No. 2-07-174-CR
Delivered: November 26, 2008. DO NOT PUBLISH Tex. R. App. P. 47.2(b).
Appealed from the 396th District Court of Tarrant County.
PANEL: GARDNER, HOLMAN, and WALKER, JJ.
PER CURIAM.
I. Introduction
Appellant appeals his conviction and life sentence for aggravated sexual assault of a child under fourteen years of age. In two points, Appellant argues that the trial court abused its discretion by (1) admitting evidence of his extraneous offenses against M.L. and (2) admitting testimony of extraneous offenses against M.L.'s mother, Christine. We affirm. II. Factual and Procedural Background
M.L. was born in 1995. Appellant met M.L.'s mother, Christine, at work in 1998, and they developed a romantic relationship while living together as roommates. Christine testified that she thought she had found a father for her son, M.L. She had two children by Appellant: Z.H. in 1999 and K.H. in 2002. Eventually, Christine and Appellant's relationship became tumultuous. Christine testified the family had moved several times in an attempt to get away from Appellant. They lived in Arlington, Euless, and Grand Prairie, Texas, and in Boston, Massachusetts, as well as Nashville, Arkansas. Christine moved to Boston with the children but Appellant found her. While they were living in Boston, Child Protective Services (CPS) removed the children in December 2000. The CPS investigation included an interview with M.L., resulting in a finding of physical abuse. There were no allegations or findings of sexual abuse. The children were in the custody of CPS for a month, and Christine lived at a shelter for six months and in a transitional housing program for three months. Appellant took the family from Boston to Nashville, Arkansas, where they lived with members of his family for a year and a half. Eventually, Christine and her children returned to Texas. After Appellant was away from the family and when M.L. was almost ten years old, M.L. made an outcry to his mother. According to Christine, M.L. told her that when he was four, Appellant had put his penis in M.L.'s mouth. Thereafter, Appellant was indicted for aggravated sexual assault of a child under fourteen years of age, and he pleaded not guilty. At trial, Christine testified that she asked M.L. why he had not told her sooner and that he told her that he was scared and that Appellant had claimed he would kill M.L. if he told anyone. M.L. also testified about the incident and stated he was afraid Appellant would kill him if he told. The jury returned a verdict of guilty. The trial court sentenced Appellant to life imprisonment. Appellant appeals this judgment. III. Extraneous Offense: M.L.
In his first point, Appellant argues that the trial court abused its discretion by admitting extraneous offense evidence that he physically abused M.L. At a pretrial conference regarding the admissibility of that evidence, M.L. testified to an assortment of violent acts: Appellant had played the "ninja game" by tying plastic bags over M.L.'s head after choking him with his hands; Appellant had hung M.L. in a closet using a belt; and Appellant had pushed M.L. into a coffee table injuring the back of M.L.'s head. Appellant's attorney objected to the relevance of the evidence and argued that the evidence would be more prejudicial than probative. The trial court ruled that it would allow the evidence in under article 38.37, section 2 of the code of criminal procedure. However, the trial court gave Appellant a running objection. Appellant argues that the probative value of this evidence is substantially outweighed by its prejudicial effect under Rule 403. Two other witnesses, a doctor and a CPS investigator, testified to the same incidents of physical abuse based on information they received from M.L.'s interviews and medical reports. The State argues that the running objection granted by the trial court did not apply to these two other witnesses who had testified, without objection, to the physical abuse. Accordingly, the State argues Appellant did not preserve error as to the extraneous offenses. Because the trial court's granting of the running objection was ambiguous regarding coverage of all witnesses testifying to the abuse, we consider Appellant's arguments on the merits.
