James Edward Bates v. the State of Texas ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JAMES EDWARD BATES, § No. 08-23-00183-CR
Appellant, § Appeal from the
v. § 346th Judicial District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20180D02621)
SUBSTITUTED MEMORANDUM OPINION
We withdraw our opinion and judgment of September 9, 2024, and substitute the following
opinion in its place. Appellant’s motion for rehearing is denied.
A jury convicted Appellant James Edward Bates on one count of aggravated sexual assault
of a child and one count of indecency with a child by sexual contact. In his sole issue, Bates
contends the trial court erred in admitting—during the guilt-innocence phase of trial—a judgment
of conviction against Bates for a previous charge of indecency with a child by sexual contact. We
affirm.
I. BACKGROUND 1
In May 2018, a grand jury charged Bates by indictment with one count of committing an
act of aggravated sexual assault of a child, and one count of committing an act of indecency with
a child by sexual contact. Both counts charged that Bates committed the offenses against
complainant, Z.G., a child younger than 14 years of age. Pursuant to Article 38.37 of the Texas
Code of Criminal Procedure, the State soon filed a notice of intent to introduce evidence of
extraneous offenses and bad conduct committed by Bates during its case-in-chief, in rebuttal, or
during the punishment phase of trial. Among other matters, the State gave notice of its intent to
introduce evidence that Bates was convicted of indecency with a child by contact in December
2006, for which he served a sentence of five years’ confinement. Based on this prior conviction,
the State also gave notice of its intent to seek an enhancement of the range of punishment.
Before trial, and outside the presence of the jury, the trial court asked whether there were
any pretrial matters needing resolution. In response, the State gave notice of its intent to call a
fingerprint expert to testify, and through that testimony, seek admission of Bates’s 2006 conviction
for indecency with a child. Bates urged that, if the State was offering the evidence pursuant to
Article 38.37 of the Code of Criminal Procedure, then a separate hearing would first be needed to
establish the admissibility of the evidence. The State confirmed it planned to introduce the
evidence during the guilt-innocence phase of trial as permitted under Article 38.37.
1
In this appeal, Bates does not challenge the sufficiency of the evidence to support his conviction for either of the
two charges tried to a jury verdict in the instant case. Accordingly, we set forth only an abbreviated factual background
as relevant to the sole issue raised on appeal. To the extent Bates challenges the sufficiency of the evidence to support
his 2006 conviction from Bexar County for indecency with a child—of which the judgment of conviction was
introduced at trial pursuant to Article 38.37, § 2(b) of the Texas Code of Criminal Procedure—we address arguments
related to that conviction only insofar as they were properly raised and were necessary to resolving the appeal. See
Tex. R. App. P. 47.1.
2
The trial court proceeded to hold a separate hearing outside the jury’s presence. The State
called Stephen Martinez, a fingerprint expert retired from the El Paso Police Department, who was
currently employed as an investigator with the District Attorney’s office. Martinez testified he had
obtained fingerprints from Bates before the hearing had started and compared those prints to prints
appearing on the State’s exhibits. The State next offered the following three exhibits: (1) sex
offender registration records identified as State’s Exhibit 1; (2) a 2006 judgment of conviction
identified as State’s Exhibit 2; and (3) a fingerprint card of Bates’s known prints, rolled by
Martinez, which was identified as State’s Exhibit 3. Martinez testified the inked prints appearing
on the sex offender registration records belonged to Bates based on his comparison of State’s
Exhibits 1 and 3. As for State’s Exhibit 2, the State offered the exhibit as a self-authenticating
document containing the 2006 judgment of conviction, claiming it linked with State’s Exhibit 1,
the sex offender registration records. The prosecutor described State’s Exhibit 2 as including a seal
from the Bexar County Court from which the judgment originated. After Bates objected, the trial
court overruled his objections.
The guilt-innocence phase of the jury trial proceeded immediately thereafter. At trial, the
State presented its case-in-chief through the live testimony of complainant Z.G., and several
witnesses including her family members, a school coordinator, and three detectives. Investigator
Martinez, the finger print expert who had testified during the pretrial hearing, also testified at trial.
