness, and the witness was available to appear and testify,
but the State chose not to.” Id. Furthermore, “the right to physical, face-to-face
confrontation lies at the core of the Confrontation Clause, and it cannot be so readily
dispensed with based on the mere inconvenience to a witness.” Id. at 328.
At the time this case was tried, in October 2020, Texas courts were subject to
several emergency-related orders that impacted court proceedings during the
COVID-19 pandemic. First, the Governor declared in a March 2020 proclamation
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that COVID-19 posed “an imminent threat of disaster.” See The Governor of the
State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020). That
proclamation declared a state of disaster for all Texas counties. Id. Second, the
Texas Supreme Court issued an order that all Texas courts take certain precautions
in both civil and criminal trials to avoid risk to court staff, parties, attorneys, jurors,
and the public. See Twenty-Sixth Emergency Order Regarding the COVID-19 State
of Disaster, 609 S.W.3d 135 (Tex. 2020) (Emergency Order). The Texas Supreme
Court’s order authorized courts to “allow or require anyone involved in any hearing,
deposition, or other proceeding of any kind—including but not limited to a party,
attorney, witness, court reporter, grand juror, or petit juror—to participate remotely,
such as by teleconferencing, videoconferencing, or other means.” Id. at 135. This
authority was “[s]ubject only to constitutional limitations.” Id.; see also In re State
ex rel. Ogg, 618 S.W.3d 361, 364 (Tex. Crim. App. 2021) (orig. proceeding)
(recognizing that emergency order does not purport to authorize courts to modify
substantive rights). Furthermore, the court’s Emergency Order prohibited courts
from conducting in-person proceedings, including in-person jury proceedings that
were inconsistent with the latest guidance issued by the OCA. See Emergency
Order, 609 S.W.3d at 137; see also OCA, Guidance for All Court Proceedings
During COVID 19 Pandemic (OCA Guidance),
https://www.txcourts.gov/media/1450221/guidance-for-all-court-proceedings-
during-covid-19-pandemic.pdf. Regarding witnesses, the OCA Guidance provided:
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Courts must inquire whether witnesses to the proceedings have
COVID-related issues. To the degree constitutionally permissible or
with consent of the parties, judges should permit witnesses to testify
remotely via videoconference, especially if that witness has symptoms
of or a recent positive test for COVID-19, has been recently exposed,
or is vulnerable to contracting COVID-19.
OCA Guidance, at 8.
Appellant argues the trial court’s decision to allow Molina and AD to testify
remotely violated his right to confrontation because (1) the court failed to conduct
the requisite evidentiary hearing regarding Molina’s testimony; (2) neither witness
was a child who needed protection from the trauma of testifying; and (3) a
continuance would have resolved the issue and avoided the need for remote
testimony.
Beginning with the question of whether the trial court held the requisite
evidentiary hearing, the record shows that the court held two hearings where
evidence on the issue of remote testimony was heard: (1) the hearing on October
19, 2020, where AD testified remotely; and (2) the October 20 hearing on the
defense’s request for a continuance, where the court examined the Collin County
court administrator regarding the two-way videoconferencing technology used for
the remote testimony. Also, during the pretrial hearing held on October 15, 2020,
the prosecutor informed the court that Molina had been exposed to the COVID-19
virus, and on October 19 the prosecutor told the court Molina had again tested
positive. While Molina did not testify in those hearings, the law required that the
court hear evidence on the matter, not that the evidence take a particular form. See
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Haggard, 612 S.W.3d at 325, 327. Absent an objection, the trial court was free to
consider the prosecutor’s representations regarding Molina’s health status. See
Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (unsworn statements of counsel
may be considered as evidence absent an objection by opposing counsel).
As for appellant’s argument that neither witness was a child, appellant asserts
that Craig was based on the premise of protecting child witnesses from the trauma
of testifying in child abuse cases where the court found the use of special procedures
appropriate. But while the Supreme Court took note of “the State’s traditional and
transcendent interest in protecting the welfare of children,” it also held that the
requisite finding of necessity must be case-specific. See Craig, 497 U.S. at 854, 855.
(internal quotation marks omitted). Moreover, Texas courts applying Craig have
permitted remote testimony not only for a child witness, but also for witnesses who
were on active military duty in another country, seriously ill, or who had a high-risk
pregnancy. See Gonzales v. State, 818 S.W.2d 756, 758–59 (Tex. Crim. App. 1991)
(ten-year-old witness undergoing psychological counseling); Paul v. State, 419
S.W.3d 446, 459 (Tex. App.—Tyler 2012, pet. ref’d) (witness with stage IV ovarian
cancer who was undergoing chemotherapy); Rivera v. State, 381 S.W.3d 710, 712–
13 (Tex. App.—Beaumont 2012, pet. ref’d) (crime-scene investigator who was on
active military duty, serving in Iraq); Stevens v. State, 234 S.W.3d 748, 782 (Tex.
