TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00781-CR
Abram Harker Jeffs, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF SCHLEICHER COUNTY, 51ST JUDICIAL DISTRICT NO. 1002, THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Abram Harker Jeffs and nine other members of the Fundamentalist Church
of Jesus Christ of Latter Day Saints (FLDS), living at the YFZ (Yearning for Zion) Ranch in
Schleicher County, Texas, were indicted for sexual assault of a child.1 See Tex. Penal Code Ann.
§ 22.011(a)(2)(A) (West 2011). Subsequently, a jury convicted appellant and assessed his
punishment at confinement for 17 years in the Institutional Division of the Texas Department of
Criminal Justice and, in addition, assessed a $10,000 fine.2 See id. §§ 12.32, 22.011(a)(2)(A),
22.011(f) (West 2011). On appeal, appellant raises thirteen points of error. We affirm.
1 Some of the other individuals were also indicted for bigamy. Appellant, however, was charged only with sexual assault of a child. 2 After finding him guilty, the jury found the enhancement paragraph to be true, subjecting appellant to an increased punishment range. See Tex. Penal Code Ann. §§ 12.32, 22.011(f) (West 2011). The enhancement paragraph alleged that the victim was a person whom appellant was prohibited from marrying, purporting to marry, or living with under the appearance of being married. See id. §§ 22.011(f), 25.01(e) (West Supp. 2011). FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of this case is fully discussed in prior opinions
of this Court, most recently in our opinion in Jeffs v. State, No. 03-10-00272-CR, 2012 WL 601846,
at *1-4 (Tex. App.—Austin Feb. 24, 2012, no pet. h.) (mem. op., not designated for publication), and
will not be repeated here. We discuss further background details only as necessary to address the
points of error raised by appellant in this appeal.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
In his first point of error, appellant challenges the sufficiency of the evidence. He first
asserts that the evidence is insufficient to support his conviction for sexual assault of a child because
the State failed to prove the element of penetration. He then contends that the evidence is
insufficient because it fails to demonstrate that the sexual assault occurred in Texas.
Additional Background
Appellant, a lifelong member of FLDS, moved to the YFZ Ranch in Schleicher
County, Texas, in February 2004 with his family—including multiple “celestial wives” and several
children—and lived with them in a single residence on the ranch. On October 5, 2005, appellant
was “sealed” in a spiritual or celestial marriage to S. Johnson, a female FLDS member born
November 13, 1990, who had moved to the YFZ Ranch in January 2005. The ceremony took place
at the “prophet’s” house on the ranch in Schleicher County when S. Johnson was 14 years old and
appellant was 34. Following the celestial marriage ceremony, appellant and S. Johnson lived
2 together in the same household, purportedly as husband and wife. On February 7, 2007, when she
was 16 years old, S. Johnson gave birth to a son. DNA testing confirmed that appellant was the
biological father of the child.3
Due process requires that the State prove, beyond a reasonable doubt, every element
of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Byrd v. State, 336 S.W.3d 242,
246 (Tex. Crim. App. 2011). When reviewing the sufficiency of the evidence to support a
conviction, we consider all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010). The sufficiency of the evidence is measured by reference to the elements of the offense as
defined by a hypothetically correct jury charge for the case. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
In determining the legal sufficiency of the evidence, we must consider all the evidence
in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the
prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff
v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen v. State, 249 S.W.3d 680, 688-89
(Tex. App.—Austin 2008, no pet.). We review all the evidence in the light most favorable to the
3 DNA testing reflected that appellant’s DNA profile matched the child’s DNA profile at all 15 genetic markers analyzed. Statistical analysis of the DNA test results indicated that appellant could not be excluded as the biological father of the child, while 99.9998% of the male population was excluded as the child’s father. In addition, the genetic results are 1,294,000 times more likely if appellant is the child’s biological father than if a randomly selected unrelated male of his race is the father. Further, the likelihood appellant is the child’s biological father is 99.99992% as compared to an untested randomly chosen male of his race.
3 verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence,
and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). A legal-sufficiency review requires
us to defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their
testimony. Brooks, 323 S.W.3d at 899. When faced with a record of historical facts that supports
conflicting inferences, we must presume that the trier of fact resolved any such conflicts in
favor of the verdict and must defer to that resolution. Jackson, 443 U.S. at 326; Padilla v. State,
326 S.W.3d 195, 200 (Tex. Crim. App. 2010). The jury, as exclusive judge of the facts, is entitled
to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton,
235 S.W.3d at 778; see Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). In assessing the
sufficiency of the evidence, we have a duty to ensure that the evidence presented actually
supports a conclusion that the defendant committed the crime that was charged. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see Winfrey v. State, 323 S.W.3d 875, 882 (Tex.
