Opinion
NUMBER 13-17-00432-CR
04-11-2019
JUAN HERNANDEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Juan Hernandez, appeals his conviction for aggravated sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. §22.021 (West, Westlaw through 2017 1st C.S.). After the jury found appellant guilty, the trial court assessed punishment at thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. By two issues, appellant argues the trial court erred by: (1) admitting photographic evidence of the child during the guilt-innocence phase; and (2) allowing extraneous offense evidence during the punishment phase that was more than ten years old. We affirm.
A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion unless its decision to admit or exclude evidence lies outside the zone of reasonable disagreement. Id. The trial court's ruling will not be disturbed if it "is reasonably supported by the record and is correct under any theory of law applicable to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005) (en banc).
By his first issue, appellant contends the trial court erred when it admitted two photographs of the child over appellant's objection under Rule 403 of the Texas Rules of Evidence. Rule 403 states that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403.
During the guilt-innocence phase of the trial, the State called the child's father to testify about what he saw appellant doing to the child. As part of his testimony, the State offered a photograph of the child in a standing position. The State subsequently called the child's mother to testify. As part of her testimony, the State offered a photograph of the child in a sitting position. In both pictures, the child is smiling, wearing the same clothes, and has no visible prejudicial features.
Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. See TEX. R. EVID. 401. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). In conducting a Rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a 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 the presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).
The admissibility of a photograph is within the sound discretion of the trial judge. Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005). A photograph is generally admissible if verbal testimony concerning the matter depicted is admissible. Gallo v. State, 239 S.W. 3d 757, 762 (Tex. Crim. App. 2007). If the State proves that the victim is under the age of six at the time of the offense of aggravated assault of a child, then the minimum term of imprisonment is increased to twenty-five years. See TEX. PENAL CODE ANN. § 22.021(f)(1); Dekneef v. State, 379 S.W.3d 423, 428 (Tex. App.—Amarillo 2012, pet. ref'd).
In this case, the photographs were relevant and probative of the elements of the offense: the identity and age of the child. Both parents testified that the photographs were taken around the time of the incident. From the pictures, they identified the child and fixed the age of the child at three years of age at the time of the offense. Further, there are only two pictures at issue. They show no visible prejudicial features and were discussed over a very short period of time during the trial. In conclusion, the probative value of the photographs was not substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. We overrule issue one.
By his second issue, appellant contends the trial court erred when it admitted extraneous offense evidence during the punishment phase that was more than ten years old over appellant's remoteness and Rule 403 objections. More specifically, appellant complains of the admission of exhibit 17 (2013 order of release from intermediate sanction facility); exhibit 19 (2006 conviction for interference with an emergency call); exhibit 20 (1996 conviction for driving while license suspended), exhibit 21 (1990 conviction for driving while intoxicated); exhibit 23 (1993 conviction for driving while intoxicated); exhibit 24 (1996 conviction for driving while intoxicated); and exhibit 25 (1996 conviction for driving while license suspended).
The trial court has discretion to admit any evidence relevant to sentencing. See Ellison v. State, 201 S.W.3d 714, 721-22 (Tex. Crim. App. 2006). In this regard, Article 37.07 of the Texas Code of Criminal Procedure states:
Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act . . . .TEX. CODE CRIM PROC. ANN. §37.07 (3)(a)(1) (West, Westlaw through 2017 1st C.S.) (emphasis added).
Moreover, prior convictions introduced at the punishment stage of the trial are not subject to remoteness limitations. Although appellant refers to a general time limit regarding remoteness of his prior convictions, he fails to acknowledge the Texas Court of Criminal Appeals' long-established holdings that the law places no remoteness limitations on past convictions offered to show the prior criminal record of an accused under subsection 3(a) of section 37.07. See Mendoza v. State, 552 S.W.2d 444, 449 (Tex. Crim. App. 1977); Nichols v. State, 494 S.W.2d 830, 834 (Tex. Crim. App. 1973); Lott v. State, 480 S.W.2d 743, 745 (Tex. Crim. App. 1972); Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971); Ingram v. State, 426 S.W.2d 877, 878 (Tex. Crim. App. 1968).
Appellant also generally objected on Rule 403 grounds without stating how the evidence was prejudicial or how the purported prejudice somehow outweighed the probative value of the evidence. See TEX. R. EVID. 403. Appellant's past history as an alcoholic was clearly referenced during the guilt-innocence phase of the trial. Moreover, appellant testified during the punishment stage of the trial that he was an alcoholic and that he had been in trouble several times because of his alcoholism. He further testified that sometimes he knew what was going on and sometimes he did not. The trial court did not abuse its discretion when it admitted the evidence of appellant's prior convictions during the punishment phase of the trial. We overrule appellant's second issue.
The judgment is affirmed.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 11th day of April, 2019.