Opinion
NO. 14-15-00958-CR
04-04-2017
PEDRO GARZA VALDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Cause No. 1427795
MEMORANDUM OPINION
Appellant Pedro Garza Valdez challenges his conviction for "continuous sexual assault of a child" and sentence of life imprisonment. Appellant asserts that the trial court erred by admitting outcry testimony during the guilt/innocence and punishment phases of trial and by excluding appellant's proffered character evidence during the guilt/innocence phase. We affirm.
I. BACKGROUND
Evidence presented at the guilt/innocence phase of the trial showed the following:
Appellant is the paternal great uncle of the complainant, Janet. Janet testified that appellant sexually abused her over a period of years, beginning when she was a young child.
To protect the privacy of the complainant in this case, we identify her by a pseudonym, "Janet."
Outward appearances suggested appellant was a beloved family member who would spoil all of his grandchildren and great nieces and nephews. Appellant helped out his family by fixing things and occasionally picking up the children from school. Janet was appellant's "little helper," and appellant would take Janet with him to do odd jobs. Sometimes he would pick her up from school. At trial, Janet described in detail a number of incidents of sexual abuse that she said occurred between the time she was seven or eight years old and thirteen years old.
Janet recounted in detail various incidents of sexual contact, describing how and where appellant touched. She described acts of oral sex, anal sex, and sexual intercourse, identifying the sexual acts appellant performed and the sexual acts she said appellant had her perform. In recounting these episodes, Janet described when and where the events occurred and other surrounding circumstances.
According to Janet, appellant's abuse of her stopped when she was thirteen. Janet explained that she knew what appellant was doing was wrong, and "eventually [she] just didn't want to put up with it anymore." Janet stopped going with appellant on his fix-it jobs and ignored his phone calls. Janet recounted that she told friends about what had happened.
Janet's mother noticed that when Janet was twelve or thirteen, she was more angry, was doing poorly in school, started wearing clothes that hid her body, and did not care what she looked like, but Janet's mother did not understand the reason for Janet's behavior. Janet also had been cutting herself. Janet's mother noticed the cuts on Janet when Janet pulled up her shirt to adjust her belt. The cuts, which were about one and one-half to two inches, were located just below Janet's chest down to her abdomen. Janet was crying and emotional and said that she had been cutting herself for two years.
Janet was reluctant to tell her mother what had happened to her, but eventually she told her mother, identifying appellant as the perpetrator. Janet's mother was the first adult to whom Janet made the allegations of sexual abuse. Janet told her mother that appellant had touched her and had sexual intercourse with her. Janet described where the incidents had occurred, but Janet did not give her mother details. According to Janet, she did not tell her mother before that point because she did not want to "ruin the family." Janet talked about the incidents with her mother, but only "in generalizations," and did not describe the specifics of the episodes.
Janet's mother went to the police station to report what had happened. She took Janet to the Children's Assessment Center a few days later. Dr. Marcella Donaruma, a child-abuse pediatrician, interviewed and examined Janet and concluded that Janet had been sexually abused based on what Janet told her. Nothing in the physical exam ruled out or confirmed that there had been penetration, but the last contact had been when Janet was thirteen years old. Dr. Donaruma opined that Janet's self-mutilation stemmed from the sexual abuse the child had described.
Janet received counseling. Janet's therapist, Jamie Wilson testified that she had seen cutting in sexual-abuse cases. Janet was dealing with anger. Wilson explained that "you're so angry, but you cannot place that anger on the person it [sic] deserves to be on. So, the act of cutting yourself kind of releases that tension . . . ."
Wilson also stated that child sexual-abuse victims frequently delay disclosing the abuse because of the shame in admitting to being abused. According to Wilson, younger victims know something is wrong, but cannot process what is happening to them; later, they start processing the situation, usually when they are around the ages of thirteen or fourteen. Janet told Wilson that for a long time she did not tell her mother about what had happened because she did not want to hurt her mother. In response to defense counsel's questioning, Wilson acknowledged that she did not have any way to confirm the truth of Janet's claim that she was sexually abused.
Appellant testified at trial and denied ever molesting Janet, touching her inappropriately, or exposing himself to her. According to appellant, Janet would run up to him, and he would hug her and kiss her on the forehead or cheek, which appellant also did with the other children in the family. Appellant said that on one occasion Janet sat on his lap and Janet's mother told Janet to get off his lap. Janet was the one who had initiated the contact. Appellant denied ever having done anything inappropriate with Janet or any other child.
