Brian Victorian v. State
Opinion
ACCEPTED 01-13-01004-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/18/2015 4:07:14 PM CHRISTOPHER PRINE CLERK
No. 01-13-01004-CR In the FILED IN Court of Appeals 1st COURT OF APPEALS For the HOUSTON, TEXAS First District of Texas 2/18/2015 4:07:14 PM CHRISTOPHER A. PRINE At Houston Clerk No. 1363644 In the 182nd District Court Of Harris County, Texas BRIAN VICTORIAN Appellant V. THE STATE OF TEXAS Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
KATIE DAVIS Assistant District Attorney Harris County, Texas State Bar Number: 24070242 davis_katie@dao.hctx.net
1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5826 Fax Number: (713) 755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon AndersonDistrict Attorney of Harris County
Katie DavisAssistant District Attorney on appeal
Angela SmithAssistant District Attorneys at trial
Appellant or Criminal Defendant:
Brian Victorian
Counsel for Appellant:
Kurt B. Wentz—Counsel on appeal
Yvonne Burton—Counsel at trial
Trial Judge:
Honorable Jeannine BarrJudge of 182nd District Court
Honorable Don Burgess—Visiting Judge at trial
i TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 6
REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 7 I. Standard of Review and Applicable Law......................................................7 II. The evidence is legally sufficient to support the appellant’s conviction for aggravated sexual assault of a child. ...............................................................9 REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR ....... 17 I. Standard of Review .....................................................................................18 II. The trial court did not abuse its discretion in admitting the appellant’s extraneous sexual abuse of Jane into evidence..............................................19 A. Jane’s testimony that the appellant touched and fondled her on other occasions was more probative than unfairly prejudicial. .............................21 B. The extraneous evidence that the appellant repeatedly touched Jane, as presented through the testimony of Isaac and the medical records, Isaac was more probative than unfairly prejudicial. .....................................................26 III. The appellant was not harmed by the trial court’s admission of the extraneous conduct. .......................................................................................31 CONCLUSION ........................................................................................................ 33
CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 34
ii INDEX OF AUTHORITIES
CASES
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) ...............................................................7 Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972) ...............................................................19 Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005) .............................................................18 Austin v. State, 222 S.W.3d 801 (Tex. App.— Houston [14th Dist.] 2007, pet. ref’d) ..................................................................28 Beam v. State, 447 S.W.3d 401 (Tex. App.— Houston [14th Dist.] 2014, no pet.)............................................................... 23, 29 Blackwell v. State, 193 S.W.3d 1 (Tex. App.— Houston [1st Dist.] 2006, pet. ref’d) ....................................................................25 Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) .............................................................30 Burke v. State, 371 S.W.3d 252 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) ....................................................... 22, 23, 28 Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000) .................................................................9 Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991) .............................................................15 Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................................................. 8, 13, 17 Garcia v. State, 563 S.W.2d 925 (Tex. Crim. App. 1978) .............................................................14 Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.1991) ................................................................8
iii Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) .............................................................20 Gonzalez v. State, 337 S.W.3d 473 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) ......................................................................9 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) ...............................................................18 Greene v. State, 287 S.W.3d 277 (Tex. App.— Eastland 2009, pet. ref’d) .....................................................................................22 Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) ...............................................................23 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ...............................................................18 Hinds v. State, 970 S.W.2d 33 (Tex. App.— Dallas 1998, no pet.) ............................................................................................20 Hinojosa v. State, 995 S.W.2d 955 (Tex. App.— Houston [14th Dist.] 1999, no pet.)......................................................................24 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ...................................................................8 In re R.R., 373 S.W.3d 730 (Tex. App.— Houston [14th Dist.] 2012, pet. filed) ........................................................... 13, 15 Jackson v. Virginia, 443 U.S. 307 (1979) .........................................................................................7, 17 Johnson v. State, 419 S.W.3d 665 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d) ................................................. 10, 12, 13, 31 Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993) ...............................................................8 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App.
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ACCEPTED 01-13-01004-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/18/2015 4:07:14 PM CHRISTOPHER PRINE CLERK
No. 01-13-01004-CR In the FILED IN Court of Appeals 1st COURT OF APPEALS For the HOUSTON, TEXAS First District of Texas 2/18/2015 4:07:14 PM CHRISTOPHER A. PRINE At Houston Clerk No. 1363644 In the 182nd District Court Of Harris County, Texas BRIAN VICTORIAN Appellant V. THE STATE OF TEXAS Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
KATIE DAVIS Assistant District Attorney Harris County, Texas State Bar Number: 24070242 davis_katie@dao.hctx.net
1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5826 Fax Number: (713) 755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon AndersonDistrict Attorney of Harris County
Katie DavisAssistant District Attorney on appeal
Angela SmithAssistant District Attorneys at trial
Appellant or Criminal Defendant:
Brian Victorian
Counsel for Appellant:
Kurt B. Wentz—Counsel on appeal
Yvonne Burton—Counsel at trial
Trial Judge:
Honorable Jeannine BarrJudge of 182nd District Court
Honorable Don Burgess—Visiting Judge at trial
i TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 6
REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 7 I. Standard of Review and Applicable Law......................................................7 II. The evidence is legally sufficient to support the appellant’s conviction for aggravated sexual assault of a child. ...............................................................9 REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR ....... 17 I. Standard of Review .....................................................................................18 II. The trial court did not abuse its discretion in admitting the appellant’s extraneous sexual abuse of Jane into evidence..............................................19 A. Jane’s testimony that the appellant touched and fondled her on other occasions was more probative than unfairly prejudicial. .............................21 B. The extraneous evidence that the appellant repeatedly touched Jane, as presented through the testimony of Isaac and the medical records, Isaac was more probative than unfairly prejudicial. .....................................................26 III. The appellant was not harmed by the trial court’s admission of the extraneous conduct. .......................................................................................31 CONCLUSION ........................................................................................................ 33
CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 34
ii INDEX OF AUTHORITIES
CASES
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) ...............................................................7 Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972) ...............................................................19 Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005) .............................................................18 Austin v. State, 222 S.W.3d 801 (Tex. App.— Houston [14th Dist.] 2007, pet. ref’d) ..................................................................28 Beam v. State, 447 S.W.3d 401 (Tex. App.— Houston [14th Dist.] 2014, no pet.)............................................................... 23, 29 Blackwell v. State, 193 S.W.3d 1 (Tex. App.— Houston [1st Dist.] 2006, pet. ref’d) ....................................................................25 Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) .............................................................30 Burke v. State, 371 S.W.3d 252 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) ....................................................... 22, 23, 28 Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000) .................................................................9 Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991) .............................................................15 Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................................................. 8, 13, 17 Garcia v. State, 563 S.W.2d 925 (Tex. Crim. App. 1978) .............................................................14 Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.1991) ................................................................8
