Dallas Leo-Shane Turpen v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 26, 2023
• Docket: 05-22-00284-CR
• Status: Published

Opinion

Affirm and Opinion Filed May 26, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00284-CR

DALLAS LEO-SHANE TURPEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-82346-2021

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Miskel Opinion by Justice Miskel Dallas Leo-Shane Turpen appeals his conviction for continuous sexual abuse

of a young child. Turpen objected to extraneous-offense testimony from two other

witnesses who testified Turpen abused them as children, complaining that the

evidence’s probative value was substantially outweighed by the danger of unfair

prejudice under Texas Rule of Evidence 403.

In his first issue, Turpen contends that the trial court failed to conduct the

required Rule 403 balancing test, and that even if the trial court did balance the

relevant factors, it was error to consider the objection pretrial rather than within the trial as it unfolded. But under binding precedent, we presume that the trial court

balanced the factors as required. And at the pretrial hearing, the trial court heard

from four witnesses who synthesized all the essential evidence that would be offered

at trial and provided sufficient information to rule on the objection.

In his second issue, Turpen challenges the merits of the trial court’s ruling on

the Rule 403 objection. We hold that the balance of the Rule 403 factors strongly

favored admission in light of (1) the extraneous offenses’ compelling value as

propensity evidence that also rebutted a defensive theory, (2) the limits on the danger

of unfair prejudice both by jury instructions and by comparison to the charged

offense, (3) the State’s ability to present the extraneous-offense evidence quickly so

as to minimize jury distraction, and (4) the State’s significant need to adduce

evidence of guilt aside from the complainant’s account of the abuse.

We affirm.

I. BACKGROUND

The complainant in this case, “Lisa,” is the daughter of “Marie.” Turpen

began dating Marie when Lisa was still a toddler. When Lisa was around ten years

old, Turpen began to touch her genitals with his hands. Lisa told Marie what was

happening early on, but Marie became so hysterically upset at the news that Lisa

immediately recanted. The abuse died down for a short while, but Turpen eventually

resumed touching her, and Lisa began to harm herself. According to trial testimony,

Turpen’s abuse had varying frequency over the years, with him sometimes abusing

–2– her multiple nights in a row. The abuse lasted for roughly three years, until Lisa was

around age 13, when she sent her mother a text message again disclosing what

Turpen was doing to her. Marie told Turpen to leave the house and contacted a

counselor at Lisa’s school, who put her in touch with authorities.

Lisa was soon taken for a forensic interview at the local children’s advocacy

center, where she discussed the details of the abuse for the first time. Over the course

of the investigation, two other witnesses—“Elizabeth” and “Kate”—came forward

with allegations that Turpen had touched them during the time they had spent with

him as children decades earlier, when Turpen was a preteen and a teenager.

Turpen was charged with continuous sexual abuse of a young child, to which

he pleaded not guilty. At a pretrial hearing, the trial court received testimony from

four witnesses: Elizabeth and Kate, who testified under Texas Code of Criminal

Procedure article 38.37 as to the extraneous offenses that Turpen committed against

them, plus the two witnesses who had heard Lisa disclose the abuse, Marie and the

forensic interviewer. Turpen objected to Elizabeth and Kate’s testimony on the

ground that it was substantially more prejudicial than probative under Rule 403.

After hearing the evidence and argument by both sides, the trial court overruled

Turpen’s Rule 403 objection and allowed Elizabeth and Kate to testify at trial.

At trial, the jury heard the evidence we have recounted above, as well as the

details of the abuse. After both sides closed, the jury found Turpen guilty of

–3– continuous sexual abuse of a young child. The trial court assessed punishment at

thirty-five years and sentenced Turpen accordingly. He timely appealed.

II. THE TRIAL COURT BALANCED THE RULE 403 FACTORS BASED ON SUFFICIENT INFORMATION

In his first issue, Turpen argues the trial court erred when it overruled his Rule

403 objection to Elizabeth and Kate’s testimony about the extraneous offenses he

committed against them. There are two strains of argument running through

Turpen’s first issue.

A. The Trial Court Did Not Have to Explicitly State its Findings When Conducting the Balancing Test First, Turpen argues that the trial court did not actually balance the Rule 403

factors as it was required to do. He says the failure to conduct this balancing exercise

is revealed by the timing of the trial court’s ruling, which he describes as an abrupt

determination made immediately after the hearing evidence concluded, leaving the

record silent as to the relevant factors.