According to appellant, there was an occasion when the families were in Austin, and Janet asked if she could ride back to Houston with appellant and his wife. Janet did not remember the visit to Austin or that she asked if she could ride back to Pasadena with appellant and his wife. Nor did Janet's mother recall the trip to Austin or that Janet asked if she could ride back from Austin with appellant and his wife.
Appellant said that he had a good relationship with Janet when she was younger but that he had experienced a falling out with Janet nearly two years earlier. Appellant recounted an incident in which he claimed Janet came out of her bedroom "with nothing but hickies wrapped around her neck." Janet indicated where she had received the hickies and "was kind of proud of it." Appellant stated that Janet's mother asked him to talk to Janet "about that." Janet told appellant "not to be getting in her business."
Appellant further claimed that Janet's mother asked him to talk to Janet about a situation involving Janet and her girlfriend. According to appellant, Janet's mother indicated she was having behavioral problems with Janet and that Janet was having problems in school. Appellant testified that he spoke to Janet.
Janet's mother denied that she ever asked appellant to talk to Janet about Janet's sexual orientation. She also denied that she asked appellant to talk to Janet about behavioral problems, stating: "[I]t just wasn't [appellant's] place. I wouldn't ask him to have that discussion with her." Janet denied talking to appellant about her relationship with her girlfriend and stated that appellant never asked her about her girlfriend.
Appellant testified that Janet twice threatened him about "getting into her business." According to appellant, Janet told him that she would make him "look bad." Appellant testified that there were times when he and Janet were alone together.
Appellant retained Dr. Victor Hirsch, a clinical psychologist, to conduct a psychological evaluation of him. Dr. Hirsch stated that the tests he administered to appellant cannot determine whether appellant committed sexual abuse. Appellant scored in the low range of the category that measures "a person's sexual interest or his fantasies involving prepubescent children."
Dr. Hirsch stated that appellant's score for how truthful he was in answering sexual-related questions was problematic. Appellant's score on truthfulness raises questions about the validity of the test. Someone who has been sexually assaulting a child, but has not been convicted of the offense, is not normally going to be forthcoming about that. According to Dr. Hirsch, appellant also had a tendency to present himself in an "overly favorable light." Dr. Hirsch stated that appellant wanted him to say that appellant was not a child molester.
Dr. Lawrence Thompson, the director of therapy and psychological services at the Children's Assessment Center, testified that "in terms of how deceptive [appellant] was being on this test, it's off the charts." Dr. Thompson testified that, based on the test results showing that appellant was not truthful, "[y]ou couldn't trust any of the rest of the answers that were derived." There is no test that will identify a person as a sex offender.
Dr. Thompson also explained the practice of "grooming" by an abuser. Grooming is behavior that makes the child feel special and makes the people around the child feel that the groomer can be trusted. According to Dr. Thompson, making a child the abuser's "special little helper" could be grooming.
Dr. Thompson also testified that in his treatment of children, he does not find that children make up sexual-abuse allegations, stating: "False allegations of child sexual abuse are rare." In the few cases in which Dr. Thompson has seen false allegations of sexual abuse, there has been an adult coercing or coaching the child to say that the child was sexually abused when the child was not.
After the guilt/innocence phase of the trial, the jury found appellant guilty of "continuous sexual assault of a child."
During the punishment phase of the trial, Janet's mother testified that Janet had a younger sister, Elizabeth, who was nine years old. Janet did not like Elizabeth to be around appellant. The day after the mother made the police report, the mother asked Elizabeth if anyone had touched her private parts and told Elizabeth that she could tell her anything and would not be in trouble. Elizabeth said that appellant had tried to touch her when he picked her up from school. At that point, Elizabeth did not know that Janet had said anything about appellant.
To protect the privacy of Janet's younger sister, we identify her by a pseudonym, "Elizabeth."
The children's mother took Elizabeth to the Children's Assessment Center, where Elizabeth had a medical exam and a forensic interview, during which Elizabeth told Dr. Donaruma that appellant had touched her by putting his hand inside her shorts. Elizabeth also told Dr. Donaruma that appellant put her hand on his pants. Elizabeth reported that appellant told her not to tell anyone. Elizabeth was scared because she was afraid for her three-year old sister. Elizabeth reported that she was afraid to go to school. Elizabeth did not testify at trial because the children's mother "couldn't make her go through it."