iii Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) .............................................................20 Gonzalez v. State, 337 S.W.3d 473 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d) ......................................................................9 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) ...............................................................18 Greene v. State, 287 S.W.3d 277 (Tex. App.— Eastland 2009, pet. ref’d) .....................................................................................22 Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) ...............................................................23 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ...............................................................18 Hinds v. State, 970 S.W.2d 33 (Tex. App.— Dallas 1998, no pet.) ............................................................................................20 Hinojosa v. State, 995 S.W.2d 955 (Tex. App.— Houston [14th Dist.] 1999, no pet.)......................................................................24 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ...................................................................8 In re R.R., 373 S.W.3d 730 (Tex. App.— Houston [14th Dist.] 2012, pet. filed) ........................................................... 13, 15 Jackson v. Virginia, 443 U.S. 307 (1979) .........................................................................................7, 17 Johnson v. State, 419 S.W.3d 665 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d) ................................................. 10, 12, 13, 31 Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993) ...............................................................8 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .............................................................31
iv Johnston v. State, 230 S.W.3d 450 (Tex. App.— Fort Worth 2007, no pet.) .....................................................................................16 Jones v. State, 119 S.W.3d 412 (Tex. App.— Fort Worth 2003, no pet.) .............................................................................. 24, 25 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ...............................................................9 Lee v. State, 176 S.W.3d 452 (Tex. App.— Houston [1st Dist.] 2004) aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006) ...................................................12 Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992) .............................................................19 Lopez v. State, 884 S.W.2d 918 (Tex. App.— Austin 1994, pet. ref’d) ....................................................................................8, 30 Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986) .............................................................16 Martin v. State, 176 S.W.3d 887 (Tex. App.— Fort Worth 2005, no pet.) .....................................................................................32 Martines v. State, 371 S.W.3d 232 (Tex. App.— Houston [1st Dist.] 2011, no pet.) ........................................................... 20, 27, 30 Martinez v. State, 190 S.W.3d 254 (Tex. App.— Houston [1st Dist.] 2006, pet. ref’d) ....................................................................27 Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996) .............................................................29 McCoy v. State, 10 S.W.3d 50 (Tex. App.— Amarillo 1999, no pet.) ................................................................................. 25, 29 Mechler v. State, 153 S.W.3d 435 (Tex. Crim. App. 2005) .............................................................21
v Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................................................ 21, 22, 30 Monzon v. State, 991 S.W2d 841 (Tex. Crim. App. 1991) ..............................................................21 Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) ...............................................................32 Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................................ 31, 32 Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) .................................................................8 Pool v. State, 981 S.W.2d 467 (Tex. App.— Waco 1999, pet. ref’d)..........................................................................................23 Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) .............................................................17 Proctor v. State, 356 S.W.3d 681 (Tex. App.— Eastland 2011, pet. ref’d) .....................................................................................15 Reed v. State, 158 S.W.3d 44 (Tex. App.— Houston [14th Dist.] 2005, pet. ref’d) ....................................................................8 Richert v. State, 01-10-00901-CR, 2012 WL 3775979 (Tex. App.— Houston [1st Dist.] Aug. 30, 2012) cert. denied, 134 S. Ct. 1317 (2014) ....................................................................14 Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2003) ...............................................................27 Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) .............................................................18 Sims v. State, 84 S.W.3d 805 (Tex. App.— Houston [1st Dist.] 2002, no pet.) ........................................................................18 Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001) ...............................................................31
vi State v. Maldonado, 176 S.W.3d 419 (Tex. App.— Houston [1st Dist.] 2004, no pet.) ................................................................. 18, 19 Taylor v. State, 920 S.W.2d 319 (Tex. Crim. App. 1996) .............................................................24 Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ...........................................................7, 8 Tinker v. State, 148 S.W.3d 666 (Tex. App.— Houston [14th Dist.] 2004, no pet.)......................................................................14 Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) .............................................................19 Waddell v. State, 873 S.W.2d 130 (Tex. App.— Beaumont 1994, pet. ref’d) ..................................................................................25 Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) .............................................................15 Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009) .............................................................18 Williamson v. State, 356 S.W.3d 1 (Tex. App.— Houston [1st Dist.] 2010, pet. ref’d) ....................................................................28 Worley v. State, 870 S.W.2d 620 (Tex. App.— Houston [1st Dist.] 1994, pet. ref’d) ....................................................................27 Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) .................................................................16
STATUTES
TEX. CODE CRIM. PROC ANN. art. 57.01 (4) (West 2010) ......................................................................................1 TEX. CODE CRIM. PROC. ANN. art. 38.07 (West supp. 2014) ................................................................................12
vii TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (West supp. 2014) ............................................................. 20, 32 TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (West supp. 2014) ....................................................................20 TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West supp. 2014) .............................................................................1 TEX. CODE CRIM. PROC. ANN. art. 57.03(d) (West 2010) .......................................................................................1 TEX. PENAL CODE § 22.021(a)(1)(B) (West supp. 2014) ..........................................9 TEX. PENAL CODE ANN. § 22.021 (West supp. 2014) ..............................................23
RULES
TEX. R. APP. P. 33.1 .......................................................................................... 26, 27 TEX. R. APP. P. 39....................................................................................................... i TEX. R. APP. P. 44.2(b) .............................................................................................31 TEX. R. EVID. 103(a) ......................................................................................... 26, 27 TEX. R. EVID. 404(b) ................................................................................................19
viii TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged the appellant with one count of aggravated sexual assault
of a child under fourteen years of age enhanced by one prior felony conviction, and
the jury found the appellant guilty (CR –7-8, 18, 1364, 136-37; 6 RR 4-5). The trial
court sentenced him to forty-five years in the Texas Department of Criminal
Justice, Institutional Division (CR – 136-37; 7 RR 11-12). The appellant filed a
timely notice of appeal, and the trial court certified that he had the right to appeal
(CR – 139-40).
STATEMENT OF FACTS
The appellant began inappropriately touching Jane1 when she was nine years
old (4 RR 63). The appellant is Jane’s biological father, and they lived together in
an apartment with Jane’s mother and Jane’s younger sister (4 RR 10, 58). Jane’s
1 A person “who has access to or obtains the name, address, telephone number, or other identifying information of a victim younger than 17 years of age may not release or disclose the identifying information to any person who is not assisting in the investigation, prosecution, or defense of the case.” TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West supp. 2014). The term “victim” means a person who was the subject of: “(A) an offense the commission of which leads to a reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the same criminal episode, as defined by Section 3.01, Penal Code, as an offense described by Paragraph (A).” TEX. CODE CRIM. PROC. ANN. art. 57.01 (4) (West 2010). The release or disclosure of such information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC. ANN. art. 57.03(d) (West 2010). Therefore, the pseudonym “Jane” will be used for the victim in this case. mother worked during the day, and the appellant stayed home with the girls (4 RR
35, 67).
The first time something happened, Jane woke up, and her clothes were on
wrong: her pants were backwards, and her shirt was inside out (4 RR 62). Another
time, when Jane came home from school and lay in her bed wearing a t-shirt and
shorts, the appellant came into her room (4 RR 63-4). He lay next to Jane and got
on top of her (4 RR 64). In 2012, the abuse escalated; the appellant touched Jane’s
breasts and buttocks with his hand (4 RR 72). He would also touch her “middle
part” with his hand and “middle part” (4 RR 72).