Crim. App. 2010).
Evidence of Penetration
Appellant was charged with the offense of sexual assault of a child. See Tex. Penal
Code Ann. § 22.011 (a)(2)(A), (c)(1),(2). The State alleged in the indictment, and had the burden
to prove, that appellant intentionally or knowingly caused the penetration of the female sexual organ
of S. Johnson, a child younger than 17 years of age who was not the spouse of appellant, with
appellant’s sexual organ. Appellant argues that the evidence is insufficient to prove penetration. He
complains that the State’s evidence was largely circumstantial and failed to eliminate the possibility
4 that S. Johnson could have become pregnant by artificial insemination.4 He points to the lack of
testimony, or other outcry evidence, from S. Johnson as support for this contention.
The lack of direct evidence is not dispositive of the issue of appellant’s guilt.
The State is not required to present direct evidence to establish guilt. See Guevara v. State,
152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Sanders v. State, 346 S.W.3d 26, 32 (Tex. App.—Fort
Worth 2011, pet. ref’d). Indeed, circumstantial evidence is as probative as direct evidence in
establishing guilt and may alone be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007); Sanders, 346 S.W.3d at 32. The law does not require that each fact “point
directly and independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13; see
Guevara, 152 S.W.3d at 49; Sanders, 346 S.W.3d at 32. The standard of review on appeal is the
same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010); Hooper, 214 S.W.3d at 13; Guevara, 152 S.W.3d at 49.
4 Specifically, appellant maintains that the record demonstrates only that he was a possible sperm donor. Relying on the concurring opinion in Griffith v. State, appellant argues that, given modern science, fatherhood does not indisputably prove sexual intercourse, suggesting that S. Johnson could have become pregnant by artificial insemination. See Griffith v. State, 976 S.W.2d 241, 253 n.1 (Tex. App.—Amarillo 1998, pet. ref’d) (Quinn, J., concurring). Appellant did not offer evidence at trial that S. Johnson became pregnant by some act other than sexual intercourse with him or present his theory of artificial insemination to the jury in any way. Moreover, appellant’s reliance on the Griffith concurrence is somewhat misplaced, as Justice Quinn’s reference to artificial insemination was contained in a footnote to an explicit statement recognizing that “[o]ne way to prove that [the defendant] had intercourse [with the alleged victim] was to prove that he was the infant’s father. Indeed, if he was the father then it would be quite reasonable to deduce that he had intercourse with the mother.” Id.
5 Moreover, it is not incumbent upon the State to exclude “every reasonable hypothesis
other than guilt” for the evidence to be considered sufficient.5 Geesa v. State, 820 S.W.2d 154,
157-61 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570,
571 (Tex. Crim. App. 2000); Sanders, 346 S.W.3d at 32; Villarreal Lopez v. State, 267 S.W.3d 85,
97-98 (Tex. App.—Corpus Christi 2008, no pet.) (citing Harris v. State, 133 S.W.3d 760, 763-65
(Tex. App.—Texarkana 2004, pet. ref’d)); see Orona v. State, 836 S.W.2d 319, 322 (Tex.
App.—Austin 1992, no pet.) (“Geesa rightfully abolished the logically inconsistent requirement in
a circumstantial-evidence case that a legal-sufficiency review, in which the appellate court must view
the evidence in the light most favorable to the prosecution, must also negate the existence of any
alternate reasonable hypothesis inconsistent with the defendant’s guilt.”)
In a prosecution for sexual assault of a child, penetration may be proven by
circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990);
Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); Belt v. State, 227 S.W.3d 339, 342
(Tex. App.—Texarkana 2007, no pet.); Quinton v. State, 56 S.W.3d 633, 641 (Tex. App.—Waco
2001, pet. ref’d). There is no requirement that the child victim testify about penetration. Villalon,
791 S.W.2d at 133; Nilsson, 477 S.W.2d at 596. Evidence of the slightest penetration is sufficient.
Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); see Nilsson, 477 S.W.2d at 595.
5 In Geesa v. State, the Texas Court of Criminal Appeals expressly disavowed the “reasonable hypothesis analytical construct” for legal-sufficiency reviews. See Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).