Turpen’s position runs counter to the presumptions that we make of a silent

record when reviewing an objection under Rule 403. A Rule 403 analysis generally

balances four factors, though they are not exclusive: (1) how probative the evidence

is, (2) the potential of the evidence to impress the jury in some irrational but indelible

way, (3) the time the proponent needs to develop the evidence, and (4) the

proponent’s need for the evidence. Colone v. State, 573 S.W.3d 249, 266 (Tex.

Crim. App. 2019). “Rule 403 does not require that the trial court perform the

–4– balancing test on the record.” Palmer v. State, No. 05-19-01135-CR, 2021 WL

1049870, at *4 (Tex. App.—Dallas Mar. 19, 2021, no pet.) (mem. op., not

designated for publication). “In overruling a Rule 403 objection, the trial court is

assumed to have performed a Rule 403 balancing test and determined the evidence

was admissible.” Id. “[A] judge is presumed to engage in the required balancing

test once Rule 403 is invoked[,] and we refuse to hold that the silence of the record

implies otherwise.” Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App.

1997); see Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)

(“Although appellant asserts that the trial court did not perform the balancing test,

the trial court did not explicitly refuse to do the test, it simply overruled appellant’s

Rule 403 objections.” (Emphasis added)).

The presumption that the trial court balanced the factors, even without explicit

mention, applies no less to a Rule 403 objection in an article 38.37 hearing. See

Distefano v. State, 532 S.W.3d 25, 31–32 (Tex. App.—Houston [14th Dist.] 2016,

pet. ref’d); Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.).

Because the record here is silent, we presume that the trial court properly conducted

the Rule 403 balancing test off the record.

B. The Pretrial Hearing Provided Sufficient Information to Conduct the Rule 403 Balancing Test Turpen’s first issue also challenges whether the trial court had a sufficient

basis to make an informed ruling. Turpen notes that the trial court here considered

the Rule 403 objection before the State’s case in chief began. He contends that in –5– order to make a sound ruling, the trial court would have, as a rule, needed to consider

the objection in the middle of trial rather than pretrial so that it could know how the

context of the ongoing arguments and evidence would inform the Rule 403 factors.

As Turpen puts it, “Obviously, in order for the trial court to consider probative value

or the State’s need for evidence, the court must have a clear understanding of the

evidence already presented, including any defensive attacks on that evidence.”

The Texas Court of Criminal Appeals rejected any such categorical

requirement to hear Rule 403 objections mid-trial in State v. Mechler, where it

approved pretrial consideration of a Rule 403 objection. See 153 S.W.3d 435, 439–

40 (Tex. Crim. App. 2005). The fact that a Rule 403 objection is considered pretrial

rather than within an ongoing trial “does not warrant different treatment or a

deviation from the established abuse-of-discretion review.” Id. at 439. The

opinion’s only word of caution on considering a Rule 403 objection pretrial was that

“in such instances a trial court often will not have enough information before it to

adequately apply these factors and assess whether the contested evidence’s probative

value is substantially outweighed by its prejudicial effects.” Id. at 440. However,

the Mechler court concluded that no abuse of discretion was shown because “the

trial court heard sufficient testimony at the suppression hearing necessary to

properly evaluate the motion on Rule 403 grounds.” Id.

–6– The same is true here. The way that the suppression hearing unfolded shows

that the trial court properly balanced the relevant factors based on sufficient

information.

During the pretrial hearing, the trial court heard testimony from four

witnesses: two outcry witnesses, who testified as to their conversations with the

complainant Lisa and the abuse she described; and two article 38.37 witnesses,

Elizabeth and Kate, who discussed how Turpen had similarly touched them in a

sexual manner during the periods of their childhood that they had spent with him.

The pretrial hearing took place over two days. After testimony from one outcry

witness and Elizabeth on the first day, the trial court questioned the State on the

issues involved in Rule 403 and stated that it wanted to research the issues further

that evening. On the second day, the trial court received evidence from Kate and the

other outcry witness. During this hearing, Turpen had the opportunity to draw out

the prejudicial aspects of Elizabeth’s and Kate’s testimony through cross-

examination.