In August 2012, while Jane’s mother was at work, the appellant came into
Jane’s room and got on top of her (4 RR 77-8). He slid his hand onto her “middle
part” and moved it around for a couple of seconds (4 RR 77-8). Then he moved his
hand up to her breasts, under her clothes (4 RR 78). The appellant unzipped and
took off his pants and put his “middle part” inside her “middle part” (4 RR 79-81).
This hurt Jane (4 RR 81). Jane tried to push and kick the appellant, but he held her
down (4 RR 81-2). Jane’s sister banged on the door, but the appellant covered
Jane’s face with a pillow (4 RR 79-80). Jane knew the appellant was finished when
she felt something warm on her genitals, and saw something white on her stomach
(4 RR 83-4). She took a shower because it felt wrong (4 RR 84). She then went
2 back to her room and locked the door so the appellant could not come in (4 RR
85). Jane was eleven years old (4 RR 54).
Jane began cutting herself with a razor blade because of all she was “going
through” (4 RR 61, 65, 157-58). Jane’s mother noticed she had some discipline
problems at school in 2011 (4 RR 36-8). See (St. Ex. #2 – Jane’s school records).
During that year, Jane was angry with the appellant and no longer wanted to go to
the store with him on Sundays, even though that was something she had always
done (4 RR 33). And by summer 2012, Jane’s mother noticed that she became
angrier and withdrawn (4 RR 38).
The appellant’s penis penetrated Jane’s vagina four different times (4 RR
164). See (St. Ex. #4). Jane was inappropriately touched “overall” by the appellant
five times; the last time occurring several days before she finally told her friends at
Keller Middle School in September 2012 (4 RR 64-5, 71-2, 165-66). See (St. Ex.
#4). Jane told three friends at school about her father sexually assaulting her after
one of the girls shared that she had been molested (4 RR 65). She told because she
was tired of the abuse (4 RR 167). Her friends told the school counselor, but Jane
denied the abuse (4 RR 66). Jane was afraid to tell because she still had to go home
to where the appellant would be (4 RR 66). Instead, Jane told a made-up story
about a man grabbing her at the bus stop (4 RR 66).
3 On September 6, 2012, Brittany Brown, a sexual abuse investigator with
CPS, went to speak with Jane at school (3 RR 16; 4 RR 66). Jane also told Brown
the made-up story about the man grabbing her at the bus stop (3 RR 18; 4 RR 67).
Jane repeated this story because she wanted it all to go away (4 RR 67). But Brown
continued her investigation because Jane’s explanations did not make sense (3 RR
19). She recognized that sometimes kids are hesitant to talk with her because they
think CPS will remove them from their families (3 RR 29-30).
On September 12, 2012, Detective Tim Brinson with the Pasadena Police
Department Juvenile Sex Crimes division met with Jane (3 RR 49, 54). Jane was
very upset and emotional; she cried during their conversation (3 RR 55). At first
Jane denied any abuse from her father and told Brinson the made-up story (4 RR
67). But later when confronted with the previous outcry to her friends, Jane told
him what happened (4 RR 67). Jane told Brinson that the appellant touched her
breasts and buttocks (4 RR 67). And she told him what the appellant was going to
do to her at home (4 RR 67).
Brinson took Jane to the Children’s Assessment Center (CAC) where she
was forensically interview by Susan Odhiambo (3 RR 56-7; 4 RR 68-9, 71, 114).
During the interview, Jane made very little eye contact, looked down, and was
emotional as she described the details of the abuse by the appellant (4 RR 126).
Jane told Odhiambo the details of what was going on at home with the appellant (4
4 RR 71, 126, 129-31). Finally, Jane told Odhiambo all the details of the appellant’s
abuse (4 RR 89). Jane told her because it was “finally time” and she “felt safe”
since the appellant would not be able to go home with her (4 RR 89).
On September 13, 2012, Dr. Reena Isaac, a child abuse pediatrician,
conducted a comprehensive forensic medical evaluation of Jane at the CAC (4 RR
141-42, 153). See (St. Ex. #4 – CAC Medical Records). Isaac took a complete
medical history from both Jane and her mother (4 RR 153-59). Isaac learned that
Jane recently had a bad temper and had gone through a period of self-mutilation (4
RR 157-58). Jane told Isaac she was sexually touched on her vagina and breasts by
the appellant over the past year (4 RR 162-68). Jane told Isaac that the appellant’s
penis penetrated her vagina more than one time (4 RR 163-64). Jane was tearful
discussing the abuse with Isaac (4 RR 156). Although there were no signs of
trauma during Jane’s exam, Isaac was not surprised because the female sexual
organ is meant to take trauma, and it heals quickly (4 RR 171-73).
After Jane told her friends at school about the appellant sexually assaulting
her, “one of the girls told a lot of people” and other students were talking about the
abuse (4 RR 87-8). Other students began “making fun of her, writing ugly things
on her folder, [and] bullying her.” (4 RR 49). Because of this, Jane’s mother took
her out of Keller Middle and homeschooled her until she began at another school
5 in January 2013 (4 RR 28, 87-8). Jane later moved and did well at a different
school (4 RR 30-31, 89).
Jane’s mother and the appellant did not have any marital issues prior to the
allegations (4 RR 11). She did not want to believe the allegations because she
loved her husband, but she was supportive of Jane (4 RR 48). And although she
was surprised by the allegations, Jane’s mother realized that she missed some signs
that something was wrong: Jane’s anger towards the appellant, finding the
appellant in Jane’s room at night with the door locked, Jane not wanting to go to
the store with the appellant, and Jane complaining that her vagina hurt and seeing a
tear (4 RR 33-6).
SUMMARY OF THE ARGUMENT
The evidence admitted in this case was legally sufficient to enable a rational
factfinder to find each element of the offense of aggravated sexual assault of a
child, including Jane’s account of the sexual assault by the appellant, giving due
deference to the jury’s role as the factfinder and judge of the credibility of the
evidence, and reviewing the record in the light most favorable to the guilty verdict.
The trial court did not abuse its discretion in admitting the extraneous acts of
touching and fondling during Jane’s testimony or the medical records under Rule
403 because the probative value outweighed any unfair prejudice. Furthermore, the
appellant failed to preserve any complaint regarding Isaac’s testimony or the
6 number of times Jane was sexually assaulted by the appellant as mentioned in the
medical records.
REPLY TO APPELLANT’S FIRST POINT OF ERROR
In the appellant’s first point of error, he argues that the evidence presented in
his case was legally insufficient to convince any rational factfinder beyond a
reasonable doubt that he committed the offense of aggravated sexual assault of a
child.
I. Standard of Review and Applicable Law Every criminal conviction must be supported by legally sufficient evidence
that each element of the offense is proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 315 (1979); Adames v. State, 353 S.W.3d 854, 853 (Tex.
