Jose Tijerina Gardner v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00458-CR
JOSE TIJERINA GARDNER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 121st District Court
Terry County, Texas
Trial Court No. 7091, Honorable John A. Didway, Presiding
September 24, 2018
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant Jose Tijerina Gardner appeals his conviction of the offense of continuous
sexual abuse of a child1 and the resulting sentence of life imprisonment.2 He raises two
issues, contending the trial court erred by denying his request for a mistrial and his
request for inclusion of lesser-included offense instructions in the jury charge. We will
affirm.
1 TEX. PENAL CODE ANN. § 21.02 (West 2018).
2 TEX. PENAL CODE ANN. § 12.32 (West 2018).
Background
By a single indictment, the State alleged that appellant committed two or more acts
of sexual abuse against children younger than fourteen years of age during a period of
thirty or more days. The indictment alleged acts committed against I.S. and E.S., who
were age 11 and 9, respectively, at the time of trial.
At trial, I.S. testified that he, and his brother and sister E.S. and D.S., began living
with appellant in Lubbock but later moved with him to Brownfield. I.S. told the jury that
initially appellant was “fun” and “nice.” However, that changed when appellant started
doing “nasties” to him. I.S. described the “nasties” in detail. He told the jury appellant
“put his ding-ding in my bottom.”3 He also told the jury appellant made him “rub”
appellant’s penis. These incidents occurred a few times in Lubbock and continued “many
times” after they moved to Brownfield. After the move to Brownfield, I.S. testified,
appellant started doing the same things to E.S. I.S. testified that appellant touched his
“ding-ding” and his “bottom” and made E.S. touch I.S.’s penis and his bottom. Appellant
also made I.S. touch E.S. in the same places. Appellant made I.S. rub his penis “until the
milk comes out” and then made him “lick it.” I.S. told the jury appellant also made him
touch appellant’s “ding-ding” with his mouth many times. I.S. also described instances of
physical abuse of all three children at the hands of appellant. E.S. gave a description of
appellant’s sexual acts very like that of I.S. D.S., thirteen at the time of trial, testified she
did not know about the sexual abuse of her brothers but testified in detail about appellant’s
3There appears no dispute that I.S. used the term “ding-ding” to refer to penis and
the term “bottom” to refer to anus.
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physical abuse of each of the children, which included one instance in which he
threatened her with a knife.
A sexual assault nurse examiner and a counselor also testified to what each of the
children told them. The information gathered was similar to the children’s trial testimony.
Analysis
Request for Mistrial
In appellant’s first issue, he contends the trial court erred when it denied his request
for a mistrial after D.S. referred to appellant’s extraneous bad act of threatening her with
the knife. During her testimony, she told the jury appellant hit her and her brothers. On
this instance, she said, when appellant was angry with her, he “grabbed my hair and then
swung me and threw me against the -- like, it’s the counter, then the stove, and then the
other counter. He threw me right there by the stove and counter. And then he had -- he
grabbed a knife and said he was going to kill me.”
After the prosecutor asked several additional questions regarding that incident,
appellant raised an objection to the line of questioning. The parties discussed the
statement with the court outside the presence of the jury. The State argued D.S.’s
testimony was admissible under Rule of Evidence 404(b) and section 2 of article 38.37 of
the Texas Code of Criminal Procedure. TEX. R. EVID. 404(b); TEX. CODE CRIM. PROC. ANN.
art. 38.37 (West 2018). The State contended the evidence showed the fear appellant
placed in the children and that the fear led them to delay their outcry of sexual abuse.
Appellant argued D.S. was not a victim of the offense for which appellant was on trial and
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that the physical abuse against her was not related to the sexual incidents against I.S.
and E.S. After considerable discussion, the trial court sustained appellant’s objection.