App.—Fort Worth 2007, no pet.) (75-year-old witness who lived in Colorado and
suffered from congestive heart failure, gastrointestinal bleeding, atrial fibrillation,
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and vascular disease); Lara v. State, No. 05-17-00467-CR, 2018 WL 3434547, at *4
(Tex. App.—Dallas July 17, 2018, pet. ref’d) (mem. op., not designated for
publication) (witness hospitalized after suffering heart attack); Acevedo v. State, No.
05-08-00839-CR, 2009 WL 3353625, at *8 (Tex. App.—Dallas Oct. 20, 2009, pet.
ref’d) (not designated for publication) (witness with high-risk pregnancy).
Determining what is “necessary” under Craig requires, as we noted before, a
case-specific analysis. In Craig, the Supreme Court stated that the confrontation
requirement may be satisfied absent a physical, face-to-face confrontation only
where (1) the “denial of such confrontation is necessary to further an important
public policy,” and (2) “the reliability of the testimony is otherwise assured.” 497
U.S. at 850. We have found no Texas cases applying these factors in a situation like
this. Some courts from other states, however, have recognized that protecting public
health during the COVID-19 pandemic is an important public policy. E.g., Vazquez
Diaz v. Commonwealth, 167 N.E.3d 822, 838 (Mass. 2021). Still others have
concluded that witness-specific showings of a particular risk associated with
COVID-19, such as having an underlying health condition or testing positive for
COVID-19 during the time the testimony is set to occur, justified allowing the
witness to testify by two-way video. E.g., State v. Comacho, 960 N.W.2d 739, 754–
56 (Neb. 2021) (witness had tested positive for COVID-19 and was displaying
symptoms); People v. Warner, No. ST-17-CR-031, 2020 WL 8019120, at *2 (V.I.
Super. Ct. Nov. 2, 2020) (mem. op.) (seventy-five-year-old witness who suffered
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from post-traumatic stress disorder and lived abroad was an at-risk individual for a
possible infection); see also United States v. Akhavan, 523 F. Supp. 3d 443, 453–56
(S.D.N.Y. 2021) (witness was an unvaccinated 57-year-old who had hypertension
and atrial fibrillation; his unvaccinated wife had hypertension; he cared for his 83-
year-old mother-in-law; witness would have had to travel by plane for trial; and
would have had to quarantine upon arrival and after returning home); United States
v. Donziger, Nos. 19-CR-561 & 11-CV-691, 2020 WL 5152162, at *2–3 (S.D.N.Y.
Aug. 31, 2020) (witness was a 72-year-old with health issues who would have had
to travel by plane against doctor’s advice and then quarantine upon arrival).
In this case, both Craig requirements are satisfied. To begin with, other Texas
courts have taken judicial notice of the deadly nature of COVID-19. See, e.g., Kim
v. Ramos, 632 S.W.3d 258, 261 n.5 (Tex. App.—Houston [1st Dist.] 2021, no pet.)
(citing cases from Texas and federal courts that have judicially noticed COVID-19’s
existence, effects, and transmission). Furthermore, at the time of appellant’s trial,
in October 2020, no vaccine for COVID-19 was available, and one would not
become available in Texas until December 2020. See News Release, Texas Health
and Human Services, COVID-19 Vaccine Arrives in Texas (Dec. 14, 2020),
https://www.dshs.texas.gov/news/releases/2020/20201214.aspx. And at that point
it was available only to front-line healthcare workers and residents of long-term care
facilities. See id. This availability was subsequently expanded to people aged 65
and older and those with certain medical conditions. See News Release, Texas
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Health and Human Services, People 65 and Older or With Certain Medical
Conditions in Next Phase for COVID-19 Vaccine (Dec. 21, 2020),
https://www.dshs.texas.gov/news/releases/2020/20201221.aspx.4
To the extent that two-way video testimony ensured the health and safety of
all trial participants during a global pandemic, it furthered an important public policy
of protecting the public. E.g., Warner, 2020 WL 8019120, at *2 (“The Court finds
that preventing the spread of COVID-19 and not subjecting [the witness], who is an
at-risk individual, to a possible infection is an important public policy that can only
be served by allowing remote testimony in this situation.”). Indeed, allowing
Molina, who was infected with the virus, to testify by two-way video protected
everyone associated with the trial, and allowing AD, who was in a late-stage
pregnancy, to testify by two-way video protected her and her unborn child from
possible exposure to the virus.
