Victor Huynh Le v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00287-CR
VICTOR HUYNH LE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1653872D, Honorable Robert P. Brotherton, Presiding
August 2, 2023
MEMORANDUM OPINION 1
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, Victor Huynh Le, appeals from his conviction by jury of the second-
degree felony offense of sexual assault and his resulting sentence of eleven years of
imprisonment. Appellant raises seven issues, challenging 1) proof of venue, 2) admission
of evidence, and 3) jury instructions. We affirm.
1 Because this matter was transferred from the Second Court of Appeals, we apply its precedent
when it conflicts with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3.
Background
In June 2020, the 23-year-old victim lived in Cresson, Texas, with her parents.
One night, she went to a bar with her friend and her friend’s boyfriend in nearby Arlington,
Texas. During the night, the couple got into a fight and left the victim at the bar. She met
with other acquaintances and became intoxicated.
At some point, the wife of the manager of the bar called an Uber to take the victim
home. Appellant was the responding Uber driver. She entered the back seat. However,
appellant told her that if she wanted to go home, she needed to get into the front seat.
Though “scared,” she wanted to go home and complied. When she did, appellant put “his
hand in between [her] legs” and touched her. He then took her hand and placed it on his
genitals over his clothing. He next unzipped his pants and made her touch his “bare
penis” by holding his hand over hers. Then, as the ride progressed, he placed his hand
on the back of her head and pushed her head down onto his penis. She performed oral
sex on him because she felt she had no choice. She said she was in a car, on a highway
traveling seventy miles an hour, in the middle of the night, and she did not know where
she was or what the driver could do. Within about ten minutes of the oral sexual assault
beginning, she arrived home. She opened the car door and ran to the door of her house.
She went inside, sat on the couch, and “sobbed.” She then told her parents what
happened, and they called police.
After speaking with the victim, police realized the assault must have occurred in
Tarrant County, so the case was transferred to the Sexual Assault Unit of the Fort Worth
Police Department. Prosecutors with the Tarrant County district attorney pursued the
charge against appellant, resulting in this conviction.
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Issues One and Two—Venue
By his first two issues, appellant argues that the State failed to meet its burden of
proving venue within Tarrant County and the trial court erred in denying his request for a
directed verdict on the matter. We overrule the issues.
Generally, venue is proper in the county where an alleged sexual offense takes
place. TEX. CRIM. PROC. CODE ANN. arts. 13.04 and 13.17; Edwards v. State, 97 S.W.3d
279, 285 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). The burden of proof is on the
State to establish proper venue by a preponderance of the evidence. Id. However, it is
presumed that venue is proven in the trial court unless the record affirmatively shows
otherwise or is made an issue at trial. Id. See TEX. R. APP. P. 44.2(c)(1). Evidence is
sufficient to establish venue if “from the evidence the jury may reasonably conclude that
the offense was committed in the county alleged.” Edwards, 97 S.W.3d at 285. And,
when venue is sought to be established by someone in a moving vehicle, specific points
of reference and measurable passages of time can establish the offense occurred in the
State’s proffered county. Id. at 286.
Two modes of establishing venue were included in the jury charge. One involved
venue when the offense occurs by the border of two counties. TEX. CODE CRIM. PROC.
ANN. art. 13.04 (stating that “[a]n offense committed on the boundaries of two or more
counties, or within four hundred yards thereof, may be prosecuted and punished in any
one of such counties . . .”). The other concerns sexual assault. Id. at art. 13.15 (stating
that “[s]exual assault may be prosecuted in the county in which it is committed, in the
county in which the victim is abducted, or in any county through or into which the victim
is transported in the course of the abduction and sexual assault”).
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Here, evidence appears of record indicating that the charged offense of oral sexual
assault was shown to have occurred, at least in part, in Tarrant County. For instance,
appellant directed the victim to move to the front seat if she wanted to go home. That
occurred when the vehicle was on I-30 and passing the Channel 11 tower in Fort Worth.
