Javier Noel Campos v. State

Opinion issued January 13, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00415-CR
NO. 01-13-00416-CR
NO. 01-13-00417-CR
———————————
JAVIER NOEL CAMPOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1328806, 1328807, 1308988
OPINION
A jury convicted appellant, Javier Noel Campos, of three counts of the first-
degree felony offense of aggravated sexual assault of a child and assessed
punishment at sixty-eight years’ confinement for all three cases. 1 The trial court
ordered that the sentences for cause numbers 1308988 and 1328806 run
concurrently and that the sentence for cause number 1328807 be served
consecutively. 2
In thirteen issues, appellant contends that (1) the State failed to present
sufficient evidence that he committed the offense; (2) the trial court erred in
overruling his motion for mistrial made when the State referred to an extraneous
bad act during opening statements; (3) the trial court erroneously allowed the
testimony of the outcry witness to exceed the scope of the information contained in
the statutory outcry notice; (4) the trial court erroneously allowed the forensic
interviewer to testify to matters outside of her expertise; (5) the trial court
erroneously allowed a witness to testify about her suspicions regarding appellant
formulated in response to a conversation with another witness; (6) the trial court
erroneously admitted the content of text messages through the testimony of a
witness when the messages themselves had been deleted; (7) the trial court
erroneously denied a motion for mistrial made when the complainant referenced a
letter sent to him by appellant while appellant was “in prison”; (8) the trial court
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)–(iii) (Vernon Supp. 2014).
2
Trial court cause number 1328806 resulted in appellate cause number 01-13-
00415-CR. Trial court cause number 1328807 resulted in appellate cause number
01-13-00416-CR. Trial court cause number 1308988 resulted in appellate cause
number 01-13-00417-CR.
2
erroneously denied his motion to testify free from impeachment by prior
convictions; (9) the trial court erroneously allowed the State to impeach him with a
conviction that was more than ten years old; (10)–(11) the trial court erroneously
allowed the State to impeach him with two misdemeanor convictions for offenses
that did not constitute crimes involving moral turpitude; (12) the trial court
erroneously overruled his objection that the State improperly shifted the burden of
proof to him during closing argument; and (13) the trial court erroneously
cumulated his sentence in cause number 1328807.
We affirm.
Background
The State indicted appellant for three counts of aggravated sexual assault of
a child. The first count alleged that appellant sexually assaulted C.G.J., the
complainant, by placing his sexual organ in C.G.J.’s anus. The second count
alleged that appellant placed his sexual organ in C.G.J.’s mouth. The third count
alleged that appellant caused C.G.J.’s sexual organ to penetrate appellant’s mouth.
The three indictments all alleged that these acts occurred on or around July 11,
2005.
In the summer of 2005, A.G., her husband, C.W., her ten-year-old son,
C.G.J., and her daughter moved into the Embers Apartments in Pasadena.
Appellant, who was thirty-three years old at the time, lived in the same apartment
3
complex. A.G. testified that she thought appellant was polite and a “really nice
guy.” Appellant offered to help A.G. drive C.G.J. to school, he bought C.G.J.
clothes and toys, and A.G. let C.G.J. spend the night with friends at the apartment
in which appellant was also living. A.G. noticed that appellant spent more time
with C.G.J. than with other children at the apartment complex, but she believed
that appellant thought C.G.J. needed a “good role model in his life,” and she was
grateful for any help appellant could provide.
C.G.J. eventually left the Embers Apartments and went to live with A.G.’s
sister, M.N., and her family. Subsequently, A.G. started to become suspicious of
appellant. At this point in A.G.’s testimony, the State approached the bench to
inform the trial court that appellant had sent C.G.J. some text messages that M.N.
had seen and then discussed with A.G. and that appellant had then approached
A.G. at work because he had not seen C.G.J. in a while. The State wanted A.G. to
testify about her conversation with appellant, but it stated that it needed to set up
the fact that A.G.’s opinion of appellant had changed. Defense counsel objected
on hearsay grounds to any testimony about the text messages, and she also
objected on hearsay grounds to any testimony from A.G. about her opinion of
appellant changing after she spoke with M.N. After a lengthy discussion with the
State and defense counsel, the trial court stated that it would allow the State to ask
A.G. if her attitude toward appellant changed at some point and what caused that
4
attitude shift. The court then said that A.G. could respond that a conversation with
M.N. changed her opinion.
In the presence of the jury, the State asked A.G., “[D]id you ever become
suspicious of the defendant’s interactions with [C.G.J.]?” A.G. responded, “I
really became suspicious after a conversation I had with my sister. I had a
conversation with my brother-in-law and my sister; and it made me very, very
suspicious.” A.G. testified that after she had this conversation with M.N.,
appellant came to see her at work. He was very emotional and was crying, and he
apologized to A.G. and told her that “he loved my son and that he just wanted to
see him.”
In 2011, A.G. and C.G.J. were having a conversation and appellant’s name
was mentioned. A.G. asked C.G.J. if appellant had “ever tried anything on you.”
C.G.J. said yes, and A.G. asked him if appellant made C.G.J. have sex with him.
C.G.J. again said yes, although he did not give any further details about what had
happened. A.G. then took C.G.J. to the Pasadena Police Department to report the
offenses.
The State called M.N., and, before she testified, the prosecutor informed the
trial court that she would testify about text messages C.G.J. had received from
appellant. The trial court then held a hearing outside the presence of the jury to
elicit testimony from M.N. concerning how she knew the text messages came from
5
appellant. M.N. identified appellant in court, and she testified that when C.G.J.
came to live with her he had a cell phone that appellant had given him. She
testified that C.G.J. referred to appellant as “Godfather,” that C.G.J. did not refer to
anyone else by this name, that the name associated with appellant on C.G.J.’s cell
phone was “Godfather,” and that she had seen text messages on the phone from
“Godfather.” M.N. saw text messages from “Godfather” stating, “Why haven’t
you called me? I miss you. I can’t live without you. Why are you doing this to
me?”
M.N. testified that, based on the text messages, she confronted appellant,
warned him to stay away from C.G.J., and told him that she would contact the
police. Appellant did not deny sending those messages. Later that day, M.N.
asked C.G.J. if she could see his phone, but he had already deleted the text
messages at appellant’s direction. M.N. filed a police report against appellant for
stalking. 3 Defense counsel objected to M.N.’s testimony concerning the text
messages on both hearsay and authentication grounds. The trial court ruled: “I
3
The prosecutor referenced this incident in its opening statement by stating, “And
you’re going to hear how [M.N. and her husband] finally confronted [appellant]
and did more than that. They went and filed a police report against him for
stalking.” Defense counsel objected, arguing that the stalking incident “has
nothing to do with any intent to any sex act or to any sex crime.” The trial court
stated that the stalking offense “shows [appellant’s] incredible focus on this one
child and his relationship with the child.” The trial court overruled the objection
and appellant’s subsequent motion for mistrial.
6
find that there is sufficient authentication. And, of course, an admission [of a party
opponent] is an exception to the hearsay rule. So your objection is overruled.”
Before the jury, M.N. testified that she had concerns about appellant’s
relationship with C.G.J. because appellant “obviously was way too old to be
hanging out with my nephew.” She thought it “wasn’t good for [C.G.J.]” that he
was at appellant’s apartment all the time. M.N. testified that she had observed
negative changes in C.G.J.’s behavior, such as an increasing amount of anger, and
that he had been performing very poorly in school before coming to live with her
family. She testified that she did not allow C.G.J. to have contact with appellant,
but because appellant had given C.G.J. a cell phone they were still in contact via
text message. She stated that she saw text messages on C.G.J.’s phone from
appellant that read, “Why aren’t you picking up? Do you not love me? I feel sick
without you.” M.N. confronted appellant, who did not deny sending the text
messages, and she then filed a police report against appellant. C.G.J. never said
anything to M.N. about being sexually abused.
Stephanie Jones, with the Children’s Assessment Center, conducted C.G.J.’s
forensic interview. The State identified Jones as a person to whom C.G.J. had
made an outcry in a pretrial “Notice of Intention to Use Child Abuse Victim’s
Hearsay Statement.” In that notice, the State summarized C.G.J.’s statements to
Jones as follows:
7
On or about May 9, 2011, the complainant told Stephanie Jones, that
the defendant had befriended him and treated him like a son. The
defendant had him stand in front of a window and the defendant
performed oral sex on the complainant. The complainant further
stated that the defendant took advantage of him and raped him. The
defendant stated that he had already seen the complainant’s penis so
he should show it to him. The complainant told Stephanie Jones that
the defendant touched his penis. The complainant also stated that if
he did sexual favors for the defendant he would buy him things. The
complainant stated that he performed oral sex on the defendant. Also,
the defendant would masturbate while looking at the complainant and
tell the complainant “he had a nice ass.” Also, the defendant placed
his penis inside the complainant’s anus and licked his anus.
Before Jones testified, defense counsel made the following objection: “My
complaint is that according to the notice, that some of those statements are not
outcry statements pursuant to 38.071 about a crime or a wrong describing any sex
acts.” In overruling appellant’s objection, the trial court stated: “I found that the
outcry statement made to the child’s mother is reliable, that the probative value
outweighs the prejudicial value, and that adequate notice was given under the
outcry statute.”
Jones testified that C.G.J. appeared “very nervous” at the beginning of his
forensic interview, but that he gave detailed responses to her open-ended questions.
The following exchange occurred during her direct examination:
[The State]: Did he describe the abuse?
[Jones]: Yes.
[The State]: What did he say?
8
[Jones]: The first time it happened, he was at an
apartment where he—
[Defense counsel]: Objection, Your Honor. This is outside the
scope of the actual statement that was—
outcry statement we discussed earlier.
The Court: I don’t recall exactly what you said about
that, just other statement. May I see the
notice? Thank you. Your objection is
overruled.
Jones testified that C.G.J. described the abuse. C.G.J. told Jones that he was
sleeping at appellant’s apartment, that appellant woke him up, told him to look out
the window to make sure no one was coming, and performed oral sex on him.
C.G.J. also told Jones that sexual abuse happened on other occasions. C.G.J. told
Jones that, on some occasions, appellant made him perform oral sex on appellant,
and on other occasions appellant would anally penetrate him. C.G.J. indicated that
all of these acts occurred on more than one occasion. C.G.J. was able to provide
details concerning the acts of abuse, he described watching pornographic videos
with appellant, and he described how appellant would promise him gifts in
exchange for performing sexual acts.