Crim. App. 2011). In order to determine whether this standard has been met, an
appellate court reviews all the evidence in the light most favorable to the verdict
and decides whether, based on that evidence and reasonable inferences, a rational
factfinder could have found each essential element of the crime beyond a
reasonable doubt. Jackson, 443 U.S. at 319 (finding that “the relevant question is
whether, after viewing the evidence in light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.”) (emphasis in original); Temple v. State, 390 S.W.3d 341, 360
(Tex. Crim. App. 2013); Reed v. State, 158 S.W.3d 44, 46 (Tex. App.—Houston
7 [14th Dist.] 2005, pet. ref’d). This applies equally to the analysis of direct or
circumstantial evidence in the record. Reed, 158 S.W.3d at 47.
Circumstantial evidence alone can be sufficient to establish guilt, and is
analyzed the same as direct evidence in the record. Temple, 390 S.W.3d at 359 (“A
criminal conviction may be based upon circumstantial evidence.”); Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (noting “[c]ircumstantial evidence
is as probative as direct evidence in establishing the guilt of an actor” and that
“circumstantial evidence alone can be sufficient to establish guilt.”); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (same). Not every fact has to
point to the defendant’s guilt, rather “it is enough if the conclusion is warranted by
the combined and cumulative force of all the incriminating circumstances.”
Temple, 390 S.W.3d at 359 (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex.
Crim. App. 1993)); see Clayton, 235 S.W.3d at 778. When conflicts appear in the
record a reviewing court must presume the trier of fact resolved the conflict in
favor of the verdict and should defer to that resolution. Id. at 360.
The jury’s role is to “weigh the evidence, to judge the credibility of the
witnesses, and to choose between the conflicting theories of the case.” Lopez v.
State, 884 S.W.2d 918, 921 (Tex. App.—Austin 1994, pet. ref’d) (citing Geesa v.
State, 820 S.W.2d 154, 159 (Tex. Crim. App.1991) (overruled in part on other
grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000))); see also
8 Gonzalez v. State, 337 S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d) (finding a rational juror could believe the appellant sexually assaulted the
complainant in resolving conflicting testimony between what the complainant
testified to and what she told the sexual-assault-examination nurse)
This Court’s role is not to simply compare an appellant’s analysis of the
evidence against the State’s analysis of the same evidence. Cardenas v. State, 30
S.W.3d 384, 389 (Tex. Crim. App. 2000). Rather, this Court must uphold the
verdict unless a factfinder does not act rationally. Laster v. State, 275 S.W.3d 512,
517-518 (Tex. Crim. App. 2009) (stating this Court’s role is to guard against this
“rare occurrence” where a jury acts irrationally).
II. The evidence is legally sufficient to support the appellant’s conviction for aggravated sexual assault of a child. The jury concluded beyond a reasonable doubt that on or about August 15,
2012, the appellant intentionally or knowingly caused the sexual organ of Jane, a
person younger than fourteen years of age, to contact his sexual organ (CR – 18,
134, 136). TEX. PENAL CODE § 22.021(a)(1)(B) (West supp. 2014). The record
contains abundant evidence from which the jury could rationally find each element
of aggravated sexual assault of a child beyond a reasonable doubt.
The appellant was left alone with Jane during the months surrounding the
charging date of the assault (4 RR 34-5, 85). The appellant is Jane’s biological
father and lived in the same apartment as Jane in August 2012 (4 RR 9-10, 58).
9 Jane and her mother testified that because her mother worked during the day the
appellant stayed home with the kids (4 RR 34-5, 85). Jane testified her mother left
for work at 7:00 a.m. and came home around 6:00 p.m. (4 RR 98). Thus, the
appellant had access to Jane. See Johnson v. State, 419 S.W.3d 665, 671 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d) (finding victim’s testimony of sexual
assault was corroborated by the testimony of every witness including the appellant
showed he had access to the complainant).
Jane testified that the appellant sexually assaulted her multiple times (4 RR
62-4, 72-85). Jane told the jury that the appellant touched “all the parts of her
body” – her breast, buttocks and “middle part” (4 RR 67-8, 72). She testified that
the appellant touched her “middle part” with his hand and his “middle part” (4 RR
73-4). Jane explained that both her “middle part” and his “middle part” are used for
peeing (4 RR 72, 74). Using anatomically correct dolls, Jane pointed to the genitals
of both the female and male doll when referring to their middle parts (4 RR 74,
78). She testified the first time it happened she woke up and her pants were on
backwards, and shirt on inside out (4 RR 62). She testified the last time the
appellant sexually abused her was the day before she told her friends at school in
September 2012 (4 RR 71-2).
She described a time that the appellant assaulted her in August 2012 in detail
(4 RR 72, 74-85). She testified while her mom was at work she was in her room
10 laying down watching television on her bed, and the appellant came into her room
and lay next to her (4 RR 74-6, 85). She testified that the appellant got on top of
her, slid his hand down her pants onto her “middle part” and moved it around (4
RR 77-9). She testified that the appellant then moved his hand to her breasts (4 RR
78). She explained that he touched her breasts underneath her clothes (4 RR 78).
Jane testified that her sister began to bang on the door and described that the
appellant put a pillow over her face (4 RR 81). She told the jury that the appellant
held her down, unzipped and removed his pants, and forced his middle part inside
of her middle part (4 RR 80-81). Jane testified that this hurt (4 RR 81). She stated
that she tried to push and kick the appellant, but that he did not stop (4 RR 81-2).
She testified that the appellant stopped when “he finished” and described that she
felt something warm at her vagina (4 RR 82-4). Jane explained “it” was also on her
stomach, and “it” was white, but did not state she saw where “it” came from (4 RR
83-4). Jane testified that afterwards she took a shower to clean everything off
because it felt wrong (4 RR 85).
Jane testified she did not tell her mom because the appellant was there, and
she was scared (4 RR 85, 100). Jane explained that she did not think her mother
would believe her (4 RR 100). She finally told her friends at school after another
girl shared that she was molested (4 RR 91-2). Although she later denied the abuse
to several adults, Jane explained she told Odhiambo because she felt safe the
11 appellant would not go home with her (4 RR 89-90). In Jane’s forensic interview at
the CAC and her medical examination by a child abuse pediatrician, she was able
to provide these same details of abuse (4 RR 128-31; 162-64). See (St. Ex. #4).
Jane’s testimony that the appellant placed his “middle part” inside of her “middle
part”2 met each element aggravated sexual assault of a child; thus, was sufficient to
support the jury’s verdict. See Johnson, 419 S.W.3d at 671-72 (holding the
victim’s testimony that the appellant inserted his finger into her vagina itself
satisfied the elements of aggravated sexual assault of a child and was sufficient to
support a conviction).