Then began the abduction (or so one could reasonably infer) and the locale lay in Tarrant
County. So too did she state that when appellant forced her head down onto his penis,
they were about ten minutes from her home, and she estimated they were on Route 377
near Whiskey Flats between Cresson and Benbrook. The State presented evidence
illustrating that Whiskey Flats was at the intersection of Routes 377 and 1187. That locale
lay within Tarrant County. We find this evidence sufficiently preponderated to establish
that venue of the sexual assault lay in Tarrant County. So, the trial court did not err in
denying the motion for directed verdict.
Issue Three—Extraneous Bad Act Evidence
Appellant next contends the trial court reversibly erred when it allowed Giselle
Martinez to testify to extraneous bad acts of appellant in the guilt/innocence phase of trial.
The trial court permitted the testimony as a rebuttal to a defensive theory suggested
during voir dire that the victim made a false allegation. It also found the testimony was
more probative than prejudicial and instructed the jury on its limited use. However,
appellant contends he never presented “false allegation” as a defensive theory and
therefore, the trial court erred in admitting the testimony. 2 We overrule the issue.
2 He also contends Martinez’s testimony was more prejudicial than probative. As noted by the
State, appellant failed to develop his Rule 403 argument, did not cite any authority, and did not apply the
relevant factors to the facts of this case. As such, he has waived his Rule 403 argument. TEX. R. APP. P.
38.1; Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
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We review the admission or exclusion of evidence for an abuse of discretion, which
the record shows only when the ruling falls outside the zone of reasonable disagreement.
Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Merrick v. State, 567
S.W.3d 359, 375 (Tex. App.—Fort Worth 2018, pet. ref’d). Furthermore, authority
obligates us to uphold the trial court’s decision if correct under any applicable legal
theory. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Qualls v. State,
547 S.W.3d 663, 675 (Tex. App.—Fort Worth 2018, pet. ref’d).
After appellant objected to the admission of Martinez’s testimony, the trial court
held a hearing outside the presence of the jury. Following it, the trial court said it was
admitting the “extraneous testimony as it was presented during the proffer to rebut the
suggestion that was raised in voir dire that there’s a false allegation.” The parties were
also told that such “will be the limited purpose for it” and “[t]he jury will be instructed orally
at the time the proffer . . . [and] in writing in the Court’s charge.”
The evidence in question consisted of Martinez’s testifying that after a work event,
she unsuccessfully attempted to obtain an Uber ride. Thereafter, she saw appellant
waving his hand and heard his offer to take her home. During the exchange, appellant
told her he was an Uber driver, and she accepted his offer. Martinez recognized him from
her previous job at the mall and characterized him as a “weird, friendly—weird” guy.
Martinez sat in the front seat of appellant’s car as he took her home. He put his
hand down her shirt and pulled on her breasts. She removed his hand and told him to
stop. That resulted in his accelerating the vehicle. Appellant also “attempted to put his
hand down [her] pants.” The circumstances “scared” her.
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Appellant acknowledges that a defensive theory may arise during voir dire. So too
does he acknowledge broaching the concept of “false allegations” during voir dire. Other
topics broached included 1) consent, 2) opportunities for the victim to exit the car, 3) the
unlocked state of the car, 4) the victim’s level of intoxication, 5) her credibility, and 6) her
purportedly inconsistent stories concerning the events of that night. Though appellant
may not have uttered the exact words “she is lying” or “it’s all a fabrication,” meaning may
be inferred from the context of what was said. Juxtapositioning the different topics of his
argument as he did could reasonably induce one to think he was insinuating the victim
fabricated the allegation of assault. Thus, it was not outside the zone of reasonable
disagreement for the trial court to rule that Martinez’s testimony could be admissible to
rebut appellant’s defensive theories. So, we find no abused discretion here.
Issues Four and Five—Expert Testimony
By his fourth and fifth issues, appellant complains of the admission of the testimony
of Amy Jones, the chief executive officer for the Dallas Area Rape Crisis Center. Though
acknowledging that she had been qualified as an expert in other cases, he contends she
was not an expert, her testimony did not meet any of the criteria permitting her to testify
and, therefore, the trial court erred in overruling two of his objections to her testimony.
We will overrule the issues.