The State asked Jones whether C.G.J.’s responses were “consistent with a
child that had been sexually abused.” Defense counsel objected on speculation
grounds and on the basis that Jones “is not an expert with respect to making that
evaluation.” The trial court informed the State, “You will need to qualify her.”
Jones testified that she did not know the exact number of forensic interviews that
9
she had conducted, but she estimated that, in eighteen months, she had conducted
over 1500.4 She also testified that she has seen children not disclose any abuse,
that children sometimes give answers inconsistent with someone who has been
sexually abused, and that children sometimes give answers consistent with sexual
abuse. The State again asked Jones whether C.G.J. gave answers consistent with
someone who had been sexually abused. Defense counsel again objected:
She’s not qualified to make this assessment. It’s out of the scope of
her training. She has stated that she has only given 1500 interviews
within an 18-month period of time. That doesn’t make her an expert
with respect to making that particular evaluation.
The trial court overruled this objection. Jones testified that she believed C.G.J.’s
answers and demeanor were consistent with a child who had been sexually abused.
C.G.J. testified that he moved into the Embers Apartments with his family
during the summer following his fifth-grade year and that he met appellant while
playing outside at the complex. C.G.J. testified that appellant bought him clothing
and toys, that appellant would take him and other children from the apartment
complex on fishing trips, and that he viewed appellant as a father figure.
Eventually, appellant started spending time alone with C.G.J., and appellant would
4
Jones also stated, at the beginning of her testimony, that she had a master’s degree
in social work, that she has training in forensic interviewing “as well as domestic
violence and trauma,” and that she had worked as an investigator with Child
Protective Services before becoming a forensic interviewer at the Children’s
Assessment Center.
10
show C.G.J. pornographic magazines and videos. This behavior then escalated to
sexual abuse.
C.G.J. testified that, on the first occasion of sexual abuse, appellant
performed oral sex on him. Appellant later forced him to perform oral sex on
appellant, and both of these acts occurred on at least twelve occasions over the
course of the summer. Eventually, appellant’s conduct escalated to the point of
anally penetrating C.G.J. C.G.J. testified that he did not immediately tell anyone
because he was embarrassed and afraid that appellant would hurt him and his
family. He also testified that appellant referred to him as his son and that he made
C.G.J. feel special. He stated that appellant also has a tattoo of C.G.J.’s face on his
arm and that he was present when appellant got that tattoo.
The State asked C.G.J. whether appellant sent him letters in addition to text
messages. C.G.J. responded that he did. The State asked C.G.J. to identify State’s
Exhibit 14, a letter dated July 2007, which he did by saying, “Letters from
[appellant] being in prison.” The trial court immediately sustained defense
counsel’s objection and instructed the jury to disregard C.G.J.’s statement. The
trial court denied appellant’s motion for mistrial. The trial court then admitted a
redacted copy of Exhibit 14. C.G.J. testified that appellant had written “SWAK”
on the envelope, which appellant, in the letter, clarified meant “sealed with a lot of
kisses.” C.G.J. also testified that the letter included such statements as “Love you,
11
[C.G.J.],” “Thinking of you” with a heart, and “If you care, mijo, find me a picture
of you and send it with your next letter. Okay? I really miss seeing you. I miss
your hugs and kisses.”
Appellant called three people who had also lived at the Embers Apartments
as witnesses on his behalf: Sergio Lara, I.G., 5 and Kanny Duenas. I.G. and
Duenas were approximately the same age as C.G.J. and testified that they would
often play with him around the apartment complex. All three witnesses testified
that appellant was like a father figure to them. Lara testified that he has a tattoo
representing appellant, that appellant has one representing him, and that appellant
has sent him letters before that said “sealed with a kiss.” I.G. testified that
appellant routinely took them on fishing trips and that he would buy food, clothing,
toys, and sporting equipment for all of the children at the apartment complex. I.G.
stated that appellant also has a tattoo representing I.G. and I.G.’s daughter on his
arm. All three witnesses testified that appellant appeared to have an appropriate
relationship with C.G.J.
Appellant testified on his own behalf. Before he testified, the trial court held
a hearing on appellant’s motion to testify free from impeachment by prior
convictions. The State proposed impeaching appellant with four prior convictions:
5
In 2004, appellant was convicted of harboring a runaway child, I.G., and in 2006,
he was convicted of misdemeanor assault on a family member, and I.G. was the
complainant. Because I.G. was a minor at the time of these offenses, we refer to
him by his initials.
12
a 2009 felony conviction for possession of a controlled substance, a 2006
misdemeanor conviction for assault on a family member, a 2004 misdemeanor
conviction for harboring a runaway child, and a 1992 felony conviction for
aggravated assault. Appellant argued that the State could not establish that the
probative value of these convictions outweighed their prejudicial effect. Appellant
also argued that the State could not use either of the misdemeanor convictions for
impeachment because those offenses did not involve moral turpitude, and he
argued that the 1992 conviction was too remote to use for impeachment. The trial
court found that both misdemeanor convictions involved moral turpitude and that
the 2006 misdemeanor conviction “tacked onto” the 1992 conviction, making it not
remote. The trial court allowed the State to use all four prior convictions for
impeachment. 6
Appellant testified that after Garcia and her family moved to the Embers
Apartments, he tried to include C.G.J. in activities with the other children at the
complex. Appellant testified that C.G.J., I.G., and Kanny Duenas were all “like a
6
The State asked appellant about these convictions on cross-examination. The trial
court, at defense counsel’s request, instructed the jury that it could consider
appellant’s prior convictions only for the purpose of determining his credibility.
The trial court included a substantially similar instruction in the written charge.
The State later asked appellant to clarify that the runaway child he harbored in
2004 and the complainant in the misdemeanor assault conviction was I.G., who
had already testified. The State mentioned the 2004 harboring a runaway child
conviction once more during closing arguments when it summarized I.G.’s
testimony supporting appellant.
13
little son” to him and that he missed C.G.J. after his family moved from the
apartment complex, which is why he got a tattoo that represented C.G.J. Appellant
denied ever having sexual contact with C.G.J. or doing anything inappropriate with
him.
During closing arguments, the State summarized C.G.J.’s testimony
concerning his outcry to Garcia, his subsequent meeting with the police, and his
forensic interview. The prosecutor stated, “Now, has Defense counsel offered any
evidence—anything to suggest why a 16-year-old boy would make this up?”
Defense counsel objected “to any reference as to why. We have no burden of
proof.” The trial court overruled defense counsel’s objection.
The jury found appellant guilty of three counts of aggravated sexual assault
of a child and assessed punishment at sixty-eight years’ confinement for each
count. The State filed a motion to cumulate the sentences pursuant to Penal Code
section 3.03. The trial court granted the State’s motion and ordered appellant’s
convictions in cause numbers 1308988 and 1328806 to run concurrently and his
conviction in cause number 1328807 to be cumulated and to begin after appellant
completes his sentences for cause numbers 1308988 and 1328806. This appeal
followed.
14
Sufficiency of the Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence that he sexually assaulted C.G.J.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). A jury, as the sole judge of credibility, may accept one version of the facts
and reject another, and it may reject any part of a witness’s testimony. See Sharp
v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v.
State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
15
deference to the jury’s credibility determinations. See Lancon v. State, 253 S.W.3d
699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence
in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.
2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(“When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination.”).
B. Aggravated Sexual Assault of a Child
To establish that appellant committed the offenses of aggravated sexual
assault of C.G.J. as charged in the indictments, the State had to prove that appellant
intentionally or knowingly (1) penetrated C.G.J.’s anus with his sexual organ;
(2) penetrated C.G.J.’s mouth with his sexual organ; and (3) caused C.G.J.’s sexual
organ to penetrate his mouth. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)–
(iii) (Vernon Supp. 2014).
A conviction for aggravated sexual assault of a child is “supportable on the
uncorroborated testimony of the victim of the sexual offense.” TEX. CODE CRIM.
PROC. ANN. art. 38.07(a) (Vernon Supp. 2014); Martinez v. State, 178 S.W.3d 806,
814 (Tex. Crim. App. 2005) (noting that article 38.07 “deals with the sufficiency of
evidence required to sustain a conviction for” certain sexual offenses) (emphasis in
original). The State has no burden to produce any corroborating or physical
16
evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.]
2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston
[1st Dist.] 2004) (“The lack of physical or forensic evidence is a factor for the jury
to consider in weighing the evidence.”), aff’d, 206 S.W.3d 620 (Tex. Crim. App.
2006). Likewise, a child victim’s outcry statement alone can be sufficient to
support a sexual assault conviction. See Jones v. State, 428 S.W.3d 163, 169 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex.
App.—Dallas 2002, pet. ref’d).
Here, C.G.J. testified that he met appellant during the summer between his
fifth and sixth grade years of school when he moved into a new apartment complex
and that appellant would often play with the children at the complex and would
buy them gifts. C.G.J. viewed appellant as a father figure, and appellant referred to
him as his son. Appellant showed C.G.J. pornographic magazines and videos, and
this behavior eventually escalated to sexual abuse. C.G.J. testified unequivocally
that appellant performed oral sex on him, that appellant forced him to perform oral
sex on appellant, and that appellant penetrated his anus with his sexual organ.
C.G.J. estimated that appellant performed these acts on at least twelve occasions
over the summer. C.G.J. testified that he did not tell anyone about the abuse when
it occurred because he was scared and embarrassed.
17
C.G.J. testified to the essential elements of each of the three charged
offenses of aggravated sexual assault of a child. See TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(i)–(iii). His testimony, standing alone, is sufficient to sustain
appellant’s convictions. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Jones,
428 S.W.3d at 169; Martines, 371 S.W.3d at 240; Lee, 176 S.W.3d at 458.
Moreover, Stephanie Jones, the forensic interviewer and one of the State’s outcry
witnesses, testified that C.G.J. disclosed that appellant had sexually abused him by
performing oral sex on him, forcing him to perform oral sex on appellant, and
penetrating his anus. C.G.J.’s outcry statement is also sufficient, standing alone, to
sustain a sexual assault conviction. See Jones, 428 S.W.3d at 169; Tear, 74
S.W.3d at 560.