Regarding the second question, whether the reliability of the testimony was
otherwise assured, a key inquiry in situations where the State wants a witness to
testify remotely is whether the method of testimony used by the State preserved the
salutary effects of face-to-face confrontation relevant to a Sixth Amendment
analysis. See Stevens, 234 S.W.3d at 782 (citing Craig, 497 U.S. at 845–46); Lara,
4
In fact, the vaccine would not become available to all adults in Texas until March of 2021. See News
Release, Texas Health and Human Services, Texas to Open COVID-19 Vaccination to All Adults on March
29 (March 23, 2021), https://www.dshs.texas.gov/news/releases/2021/20210323.aspx.
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2018 WL 3434547, at *4. The salutary effects of face-to-face confrontation include
(1) the giving of testimony under oath, (2) the opportunity for cross-examination,
(3) the ability of the factfinder to observe the demeanor of the witness, and (4) the
reduced risk that a witness will wrongfully implicate an innocent defendant when
testifying in his presence. Stevens, 234 S.W.3d at 782 (citing Craig, 497 U.S. at845–46); Lara, 2018 WL 3434547, at *4.
Those salutary effects were preserved in this case. Although the witnesses
were not physically present in the courtroom when they testified by two-way video,
they were administered the oath by the court and subjected to cross-examination by
defense counsel. Appellant could see and hear the witnesses. AD, in turn, could see
appellant and identified him in court. Molina could not see appellant but could see
the trial judge and counsel for both parties. In addition, the witnesses were visible
to the jurors from the waist up, just as they would have been had they testified in the
courtroom. The court administrator told the court that the video feed would be
displayed on two large TV screens in the courtroom, making the witnesses appear
“larger than life.” Thus, the jurors could assess the witnesses’ demeanor during their
testimony.
Appellant next argues that the trial court could have continued the trial, thus
removing the need for remote testimony. However, this argument overlooks the fact
that, at the time the case was tried, the only way to prevent the spread of COVID-19
was through preventative measures such as masking, social distancing, and certain
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hygiene practices. There was no vaccine for COVID-19, and one would not become
available, albeit on a limited basis, for two months. And the trial court obviously
could not have anticipated this. Also, the case had been pending for a year before it
was finally brought to trial, and, until his last-minute change in strategy, appellant
steadfastly and repeatedly opposed a continuance. In addition, trial courts were
prohibited from conducting in-person proceedings, including jury proceedings,
unless they complied with the OCA’s guidance. See Emergency Order, 609 S.W.3d
at 137. That guidance specified that judges should, to the degree constitutionally
permissible, permit witnesses to testify remotely if they had COVID-19 symptoms,
had been recently exposed to COVID, or were vulnerable to contracting it. See OCA
Guidance. Furthermore, a continuance would not have assured the complained-of
witnesses’ in-person availability, given that Molina was infected with COVID-19
and, therefore, at-risk of falling seriously ill or even dying from the disease.
Similarly, even after giving birth, AD would have had to exercise caution when
going out or traveling to minimize the risk to both herself and her newborn child.
On this record, we conclude the salutary effects of face-to-face confrontation
were preserved and that the trial court err in permitting the two witnesses to testify
via two-way video, or in determining that the technology used in this case did not
deprive appellant of his Sixth Amendment rights. We overrule appellant’s first
issue.
2. Extraneous Offense Evidence
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In his second issue, appellant contends the trial court erred in allowing
extraneous offense evidence from AD because it was too “remote” in time to have
probative value.
At the trial of a defendant accused of, among other things, continuous sexual
abuse of a child, evidence the defendant committed a separate sex offense against
another child may be admissible under section 2 of article 38.37 “for any bearing the
evidence has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.” TEX. CODE CRIM.
PROC. art. 38.37, § 2(a)(B), 2(b); see also Kirk v. State, No. 05-19-00768-CR, 2020
WL 5757338, at *5 (Tex. App.—Dallas Sept. 28, 2020, pet. ref’d) (mem. op., not
designated for publication); Strickland v. State, No. 05-18-00170-CR, 2019 WL
2402983, at *3 (Tex. App.—Dallas June 7, 2019, no pet.) (mem. op., not designated
for publication). Before evidence under article 38.37 is introduced, the trial judge
must conduct a hearing outside of the jury’s presence to “determine that the evidence
likely to be admitted at trial will be adequate to support a finding by the jury that the
defendant committed the separate offense beyond a reasonable doubt.” TEX. CODE
CRIM. PROC. art. 38.37, § 2-a(1); see also Kirk, 2020 WL 5757338, at *5. In this
case, as discussed above, an article 38.37 hearing was held, and the trial court ruled
that the extraneous offense evidence was admissible.