6 At trial, the jury received evidence that appellant moved to the YFZ Ranch in
Schleicher County, Texas, in February 2004 and that S. Johnson moved to the ranch in January 2005.
The evidence showed that appellant was sealed to S. Johnson in a celestial or spiritual marriage for
“time and eternity” in October 2005 in a ceremony that was performed on the YFZ Ranch when she
was 14 years old.6 Evidence further showed that after the marriage ceremony, appellant and
S. Johnson lived together in the same household on the ranch, purportedly as husband and wife,
including engaging in a sexually intimate relationship.7 Finally, the evidence showed that after being
sealed in a spiritual marriage with appellant, S. Johnson gave birth to a son when she was 16 years
old. DNA testing established that appellant was the biological father of her child.8
A fact-finder may support its verdict with reasonable inferences drawn from the
evidence. Laster, 275 S.W.3d at 523; Hooper, 214 S.W.3d at 14. Jurors are free to use their
6 Testimony showed that celestial or spiritual marriages in FLDS were religious unions not recognized as legal marriages by the State of Texas. A certified copy of a Utah marriage certificate reflected that appellant was already legally married to Elizabeth A. Steed at the time he entered into this spiritual marriage with S. Johnson. 7 Evidence demonstrated that according to FLDS doctrine and teachings, a woman must be sealed in a celestial marriage with a worthy priesthood man in order to gain eternal salvation. Thus, a celestial marriage was a significant, if not the most significant, event in the life of a girl in FLDS. She was placed in such a relationship when the “prophet” deemed her worthy, regardless of her age. After such a marriage, the girl was placed in the household of her husband, who became her new “priesthood head.” Throughout their lives, the girls receive continuous training on what FLDS deems the proper relationship between a wife and her husband. She is to be obedient both spiritually and physically to her husband—physical submission to him meaning being sexually intimate with him. According to FLDS doctrine and teachings, a woman’s greatest mission in life is to bring forth pure and faithful children for her priesthood head. 8 Although appellant contested one of the statistical representations of the DNA test results, he offered no controverting evidence regarding the fact that his DNA profile contained all of the obligate paternal alleles of the true biological father of the child.
7 common sense and apply common knowledge, observation, and experience gained in the
ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from
the evidence. Obigbo v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.); Jones v. State,
900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, pet. ref’d); Wawrykow v. State,
866 S.W.2d 87, 88 (Tex. App.—Beaumont 1993, pet. ref’d); see Saenz v. State, 976 S.W.2d 314,
322 (Tex. App.—Corpus Christi 1998, no pet.) (“Jurors are expected to draw upon their own
experiences and common knowledge and apply them to the facts at hand.”).
In this case, the circumstantial evidence of penetration is compelling. Using common
sense and common knowledge, the jurors could rationally conclude that appellant and S. Johnson,
as spiritual husband and wife, were involved in a sexually intimate relationship, one including sexual
intercourse, that resulted in the conception of their son. Accordingly, viewing the evidence in the
light most favorable to the verdict and with proper regard for the jury’s power to resolve conflicts,
evaluate credibility, and weigh the evidence, a rational trier of fact could have found beyond
a reasonable doubt that appellant intentionally or knowingly caused the penetration of
S. Johnson’s sexual organ with his sexual organ when she was younger than 17. See Jessop v. State,
No. 03-10-00078-CR, 2012 WL 1402117, at *2-4 (Tex. App.—Austin Apr. 19, 2012, no pet. h.);
see also Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. Therefore, we hold that the evidence
of penetration is legally sufficient. We overrule appellant’s first point of error.
Territorial Jurisdiction
Also in his first point of error, appellant contends that the evidence is insufficient to
prove territorial jurisdiction. He argues that the evidence is insufficient to demonstrate that
8 appellant’s sexual assault of S. Johnson occurred in Texas because the direct evidence fails to show
that the sexual act resulting in the conception of the child took place in Texas.
Texas has jurisdiction over an offense if the conduct constituting the offense occurs
inside this state. See Tex. Penal Code Ann. § 1.04(a)(1) (West 2005). Jurisdiction can be
established by circumstantial evidence. Vaughn v. State, 607 S.W. 2d 914, 920 (Tex. Crim. App.