The jury assessed appellant's punishment at life in prison, and the trial court sentenced appellant accordingly. Appellant timely filed this appeal.
II. ANALYSIS
In three issues, appellant asserts that the trial court erred by admitting the mother's outcry testimony during the guilt/innocence and punishment phases of trial and by excluding good-character evidence during the guilt/innocence phase.
A. Did the trial court abuse its discretion by admitting the outcry testimony regarding the child-complainant during the guilt/innocence phase of trial?
In his first issue, appellant contends that the trial court erred by admitting the mother's outcry testimony during guilt/innocence. Specifically, appellant claims that the State's summary of the content of the mother's outcry testimony was not sufficient to satisfy the requirements of article 38.072 of the Texas Code of Criminal Procedure, entitled "Hearsay Statements of Certain Abuse Victims." See Tex. Code Crim. Proc. art. 38.072 (West Supp. 2016).
1. Article 38.072's Notice Requirements
Hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Tex. R. Evid. 801(d). Generally, hearsay statements are inadmissible and are permitted only if allowed by a statute or a rule. See Tex. R. Evid. 802, 803.
Article 38.072 provides a statutory exception to the hearsay rule that allows the State to introduce outcry statements in sexual-abuse cases if certain conditions are met. Tex. Code Crim. Proc. art. 38.072. Under article 38.072, the trial court may admit the statements of a child victim describing the alleged offense through an "outcry witness"—the first adult to whom the child made statement about the alleged offense. Id. § 2(a)(3). For the statement to qualify as an outcry statement, the child must have described the alleged offense in some discernible way and must have said or done more than generally insinuate that sexual abuse occurred. Owens v. State, 381 S.W.3d 696, 702 (Tex. App.—Texarkana 2012, no pet.); see also Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.—Texarkana 2002, pet. ref'd) ("While there is no authority requiring a detailed summary, the summary of the outcry statement must be more than a general allusion to sexual abuse.").
To invoke the statutory exception to the prohibition on admitting hearsay, the State must notify the defendant of its intent to offer the evidence, provide the name of the outcry witness, and provide a summary of the statement. Tex. Code Crim. Proc. art. 38.072, § 2(b)(1). The purpose of the notice requirement in article 38.072 is to prevent the defendant from being surprised by the introduction of the outcry-hearsay testimony. Fetterolf v. State, 782 S.W.2d 927, 930 (Tex. App.—Houston [14th Dist.] 1989, pet. ref'd); Brown v. State, 756 S.W.2d 793, 797 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). The written notice must give the defendant adequate information about the content and scope of the outcry testimony. Owens, 381 S.W.3d at 703; Davidson, 80 S.W.3d at 136; Gay v. State, 981 S.W.2d 864, 866 (Tex. App—Houston [1st Dist.] 1998, pet. ref'd). The notice suffices if it reasonably informs the defendant of the essential facts related in the outcry statement. Owens, 381 S.W.3d at 703; In re M.M.L., 241 S.W.3d 546, 554 (Tex. App.—Amarillo 2006, pet. denied); Davidson, 80 S.W.3d at 136.
We review the trial court's ruling to admit outcry testimony for an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston [14th Dist.] 2007, no pet.). We will uphold the trial court's ruling if it is within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Chapman v. State, 150 S.W.3d 809, 813 Tex. App.—Houston [14th Dist.] 2004, pet. ref'd).
2. Preservation-of-Error Analysis
The State argues that appellant waived this issue for appellate review. Appellant did not argue in the trial court that the testimony of Janet's mother was hearsay on the ground that the State's notice was insufficient. Instead, appellant claimed that the mother's testimony was hearsay because of Janet's age and the mother may not have been the first adult to whom Janet had made the outcry. We do not agree that appellant waived this issue on appeal.
For outcry evidence to be admissible over a hearsay objection, the State must comply with the procedures set forth in article 38.072. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). As proponent of the outcry evidence, the State had the burden to satisfy each element of the predicate for admission of the mother's testimony under article 38.072 or to satisfy some other exception to the hearsay rule. See id. at 548. Therefore, a general hearsay objection is enough to preserve all appellate claims under article 38.072. Zarco v. State, 210 S.W.3d 816, 828 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Long, 800 S.W.2d at 548); see also Gabriel v. State, 973 S.W.3d 715, 719 (Tex. App.—Waco 1998, no pet.) ("[U]under the Court of Criminal Appeals decision in Long v. State it is clear that a defendant's hearsay objection is sufficient to preserve error for any failure to comply with the mandatory requirements of article 38.072 because, after a hearsay objection is made, the State has the burden to show it has complied with all the requirements listed in article 38.072.").