After deliberating, the jury returned a verdict of guilty as to both counts charged by the indictment.
At the start of the punishment phase of trial, the trial court entered a plea of “not true” as
to the enhancement consisting of the prior felony conviction. 2 Defendant Bates and his father
2
Bates refused to enter a plea and objected to the trial court’s entry of “not true,” asserting no plea was required under
the circumstances.
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testified in the defense case-in-chief. Bates described that he had entered a plea of nolo contendere
to the 2006-indecency-with-a-child-by-sexual-contact charge believing he would receive deferred
adjudication. Instead, he described that he was sentenced to and served a five year prison term.
Bates additionally confirmed he was the person depicted in the mugshot photographs appearing
on the sex offender registration records. After deliberating, the jury found the enhancement
allegation to be true and assessed punishment on each count as confinement for a term of life. The
trial court thereafter sentenced Bates to life imprisonment on each count, with each sentence
running concurrently.
This appeal followed.
II. ADMISSION OF EVIDENCE
In his sole point of error, Bates merely contends the trial court erred in admitting
“unauthentic” evidence of a previous conviction in the guilt-innocence phase of trial. When
liberally construing his briefing, however, additional arguments are made in the body of his
briefing. See Tex. R. App. P. 38.9 (providing that substantial compliance with briefing rules is
sufficient and briefs are to be construed liberally). For example, he follows his initial framing of
his sole point of error by claiming the prior-conviction evidence was more prejudicial than
probative. And, in other parts of his brief, including a section titled “Harm Standard,” he further
mentions in passing that the prior-conviction evidence was not sufficiently linked to him, it was
hearsay, and it violated the Confrontation Clause.
We consider each of these arguments in turn to the extent we are permitted to review his
claims.
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A. Applicable law
Generally, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.” See Tex. R. Evid. 404(b). But, in the context of sexual assault of a child, a different
rule applies, recognizing that ‘[t]he special circumstances surrounding the sexual assault of a child
victim outweigh normal concerns associated with evidence of extraneous acts.’” Alvarez v. State,
491 S.W.3d 362, 367 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (quoting Jenkins v. State,
993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d)). At the trial of a defendant who is
accused of aggravated sexual assault of a child, or of indecency with a child, the State is permitted
to provide evidence of other children sexually assaulted by the defendant “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. Ann. art. 38.37, § 2(b).
Before such evidence is introduced, however, the trial judge must first conduct a hearing
outside the presence of the jury 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.” Id. § 2-a(1). Second, the admission of such evidence remains limited
by Rule 403’s balancing test, which provides for the admission of evidence “as long as its probative
value is not substantially outweighed by its potential for unfair prejudice.” Bradshaw v. State, 466
S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref’d); see Tex. R. Evid. 403.
Where evidence is presented in documentary form, the authentication is governed by Rule
901 of the Texas Rules of Evidence. “To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a finding that the
item is what its proponent claims it is.” Tex. R. Evid. 901(a). At trial, the jury determines “whether
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an item of evidence is indeed what the proponent claims”; the trial court only makes “the
preliminary determination that the proponent . . . has supplied facts sufficient to support a
reasonable jury determination that the proffered evidence is authentic.” Butler v. State, 459 S.W.3d
595, 600 (Tex. Crim. App. 2015). Said another way, the trial court need not be convinced that the
item is authentic; it need only determine that a reasonable juror could find the item is authentic.
See Watson v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref’d) (citing
Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007)).
B. Standard of review
We review the admissibility of evidence of an extraneous offense for an abuse of discretion.
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). If the trial court’s ruling is within
the zone of reasonable disagreement, there is no abuse of discretion, and we will uphold the ruling
on review. Id. In determining whether the trial court abused its discretion, we may not substitute
our opinion for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
C. Application
(1) Merits-based analysis
Based on our review of the record, Bates’s objected to the challenged evidence on two
grounds: (1) that it was unauthenticated, and (2) that it was insufficient for a jury to find beyond a
reasonable doubt that he had committed the extraneous offense. Notably, Bates does not
specifically identify in his briefing which of the State’s three exhibits he complains of on appeal.