These four witnesses presented a synopsis of all the most important evidence

that would follow at trial, which would have acted as “a virtual surrogate for a trial

record” through which the trial court could assess the interplay of the Rule 403

factors. See State v. Villegas, 506 S.W.3d 717, 731 (Tex. App.—El Paso 2016)

(quoting Mechler, 153 S.W.3d at 442–43 (Cochran, J., concurring)), pet. dism’d 544

S.W.3d 375 (Tex. Crim. App. 2018). This hearing would have given the trial court

–7– a clear sense of the most important testimony in the case and how the Rule 403

factors were reflected in it. And “given that the evidence in controversy largely

speaks for itself”—with the probative and prejudicial dimensions of the evidence

readily apparent—we cannot say that the trial court abused its discretion by deciding

the Rule 403 objection at the conclusion of the pretrial hearing. See id. at 732.

We overrule Turpen’s first issue.

III. OVERRULING THE 403 OBJECTION WAS NOT ERROR

In his second issue, Turpen challenges the merits of the trial court’s ruling on

his Rule 403 objection to the evidence of his extraneous assaults. He maintains that

these offenses were highly inflammatory and had limited relevance given that they

were committed more than 20 years before trial, when he was, in his words, “a

person with significantly less education, experience, and maturity than the one

standing trial.” Turpen further submits that the State had a limited need to introduce

these offenses because the evidence otherwise would have been sufficient to sustain

a conviction for continuous sexual abuse of a young child.

A. Applicable Law Although evidence of extraneous offenses is generally inadmissible to show

character conformity, Texas Code of Criminal Procedure article 38.37 expressly

makes such evidence admissible for any relevant purpose, including as proof of the

defendant’s character and propensity to act in conformity with such character, when

the charged offense is continuous sexual abuse of a young child. TEX. CODE CRIM.

–8– PROC. art. 38.37, § 2(a)(1)(B), (b); Wishert v. State, 654 S.W.3d 317, 330 (Tex.

App.—Eastland 2022, pet. ref’d). When evidence of a defendant’s extraneous acts

is determined to be relevant and admissible under article 38.37, this evidence

nonetheless remains subject to exclusion under Rule 403. Dies v. State, 649 S.W.3d

273, 284 (Tex. App.—Dallas 2022, pet. ref’d).

Under Rule 403, the court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.

TEX. R. EVID. 403. Again, a Rule 403 analysis generally balances four factors: (1)

how probative the evidence is, (2) the potential of the evidence to impress the jury

in some irrational but indelible way, (3) the time the proponent needs to develop the

evidence, and (4) the proponent’s need for the evidence. Colone, 573 S.W.3d at 266.

The balance is always slanted toward admission of relevant evidence, for Rule 403

carries a presumption that relevant evidence will generally be more probative than

problematic. See De La Paz v. State, 279 S.W.3d 336, 343 & n.17 (Tex. Crim. App.

2009).

Probative value is the measure of how strongly the evidence serves to make

more or less probable the existence of a fact of consequence to the litigation. Dies,

649 S.W.3d at 284. Unfair prejudice refers to a tendency to tempt the jury into

finding guilt on an improper basis, such as an emotional one. Id.

–9– “If judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial

court is reviewed by an appellate tribunal.” See Montgomery v. State, 810 S.W.2d

372, 379, 392 (Tex. Crim. App. 1990) (favorably quoting United States v. Long, 574

F.2d 761, 767 (3d Cir. 1978)). We reverse a trial court’s determination under Rule

403 “rarely and only after a clear abuse of discretion,” recognizing that the trial court

is in a superior position to gauge the impact of the evidence. Perkins v. State, 664

S.W.3d 209, 217 (Tex. Crim. App. 2022) (quoting Mozon v. State, 991 S.W.2d 841,

847 (Tex. Crim. App. 1999)). The same standard applies when a Rule 403 objection

to extraneous-offense evidence is considered before trial. Mechler, 153 S.W.3d at

439.

B. The Evidence Was More Probative than Problematic The Rule 403 balancing test weighs in favor of admitting the extraneous-

offense evidence.

(1) The evidence was significantly probative. Turpen notes that the

extraneous offenses occurred just over 20 years before the charged offense.

Remoteness in time can lessen the probative value of extraneous-offense evidence

because, “[l]ogically, the passage of time allows things and people to change.” West

v. State, 554 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Still,

remoteness alone does not require exclusion; it is one aspect of probativeness, which

itself is only one factor within the Rule 403 inquiry. Id. at 239–40. Despite the

distance in time, the extraneous-offense evidence was highly relevant here, both as

–10– compelling propensity evidence, see Wells v. State, 558 S.W.3d 661, 670 (Tex.