In arguing that the State failed to present sufficient evidence, appellant
points to several facts that, he contends, render the evidence insufficient. For
example, he points out that C.G.J. did not make an outcry until approximately six
years after the abuse occurred; on an earlier occasion, C.G.J. denied that appellant
had abused him; C.G.J. never told anyone at his school or any family members that
he had been abused; and C.G.J. had six years’ worth of “normal” medical
examinations that did not indicate that any abuse had occurred. All of these points
impact C.G.J.’s credibility. C.G.J. unequivocally testified that appellant
committed acts constituting aggravated sexual assault, and his testimony alone is
18
sufficient to support the conviction. See, e.g., Jones, 428 S.W.3d at 169. The jury
heard the evidence, credited C.G.J.’s testimony, and found appellant guilty. We
may not re-evaluate the weight and credibility of the evidence or substitute our
judgment for that of the fact finder. See Williams, 235 S.W.3d at 750; see also
Lancon, 253 S.W.3d at 705 (stating that we afford almost complete deference to
jury’s credibility determinations).
Appellant also points to alleged deficiencies in Pasadena Police Department
Detective T. Brinson’s investigation as facts rendering the evidence insufficient.
For example, he argues that Detective Brinson failed to visit the apartment where
the abuse occurred, he did not interview appellant’s neighbors, he did not examine
C.G.J.’s cell phone, and he did not obtain C.G.J.’s school records or speak to any
of his teachers or classmates. However, in sexual assault of a child cases, the State
has no burden to present any corroborating or physical evidence of the abuse.
Jones, 428 S.W.3d at 169; Martines, 371 S.W.3d at 240; Lee, 176 S.W.3d at 458.
Furthermore, appellant argues that when Detective Brinson confronted him
with C.G.J.’s allegations he immediately and emphatically denied abusing C.G.J.
and that other witnesses at the apartment complex—Sergio Lara, I.G., and Kanny
Duenas—never observed anything inappropriate occurring between appellant and
C.G.J. It was within the province of the jury to weigh appellant’s testimony, the
testimony of his defensive witnesses, and C.G.J.’s testimony; and it could choose
19
to believe or disbelieve all or any part of any witness’s testimony. See Bartlett,
270 S.W.3d at 150; Sharp, 707 S.W.2d at 614; Henderson, 29 S.W.3d at 623. In
finding appellant guilty, the jury implicitly credited C.G.J.’s testimony over that of
appellant and his witnesses. We will not re-evaluate this credibility determination.
See Lancon, 253 S.W.3d at 705; Williams, 235 S.W.3d at 750.
Viewing the evidence in the light most favorable to the verdict, we conclude
that the State presented sufficient evidence to support appellant’s conviction for
three counts of aggravated sexual assault of a child.
We overrule appellant’s first issue.
Denial of Motions for Mistrial
In his second issue, appellant contends that the trial court erred in overruling
his motion for mistrial made when the State referenced an extraneous bad act
during its opening statement. In his seventh issue, appellant contends that the trial
court erred in overruling his motion for mistrial made when C.G.J. identified an
exhibit as a letter he had received from appellant while appellant was “in prison.”
A. Standard of Review
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We will
uphold the trial court’s ruling if it falls within the zone of reasonable disagreement.
Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). A
20
mistrial is required only in extreme circumstances, when the prejudice is incurable.
Id. (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). Mistrial
is an appropriate remedy when the objectionable events “are so emotionally
inflammatory that curative instructions are not likely to prevent the jury from being
unfairly prejudiced against the defendant.” Archie v. State, 340 S.W.3d 734, 739
(Tex. Crim. App. 2011) (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim.
App. 2004)).
B. Extraneous Bad Acts Mentioned in Opening Statement
During the State’s opening statement, the prosecutor described how M.N.,
C.G.J.’s aunt, became suspicious of appellant and invited C.G.J. to live with her
family away from the Embers Apartments. He also described how appellant
bought C.G.J. a cell phone and continued to try to contact C.G.J. The prosecutor
stated, “And you’re going to hear how [M.N. and her husband] finally confronted
[appellant] and did more than that. They went and filed a police report against him
for stalking.” Defense counsel objected, arguing that the statement was “outside
the scope of opening” and in violation of an earlier motion in limine ruling.
Outside the presence of the jury, defense counsel argued that the
prosecutor’s statement referred to “a stalking incident that the aunt went to the
police station to talk to the police about a harassment, nothing more. It has nothing
to do with any intent to [commit] any sex act, or to any sex crime.” In response,
21
the State argued that “the essence of this stalking charge goes to prove the
relationship between the defendant and the complainant.” The trial court noted
that the stalking incident “shows [appellant’s] incredible focus on this one child
and his relationship with the child.” The trial court overruled appellant’s objection
to the statement and then denied his subsequent motion for mistrial.
The State’s opening statement shall inform the jury of “the nature of the
accusation and the facts which are expected to be proved by the State in support
thereof.” TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(3) (Vernon 2007); Ford v.
State, 444 S.W.3d 171, 197 (Tex. App.—San Antonio 2014, pet. filed) (“[T]he
State has a statutory right to present to the jury its accusations against the
defendant and the facts that support it . . . .”). When evidence is admissible, no
error occurs when the prosecution refers to that evidence during opening
statements. See Watts v. State, 630 S.W.2d 737, 738 (Tex. App.—Houston [1st
Dist.] 1982, no pet.) (stating that because complainant could permissibly testify to
identification of defendant in pre-trial photo array and line up, prosecution could
permissibly refer to such during opening statement).
Code of Criminal Procedure article 38.37, section 1(b) provides, in
aggravated sexual assault of a child cases:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including:
22
(1) the state of mind of the defendant and the child;
and
(2) the previous and subsequent relationship between
the defendant and the child.
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (Vernon Supp. 2014); see Jones v.
State, 119 S.W.3d 412, 420 (Tex. App.—Fort Worth 2003, no pet.) (holding
evidence of extraneous bad acts committed against indecency with child
complainant was admissible under article 38.37 to show states of mind and
previous and subsequent relationship between defendant and complainant); Hitt v.
State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref’d) (noting that, in
certain sexual abuse cases, article 38.37 supersedes Rules 402, 404, and 405).
Thus, under this section, the State may permissibly introduce testimony involving
the defendant’s extraneous bad acts when that evidence is relevant “to demonstrate
the unnatural attitude and relationship” between a defendant and his child victim.
See Sanders v. State, 255 S.W.3d 754, 759 (Tex. App.—Fort Worth 2008, pet.
ref’d); Jones, 119 S.W.3d at 420; see also Ernst v. State, 971 S.W.2d 698, 700
(Tex. App.—Austin 1998, no pet.) (“[W]e hold that the victim’s testimony of other
[extraneous] sexual conduct inflicted by appellant was relevant to show appellant’s
state of mind and the previous relationship between appellant and the victim.”).
Here, one of the State’s theories at trial was that appellant had an
inappropriate attachment to and fixation on C.G.J. During its case-in-chief, the
23
State elicited testimony from M.N. that after the abuse had occurred but before
C.G.J. made an outcry she filed a police report against appellant following her
discovery that appellant had been communicating with C.G.J. via cell phone. 7 This
extraneous evidence of appellant’s bad acts toward C.G.J. was admissible to
demonstrate the subsequent relationship between appellant and C.G.J. See TEX.
CODE CRIM. PROC. ANN. art. 38.37, § 1(b)(2); Sanders, 255 S.W.3d at 759; Jones,
119 S.W.3d at 420. Because this evidence was admissible, the trial court
permissibly allowed the State to refer to this evidence during its opening statement.
See TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(3); Ford, 444 S.W.3d at 197;
Watts, 630 S.W.2d at 738.
We hold that the trial court did not abuse its discretion in denying
appellant’s motion for mistrial on this basis.
C. Testimony That Appellant Sent Letter to C.G.J. While “In Prison”
During direct-examination of C.G.J., the State asked him whether appellant
had sent him letters. C.G.J. replied that he had. The State showed C.G.J. State’s
Exhibit 14 and asked him to identify it. C.G.J. responded, “Letters from him being
in prison.” Defense counsel objected, and the trial court instructed the jury to
disregard C.G.J.’s statement. The trial court then denied appellant’s motion for
mistrial. On appeal, appellant contends that this testimony violated his
7
We note that appellant does not challenge the admissibility of M.N.’s testimony
concerning the police report on appeal.
24
presumption of innocence and that the trial court erred in denying his motion for
mistrial.
Penal Code section 2.01 provides that “[a]ll persons are presumed to be
innocent” and “[t]he fact that [a person] has been arrested, confined, or indicted
for, or otherwise charged with, the offense gives rise to no inference of guilt at his
trial.” TEX. PENAL CODE ANN. § 2.01 (Vernon 2011); see also TEX. CODE CRIM.
PROC. ANN. art. 38.03 (Vernon Supp. 2014) (providing same). The “presumption
of innocence” is “an assignment of a burden of proof prior to trial based on the
substantive law requiring the State to prove guilt beyond a reasonable doubt.”
Madrid v. State, 595 S.W.2d 106, 110 (Tex. Crim. App. 1979); see also Rideau v.
State, 751 S.W.2d 248, 250 (Tex. App.—Beaumont 1988, no pet.) (“[T]he
presumption [of innocence] serves as a reminder to the jury of the state’s burden to
prove its case and as a caution that they are to consider nothing but the evidence in
passing upon the accused’s guilt.”). “When a jury is told of the presumption [of
innocence], it is told, in effect, to judge an accused’s guilt or innocence solely on
the basis of the evidence adduced at trial and not on the basis of suspicions that
may arise from the fact of his arrest, indictment, or custody.” Miles v. State, 204
S.W.3d 822, 825 (Tex. Crim. App. 2006).
As the State points out, the letter contained within Exhibit 14 was dated July
2007, and C.G.J. did not make his outcry in this case until 2011. Thus, C.G.J.