The appellant argues Jane’s testimony is not sufficient to sustain a
conviction because there were not enough specific details. (App’nt Brf. 16-17). But
Jane’s testimony met each element of aggravated sexual assault of a child. And the
testimony of a single witness may be legally sufficient to support a conviction of a
criminal offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West supp. 2014)
(stating that a conviction under Chapter 21, among other enumerated provisions, of
the Texas Penal Code may be supported by the uncorroborated testimony of the
victim of the sexual offense); Lee v. State, 176 S.W.3d 452, 455 (Tex. App.—
Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006) (holding
2 Jane used the term “middle part” to refer to their genitals; Isaac testified that Jane told her the appellant put his penis inside her vagina and that the vagina and penis are sexual organs (4 RR 74, 78, 159-60).
12 “[t]he testimony of a child victim alone is sufficient to support a conviction for
indecency with a child.”); see also In re R.R., 373 S.W.3d 730, 734-35 (Tex.
App.—Houston [14th Dist.] 2012, pet. filed) (holding “a rational factfinder could
have found that [the appellant] intentionally or knowingly caused the penetration
of a child’s sexual organ” based only on the victim’s testimony that the appellant
“stuck his penis in my vagina”).
Additionally, the determination of what weight to give that testimony is
within the sole province of the jury when it turns on credibility and demeanor.
Clayton, 235 S.W.3d at 778. The evidence on appeal must be viewed in the light
most favorable to the jury’s verdict. Id. Viewing Jane’s testimony in the light most
favorable to the jury’s decision, it is sufficient to support a rational finding that she
was assaulted by the appellant. Id.; Johnson, 419 S.W.3d at 671.
Moreover, other witnesses corroborated Jane’s testimony. Jane’s mother
testified that during this time, Jane’s feelings towards the appellant changed, and
she observed Jane was withdrawn, depressed, and angry (4 RR 31-2, 34-5, 38).
Jane began to cut herself (4 RR 32). She testified that one time she woke up in the
middle of the night to find the appellant in the girls’ room with the door locked (4
RR 33-4). Additionally, she recalled a time during the summer of 2012 that Jane
complained of pain in her private area, and she observed a tear (4 RR 36).
13 Furthermore, both Odhiambo and Isaac’s testimony reflected that Jane told
them similar details of abuse and that she was emotional when she described what
happened to her (4 RR 126, 156). Laird testified that Jane showed signs and
symptoms of sexual abuse (4 RR 191). Although corroboration is not required and
no other witness testified to the specific acts of abuse, the evidence corroborated
Jane’s testimony surrounding the acts. See Richert v. State, 01-10-00901-CR, 2012
WL 3775979 at *5 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012) cert. denied,
134 S. Ct. 1317 (2014) (mem. op., not designated for publication) (recognizing the
jury could have reasonably found the appellant committed two or more acts of
aggravated sexual assault of a child from the complainant’s testimony regarding
the abuse, her mother’s testimony regarding visits to the appellant and the outcry
witness’s testimony of the complainant’s account of the sexual abuse).
The appellant argues that there is no physical evidence of abuse. But
physical evidence is not required. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.
Crim. App. 1978) (holding that victim’s testimony was sufficient to prove sexual
contact occurred despite a lack of physical evidence); Tinker v. State, 148 S.W.3d
666, 669 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (noting despite the lack
of DNA evidence, the complainant’s testimony alone was sufficient to support the
jury’s verdict that sexual contact did occur).
14 The appellant argues that Jane’s testimony should be discounted because it is
not credible. (App’nt Brf. 16-17). But, attacks on the complainant’s credibility
have “no bearing on [a reviewing court’s] sufficiency analysis.” In re R.R., 373
S.W.3d at 735 (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007)); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)
(holding the jury, as factfinder, was free to disbelieve the complainant’s
recantation; it “is entitled to judge the credibility of witnesses, and can choose to
believe all, some, or none of the testimony presented by the parties.”). Jane
testified she understood the difference between a truth and a lie and promised to
tell the truth (4 RR 56-7).
The appellant specifically points to evidence that Jane provided conflicting
statements to multiple witnesses. (App’nt Brf. 16-17). But the jury was free to
believe or disbelieve all or any part of Jane’s testimony and conclude that any
inconsistencies were inconsequential. Proctor v. State, 356 S.W.3d 681, 684 (Tex.
App.—Eastland 2011, pet. ref’d) (holding sufficient evidence to prove the
appellant was guilty of aggravated sexual assault of a child in spite on
inconsistencies in the victim’s testimony). Although Jane did not immediately
outcry and denied the abuse to her mother, to the school counselor, to CPS, and to
Detective Brinson, she did tell everything to Odhiambo and Isaac (4 RR 89, 128-
31, 162-64). See Johnston v. State, 230 S.W.3d 450, 455-56 (Tex. App.—Fort
15 Worth 2007, no pet.) (recognizing that delayed outcry is common in abused
children and something the jury could have resolved in finding the appellant guilty
of sexual assault of a child).
Additionally, the appellant contends that Jane’s testimony is inconsistent
because she told Odhiambo that she felt something warm on her genitals and
stomach, but that she told Isaac nothing came out of the appellant’s middle part (4
RR 84-5, 131, 164). (App’nt Brf. 18). But the appellant assumes Jane, an eleven-
year-old girl, knew where the “white stuff” came from. Jane never discussed that
with Odhiambo, and Isaac’s question specifically asked her if anything came out of
his middle part (4 RR 164). See (St. Ex. #4). Regardless, as previously stated, this
would merely be a conflict for the factfinder to resolve and the jury was free to
believe this testimony or not. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.
App. 2000) (noting “reconciliation of conflicts in the evidence is within the
exclusive province of the jury.” (quoting Losada v. State, 721 S.W.2d 305, 309
(Tex. Crim. App. 1986)).
Moreover, the appellant’s contentions that Jane copied her friends are
neither appropriate for a sufficiency review nor are they supported by the record.
See (App’nt Brf. 16-17). First, there is nothing in the record that supports Jane’s
recount of abuse “mirrored” her friend’s molestation (4 RR 65, 91-2). See (App’nt
Brf. 16). The record does not contain how her friend was molested or that she was
16 molested the same way. Second, the appellant’s argument that Jane cut herself to
be like her friends is not supported by the record. (App’nt 16-17). Neither Jane nor
her mother testified that her cutting was because her friends were doing it (4 RR
32, 61). The only mention of friends also cutting was in Dr. Isaac’s medical notes.
See (St. Ex. #4). In fact, Jane testified she cut herself because she was “going
through a lot at the time” (4 RR 61). And Laird testified that cutting can be an
expression of feelings (4 RR 192).
Reviewing the record in the light most favorable to the jury’s verdict, and
allowing for the credibility determinations and logical inferences that the jury was
permitted to make from the evidence, there is sufficient evidence for a rational trier
of fact to have concluded beyond a reasonable doubt that the appellant was guilty
of each element of aggravated sexual assault of a child. See Clayton, 235 S.W.3d at
778-79 (noting that when a record supports conflicting inferences, a reviewing
court presumes that the factfinder resolved the conflict in favor of their verdict);
Powell v.State, 194 S.W.3d 503, 508 (Tex. Crim. App. 2006); Jackson, 443 U.S. at
319. Thus, the appellant’s first point of error should be overruled.
REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR
In the appellant’s second point of error, he argues that the trial court erred by
allowing evidence of extraneous conduct between the appellant and Jane of
touching and fondling during Jane’s testimony. (App’nt Brf. 18). In the appellant’s
17 third point of error, he argues that the trial court erred by allowing extraneous
evidence of touching and intercourse through the testimony and medical records of
Isaac. (App’nt Brf. 23-4). Because both points of error challenge the admissibility
of extraneous acts of abuse by the appellant they will be addressed together.
