Opinion
NO. 03-14-00075-CV
02-03-2016
In the Matter of J. D.
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
NO. 13-0147-J395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDINGMEMORANDUM OPINION
A jury found that appellant J.D., a juvenile, had engaged in delinquent conduct, specifically the offenses of indecency with a child by contact and indecency with a child by exposure. The district court, sitting as a juvenile court, rendered judgment on the verdict and placed J.D. on juvenile probation for a term not to extend beyond his eighteenth birthday. In three points of error on appeal, J.D. asserts that the trial court reversibly erred in admitting extraneous-offense evidence relating to text messages and a photo that J.D. had allegedly sent to one of the complainants and additional extraneous-offense evidence involving conduct that J.D. had allegedly committed against another child. We will affirm the judgment.
See Tex. Penal Code § 21.11(a)(1), (2).
BACKGROUND
The jury heard evidence that on March 9, 2013, J.D., a fifteen-year-old boy, went over to the residence of A.R. and C.K., fourteen- and fifteen-year-old girls, and exposed his genitals to them. The evidence included the testimony of A.R. and C.K., each of whom testified to the events leading up to the exposure, which, they explained, happened at separate times while they were each alone with J.D. Additionally, according to A.R., J.D. touched her on her genitals and breasts shortly after he had exposed himself to her. A.R. further testified that, several hours later, after J.D. had left their house, he began communicating with her electronically via C.K.'s iPod. During this communication, A.R. recounted, J.D. sent her text messages asking her to send him nude pictures of her breasts, exposed his genitals to her while they were communicating via Skype, and sent her a photo of his genitals.
A.R. and C.K. told their parents what had happened, and their parents contacted the police. Detective Leigh Knight of the Round Rock Police Department subsequently interviewed J.D. During the interview, a recording of which was admitted into evidence, J.D. admitted to Knight that he had exposed himself to A.R. and C.K. and that he was "thinking with a dirty mind" when he did so. However, he denied touching A.R.'s breasts and genitals.
Two other teenage girls testified to similar conduct that J.D. had allegedly committed against them. Sixteen-year-old L.V. testified that when she and J.D. were in middle school, "he put his hand in [her] shirt and down [her] pants," touching her breasts and genitals when he did so. Fifteen-year-old F.T. testified that, on various occasions, J.D. had "hit [her] butt," "pulled [her] into his lap," told her that he could "make [her] spasm," and claimed that he "owned" her. F.T. further testified that J.D.'s behavior had been without her permission and had made her "very uncomfortable."
Based on this and other evidence, which we discuss in more detail below, the jury found that J.D. had engaged in delinquent conduct as alleged, and the trial court rendered judgment on the verdict. Following a disposition hearing, the trial court placed J.D. on probation as indicated above. J.D. subsequently filed a motion for new trial that was overruled by operation of law. This appeal followed.
ANALYSIS
In his first point of error, J.D. asserts that the trial court abused its discretion in admitting extraneous-offense evidence relating to the text messages and photo that he sent to A.R. In his second point of error, J.D. asserts that the trial court abused its discretion in admitting extraneous-offense evidence relating to F.T.'s testimony. In his third point of error, J.D. asserts that the trial court's erroneous admission of the above extraneous-offense evidence, in its totality, "amounted to cumulative error and affected [his] substantial rights."
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. A trial court abuses its discretion only when its decision "is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." We are not to disturb the trial court's ruling unless it "lies outside the zone of reasonable disagreement." We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's decision if it lies within the zone of reasonable disagreement. If the trial court's evidentiary ruling is reasonably supported by the record and correct on any theory of law applicable to that ruling, we will uphold the decision.
Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Pham v. State, 463 S.W.3d 660, 667 (Tex. App.—Amarillo 2015, pet. ref'd).
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Montgomery v. State, 810 S.W.2d at 391 (op. on reh'g).
Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
"Under the Texas Rules of Evidence, evidence of other crimes, wrongs, or acts is not admissible 'to prove the character of a person in order to show action in conformity therewith.'" "But it may 'be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'" "The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive." "'Rule 404(b) is a rule of inclusion rather than exclusion.'" "The rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character." "The proponent of uncharged misconduct evidence need not 'stuff' a given set of facts into one of the laundry-list exceptions set out in Rule 404(b), but he must be able to explain to the trial court, and to the opponent, the logical and legal rationales that support its admission on a basis other than 'bad character' or propensity purpose."
De La Paz, 279 S.W.3d at 342 (quoting Tex. R. Evid. 404(b)).
Id. at 342-43.
Id. at 343.
Id. (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)).
Id. (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).
Id.