25
received the letter contained in Exhibit 14 while appellant was incarcerated on
another offense, not while appellant was incarcerated pending trial on the charged
offense. We therefore conclude that C.G.J.’s testimony that Exhibit 14 was a letter
from appellant sent while he was “in prison” does not implicate the presumption of
innocence. See id. (stating that purpose of presumption of innocence is to ensure
that jury makes its determination based on evidence presented at trial and not based
on fact that defendant has been arrested or indicted or held in custody); Madrid,
595 S.W.2d at 110 (stating that presumption of innocence is pre-trial assignment of
burden of proof requiring State to prove guilt beyond reasonable doubt).
To the extent that it was improper for C.G.J. to refer to appellant’s having
been incarcerated for a prior conviction, we note that, when defense counsel
objected to C.G.J.’s testimony, the trial court promptly instructed the jury to
disregard C.G.J.’s statement. The Court of Criminal Appeals has held that it is
“well-settled” that
testimony referring to or implying extraneous offenses can be
rendered harmless by an instruction to disregard by the trial judge,
unless it appears the evidence was so clearly calculated to inflame the
minds of the jury or is of such damning character as to suggest it
would be impossible to remove the harmful impression from the
jury’s mind.
Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Nobles v. State, 843
S.W.2d 503, 514 (Tex. Crim. App. 1992) (stating that “inadvertent references to
prior incarceration can be cured of prejudicial effect” and holding that trial court’s
26
“prompt and thorough instruction” to disregard witness’s reference to defendant
not wanting to go “back to prison” cured any error); Gardner v. State, 730 S.W.2d
675, 697 (Tex. Crim. App. 1987) (holding that while witness’s reference to
defendant’s prior incarceration was “undoubtedly inadmissible and prejudicial
testimony” that had no relevance to guilt-innocence phase of trial, “that bare fact,
unembellished, was not so inflammatory as to undermine the efficacy of the trial
court’s instruction to disregard it”).
Here, C.G.J. identified State’s Exhibit 14 as “[l]etters from [appellant] being
in prison.” The trial court immediately sustained defense counsel’s objection and
instructed the jury to disregard C.G.J.’s statement. C.G.J. made no further
references to receiving letters from appellant while he was incarcerated.
Moreover, because appellant later testified on his own behalf, his prior criminal
history, and the fact that he had been previously incarcerated, became relevant and
admissible to impeach his credibility. Thus, we conclude that the trial court’s
instruction to disregard cured any prejudice stemming from C.G.J.’s “uninvited
and unembellished” statement. See Kemp, 846 S.W.2d at 308 (“We find the
uninvited and unembellished reference to appellant’s prior incarceration—although
inadmissible—was no[t] so inflammatory as to undermine the efficacy of the trial
court’s instruction to disregard.”). We hold that the trial court did not abuse its
discretion in denying appellant’s motion for mistrial on this basis.
27
We overrule appellant’s second and seventh issues.
Outcry Testimony
In his third issue, appellant contends that the trial court erred in allowing
some of the testimony by forensic interviewer Stephanie Jones because the
challenged statements exceeded the scope of the statutory outcry notice provided
by the State.
Code of Criminal Procedure article 38.072 provides a statutory exception to
the hearsay rule for outcry statements made by a child victim of a sexual offense.
TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2 (Vernon Supp. 2014); see Sanchez v.
State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011) (“When a defendant is charged
with certain offenses against a child under the age of 14 or a disabled individual,
Article 38.072 allows into evidence the complainant’s out-of-court statement so
long as that statement is a description of the offense and is offered into evidence by
the first adult the complainant told of the offense.”). For the outcry statement to be
admissible, article 38.072 requires that before the fourteenth day before the
proceeding the State must notify the defendant of its intention to offer the
statement, provide the defendant with the name of the witness through whom it
wishes to offer the statement, and provide the defendant with “a written summary
of the statement.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b); Sanchez, 354
S.W.3d at 484 (“The State must provide a summary of the outcry statement that
28
will be offered into evidence.”). The trial court has broad discretion in determining
the admissibility of outcry testimony. Garcia v. State, 792 S.W.2d 88, 92 (Tex.
Crim. App. 1990); Smith v. State, 131 S.W.3d 928, 931 (Tex. App.—Eastland
2004, pet. ref’d).
The purpose of the article 38.072 notice requirement is to prevent the
defendant from being surprised by the introduction of the outcry testimony. Gay v.
State, 981 S.W.2d 864, 866 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). The
written summary must give the defendant adequate notice of the content and scope
of the outcry testimony. Id. The outcry statement must “describe the alleged
offense in some discernible manner,” and the statement is sufficient if it
“reasonably informs the defendant of the essential facts related in the outcry
statement.” Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.—Texarkana 2002,
pet. ref’d). A trial court does not err in admitting hearsay statements not contained
in the outcry notice if those statements describe “the circumstances leading up to
the outcry statement and its details.” Gottlich v. State, 822 S.W.2d 734, 737 (Tex.
App.—Fort Worth 1992, pet. ref’d), disapproved of on other grounds by Curry v.
State, 861 S.W.2d 479 (Tex. App.—Fort Worth 1993, pet. ref’d). Any error in the
substance of an outcry notice is harmless when there is no indication that the
defendant was surprised by the outcry testimony. Owens v. State, 381 S.W.3d 696,
704 (Tex. App.—Texarkana 2012, no pet.).
29
Here, before trial, the State provided appellant with a notice of its “Intention
to Use Child Abuse Victim’s Hearsay Statement.” This notice included the
following summary with regard to what C.G.J. told Stephanie Jones:
On or about May 9, 2011, the complainant told Stephanie Jones, that
the defendant had befriended him and treated him like a son. The
defendant had him stand in front of a window and the defendant
performed oral sex on the complainant. The complainant further
stated that the defendant took advantage of him and raped him. The
defendant stated that he had already seen the complainant’s penis so
he should show it to him. The complainant told Stephanie Jones that
the defendant touched his penis. The complainant also stated that if
he did sexual favors for the defendant he would buy him things. The
complainant stated that he performed oral sex on the defendant. Also,
the defendant would masturbate while looking at the complainant and
tell the complainant “he had a nice ass.” Also, the defendant placed
his penis inside the complainant’s anus and licked his anus.
At trial, before Jones testified, defense counsel made the following
objection: “My complaint is that according to the [statutory] notice, that some of
those statements are not outcry statements pursuant to 38.071 about a crime or a
wrong describing any sex acts.” The trial court did not rule on this objection at the
time, other than to state that “adequate notice was given under the outcry statute.
During Jones’s testimony, the State asked her about the forensic interview
she conducted with C.G.J., and the following exchange occurred:
[The State]: Did [C.G.J.] describe the abuse?
[Jones]: Yes.
[The State]: What did he say?
30
[Jones]: The first time it happened, he was at an
apartment where he—
[Defense counsel]: Objection, Your Honor. This is outside the
scope of the actual statement that was—
outcry statement we discussed earlier.
The Court: I don’t recall exactly what you said about
that, just other statement. May I see the
notice? Thank you. Your objection is
overruled.
Jones then testified, in detail and without further objection, concerning C.G.J.’s
outcry statement to her in the forensic interview. Defense counsel did not request a
running objection on Jones’s testimony regarding C.G.J.’s statements made during
the forensic interview.
Because appellant did not request a running objection and did not object to
any further testimony from Jones concerning what C.G.J. told her in the forensic
interview, appellant did not preserve any error with regard to whether these
statements exceeded the scope of the outcry notice. See Davidson, 80 S.W.3d at
138 (“Davidson did not renew his objection, and he had not requested a running
objection; therefore, Davidson did not preserve error as to this further testimony.”).
Thus, the sole question on appeal is whether the trial court erred in allowing Jones
to testify that C.G.J. told her that the first instance of abuse occurred in an
apartment. This statement does not describe any act of abuse in particular; instead,
it is a contextual statement that describes the circumstances surrounding the
charged conduct. We conclude the objected-to statement describes “the
31
circumstances leading up to the outcry statement and its details,” and therefore the
trial court did not err by overruling appellant’s objection to this testimony. See
Gottlich, 822 S.W.2d at 737. We hold that the trial court did not abuse its
discretion in allowing Jones to testify as an outcry witness concerning C.G.J.’s
statements made during his forensic interview. 8
We overrule appellant’s third issue.
Testimony Beyond Scope of Witness’s Expertise
In his fourth issue, appellant contends that the trial court erred in allowing
Jones to testify that C.G.J.’s responses during the forensic interview were
consistent with a child who had been sexually abused because this testimony was
speculative and beyond Jones’s expertise.
Rule of Evidence 702 provides that “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion or
otherwise.” TEX. R. EVID. 702; Bryant v. State, 340 S.W.3d 1, 7 (Tex. App.—
8
We also note that, although the trial court did not admit the video of the forensic
interview into evidence, the State represented that defense counsel had had the
opportunity to view the video before trial. Moreover, appellant did not argue,
either at trial or on appeal, that he was surprised by Jones’s testimony. See Owens
v. State, 381 S.W.3d 696, 704 (Tex. App.—Texarkana 2012, no pet.) (holding that
any error in substance of outcry notice is harmless when there is no indication that
defendant was surprised by outcry testimony).
32
Houston [1st Dist.] 2010, pet. ref’d). “To be qualified to give expert opinion
testimony, the witness ‘must possess some additional knowledge or expertise
beyond that possessed by the average person, but the gap need not necessarily be
monumental.’” Bryant, 340 S.W.3d at 7 (quoting Davis v. State, 313 S.W.3d 317,
350 (Tex. Crim. App. 2010)).
We review a trial court’s ruling regarding expert qualifications and the
admissibility of expert testimony for an abuse of discretion. Lagrone v. State, 942
S.W.2d 602, 616 (Tex. Crim. App. 1997). A trial court abuses its discretion only
when its decision was “so clearly wrong as to lie outside that zone within which
reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.
Crim. App. 1992); see Hernandez v. State, 53 S.W.3d 742, 750 (Tex. App.—
Houston [1st Dist.] 2001, pet. ref’d) (“A reviewing court cannot conclude that a
trial court abused its discretion if, in the same circumstances, it would have ruled
differently or if the trial court committed a mere error in judgment.”).
