Opinion
No. 10-06-00332-CR
Opinion Delivered and filed February 27, 2008. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2005-1483-C. Reversed and remanded.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray dissenting).
MEMORANDUM OPINION
A jury convicted Hector Rene Galvez of two counts of aggravated sexual assault, and the trial court imposed an automatic sentence of life in prison. Galvez argues that the trial court erred by: (1) admitting extraneous-offense evidence; (2) denying Galvez's challenges for cause to three members of the venire panel; (3) excluding evidence of Galvez's voluntary statement; and (4) admitting evidence of the procedure used for compiling a photographic lineup. We reverse and remand.
EXTRANEOUS-OFFENSE EVIDENCE
In his first issue, Galvez contends that the trial court abused its discretion by admitting extraneous-offense evidence. The State argues that this evidence was admissible to rebut Galvez's defensive theory of frame-up. We review a trial court's admission of extraneous-offense evidence for abuse of discretion. See Page v. State, 213 S.W.3d 332, 337-38 (Tex.Crim.App. 2006).Factual Background
L.H. was walking home when a vehicle approached her. The driver pointed a gun with a laser beam at her and ordered her to enter the vehicle. He physically assaulted L.H. and forced her to perform oral, vaginal, and anal sex. At some point, he told L.H. that he was going to kill her and instructed her to exit the vehicle. L.H. began yelling at him and stated that he would have to kill her inside the vehicle. She was eventually forced out of the vehicle. She began knocking on doors to find help. A neighbor contacted the police. L.H. told the police that she was physically assaulted, but did not disclose the sexual assault. However, the next morning, she told a friend that she had been raped. A few days later, after experiencing some pain and bleeding, she disclosed the sexual assault. Dr. Johnny Howton examined L.H. and testified that she suffered from an anal fissure and internal hemorrhoids which could result from "physical trauma" and were not inconsistent with sexual assault. He testified that these problems could also be caused by others health issues, none of which L.H. exhibited at the time she was examined. L.H. also suffered from pelvic inflammatory disease, a sexually transmitted disease. L.H. had a history of drug abuse, mental illness, and various physical problems. Detective Christina Woodruff testified that a sexual assault examination was not performed because too much time had passed since the assault allegedly occurred. L.H. told Woodruff that her attacker had pierced nipples and a tattoo on his stomach. Woodruff prepared a photographic lineup from which L.H. identified Galvez as her attacker. L.H. also identified Galvez at trial. Galvez's girlfriend testified that she called Galvez on the night that L.H. was attacked and heard a woman yelling, "you're going to have to kill me." Galvez later provided multiple explanations for what happened that night, including that he had picked L.H. up as a prostitute and that they had only engaged in oral sex. She further testified that Galvez had once commented, "How do you rape a hooker?" L.H. admitted that she had engaged in prostitution in the past, but not on the night she was attacked. Galvez argued that a dispute over money led to the physical assault and L.H. fabricated the sexual assault allegations because she was angry over "being beaten up." The State called D.V. and J.M. to rebut this theory. D.V. testified that she was walking home when a vehicle approached her. The driver, whom she identified as Galvez, offered her a ride and D.V. accepted. Galvez asked for cocaine, which D.V. claimed she did not have. Galvez pulled a knife on D.V., forced her to perform oral sex, and sexually assaulted her. When she refused to engage in anal sex, he ordered her to exit the vehicle and kicked her as she was exiting. D.V. testified that Galvez had a chin piercing and nipple piercings. J.M. testified that she was walking to her father's home when a vehicle approached her. The driver, whom she identified as Galvez, offered her a ride. J.M. agreed to exchange sex for the ride, but testified that she did not plan on following through with this agreement. Galvez took J.M. to a secluded area and sexually assaulted her. He eventually told J.M. to exit the vehicle. J.M. testified that Galvez had several piercings and two tattoos. Prior to the testimony of both D.V. and J.M., the trial court gave an oral instruction limiting the jury's consideration of D.V.'s and J.M.'s testimony to "rebut the defensive theory of fabrication, if any, in connection with this offense, if any, alleged against the defendant in the indictment and for no other purpose." The trial court included a virtually identical instruction in the jury charge.Analysis