App.—Fort Worth 2017, pet. ref’d), and to rebut Turpen’s argument that Lisa

imagined the abuse due to her mental health issues, see Robisheaux v. State, 483

S.W.3d 205, 220 (Tex. App.—Austin 2016, pet. ref’d) (concluding that the evidence

of extraneous child abuse was relevant to rebut an argument attacking the

complainant’s mental health). Furthermore, the similarities between Turpen’s abuse

of Elizabeth, Kate, and Lisa “strengthened the probative value” of the extraneous-

offense evidence despite a gap of many years between the offenses. See Dies, 649

S.W.3d at 285; West, 554 S.W.3d at 240; Fisk v. State, 510 S.W.3d 165, 174 (Tex.

App.—San Antonio 2016, no pet.). The extraneous-offense evidence thus had

significant probative force.

(2) The extraneous-offense evidence did not create significant potential to

impress the jury in an irrational but indelible way. “[E]vidence of previous child

sexual abuse is inherently inflammatory by nature and, hence, can be prejudicial.”

Dies, 649 S.W.3d at 286. Yet any potential for unfair prejudice was diminished

relatively by the fact that Elizabeth and Kate’s allegations “were no more serious

than” Lisa’s. See id. Moreover, any tendency to draw impermissible inferences of

guilt “can be minimized through a limiting instruction.” Beam v. State, 447 S.W.3d

401, 405 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Here, the trial court

instructed the jury that Turpen was on trial solely for the offense charged in the

indictment, that it could find him guilty only of the charged offense, and that it could

–11– not convict him solely because it believed he committed other similar acts. “We

generally presume the jury follows the trial court’s instructions in the manner

presented,” which mitigates the potential for prejudice. See Garcia v. State, 614

S.W.3d 749, 757 (Tex. Crim. App. 2019); see also Hurst v. State, No. 05-19-00747-

CR, 2021 WL 3233868, at *7 (Tex. App.—Dallas July 29, 2021, no pet.) (mem. op.,

not designated for publication).

(3) The time the State needed to develop the evidence was not excessive. The

third factor “looks to the time the proponent will need to develop the evidence,

during which the jury will be distracted from consideration of the indicted offense.”

Mechler, 153 S.W.3d at 441. Together, Elizabeth’s and Kate’s testimony comprised

about 12% of the State’s case in chief (39 record pages out of the 309 total pages of

testimony in the State’s case). See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim.

App. 1996) (determining that the length of the extraneous-offense testimony was not

“excessive” where it constituted less than one-fifth of the State’s case in chief). After

hearing Elizabeth’s and Kate’s accounts during pretrial, the trial court could have

reasonably anticipated that their evidence would not unduly distract the jury from

the charged offense.

(4) The State’s need for the evidence was great. This propensity evidence

related to the central disputed issue in the case: whether the assaultive acts were

committed. See id. at 520–21 (deeming the need for extraneous-offense evidence

“very strong” where it related to a “hotly contested issue”). The State had little proof

–12– to establish the acts other than Lisa’s account, both through her own testimony and

through an outcry witness. Turpen offered evidence that Lisa hallucinated the

assaults and persuasively attacked her credibility, recall, and mental health. “It was,

in essence, appellant’s word against complainant’s.” Dies, 649 S.W.3d at 286. In

“he said, she said” sexual molestation cases such as this, Rule 403 should be used

sparingly to exclude relevant, otherwise admissible evidence that might bear on the

credibility of either the defendant or the complainant. Id. (quoting Hammer v. State,

296 S.W.3d 555, 562 (Tex. Crim. App. 2009)). The State needed the evidence of

similar extraneous acts to corroborate Lisa’s account given the nature of the cross-

examination of her credibility.

Because the balance of these factors favored the trial court’s decision to admit

Elizabeth’s and Kate’s testimony, we conclude that the trial court did not abuse its

considerable discretion by allowing their testimony. We overrule Turpen’s second

issue.

IV. CONCLUSION

The trial court’s decision to overrule Turpen’s Rule 403 objection and admit

extraneous-offense testimony was not error. We affirm the judgment of conviction.

/Emily Miskel/ EMILY MISKEL JUSTICE 220284f.p05

–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DALLAS LEO-SHANE TURPEN, On Appeal from the 380th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 380-82346- No. 05-22-00284-CR V. 2021. Opinion delivered by Justice Miskel. THE STATE OF TEXAS, Appellee Justices Molberg and Pedersen, III participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 26th day of May, 2023.

–14–