Under article 38.37, evidence of extraneous offenses against other children is
admissible even if such evidence would be otherwise inadmissible under rules 404
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or 405 of the Texas Rules of Evidence. Id. § 2(b); Austin v. State, No. 10-21-00181-
CR, 2022 WL 1576201, at *2 (Tex. App.—Waco May 18, 2022, no pet.) (mem. op.,
not designated for publication); Strickland, 2019 WL 2402983, at *3. But the
admission of evidence under article 38.37 is limited by rule 403’s balancing test.
See TEX. R. EVID. 403; Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler
2015, no pet.); Fahrni v. State, 473 S.W.3d 486, 492 (Tex. App.—Texarkana 2015,
pet. ref’d).
Rule 403 allows the exclusion of relevant evidence “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” TEX. R. EVID. 403. Probative value is
the measure of how strongly the evidence serves to make more or less probable the
existence of a fact of consequence to the litigation, coupled with the proponent’s
need for the evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App.
2006). Unfair prejudice refers to a tendency to tempt the jury into finding guilt on
an improper basis, such as an emotional one. Id. Confusion of the issues refers to
“a tendency to confuse or distract the jury from the main issue in the case.” Id.When undertaking a rule 403 analysis, a trial court balances:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
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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.
Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018) (quoting
Gigliobianco, 210 S.W.3d at 641–42); see also Baker v. State, No. 05-19-01051-CR,
2021 WL 1826829, at *2 (Tex. App.—Dallas May 7, 2021, pet. ref’d) (mem op., not
designated for publication). In practice, however, “these factors may well blend
together.” Gigliobianco, 210 S.W.3d at 642. “We review the trial court’s admission
of extraneous offense evidence under an abuse of discretion standard.” Prible v.
State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).
Appellant contends that AD’s testimony regarding the extraneous offense was
too remote to be considered probative. Remoteness of an extraneous offense can
significantly lessen its probative value. E.g., West v. State, 554 S.W.3d 234, 239
(Tex. App.—Houston [14th Dist.] 2018, no pet.); Gaytan v. State, 331 S.W.3d 218,
226 (Tex. App.—Austin 2011, pet. ref’d); Newton v. State, 301 S.W.3d 315, 320
(Tex. App.—Waco 2009, pet. ref’d). “Still, remoteness alone does not require the
trial court to exclude evidence of an extraneous offense under Rule 403.” West, 554
S.W.3d at 239 (citing Gaytan, 331 S.W.3d at 226). “Rather, remoteness is but one
aspect of an offense’s probativeness the trial court is to consider along with the other
factors in the Rule 403 analysis.” Id. at 239–40.
Regarding the first factor in the balancing test, evidence of a separate sexual
offense against a child admitted under article 38.37, section 2(b) is probative of a
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defendant’s character or propensity to commit sexual assaults on children. See
Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015, pet. ref’d).
In this case, although appellant’s abuse of AD began approximately 19 years before
trial, it started around 12 years before his abuse of complainant. According to their
testimony, appellant began abusing each of the victims when they were about 5 or 6
years old.5 The abuse occurred in a home the girls shared with appellant, and
appellant rewarded both girls afterwards with toys and/or games. Additionally, AD
was appellant’s niece. Appellant was not complainant’s biological father but he was
married to complainant’s mother; his name appeared on complainant’s birth
certificate; he raised her from infancy; and she called appellant her dad.
Furthermore, the similarities between the abuse AD and complainant suffered
strengthened the probative value of AD’s testimony. Gaytan, 331 S.W.3d at 227.
AD testified that, years before appellant abused complainant, he touched her vagina
with his hand and his penis and, later, spanked her on her behind while she was in
an open doorway with her pants down. Complainant described to Molina, the
forensic interviewer, how appellant progressed from touching her genitals with his
hands and putting his penis in her mouth to penetrating her anus with his finger, sex
toys, and his penis. Complainant testified about the different homes in which the
abuse occurred; the pain she experienced from the anal penetration; the difficulty
5
AD was born in November 1996; complainant was born in April 2008.