In Hernandez, this Court recognized that a witness’s field of expertise,
which concerned the “dynamics and common characteristics of a sexually abused
child,” was “certainly legitimate.” 53 S.W.3d at 750–51. We noted that the
expert, who was the executive director of the Advocacy Center for Children in
Galveston County, based her opinions on her “extensive experience observing
children in thousands of cases.” Id. We also stated, “Due to her superior
33
knowledge concerning the behavior of children who have suffered sexual abuse,
‘Child Abuse Accommodation Syndrome’ and the common characteristics and
dynamics of sexually abused children are matters within the scope of her
expertise.” Id. at 751; see also Bryant, 340 S.W.3d at 9–10 (holding that police
investigator was qualified as expert to testify concerning concept of grooming);
Reynolds v. State, 227 S.W.3d 355, 372 (Tex. App.—Texarkana 2007, no pet.)
(noting that witness was licensed professional counselor, licensed marriage and
family therapist, was trained in forensic interviewing, and had been director of
Northeast Texas Child Advocacy Center, and holding that witness’s testimony that
she had not observed anything in complainant’s behavior to indicate coaching and
her testimony concerning delayed-outcry phenomenon was “within the scope of
her field of expertise”). This Court has also previously held that an expert in the
field of child sexual abuse “can testify to background patterns found in exploited
children and can offer opinions of whether the complainant’s statements
demonstrate a pattern consistent with other exploited children, but cannot offer
expert opinions of the child’s truthfulness.” 9 Dennis v. State, 178 S.W.3d 172, 182
9
We note that the Court of Criminal Appeals has drawn a distinction between
expert testimony that a particular child’s behavior is consistent with the general
behavior of children who have been sexually abused and testimony that is a direct
opinion on the truthfulness of a particular child. See Yount v. State, 872 S.W.2d
706, 708–09 (Tex. Crim. App. 1993). The Court of Criminal Appeals has held,
“An expert who testifies that a class of persons to which the victim belongs is
truthful is essentially telling the jury that they can believe the victim in the instant
34
(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Duckett v. State, 797
S.W.2d 906, 915–17 (Tex. Crim. App. 1990), disapproved of on other grounds by
Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993)).
Here, on direct examination, the State asked Jones, “Was [C.G.J.’s] response
consistent with a child that had been sexually abused?” Defense counsel objected,
stating, “Objection, calls for speculation. And she is not an expert with respect to
making that evaluation.” The trial court did not rule on this objection but instead
told the State, “You will need to qualify her.”
The State asked Jones how many forensic interviews she had conducted.
Jones responded that she did not know the exact number, but that she had
conducted over 1500 in eighteen months at the CAC. She agreed with the
prosecutor, based on her training and experience, that there are times when a child
won’t disclose what happened, when a child does not seem to understand the
difference between the truth and a lie, when a child gives answers that are
inconsistent with someone who has been sexually abused, and when a child gives
answers that are consistent with someone who has been sexually abused. Jones
case as well. This is not ‘expert’ testimony of the kind which will assist the jury
under Rule 702.” Id. at 711. Here, Jones did not testify that she believed that
C.G.J. was being truthful or that alleged child victims of sexual assault generally
tell the truth. Instead, she testified that C.G.J.’s responses and behavior were
consistent with the responses and behavior of children who have been sexually
abused. This testimony is permissible expert testimony. See Dennis v. State, 178
S.W.3d 172, 182 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
35
also testified, earlier in her testimony, that she had a master’s degree in social
work, that she had “training in forensic interviewing as well as domestic violence
and trauma,” and that, before becoming a forensic interviewer, she had worked as
an investigator for Child Protective Services. When the State again asked Jones
whether C.G.J.’s responses during his forensic interview were consistent with a
child who had been sexually abused, defense counsel again objected that Jones was
“not qualified to make this assessment,” that it is “out of the scope of her training,”
and that conducting 1500 forensic interviews in eighteen months “doesn’t make
her an expert with respect to making that particular evaluation.” The trial court
overruled the objection.
Jones testified that she had a master’s degree in social work, that she had
worked as an investigator for Child Protective Services before becoming a forensic
interviewer, that she had had training as a forensic interviewer, and that she had
conducted at least 1500 forensic interviews at the CAC in the eighteen months
before trial. The trial court reasonably could have concluded that, as a result of her
experience, training, and education, Jones had sufficient background in the field of
forensic interviewing such that she could provide expert testimony concerning
whether C.G.J.’s responses during his forensic interview were consistent with
children who have been sexually abused. See TEX. R. EVID. 702; Bryant, 340
S.W.3d at 7 (noting that evaluation of expert’s qualifications requires trial court to
36
determine whether witness has “a sufficient background in a particular field”). We
hold that the trial court did not abuse its discretion in determining that Jones was
qualified to present expert testimony.
We overrule appellant’s fourth issue.
Admission of Hearsay Testimony
In his fifth issue, appellant contends that the trial court erroneously allowed
A.G. to testify that she became suspicious of appellant after having a conversation
with M.N. about text messages from appellant that M.N. had seen on C.G.J.’s cell
phone because this testimony constituted inadmissible hearsay. In his sixth issue,
appellant contends that the trial court erroneously allowed M.N. to testify
concerning the content of the text messages.
A. Standard of Review
We review a trial court’s decision to admit evidence for an abuse of
discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing
Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). We will not disturb
a trial court’s evidentiary ruling if it is correct on any theory of law applicable to
that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
B. A.G.’s Testimony Concerning Her Suspicions of Appellant
Generally, the hearsay rule excludes any out-of-court statements offered by a
party at trial to prove the truth of the matter asserted. See TEX. R. EVID. 801(d)
37
(defining hearsay); TEX. R. EVID. 802 (“Hearsay is not admissible except as
provided by statute or these rules or by other rules prescribed pursuant to statutory
authority.”). Texas Rule of Evidence 801 defines “matter asserted” as including
“any matter explicitly asserted, and any matter implied by a statement, if the
probative value of the statement as offered flows from declarant’s belief as to the
matter.” TEX. R. EVID. 801(c). “[A]n out-of-court ‘statement’ need not be directly
quoted in order to run afoul of the hearsay rules.” Head v. State, 4 S.W.3d 258,
261 (Tex. Crim. App. 1999).
Appellant relies upon the Court of Criminal Appeals’ opinion in Schaffer v.
State, 777 S.W.2d 111 (Tex. Crim. App. 1989), for the proposition that the State’s
question to A.G. concerning whether she ever became suspicious of appellant’s
interactions with C.G.J. constituted backdoor hearsay. Specifically, appellant
contends that, through this questioning, the State was attempting to place the
content of the conversation between A.G. and M.N. before the jury.
In Schaffer, the Court of Criminal Appeals held,
[W]here there is an inescapable conclusion that a piece of evidence is
being offered to prove statements made outside the courtroom, a party
may not circumvent the hearsay prohibition through artful questioning
designed to elicit hearsay indirectly. In short, “statement” as defined
in [the predecessor to Rule 801(c)] necessarily includes proof of the
statement whether the proof is direct or indirect.
777 S.W.2d at 114 (emphasis in original). The court then noted that the State’s
“sole intent” in pursuing the particular line of questioning of a police officer,
38
which concerned whether another officer confirmed that the defendant was a police
informant, was “to convey to the jury that [Officer] Seals had told [Officer]
Segovia [the testifying witness] that appellant was not an informant.” Id. The
Court of Criminal Appeals later held, in Head, that the issue of “[w]hether the
disputed testimony violates the hearsay prohibition necessarily turns on how
strongly the content of the out-of-court statement can be inferred from the
context.” 4 S.W.3d at 261.
Here, A.G. testified that appellant had spent time with C.G.J. and that she
approved of this because C.G.J. needed “a good role model in his life.” Outside
the presence of the jury, the State informed the trial court of its intent to ask A.G.
whether her opinion of appellant ever changed and stated that A.G. would testify
that she became suspicious of appellant after she had a conversation with M.N., in
which M.N. told her of text messages from appellant that she had seen on C.G.J.’s
phone. Defense counsel objected to this proposed testimony as constituting third-
party hearsay. The trial court informed the State that it could ask A.G. whether her
attitude toward appellant changed, what caused that attitude change, that A.G.
could respond, “[c]onversations I had with my sister and her husband,” and then
the State could ask about A.G.’s next interaction with appellant. The court
clarified that the State would not be allowed to ask A.G. about what M.N. had said
to her, and it overruled appellant’s hearsay objection.
39
The State later asked, “[D]id you ever become suspicious of the defendant’s
interactions with [C.G.J.]?” A.G. responded, “I really became suspicious after a
conversation I had with my sister. . . . I had a conversation with my brother-in-law
and my sister; and it made me very, very suspicious.” The State then asked A.G.
about her next interaction with appellant, during which he was very emotional,
apologized to A.G., and told her “that he loved my son and that he just wanted to
see him.” At the time A.G. testified, M.N. had not yet testified.
A.G. thus testified only that she had a conversation with her sister and
brother-in-law that made her suspicious of appellant. She did not reference the fact
that M.N. told her about text messages that she had seen from appellant to C.G.J.
Furthermore, A.G. testified before M.N. testified about the content of the text
messages and about her own suspicions of appellant, and A.G. also testified before
both C.G.J. and Stephanie Jones testified concerning appellant’s sexual abuse of
C.G.J.
The trial court therefore could have reasonably concluded that A.G.’s
testimony “did not lead to any inescapable conclusions as to the substance of the
out-of-court statements.” See id. at 262. A.G.’s testimony did not reveal the
substance of what her sister had told her, and no other evidence introduced as of
that point in the trial indicated the substance of A.G.’s conversation with M.N..
See id. At most, the jury may have been able to infer that M.N. told A.G.
40
something that made her think that appellant had an inappropriate relationship with
C.G.J. See id. (“The trial court could have reasonably determined that this sort of
inferential leap did not provide the requisite degree of certainty ‘that the State’s
sole intent in pursuing this line of questioning was to convey to the jury’ the
contents of the out-of-court statements.”) (emphasis in original) (quoting Schaffer,
777 S.W.2d at 114); see also Gurka v. State, 82 S.W.3d 416, 421 (Tex. App.—
Austin 2002, pet. ref’d) (“[The trial court’s] discretion is not to be disturbed unless
it is evident from the record that the sole intent in introducing the evidence was to
prove the contents of an out-of-court statement.”).
The trial court could have reasonably concluded, based on the facts of this
case, that A.G.’s testimony “did not leave the jury with the inescapable
conclusion” that M.N. was actually the one testifying through A.G. See McCreary
v. State, 194 S.W.3d 517, 521–22 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(“The major problem in Schaffer and Burks [v. State, 876 S.W.2d 877 (Tex. Crim.