We conclude that appellant preserved for appellate review his issue that Janet's mother's outcry testimony was hearsay because the State did not provide a sufficient summary of the mother's testimony. The State held the burden to establish that it had complied with all the requisites of article 38.072 once appellant objected that the mother's testimony was hearsay because she may not have been the first adult to whom Janet made her outcry. See Long, 800 S.W.2d at 547-48 (holding that the appellant's hearsay objection adequately apprised the trial court of his complaint that the evidence was hearsay and his argument on appeal that the evidence was hearsay because the trial court did not conduct an outcry hearing was not a general objection and, therefore, was preserved for appeal); Zarco, 210 S.W.3d at 827-29 (following Long and holding that all hearsay objections to the outcry evidence were preserved for appeal, based on the appellant's objection at trial that the detective was not the proper outcry witness). We now consider the merits of the issue.
The State recognizes that Zarco from this court follows Long, but cites an unpublished opinion from this court. Unpublished criminal opinions have no precedential value. Tex. R. App. P. 47.7(a); Campbell v. State, 426 S.W.3d 780, 783 n.2 (Tex. Crim. App. 2014); Gonzales v. State, 474 S.W.3d 345, 350 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Because Zarco is a published opinion and is controlling precedent on this issue, we are bound by it. See Univ. of Tex. Health Science Ctr. at Houston v. Crowder, 349 S.W.3d 640, 644 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
3. Whether the State Complied with Article 38.072's Notice Requirements
Most complaints regarding a variance between the summary of the outcry statement and the testimony involve situations in which the testimony exceeds the scope of the outcry statement. In re M.M.L., 241 S.W.3d at 554. The State gave notice of its intent to use Janet's statements to her mother. The notice states the following: "[Janet] stated that the defendant had been molesting her. [Janet] stated the sexual abuse had started when she was 9 years old."
Appellant complains that the notice "did not summarize the detailed information [Janet] related to her mother." The mother testified that Janet said she was "ruined"; the abuse started at Janet's family's old house; appellant touched Janet inside when she was little and he had sexual intercourse with her when she was older; the abuse started when Janet was seven; the abuse occurred in four locations; Janet's brother almost caught appellant on one occasion; Janet was twelve when the abuse stopped; Janet did not say anything about the abuse because she did not want to ruin the family; and the abuse stopped because Janet "finally said 'no.'" See Biggs v. State, 921 S.W.2d 282, 285 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (holding summary, which stated, "On June 29, 1991 the Defendant had sexual contact with [J.C.] and also exposed his genitals to her while she was at the Defendant's home visiting the Defendant's daughter," was insufficient because it provided little more information than the indictment and did not detail the information that J.C. related to her mother about the "games" she played with the appellant, but affirming because error was harmless); see also Wheeler v. State, 79 S.W.3d 78, 84 (Tex. App.—Beaumont 2002, no pet.) (holding that the trial court erred in admitting testimony not described in the article 38.072 notice, but affirming conviction because error was harmless).
The State acknowledges that the mother's trial testimony about Janet's outcry "was more elaborate than the summary of that outcry," but argues that the mother's testimony was "predominately contextual" because it did not reveal any more about that abuse than Janet's actual outcry to her mother. Instead, the State contends, the mother's testimony was consistent with the outcry, and the notice was adequate to apprise appellant of the essential facts of the alleged offense. See Klein v. State, 191 S.W.3d 766, 781 (Tex. App.—Fort Worth 2006) (holding that outcry contained the essential facts necessary to provide appellant with notice of the content and scope of the outcry testimony and the portion of the complained-of testimony not included in the outcry related to non-essential facts and merely described the circumstance peripheral to the alleged abuse and leading up to the outcry statement), rev'd on other grounds, 273 S.W.3d 297 (Tex. Crim. App. 2008).
Assuming, without deciding, that the mother's testimony impermissibly exceeded the scope of the outcry summary, we conclude, as addressed below, that any error in admitting the outcry testimony was harmless.
