Opinion
No. 05-15-00892-CR
05-10-2016
WILLIAM LEIGH MUZOLF, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas
Trial Court Cause No. 2-13-67
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Myers
A jury convicted appellant William Leigh Muzolf of continuous sexual abuse of a child under the age of fourteen and assessed punishment at life imprisonment. In two issues, appellant contends the trial court abused its discretion by (1) ruling that the forensic interviewer was the proper outcry witness, and (2) overruling appellant's objections and admitting certain evidence as other crimes, wrongs, or acts under article 38.37 of the Texas Code of Criminal Procedure. We affirm.
DISCUSSION
I. The Outcry Witness
In his first issue, appellant argues the trial court abused its discretion by allowing the forensic interviewer, Rebecca Peterson, to testify as the outcry witness under article 38.072 of the code of criminal procedure because, according to appellant, the complainant outcried to a number of other witnesses over the age of eighteen before talking to the forensic interviewer.
Trial courts have broad discretion when deciding what witnesses qualify as outcry witnesses, and appellate courts review those determinations for an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref'd). Article 38.072 of the code of criminal procedure permits outcry statements by certain victims of child abuse to be admitted during trial despite the hearsay rule, provided the article's requirements are met. See TEX. CODE CRIM. PROC. ANN. art. 38.072; Rodgers, 442 S.W.3d at 552. One of those requirements is that the outcry witness be the first person, 18 years of age or older, "to whom the child . . . made a statement about the offense or extraneous crime, wrong, or act." See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3). However, more than a general allusion to sexual abuse by the victim is required; the child's statements must describe the alleged offense in some discernable manner. See Rodgers, 442 S.W.3d at 552 (citing Garcia, 792 S.W.2d at 91); see also Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref'd) ("To be a proper outcry statement, the child's statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse). In Rodgers, we applied article 38.072 and concluded the trial court did not abuse its discretion by determining that the forensic interviewer was the proper outcry witness. See Rodgers, 442 S.W3d at 552. We stated that the victim made "general allusions of abuse to his mother but it was not until he spoke to the forensic interviewer that he made all of his allegations and it became clear the sexual abuse involved multiple incidents for a period of thirty days or more." Id. (citing Brown v. State, 381 S.W.3d 565, 571-72 (Tex. App.—Eastland 2012, no pet.) (no abuse of discretion in permitting forensic interviewer to testify as outcry witness where prior statements by victim to others were no more than general allusions to sexual abuse)).
Appellant was charged with the offense of continuous sexual abuse of a child. A person commits that offense if, during a period of thirty or more days, he commits two or more acts of sexual abuse and the victim is a child younger than fourteen years of age. TEX. PENAL CODE ANN. § 21.02(b). The record shows that the complainant, twelve years of age at the time of trial, was born in Norman, Oklahoma, and was the biological daughter of Jodele and John Rhue. The couple divorced after Jodele became romantically involved with another man, appellant William Muzolf, also known as Billy. Jodele and the children—the complainant had a sister and an older half-sister—eventually left their residence in New Mexico for Texas, where they lived with appellant in a trailer park in Rockwall County.
The complainant testified before the jury that she was nine or ten years old when she first met appellant. She and her sisters arrived at their mother's new residence, appellant's trailer, during the summer. The complainant spent the following school year, 2011- 2012, when she was in the third grade, living with appellant. During that time, appellant sexually abused the complainant on numerous occasions. She testified that the abuse started a couple of weeks or so after she arrived. Appellant would touch the complainant's vagina with his hands, his penis, and a vibrator that belonged to the complainant's mother. His fingers touched the inside and outside of the complainant's vagina, and this occurred both with her clothes on and off. Appellant would get in the bathtub with the complainant and start "messing with" her by touching her body with both his hands and penis. Appellant also had the complainant masturbate him, and he usually ejaculated when the complainant did this. The complainant testified there were times when she and appellant would be laying on the couch under a blanket, watching television, and he would start touching the complainant's vagina and breasts under her clothes. Appellant was usually in his underwear when this occurred, and it sometimes took place when there were other people in the room. The complainant also testified without objection that there were periods of time when she, her sister, appellant, and her mother would walk around the house without any clothes on, and that when this took place it usually continued "[f]or a couple of weeks."