App. 1994)] was that the prosecutor’s questioning left the jury with the
‘inescapable conclusion’ that . . . someone other than the declarant was testifying
through the witness on the stand.”). We hold that the trial court did not abuse its
discretion in allowing A.G.’s testimony.
41
C. M.N.’s Testimony Concerning Content of Text Messages
The State sought to introduce the content of text messages that M.N. saw on
a phone given to C.G.J. by appellant. 10 Defense counsel objected to this testimony
on the basis that the text messages were not sufficiently authenticated and that they
constituted inadmissible hearsay. The trial court found “that there is sufficient
authentication” and that the text messages constituted an admission by a party
opponent and therefore did not fall within the definition of hearsay.
Rule 801(e) provides that an admission by a party opponent, that is, a
statement that is offered against a party and is “the party’s own statement,” does
not constitute hearsay. See TEX. R. EVID. 801(e)(2)(A). Authentication is a
condition precedent to admissibility and is satisfied “by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” TEX. R.
EVID. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). In
determining authenticity issues, “The preliminary question for the trial court to
decide is simply whether the proponent of the evidence has supplied facts that are
sufficient to support a reasonable jury determination that the evidence he has
proffered is authentic.” Tienda, 358 S.W.3d at 638. One of the ways in which
10
After M.N. saw the text messages and confronted appellant about them, C.G.J.
deleted the messages at appellant’s direction. Thus, the text messages themselves
were not introduced into evidence.
42
evidence may be authenticated is by testimony from a witness with knowledge that
“a matter is what it is claimed to be.” TEX. R. EVID. 901(b)(1).
Outside the presence of the jury, M.N. testified that, while he lived with her,
C.G.J. had a cell phone that he received as a gift from appellant. She testified that
C.G.J. referred to appellant as “Godfather,” that C.G.J.’s cell phone had the name
“Godfather” associated with appellant, and that the phone would state “Godfather”
when C.G.J. received text messages from appellant. M.N. stated that C.G.J. did
not refer to anyone else as “Godfather.” She also testified that she saw several text
messages on C.G.J.’s phone from “Godfather” that said “Why haven’t you called
me?,” “I miss you,” “I can’t live without you,” and “Why are you doing this to
me?” M.N. testified that she then confronted appellant about the text messages and
that he did not deny sending them. Later that night, she asked C.G.J. for his phone,
but he had already deleted the text messages at appellant’s direction.
We conclude that M.N.’s testimony is sufficient to support a reasonable
jury’s determination that the text messages are what the State claims them to be,
that is, text messages from appellant to C.G.J. See TEX. R. EVID. 901(a); Tienda,
358 S.W.3d at 638. We hold that the trial court did not abuse its discretion in
holding that the text messages were authentic and in allowing M.N. to testify
concerning the content of the messages. See Tienda, 358 S.W.3d at 638 (“If the
trial court’s ruling that a jury could reasonably find proffered evidence authentic is
43
at least ‘within the zone of reasonable disagreement,’ a reviewing court should not
interfere.”) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991)).
Because the text messages at issue here and offered against appellant are his
own statements, these messages constitute admissions by a party opponent and
therefore do not fall within the definition of hearsay statements. TEX. R. EVID.
801(e)(2)(A); see also Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim. App. 1999) (“A
statement qualifies as an admission by party opponent if it is offered against a
party and it is the party’s own statement.”). We therefore hold that the trial court
did not abuse its discretion in admitting into evidence M.N.’s testimony concerning
the content of the text messages.
We overrule appellant’s fifth and sixth issues.
Admission of Extraneous Offense Evidence
In his eighth issue, appellant contends that the trial court erred in overruling
his motion to testify free of impeachment by prior criminal offenses because the
probative value of the convictions did not outweigh their prejudicial effect. In his
ninth issue, appellant contends that the trial court erred in allowing the State to
impeach him with a prior conviction that was more than ten years old. In his tenth
and eleventh issues, appellant contends the trial court erred in allowing the State to
44
impeach him with two misdemeanor convictions for offenses that did not constitute
crimes involving moral turpitude. We consider these issues together.
A. Standard of Review
The trial court has “wide discretion” to decide whether to admit evidence of
a defendant’s prior convictions. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim.
App. 1992). We therefore reverse this decision on appeal only upon a showing of
a clear abuse of discretion. Id.; Davis v. State, 259 S.W.3d 778, 780 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d). A trial court abuses its wide discretion when
its decision to admit a prior conviction lies outside the zone of reasonable
disagreement. Davis, 259 S.W.3d at 780 (quoting Theus, 845 S.W.2d at 881). We
uphold a trial court’s ruling if it is reasonably supported by the record and correct
on any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590
(Tex. Crim. App. 2006); see also De La Paz, 279 S.W.3d at 344 (“[I]f the trial
court’s evidentiary ruling is correct on any theory of law applicable to that ruling,
it will not be disturbed even if the trial judge gave the wrong reason for his right
ruling.”).
B. Admissibility of Prior Convictions
Rule of Evidence 609 provides that evidence of a witness’s prior conviction
shall be admitted as impeachment evidence if the crime was a felony or a
misdemeanor involving moral turpitude, and the court determines that the
45
probative value of admitting the prior conviction outweighs its prejudicial effect.
TEX. R. EVID. 609(a); Davis, 259 S.W.3d at 780–81. Such evidence is not
admissible if more than ten years have elapsed since the date of conviction or the
release of the witness from confinement, whichever is later, unless the trial court
determines, in the interests of justice, that the probative value of the prior
conviction supported by specific facts and circumstances substantially outweighs
its prejudicial effect. TEX. R. EVID. 609(b); Davis, 259 S.W.3d at 781. However,
“subsequent convictions for felonies or misdemeanors involving moral turpitude
may remove any taint of remoteness from prior convictions.” Davis, 259 S.W.3d
at 781; Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d) (“A misdemeanor theft conviction is a crime involving moral
turpitude, and, therefore, it can be ‘tacked onto’ remote convictions and cause them
to be treated as not remote under Rule 609(a).”); Hernandez v. State, 976 S.W.2d
753, 755 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (“[T]he ‘tacking’ of the
intervening convictions causes a conviction older than 10 years to be treated as not
remote.”).
In Theus, the Court of Criminal Appeals set out a non-exclusive list of
factors that courts should consider when determining whether the probative value
of a prior conviction outweighs its prejudicial effect. 845 S.W.2d at 880; Davis,
259 S.W.3d at 782. These factors include: (1) the impeachment value of the prior
46
crime; (2) the temporal proximity of the past crime relative to the charged offense
and the witness’s subsequent criminal history; (3) the similarity between the past
crime and the charged offense; (4) the importance of the defendant’s testimony;
and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880; Davis,
259 S.W.3d at 782. The party seeking to introduce evidence of prior convictions
pursuant to Rule 609 bears the burden of demonstrating that the probative value of
the prior conviction outweighs its prejudicial effect. Theus, 845 S.W.2d at 880;
Davis, 259 S.W.3d at 782.
1. Appellant’s 1992 Aggravated Assault Conviction
In his ninth issue, appellant contends that the trial court erred in allowing the
State to impeach him with a 1992 conviction for aggravated assault because the
conviction was more than ten years old at the time of trial. Appellant argued that
the trial court impermissibly used a 2006 misdemeanor conviction that did not
involve moral turpitude to “tack onto” the 1992 conviction and bring it within the
ten-year period of Rule 609(a).
Under the “tacking” doctrine, a subsequent conviction for a felony or a
misdemeanor involving moral turpitude “may remove any taint of remoteness from
prior convictions.” Davis, 259 S.W.3d at 781; see also Lucas v. State, 791 S.W.2d
35, 51 (Tex. Crim. App. 1989) (“Evidence of the lack of reformation or subsequent
felony and certain misdemeanor convictions may then cause the prior conviction to
47
fall outside the general rule and not be subject to the objection of remoteness.”)
(emphasis in original). Courts then analyze the prior conviction under Rule 609(a),
which requires only that the probative value of the conviction outweigh its
prejudicial effect, as opposed to Rule 609(b), which requires the probative value of
the prior conviction to substantially outweigh its prejudicial effect. See TEX. R.
EVID. 609(a)–(b).
Appellant argues that the trial court could not permissibly use his 2006
misdemeanor assault conviction to “tack onto” his 1992 aggravated assault
conviction and bring that conviction within Rule 609(a)’s ten-year period. In
making his argument that the 1992 conviction must be treated as remote and thus
evaluated under Rule 609(b)’s “substantially outweighs” standard, however,
appellant ignores his 2009 felony conviction for possession of a controlled
substance. Even if the trial court erred in using the 2006 misdemeanor assault
conviction for tacking purposes, the 2009 felony conviction can be “tacked onto”
the otherwise-remote 1992 conviction and can cause the 1992 conviction to be
treated as not remote and analyzed under Rule 609(a). See Davis, 259 S.W.3d at
781; Rodriguez, 129 S.W.3d at 559; see also De La Paz, 279 S.W.3d at 344 (“[I]f
the trial court’s evidentiary ruling is correct on any theory of law applicable to that
ruling, it will not be disturbed even if the trial judge gave the wrong reason for his
right ruling.”). We therefore use Rule 609(a)’s standard of whether the probative
48
value of the 1992 conviction outweighed its prejudicial effect to determine whether
the trial court abused its discretion in admitting evidence of this prior conviction.
See Hernandez, 976 S.W.2d at 755 (“[T]he 609(a) standard is appropriate because
the ‘tacking’ of the intervening convictions causes a conviction older than 10 years
to be treated as not remote.”).
With regard to the first Theus factor, the impeachment value of the prior
crime, we note that the impeachment value of prior offenses involving deception or
moral turpitude is greater than for offenses involving violence, which are likely to
have more a greater prejudicial effect. Theus, 845 S.W.2d at 881; Davis, 259
S.W.3d at 782. Appellant’s 1992 conviction for aggravated assault involves
violence, not deception, and, thus, this factor weighs against admission of the prior
offense.