4. Harm Analysis
When the State fails to comply with article 38.072, the reviewing court must engage in a harm analysis. Gay, 981 S.W.2d at 867. When the trial court makes a non-constitutional error during the course of a trial, the reviewing court will disregard it as a harmless error if the error did not affect the appellant's substantial rights. Tex. R. App. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused's substantial rights are implicated "when the error had a substantial and injurious effect or influence in determining the jury's verdict." Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King, 953 S.W.2d at 271). Even if non-constitutional error exists, we will affirm the conviction if, after examining the record as a whole, we are left with the fair assurance that the error did not influence the jury or influenced the jury only slightly. Schutz v. State, 63 S.W.3d 442, 443 (Tex. Crim. App. 2001).
Appellant and the State agree that the admission of inadmissible hearsay under article 38.072 is non-constitutional error.
In determining whether the State's failure to comply with article 38.072's notice requirements amounts to harmless error, we consider whether appellant was surprised by the outcry evidence and whether he suffered prejudice by the lack of notice. See Davidson, 80 S.W.3d at 137-38.
The trial court held a hearing on the mother's outcry testimony before trial, and appellant's counsel questioned the mother about her outcry statement. At trial, the mother's outcry testimony provided far less detail than that provided by Janet in her testimony. Appellant had the opportunity to cross-examine Janet and the mother about the allegations of abuse. Appellant did not claim or show that he was surprised by the mother's outcry testimony. Moreover, the record does not reflect that appellant was prejudiced by any lack of notice of the outcry testimony. Therefore, we conclude that any error was harmless.
See Owens, 381S.W.3d at 704 (holding that, even if notice were insufficient, the appellant made no claim in the trial court that he was surprised by any difference in the written notice and the testimony offered at the outcry hearing or at trial); Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.—Texarkana 2009, pet. ref'd) (holding that error in admitting outcry testimony was harmless because the testimony was not a surprise to the appellant); Gabriel, 973 S.W.2d at 720 (holding that error in admitting outcry statement was harmless where record did not reflect that defendant was surprised or revealed any prejudice from state's failure to give notice, and defendant's attorney had an opportunity to question both complainant and complainant's mother); Upton v. State, 894 S.W.2d 426, 429 (Tex. App.—Amarillo 1995, pet. ref'd) (holding that violation of article 38.072 governing outcry testimony was harmless error); Fetterolf, 782 S.W.2d at 930 (holding that, although the State failed to comply with article 38.072's notice requirements, there was no evidence of surprise at or prejudice by the outcry testimony).
Also, to the extent that the mother provided more detail than what was contained in the State's summary of the outcry testimony, any error in admitting that outcry testimony is harmless because similar evidence was admitted through Janet without objection.
See Padilla, 278 S.W.3d at 107 (holding error in admitting outcry testimony was harmless because the jury had heard the same information from the victim and the outcry testimony was a reiteration of already properly admitted evidence); Chapman, 150 S.W.3d at 814-15 (holding that erroneous admission of outcry testimony was harmless error where similar testimony came in elsewhere without objection); West v. State, 121 S.W.3d 95, 105 (Tex. App.—Fort Worth 2003, pet. ref'd) (holding that error in admitting outcry testimony did not influence the jury's verdict or but had a slight effect because the complainant provided detailed testimony relating to the offense); Thomas v. State, 1 S.W.3d 138, 142 (Tex. App.—Texarkana 1999, pet. ref'd) (holding that error in admitting outcry witness testimony was harmless because the same evidence was introduced without objection at other points in the trial, including testimony of other witnesses concerning the complainant's statements of the offense and the complainant's testimony about the offense); see also Williams v. State, 272 S.W.2d 614, 615 (Tex. Crim. App. 2008) ("There is no harm from improperly admitted evidence if the same evidence was admitted through another source without objection.");
For reasons cited above, we are left with fair assurance that the trial court's presumed error in admitting certain hearsay testimony either did not influence the jury or only influenced the jury slightly.
We overrule appellant's first issue.
B. Did the trial court abuse its discretion by admitting outcry testimony regarding the complainant's sibling during the punishment phase?
In his second issue, appellant asserts that the trial court erred during the punishment phase by admitting Elizabeth's outcry to the mother because the State did not provide sufficient notice of the mother's hearsay testimony. Appellant complains that the mother's testimony at the punishment phase did not comport with the State's summary.