In liberally construing Bates’s briefing, we conclude he is challenging the admission of the 2006
judgment of conviction, which was identified as State’s Exhibit 2. In pointing to the record, he
asserts that investigator Martinez, the State’s fingerprint expert, had testified he could not
authenticate the judgment of conviction. In reviewing the record, however, we note that Martinez
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merely explained that he did not compare fingerprints he had obtained from Bates with those
appearing on the 2006 judgment of conviction. In responding, the State asserted the 2006 judgment
of conviction was self-authenticating. To the extent Bates complains that the judgment of
conviction was not authenticated, and that it was inadequate for a jury to find beyond a reasonable
doubt that he had committed a prior sexual offense against a child, we reject his complaints for
two reasons.
First, State’s Exhibit 2 contained information that matched other properly authenticated
evidence—namely, State’s Exhibit 1. See Billington v. State, No. 08-12-00144-CR, 2014 WL
669555, at *3–4 (Tex. App.—El Paso Feb. 19, 2014, no pet.) (not designated for publication)
(holding the trial court did not abuse its discretion by admitting evidence regarding the defendant’s
prior convictions where the State properly authenticated several judgments by connecting
information within the judgments to information within other exhibits that contained the
defendant’s known fingerprints, despite the State’s inability to match the fingerprints on the
judgments to the defendant’s fingerprints). Additionally, State’s Exhibit 2 contains other
identifying information tying Bates to the subject conviction. 3 See Dominguez v. State, No. 08-
13-00143-CR, 2015 WL 1137742, at *5 (Tex. App.—El Paso Mar. 11, 2015, no pet.) (prior
convictions had several identifiers independent of fingerprint evidence, such as the defendant’s
date of birth and a street address, which tied the conviction to the defendant). For this reason, and
without more from Bates, we conclude the 2006 judgment of conviction was properly
authenticated.
3
Both State’s Exhibits 1 and 2 contain identical information about Bates’s identity and the offense for which he was
convicted. Specifically, both exhibits contain Bates’s full name, his DPS number, the same cause number, the location
of the charged offense (Bexar County), the sentence length (5 years), the date of conviction (December 4, 2006), and
the name of the charged offense (indecency with a child).
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Second, the 2006 judgment of conviction for indecency with a child by sexual contact, and
the sex offender registry records, sufficiently established the extraneous offense beyond a
reasonable doubt. Pursuant to Article 38.37, evidence of an extraneous offense may be introduced
when a trial court “determine[s] 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. Pro. Ann. art. 38.37 § 2-a(1). Here, the trial court made that
determination after hearing the testimony of Martinez and reviewing the State’s tendered exhibits.
The trial court’s decision to admit the evidence was not an abuse of discretion. See Jurado v. State,
No. 08-17-00010-CR, 2019 WL 1922757, at *8 (Tex. App.—El Paso Apr. 30, 2019, pet. ref’d)
(not designated for publication) (finding the judgment from a prior conviction and related
probation records were sufficient evidence to establish the conviction beyond a reasonable doubt);
Luvano v. State, No. 11-14-00122-CR, 2016 WL 1725455, at *2–3 (Tex. App.—Eastland Apr. 21,
2016, no pet.) (mem. op., not designated for publication) (holding a certified judgment of
conviction containing the defendant’s fingerprints was sufficient evidence to prove the existence
of the conviction beyond a reasonable doubt pursuant to Article 38.37). Accordingly, we cannot
say the challenged evidence was not authenticated nor insufficient to support a finding by the jury
beyond a reasonable doubt that Bates had committed the separate offense reflected by the 2006
judgment of conviction.
(2) The remaining complaints
Bates scattered additional complaints throughout his briefing. As to each, we must first
determine whether any were preserved for our review. To preserve complaints for review, a party
must present a timely request, objection, or motion to the trial court stating specific grounds for
the desired ruling unless the specific grounds are apparent from the context. See Tex. R. App. P.