I. Standard of Review A trial court’s ruling on the admissibility of an extraneous offense is
reviewed under an abuse of discretion standard. Williams v. State, 301 S.W.3d 675,
687 (Tex. Crim. App. 2009); Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim.
App. 2008); Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A
trial judge whose ruling is within the “zone of reasonable disagreement” should not
be reversed. Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996). The
reviewing court must view the evidence in the light most favorable to the trial
court’s ruling, giving the trial court almost total deference on its findings of
historical fact that find support in the record. Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). Where the trial court does not make express findings of
fact, a reviewing court will assume that the trial court made “implicit findings that
support its ruling, provided those implied findings are supported by the record.”
State v. Maldonado, 176 S.W.3d 419, 421 (Tex. App.—Houston [1st Dist.] 2004,
no pet.); Sims v. State, 84 S.W.3d 805, 807-08 (Tex. App.—Houston [1st Dist.]
2002, no pet.); Ross, 32 S.W.3d at 856. A reviewing court must affirm the trial
18 court’s ruling if it is correct on any theory of law applicable to the case and is
reasonably supported by the record. Maldonado, 176 S.W.3d at 421; Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
II. The trial court did not abuse its discretion in admitting the appellant’s extraneous sexual abuse of Jane into evidence Evidence of an extraneous offense is not generally admissible to prove the
character of a defendant in order to show that the defendant acted in conformity
with that character. See Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App.
1992); TEX. R. EVID. 404(b). But extraneous offenses may be admitted for other
purposes, such as to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. Additionally, evidence
of extraneous offenses that are “indivisibly connected to the charged offense and
necessary to the State’s case in proving the charged offense” may be admissible for
contextual purposes. Id. at 571; Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim.
App. 1972) (recognizing background evidence was admitted “[t]o show the context
in which the criminal act occurred … under the reasoning that events do not occur
in a vacuum and that the jury has a right to hear what occurred immediately prior
to and subsequent to the commission of the act so that they may realistically
evaluate the evidence.”).
Specific to child abuse cases, Article 38.37 of the Texas Code of Criminal
procedure allows for extraneous offenses “committed by the [appellant] against the
19 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 [appellant] and the child;
and (2) the previous and subsequent relationship between the [appellant] and the
child.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (West supp. 2014)3
(emphasis added); Hinds v. State, 970 S.W.2d 33, 35 (Tex. App.—Dallas 1998, no
pet.) (“By enacting article 38.37, the legislature in effect determined that, in certain
sexual abuse cases, evidence of “other crimes, wrongs, or acts” committed by the
accused against the child victim are relevant and admissible under rule 402.”).
Although otherwise irrelevant evidence may become relevant under Article
38.37, that evidence may still be excluded under Rule 403 if its probative value is
substantially outweighed by its danger of unfair prejudice. See TEX. R. EVID. 403;
Martines v. State, 371 S.W.3d 232, 248 (Tex. App.—Houston [1st Dist.] 2011, no
pet.). Unfair prejudice “refers to a tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” Gigliobianco v. State,
210 S.W.3d 637, 641 (Tex. Crim. App. 2006).
A Rule 403 balancing test or analysis includes, but is not limited to,
consideration of four relevant factors: (1) the probative value of the evidence; (2)
the potential to impress the jury in some irrational yet indelible way; (3) the time
3 Amended September 1, 2013 to add that a separate, enumerated offense of child abuse may be admitted in the trial 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. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (West supp. 2014) (emphasis added).
20 needed to develop the evidence; and (4) the proponent’s need for the evidence.
Mechler v. State, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); Monzon v. State,
991 S.W2d 841, 847 (Tex. Crim. App. 1991). A trial court has broad discretion to
determine whether evidence is admissible. Montgomery v. State,
810 S.W.2d 372, 386, 390 (Tex. Crim. App. 1990). “Rule 403 favors admissibility
of relevant evidence, and the presumption is that relevant evidence will be more
probative than prejudicial.” Id. at 389.
A. Jane’s testimony that the appellant touched and fondled her on other occasions was more probative than unfairly prejudicial. The appellant argues that the trial court abused its discretion in allowing
Jane to testify to extraneous acts of touching and fondling by the appellant because
the probative value of that testimony was substantially outweighed by its unfair
prejudice. (App’nt Brf. 18-21). Specifically, he complains about Jane’s testimony
regarding three4 separate extraneous events: (1) the first time she was abused
where she woke up with her pants on backwards and shirt inside out (4 RR 62); (2)
a time that she came home from school, changed into a t-shirt and basketball shorts
and the appellant came into her room and lay with her (4 RR 63-4); and (3) when
the appellant touched her breast and buttocks (4 RR 67). (App’nt Brf 21-2). But the
4 Although at trial the appellant objected to Jane’s testimony regarding all noticed extraneous offenses, on appeal he does not complain about Jane’s testimony regarding the appellant’s hand touching or penetrating her genitals (4 RR 51, 72-3, 77-8). (App’nt Brf. 18-23).
21 probative values of each of these extraneous acts were not substantially
outweighed by their unfairly prejudicial effect.
The first two complained-of extraneous acts demonstrated the relationship
between Jane and the appellant before he began sexually assaulting her, and they
were not so inflammatory to impress the jury in some irrational manner. See
Montgomery, 810 S.W.2d at 395 (noting that “other crimes, wrongs, or acts” are
impermissible when they create “unfair prejudice” and invites the jury to “convict
on a moral or emotional basis rather than as a reasoned response to the relevant
evidence.”). In fact, her testimony about finding her clothes were on wrong did not
include her father touching her and she did not know how her clothes became that
way (4 RR 62). Moreover, her detailed description of the August 2012 offense
likely overshadowed any inflammatory response the jury may have had to these
acts. See id.; Burke v. State, 371 S.W.3d 252, 256 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d) (finding the complainant’s testimony of extraneous offenses was
likely overshadowed by his description of the underlying offense – the appellant
putting his hands around his throat, causing pain); see also Greene v. State, 287
S.W.3d 277, 285 (Tex. App.—Eastland 2009, pet. ref’d) (“To constitute an
extraneous offense, the evidence must show a crime or bad act and must connect
the defendant to it.”) (citing Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim.
App. 1992)).
22 Additionally, there was not an excessive amount of time spent developing
the first two acts. It was only a couple of questions and three pages of the record,
whereas a majority of her testimony was spent on the charged offense (4 RR 62-4,
72-85). Cf. Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (noting that the State spent significant time developing the
extraneous act calling multiple witnesses and presenting medical records).
