Bezerra v. State

485 S.W.3d 133, 2016 Tex. App. LEXIS 467, 2016 WL 192747
CourtCourt of Appeals of Texas
DecidedJanuary 14, 2016
DocketNo. 07-15-00018-CR
StatusPublished
Cited by42 cases

This text of 485 S.W.3d 133 (Bezerra v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bezerra v. State, 485 S.W.3d 133, 2016 Tex. App. LEXIS 467, 2016 WL 192747 (Tex. Ct. App. 2016).

Opinion

OPINION

Mackey K. Hancock, Justice

Appellant, Sergio David Bezerra, appeals his conviction on four counts of indecency with a child, and sentences of twenty years’ incarceration for each count, with the sentences to run consecutively. By his appeal, appellant presents six issues. We will affirm.

[137]*137Factual and Procedural Background

Appellant was charged by indictment with four counts of indecency with a child by contact committed against two complainants. These pharges arose from allegations that appellant rubbed the twó complainants’ legs over their clothes near their privates during a third grade Spanish class that appellant taught. Appellant was also alleged to have put his hand in the lap of the complainants and put;their hands in his lap. Appellant also allegedly made the complainants sit on his lap and face him in a way that caused their privates to touch.

During the State’s casé, it offered the testimony of appellant’s adopted daughter, M.G. Over appellant’s objection, M.G. testified that, when she was still a minor, appellant had put her hand on his penis, and repeatedly entered her bedroom while she was sleeping and touched her vágina. After M.G. reached majority, she sought counseling with Fred Capps, a licensed professional counselor. Capps also testified, over objection, about his treatment of M.G. for the sexual assaults committed by appellant.

The State also offered the testimony of one of appellant’s former students that appellant asked her to hold his hand and kiss him while she was still in high school. The witness testified that appellant accepted her refusal of his proposition arid that she was able to ept contact with appellant after' she left high school.

Appellant testified that he did not have any sexual contact with the complainants or his adopted, daughter. He testified that, due to medications he takes for heart problems, he has not had an erection or sexual desire since 1993. He denied propositioning his former student.

After hearing all the evidence, the-jury returned guilty verdicts on all four counts. Following the presentation of punishment evidence, the jury assessed sentences of twenty years’ incarceration on each count. The trial court then ordered that the four sentences run consecutively. Appellant timely filed notice of appeal.

On appeal,' appellant presents six issues. Appellant’s first issue contends that the trial court abused its discretion in admitting extraneous offense evidence that he had sexually assaulted his adopted daughter. By his second issue, appellant contends that the trial court abused its discretion by admitting the testimony of a licensed professional counselor that treated appellant’s adopted daughter. Appellant’s third issue challenges the trial court’s ruling admitting the videotaped interviews of the complainants. By his fourth issue, appellant contends that the trial court' abused its' discretion by admitting the testimony of a former student that appellant propositioned her. Appellant’s fifth issue contends that the cumulative effect of all of the preceding errors necessitates a'reversal. By his sixth issue, appellant contends that the trial court abused its discretion by admitting victim-impact testimony regarding the desires of the victims’ family as to sentencing. ■

Standard of Review

All of appellant’s issues challenge the trial court’s decisions to admit certain items of evidence. We review a trial court’s evidentiary rulings for an abuse of discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App.2006); Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App.2005) (en banc). This same abuse of discretion standard applies to a trial court’s decision to admit or exclude extraneous offense- evidence. Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App.2011) (citing Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.2005)). A trial court does [138]*138not abuse its discretion if the decision to admit evidence is within the zone of reasonable disagreement. See Oprean, 201 S.W.3d at 726; Bradshaw v. State, 466 S.W.3d 875, 878 (Tex.App,—Texarkana 2015, pet. ref'd). If the trial court’s evi-dentiary decision is supported by the record and there is any theory of law that would support the ruling, it is not an abuse of discretion. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App.2002).

Issue One: Extraneous Offense Evidence under Article 38.37

By his first issue, appellant contends that the trial court abused its discretion in admitting eyidenee that appellant had committed extraneous sex offenses against his adopted daughter. In support of his first issue, appellant presents three arguments: (a) this evidence was inadmissible because the extraneous offenses predate the effective date of article 38.37, section 2(b); (b) article 38.37, section 2(b), violates due process and due course of law; and (c) the extraneous offense evidence was inadmissible under Texas Rule of Evidence 403.

(a) Effective date of article 88.37, § 2(b)

Appellant contends that evidence of extraneous sex offenses committed by appellant against his adopted daughter six years before the effective date of section 2(b) of article 38.37 is not admissible under the statute..

In 1995, the legislature enacted article 38.37 to authorize the admission of extraneous offense evidence committed by the defendant against the minor complainant named in the indictment. See Tex. Code Ceim. Pboc. Ann. art. 38.37, § 1(b) (West Supp.2015). The legislature added subsection 2(b) to the statute in 2013 to authorize the admission of extraneous offense evidence'“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.” Id. art. 38.37, § 2(b). Subsection 2(b) “applies to the admissibility, of evidence in. a criminal proceeding that commences on or after the effective date of this Act[,]” which is September 1, 2013. See Act of June 14, 2013, 83rd Leg., R.S., ch. 387, § 2-3, 2013 Tex.. Gen. Laws 1167, 1168.

The Court of Criminal Appeals has held that “article 38.37 is applicable to any one of many isolated proceedings. within a prosecution, so long as the proceeding at issue occurred after” the statute’s effective date. Howland v. State, 990 S.W.2d 274, 277 (Tex.Crim.App.1999). Trial is a “proceeding” for purposes of applying a statute that applied to any proceeding commencing on or after the effective date of a statute. See Mata v. State, 991 S.W.2d 900, 904 (Tex.App.—Beaumont 1999, pet. ref'd) (citing Howland, 990 S.W.2d at 277). Because the trial in the present case commenced after the effective date of section 2(b) of article 38.37, evidence authorized under that subsection was properly admitted by the trial court. See Dominguez v. State, 467 S.W.3d 521, 525 (Tex.App.—San Antonio 2015, pet. ref'd) (applying the Howland holding to section 2(b) of article 38.37).

Appellant contends that Howland is in-apposite. The basis for appellant’s contention is that the enactment paragraph for article 38.37, that was addressed in

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Bluebook (online)
485 S.W.3d 133, 2016 Tex. App. LEXIS 467, 2016 WL 192747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bezerra-v-state-texapp-2016.