A trial court's ruling on extraneous-offense evidence is generally within the zone of reasonable disagreement "if the evidence shows that 1) an extraneous transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury." In other words, the evidence must be admissible under both Rule 404(b) and Rule 403. "A Rule 403 balancing test includes the following factors: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury 'in some irrational but nevertheless indelible way'; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute." "Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value." Moreover, "the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial." As the Court of Criminal Appeals has observed, "sexually related bad acts and misconduct involving children are inherently inflammatory" and "all evidence against a defendant is, by its very nature, designed to be prejudicial." Such evidence should be excluded only if it is unfairly prejudicial to the defendant.
Id. at 344 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)).
Id. at 348-49 (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)).
Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).
Id.
Id.
Evidence involving text messages and photo
We first address the text messages and photo that J.D. allegedly sent to A.R. during the hours after he had exposed himself to her, evidence of which was admitted and explored during A.R.'s testimony, C.K.'s testimony, and the testimony of Detective Kevin Bender of the Round Rock Police Department, who had analyzed the contents of J.D.'s cell phone and C.K.'s iPod. Initially, we observe that J.D. did not properly preserve error on this point in the court below. It is well settled that in order to preserve error in the improper admission of evidence, a party must object each time the evidence is offered. There are two exceptions to this rule: (1) if the party obtains a running objection to the evidence; or (2) if the party requests a hearing outside the presence of the jury. Here, the only time J.D. objected to the admissibility of the evidence was prior to A.R.'s testimony on the subject. The district court overruled his objection, but J.D. did not request a running objection to the evidence or request a hearing outside the presence of the jury. Nor did he object when evidence related to the text messages and photo was subsequently admitted during C.K.'s testimony and Detective Bender's testimony. Accordingly, he has failed to preserve error, if any, in the admission of the evidence.
Bender testified that during his forensic analysis of the devices, he recovered a picture of a penis and a text message stating, "Let's see a nipple."
See, e.g., Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Cordero v. State, 444 S.W.3d 812, 817 (Tex. App.—Beaumont 2014, pet. ref'd); Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.).
See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Ethington, 819 S.W.2d at 858-59; Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Cordero, 444 S.W.3d at 817; see also Tex. R. Evid. 103(a)(1).
J.D. asserts that he preserved error during a pretrial hearing on his motion in limine, which concerned the extraneous-offense evidence. The record does not support this assertion. Although the parties discussed the admissibility of the evidence during the hearing, and the trial court denied the motion in limine because it "believe[d] these matters" to be admissible, it made no ruling on the admissibility of the evidence at that time. "A trial judge's grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review." Geuder, 115 S.W.3d at 14-15. Unlike a ruling on the admissibility of evidence, a motion in limine is "'a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means.'" Id. at 15 (quoting Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975)). A motion in limine "is also, by its nature, subject to reconsideration by the court throughout the course of the trial." Id. Accordingly, "[i]t is axiomatic that motions in limine do not preserve error." Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref'd) (citing Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988); Maynard v. State, 685 S.W.2d 60, 64 (Tex. Crim. App. 1985)). "This is true whether the motion is granted or denied." Id. (citing Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989); Webb, 760 S.W.2d at 275).
Additionally, even if J.D. had preserved error, we could not conclude on this record that the trial court abused its discretion in admitting the evidence. When a defendant is charged with indecency with a child, as J.D. was here, the Code of Criminal Procedure provides that extraneous-offense evidence involving the same child—in this case, A.R.—"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." Here, it would not be outside the zone of reasonable disagreement for the trial court to have concluded that evidence tending to show that J.D. sent A.R. a photo of his penis and text messages asking to see A.R.'s breasts, mere hours after he had allegedly touched her breasts and exposed his penis to her, was relevant to show the state of mind of both J.D. and A.R. at around the time of the incident and also relevant to show the nature of the relationship between the two children.
Tex. Code Crim. Proc. art. 38.37, § 1(a)(1)(2), (b).
See, e.g., Sanders v. State, 255 S.W.3d 754, 759 (Tex. App.—Fort Worth 2008, pet. ref'd); Jones v. State, 119 S.W.3d 412, 420 (Tex. App.—Fort Worth 2003, no pet.); McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.—Beaumont 2001, pet. ref'd); Poole v. State, 974 S.W.2d 892, 898 (Tex. App.—Austin 1998, pet. ref'd).