Because appellant does not challenge the sufficiency of the evidence, we discuss only those facts necessary to address appellant's issues and put them in context.
The complainant testified that her older half-sister stayed with friends when this occurred. --------
The complainant's first report of abuse was to her half-sister. She was not specific, telling her half-sister that "Billy was doing stuff to me," and that she did not like it and did not know what to do. The complainant also told her mother about a day later. But the complainant became frightened when she was summoned to her mother's bedroom and asked about the allegations in appellant's presence. The complainant recalled she could see appellant, who was sitting behind her mother on the bed, mouthing the words, "Please don't tell her." The complainant recanted and told her mother that she had lied.
The next report of abuse occurred in the fall of 2012, after the complainant and her sister returned to Oklahoma, where their father was now living, following the year they spent with their mother pursuant to the custody arrangement. The complainant had enrolled in school in Oklahoma. John Rhue testified that he was having trouble getting the complainant to go to school. He called the complainant's great aunt, Linda Small, to whom the complainant was close, and asked for her assistance. Small came over and talked to the complainant, who had taken off her school clothes and was in her bedroom hiding under the covers. The complainant told Small that she had been sexually abused by appellant. The complainant then told her father that appellant had sexually abused her. Rhue contacted the police. The complainant also told a school counselor, Misti Shanks, that she had been sexually abused by appellant, and Shanks called the Oklahoma Department of Human Services.
The complainant was interviewed at the local child advocacy center by Rebecca Peterson, a forensic interviewer. During its examination of Peterson, the State asked to approach the bench. The jury was excused and defense counsel raised the following objection:
Your Honor, first we need to make an objection to hearsay statements made by the defendant—I mean by the complaining witness to Ms. Peterson, and object to her statements—out-of-court statements being used in this proceeding as she's the improper outcry witness.Peterson then testified out of the jury's presence and described various instances of sexual abuse reported by the complainant against appellant, including making the complainant sit astride him while they were both naked and move back and forth on top of appellant's body; making the complainant masturbate him; masturbating the complainant with his hand and a vibrator that belonged to the complainant's mother; licking the inside and outside of the complainant's "private"; touching the complainant's "private" with his penis; and numerous other sexual acts. The complainant estimated that "something happened almost every single date [sic]." She told Peterson that she was about nine years old when the abuse started, and the last time something happened was approximately a month before she returned to live with her father in Oklahoma.
THE COURT: Okay. They haven't been offered yet.
[DEFENSE COUNSEL]: Well—
THE COURT: I understand you're about to tender this witness as the outcry witness.
[PROSECUTOR]: Yes, Your Honor.
THE COURT: You want to ask some questions along that line?
[DEFENSE COUNSEL]: I do, Judge, if I may.
THE COURT: All right.
Additionally, as part of the hearing outside the jury's presence, the State also recalled Linda Small, John Rhue, and Misty Shanks, in order to show they were not the proper outcry witnesses. Small testified that when she went to John Rhue's house that day her niece told her the following:
A. That he [appellant] put her on his lap, and she motioned up and down. And that when she'd take a bath, he'd come in and masturbate while—watch her while she was taking a bath.Rhue testified to the following:
Q. Did she tell you anything else?
A. That was it.
Q. Tell us what Katie told you on the day that you were told by Aunt Linda that she needed to tell you something the same day that she had stayed home from school and was naked down to her underwear in her bedroom.Shanks testified as follows:
A. Well, when I went in there, she told me that while she was down here with her mom and William, that he had taken her out of the bedroom at night, and was naked with her in the bathroom, and tried to get her to sit on his penis.
Q. Did she tell you anything else?
A. That he touched her in some inappropriate places.
Q. Did she tell you what those places were?
A. No, she didn't elaborate.
Q. Did you ask her to elaborate?
A. I—I did, and she just said "down there."
Q. Did she tell you how many times that happened?
A. No, she did not.
Q. Okay. Did she give you any details as to what type of sexual abuse she had suffered, whether it was Billy or mom's boyfriend?
