Opinion
No. 10-18-00261-CR
07-22-2020
ROY FRY, Appellant v. THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas
Trial Court No. 16-03301-CRF-272
MEMORANDUM OPINION
Roy Fry was convicted of the offense of continuous sexual abuse of a child under 14 years of age and was sentenced to life in prison. See TEX. PENAL CODE ANN. § 21.02. In two issues, Fry argues that the trial court abused its discretion by admitting extraneous offense evidence involving the victim's younger sister, A.G., and extraneous offense evidence involving the victim's older sister, N.O., over Fry's Rule 403 objections. The trial court's judgment is affirmed.
Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. This rule favors the admission of relevant evidence, and such evidence is presumed to be more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Majors v. State, 554 S.W.3d 802, 808 (Tex. App.—Waco 2018, no pet.). All testimony and physical evidence will likely be prejudicial to one party or the other. Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable. Id.
During voir dire, Fry questioned the jury about whether children can make up sexual assault allegations against someone because they do not like someone or want to get out of their situation. During its opening, the State informed the jury that the victim, C.O., had been dealing with "a mountain of abuse" by Fry and that she learned Fry was "starting to do the same" to C.O.'s younger sister, A.G. Fry objected that the State's opening violated the motion in limine and that any evidence that Fry was abusing A.G. was "[m]ore prejudicial than probative." After much debate, the trial court overruled Fry's Rule 403 objection and "allow[ed] the argument."
On appeal, Fry argues that the trial court erred in admitting evidence involving C.O.'s younger sister, A.G., over Fry's Rule 403 objection. Fry focused his argument on later testimony that Fry repeatedly asked to see A.G. in only her underwear. However, Fry objected to the State's opening revealing that Fry was starting to do the same thing to C.O.'s sister. The trial court overruled that particular objection. Fry did not object to evidence that Fry repeatedly asked to see A.G. in only her underwear. Accordingly, the argument Fry raises on appeal does not comport with the argument raised at trial and is not preserved. See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Fry's first issue is overruled.
Fry objected later to a statement by the outcry witness that C.O. "was worried her siblings were being touched by the defendant." This was not an objection to the extraneous act of wanting to see A.G. in her underwear.
Fry also argues on appeal that the trial court erred in admitting extraneous offense evidence involving C.O.'s older sister over Fry's Rule 403 objection. However, Fry never objected to the evidence admitted regarding the older sister, N.O. At the end of the first day of testimony, the State told the trial court it wanted to submit a bench brief regarding extraneous offense evidence. The next day, before the trial started for the day, the court and the parties discussed the voluntariness of Fry's statement. After the trial court determined the statement was voluntary, the State asked to address the brief it sent to the court regarding "extraneous acts." The State did not specifically address any testimony by N.O. Fry then complained that the acts against N.O. and C.O. were not similar because N.O. was 18 years old and C.O. was a child. After further discussion regarding the similarities of the acts, the trial court decided to "let it in." No objection on the basis of Rule 403 was made by Fry. Thus, his complaint on appeal is not preserved. See TEX. R. APP. P. 33.1. To the extent Fry objected to the introduction to an extraneous act regarding N.O. based on the lack of similarity between the act against N.O. and the act against C.O., the argument Fry raises on appeal does not comport with the argument raised at trial and is not preserved. See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Fry's second issue is overruled.
Having overruled each issue on appeal, we affirm the trial court's judgment.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Neill
Affirmed
Opinion delivered and filed July 22, 2020
Do not publish
[CRPM]