Furthermore, the State had no other evidence that it could similarly illustrate the
relationship between Jane and the appellant, the progression of abuse, and the
appellant’s state of mind. See TEX. PENAL CODE ANN. § 22.021 (West supp. 2014).
(requiring proof that aggravated sexual assault was done “intentionally or
knowingly”); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent
may also be inferred from circumstantial evidence such as acts, words, and the
conduct of the appellant.”).
Jane’s testimony regarding the appellant touching and fondling her breasts
and buttocks not only provided context for the jury to understand how the sexual
abuse started, it showed how the offense related directly to their previous
relationship and states of mind (4 RR 67). See Burke, 371 S.W.3d at 256 (holding
that evidence of the appellant’s previous molestations of the complainant was
probative of their relationship); Pool v. State, 981 S.W.2d 467, 469 (Tex. App.—
Waco 1999, pet. ref’d) (holding that sexual assaults and subsequent pregnancy by
23 the appellant against the complainant after her seventeenth birthday were
admissible under Article 38.37); Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (evidence of extraneous acts committed
by the appellant against the child, including numerous incidents of sexual, verbal,
and physical abuse of the child victim, showed their previous and subsequent
relationship as well as their states of mind).
Although the touching of Jane’s breast and buttocks undoubtedly carries
some emotional weight, it was less heinous than the charged offense of rape;
therefore, it was not likely to create such prejudice in the minds of the jurors that
they would have been unable to limit their consideration of the evidence to its
proper purpose. See Jones v. State, 119 S.W.3d 412, 422 (Tex. App.—Fort Worth
2003, no pet.) (holding evidence of an extraneous victim was less heinous than the
charged acts and therefore were not likely to create such prejudice in the minds of
the jury) (citing Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996)).
Additionally, the jury charge contained a limiting instruction that minimized
any prejudicial effect of the extraneous evidence (CR – 130). See Beam, 447
S.W.3d 401 at 405 (noting that any impermissible inference from extraneous
conduct can be minimized through a limiting instruction); Lane v. State, 933
S.W.2d 504, 520 (Tex. Crim. App. 1996) (same). Moreover, similar to the first two
extraneous acts, a review of the record shows that the State did not spend an
24 excessive amount of time5 developing this extraneous offense (4 RR 67-8). McCoy
v. State, 10 S.W.3d 50, 54 (Tex. App.—Amarillo 1999, no pet.).
Finally, contrary to the appellant’s contention that he did not present a
defensive theory, his cross-examinations and closing argument introduced the
theory that Jane fabricated the whole incident (3 RR 28-30, 68; 4 RR 41, 43, 47,
92-4, 96-7, 99-101, 179, 195, 198; 5 RR 10-16). (App’nt Brf. 22); see Blackwell v.
State, 193 S.W.3d 1, 11-12 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(holding extraneous offenses were admissible to rebut the appellant’s defensive
theory created in cross-examination and argument). Therefore, the State needed
this evidence to rebut that theory. See Jones, 119 S.W.3d at 423 (holding that
extraneous sexual assaults of the child victim were a logical and necessary rebuttal
of major defense theory of fabrication); Waddell v. State, 873 S.W.2d 130, 136
(Tex. App.—Beaumont 1994, pet. ref’d) (same). Thus, the danger of unfair
prejudice did not substantially outweigh the probative value of the extraneous act.
McCoy, 10 S.W.3d at 54 (overruling the appellant’s Rule 403 challenge that “the
only reason the State wanted the extraneous offense in this case was to show that
[the appellant] was a child molester.”). The appellant’s second point of error
should be overruled. 5 The State was careful not to discuss the extraneous fondling with other witnesses besides Jane and Dr. Isaac. See (3 RR 46, 68) (notifying the trial court that the appellant had opened the door to discuss the extraneous offenses during cross-examination of Brinson and allowing the appellant to withdraw the question); (4 RR 112-13) (informing the trial court that the State would not be eliciting testimony from Odhiambo regarding the extraneous offenses).
25 B. The extraneous evidence that the appellant repeatedly touched Jane, as presented through the testimony of Isaac and the medical records, Isaac was more probative than unfairly prejudicial. The appellant argues that the trial court abused its discretion in admitting
evidence of extraneous acts of touching and intercourse through Isaac’s testimony
and the medical records under Rule 403. (App’nt Brf. 23-4). During a bench
conference outside the presence of the jury, the appellant objected to portions of
State’s Exhibit #4 (4 RR 138-39). He objected specifically to a question on page
five of the record, “How many times were you touched overall by him
inappropriately?”, and to Jane’s answer, “Like, five times.” (4 RR 138-39). He also
objected specifically to the questions and answers regarding the timing of the first
and last act of abuse (4 RR 139). The appellant argued that both questions were
more prejudicial than probative, which the trial court overruled (4 RR 139).
But the appellant failed to object to Isaac’s testimony6 itself (4 RR 138-39).
Therefore, to the extent Isaac’s testimony addressed the extraneous offenses, the
appellant has waived his right to complain. See TEX. R. APP. P. 33.1; TEX. R. EVID.
103(a). The appellant argues that Isaac’s testimony was prejudicial because it
“quantified the number of times that misconduct occurred.” (App’nt Brf. 25).
Specifically, that it “increased the number of times there was penetration from one
6 The State recognizes, however, that most of Dr. Isaac’s testimony regarding Jane’s exam appears to be read from the medical record (4 RR 151-74).
26 to four.” (App’nt Brf. 25). But again the appellant failed to object to that specific
question in State’s Exhibit #4, and thus error is waived (4 RR 138-39). See TEX. R.
APP. P. 33.1; Martines, 371 S.W.3d at 248. Additionally, the appellant never
objected to any discussion regarding extraneous acts of “intercourse” (4 RR 138-
39). Therefore, only his objections to specific questions in the medical records
were preserved. See TEX. R. APP. P. 33.1; TEX. R. EVID. 103(a).
Regardless, quantifying the amount of times the appellant sexually touched
Jane was not extraneous offense evidence, but simply evidence of multiple
occurrences of the indicted offense. See Worley v. State, 870 S.W.2d 620, 622
(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (finding, in aggravated sexual
assault of a child case, that the victim’s testimony the appellant molested him “at
least over a hundred times” did not constitute evidence of extraneous offenses);
Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d) (holding that testimony from the victim’s medical examination revealed the
appellant had touched her in the vaginal and anal areas “many times” was not
evidence of extraneous offenses) (citing Rodriguez v. State, 104 S.W.3d 87, 90
(Tex. Crim. App. 2003)).
Nevertheless, the evidence on how many times Jane was “touched overall”
in State’s Exhibit #4 was more probative than unfairly prejudicial. The evidence
provided context to Isaac’s diagnosis based on the totality of the physical or
27 psychological trauma Jane suffered (4 RR 167). And, as previously stated, the
amount of times Jane was touched by the appellant demonstrated his treatment of
her, his mental state, their relationship, the progression of abuse and provided
context for the jury. See Austin v. State, 222 S.W.3d 801, 808-9 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (noting under Rule 403 that medical records
including evidence that siblings were also victims of Munchausen Syndrome by
Proxy was critical to showing motive and to providing context to crime); Burke,
371 S.W.3d at 257-58 (holding the extraneous sexual assaults of the complainant
by the appellant was probative of their relationship and increased the probability he
would have felt confident to assault the complainant again).