A. Yes.
Q. What did she say?
A. That he made her put his penis in her mouth.
Q. Did she tell you how many times that happened?
A. It wasn't like she was telling me all about the sexual abuse. It was more like she was telling me kind of maybe what she told the aunt.
Being a counselor, especially like if I'm going to give a DHS report, I can't ever ask her for any information, or even if she says something, I can't ask her to clarify. So it really just was—I said, hey, I heard you had a pretty stressful weekend, you know, how are you feeling today? I can't—I can't say, can you tell me about the sexual abuse that you, you know, told her about. So I just said, how—how are you doing today? So that's when she volunteered, well, I told my aunt this, and she just told me about the one story.
So again, I wasn't able at all to—to try to lead her in anything like, how did that make you feel, or could you tell me any more about that. It was just—just she told me the one incident.
Q. And she didn't elaborate on how many times that had happened?
A. No. And again, you know, it was just more about her saying, hey, this has happened to me. You know, a child isn't really going to say, it's happened this many times, unless an adult asks. I mean, that's just not, you know, kind of what they're going to do. And again, I couldn't—I couldn't ask her any of those questions.
After hearing arguments from counsel, the trial court found "that the testimony of Ms. Peterson is reliable based on time, content, circumstances, and the statement, and I will allow that to be as the outcry witness." Asked by defense counsel whether the court was allowing for two outcry witnesses of specific events, the trial court responded:
No, I'm allowing the State to present Ms. Peterson as the outcry witness based on the detail of the report made to her and based on the period of time over which it was made, and also based on somewhat of a lack of specificity from the other two persons that she told.
I think the act, the alleged act of continuous sexual abuse or sexual assault was reported to the forensic examiner. I'm not sure that those details that completely comprise the act were reported in detail enough to the others to say they're the only ones that can be an outcry witness, so I'm going to allow Ms. Peterson to testify as the outcry witness, but she's going to have to give testimony as opposed to playing the DVD.
Given the testimony summarized above, the trial court could have found that the complainant's statements to Small, John Rhue, and Shanks were general allusions that sexual abuse had occurred and that Peterson was the first person to whom the complainant described the alleged offense in a discernable manner. See, e.g., Michell v. State, 381 S.W.3d 554, 559-60 (Tex. App.—Eastland 2012, no pet.) (child's statements to police that her "mom made her put her hands up in her," "her dad put his middle part up in her," her parents "touched her in her private areas" and that her "dad puts his male parts inside of her" were general allusions to sexual abuse whereas child's statement to forensic interviewer provided the "how, when, and where" of the abuse); Sims, 12 S.W.3d at 500 (explaining that counselor was proper outcry witness where complainant told mother that defendant "had touched her private parts" but later told counselor how, when, and where appellant had touched her). The charged offense—continuous sexual abuse of a young child—in addition to requiring proof of some type of sexual abuse, also requires proof that two or more acts of sexual abuse were committed during a period that is thirty days or more in duration. TEX. PENAL CODE ANN. § 21.02(b). As demonstrated above, the trial court could have determined that the information received by the other witnesses (Small, John Rhue, Shanks) did not touch upon the timing element of the charged offense or the number of times the acts of abuse occurred. See Michell, 381 S.W.3d at 559-60 (initial statements to police did not provide detail regarding timing element of offense of continuous sexual abuse of young child). The trial court also could have reasonably found that Peterson was the first adult witness to whom the complainant provided a description of two or more acts of sexual abuse committed during a period of thirty or more days, which is required under the charged offense. Based on this record, the trial court did not abuse its discretion. See Rodgers, 442 S.W3d at 552; Brown, 381 S.W.3d at 571. Appellant's first issue is overruled.
II. The Nudist Colony Evidence: Article 38.37 and Rule 403
In his second issue, appellant argues the trial court abused its discretion by admitting evidence that appellant and the complainant's mother had taken the complainant and her sister to a nudist colony for week-long stays on at least several occasions. Appellant contends this evidence was improperly admitted as "other crimes, wrongs, or acts" under article 38.37 of the code of criminal procedure, and that the trial court likewise abused its discretion in performing the balancing determination under rule 403 of the Texas Rules of Evidence.