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she had breathing during some of the assaults; the sex toys appellant used on her;
and the body positions she had to assume. She told the forensic interviewer the last
incident occurred when she was nine years old and lived in Fort Worth. See Fisk v.
State, 510 S.W.3d 165, 173–74 (Tex. App.—San Antonio 2016, no pet.) (trial court
could have reasonably determined similarities between extraneous and charged child
abuse strengthened probative value of extraneous abuse despite time gap of several
years between them); Gaytan, 331 S.W.3d at 227 (trial court could have reasonably
found probative force of “extremely remote” extraneous child abuse was
“significantly bolstered” by its remarkable similarities to charged abuse). Moreover,
the remoteness of the extraneous offense did not render “the probative value of this
evidence so weak as to render this evidence inadmissible under Rule 403.” Harty v.
State, 552 S.W.3d 928, 935 (Tex. App.—Texarkana 2018, no pet.). On the contrary,
the evidence relating to the extraneous offense was probative of appellant’s character
or propensity to commit indecent acts with children around complainant’s age.
Therefore, the first factor weighs strongly in favor of admission.
Turning to the second factor, the State’s need for AD’s testimony was great.
There was no eyewitness testimony or physical evidence of abuse, such as DNA or
documented injuries to complainant. The State’s case against appellant rested on
complainant’s testimony about the abuse and/or statements she made to others about
it. It was, in essence, appellant’s word against complainant’s. See Robisheaux v.
State, 483 S.W.3d 205, 220 (Tex. App.—Austin 2016, pet. ref’d); Gaytan, 331
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S.W.3d at 227. In “he said, she said” sexual molestation cases such as this, “[r]ule
403 should be used sparingly to exclude relevant, otherwise admissible evidence that
might bear on the credibility of either the defendant or the complainant.” Hammer
v. State, 296 S.W.3d 555, 562, 568 (Tex. Crim. App. 2009). This factor also weighs
in favor of admission.
As for the third factor, we recognize that evidence of previous child sexual
abuse is inherently inflammatory by nature and, hence, can be prejudicial. Pawlak
v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013); Newton, 301 S.W.3d at 320.
Yet this potential was diminished in this case by the fact that AD’s allegations were
no more serious than complainant’s. Indeed, although appellant initially abused both
girls in similar fashion, his abuse of complainant grew worse over time, and she
recounted more instances of abuse than AD, and in greater detail. See Robisheaux,
483 S.W.3d at 220. Therefore, this factor weighs against admission, but only
slightly.
Regarding the fourth factor, the ultimate issue in this case was whether
appellant committed the offense against complainant as alleged in the indictment.
The trial court mitigated the tendency of the extraneous offense evidence to confuse
or distract the jury from the main issues at trial by instructing them to use it for the
limited purpose of “determining the motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident of the defendant, if any,
in connection with the offense, if any, alleged against him . . . in this case, and for
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no other purpose.” The jury is presumed to have followed the court’s instruction.
Resendez v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). Thus, this factor,
too, weighs in favor of admission.
The fifth factor refers to evidence such as highly technical or scientific
evidence that might mislead the jury because it is not equipped to weigh the
probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. In this case,
however, the evidence in question was neither scientific nor technical in nature, and
it pertained to matters, including victim credibility, that could easily be understood
by a jury. We conclude the fifth factor weighs in favor of admission.
Concerning the sixth and final factor, AD’s testimony comprised less than
twenty pages out of the over 550-page guilt-or-innocence-phase reporter’s record.
See, e.g., Gaytan, 331 S.W.3d at 228 (the disputed testimony was thirteen pages out
of a 200-page trial transcript, and it was not repetitive of other evidence). Moreover,
AD’s testimony was not repetitive, and it was, in fact, critical to the State’s case.
Thus, this factor also weighs in favor of admission.
We conclude that the trial court, after balancing the rule 403 factors, could
have reasonably concluded that the probative value of the evidence in question was
not substantially outweighed by the danger of unfair prejudice and the other rule 403
factors. Accordingly, the trial court did not abuse its discretion in admitting the
extraneous offense evidence, and we overrule appellant’s second issue.
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We affirm the trial court’s judgment.
/Lana Myers//
LANA MYERS
JUSTICE
200951f.p05
Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOEL THOMAS DIES, Appellant On Appeal from the 219th Judicial
District Court, Collin County, Texas
No. 05-20-00951-CR V. Trial Court Cause No. 219-83177-
2019.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice Myers.
Justices Carlyle and Goldstein
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 4th day of August, 2022.
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