The admission of expert testimony is reviewed on appeal for an abuse of
discretion. Salinas v. State, No. 02-18-00060-CR, 2019 Tex. App. LEXIS 2996, at *20
(Tex. App.—Fort Worth Apr. 11, 2019, pet. ref’d) (mem. op., not designated for
publication). A trial court’s ruling on the admissibility of it is rarely to be disturbed by an
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appellate court. Id. And, as with other types of evidentiary rulings, we must uphold the
ruling unless it lies outside the zone of reasonable disagreement. Id.Before admitting expert testimony, the trial court must be satisfied that three
conditions are met: 1) the witness qualifies as an expert by reason of her knowledge,
skill, experience, training, or education; 2) the subject matter of the testimony is
appropriate for expert testimony; and 3) admitting the testimony will actually assist the
fact finder in deciding the case. Salinas, 2019 Tex. App. LEXIS 2996, at *21-22. These
conditions are frequently referred to as 1) qualification, 2) reliability, and 3) relevance. Id.
at *21.
Qualification need not be established through education; knowledge, skill, training,
or experience may suffice. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010).
The witness must have a sufficient background in a particular field, and the trial court
must determine if the background applies to the matter on which the witness is expected
to testify. Id. As acknowledged in Davis, “years of researching, studying, teaching, and
advising about the subject” can carry the day despite the lack of formal education or lack
of authorship on the topic. Id. at 814.
Reliability focuses on the subject matter of the witness’s testimony. Salinas, 2019
Tex. App. LEXIS 2996, at *21-22. The proponent of the expert testimony must
demonstrate by clear and convincing evidence that the expert testimony is reliable. Id. at
*21. The focus of the reliability analysis is to determine whether the evidence has its
basis in sound scientific methodology so as to eliminate testimony about “junk
science.” Id. And, in cases of a soft science, like that discussed by Jones, the proponent
of the expert testimony must establish that 1) the field is a legitimate one, 2) the subject
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matter of the expert’s testimony is within the scope of that field, and 3) the expert’s
testimony properly relies on or utilizes the principles involved in that field. Id. at *22. But
the methods of proving reliability can vary with a soft science. Id.
In turn, “[r]elevance is by nature a looser notion than reliability.” Jordan v. State,
928 S.W.2d 550, 555 (Tex. 1996). To show relevance, the expert “must make an effort
to tie pertinent facts of the case to the scientific principles which are the subject of [the
expert’s] testimony.” Id.Here, Jones testified she 1) was the chief executive officer of the Dallas Area Rape
Crisis Center, 2) conducts training for attorneys, law enforcement, the community, and
various social services agencies on sexual assault, 3) obtained her master’s degree in
professional counseling, 4) spent nearly twenty years working directly with sexual assault
survivors, 5) worked with “over a thousand, if not 1500, survivors as a therapist,” 6) has
done “anything that you can imagine in a rape crisis center or domestic violence
agency . . . ,” 7) had expertise in “the dynamics of sexual and domestic violence which
includes intimate partner violence, the impact of that, . . . typical victim behavior, the
impact of that, the immediate acute impact of that, the long-term impact of that; trauma in
the brain, understanding how trauma affects someone in what we might call in this setting
some counterintuitive victim behavior . . . ,” and 8) had experience in addressing various
myths concerning sexual assault and responses to it. And, it seems rather nonsensical
to deny that the trauma wrought by sexual abuse, assault, and violence on a victim’s
behavior and psyche is a legitimate field of study. See e.g., Brewer v. State, 370 S.W.3d
471, 474 (Tex. App.—Amarillo 2012, no pet.) (recognizing that Texas courts found expert
testimony concerning the dynamics of domestic violence admissible under Rule of
8
Evidence 702); see also Chavez v. State, No. 01-19-00002-CR, 2020 Tex. App. LEXIS
5572, at *14-15 (Tex. App.—Houston [1st Dist.] July 21, 2020, pet. ref’d) (mem. op., not
designated for publication) (recognizing that “[e]xpert testimony concerning general
behavioral characteristics of sexually abused children, however, is admissible because it
‘helps the jury understand the seemingly illogical behavior of the child who changes her
story, seems confused, and does not immediately disclose a sexual assault’”). These
circumstances and evidence place the trial court’s decision to deem Jones as qualified to
testify on the topic as an expert within the zone of reasonable disagreement. The same
is also true regarding the decision to view her testimony as reliable.