Prior to trial, the defense filed a motion in limine through which it sought to exclude any reference to the fact that appellant, along with the complainant's mother, had taken the complainant and her sister to the nudist colony. The trial court heard the motion at a pretrial hearing but deferred a ruling until trial. At trial, the court took up the matter of the nudist colony evidence outside the jury's presence. The complainant testified at that hearing as follows:
Q. [Complainant], you've told us about walking around the house without any clothes on for about two weeks, and that [your sister] and your mom and Billy all did that; is that right?
A. Yes, ma'am.
Q. Why were you—all walking around the house for two weeks without any clothes on, do you know?
A. Yes, I do.
Q. Why was that, [complainant]?
A. It was because we were getting ready to go to the nudist colony.
Q. And you say "we were getting ready to go." Who all went?
A. [My sister], me, my mom and Billy.
Q. And did you-all actually go to a nudist colony?
A. Yes, ma'am.
Q. And just so we're clear, what is a nudist colony?
A. Where everyone's nude.
Q. Everybody there--nobody' s wearing any clothes—
A. Right.
Q. —is that right? And when you went to the nudist colony, do you remember where you went or the name of the place?
A. No.
Q. Okay. And when you-all arrived, how long did y'all stay there?
A. I think for about a week or so.
Q. And the whole time you were there, were you naked?
A. Yes.
Q. How about [your sister]?
A. Yes.
Q. How about mom?
A. Yes.
Q. How about Billy?
A. Yes.
Q. And you-all stayed for about a week, and then did you go back home?
A. Yes.
Q. While you were at the nudist colony, what sort of stuff did y'all do when you were there?
A. We went swimming, and we played games and stuff, and stayed at like the little homes and stuff when we were there.
Q. Where did you sleep when you were there, [complainant]?
A. We slept in the back of my mom's pickup, on our bed.
Q. Who is "we"?
A. Me and [my sister].
Q. How about mom and Billy, where did they sleep?
A. They had a tent.
Q. And while you were there, did you see any other kids?
A. No.
Q. And did you ever go back to the nudist colony on another occasion?
A. Yes.
Q. And who went that next time?
A. The same people.
Q. Did you go a third time?
A. Yes.
Q. And who went the third time?
A. The same people.
Q. Did you ever go another time?
A. We went quite often.
Q. Okay. And when you went, was it always the same people?
A. Yes.
Q. And [your half-sister] never went?
A. No.
Q. On the times that you went, did you spend time with your mom and Billy?
A. Yes.
Q. They would play games, and y'all would just sit around and be naked while you were doing that?
A. Pretty much.
Q. Same sort of stuff you would have done with clothes on but you just weren't wearing any clothes?
A. Pretty much.
Q. Okay. Did Billy ever touch you in a way that you didn't like or that made you uncomfortable while you were at the nudist colony?
A. No.
Q. And how many times—you told us the first time you went you stayed for about a week. On each of the subsequent times that you went to the nudist colony, do you know how long you stayed there?
A. Just about maybe a couple of days or about a week?
Q. Do you know why [your half-sister] never went?
A. Because [she] didn't want to go.
Asked on cross-examination whether she and her sister used to walk around the house naked when they lived in New Mexico, the complainant replied, "No, we never did that." She likewise insisted they never did that when they lived in Oklahoma. The complainant testified that she thought it was both "mom and Billy's idea" to walk around the house without clothing and that "they both kind of decided and told us together." The complainant also testified that she and her sister did not want to go to the nudist colony but felt they had no choice because, unlike their older half-sister, they were not old enough to stay with friends or be left alone at the house.
The defense argued that the nudist colony testimony was inadmissible under article 38.37 because the statute required a bad act or a crime, and there was nothing illegal or wrong about going to a nudist colony. The defense also argued that even if the court determined that the testimony satisfied the requirements of the statute, the court was required to perform a rule 403 balancing test, and the prejudicial effect of the testimony outweighed its probative value. The State responded that article 38.37 authorized the admission of "acts" committed by a defendant against a child victim, not just bad acts, and that, based on a plain reading of the statute, the fact that appellant took the child victim to a nudist colony "during this same period of time that he's molesting her," even though nothing happened there, was admissible. The trial court agreed with the State, ruling as follows:
All right. First of all, in reading 38.37, this is not evidence of a crime, apparently this is not against the law.