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33.1(a)(1)(A); Tex. R. Evid. 103(a). The purpose of requiring specificity is twofold: (1) to inform
the trial court of the basis of the objection and give the court an opportunity to rule on it and (2) to
give the opposing party the opportunity to respond to the complaint. Resendez v. State, 306 S.W.3d
308, 312 (Tex. Crim. App. 2009). And as relevant here, “the trial court should know when it is
being asked to make a constitutional ruling because constitutional error is subject to a much stricter
harm analysis on appeal.” Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (citing
Tex. R. App. P. 44.2(a), (b)). Finally, the complaint being raised on direct appeal must also not
vary from the complaint asserted at trial. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim.
App. 2004) (en banc).
First, in one sentence of his brief, Bates mentions the evidence of his prior conviction “had
a more prejudicial than probative effect.” He does not expand on his argument, develop it further,
or cite any authority supporting the complaint. On review of the record of both the pretrial hearing
and the guilt-innocence phase of trial, we note that Bates neither objected on the basis of the
evidence being more prejudicial than probative nor did he make a request that the court conduct a
Rule 403 balancing test. Although the admission of evidence under Article 38.37 may be limited
for its potential for unfair prejudice, Bates failed to timely preserve that objection. See Bradshaw,
466 S.W.3d at 882 (providing that appellant failed to preserve the issue for review by failing to
lodge a Rule 403 objection to his extraneous-offense evidence at trial). Accordingly, any complaint
of the evidence being more prejudicial than probative was not preserved for our review. Knox v.
State, 934 S.W.2d 678, 687 (Tex. Crim. App. 1996) (finding nothing preserved for review if
objection at trial does not comport with issue on appeal); Carrasco v. State, No. 08-99-00216-CR,
2001 WL 1356998, at *7 (Tex. App.—El Paso Nov. 6, 2001, no pet.) (not designated for
publication) (finding waiver of Rule-403 issue where it was not brought up in trial); see also Tex.
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R. App. P. 38.1(i) (requiring clear and concise arguments with appropriate citations to authorities
and the record).
Second, in the harm portion of his brief, Bates acknowledges that additional objections he
raises on appeal were not raised in the trial court. Here, he specifically mentions error based on
both the Confrontation Clause and hearsay. To this extent, Bates recognizes that objections were
not properly made at trial. To preserve error for our review, complaints regarding the Confrontation
Clause must be objected to at trial in a timely and specific manner. See Tex. R. App. P. 33.1(a);
see also Ortiz v. State, No. 08-15-00344-CR, 2017 WL 3667829, at *4 (Tex. App.—El Paso Aug.
25, 2017, pet. ref’d) (providing that a defendant forfeits a Confrontation Clause complaint by
failing to properly object at trial). And as for hearsay, the record shows he only slightly engaged
in more dialogue with the trial court but still failed to lodge a timely and specific objection.
At the pretrial hearing, Bates requested rulings on his objections. In doing so, he made a
general hearsay objection. When the trial court asked, “[h]earsay . . . as far as what,” Bates
responded, “[t]he judgment.” The trial court then overruled the objection. Bates reasserted a
general hearsay objection once more before State’s Exhibit 2 was admitted, to which the trial court
overruled. Based on the totality of this record, Bates’s hearsay objection failed to preserve anything
for our review. See Flores v. State, 513 S.W.3d 146, 174 (Tex. App.—Houston [14th Dist.] 2016,
pet. ref’d) (finding general hearsay objection to medical records did not preserve error as to any of
the specific, unobjected-to statements complained of on appeal). Even so, Bates also fails to
develop his argument on appeal as to what portion of the evidence was hearsay and on what basis
the objection applied. See Tex. R. App. P. 38.1(i).
For all these reasons, we overrule Bates’s sole issue.
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III. CONCLUSION
We affirm the judgment.
GINA M. PALAFOX, Justice
November 12, 2024
Before Alley, C.J., Palafox, and Soto, JJ.
(Do Not Publish)
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