Defense counsel requested the court to instruct the jury to disregard D.S.’s
testimony regarding the knife. The court told the jury, “We’ve discussed a matter and
legal grounds. The last testimony of the witness on the stand regarding the knife and the
assault, possible assault on her by . . . the Defendant in this case, you are instructed to
disregard that testimony. Okay. I know instructions are hard, but that’s what you’re
instructed to do by the Court. Okay.” Defense counsel then moved for a mistrial, stating
as grounds therefore that “the harm caused, the prejudice harm is such that the Court’s
instruction cannot cure the prejudice that’s been created.” The trial court denied the
mistrial.
We review the court’s denial of the motion for mistrial under an abuse of discretion
standard and must uphold the ruling if it was within the zone of reasonable disagreement.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is an appropriate
remedy in extreme circumstances for a narrow class of highly prejudicial and incurable
errors. Id. (citation omitted). A mistrial should be granted only when less drastic
alternatives fail to cure the prejudice. Id. at 884-85 (citation omitted). “The determination
of whether a given error necessitates a mistrial must be made by examining the particular
facts of the case.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
Generally, “a prompt instruction to disregard by the trial court will cure error
associated with improper testimony referring to or implying extraneous offenses, unless
it appears the evidence was so clearly calculated to inflame the minds of the jury or is of
such a damning character as to suggest it would be impossible to remove the harmful
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impression from the jurors’ minds.” Hebert v. State, 489 S.W.3d 15, 20 (Tex. App.—
Houston [14th Dist.] 2016, no pet.) (citing Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.
App. 1992)). Curative instructions are presumed effective to withdraw from the jury’s
consideration almost any evidence or argument that is objectionable. Id. (citation
omitted). Accordingly, trial conditions must be extreme before a mistrial is warranted. Id.
(citation omitted).
On appeal, appellant argues the trial court erred because D.S.’s statement “was
not an inadvertent or passing reference to some vague or innocuous extraneous offense
or bad act. Rather, she described a violent aggravated assault that was unrelated to the
crime for which [appellant] was on trial—namely continuous sexual abuse of a child.”
Appellant contends this evidence differed in “both kind and degree” from the other
evidence of physical abuse related by the children. Appellant also asserts the State had
little need to elicit this statement from D.S. to explain the delayed outcry, given the expert
testimony it presented and the other evidence of physical abuse. Further, appellant
asserts that the statement from D.S. was inflammatory and very prejudicial but had little
relevance to whether appellant continuously sexually abused I.S. and E.S. He reiterates
that D.S. did not know about the sexual abuse.
We see no abuse of discretion in the trial court’s ruling. The jury had before it
evidence of many extraneous bad acts perpetrated by appellant against the children.
Included was testimony that appellant beat the children, sometimes with a belt, put “his
fingers down their throat,” choked them, and threatened them, among other cruel acts.
D.S.’s statement was not so inflammatory, particularly given all of the other evidence
before the jury, as to undermine the efficacy of the judge’s instruction to disregard. And,
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because this was the only act involving a knife, it was clear to the jury to which act the
instruction was applicable. We find the presumption that curative instructions are effective
applicable in this circumstance. See Hebert, 489 S.W.3d at 20. The court did not err in
denying the motion for mistrial.
We overrule appellant’s first issue.
Request for Instructions Concerning Lesser-Included Offenses
By appellant’s second issue, he argues the trial court erred in denying his request
that the jury be instructed it was authorized to convict him of lesser-included offenses of
aggravated sexual assault of a child or indecency with a child by contact. His argument
focuses on the evidence he committed two or more acts of sexual abuse during a period
that was thirty or more days in duration. See TEX. PENAL CODE ANN. § 21.02(d); Williams
v. State, 305 S.W.3d 886, 890-91 (Tex. App.—Texarkana 2010, no pet.) (State must
prove two acts of sexual abuse “committed over a span of thirty or more days”).
The trial court’s decision not to submit a lesser-included-offense instruction is
reviewed for abuse of discretion. Ham v. State, No. 07-15-00329-CR, 2016 Tex. App.
LEXIS 7732, at *5-7 (Tex. App.—Amarillo July 20, 2016, pet. ref’d) (mem. op., not
designated for publication) (citing Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App.