The Article also says it can be a wrong or an act committed by the defendant against the child. Taking the child to something like this, I think, can be considered a wrong or an act.
And then the question becomes, is it relevant. And it lists a couple things here as a possibility it can be relevant to. I think that it's clearly relevant on what this defendant' s own state of mind is and how he sees himself in relationship to the child and to the family, in general. It's clearly relevant to the previous and subsequent relationship to the child.
And as for the balancing test, I agree that—that it has a prejudicial effect, to some degree, but I think it's outweighed by its relevance from this standpoint: You said it's inflammatory, and that's true, but there's already been testimony in this case that the parents and the children were nude in the home. I think that's—that's already been admitted without objection. That also, I think, can be considered of the same nature.
So making the balancing test under 403, I find that the evidence is relevant and any prejudicial effect that it has is outweighed by its relevant effect, and I find that it comes squarely under 38.37 with regard to the defendant's state of mind and also the relationship between he and the child.
We review a trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009); Williams v. State, 359 S.W.3d 272, 273 (Tex. App.—San Antonio 2011, pet. ref'd). In a prosecution for an offense committed under chapter 21 of the penal code, section 1(b) of article 38.37 of the code of criminal procedure authorizes the admission of evidence of "other crimes, wrongs, or acts" committed against a child victim under seventeen years of age:
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: (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 §§ l(a)(1)(A), 1(b). "By enacting article 38.37, the legislature in effect determined that, in certain sexual abuse cases, evidence of 'other crimes, wrongs, or acts' committed by the accused against the child victim are relevant and admissible under rule 402 (and notwithstanding rules 404 and 405)." Stahle v. State, 970 S.W.2d 682, 689 (Tex. App.—Dallas 1998, pet. ref'd) (citing Hinds v. State, 970 S.W.2d 33, 35 (Tex. App.—Dallas 1998, no pet.)). As the proponent of the evidence, the State bears the burden of showing admissibility under article 38.37. See Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g).
The trial court ruled that the complained-of evidence met the requirements for admission under article 38.37 because it was relevant (1) to what appellant's state of mind was, and (2) how he saw himself in relationship to the child and the family in general. This ruling is supported by the record. The trial court could have concluded the evidence was relevant to show appellant's state of mind at the time of the offense and his prior relationship with the victim by demonstrating that appellant's prior relationship with the complainant was developed through group activities at the nudist colony, where appellant and the complainant went "quite often" with "the same people." Therefore, the trial court did not abuse its discretion by finding the complainant's testimony relevant under article 38.37. See Jones v. State, 119 S.W.3d 412, 420 (Tex. App.—Fort Worth 2003, no pet.) (evidence of extraneous bad acts committed against indecency with child complainant was admissible under article 38.37 to show state of mind and previous and subsequent relationship between defendant and complainant); see also Sanders v. State, 255 S.W.3d 754, 759 (Tex. App.—Fort Worth 2008, pet. ref'd) (State may introduce testimony involving defendant's extraneous bad acts when that evidence is relevant "to demonstrate the unnatural attitude and relationship" between a defendant and his child victim); 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.").
Our analysis does not end there, however, for evidence that is relevant under article 38.37 is still subject to exclusion if its probative value is substantially outweighed by the danger of unfair prejudice. Martines v. State, 371 S.W.3d 232, 246 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When evidence of a defendant's extraneous conduct is relevant under article 38.37, the trial court is required, on proper objection or request, to conduct a rule 403 balancing test. Hinds, 970 S.W.2d at 35; Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. ref'd). In this case, the record shows the trial court conducted a rule 403 balancing test before admitting the evidence.
Under rule 403, a trial "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. "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." Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (footnotes and internal quotation marks omitted). Accordingly, "the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial." Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal citation omitted).