1980); Gunter v. State, 327 S.W.3d 797, 799-800 (Tex. App.—Fort Worth 2010, no pet.); see, e.g.,
Walker v. State, 195 S.W.3d 250, 257-58 (Tex. App.—San Antonio 2006, no pet.); James v. State,
89 S.W.3d 86, 89 (Tex. App.—Corpus Christi 2002, no pet.). It is unclear whether the State must
prove territorial jurisdiction beyond a reasonable doubt or by a preponderance of the evidence. See
Torres v. State, 141 S.W.3d 645, 654 (Tex. App.—El Paso 2004, pet. ref’d). Regardless of which
standard is applied, we conclude that the evidence is legally sufficient to establish territorial
jurisdiction in Texas.
The circumstantial evidence—viewed in the light most favorable to the verdict and
with proper respect for the jury’s power to resolve conflicts, evaluate credibility, and weigh the
evidence—showed that appellant and S. Johnson lived together in a sexually intimate relationship
as spiritual husband and wife on the YFZ Ranch in Schleicher County, Texas, prior to, during, and
after the birth of their child. We hold that this is sufficient circumstantial evidence to support a
finding by a jury beyond a reasonable doubt that appellant sexually assaulted S. Johnson in Texas.9
9 Appellant suggests that the State’s proof failed because the circumstantial evidence placing appellant in Texas around the date of the child’s conception was “far too tenuous.” However, the jury, as exclusive judge of the facts, is entitled to weigh the evidence and draw reasonable inferences therefrom. See Jackson v. Virginia, 443 U.S. 307, 313 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
9 See Jessop, 2012 WL 1402117, at *4; see also Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at
778; Geesa, 820 S.W.2d at 155, 161. Therefore, the evidence is sufficient to prove that Texas has
territorial jurisdiction.10 We overrule appellant’s second point of error.
II. CHURCH RECORDS
In his second and third points of error, appellant argues that the trial judge erred in
admitting documentary evidence seized from the vaults of the temple and temple annex of the YFZ
Ranch. These two points of error and the arguments made are identical to those raised and
addressed in Jessop v. State, 2012 WL 1402117, at *16-20, and Keate v. State, No. 03-10-00077-CR,
2012 WL 896200, at *5-10 (Tex. App.—Austin Mar. 16, 2012, no pet. h.) (mem. op., not designated
for publication). In those opinions, we concluded that the trial court did not abuse its discretion
in admitting the complained-of documents. See Jessop, 2012 WL 1402117, at *16-20; Keate,
2012 WL 896200, at *5-10. We do not repeat that discussion here. For the reasons stated in our
opinions in Jessop and Keate, we overrule appellant’s second and third points of error.
III. MOTION TO QUASH THE INDICTMENT
In his fourth point of error, appellant challenges the trial court’s denial of his motion
to quash the indictment, which complained of impermissible grand jury procedures in Schleicher
County. This point of error and the arguments made are identical to those raised and addressed in
Jeffs v. State, 2012 WL 601846, at *11-18. There, we concluded that the trial court did not abuse
10 Because we find the evidence legally sufficient under the more stringent beyond- a-reasonable-doubt standard, it would also be sufficient under the preponderance-of-the- evidence standard.
10 its discretion in denying the defendants’ joint motion to quash the indictment. See id. We do not
repeat that discussion here. For the reasons stated in our opinion in Jeffs, we overrule appellant’s
fourth point of error.
IV. PUNISHMENT EVIDENCE
In two points of error, appellant contends that the trial court erroneously admitted the
testimony of two witnesses—Dr. Lawrence Beall and Jonathan Broadway—during the punishment
phase of trial.
Dr. Lawrence Beall
In his fifth point of error, appellant complains that the trial judge erred in admitting
the testimony of Dr. Lawrence Beall, a clinical psychologist, during the punishment phase of trial.
This point of error and the arguments made are identical to those raised and addressed in Jessop
v. State, 2012 WL 1402117, at *22-29, and Keate v. State, 2012 WL 896200, at *12-18. In those
opinions, we concluded that the trial court did not abuse its discretion in admitting the complained-of
testimony. See Jessop, 2012 WL 1402117, at *22-29; Keate, 2012 WL 896200, at *12-18. We do
not repeat that discussion here. For the reasons stated in our opinions in Jessop and Keate, we
overrule appellant’s fifth point of error.
Agent Jonathan Broadway
During the punishment phase of trial, FBI Agent Jonathan Broadway testified that
Warren Jeffs, the “prophet” of FLDS and appellant’s half brother, was a “fugitive from justice” from
11 June 2005 until his capture at the end of August 2006.11 The agent further testified that Warren Jeffs
was placed on the FBI’s Ten Most Wanted list—a list the FBI uses to garner publicity for fugitives
deemed a menace to society to seek the public’s assistance in capturing the fugitive—in May 2006
and remained on the list until his arrest. Agent Broadway stated that Warren Jeffs’s fugitive status
was widely publicized in the media, locally in the Eldorado/San Angelo area as well as nationally.