The second factor, temporal proximity and subsequent criminal history,
“favor[s] admission if the past crime is recent and if the witness has demonstrated
a propensity for running afoul of the law.” Theus, 845 S.W.2d at 881; Davis, 259
S.W.3d at 782. Here, the aggravated assault conviction occurred in 1992, more
than ten years before the charged offense and twenty years before trial, so this past
crime is not recent; however, appellant had three intervening convictions in
between 1992 and the time of trial in 2013, thus demonstrating a “propensity for
49
running afoul of the law.” See Theus, 845 S.W.2d at 881. This factor therefore
weighs in favor of admission.
Regarding the third Theus factor, similarity between the past offense and the
current charged offense “militates against admissibility, whereas dissimilarity
between the past offense and the current offense favors admissibility.” Davis, 259
S.W.3d at 783. “The rationale behind this is that the admission for impeachment
purposes of a crime similar to the crime charged presents a situation where the jury
would convict on the perception of a past pattern of conduct, instead of on the facts
of the charged offense.” Theus, 845 S.W.2d at 881. Here, the 1992 offense of
aggravated assault is not similar to the charged offenses of aggravated sexual
assault of a child. Thus, this factor also weighs in favor of admission of the 1992
conviction.
The fourth and fifth Theus factors are related “because both depend on the
nature of a defendant’s defense and the means available to him of proving that
defense.” Id. In situations in which a defendant presents an alibi defense and can
call other witnesses, his credibility is not likely to be a critical issue. Id. When,
however, the case involves the testimony of only the defendant and the State’s
witnesses, the importance of the defendant’s credibility and his testimony
escalates, and as the importance of his credibility increases, so does the need to
allow the State an opportunity to impeach the defendant’s credibility. Id.; Davis,
50
259 S.W.3d at 784. Here, appellant called a few other witnesses in his defense,
primarily to testify that appellant did not have an inappropriate relationship with
them when they were young boys and that they never saw any indication that
appellant and C.G.J. had an inappropriate relationship. Appellant and C.G.J. were
the only direct eyewitnesses to the alleged acts of sexual abuse, and, therefore,
both appellant’s credibility and C.G.J.’s credibility were critical. Because
appellant’s credibility was of great importance in this case, the State had a
corresponding need to be able to impeach his credibility. See Theus, 845 S.W.2d
at 881; Davis, 259 S.W.3d at 784 (“[T]he complainant and appellant provided the
only direct eyewitness testimony concerning the assault. Moreover, the credibility
of the complainant and appellant were critical issues because the complainant and
appellant each testified that the other was the aggressor in the incident.”). We
therefore conclude that the fourth and fifth Theus factors favor admission of the
past conviction.
We conclude that all but one of the Theus factors favors admission of
appellant’s 1992 conviction for aggravated assault. We therefore hold that the
probative value of this conviction outweighs its prejudicial effect and that the trial
court did not abuse its discretion in admitting evidence of this conviction. See
Davis, 259 S.W.3d at 784.
51
2. Appellant’s Two Misdemeanor Convictions
In his tenth and eleventh issues, appellant contends that the trial court erred
in allowing the State to impeach him with a 2006 misdemeanor conviction for
assault on a family member and a 2004 misdemeanor conviction for harboring a
runaway because neither offense involved moral turpitude.
Courts have defined “moral turpitude” as encompassing crimes that involve:
(1) “dishonesty, fraud, deceit, misrepresentation, or deliberate
violence”;
(2) matters of “personal morality”;
(3) conduct committed “knowingly contrary to justice, honesty,
principle, or good morals”;
(4) “baseness, vileness, or depravity”;
(5) conduct “immoral in itself, regardless of whether it is
punishable by law,” in that the “doing of the act itself, and not
its prohibition by statute, fixes the moral turpitude”; or
(6) “immoral conduct” that is “willful, flagrant, or shameless, and
which shows a moral indifference to the opinion of the good
and respectable members of the community.”
Escobedo v. State, 202 S.W.3d 844, 848 (Tex. App.—Waco 2006, pet. ref’d)
(citing In re G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995,
no writ), and Turton v. State Bar of Tex., 775 S.W.2d 712, 716 (Tex. App.—San
Antonio 1989, writ denied)); see also Hardeman v. State, 868 S.W.2d 404, 405
(Tex. App.—Austin 1993, pet. dism’d) (“‘Moral turpitude’ has been defined as
52
‘[t]he quality of a crime involving grave infringement of the moral sentiment of the
community as distinguished from statutory mala prohibita.’”).
Courts have held that, generally, misdemeanor assaultive offenses that do
not involve female victims are not crimes of moral turpitude and that misdemeanor
assaultive offenses that do involve female victims are crimes of moral turpitude.
See Hardeman, 868 S.W.2d at 405–07 (discussing progression of case law). In
holding that an assault by a man against a woman is a crime involving moral
turpitude, the Austin Court of Appeals stated that this offense is “generally
regarded by the members of our society as more morally culpable than some other
types of assaultive crimes.” Id. at 407. Here, appellant had a 2006 misdemeanor
conviction for assault on a family member. The record indicates that the
complainant for that offense was a minor child. We conclude that, as with assaults
committed against women, an assault committed against a child is “generally
regarded by the members of our society as more morally culpable” and that this
offense involves conduct that is “knowingly contrary” to “good morals.” See
Hardeman, 868 S.W.2d at 407; see also Escobedo, 202 S.W.3d at 848 (defining
“moral turpitude” as involving conduct committed “knowingly contrary
to . . . good morals”). We conclude that, under the facts of this case, appellant’s
2006 conviction for misdemeanor assault on a family member constitutes a crime
53
involving moral turpitude and thus may be used for impeachment if its probative
value outweighs its prejudicial effect.
The 2006 conviction involves violence, rather than deception, and thus this
Theus factor weighs against admission of the conviction. See Theus, 845 S.W.2d
at 881; Davis, 259 S.W.3d at 782. The 2006 conviction occurred one year after the
charged offense and thus, along with appellant’s 2009 felony conviction,
demonstrates that he has a propensity for running afoul of the law. See Theus, 845
S.W.2d at 880 (stating that second factor to consider is “temporal proximity of the
past crime relative to the charged offense”); Davis, 259 S.W.3d at 782. This factor
therefore weighs in favor of admission. The 2006 offense for misdemeanor assault
on a family member is not similar to the charged offense of aggravated sexual
assault of a child, and thus this Theus factor also weighs in favor of admission. See
Theus, 845 S.W.2d at 881; Davis, 259 S.W.3d at 783. We have already held that
the fourth and fifth Theus factors weigh in favor of admission. Thus, as with
appellant’s 1992 aggravated assault conviction, four of the five Theus factors
weigh in favor of admission. We therefore conclude that the trial court did not
abuse its discretion in determining that the probative value of appellant’s 2006
conviction for assault on a family member outweighed its prejudicial effect. See
Davis, 259 S.W.3d at 784.
54
With regard to appellant’s 2004 misdemeanor conviction for harboring a
runaway child, we assume, without deciding, that this offense did not constitute a
crime involving moral turpitude and thus the trial court erred in allowing the State
to impeach appellant with this conviction. We therefore turn to whether this
decision constituted reversible error.
Error in the admission of evidence is non-constitutional error subject to a
harm analysis under Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P.
44.2(b); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.]
2008, no pet.). We disregard any non-constitutional error that does not affect a
defendant’s substantial rights by having a “substantial and injurious effect or
influence in determining the jury’s verdict.” Jabari, 273 S.W.3d at 754 (citing
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)); see TEX. R. APP. P.
44.2(b). We should not reverse a conviction for non-constitutional error if, after
examining the record as whole, we have “fair assurance that the error did not
influence the jury, or had but a slight effect.” Jabari, 273 S.W.3d at 754 (citing
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); Hankins v. State,
180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref’d) (“[W]e consider the
entire record, including testimony, physical evidence, the nature of the evidence
supporting the verdict, the character of the alleged error, the State’s theory, the
defensive theory, and closing arguments.”).
55
Here, C.G.J. testified that appellant sexually assaulted him on numerous
occasions. Stephanie Jones testified that C.G.J. disclosed several acts of sexual
abuse during his forensic interview. Appellant, on the other hand, denied the
allegations and testified that he did not have any sexual contact with C.G.J.
Appellant called three witnesses who had also lived at the Embers Apartments and
who testified that appellant did not have an inappropriate relationship with them
and that they never noticed anything inappropriate about appellant’s relationship
with C.G.J.
At the time the State asked appellant about his 2004 conviction for harboring
a runaway child, defense counsel asked for a limiting instruction. The trial court
instructed the jury: “[T]he information that you just heard about the defendant’s
convictions may only be considered in determining his credibility as a witness and
for no other purpose.” The trial court also included the following instruction in the
written charge:
You are instructed that certain evidence was admitted before you in
regard to the defendant’s having been charged and convicted of an
offense or offenses other than the one for which he is now on trial.
Such evidence cannot be considered by you against the defendant as
any evidence of guilt in this case. Said evidence was admitted before
you for the purpose of aiding you, if it does aid you, in passing upon
the weight you will give his testimony, and you will not consider the
same for any other purpose.
The State mentioned the 2004 harboring a runaway child conviction on three
occasions: (1) the prosecutor asked appellant about his four prior convictions;
56
(2) the prosecutor asked whether I.G., who had testified in appellant’s favor, had
been the runaway child that appellant had harbored; and (3) the prosecutor
mentioned this offense when summarizing I.G.’s testimony supporting appellant
during closing argument. Aside from pointing out that I.G. was the child involved
in the harboring-a-runaway offense, the State did not elicit details about that
offense or otherwise emphasize it.
We conclude that, when considering the testimony, the nature of any error,
the trial court’s limiting instructions, and the lack of emphasis on the 2004
conviction during the State’s questioning of appellant and closing argument, we
have “fair assurance that the error,” if any, “did not influence the jury, or had but a
slight effect.” Jabari, 273 S.W.3d at 754. We hold that the trial court’s decision to
allow the State to impeach appellant with the 2004 conviction for harboring a
runaway child, even if improper, did not constitute reversible error.