As for relevance, appellant believed the testimony irrelevant because she had not
previously reviewed the victim’s case and failed to tie her expertise to the facts and details
of it. Yet, an expert may base an opinion on facts or data made known before and during
trial. In re Commitment of Regalado, 598 S.W.3d 736, 743 (Tex. App.—Amarillo 2020,
no pet.). Thus, an expert is not required to interview the complainant or review particular
evidence before trial. Moreover, the tenor of Jones’s expected testimony was not to focus
on the victim at bar but rather on the characteristics or behaviors of those who suffered
assault akin to the victim. The jury would then be free to compare those characteristics
to the victim’s conduct while assessing her credibility. And, appellant cannot deny that
her credibility was under attack.
Jones also illustrated a link between her expertise and the prosecution through her
extensive experience with people involved in sexual assault and the behaviors they may
exhibit. She testified to those behaviors in a way that could explain why appellant’s victim
“acquiesced” to the assault, why she did not escape, why she did not remember certain
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aspects of the assault, and why her version of events may have changed over time. This,
in turn, leads us to also conclude that deeming her testimony relevant fell within the zone
of reasonable disagreement. So, in short, the trial court did not abuse its discretion in
permitting her to testify as she did.
As for two specific objections raised by appellant, they involved the questions: 1)
“What about—what are some of the reasons that you have seen from survivors where
they have a hard time talking about everything that happened during the initial
conversations,” and 2) “[d]o you come across any misconceptions about the force or
energy that perpetrators put into executing a sexual assault?” Appellant contends that
the questions were irrelevant and outside the scope of Jones’s permissible testimony.
However, allowing the witness to answer them can be viewed as assisting the jury in
understanding why the victim acted in the manner she did, in understanding why she told
her version of events the way she did, and in evaluating whether she was a credible
witness. Such are permissible reasons to allow expert testimony. See, e.g., Chavez,
supra. Again, we find no abused discretion.
Issues Six and Seven—Jury Charge Error
By his final two issues, appellant contends the trial court erred by including various
statements in its jury charge. We overrule the issues.
The first statement consists of informing the jury that “[a]n offense committed on
the boundaries of two or more counties, or within four hundred yards thereof, may be
prosecuted and punished in any one of such counties.”3 Allegedly, no evidence
supported its submission. Appellant is mistaken.
3 See TEX. CODE CRIM. PROC. ANN. art. 13.04 (so providing).
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While appellant argues the evidence conclusively demonstrated the sexual assault
occurred in Parker County, the victim testified the oral assault began ten minutes before
she arrived home, near the Whiskey Flats area. The State provided as evidence a map
of the area showing Whiskey Flats is at the intersection of Routes 377 and 1187 inside
Tarrant County, within sight of the Parker County line. This is some evidence supporting
the proposition that the sexual assault occurred “on the boundaries of two or more
counties, or within four hundred yards thereof”. Thus, the trial court did not err in including
this instruction in its charge to the jury.
The second statement involves the trial court’s definition of “without consent.”
Through it, the jurors were told that a sexual assault is without consent if the “actor
compels the other person to submit or participate by threatening to cause harm to the
other person, and the other person believes that the actor has the present ability to
execute the threat.” Appellant argues there was no evidence of any actual threat and,
consequently, the definition should have been omitted. He is again mistaken.
At trial, the State presented evidence of appellant directing the victim to sit in the
front if she wanted to go home. This occurred after she had entered the rear seat and
the ride began. That left the victim feeling scared and believing that she had no option
but to acquiesce. Her feeling of being threatened continued due to being in a motor
vehicle traveling at seventy miles per hour late at night in an area with which she was
unfamiliar while being unable to leave the car and not knowing of what appellant was
“capable.” Nor can we ignore the testimony of appellant forcing her head down toward
his penis as he drove. Threats need not be explicit. Implicit ones may be just as effective.
The aforementioned evidence would permit a rational fact finder to interpret appellant’s
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actions as a threat placing her safety in jeopardy if she did not cooperate. So, too would
it warrant the trial court’s submitting the definition in question.
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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