Opinion
NO. 01-16-00797-CR
06-05-2018
MARCO ALANIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Case No. 1484479
MEMORANDUM OPINION
Appellant Marco Alanis appeals his conviction for aggravated sexual assault of a child under 14 years old. In his sole issue, Alanis argues that the trial court erred in permitting the complainant's sister to testify that he had also sexually assaulted her. Because we conclude that the trial court did not abuse its discretion in admitting the testimony, we affirm.
Background
Alanis was charged with aggravated sexual assault of Jane, his step-granddaughter. In particular, he was charged with unlawfully, intentionally, and knowingly causing Jane's mouth to contact his sexual organ.
To protect the identities of the complainant and the complainant's sister, we refer to them using pseudonyms.
Numerous witnesses testified at trial.
A. The complainant's testimony
At trial, Jane—who was then 11 years old—testified that Alanis had repeatedly touched her body with his private part. She testified that the touching usually occurred in her grandmother's living room or dining room, when she and Alanis were alone. When Jane was in the living room playing, Alanis would come in and touch her. According to Jane, other people were typically in the house, but they were in other rooms.
Especially relevant to the charge here, Jane testified that on more than one occasion, Alanis touched her mouth with his private part. In particular, she testified that Alanis put his private part in her mouth.
Jane also testified that Alanis touched her bottom and private area. She could not recall whether the touching occurred over or under her clothes.
Furthermore, Jane testified regarding an incident when Alanis took her hand, put it on his private area underneath his clothes, and moved it up and down. She testified that something similar happened 20 or 30 times.
Jane averred that she initially did not tell anyone because she did not want to think about it and was scared. But after Jane's sister, Jessica, reported to their father that Alanis had molested her, their stepmother asked Jane whether she too had been touched inappropriately. Jane then told her stepmother what had happened. The girls' stepmother testified as an outcry witness on Jane's behalf.
B. Jessica's testimony
Before trial, the State filed a "Notice of Intention to Use Extraneous Offenses and Prior Convictions," notifying Alanis that it intended, pursuant to article 38.37 of the Texas Code of Criminal Procedure, to use evidence of "other crimes, wrongs, or acts" committed by him. Specifically, the State notified Alanis that it intended to introduce evidence of an extraneous offense committed by him against Jane's sister, Jessica.
Before Jessica testified at trial, the judge held a hearing outside of the jury's presence regarding the admissibility of her testimony. During the hearing, Jessica stated that she was 15 years old. She agreed to provide honest testimony. She testified that Alanis began touching her inappropriately when she was approximately six or seven years old and it continued until she was ten or eleven years old. She testified that, on more than one occasion, Alanis touched her private parts over her clothes. The touching occurred at her grandmother's house or her grandmother's workplace, when she and Alanis were alone.
During the hearing, Alanis's counsel argued that Jessica's testimony should be excluded because it was more prejudicial than probative and would infringe upon Alanis's right to a fair and impartial trial. He argued that Jane's allegations should be tried separately in a case in which Jessica is the complaining witness. The State responded that Jessica's testimony is exactly the type of evidence permitted by article 38.37 of the Texas Code of Criminal Procedure, and Alanis had adequate notice of the evidence.
The judge found the extraneous offense evidence admissible, concluding that the evidence was "adequate to support a finding by the jury that the defendant committed that separate offense beyond a reasonable doubt."
Before the jury, Jessica testified that Alanis touched her private parts over her clothes with his hands and mouth, and that it happened "probably more than twenty times." She testified that Alanis first touched her inappropriately when she was about seven years old. While Jessica was watching television, Alanis would "creep by" and "watch" her. Sometimes he touched her private parts over her clothes, while making grunting and moaning sounds. She testified that Alanis would "stare" at her, "raise his eyebrows," and beckon her with his finger, telling her to come to him. She tried to ignore him but, if she was later alone somewhere, he would find her.
When she was about nine years old, Jessica was laying on the couch with her eyes closed when she felt a bite on her crotch, over her clothes. She opened her eyes and saw Alanis, pretending to blow raspberries on her stomach. Another time, Jessica was laying on the living room floor with a blanket over her when she felt something between her legs. It was Alanis's face. She covered herself with the blanket but Alanis did it again, so she got up and left the room.
She testified that she did not tell anyone about the incidents because she "was scared" and "didn't know who to tell," and she worried her family would hate her. According to Jessica, the touching stopped when she was around eleven years old. Around 2013, Jessica and her siblings went to live with their father and their stepmother. In September 2014, Jessica told her father that Alanis had touched and molested her. Jessica and Jane's father testified as an outcry witness on Jessica's behalf.
C. Testimony of defense witnesses
Alanis testified on his own behalf and denied that he committed the charged and extraneous offenses. He testified that he rarely saw the children because he worked all day until late in the evening. And, when he saw them on weekends, everyone was there.
Jane and Jessica's mother (Alanis's stepdaughter) testified in Alanis's defense. She averred that she never saw Alanis behave inappropriately with Jane or Jessica. She did not think Alanis was capable of doing the things her daughters alleged. She testified that she spoke to her daughters about the allegations, and she did not believe them. Rather, she believed her daughters' stepmother was coaching the girls to make the allegations.