2005); Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004)). The
circumstances under which an offense is a lesser-included offense of another are defined
by statute. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); Hall v. State,
225 S.W.3d 524, 527-28 (Tex. Crim. App. 2007)).
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Texas courts apply a two-step test to determine whether a lesser-included-offense
instruction requested by a defendant must be given. Id. (citing Grey v. State, 298 S.W.3d
644, 645 (Tex. Crim. App. 2009)). The first step examines whether the asserted lesser
offense is included within the proof necessary to establish the greater offense. Id. (citing
Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Royster v. State,
622 S.W.2d 442, 446 (Tex. Crim. App. 1981)). Application of the first step of the test is a
question of law. Id. (citation omitted). There is no dispute that the first step is satisfied
here. See Dwyer v. State, 532 S.W.3d 535, 542 (Tex. App.—San Antonio 2017, no pet.)
(citations omitted); Hines v. State, No. 02-15-00468-CR, 2017 Tex. App. LEXIS 4071, at
*23 (Tex. App.—Fort Worth May 4, 2017, no pet.) (mem. op., not designated for
publication) (predicate offenses under § 21.02 as lesser-included offenses).
The second step considers whether there is evidence to permit the jury rationally
to find that the defendant, if guilty, is guilty only of the lesser offense. Ham, 2016 Tex.
App. LEXIS 7732, at *6 (citations omitted). “Regardless of its strength or weakness, if
any evidence raises the issue that the defendant was guilty only of the lesser offense,
then the charge must be given.” Id. (citing Saunders v. State, 840 S.W.2d 390, 391 (Tex.
Crim. App. 1992)).
For his argument, appellant relies on caselaw holding that a “lesser-included
offense may be raised if . . . the evidence on the issue is subject to two different
interpretations, and one of the interpretations negates or rebuts an element of the
greater.” Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996) (citing Saunders,
840 S.W.2d at 392).
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Appellant concedes that the evidence establishes he committed two or more acts
of sexual abuse, and that the children lived with him for a period of months, thus defining
a timeframe for the abuse greater than thirty days. He contends, however, that the boys’
“vague and imprecise” descriptions of the period of time during which the acts occurred
would have permitted the jury to find the abuse occurred within a thirty-day period. We
disagree. The record shows I.S. testified appellant put his penis in I.S.’s anus “a few
times” while they lived in Lubbock; he said appellant did the same “many times” while
they lived in Brownfield; he agreed it happened “the entire time” they lived in Brownfield;
he said appellant required him to put his mouth on appellant’s penis “many” times, and
said “he did it until we left out of Brownfield.” E.S. testified appellant put his penis in E.S.’s
anus “many” times; he said appellant started doing so “about . . . a week” after the move
to Brownfield; he agreed it happened “until [the children] moved out”; he said appellant
required him to touch appellant’s penis with his mouth, and with his hand, “many times.”
To sustain his appellate issue, appellant must demonstrate his proffered
interpretation of the evidence would have allowed the jury rationally to acquit appellant of
continuous sexual abuse of the boys and convict him instead of the lesser-included
offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). It is not
enough that the jury might have disbelieved the evidence establishing the greater offense.
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). The evidence must establish
that the lesser offense was “a valid, rational alternative to the charged offense.” Hall, 225
S.W.3d at 536 (citation omitted).
The testimony indicates the children lived in Brownfield with appellant for at least
eighteen months. We agree with the State the jury could not rationally have accepted
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E.S.’s testimony that appellant first abused him about a week after their move to
Brownfield, and his testimony the abuse continued until they moved away from appellant,
but believe all the acts of abuse occurred within a thirty-day period. Likewise, we find the
jury could not have found credible I.S.’s statement appellant abused him in Lubbock, and
his statement the abuse continued “until we left out of Brownfield” and still rationally
conclude the abuse did not extend beyond a thirty-day period.
Appellant has not demonstrated either of the lesser-included offenses was a
rational alternative conclusion of guilt from the evidence the jury heard. His second issue
is overruled.
Conclusion
Having overruled each of appellant’s issues, we affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.
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