Galvez argues that the trial court abused its discretion by admitting the extraneous-offense evidence. The State responds that this evidence was admissible under Wheeler v. State, 67 S.W.3d 879 (Tex.Crim.App. 2002), and Dennis v. State, 178 S.W.3d 172 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd), to rebut Galvez's defensive theory and contends that our decision in Newton v. State, No. 10-06-00160-CR, 2007 Tex. App. Lexis 4634 (Tex.App.-Waco June 13, 2007, pet. filed) conflicts with these cases. In Wheeler, a jury convicted Wheeler of sexually assaulting S.E. See Wheeler, 67 S.W.3d at 880. He argued that he "was never alone with S.E., and therefore lacked an opportunity to abuse her, or alternatively, that it would have been impossible for appellant to abuse her in a room full of people." Id. at 887. Because S.E.'s parents had filed a civil suit against him, he also "suggested that he was the victim of a conspiracy or frame-up motivated by greed." Id. The State called Wheeler's niece, S.S., to rebut these theories. See id. The Court of Criminal Appeals held that S.S.'s testimony was relevant to rebut Wheeler's "theory of lack of opportunity or impossibility" and "served to contradict appellant's `frame-up' theory by showing appellant's prior misconduct (very similar to that for which he was charged in the present case) in circumstances involving neither money nor revenge as possible motives." Id. The Court noted that:An extraneous-offense may be admissible to rebut the defense in a child sexual assault case that the defendant is the innocent victim of a "frame-up" by the complainant or others. In such a situation, the extraneous misconduct must be at least similar to the charged one and an instance in which the "frame-up" motive does not apply.Id. at 888 n. 22 (internal citations omitted). In Dennis, a jury convicted Dennis of sexually assaulting F.S. See Dennis, 178 S.W.3d at 175. Dennis argued that "F.S. fabricated the sexual assault allegations because she was angry at him for taking away her cellular telephone and for disciplining her because of her poor grades in school" and solicited testimony that "F.S. was angry when he took her cellular telephone from her and that children may fabricate allegations out of anger." Id. at 178. The State sought to introduce M.W.'s testimony to rebut this theory. See id. at 176. Before M.W.'s testimony was introduced, the trial court gave an oral instruction limiting the jury's consideration of M.W's testimony to "rebut the defensive theory of fabrication, if any, in connection with this offense, if any, alleged against him in the indictment and for no other purpose." Id. at 176-77. The First Court held that "M.W.'s testimony is relevant rebuttal evidence showing that under similar circumstances, Dennis sexually assaulted another child." Id. at 178. The extraneous and charged offenses were similar enough "to allow use of the extraneous-offense evidence to rebut Dennis's theory that F.S. framed him." Id. at 179. In Newton, a jury convicted Newton of sexually assaulting Doe. See Newton, 2007 Tex. App. Lexis 4634, at *1. Newton suggested that Doe fabricated the allegations to "prevent her mother's reconciliation with Newton, or that she did so at the prompting of her mother (as Doe made her allegation immediately before her mother filed for divorce from Newton) or at the prompting of her first therapist." Id. at *11. The State called L.D. to testify that Newton had sexually assaulted her twenty-five years earlier. See id. at *6. The trial court gave an oral instruction limiting the jury's consideration of L.D.'s testimony to "rebut the defensive theory of fabrication in connection with the offense alleged in the indictment before you in this cause and for no other purpose." Id. at *8. We found that "Newton raised the issue of fabrication as a defensive theory," but "[e]xtraneous-offense evidence is not admissible to rebut a fabrication defense." Id. at *11, 14. In reaching this decision, we relied on Bass v. State, 222 S.W.3d 571 (Tex.App.-Houston [14th Dist.] 2007, pet. filed). In Bass, a jury convicted Bass of indecency with a child against S.D. See Bass, 222 S.W.3d at 573. The State introduced testimony of other incidents with J.P. and R.C. Id. at 575. The Fourteenth Court stated that "evidence of appellant's extraneous-offenses with J.P. and R.C. could not assist the jury in its determination of whether the appellant committed indecency with S.D., except by showing character conformity in violation of Rule 404(b)." Id. at 576. The Court found Wheeler inapplicable:
In this case where the State asks us to apply Wheeler, the State confuses a "frame-up" defensive theory with a fabrication defensive theory. A frame-up theory suggests that one is the victim of a conspiracy. Although a frame-up theory may include an implication of fabrication, it is not the same as a fabrication defense theory, in which the defendant contends the allegations are entirely made up. The Wheeler court did not hold that extraneous-offenses are admissible to rebut a fabrication defensive theory, as the State contends. Further, we find no evidence in the record that appellant asserted a "frame-up" defensive theory in this case.Id. at 576-77 (internal citations omitted). We do not agree that Newton conflicts with Wheeler. In Wheeler, the record contained evidence of a "frame-up" defensive theory, while in Newton and Bass, the record did not contain such evidence. Newton does not hold that evidence of extraneous-offenses could not be used to rebut the defensive theory of "frame-up." Moreover, we decline to follow Dennis because, like the State did in Bass, it appears to confuse the defensive theory of frame-up with the defensive theory of fabrication. See Bass, 222 S.W.3d at 576-77. Accordingly, we must follow Wheeler, Newton, and Bass to determine whether Galvez asserted a frame-up defensive theory or one of fabrication. In voir dire, Galvez asked the following questions:
The first thing I want to know about is your response or your feelings to this statement. Here's a statement: No one would deliberately lie in accusing someone else of committing a serious crime.
. . . would somebody make up a lie about somebody else regarding a serious matter?
