Opinion
No. 05-08-00492-CR
Opinion issued July 9, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-56672-RM.
Before Justices WRIGHT, BRIDGES, and RICHTER.
MEMORANDUM OPINION
After Reginald Turner pleaded guilty to failure to register as a sex offender, the jury assessed punishment, enhanced by a prior felony conviction, at twenty years' confinement and a $10,000 fine. In two issues, appellant contends the trial court abused its discretion during punishment by (1) admitting victim testimony of the underlying aggravated sexual offense; and (2) allowing testimony directly from the victim in lieu of police reports or other witnesses. In a single cross-issue, the State contends the judgment should be modified to reflect the correct names of the attorneys representing the State at trial. We overrule appellant's issues and affirm the trial court's judgment as modified.
Background
At trial, the State notified appellant that it intended to present victim testimony of the underlying aggravated sexual assault. After appellant made a Rule 403 objection-that the probative value of the evidence was substantially outweighed by unfair prejudice-the trial court held a hearing, outside the presence of the jury, to determine whether the victim's testimony was admissible. The trial court overruled appellant's objection. Appellant then requested that the trial court substitute the victim's testimony with police reports or testimony of other witnesses. The trial court overruled that objection as well. During the punishment stage of the trial, fifteen witnesses testified. Kathleen McCoy Marroquin, the victim of the underlying aggravated sexual offense, was the last to testify. She testified that in 1988 she was walking her children to her in-laws from a bus stop. Marroquin held her one year old daughter in her arms and her five year old son walked beside them. Appellant attacked her from behind. He told Marroquin he had a gun and led her and her children to an alley. In the alley, appellant forced Marroquin to perform oral sex on him while she was still holding her daughter in her arms. Appellant then took Marroquin and her children to a vacant home. Inside, he placed the two children in a closet. Appellant told Marroquin to take off her clothes. He returned to the closet and slapped Marroquin's son because he was screaming. Once he was with Marroquin again, he raped her. Appellant then led her to the closet where he told her to stay with her children or he would kill her. Twenty or thirty minutes later, Marroquin left the home and called police from a nearby home. After hearing this and other evidence, the jury assessed punishment. This appeal followed.Extraneous Offense Evidence
In his first issue, appellant complains the trial court erred by admitting Marroquin's testimony. Specifically, appellant argues (1) the trial court failed to conduct a Rule 403 balancing test, and (2) the probative value of the testimony was substantially outweighed by unfair prejudice. We conclude that unfair prejudice did not substantially outweigh the probative value of the victim's testimony. The trial court has broad discretion in determining the admissibility of evidence presented during the punishment phase of trial. Moreno v. State, 1 S.W.3d 846, 861 (Tex.App.-Corpus Christi 1999, pet. ref'd) (citing Cooks v. State, 844 S.W.2d 697, 735 (Tex.Crim.App. 1992)). Section 3(a) of article 37.07 of the code of criminal procedure allows the trial court to admit evidence deemed relevant to sentencing, including evidence of other crimes or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2008). In the punishment phase of trial, relevant evidence is that evidence helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). The Court may deem the following matters relevant to sentencing: the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and . . . any other evidence of an extraneous crime or bad act . . ." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2008). However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. "Unfair prejudice," as the phrase is used in rule 403, refers to the undue tendency of evidence to suggest a decision on an improper basis. Rogers, 991 S.W.2d at 266. When determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, we identify the probative value of the evidence, identify the potential danger, and weigh one against the other. Fletcher v. State, 852 S.W.2d 271, 277 (Tex.App.-Dallas 1993, pet. ref'd). During the punishment phase, testimony from the victim of an extraneous offense, even a child who is a victim of sexual assault, is not so inherently prejudicial as to require the trial court to automatically sustain a Rule 403 objection. See, e.g., Bain v. State, 115 S.W.3d 47, 50 (Tex.App.-Texarkana 2003, pet. ref'd). First, to the extent appellant argues that the trial court failed to perform a rule 403 balancing test evaluating the victim's testimony, we conclude appellant failed to preserve error. In overruling a Rule 403 objection, the trial court is presumed to have conducted the balancing test and found the evidence admissible. See Yates v. State, 941 S.W.2d 357, 367 (Tex.App.-Waco 1997, pet. ref'd). As the Texas Court of Criminal Appeals explained in Jones v. State, 982 S.W.2d 386, 395 (Tex.Crim.App. 1998), to appeal the lack of a balancing test under rule 403, an appellant must (1) ask the trial court to conduct that test and (2) object when the trial court failed to do so. Id. Here, the record shows appellant objected to the testimony under Rule 403, and the trial court overruled that objection. There is no evidence in the record that the trial court refused to perform the balancing test or that appellant objected to a refusal. Second, appellant contends that it was an abuse of discretion to admit the evidence. Specifically, appellant argues the probative value of the evidence is low because the underlying offense was of a violent nature whereas this offense is merely a failure to follow a process. And appellant further argues the unfair prejudice of the evidence substantially outweighed the low probative value because the testimony was too inflammatory for the jury to assess punishment rationally. We disagree. The trial court could reasonably conclude that unfair prejudice did not substantially outweigh the probative value of the evidence. The victim's testimony would help the jury determine the appropriate sentence, and its relevance is specified by statute. The details of the offense provided the jury with probative information of appellant's character and whether he is a continued threat to the community. The State needed the evidence to explain why appellant must follow the sex offender registration process. Although the evidence was emotional, unfair prejudice did not substantially outweigh the probative value. The testimony consisted of less than 10 pages in the record out of more than 215 pages of witness testimony during the punishment phase. Marroquin testified that 20 years have elapsed since the crime and that her children are now both adults. She testified to the details of the crime, but the details were not overly graphic. She provided no testimony, other than the facts of the crime, that indicated the impact of the crime on her or her children. We conclude that unfair prejudice did not substantially outweigh the probative value of the evidence. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by admitting victim testimony of the underlying aggravated sexual assault rather than admitting police reports or the testimony of other witnesses. The State responds that appellant failed to adequately brief the issue. We agree with the State. Under Texas Rule of Appellate Procedure 38.1(h), appellant must, in his brief, provide a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). Appellant argues his first and second point of error jointly. In his entire brief, appellant cites two sources of law, Rule 403 and one case, Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999). But Ladd merely discusses the Rule 403 balancing test, not the complaint presented in appellant's second issue. Id. Appellant's only reference to this point of error is a quote from the record. Specifically, in the applicable portion of the record, appellant argues:Your Honor, one more thing, and I know — the facts of the prior sentence, couldn't that be introduced in another fashion upon which the jury would have the opportunity to hear that information without actually having that individual testify? We have various police reports. We have other individuals that would be able to come in and give the facts surrounding that particular incident to the jury. And I think that when you actually have the victim up here, number one, I think once again it goes back to the original reason why I objected. And then furthermore, you inherently are going to have the opportunity to have the witness even-just like you said, do more of a victim impact statement and stay away from what she's actually testifying about, or what she should be testifying about, which are the facts surrounding the initial incident.Appellant does not develop this argument or provide authority for it. And, as previously discussed, Marroquin did not provide victim impact testimony, nor did appellant object during her testimony. Under these circumstances we cannot conclude appellant preserved this complaint for our review. We overrule appellant's second issue.