Standard of Review
A trial court's evidentiary rulings are reviewed on appeal under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). Rulings on relevance should be left to the trial court, relying on its own observations, and will not be reversed without a clear finding of abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.), cert. denied, 510 U.S. 966 (1993). Applicable law
According to rule of evidence 404(b), evidence of other crimes, wrongs, or bad acts is inadmissible if it is offered to prove the character of a person in order to show action in conformity therewith, but it may be admissible for other purposes, such as proof of motive, opportunity, intent, absence of mistake or accident, or to rebut a defensive theory. Tex. R. Evid. 404(b). Article 38.37 of the Texas Code of Criminal Procedure provides that notwithstanding rule 404(b), evidence of other crimes, wrongs, or bad acts committed by a defendant against a child who is the victim of the alleged assault "shall be admitted for its bearing on relevant matters, including: (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 (Vernon 2005). Because of article 38.37, admission of this type of evidence does not violate rule 404(b). Cucancic v. State, 997 S.W.2d 396, 398 (Tex.App.-Beaumont 1999, pet. ref'd). Analysis
The evidence of Appellant's physical abuse of M.L. was relevant under article 38.37 to show the state of mind of Appellant and M.L., as well as their previous and subsequent relationship. Tex. Code Crim. Proc. Ann. art. 38.37. The testimony was probative because it tended to show why M.L. was afraid to tell anyone and that Appellant had the necessary intent and ability to commit the sexual offense. See Poole v. State, 974 S.W.2d 892, 898 (Tex.App.-Austin 1998, pet. ref'd) (discussing how evidence of previous extraneous sexual offenses tended to show the appellant's intent and ability to commit the offenses and tended to show that both daughters were compelled to acquiesce). Also, the testimony was probative because it gave the jury a clearer picture of the continually abusive relationship, before and after the incident. See id. (stating that the testimony was a "significant indicator of the nature of the relationship between the two before and after the incident"). The details of the abuse tended to explain why M.L. was afraid to tell of the sexual abuse and why his outcry was delayed for six years. See Ayala v. State, Nos. 02-06-00110-CR, 02-06-00111-CR, 2007 WL 1377731 at *3 (Tex.App.-Fort Worth May 10, 2007, pet. ref'd) (mem. op., not designated for publication) (holding that evidence of an extraneous offense of continuing physical abuse over two years is admissible to explain why a child victim of sex assault did not make a prompt outcry); see also Wilson v. State, 90 S.W.3d 391, 394 (Tex.App.-Dallas 2002, no pet.) (same). The testimony concerning physical abuse goes straight to the reasoning behind article 38.37: it explains M.L.'s fear of speaking out, and it illustrates the extent of violence in the relationship between M.L. and Appellant that would deter an outcry. See Brown v. State, 657 S.W.2d 117, 119 (Tex.Crim.App. 1983) (holding that sexual assault victim's testimony that appellant threatened to kill her family was admissible to show reason for delayed outcry). Rule 403 Balancing Test
Evidence admissible under article 38.37 must nevertheless be excluded if the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). Rule 403 provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Only "unfair" prejudice provides the basis for exclusion of relevant evidence. Montgomery, 810 S.W.2d at 389. Unfair prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. Id. In this case, Appellant objected to the testimony on specific rule 403 grounds, and the trial court overruled the objection. When a defendant makes a rule 403 objection, the trial court has a nondiscretionary obligation to weigh the probative value of the evidence against the unfair prejudice of its admission. Id. In overruling such an objection, the trial court is assumed to have applied a rule 403 balancing test and determined the evidence was admissible. See Poole, 974 S.W.2d at 897; Yates v. State, 941 S.W.2d 357, 367 (Tex.App.