We overrule appellant’s eighth, ninth, tenth, and eleventh issues. 11
11
We note that, aside from arguing in his eighth issue that the trial court erroneously
allowed the State to cross examine him about his prior convictions when the
record did not establish that the probative value of his convictions outweighed
their prejudicial effect, appellant does not raise any specific argument on appeal
for why his 2009 felony conviction for possession of a controlled substance was
inadmissible. He makes no effort to analyze the admissibility of this conviction
under Theus. As a drug conviction that did not involve deception, moral turpitude,
or violence, this conviction had a lower impeachment value, which weighs against
admission. See Denman v. State, 193 S.W.3d 129, 136 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d). This conviction occurred four years after the charged
offense and is not similar to the charged offense, and thus the second and third
Theus factors weigh in favor of admission. See Theus v. State, 845 S.W.2d 874,
57
Improper Jury Argument
In his twelfth issue, appellant contends that the trial court erroneously
overruled his objection to the prosecutor’s question during jury argument, “Now
has Defense counsel offered any evidence—anything to suggest why a 16 year old
boy would make this up?” Appellant argues that this statement improperly shifted
the burden of proof to appellant.
Jury argument is permissible if it falls within one of the following
categories: (1) summation of the evidence; (2) reasonable deduction from the
evidence; (3) answer to the argument of opposing counsel; and (4) plea for law
enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000);
Mims v. State, 434 S.W.3d 265, 275 (Tex. App.—Houston [1st Dist.] 2014, no
pet.). The parties have wide latitude in drawing inferences from the evidence, so
long as the inferences are reasonable, fair, legitimate, and offered in good faith.
Mims, 434 S.W.3d at 275 (citing Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
App. 1988)). When examining challenges to a jury argument, courts consider the
remark in the context in which it appears. Id. (citing Gaddis, 753 S.W.2d at 398).
881 (Tex. Crim. App. 1992); Davis v. State, 259 S.W.3d 778, 782–83 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d). We have already held that the fourth
and fifth Theus factors favor admission of appellant’s prior convictions. See
Theus, 845 S.W.2d at 881; Davis, 259 S.W.3d at 784. We therefore hold that the
trial court did not abuse its discretion in holding that the probative value of
appellant’s 2009 possession conviction outweighed its prejudicial effect.
58
Courts have held that, during jury argument, the State may comment on a
defendant’s failure to present evidence in his favor. See Jackson v. State, 17
S.W.3d 664, 674 (Tex. Crim. App. 2000) (“We have held that the prosecutor may
comment on the defendant’s failure to produce witnesses and evidence so long as
the remark does not fault the defendant for exercising his right not to testify.”);
Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) (“[I]f the language
can reasonably be construed to refer to appellant’s failure to produce evidence
other than his own testimony, the comment is not improper.”); Caron v. State, 162
S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“During jury
argument, the State may comment on appellant’s failure to present evidence in his
favor.”). Jury argument pointing out that the defendant has failed to present
evidence in his favor does not shift the burden of proof but instead summarizes the
state of the evidence and is a reasonable deduction from the evidence. See Caron,
162 S.W.3d at 618 (holding that prosecutor’s statement that “[i]f there is
something out there that is going to exonerate you, you want to make it known”
was permissible jury argument); see also Baines v. State, 401 S.W.3d 104, 109
(Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that prosecutor’s
statement that defendant “has the same subpoena power” and could have called
witnesses to testify in his defense was “a permissible remark about appellant’s
59
failure to produce evidence in his favor on his defense and did not shift the burden
of proof to appellant”).
Here, during closing argument, the prosecutor summarized C.G.J.’s outcry
to his mother, the police, and Jones. The prosecutor then stated, “Now, has
Defense counsel offered any evidence—anything to suggest why a 16-year-old boy
would make this up?” Appellant then objected “to any reference as to why. We
have no burden of proof.” The trial court overruled appellant’s objection.
The prosecutor’s statement was not such that the jury “would necessarily
and naturally take it as a comment on the defendant’s failure to testify.” 12 See
Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Baines, 401
S.W.3d at 108. Rather, it referred to the state of the evidence, reflecting that
appellant did not, for example, offer any witnesses to testify that C.G.J. had
motivation to get appellant in trouble. Thus, the language the prosecutor used “can
be reasonably construed as referring to a defendant’s failure to produce testimony
or evidence from sources other than himself.” Baines, 401 S.W.3d at 108. The
prosecutor’s statement here was a permissible remark on appellant’s failure to
produce evidence in his favor, and this statement did not shift the burden of proof
to appellant. See id. at 109; Caron, 162 S.W.3d at 618. We hold that the trial
court did not err in overruling appellant’s objection to improper jury argument.
12
We also note that, in this case, appellant testified on his own behalf.
60
We overrule appellant’s twelfth issue.
Decision to Cumulate Sentences
Finally, in his thirteenth issue, appellant contends that the trial court erred
when it ordered appellant’s sentences in cause numbers 1308988 and 1328806 to
run concurrently and the sentence in cause number 1328807 to be cumulated and to
begin after appellant finished serving his sentences for cause numbers 1308988 and
1328806. Appellant contends that the trial court’s decision to cumulate the
sentences violated his right to a jury trial.
Penal Code section 3.03(a) provides, “When the accused is found guilty of
more than one offense arising out of the same criminal episode prosecuted in a
single criminal action, a sentence for each offense for which he has been found
guilty shall be pronounced. Except as provided by Subsection (b), the sentences
shall run concurrently.” TEX. PENAL CODE ANN. § 3.03(a) (Vernon Supp. 2014).
Subsection (b) provides that when a defendant is found guilty of more than one
offense arising out of the same criminal episode, “the sentences may run
concurrently or consecutively if each sentence is for a conviction of” an offense
under Penal Code section 22.021 “committed against a victim younger than 17
years of age at the time of the commission of the offense regardless of whether the
accused is convicted of violations of the same section more than once or is
convicted of violations of more than one section.” Id. § 3.03(b)(2)(A); see also
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TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon Supp. 2014) (providing that
trial court has discretion to order that sentences run concurrently or be cumulated).
The Texas Legislature has “assigned the task of cumulating sentences
exclusively to the trial judge.” Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim.
App. 2008); Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006). In
some cases, the trial court is statutorily required to cumulate individual
punishments, and in other cases, the trial court’s decision to cumulate sentences is
discretionary. Beedy, 250 S.W.3d at 110. A trial court’s decision to cumulate is “a
normative, discretionary function that does not turn on discrete findings of fact.”
Id.; Barrow, 207 S.W.3d at 380. Thus, when a trial court lawfully exercises the
option to cumulate sentences, “that decision is unassailable on appeal.” Beedy, 250
S.W.3d at 110; Barrow, 207 S.W.3d at 381 (comparing trial court’s option to
cumulate sentences to jury’s “essentially unfettered” discretion in imposing
punishment within relevant statutory punishment range). “The Legislature has
charged the trial court with the determination of whether to cumulate, and the trial
court is free to make this determination so long as the individual sentences are not
elevated beyond their respective statutory maximums.” Barrow, 207 S.W.3d at
382.
In Barrow, the Court of Criminal Appeals also addressed whether a trial
court’s decision to cumulate sentences pursuant to section 3.03 violated the United
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States Supreme Court’s decision in Apprendi v. New Jersey, the defendant’s Sixth
Amendment right to a jury trial, and due process. The Court of Criminal Appeals
held that, under Apprendi, when a defendant elects to have the jury assess
punishment, “any discrete finding of fact that has the effect of increasing the
maximum punishment that can be assessed must be made by the jury, even if that
fact-finding occurs as part of the punishment determination.” Id. at 379; see also
Apprendi, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”). The court noted that Apprendi prohibits the trial court from
“unilaterally increasing individual sentences on the basis of facts that were not
resolved by the jury.” Barrow, 207 S.W.3d at 379 (emphasis in original). The
court stated that Apprendi does not “speak to a trial court’s authority to cumulate
sentences when that authority is provided by statute and is not based upon discrete
fact-finding, but is wholly discretionary.” Id.; Alameda v. State, 235 S.W.3d 218,
224 (Tex. Crim. App. 2007) (“[T]he Apprendi line of cases does not apply to a trial
court’s decision to cumulate jury-imposed sentences.”).
A jury convicted Barrow of two counts of sexual assault and assessed
punishment within the statutory punishment range for each conviction. Barrow,
207 S.W.3d at 379. The Court of Criminal Appeals reasoned that when the trial
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court decided to cumulate the sentences, the court “in no way altered either of the
individual sentences.” Id. (emphasis in original). The court’s decision to cumulate
the sentences “did not raise the ‘statutory maximum’ punishment for either
offense.” Id. The court further concluded that because cumulating sentences does
not “implicate discrete fact finding that affects the ‘statutory maximum’
punishment,” the decision to cumulate also “does not activate the Sixth
Amendment right to a jury determination.” Id. at 380. The court also analogized
the decision to cumulate to the jury’s—or the trial court’s, in a bench trial—broad
discretion to impose a punishment within the statutory punishment range and stated
that the decision to cumulate, although statutorily placed with the trial court instead
of the jury, is of an “essentially normative, non-fact-bound character.” Id. at 381.
The court held that it does “not believe that the legislatively endowed, normative
decision whether to cumulate sentences exceeds that level of discretion that the
Supreme Court has always recognized as consistent with due process.” Id. at 382.
Here, the jury found appellant guilty of three counts of aggravated sexual
assault of a child, and it assessed punishment at sixty-eight years’ confinement for
each count, an amount within the permissible statutory punishment range. See
TEX. PENAL CODE ANN. § 12.32(a) (Vernon 2011) (providing that punishment
range for first-degree felony is five to ninety-nine years’ confinement or
confinement for life); id. § 22.021(e) (providing that aggravated sexual assault of
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child is first-degree felony). Penal Code section 3.03(b)(2)(A) provides the
statutory authority for the trial court, within its discretion, to cumulate the
sentences assessed. See id. § 3.03(b)(2)(A). The trial court, in deciding to
cumulate the sentence for cause number 1328807, acted within its statutory
discretion. As this decision did not increase any of the three individual sentences
imposed, the trial court did not violate Apprendi, the Sixth Amendment right to a
jury trial, or due process. See Barrow, 207 S.W.3d at 379–82. We therefore hold
that the trial court did not abuse its discretion when it ordered the sentences in
cause numbers 1308988 and 1328806 to run concurrently and the sentence in cause
number 1328807 to be cumulated and to begin after appellant served the sentences
in cause numbers 1308988 and 1328806.
We overrule appellant’s thirteenth issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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