Additionally, the details of these additional times of abuse were neither
provided in the records nor discussed by Isaac. See (St. Ex. #4). Although knowing
that the abuse happened more than one time could have evoked emotion from the
jurors, it was not so much to irrationally influence them. Cf. Austin, 222 S.W.3d at
809 (finding that voluminous medical records of extraneous times the appellant
repeatedly induced and falsified illnesses in her children could have affected the
jury in an emotional way). And, as previously stated, the trial court provided a
limiting instruction (CR –130). See Williamson v. State, 356 S.W.3d 1, 24 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d) (finding no unfair prejudice in medical
records containing extraneous acts when it was clear from the State’s presentation
28 of the evidence that it was offered to explain the motivating forces and to provide
context for the offense, the State did not go through the records, and the court
provided a limiting instruction).
Moreover, the State spent relatively little time developing the evidence and
did not mention it in closing argument (4 RR 165-66). Finally, the State needed the
evidence to show the appellant’s intent, their relationship, and Jane’s mental state.
It also helped corroborate Jane’s testimony and rebut the defensive theory that she
lied. See Beam, 447 S.W.3d at 405 (holding the extraneous evidence of medical
records and testimony of an additional sexual assault by the appellant was
necessary because both sides contested the commission of the charged offense).
Thus, the trial court did not abuse its discretion in admitting the evidence, and the
appellant’s third point of error should be overruled.
Furthermore, any complaint concerning the admission of the extraneous acts
of touching and intercourse were waived by the appellant’s failure to object to the
same or similar evidence admitted at another point in the trial. See Massey v. State,
933 S.W.2d 141, 149 (Tex. Crim. App. 1996); Mayes v. State, 816 S.W.2d 79, 88
(Tex. Crim. App. 1991); McCoy v. State, 10 S.W.3d 50, 54 (Tex. App.—Amarillo
1999, no pet.). Here, the appellant failed to object to the “referral report” portion of
the medical records, which states that the appellant penetrated her vagina with his
penis at least three times (4 RR 159). See (St. Ex. #4). And the appellant failed to
29 object to the note that Jane told Isaac he touched her “middle part” with his hand
on page five of the medical records (4 RR 139, 163-64). See (St. Ex. #4). Thus, the
appellant waived any complaint by the failure to objection to similar testimony.
Accordingly, the appellant’s third point of error should be dismissed.
Finally, although it is unclear if the appellant complains on appeal about the
admissibility of the indication of fondling as the alleged sexual conduct on page six
of the medical records, any complaint under Rule 403 was not preserved. (App’nt
Brf. 23-4). The appellant’s only objection to the evidence at trial was that “it is
going into an extraneous [offense] and not the case-in-chief that’s before the Court
today.” (4 RR 139). And a specific Rule 403 objection must be raised to preserve
error; it is not implicitly contained in either relevancy or 404(b) objections.
Montgomery, 810 S.W.2d at 388-89; see also Broxton v. State, 909 S.W.2d 912,
918 (Tex. Crim. App. 1995) (holding to preserve error for appellate review, a
complaint on appeal must comport with the objection at trial, and an objection
stating one legal theory may not be used to support a different legal theory on
appeal); Martines, 371 S.W.3d at 248 (holding an appellate issue based on alleged
violation of Rule 403 must be preceded by specific objection). Therefore, the
appellant has waived his right to complain about the indication of fondling under
Rule 403.
30 III. The appellant was not harmed by the trial court’s admission of the extraneous conduct. Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, any non-
constitutional “error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” TEX. R. APP. P. 44.2(b). Courts have determined that
substantial rights are not affected by the erroneous admission of evidence “if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect.” Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002); Solomon v. State, 49 S.W.3d 356, 365
(Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998).
Here, there was substantial evidence to support the appellant’s guilt. See
Motilla, 78 S.W.3d at 358 (finding the weight of the evidence of the defendant’s
guilt is a factor to be considered in a harm analysis). Jane testified in detail about
the appellant penetrating her vagina with his penis, and although not necessary to
support a conviction, the other witnesses’ testimony corroborated her testimony (4
RR 54-90). Johnson, 419 S.W.3d at 671-72 (holding the victim’s testimony that
the appellant inserted his finger into her vagina itself satisfied the elements of
aggravated sexual assault of a child and was sufficient to support a conviction).
The evidence of the actual rape was abundant.
31 Additionally, the extraneous acts showed the relationship between Jane and
the appellant, how he first tested the waters with fondling, and how it escalated to
sex (5 RR 21). See Motilla, 78 S.W.3d at 359 (citing Morales v. State, 32 S.W.3d
862, 867 (Tex. Crim. App. 2000)) (finding that another factor in the harm analysis
is “the character of the alleged error and how it might be considered in connection
with other evidence in the case.”); TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b)
(West supp. 2014). It also rebutted the defensive arguments that she lied and that
she only said she was molested to be like her friend (5 RR 11-14, 16).
Moreover, the State did not emphasize the extraneous conduct. See Martin v.
State, 176 S.W.3d 887, 898, 903 (Tex. App.—Fort Worth 2005, no pet.) (noting
that the State did not even mention the objected-to testimony in its closing and
therefore holding the trial court’s error in admitting the testimony in question was
harmless) (citing Motilla, 78 S.W.3d at 358). Finally, the trial court provided a
limiting instruction regarding testimony of extraneous offenses in the jury charge,
which required proof beyond a reasonable doubt and limited consideration only for
purposes of determining state of mind and relationship; it is presumed the jury
followed those instructions absent evidence to the contrary (CR—130). See id.
Therefore, it is unlikely that the extraneous fondling or lying next to her in bed had
more than a slight effect on the jury’s verdict. Thus, the appellant’s second and
third points of error should be overruled.
32 CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
/S/ _ Katie Davis KATIE M. DAVIS Assistant District Attorney Harris County, Texas 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone (713) 755-5826 Fax Number (713) 755-5809 Davis_Katie@dao.hctx.net State Bar Number: 24070242
33 CERTIFICATE OF SERVICE AND COMPLIANCE This is to certify that: (a) the word count function of the computer program used to prepare this document reports that there are 8,200 words in it; and (b) a copy of the foregoing instrument will be served by efile.txcourts.gov to:
Kurt B. Wentz 5629 Cypress Creek Parkway Suite 115 Houston, TX 77069 281-587-0088 kbsawentz@yahoo.com
/S/ _Katie Davis_________ KATIE M. DAVIS Assistant District Attorney Harris County, Texas 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone (713) 755-5826 Fax Number (713) 755-5809 Davis_Katie@dao.hctx.net State Bar Number: 24070242
Date: February 18, 2015
Brian Victorian v. State (Brian Victorian v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.