She noted that, although she left Jessica and Jane at Alanis's house, Alanis was often not home. If he was, he was not alone with the girls.
Alanis's other children and his wife agreed. They testified that there was no way that Alanis could have touched Jane because he was never alone with her. They testified that they believed that the girls' stepmother coached Jane and Jessica to testify against Alanis in retaliation for Alanis paying the girls' mother's court fees in a heated custody dispute with the girls' father.
Alanis's wife (Jane and Jessica's grandmother) testified that she had never seen Alanis touch anyone inappropriately in the 30 years she had known him. And she explained that although nothing prevented Alanis from being alone with the girls, he was never alone with them. Alanis was instead always with her or "at the house and everyone was there."
Alanis's daughter Yessica testified that she watched Jane and Jessica after school at her parents' house. Yessica testified that she never saw Alanis do anything inappropriate with Jessica or Jane, and there was no way that Alanis could have done the things the girls alleged.
Alanis's stepson Mario testified that he saw Alanis on a regular basis. Four or five times a week, he met Jessica, Jane, and their brother at the bus stop and dropped them off at Alanis's house, where his sister Yessica watched them. Mario never saw Alanis act inappropriately around the children. Moreover, his mother was always with Alanis, and they were always working, six days a week, until eight at night. He believed the girls would have told someone if the offense had really happened.
Alanis's other stepson Leonardo also testified that it was not possible for Alanis to have committed the offenses alleged because Alanis was always working and, on the weekends, Leonardo would have been home. He never saw Alanis inappropriately touch Jessica or Jane.
Marco, another son of Alanis, testified that he had not seen Alanis touch anyone inappropriately and that he was not the type of man who would do such a thing. Finally, Gianna Hernandez, to whom Alanis was an uncle-in-law, averred that she had never seen Alanis touch anyone inappropriately, and she did not think he was capable of the actions of which he was accused.
Following the presentation of evidence, the jury convicted Alanis of aggravated assault of a child. The jury assessed Alanis's punishment at 13 years' confinement. Alanis appeals.
Discussion
In his sole issue, Alanis argues that the trial court abused its discretion in admitting Jessica's testimony regarding his alleged extraneous offense against her, because, he asserts, the evidence was more prejudicial than probative. We find no abuse of discretion. A. Standard of Review and Applicable Law
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court's ruling will not be reversed unless it falls outside the zone of reasonable disagreement. Id.
An extraneous offense is "any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers." Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996) (emphasis omitted). In general, extraneous offense evidence may not be admitted "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." See TEX R. EVID. 404(b)(1); Batiste v. State, 217 S.W.3d 74, 84 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
But the Legislature has specifically carved out an exception to this general rule for certain crimes against children. Article 38.37 of the Texas Code of Criminal Procedure provides:
[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.TEX. CODE CRIM. PROC. art. 38.37, § 2(b) (emphasis added). We interpret statutes according to their plain language, and this provision expressly permits the introduction of evidence—including the type of evidence at issue here—for any bearing the evidence has on relevant matters, including to show that the defendant acted in conformity with his character. See Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) (we must interpret statutes based on their plain text).
The statute also provides that, "[b]efore [such] evidence . . . may be introduced, the trial judge must: (1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose." TEX. CODE CRIM. PROC. art. 38.37, § 2-a. There is no dispute that the trial judge complied with these requirements in this case.
That evidence is admissible under article 38.37 does not end the inquiry, however. The court may exclude otherwise relevant and admissible evidence under Texas Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403; Alvarez v. State, 491 S.W.3d 362, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).
A trial court is afforded discretion in determining whether evidence is admissible under Rule 403. Alvarez, 491 S.W.3d at 370 (applying deferential standard "because trial courts are usually in the best position to make the call on whether certain evidence should be admitted or excluded.") (citation omitted); see also Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd, untimely filed). In this posture, we presume that the probative value of the evidence outweighs any prejudicial effect. Burke, 371 S.W.3d at 257.
In assessing whether the prejudicial effect of an extraneous offense substantially outweighs its probative value, we consider the following factors:
(1) how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable;Alvarez, 491 S.W.3d at 370 (citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)); Burke, 371 S.W.3d at 257. Rule 403 does not allow "a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial." Alvarez, 491 S.W.3d at 370 (quoting Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015, pet. ref'd)). The rule "should be used sparingly," only when the prejudicial effects substantially outweigh the probative nature of the evidence. Id. (quoting Bradshaw, 466 S.W.3d at 883).
(2) the potential of the extraneous offense evidence 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.
B. Analysis
The trial court acted within its discretion in admitting the testimony. As an initial matter, the trial court conducted a hearing outside the presence of the jury—as required—to determine whether Jessica's testimony would be adequate to support a finding by the jury, beyond a reasonable doubt, that appellant committed the extraneous act. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a. After hearing testimony from Jessica and the arguments of counsel, the trial judge concluded that the evidence regarding the extraneous offense was reliable and admissible under article 38.37.