I'm not talking about little white lies. I'm talking about somebody raped me, okay?
Why would somebody lie about a serious matter?
. . . would somebody do that for revenge?In opening statements, Galvez argued that L.H. fabricated allegations of sexual assault because she was angry that he refused to pay her and "rough[ed] her up," wanted revenge, and realized that "a simple assault charge is not enough and she wants him to pay so she spins the yarn." On cross-examination of L.H., Galvez asked:
But you had the presence of mind, you say when you got out of the car to try to grab the nipple ring so you could get some blood for a DNA match and grab this toy gun so you could get fingerprints or whatever. And yet, when you got to the hospital you didn't tell them about being raped or sex?
And then five days later you went back to Hillcrest, right?
And, of course, by this time there would be no physical evidence on you such as semen to prove that there had even been sex, correct?
Well, you had the presence of mind to try to take the gun and grab the nipple [ring] off and get DNA evidence and blood evidence. So it sounds like you were trying to build a case against Mr. Galvez, correct?In closing statements, Galvez argued that L.H. was lying. Our review of the record reveals that Galvez raised the defensive theory of fabrication, not frame-up. He did not suggest that he was the "victim of a conspiracy," but rather that L.H.'s sexual assault allegations were "entirely made up." Bass, 222 S.W.3d at 576-77. The testimony of D.V. and J.M. was not admissible to rebut the defensive theory of fabrication. See Newton, 2007 Tex. App. Lexis 4634, at *14. The trial court abused its discretion by admitting this testimony. Id. We must now determine whether this error affected Galvez's substantial rights. See TEX. R. APP. P. 44.2(b); see also Newton, 2007 Tex. App. Lexis 4634, at *14. We "consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002); Shook v. State, 172 S.W.3d 36, 41 (Tex.App.-Waco 2005, no pet.); accord Geuder v. State, 142 S.W.3d 372, 376 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). We may also consider the jury instructions, the State's theory of the case, any defensive theories, closing arguments, voir dire, and the extent to which the State emphasized the erroneously admitted evidence. See Motilla, 78 S.W.3d at 355-56; see also Shook, 172 S.W.3d at 41; Geuder, 142 S.W.3d at 376. We decide whether "the error had a substantial and injurious effect or influence in determining the jury's verdict." Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005). If we have "`a grave doubt' that the result [of the underlying proceeding] was free from the substantial influence of the error, then [we] must treat the error as if it [had a substantial influence on the outcome]." Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). "[I]n cases of grave doubt as to harmlessness the petitioner must win." Id. at 638 (quoting O'Neal v. McAninch, 513 U.S. 432, 437, 115 S. Ct. 992, 995, 130 L. Ed. 2d 947 (1995)). Because fabrication was an issue at trial, the ultimate question was whether Galvez sexually assaulted L.H. Galvez and L.H. were the only direct witnesses and no physical evidence linked Galvez to a sexual assault, leaving L.H.'s testimony as the only direct evidence that Galvez committed sexual assault. Her credibility was heavily challenged. D.V. and J.M. provided the details of their assaults and each identified Galvez as their attacker. Their accounts are noticeably similar to that of L.H. Detective Darrell Patterson and Detective Woodruff also provided some testimony as to the D.V. and J.M. cases. Galvez's girlfriend testified that, in a letter, Galvez mentioned picking up two other girls other than L.H. In closing argument, the State discussed D.V.'s and J.M.'s testimony, arguing that the jury heard this testimony because Galvez had accused L.H. of fabrication and directing the jury to the similarity among all three cases. The evidence that Galvez sexually assaulted L.H. is not overwhelming. We have grave doubts as to whether Galvez's conviction was free from the substantial influence of the erroneous admission of D.V.'s and J.M.'s testimony. See Burnett, 88 S.W.3d at 637. The testimony significantly bolstered the State's case and prejudiced Galvez. See Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App. 1994) ("admission of extraneous-offenses also prejudices the defendant because of the jury's natural inclination to infer guilt to the charged offense from the extraneous-offenses"). The jury could have viewed L.H.'s testimony alone as credible, but D.V.'s and J.M.'s testimony almost certainly played a significant role in Galvez's conviction. See Webb v. State, 36 S.W.3d 164, 183 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); see also Bass, 222 S.W.3d at 578-79. This harm was amplified by the State's discussion of the extraneous-offenses in closing argument. See Booker v. State, 103 S.W.3d 521, 538-39 (Tex.App.-Fort Worth 2003, pet. ref'd); see also Reese v. State, 33 S.W.3d 238, 244 (Tex.Crim.App. 2000) (State's emphasis on erroneously admitted evidence during argument "sent the jury into deliberations thinking about" that evidence). We hold that the erroneous admission of the extraneous-offenses involving D.V. and J.M. was harmful because it had a substantial and injurious effect on the jury's verdict. We sustain Galvez's first issue and need not address his remaining issues. See TEX. R. APP. P. 47.1. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.