Opinion
NUMBER 13-16-00048-CR
02-15-2018
RUBEN JIMENEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
By one issue, appellant Ruben Jimenez challenges his conviction for continuous sexual assault of a child. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017 1st C.S.). Jimenez was also found guilty of the lesser included offense of aggravated sexual assault of a child. See id. § 22.021 (West, Westlaw through 2017 1st C.S.). The court imposed a sentence of forty-five years in the Texas Department of Criminal Justice—Institutional Division (TDCJ-ID). Jimenez contends the trial court abused its discretion in admitting extraneous offense evidence. We affirm.
I. BACKGROUND
In order to protect the complainant's identity, we will use her initials and her family members' initials throughout this memorandum opinion. See generally TEX. R. APP. P. 9.8.
Jimenez was charged by indictment of one count of continuous sexual assault of R.J., a child, see id. § 21.02, and one count of aggravated sexual assault of a child. See id. § 22.021. Count one involved a period of thirty days or more in duration in which there was penetration of complainant R.J.'s anus by Jimenez's sexual organ, penetration of R.J.'s sexual organ by Jimenez's sexual organ, touching of the genitals of R.J. by Jimenez, and/or causing the mouth of R.J. to contact and penetrate the sexual organ of Jimenez. Count two involved the penetration of R.J.'s sexual organ by Jimenez.
At trial, evidence showed that then twelve-year old R.J. accused Jimenez, her paternal grandfather, of sexually assaulting her multiple times over a period of approximately three years, from age eight to eleven. R.J. testified that the abuse mostly took place at Jimenez's trailer home, but that he also abused her in his van. R.J. testified that when she realized she had a rash on her sexual organ she confided in her step-mother about what happened. The State provided evidence that the rash was diagnosed as herpes. The State further elicited testimony from R.J.'s family members regarding R.J.'s accusations, including E.G., R.J.'s paternal grandmother. E.G. testified as one of R.J.'s outcry witnesses.
Prior to trial, the State notified appellant of its intent to call a witness under article 38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (West, Westlaw through 2017 1st C.S.) (providing that evidence of extraneous offenses or acts may be admissible in the prosecution of a defendant for continuous sexual abuse of a child, among other offenses). The State's notice set out, among other things, that R.G., Jimenez's daughter and R.J.'s aunt, would testify to prior offenses of sexual assault committed by Jimenez.
In a preliminary hearing outside the presence of the jury, regarding the admissibility of testimony from R.G., the trial court heard testimony that Jimenez sexually assaulted R.G. several times when she was a child. R.G. testified that the first time it happened was in Jimenez's van when she was driving on his lap around the age of eight. She also testified that additional sexual assaults took place inside Jimenez's trailer. Further, the State elicited testimony from R.G. that she recently learned she has herpes, though she does not allege Jimenez had sexual intercourse with her. R.G. explained that she learned of R.J.'s allegations and spoke with her after, but she did not tell R.J. about her own abuse prior to hearing R.J.'s allegations. After the hearing and over Jimenez's objection, the trial court allowed the State to call R.G. to testify in front of the jury regarding her past allegations of sexual assault by Jimenez. The jury later received the following limiting charge instruction regarding the testimony of R.G. in their charge informing them:
Evidence was admitted in this case that the Defendant has committed a separate offense or offense of Aggravated Sexual Assault of a Child. You are instructed that you cannot consider said evidence for any purpose whatsoever, unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any other offenses were committed, and even then you may only consider the same in assisting you determine whether such evidence has any bearing on relevant matters, including the character of the Defendant and acts performed in conformity with the character of the Defendant.
The jury found Jimenez guilty of both counts of the indictment. The trial court assessed punishment at forty-five years imprisonment in the TDCJ-ID. This appeal followed.
II. EXTRANEOUS OFFENSE EVIDENCE
By his sole issue, Jimenez challenges the admissibility of the extraneous offense evidence offered at trial. Jimenez contends that the trial court violated rule of evidence 403 by admitting evidence of his extraneous acts. See TEX. R. EVID. 403.
A. Standard of Review
A trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We will not disturb the trial court's decision to admit or exclude evidence if it is within the zone of reasonable disagreement. Id. A trial court has wide latitude to admit or exclude evidence of extraneous offenses. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (en banc) (op. on reh'g).
B. Applicable Law
Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice" among other things. TEX. R. EVID. 403. In determining whether probative value of evidence is substantially outweighed by the danger of unfair prejudice, we consider "(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence." Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Cox v. State, 495 S.W.3d 898, 903 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Cox, 495 S.W.3d at 903 (quoting Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990)); see also Lamerand v. State, No. 01-16-00883-CR, 2018 WL 355678, at *6 (Tex. App.—Houston [1st Dist.] Jan. 11, 2018, no pet. h.). "'Probative value' refers to the inherent probative force of an item of evidence—that is, 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 item of evidence." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). "'Unfair prejudice' refers to a tendency to suggest decision on an improper basis—commonly, though not necessarily, an emotional one." Id.
An appellate court presumes the relevant evidence will be more probative than prejudicial. See Montgomery, 810 S.W.2d at 389. When determining the probative value of past criminal behavior, courts should consider "the closeness in time between the extraneous offense and the charged offense" as well as "the similarities between the extraneous offense and the charged offense." Kiser v. State, 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd); see Morrow v. State, 735 S.W.2d 907, 909-12 (Tex. App.—Houston [14th Dist.] 1987, pet. ref'd).