Alanis does not dispute the application of article 38.37. He instead argues that the court should have excluded the evidence under Rule 403. In particular, he contends that the relevant factors of the balancing test weighed in favor of excluding Jessica's testimony because "the prejudicial effect of Jessica's testimony would outweigh any probative value."
We address the four factors in turn and conclude that the trial court did not abuse its discretion in admitting the evidence here. See, e.g., Alvarez, 491 S.W.3d at 370; Burke, 371 S.W.3d at 257.
1. Whether Jessica's testimony makes a fact of consequence more or less probable
With regard to the first factor, Alanis asserts that "[t]he fact that [he] was alleged to have touched Jessica over her clothing multiple times does not make it more or less probable that his penis made contact with Jane's mouth." But our Court has held that "[b]ecause the evidence of prior sexual abuse of children 'was especially probative of [the defendant's] propensity to sexually assault children,' the Rule 403 balancing test normally will not favor the exclusion of evidence of the defendant's prior sexual assaults of children." Alvarez, 491 S.W.3d at 371 (quoting Belcher, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.)); see also Caston v. State, No. 01-15-00260-CV, 2017 WL 3298320, at *8 (Tex. App.—Houston [1st Dist.] Aug. 3, 2017, no pet.) (evidence that defendant has sexually abused another child is relevant to whether defendant sexually abused child-complainant in charged case).
Here, Jessica testified that Alanis sexually assaulted her on multiple occasions, from when she was about seven years old until she was about 11 years old. Under Texas law, this evidence is probative to establish Alanis's propensity to sexually assault children, including Jane, the complainant. See Caston, 2017 WL 3298320, at *8; Alvarez, 491 S.W.3d at 371.
2. The probability that Jessica's testimony impressed the jury "in some irrational but nevertheless indelible way"
Alanis argues that Jessica's allegations that he molested her had "extreme potential to impress the jury 'in some irrational but nevertheless indelible way.'"
But Alanis fails to explain how Jessica's testimony—in which she alleged that Alanis touched her private parts over her clothes—was "uniquely or unfairly prejudicial," particularly given that the conduct at issue was no more serious than the charged offense that Alanis unlawfully, intentionally, and knowingly caused Jane's mouth to contact his sexual organ. Accordingly, we cannot conclude that this factor weighs in favor of exclusion of Jessica's testimony. See Caston, 2017 WL 3298320, at *8 (affirming admissibility of testimony regarding extraneous offense, noting that evidence was prejudicial but not "unfairly prejudicial" because it "discussed actions that were no more serious than the allegations forming the basis for the indictment"); Alvarez, 491 S.W.3d at 371 (prejudicial extraneous offense evidence properly admitted where defendant did "not identify any particular facts" that made testimony "uniquely or unfairly prejudicial").
3. The time the State needed to develop evidence of the extraneous offense
Alanis next argues that "Jessica's testimony spanned sixty-one pages, as opposed to Jane's testimony, which only spanned thirty-nine." Alanis overstates the number of pages in the record dedicated to Jessica's testimony before the jury. Nevertheless, Jessica's testimony was no longer or more detailed than necessary to establish a foundation for and evidence of Alanis's extraneous offense committed against her (an offense that, we have already concluded, was relevant). Thus, this factor also does not tip the balance in Alanis's favor regarding whether the evidence was more prejudicial than probative. See, e.g., Burke, 371 S.W.3d at 258 (affirming admission of testimony regarding extraneous offense when testimony was "no more detailed" and less egregious than testimony regarding charged offense).
4. The force of the State's need for this evidence to prove a fact of consequence
The final factor does not sway the balance for Alanis. Alanis argues that the State "was able to produce evidence, through Jane's testimony, of each element of the indicted offense, and thus did not require testimony regarding the extraneous offense in order to prove the case." But multiple defenses witnesses, including Alanis himself, testified that Alanis was never alone with Jane or Jessica and that he was not capable of the charged and extraneous offenses. Jessica's testimony helped rebut the defense witnesses' testimony that Alanis had no opportunity to commit the offenses and that he would not have committed the offenses. It also put Jane's outcry into context because Jane confessed about the abuse only after her stepmother approached her as a result of Jessica's outcry. Additionally, the State needed Jessica's testimony based on the lack of physical evidence and Jane's delayed outcry. Without Jessica's testimony, it would essentially have been Jane's word against that of Alanis.
Because Jessica's testimony was relevant and necessary to rebut the defense witnesses' testimony, the State had a strong need for the evidence. Thus, this factor weighs in favor of admissibility. See Caston, 2017 WL 3298320, at *9 (testimony regarding extraneous offense had considerable probative force and State had great need for it because, without it, case would have come down to victim's word against defendant's); Buxton v. State, 526 S.W.3d 666, 690-91 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (concluding sister's testimony regarding defendant's sexual abuse of her was admissible, necessary to rebut defensive theories, and probative given lack of physical evidence, delayed outcry, and no other eyewitnesses).
* * * *
Alanis has not demonstrated that the trial court abused its discretion in admitting Jessica's testimony. We overrule Alanis's sole issue.
Conclusion
We affirm the trial court's judgment.
Jennifer Caughey
Justice Panel consists of Justices Jennings, Massengale, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).