-Waco 1997, pet. ref'd); Caballero v. State, 919 S.W.2d 919, 922 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The trial court is given wide latitude to admit or exclude evidence of extraneous offenses. Montgomery, 810 S.W.2d at 390; Poole, 974 S.W.2d at 897. A reviewing court must therefore recognize that the trial court is in a superior position to gauge the impact of the relevant evidence and not reverse a trial court's ruling if it is within the "zone of reasonable disagreement." Mozon, 991 S.W.2d at 847; Montgomery, 810 S.W.2d at 391. In balancing probative value and unfair prejudice under rule 403, an appellate court presumes that the probative value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389. It is therefore the objecting party's burden to demonstrate that the probative value is substantially outweighed by the danger of unfair prejudice. Hinojosa v. State, 995 S.W.2d 955, 958 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Poole, 974 S.W.2d at 897. The relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value include (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence, (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006). A trial court does not have to perform the balancing test on the record. Yates, 941 S.W.2d at 367. Upon examining the rule 403 balancing factors, the first two factors outweigh the factors favoring exclusion: the evidence of physical abuse has probative force as it gives compelling insight as to why this incident transpired and why M.L. waited so long to tell anyone. The State demonstrated a considerable need to develop this evidence because the physical abuse evidence corroborated M.L.'s testimony that he feared for his life and that his fear was the reason he was afraid to tell anyone about the sexual abuse for so many years. See e.g., Sanders v. State, 255 S.W.3d 754, 760-62 (Tex.App.-Fort Worth 2008, pet. ref'd) (explaining the need for evidence of a separate sexual assault arranged but not performed by victim's stepfather to explain the nature of his relationship with the victim); White v. State, Nos. 02-07-00089-CR, 02-07-00090-CR, 2008 WL 2229636, at *6 (Tex.App.-Fort Worth May 29, 2008, pet. struck) (mem. op., not designated for publication) (explaining the State's need for photographic evidence to corroborate the victim's statement that she was forced to view pornography on appellant's computer). The State also had a need for the evidence because M.L.'s testimony was hazy and his memory from six years before was "fuzzy." While M.L. testified at trial that he had his eyes closed when Appellant placed his penis in M.L.'s mouth, M.L.'s mother and Detective Althouse testified that M.L. claimed he had a blindfold on during the incident. On cross-examination, M.L. did not remember saying he had a blindfold on. He remembered living in Texas before his sister was born, but not what city they lived in; he also did not remember whether he slept in his own bedroom, whether he went to a doctor after his head was injured, how many times he had to play the ninja game, or what he had told the CPS person in the videotape. And when he was interviewed by the CARE team investigator after his outcry, M.L. freely discussed the physical abuse but was reluctant to describe the sexual abuse instance because it was "really bad." Because of this discrepant testimony, the State needed the evidence of the physical abuse to help the jury understand M.L.'s hesitance in making his outcry. See Walker v. State, 201 S.W.3d 841, 851-52 (Tex.App.-Waco 2006, pet. ref'd) (explaining State's need for evidence of victim's sexual abuse from another state to combat defendant's attempt to undermine victim's testimony); Blackwell v. State, 193 S.W.3d 1, 18 (Tex.App.-Houston [1st Dist.] 2006, pet ref'd) (explaining State's need for evidence of the two separate instances of sexual abuse with two other boys because of victim's impeached testimony and his admission that he lied 50% of the time). As to the factors favoring exclusion of evidence, we believe that presenting the jury with M.L.'s brief testimony and the short testimony from two later witnesses concerning the physical abuse did not lead to a decision on an improper basis. See Consuelo v. State, No. 05-07-00848-CR, 2008 WL 3578594, at *4 (Tex.App.-Dallas Aug. 15, 2008, pet. ref'd) (mem. op, not designated for publication) (holding the jury did not make decision on improper basis because the victim's testimony of appellant's violent threats was quickly developed and was not presented in a lurid manner). Further, this evidence did not have a tendency to confuse or distract the jury from the main issues. See Gigliobianco, 210 S.W.3d 642 (stating that the contested evidence related directly to the charged defense and that the jury could not be distracted away from the charged defense). The evidence did not have a tendency to be given undue weight by the jury because, even though the abuse details are horrific, the evidence goes straight to the important issue of why M.L. waited six years to speak out by explaining the basis for his belief that Appellant might kill him. See White, 2008 WL 2229636, at *6 (holding that the evidence was inflammatory but provided evidence that corroborated the victim's assertions). Finally, M.L.'s testimony of the physical abuse consisted of roughly eight pages of the trial's entire transcript. The two witnesses who testified to the same incidents based on M.L.'s statements in interviews and reports consisted of only five pages. Thus, developing this evidence did not consume an inordinate amount of time. See Lane v. State, 933 S.W.2d 504, 520 (Tex.Crim.App. 1996) (holding that one-fifth of trial time devoted to extraneous offense was not excessive). Under these circumstances, the rule 403 factors weigh in favor of the trial court admitting the evidence of extraneous offenses. Accordingly, we find the trial court did not abuse its discretion by concluding that the danger of unfair prejudice did not substantially outweigh the probative value of the extraneous acts involving M.L. Therefore we overrule Appellant's first issue. Harm Analysis
