TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00186-CR
Ernesto Alexander Hernandez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 423RD JUDICIAL DISTRICT NO. 14907, THE HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Ernesto Alexander Hernandez guilty of continuous sexual
abuse of a young child for sexually abusing his stepdaughter, E.H.1 See Tex. Penal Code § 21.02(b),
(c)(4). The trial court assessed appellant’s punishment at confinement for 35 years in the Texas
Department of Criminal Justice. See id. § 21.02(h). In four points of error on appeal, appellant
complains about the trial court’s evidentiary rulings excluding defense evidence and admitting
evidence of his oral statements. Finding no reversible error, we affirm the trial court’s judgment
of conviction.
1 The jury heard evidence that appellant perpetrated various sexual acts against his stepdaughter, E.H., after he had divorced her mother, on repeated occasions when E.H. was eight, including touching her “many times” “in [her] privates” with his finger or “his private part,” which made her “feel uncomfortable” and hurt. Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we do not recite them in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. DISCUSSION
Exclusion of Evidence
The defense strategy at trial was to attack E.H.’s credibility by showing that she had
“deeply embedded ‘rage and anger’ directed toward appellant.” According to the defense theory,
“this rage and anger constituted a motive of bias” that “became manifest in the form of sexual
allegations made against [appellant].” Appellant’s first two points of error relate to the trial court’s
exclusion of evidence offered to support this defense, complaining that the exclusion of the evidence
violated his Sixth Amendment rights to confrontation and effective assistance of counsel.
Alleged Threat Incident
As evidence showing E.H.’s “rage and anger,” appellant sought to question E.H.
about “[getting] into trouble at school,” attempting to elicit information about an alleged incident
documented in a CPS report. Apparently, a teacher reported to the CPS investigator that E.H. might
have threatened to kill another child at school. Appellant maintained that this evidence was “very
pertinent to rage and anger, and pertinent to bias.” He also indicated that evidence of this threat was
“germane and relevant” “to impeach [E.H.] who’s come across physically in misdemeanor [sic]
today on the stand as just kind of polite, shy, quiet.” The State objected on multiple grounds
including that the evidence involved multiple layers of hearsay, that it was a specific instance of
conduct not relevant to the allegations of sexual abuse, that it was inadmissible character-conformity
evidence under Rule 404(b), and that the prejudicial effect substantially outweighed any probative
value under Rule 403. The trial court excluded the evidence, finding that it was inadmissible
character-conformity evidence not fitting within any of the exceptions of Rule 404(b), that it was not
2 relevant, and that any probative value was substantially outweighed by unfair prejudice. Following
a subsequent offer of proof (during which E.H. denied ever making such a threat), appellant
reasserted “those arguments . . . that relate to the admissibility of the proffer from E.H. regarding
trouble at school.” The court reiterated its ruling excluding the evidence of the alleged threat
incident “for the previous reasons that the Court’s already stated on the record.” In his first point
of error, appellant contends the trial court erred by refusing to allow him to question E.H. about this
alleged incident.
Preservation of error is a systemic requirement on appeal. Blackshear v. State,
385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Boston v. State, 373 S.W.3d 832, 841 (Tex.
App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013). A reviewing court should not
address the merits of an issue that has not been preserved for appeal. Blackshear, 385 S.W.3d at
590; Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010); Boston, 373 S.W.3d at 841.
An appellate issue involving a proffer of evidence, as opposed to an objection, must still satisfy the
preservation-of-error requirements. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)
(stating that purpose of requiring objection is to give trial court or opposing party opportunity to
correct error or remove basis for objection and reasoning that “[a]though this case involves a proffer
of evidence rather than an objection, the same rationale applies”). To preserve a complaint regarding
the exclusion of evidence, a party must not only tell the judge that the evidence is admissible, but
must also explain why it is admissible. Id. at 177-79. Further, the explanation given at trial must
match the one urged on appeal. Id. at 179.
