Jose R. Tinajero v. State

                                   NUMBER 13-01-581-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

JOSE R. TINAJERO,                                                              Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 217th District Court

                                 of Angelina County, Texas.

                                   O P I N I O N

      Before Chief Justice Valdez and Justices Rodriguez and Kennedy^[1]

                                 Opinion by Justice Kennedy

Appellant, Jose R. Tinajero, was indicted in two counts of indecency with a child. The counts alleged two separate offenses involving appellant and his son on the same day.  A jury found appellant guilty on both counts and, following a separate hearing, the trial court assessed punishment at confinement for ten years.

Appellant=s brief brings two points of error, here quoted:

                                             POINT OF ERROR NO. 1

Reversible error was committed in the trial court in that the appellant was denied the opportunity to reopen his case before the jury began deliberations.

                                             POINT OF ERROR NO. 2

Reversible error was committed in the trial court by allowing testimony of extraneous acts against others during the trial of this matter.

In support of point one, appellant complains of the trial court=s denial of his request to re-open the case before the jury began deliberations.  The record shows that appellant had called as a witness the custodian of records at a local hospital.  During the trial, one of the State=s witnesses, the mother of the victim and the wife of appellant, testified to having witnessed sexual abuse performed on the victim by appellant.  She also testified that appellant was physically abusive to her which, on one occasion, caused her to go to the local hospital.  Appellant requested to re-open and tendered the testimony of the custodian of records at the hospital.  On bill of exception, the custodian testified she could not find a record of appellant=s wife=s admission to the hospital.  On cross-examination, she also gave several reasons why it was possible that a record of the admission could not be found.  The obvious reason appellant wanted the jury to hear this testimony was to impeach the wife=s credibility.

The trial court has discretion in allowing either party to re-open.  Lucious v. State, 828 S.W.2d 118, 120 (Tex. App.BHouston [14th Dist.] 1992, no writ).  The burden is on the defendant to show that the proposed testimony would have materially changed the case in his favor.  Simms v. State, 833 S.W.2d 281, 286 (Tex. App.B Houston [14th Dist.] 1992, writ ref=d).  In addition, a defendant must demonstrate that the testimony bore directly on the main issues in the case.  Lucious, 828 S.W.2d at 121.

Appellant=s argument fails both of the above tests.  We overrule point of error one.

Point of error two complains of the admission of evidence of extraneous acts of violence and sexual abuse upon persons other than the victim.  Appellant=s reference is to the testimony from the victim and the victim=s sister that appellant used violence against his wife and that he sexually abused the victim=s sister.

The testimony about appellant=s violence toward his wife was not objected to.  In addition, appellant, himself, testified on direct testimony that he Acalled [his] wife to the back room and I beat her.@

The victim=s sister testified to two occasions when appellant was in bed with both her and her brother and sexually abused both.  Appellant complains that this violates Rule 404 of the Texas Rules of Evidence which says in pertinent part:

(b)      Other Crimes, Wrongs or Acts.  Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

Tex. R. Evid. Rule 404(b) (Vernon 2002).

Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where several crimes are intermixed, or blended with one another, or connected so that they form an invisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.  Nelson v. State, 864 S.W.2d 496, 498 (Tex. Crim. App. 1993).^[2]

Reviewing the entire testimony of the victim=s sister about sexual and physical abuse of her and the victim, we find only one objection made by appellant.  To the question, AWhy would he do this to your brother?@ counsel objected, AI=m going to object as to speculation as to why.@  The objection was sustained by the trial court.

We overrule the second point of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 16th day of May, 2002.                                  

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^[1]Retired Justice Noah Kennedy assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2] Nelson was a case where two women were sexually assaulted and stabbed.  The survivor's testimony was allowed as to the assault on herself as well as the assault on the deceased in the capital murder trial.