Summary
holding extraneous offense evidence admissible in indecency-with-a-child case to prove appellant exposed himself with intent to arouse or gratify sexual desire
Summary of this case from Martinez v. StateOpinion
Nos. 05-03-01556-CR, 05-03-01557-CR, 05-03-01558-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause Nos. F01-40832-MH, F01-40833-MH, and F01-40834-MH. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
Appellant Thomas Lee Sanders appeals his conviction by jury of two offenses of indecency with a child involving exposure and one offense of indecency with a child involving contact. The trial court set punishment at life imprisonment for the offense involving contact and 20 years' imprisonment for both of the offenses involving exposure. Appellant raises the following three issues on appeal: (1) error in admitting extraneous offense evidence in the guilt-innocence phase of trial; (2) error in denying appellant's motion for mistrial after a witness implied that appellant had previously been in jail; and (3) error in allowing a complainant's mother to testify about the complainant's truth-telling abilities. We affirm the trial court's judgment.
BACKGROUND
In August of 2001, appellant visited his sister and her seven-year-old daughter J.P. in their home. On two occasions when appellant and J.P. sat alone in the living room watching television, appellant took J.P.'s hand, placed it between his legs, and forced her to touch his genitals through his clothing. On another day when J.P. was on the porch with her ten-year-old friend A.P., appellant called for the girls' attention. When they looked at appellant, he grinned as he pulled his shorts down and exposed his genitals.EXTRANEOUS OFFENSE EVIDENCE
In his first point of error, appellant contends that the trial court erred in allowing appellant's daughters to testify concerning extraneous offenses committed by appellant. Before trial, the State gave appellant a notice of extraneous offenses, including detailed allegations that appellant sexually abused his biological daughters T.D. and S.B. continuously throughout their childhoods, more than fifteen years prior to the trial in this case. Outside the presence of the jury, the State offered the testimony of T.D. and S.B. concerning these allegations to show motive, opportunity, intent, or absence of mistake or accident under Rule 404(b). The State also argued that appellant opened the door to the testimony by asking questions about appellant's loose clothing and thereby implying appellant's shorts accidentally fell off. During trial, the State questioned D.P., J.P.'s mother and appellant's sister, concerning what appellant told her regarding the exposure incident. D.P. testified that appellant told her that his pants were baggy, that they had fallen down, and that he had picked them up. On cross-examination, the defense questioned D.P. concerning appellant's surgery for pancreatic cancer. When the defense asked if appellant wore new shorts because of the surgery, D.P. replied that he had worn new shorts because of weight loss. The defense then asked if appellant wore loose clothing to keep from aggravating stitches and other injuries caused by the surgery. D.P. answered that she did not know. The defense objected to the extraneous offense testimony by appellant's daughters, arguing that it had not opened the door to the testimony, that the testimony was not relevant, and that it was unduly prejudicial. The trial court overruled the objection in part by admitting evidence that appellant intentionally exposed himself to his daughters, including evidence that he masturbated in their presence, but sustained the objection in part by excluding evidence regarding any instances of touching or of intercourse. The trial court stated that its ruling would exclude the evidence for which the probative value was substantially outweighed by a risk of unfair prejudice. The trial court provided the jurors with a limiting instruction prior to the testimony by the daughters and included an extraneous offense instruction in the jury charge.Standard of Review We review rulings on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The trial court will not be overturned as long as its ruling is within the zone of reasonable disagreement. Id. If the trial court's evidentiary ruling is reasonably supported by the record and is correct under any applicable theory of law, we must uphold it. Trevino v. State, 991 S.W.2d 849, 855 n. 5 (Tex.Crim.App. 1999).Extraneous Offense Evidence
Evidence of extraneous offenses is generally not admissible. Tex. R. Evid. 404(a). However, Rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Tex. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Id.; Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). Relevancy An extraneous offense is not admissible unless the transaction is relevant to a material issue in the case, and the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Turner v. State, 754 S.W.2d 668, 672 (Tex.Crim.App. 1988). Extraneous offense evidence is relevant if it logically makes elemental facts, such as intent or knowledge, more or less probable, or if it makes the defense's evidence, attempting to undermine these elemental facts, more or less probable. Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1991) (op. on reh'g). Evidence of extraneous offenses may be admissible to prove intent when intent is an essential element of the State's case and cannot be inferred from the act itself. See Prior v. State, 647 S.W.2d 956, 959 (Tex.Crim.App. 1983). Where intent or guilty knowledge is an essential element of the offense which the State must prove to obtain conviction, its materiality goes without saying. Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App. 1985). The State argues that the testimony of appellant's daughters was admissible under Rule 404(b) because evidence had been admitted indicating that appellant exposed himself unintentionally and because the daughters' testimony tended to show, among other things, intent and absence of mistake or accident. Because the charges here involved indecency with a child, the State had the burden to prove that appellant exposed himself with the intent to arouse or gratify sexual desire. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). That appellant intentionally exposed himself to his daughters makes the fact that he acted intentionally, not accidentally, when he exposed himself to J.P. and A.P. more probable than not. We find that the trial court did not abuse its discretion by admitting the testimony of appellant's daughters over appellant's relevance objection.Rule 403 Since we have determined that the extraneous offense testimony was relevant, we must now determine whether the trial court abused its discretion in deciding that its probative value outweighed its potential of prejudice. See Tex. R. Evid. 403; Turner v. State, 754 S.W.2d 668, 672 (Tex.Crim.App. 1988). To determine whether the evidence is admitted, the trial court must consider the following factors: (1) the probative value of evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). The trial court stated that it had conducted the balancing test and excluded the evidence for which the undue prejudicial value substantially outweighed the probative value. The testimony of appellant's daughters was probative on the issues of intent and absence of mistake. Although the testimony that appellant intentionally exposed himself and masturbated in front of his own daughters had the potential to make an irrational and indelible impression on the jury, the State dedicated only a small portion of its time during the guilt-innocence phase to the testimony. Additionally, the State needed to introduce the evidence to counter appellant's contention that the incident was a mistake. The trial court could have reasonably determined that the relevancy value of the testimony outweighed its inflammatory or prejudicial potential. As the appellate court, we must do more than decide whether the trial judge did in fact conduct the required balancing test between probative and prejudicial values. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). We must measure the trial court's ruling against the following criteria: (1) whether the fact at issue was not seriously contested; (2) whether the State had other convincing evidence to establish the issue; (3) whether the probative value of the proferred evidence was not particularly compelling; and (4) whether the evidence was of such a nature that a limiting instruction would not likely have been effective. Id. If the probative value of the proferred evidence is substantially outweighed by the danger of unfair prejudice, we must conclude that the trial court abused its discretion. Id. Because intent was an element of the exposure charges and evidence was admitted indicating that appellant had acted accidentally rather than intentionally, intent and absence of mistake or accident were contested issues. The probative value of the extraneous offense testimony to show intent and absence of mistake or accident was particularly compelling, and the State had little else with which to prove intent. The testimony was not of such a nature to impair the effectiveness of the limiting instruction. We conclude that the trial court did not abuse its discretion by admitting the testimony under Rule 403. Because we find that the trial court did not abuse its discretion by admitting the extraneous offense evidence under Rules 403 and 404(b), we overrule appellant's issue one.REFERENCE TO PRIOR INCARCERATION
In his second point of error, appellant contends that the trial court erred in denying his motion for a mistrial after a witness's unresponsive answer implied that appellant had previously been in jail. During the guilt-innocence phase of trial, appellant's daughter T.D. testified that appellant exposed himself and masturbated in front of her on numerous occasions when she was a child. The State then questioned her as follows:State: At the time you described your dad exposing himself to you and masturbating, do you recall an age that started with you?
T.D.: It started when I was in pre-kindergarten. I was probably four or five.
State: Do you recall an age where it stopped and he no longer did those things anymore?
T.D.: When he-when I was-I believe I was 18, and he went to jail.Appellant objected to T.D's testimony, and the objection was sustained. At appellant's request, the jury was instructed to disregard the statement. However, appellant's motion for a mistrial was denied. Appellant contends that this denial harmed him because it allowed further extraneous evidence to be introduced. Reference by a witness to a defendant's prior incarceration is improper because it violates the longstanding general rule of evidence that prohibits the introduction of collateral offenses. Tennard v. State, 802 S.W.2d 678, 685 (Tex.Crim.App. 1990). But error will not necessarily be reflected in every unresponsive answer by a State's witness which implicates a reference to the fact that a defendant has been "sent to" or incarcerated in the penitentiary. Id. Even where such prejudicial information is inadvertently placed before a jury, the general rule is still that an instruction by the trial judge to the jury to disregard such an answer will be sufficient to cure any unresponsive answer. Id. In this case, the trial court promptly instructed the jury to disregard T.D.'s answer. No further reference was made to T.D.'s answer or to appellant's prior incarceration during the guilt-innocence phase of the trial. We conclude the trial court did not err by denying appellant's motion for mistrial.