He also testified that during the time his brother was a wanted fugitive, appellant had multiple
encounters with law enforcement officers.
In his sixth point of error, appellant maintains that the trial court erred in allowing
Agent Broadway’s testimony. He asserted at trial, and argues on appeal, that the agent’s testimony
about the fugitive status of Warren Jeffs was irrelevant under Article 37.07 of the Texas Code of
Criminal Procedure and was more prejudicial than probative under Rule 403 of the Texas Rules of
Evidence. The State maintained that the agent’s testimony demonstrated appellant’s capacity to
conceal matters from law enforcement (not revealing the whereabouts of Warren Jeffs) and his
willingness to maintain personal contact with a publicly known fugitive. The State asserted that both
of these matters were relevant to the issue of whether appellant was a suitable candidate for
community supervision.12
11 The evidence in the record reflected that appellant and Warren Jeffs were the sons of the former “prophet,” Rulon Jeffs, but had different mothers. 12 The evidence in the record demonstrated, and the State acknowledged, that appellant had never before been convicted of a felony offense and thus was eligible for community supervision. See Tex. Code. Crim. Proc. Ann. art. 42.12, § 4 (West Supp. 2011).
12 Standard of Review
We review a trial court’s decision to admit punishment evidence under an
abuse-of-discretion standard. Davis v. State, 329 S.W.3d 798, 802 (Tex. Crim. App. 2010); Walters
v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We may not disturb a trial court’s
evidentiary ruling absent an abuse of discretion. McGhee v. State, 233 S.W.3d 315, 318 (Tex. Crim.
App. 2007). The trial court abuses its discretion only when its decision lies “outside the zone of
reasonable disagreement.” Davis, 329 S.W.3d at 802; Walters, 247 S.W.3d at 217.
Relevance of Testimony and Article 37.07
Section 3(a) of article 37.07 of the Texas Code of Criminal Procedure governs the
admissibility of evidence at the punishment phase of a non-capital criminal trial and grants the trial
court broad discretion to admit evidence that the court deems relevant to sentencing. See Tex. Code
Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2011); Sims v. State, 273 S.W.3d 291, 295 (Tex.
Crim. App. 2008). Admissibility of evidence at the punishment phase of a trial of a non-capital
felony offense is a function of policy rather than relevancy. Hayden v. State, 296 S.W.3d 549, 552
(Tex. Crim. App. 2009); Come v. State, 82 S.W.3d 486, 491 (Tex. App.—Austin 2002, no pet.). In
ascertaining what is relevant to sentencing, the focus is on what is helpful to a jury in deciding an
appropriate sentence for a defendant. Sims, 273 S.W.3d at 295; McGhee, 233 S.W.3d at 318; Come,
82 S.W.3d at 491. Giving complete information about the defendant so the jury can tailor an
appropriate sentence is one of the policy reasons to be considered when determining whether to
admit punishment evidence. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004) (citing
Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).
13 Appellant argues against the relevance of the evidence of his brother’s fugitive status
because he claims it was unreasonable for the State to assert that he should have turned Warren Jeffs
in to authorities. He maintains that the State only speculated that he knew that Warren Jeffs was a
fugitive or that he knew the whereabouts of Warren Jeffs. However, the relevance was not simply
the State’s contention that appellant failed to turn Warren Jeffs in to the authorities when he should
have. The State also maintained that the evidence was relevant because it showed that appellant had
repeated personal contact with a known fugitive.
The record contains evidence reflecting that the fugitive status of Warren Jeffs was
widely publicized locally in the Eldorado and San Angelo community as well as nationally. In
addition, the record contains letters that appellant wrote to Warren Jeffs throughout March 2006,
during the time Warren Jeffs was a fugitive from justice. The record contains further evidence
demonstrating that appellant had direct contact with Warren Jeffs when the prophet officiated over
appellant’s celestial marriage to his fifth wife on July 25, 2006, at a time when Warren Jeffs was on
the FBI’s Ten Most Wanted list. The trial court could have reasonably concluded that this evidence
reflected an ongoing relationship, or appellant’s willingness to maintain an ongoing relationship,
with a known fugitive and was probative of appellant’s character and suitability for community
supervision—relevant issues in the punishment phase of this trial. Thus, we cannot say the trial
court abused its discretion in admitting Agent Broadway’s testimony over appellant’s relevancy
objection. Appellant’s sixth point of error is overruled as it relates to relevance and the violation of
Article 37.07.