Under Texas Code of Criminal Procedure article 38.37, in a trial for certain sexual offenses including each offense alleged in the indictment, evidence that the defendant has committed an extraneous sexual offense may be admitted "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. ANN. art. 38.37, § 2(b). The State must provide the defendant with notice of its intent to introduce such evidence not later than thirty days before the date of trial. Id. § 3. For such evidence to be admitted, the trial court must rule it admissible after a hearing outside the presence of the jury to "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." Id. § 2-a.
C. Analysis
1. Rule 403
The danger of unfair prejudice did not substantially outweigh the evidence's probative value.
a. Probative Value
The first factor requires us to consider the strength of the extraneous offense evidence to make a fact of consequence more or less probable. See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining that "probative value" refers to how strongly evidence makes existence of "fact of consequence" "more or less probable" and to how much proponent needs evidence and that "unfair prejudice" refers to how likely it is that evidence might result in decision made on improper basis, including "an emotional one"); see also Hudson v. State, No. 14-16-00581-CR, 2017 WL 5472626, at *7 (Tex. App.—Houston [14th Dist.] Nov. 14, 2017, no pet. h.) (mem. op., not designated for publication). Jimenez argues that the remoteness of the extraneous offense creates a prejudicial effect that outweighs any probative value of the testimony. The extraneous-offense evidence is sufficiently similar to the charged offense to have probative value on this issue. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref'd). Conversely, Jimenez is correct that the remoteness of the extraneous-offense evidence lessens its probative value. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref'd). Thus, this factor weighs only slightly in favor of admissibility.
b. Potential to Impress Jury in Some Irrational, Yet Indelible, Way
The second factor requires us to consider the extraneous offense evidence for its potential to impress the jury in some irrational but indelible way. When the extraneous offense is no more heinous than the charged offense, evidence concerning the extraneous offense is unlikely to cause unfair prejudice. See Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996). Moreover, any impermissible inference of character conformity can be minimized by the use of a limiting instruction. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). Here, the trial court gave the jury a limiting instruction in the jury charge regarding the extraneous offense evidence. This factor weighs in favor of admissibility. See Jabari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also Hudson, 2017 WL 5472626, at *7-8.
c. The Time Needed to Develop the Evidence
The third factor requires us to examine the trial time needed to develop the extraneous offense evidence. The State put on one extraneous offense witness, R.G. R.G.'s testimony did not take up a significant portion of the trial, and the amount of time used for her testimony was reasonable and not excessive. This factor weighs in favor of admissibility. See Jabari, 273 S.W.3d at 753.
d. The Proponent's Need for the Evidence
The fourth factor requires us to determine the need for the extraneous offense evidence in this case. The extraneous offense evidence was significant to the State's case. There was no direct physical evidence linking Jimenez to the sexual assault aside from R.J.'s testimony. During opening and closing statements, defense counsel called into question the truth of R.J.'s testimony. Jimenez's wife was called to testify to put into question the allegations made against Jimenez. Thus, the need for the extraneous evidence was strong to counteract the defensive theory that R.J. was being dishonest. See Williams v. State, 531 S.W.3d 902, 920 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Hudson, 2017 WL 5472626, at *7-8. (finding that the State had a strong need for extraneous evidence where there was no direct evidence linking appellant to the allegations and defense counsel presented the jury with testimony regarding an alibi).
Given our standard of review, the presumption in favor of admissibility, and the resolution of the factors discussed above, we cannot conclude that the district court abused its discretion by overruling Jimenez's Rule 403 objection.
2. Texas Code of Criminal Procedure Article 38.37
Furthermore, while Jimenez argues that the remoteness of the extraneous offense, the lack of other intervening similar offenses, and the dismissal of the extraneous offense weigh against any probative value and creates unfair prejudice, we find these arguments lack merit because R.G.'s testimony was "adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt." TEX. CODE CRIM. PROC. ANN. art. 38.07 § 2-a(1). R.G.'s testimony specified the sexual conduct that Jimenez had subjected her to, which was sufficient to support a finding by the jury that Jimenez committed the separate offense. See Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding that the testimony of a child communicating to the jury that a touching occurred on a part of the body within the definition of the statute is sufficient evidence).
The trial court's ruling was neither arbitrary nor unreasonable. "Courts give wide latitude to the testimony given by child victims of sexual abuse." Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc). The trial court heard direct testimony from R.G. regarding the complained of sexual abuse to which she was subjected. The trial court was within its discretion when it acknowledged the similarities between the offenses complained of by both R.J. and R.G., that they had both been abused in the same locations and in the same way. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). It was within its discretion when it determined that the testimony went toward "the character of the defendant and acts performed in conformity with the character of the defendant." Id. Thus, we hold the trial court did not abuse its discretion in allowing the admission of the extraneous offense testimony.
Additionally, we note that, even if Jimenez could show error in the admission of the extraneous offense testimony, he cannot show that such error would be reversible. Jimenez contends that he suffered harm because the testimony invited the jury to convict him on a moral or emotional basis. We disagree. Under a harm analysis, which is required when there is a non-constitutional error such as in the wrongful admission of evidence, we will not overturn a criminal conviction unless that error caused substantial and injurious effect or influence on the jury's verdict. See TEX. R. APP. P. 44.2(b); see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Here, R.J. testified that the sexual abuse occurred, and outcry witnesses testified to the same details. The jury is entitled to judge the credibility of the witnesses and can choose to believe R.J.'s testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Accordingly, given the other evidence, we hold that any error would not have had a substantial or injurious effect in determining the jury's verdict and, thus, did not affect Jimenez's substantial rights so as to warrant reversal. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
For the foregoing reasons, we overrule Jimenez's single issue.
III. CONCLUSION
We affirm the trial court's judgment.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 15th day of February, 2018.