The trial court held a pre-trial hearing on whether it would admit the mother's testimony about Janet's outcry to her. The focus of the entire hearing was Janet's outcry to the mother. Though appellant acknowledges that the outcry testimony for Elizabeth was not discussed, appellant nonetheless argues on appeal that the trial court was on notice the testimony was hearsay. At the end of the hearing, appellant's attorney objected that Janet was over the age of twelve when she made the outcry and Janet's mother was not sure that she was the first adult to whom Janet made the outcry. Appellant concluded his objection by requesting "that all the testimony be considered as hearsay, your Honor." The trial court ruled that it was "going to allow [the mother] to testify to the outcry."
Appellant contends that his objection was timely and specific. But, appellant never objected to the mother's testifying as an outcry witness for Elizabeth.
By failing to object to the mother's testimony as an outcry witness for Elizabeth, appellant waived this issue on appeal. See Bargas v. State, 252 S.W.3d 876, 895 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that the appellant waived complaint by not objecting at the outcry hearing that the State misled him into believing who the outcry witness was going to be based on the State's notice); Laredo v. State, 194 S.W.3d 637, 640-41 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (holding that the appellant waived complaint based on admission of outcry testimony by failing to make an objection on the details of the outcry).
We overrule appellant's second issue.
C. Did the trial court err by excluding appellant's proffered evidence of character for safe and moral relations with children?
In his third issue, appellant asserts the trial court erred by excluding evidence that would show he had a character for safe and moral relations with children.
Generally, character evidence is not admissible to show that a person acted in conformity with a character trait on a particular occasion. Tex. R. Evid. 404(a). The defendant in a criminal case is permitted to introduce evidence of a specific good character trait to show it is improbable that he committed the charged offense when that character trait is relevant to the offense. Tex. R. Evid. 404(a). A pertinent trait is one that relates to a trait involved in the offense charged or a defense raised. Melgar v. State, 236 S.W.3d 302, 307 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Valdez v. State, 2 S.W.3d 518, 519 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). If evidence of a person's character or a character trait is admissible, proof may be made through reputation or opinion testimony. Tex. R. Evid. 405(a); Valdez, 2 S.W.3d at 519.
When a defendant is accused of a sexual offense against a child, the defendant is "entitled to proffer evidence of his good character (or propensity) for moral and safe relations with small children or young girls." Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002). "[G]ood or bad character concerning 'pedophilia' or 'child sexual abuse' is not a true character trait, although one might certainly have a reputation in the community concerning these conduct-oriented traits or the more general trait for 'safe and moral treatment of children.'" Id. at n.2; see also Valdez, 2 S.W.3d at 520 ("[U]nlike a person's reputation for the moral treatment of children, being 'a non-pedophile' is not evidence of a person's character or a character trait."). This court explained the reason that being a pedophile is not a character trait:
To allow the defense to ask whether an accused in a sexual assault case has a reputation for being a pedophile is akin to asking a witness in a murder case if the defendant has a reputation for being a murderer. The status of being a murderer, or in this case a pedophile, is not a "character trait." In a murder case, the accused's reputation for peacefulness, or non-aggressive behavior, is the appropriate inquiry.Valdez, 2 S.W.3d at 520.
Appellant primarily contends that the questions did not call for specific instances of conduct. Appellant's counsel attempted to ask questions of appellant's family members, such as whether (1) they had ever seen appellant act inappropriately with anyone, including "any female" and any females of Janet's age; (2) "is he a child molester"; and (3); it is "believable" that appellant may be guilty based on their past observations.
This court has rejected similar tactics. In Valdez, the appellant, who had been convicted of three counts of sexual assault of a child, did not seek to establish evidence of a specific good character trait. Id. Rather, the appellant sought to show that he was not known to have committed the type of offense for which he was then on trial. Id. Upholding the trial court's ruling to exclude the appellant's proffered evidence, this court held that the appellant was attempting "to put on evidence of specific instances of good conduct to support the inference that it is unlikely the accused would have engaged in the criminal conduct charged," a tactic the court deemed impermissible. Id. Framing the question in terms of the accused's reputation for not having committed a specific act, does not make the inquiry proper. Id. at 521.
Just as the accused in Valdez, appellant sought to elicit evidence of specific instances of good conduct to support an inference that it is unlikely that appellant would have engaged in the sexual abuse of Janet. We conclude that the trial court did not abuse its discretion by excluding appellant's proffered evidence. See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016) ("We review a trial judge's decision on the admissibility of evidence under an abuse of discretion standard.").
We overrule appellant's third issue.
Having overruled all of appellant's issues, we affirm the trial court's judgment.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Brown and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).