14 Prejudice and Rule 403
Having determined that Agent Broadway’s testimony was relevant, we must next
weigh its probative value against its prejudicial effect. Rule 403 allows for the exclusion of
otherwise relevant evidence when its probative value is substantially outweighed by the danger of
unfair prejudice. Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries
a presumption that relevant evidence will be more probative than prejudicial. Davis, 329 S.W.3d
at 806; Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009). Further, Rule 403 does not
require exclusion of evidence simply because it creates prejudice; the prejudice must be “unfair.”
Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 2966 (2011);
State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). The rule envisions exclusion of
evidence only when there is a clear disparity between the degree of prejudice of the offered evidence
and its probative value. Gayton v. State, 331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d)
(citing Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)).
“The term ‘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.” Davis,
329 S.W.3d at 806 (citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). “‘Unfair
prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Id. All testimony and physical evidence are likely to be prejudicial
to one party or the other. Davis, 329 S.W.3d at 806; Jones, 944 S.W.2d at 653. It is only when there
15 exists a clear disparity between the degree of prejudice produced by the offered evidence and its
probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806; Hammer, 296 S.W.3d at 568.
Evidence of appellant’s personal association with a known fugitive from justice was
obviously unfavorable to appellant, but we conclude it was not unfairly prejudicial—or at least that
any unfair prejudice created by the evidence did not substantially outweigh its probative value. It
came as part of a larger examination of appellant’s character, behavior, and beliefs. In this case, the
jury received evidence that appellant personally engaged in the practice of plural marriages and
underage marriage as well as the reassignment of wives and children—his fifth wife, mother of his
twin children, was his former stepmother. Warren Jeffs sealed appellant to this woman in a celestial
marriage while he was a fugitive on the FBI’s Ten Most Wanted list. The evidence of an ongoing
relationship, or at least repeated contact, with a wanted fugitive was but one of the factors that
allowed the jury to determine the appropriate punishment for appellant. This evidence was not so
unfairly prejudicial that there was a clear disparity between the degree of the prejudice and its
probative value. Accordingly, the trial court did not abuse its discretion in admitting this evidence
over appellant’s 403 objection. Appellant’s sixth point of error is overruled as it relates to the
violation of Rule 403.
V. DNA EVIDENCE
In his seventh point of error, appellant maintains that the trial judge erred in admitting
evidence of the probability-of-paternity statistic of the DNA test results because the use of a 0.5 prior
probability in calculating the statistic violates the presumption of innocence and shifts the burden
of proof. This point of error and the arguments made are identical to those raised and addressed in
16 Jessop v. State, 2012 WL 1402117, at *5-16. There, we concluded that the trial court did not abuse
its discretion in admitting the complained-of DNA evidence. See id. We do not repeat that
discussion here. For the reasons stated in our opinion in Jessop, we overrule appellant’s seventh
point of error.
VI. MOTION TO SUPPRESS EVIDENCE
In points of error eight through 13, appellant challenges the trial court’s denial of his
motion to suppress. These six points of error and the arguments made are identical to those raised
and addressed in Emack v. State, 354 S.W.3d 828, 833-40 (Tex. App.—Austin 2011, no pet.), and
Jeffs v. State, 2012 WL 601846, at *4-11. In those opinions, we concluded that the trial court did
not abuse its discretion in denying the defendants’ joint motion to suppress. See Emack, 354 S.W.3d
at 833-40; Jeffs, 2012 WL 601846, at *4-11. We do not repeat that discussion here. For the reasons
stated in our opinions in Emack and Jeffs, we overrule appellant’s points of error eight through 13.
CONCLUSION
Having found that the evidence is sufficient to prove both penetration and territorial
jurisdiction, we hold the evidence is sufficient to support appellant’s conviction for sexual assault
of a child. In addition, we hold that the trial court did not abuse its discretion in admitting the church
and family records recovered from the YFZ Ranch, the probability-of-paternity statistic of the DNA
evidence, or the testimony of Dr. Lawrence Beall and Agent Jonathan Broadway during the
punishment phase of trial. We further hold that the trial court did not abuse its discretion in denying
appellant’s motion to quash the indictment and motion to suppress evidence.
17 The judgment of conviction is affirmed.
__________________________________________ J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Affirmed
Filed: May 10, 2012
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