Even if the trial court had abused its discretion, we would hold that Appellant would be unable to show requisite harm. Harm stemming from a trial court's ruling admitting or excluding evidence is reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure, since this is not an asserted error of constitutional dimension. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Texas Rule of Appellate Procedure 44.2(b) reads, "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). A substantial right is affected only when "the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, had but a slight effect." See Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. See id. at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. See Motilla, 78 S.W.3d at 356; Morales, 32 S.W.3d at 867. The weight of the evidence of appellant's guilt is also relevant. See Motilla, 78 S.W.3d at 359-60. Here, we conclude that the admission of this evidence did not affect substantial rights and did not have a substantial effect on the jury's verdict. The trial court instructed the jury that Appellant is "not on trial for any act, conduct, or offense not alleged in the indictment" and that it could consider evidence of any extraneous offenses that Appellant committed to determine: "(1) the motive, opportunity, intent, knowledge, or identity for this defendant now on trial before you, or (2) to consider the state of mind of the defendant and the child as well as the previous and subsequent relationship between the defendant and the child, if any; and for no other purpose." It is presumed that the jury followed this instruction and there is nothing in the record to indicate otherwise. See Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App. 1996). The theory of the defense was that, if it had happened, M.L. would have revealed the sexual abuse in the physical abuse investigation in Boston and that the incident was concocted by Christine to get Appellant out of their lives. Although the State emphasized the evidence in its closing argument, it also spent considerable time explaining how the extraneous offense evidence helped to demonstrate dominance and control by Appellant and to make sense of M.L.'s testimony. The State did not argue that the jury should use the evidence in an improper way. Considering the other evidence that the jury heard, the instructions that the jury was given, and the context in which the evidence was used, any error in admitting the evidence failed to affect Appellant's substantial rights. We therefore overrule Appellant's first point. IV. Extraneous offenses: Christine
In his second point, Appellant argues that the trial court abused its discretion by admitting extraneous offense evidence of the abusive relationship between Christine and Appellant. This evidence arose when Christine testified about the family's several moves over the course of her relationship with Appellant. The State and Appellant discussed in camera how this line of questioning could open the door to discussing Appellant's abuse directed at Christine. Christine was questioned outside of the presence of the jury to develop her testimony. The jury subsequently returned, and Christine testified about the several family moves and the abusive relationship. During this inquiry in front of the jury, Appellant only objected to a leading question regarding phone contact between Christine and Appellant. Applicable Law
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004). An objection must be made as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.), cert. denied, 522 U.S. 917 (1997). To preserve error, a party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App.), cert. denied, 528 U.S. 1026 (1999); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991). In this case, the attorneys on both sides needed to properly clarify the nature of Christine's family moves to several states, as those moves were attempts to leave Appellant. With no objections made on the record, they discussed this evidence issue with the judge prior to Christine's questioning outside the presence of the jury. When Christine proceeded to testify regarding the physical abuse in front of the jury, Appellant did not object. Since Appellant did not make a timely objection, Appellant did not preserve error. Fuentes, 991 S.W.2d at 273. We therefore overrule Appellant's second point. V. Conclusion
Having overruled Appellant's two points, we affirm the trial court's judgment.