Nor would the trial court have abused its discretion in concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Although it is true, as J.D. observes, that this evidence required an additional witness (the detective who had analyzed the contents of the electronic devices) and additional time to develop, the trial court could have reasonably concluded that the other Rule 403 factors weighed in favor of admissibility. It would not be outside the zone of reasonable disagreement for the trial court to find that the evidence, which included a thumbnail image of J.D.'s penis and a request to "see a nipple," was not so extreme that it would have impressed the jury "in some irrational yet indelible way." Moreover, the State was required to prove that, when J.D. exposed himself to A.R. and C.K., he had the intent to arouse or gratify his sexual desire. It would not be outside the zone of reasonable disagreement for the trial court to conclude that evidence tending to show that J.D. continued to engage in conduct of a sexual nature toward A.R. hours after the exposure occurred was compelling evidence of his sexual intent toward A.R. at the time he exposed himself to her. On this record, we could not conclude that, even if J.D. had preserved error, the trial court abused its discretion in admitting the evidence relating to the text messages and photo.
See Tex. Penal Code § 21.11(a)(2).
J.D. asserts that there is other evidence in the record demonstrating his intent, including A.R.'s testimony that J.D. had "a boner" when he exposed himself to her and J.D.'s admission to Detective Knight that he was "thinking with a dirty mind" during the incident. However, it would not be outside the zone of reasonable disagreement for the trial court to conclude that this evidence was ambiguous regarding the precise nature of J.D.'s intent and that the State needed additional evidence to prove that J.D. had an intent to arouse or gratify his sexual desire when he exposed himself, rather than some other "dirty" intent, i.e., to merely cause A.R. and C.K. disgust, revulsion, or embarrassment at what he was showing them.
We overrule J.D.'s first point of error.
F.T.'s testimony
We next address the admissibility of F.T.'s testimony that J.D. had, on various occasions and without her permission, "hit [her] butt," "pulled [her] into his lap," told her that he could "make [her] spasm," and claimed that he "owned" her. Because F.T. was not one of the complainants, this evidence would not be admissible pursuant to article 38.37. However, pursuant to Rule 404(b), extraneous-offense evidence may be admissible to prove intent and to rebut a defensive theory. In this case, J.D. denied touching A.R.'s breasts and genitals and claimed that the indecent exposure was "consensual," i.e., that A.R. and C.K. had asked to see his genitals. J.D. raised these theories during his opening statement, and, during his cross-examination of both A.R. and C.K., he implied that they were lying about what occurred and that they had "wanted" J.D. to show them his genitals and were not offended by the exposure. It would not be outside the zone of reasonable disagreement for the trial court to conclude that evidence tending to show that J.D. had engaged in similar sexual behavior with another girl and that this behavior was unwanted and without her consent was admissible to rebut J.D.'s defensive theory that A.R. and C.K. were lying and had consented to his behavior.
See Tex. Code Crim. Proc. art. 38.37.
See Tex. R. Evid. 404(b); Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).
While consent is not a defense to indecency with a child when the defendant is more than three years older than the victim, in cases in which the actor "was not more than three years older than the victim and of the opposite sex," consent may be relevant to the issue of whether the actor "used duress, force, or a threat against the victim at the time of the offense." See Tex. Penal Code § 21.11(b)(1); see also In re E.N.C., 384 S.W.3d 796, 805 n.11 (Tex. 2012) (noting that Texas's indecency statute "provides an affirmative defense if there are consenting parties close in age"). In this case, it was undisputed that J.D. was not more than three years older than A.R. and C.K.
It would also not be outside the zone of reasonable disagreement for the trial court to conclude that this evidence was not more prejudicial than probative. F.T.'s testimony was brief. Thus, it did not consume a significant amount of time during trial. Moreover, the trial court could have reasonably determined that the credibility of A.R. and C.K. was a critical issue in this case. Consequently, it would not be outside the zone of reasonable disagreement for the trial court to conclude that evidence tending to show that J.D. had engaged in unwanted sexual behavior with another girl was compelling evidence that A.R. and C.K. were being truthful concerning what J.D. had done to them and how they had not consented to his behavior. Finally, it would not be outside the zone of reasonable disagreement for the trial court to find that F.T.'s testimony was not particularly graphic or inflammatory so as to impress the jury "in some irrational but nevertheless indelible way." On this record, we cannot conclude that the trial court abused its discretion in admitting F.T.'s testimony.
We overrule J.D.'s second point of error.
Cumulative error
Finally, in his third point of error, J.D. asserts that the erroneous admission of the extraneous-offense evidence discussed above, in its totality, "amounted to cumulative error and affected [J.D.'s] substantial rights." Because we cannot conclude that the trial court abused its discretion in admitting the extraneous-offense evidence, we similarly cannot conclude that there was cumulative error.
See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) ("[W]e are aware of no authority holding that non-errors may in their cumulative effect cause error."); Williams v. State, 191 S.W.3d 242, 261 (Tex. App.—Austin 2006, no pet.) ("[N]on-errors may not in their cumulative effect cause error."). --------
We overrule J.D.'s third point of error.
CONCLUSION
We affirm the judgment of the trial court.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: February 3, 2016