3 Appellant asserts that the exclusion of the evidence of the alleged threat incident
violated his Sixth Amendment rights to confrontation and effective assistance of counsel. However,
when the trial court prohibited appellant from questioning E.H. about the alleged threat incident,
appellant neither objected to the exclusion of the evidence on the ground, nor offered the evidence
on the basis, that either his constitutional right to confrontation or his constitutional right to effective
assistance of counsel were compromised by the exclusion of the evidence. Even constitutional rights
may be waived if the proper request, objection, or motion is not asserted in the trial court. See
Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). Because appellant did not articulate
that his right to confrontation or his right to effective assistance of counsel supported the admission
of the evidence about the alleged threat incident, the trial court never had the opportunity to rule on
this rationale. Accordingly, appellant did not preserve his complaint that the exclusion
of this evidence violated these constitutional rights. See Cerda v. State, No. 03-12-00582-CR,
2014 WL 4179359, at *6 (Tex. App.—Austin Aug. 22, 2014, no pet. h.) (mem. op., not designated
for publication). We overrule appellant’s first point of error.
Outcry of Sexual Abuse by J.S.
As further evidence of E.H.’s “rage and anger,” appellant offered evidence of E.H.’s
outcry of sexual abuse perpetrated against her by a juvenile family member, J.S.2 Appellant sought
to elicit the details of this outcry during his cross-examination of E.H., and to cross-examine Dr.
William Carter, the State’s psychological expert, about the “manipulative nature” of a child who
2 The record is not entirely clear, but it appears that the juvenile was the nephew of appellant’s second wife, E.H.’s stepmother.
4 makes multiple outcries disclosing sexual abuse by multiple perpetrators.3 In his second point of
error, appellant argues that the trial judge erred in excluding evidence of E.H.’s outcry.
At trial, appellant sought to question E.H. about her outcry to a CPS investigator that
a juvenile family member, J.S., sexually abused her during the same time frame that she said that
appellant sexually abused her, generally perpetrating the same type of sexual acts.4 After the offer
of proof, appellant argued that the evidence of E.H.’s outcry was admissible because there is “no
greater bias than saying that common members of a family . . . perpetrate, basically, the same sexual
acts against an eight year old” asserting it was “improbable.” The State objected under Rule of
Evidence 412 and additionally argued that the prejudicial effect substantially outweighed any
probative value under Rule 403. The trial court sustained the State’s objections, concluding that the
evidence was inadmissible under Rule 412 because it was “too far removed . . . as relates to motive
or bias” and that the danger of unfair prejudice substantially outweighed any value under Rule 403.
Appellant also sought to cross-examine the State’s psychological expert, Dr. William
Carter, about E.H.’s outcry of J.S.’s sexual abuse. He asserted that “examples of the child —
examples of the child lying, or examples of an outcry of that nature, go towards . . . the manipulative
nature of the child. It could [be] probative in the area of manipulation.” The State objected to
3 While Dr. Carter agreed that multiple outcries alleging similar sexual abuse by different perpetrators could demonstrate manipulation (if false), he also indicated that it was equally plausible that multiple outcries of sexual abuse by multiple perpetrators could demonstrate how vulnerable the child victim is and how “dangerous” or “unprotected” her world is. He testified, “[I]t may tell us something about the child, herself, in terms of her manipulative nature. Or it may tell us about the deviant world she’s in and [that] she’s around people that aren’t safe.” 4 During the proffer of this evidence, E.H. confirmed that she told the CPS investigator that J.S. “put his private part in [her] private part,” “put his hands inside [her] private part,” and “put his mouth on [her] private part.”
5 appellant “present[ing] a second outcry as a known lie,” when “there was an ongoing criminal
investigation regarding [the] juvenile perpetrator.” Appellant responded by averring that he did not
believe he was required to prove that the outcry was a false accusation. He maintained that because
“the subject of [the outcry] is it’s occurred at the same time that this other abuse allegedly was
perpetrated on . . . they’re all inextricably linked . . . as they go to that manipulative nature.” He
complained that he would be “denied his constitutional right to cross-examination and denied
effective defense” if he was unable to “bring that to the jury’s attention.” The trial court sustained
the State’s objection finding that the evidence was inadmissible under Rule 412 and, further, that the
unfair prejudice “far, far outweigh[ed]” any probative value.
