Opinion
No. 04-03-00390-CR
Delivered and Filed: July 28, 2004. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-5930, Honorable Mary Roman, Judge Presiding Affirmed.
Retired Judge Robert Barton presided over the trial, but Judge Mary Roman signed the judgment.
Sitting: Paul W. GREEN, Justice, Sandee Bryan MARION, Justice Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
A jury found defendant, John Thomas Wade, guilty of indecency with a child by sexual contact, and assessed his punishment at two years' confinement and ten years' probation. Defendant challenges the trial court's judgment in three issues on appeal. Finding no error, we affirm.
EXTRANEOUS CONDUCT EVIDENCE
In his first and second issues on appeal, defendant contends the trial court erred in admitting evidence of his extraneous conduct because the evidence was not relevant and highly prejudicial. During the guilt/innocense phase of the trial, four of the State's five witnesses testified as to defendant's alleged physical abuse of the complainant M.M. and his brother, S.M. In addition, three of the five witnesses testified as to defendant's alleged stalking of M.M. and his mother. The State offered evidence revealing that defendant would "head butt" M.M. or slam his head into the wall or railings for punishment. In addition, S.M. testified that, as a form of discipline, defendant would hit him with a belt, which caused welts and bleeding. S.M. also testified the defendant would "head butt" him and bite his nose. After defendant moved out of the house, witnesses testified seeing him taking pictures of M.M. from his car while M.M. was playing outside. Defendant contends the probative value of the evidence was outweighed by its prejudicial effect because of the "sheer volume of the testimony given on the issues." The State argues that the extraneous acts are admissible under article 38.37 of the Texas Code of Criminal Procedure. We review the trial court's decision to admit or exclude evidence using an abuse of discretion standard. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex.Crim.App. 2002). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. See Tex. R. Evid. 404(b). This evidence, however, is admissible for other purposes, such as proof of motive, opportunity, intent, or plan. Id. However:[n]otwithstanding Rule 404 . . . evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2004). The State argued that defendant's physical abuse towards both M.M. and S.M. and defendant's stalking of M.M. and his mother explained why M.M. feared defendant and the actions defendant might have taken if M.M. had told someone that defendant was sexually abusing him. We agree. The evidence of defendant's physical abuse and stalking were relevant to explain M.M.'s fear of defendant and why M.M. did not speak up earlier about the sexual abuse. See McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.-Beaumont 2001, pet. ref'd); Walker v. State, 4 S.W.3d 98, 103 (Tex. App.-Waco 1999, pet. ref'd). Further, such evidence is relevant to explain how a person in a position of authority, custody, or care of a young child has developed an unnatural attitude and relationship toward that child. See Poole v. State, 974 S.W.2d 892, 898 (Tex. App.-Austin 1998, pet. ref'd). However, even if evidence of an extraneous offense is relevant, a trial court must exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value includes: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim. App. 2000). We have already concluded the extraneous acts are probative of both M.M. and defendant's state of mind. Further, the State required this evidence to establish that M.M. feared defendant and why M.M. did not speak up sooner about the incidents of sexual abuse. While we recognize the potential this type of evidence has to impress the jury in some irrational, yet indelible, way and that four of the five State witnesses testified as to defendant's extraneous conduct, we cannot say the trial court's decision to admit the evidence was outside the "zone of reasonable disagreement." See Robbins, 88 S.W.3d at 260. Accordingly, we conclude the trial court did not err in admitting evidence of defendant's extraneous conduct.