In considering a rule 403 challenge, courts must balance (1) the inherent probative force of the evidence—that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation, with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, commonly, an emotional one, (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); see also Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). We should reverse the trial court's balancing determination "rarely and only after a clear abuse of discretion." Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). Additionally, because rule 403 permits the exclusion of admittedly probative evidence, "it is a remedy that should be used sparingly, especially in 'he said, she said' sexual-molestation cases that must be resolved solely on the basis of the testimony of the complainant and the defendant." Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
The first two factors involve the probative value of the evidence—how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation coupled with the proponent's need for that evidence. Gigliobianco, 210 S.W.3d at 641. In this case, the inherent probative force of the extraneous act evidence was substantial. Evidence that appellant took the complainant to a nudist colony for week-long stays on at least several occasions was admissible to show appellant's state of mind at the time of the offense and the nature of his prior relationship with the complainant. See TEX. CODE CRIM. PROC. ANN. art. 38.37; McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.—Beaumont 2001, pet. ref'd). Furthermore, the State's need for this evidence was substantial. The only direct evidence of the offense came from the complainant, whose credibility was attacked by the defense. Evidence of appellant's previous conduct would have aided the jury in finding the complainant was credible when she testified about the abuse. In addition, the inherent probative force of the nudist colony evidence was further shown by the testimony from an investigator with the Collin County Sheriff's Office, Billy Lanier, about how sexual predators establish and assert control over their victims through "grooming." The relevant testimony was as follows:
Q. Are you familiar with the term "grooming" as it applies to the field of child sexual abuse?
A. Yes, ma'am.
Q. What does that term mean in the field of child sexual abuse?
A. That's where a perpetrator will identify a victim, do certain acts to gain their trust, and try to break down their defenses.Because the inherent probative force of the nudist colony evidence was considerable and the State had a substantial need for that evidence, the first two factors weigh in favor of admissibility.
Q. Hypothetically, Detective, if an individual perpetrator wanders around the house naked, asks the child to do the same, and gains the trust of other family members and has them do that as well, and then takes them to a nudist colony, would that be an example of grooming?
A. Yes, ma'am.
Regarding the third factor, there is nothing in the record to indicate admission of the evidence would be so inherently inflammatory that it would tend to elicit an emotional response and impress a jury in some "irrational and indelible way," see Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002), or "lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." See Old Chief v. United States, 519 U.S. 172, 180 (1997). In fact, evidence that appellant accompanied the complainant to a nudist colony for week-long stays is less egregious and inflammatory than the evidence relating to the offense with which appellant was charged in this case. See Jones v. State, 119 S.W.3d 412, 422-23 (Tex. App.—Fort Worth 2003, no pet.) (prejudicial effect did not substantially outweigh probative value of extraneous acts admitted under article 38.37 when "all of the extraneous acts involving G.V. were less heinous than the evidence relating to the charged offense involving Jones's reaching into G.V.'s pants and touching her"). Hence, this factor also weighs in favor of admission.
The fourth and sixth factors concern the tendency of the evidence to confuse or distract the jury from the main issues and the amount of time consumed by the presentation of the evidence. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (this factor looks to the "time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense") (citing Montgomery, 810 S.W.2d at 389-90). We have already concluded the complained-of evidence was highly probative of appellant's state of mind and his prior relationship with the complainant. Accordingly, there is a low probability the evidence would confuse or distract the jury from the main issues in the case. Furthermore, the nudist colony evidence was presented through a single witness and did not take a significant amount of time to develop. It was not so overwhelming as to distract the jury from the charged conduct. These factors thus weigh in favor of admission of the evidence.
The fifth factor concerns a "tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. For example, 'scientific' evidence that might mislead a jury that is not properly equipped to judge the probative force of the evidence." Gigliobianco, 210 S.W.3d at 641 (internal citation omitted). The evidence at issue was not prone to this tendency because it was not scientific in nature and pertained to matters that could easily be understood by a jury. Consequently, this factor likewise weighs in favor of admission of the evidence.
We conclude the nudist colony evidence was admissible under article 38.37 of the code of criminal procedure to show appellant's state of mind as well as the prior relationship between appellant and the complainant, and that the rule 403 factors weigh in favor of the admission of this evidence. We overrule appellant's second issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150892F.U05
JUDGMENT
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas
Trial Court Cause No. 2-13-67.
Opinion delivered by Justice Myers. Justices Francis and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 10th day of May, 2016.