On appeal, appellant maintains that the exclusion of the evidence of E.H.’s outcry
violated his constitutional right of confrontation and right to effective assistance of counsel. As
previously noted, however, preservation of error regarding the exclusion of evidence is a systemic
requirement on appeal, Blackshear, 385 S.W.3d at 590; Reyna, 168 S.W.3d at 177-79, and the
explanation given at trial must match the one urged on appeal, Reyna, 168 S.W.3d at 179. Here,
when the trial court excluded evidence concerning E.H.’s outcry of J.S.’s sexual abuse, appellant
neither objected to the exclusion of the evidence on the ground, nor offered the evidence on the
basis, that his constitutional right to effective assistance of counsel was compromised by the
exclusion of the evidence. Thus, appellant did not preserve his complaint that the exclusion of this
evidence violated this constitutional right. See Yazdchi, 428 S.W.3d at 844 (even constitutional
rights may be waived if not properly asserted in trial court). Accordingly, we address only
6 appellant’s complaint that the trial court’s exclusion of this evidence violated his constitutional right
of confrontation.
We review a trial court’s ruling on the admission or exclusion of evidence under an
abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial
court abuses its discretion by excluding evidence only if its decision “lies outside the zone of
reasonable disagreement.” Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We consider the
ruling in light of what was before the trial court at the time the ruling was made and uphold the trial
court’s decision if it lies within the zone of reasonable disagreement. Billodeau v. State,
277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
The Sixth Amendment right to confront witnesses includes the right to cross-examine
witnesses to attack their general credibility or to show their possible bias, self-interest, or motives
in testifying. See U.S. Const. amend. VI; Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App.
2009) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). The scope of permissible
cross-examination is “necessarily broad.” Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App.
1996); Reynolds v. State, 371 S.W.3d 511, 520 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
The broad scope of cross-examination does not mean, however, that a defendant can explore every
possible avenue of inquiry. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see Hammer,
296 S.W.3d at 561 (“This right is not unqualified, however; the trial judge has wide discretion in
limiting the scope and extent of cross-examination.”). Generally, the Sixth Amendment right to
present evidence and to cross-examine witnesses does not conflict with the corresponding rights
7 under state evidentiary rules. Hammer, 296 S.W.3d at 561 (citing United States v. Scheffer,
523 U.S. 303, 316 (1998); Potier v. State, 68 S.W.3d 657, 660-62 (Tex. Crim. App. 2002)).
Therefore, we can resolve most questions regarding cross-examination by looking to the Texas Rules
of Evidence. Id. “Compliance with a rule of evidence will, in most instances, avoid a constitutional
question concerning the admissibility of such evidence.” Id. at 566.
All witnesses may be cross-examined on any matter relevant to any issue in the case,
including credibility. See Tex. R. Evid. 611(b). However, Rule of Evidence 608(b) prohibits
cross-examination on specific instances of conduct of a witness, other than a criminal conviction as
provided in rule 609(a), for the purpose of attacking the witness’s credibility. Tex. R. Evid. 608(b).
Further, Rule of Evidence 412(b) provides that evidence of specific instances of conduct relating to
a complaining witness’s past sexual behavior is generally not admissible in a criminal trial for
aggravated sexual assault. Tex. R. Evid. 412(b). However, as relevant here, the evidence may be
admissible if it relates to the motive or bias of the complainant or is constitutionally required to be
admitted and its probative value outweighs the danger of unfair prejudice. Tex. R. Evid.
412(b)(2)(C), (E), (b)(3).
In sexual assault cases, the credibility of the complainant and the defendant are often
dispositve issues. Hammer, 296 S.W.3d at 561-62. However, a distinction must be made between
an attack on the general credibility of the witness and a more particular attack on credibility that
reveals “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to
issues or personalities in the case at hand.” Id. at 562 (quoting Davis, 415 U.S. at 316). The
defendant does not have an absolute right to impeach the general credibility of a witness, but the
8 Constitution could be offended if a state evidentiary rule prohibited the defendant from
cross-examining a witness concerning possible motives, biases, and prejudices to such an extent he
could not present a vital defensive theory. Id. at 562-63; see also Billodeau, 277 S.W.3d at 42-43.
It is undisputed that E.H. made an outcry of sexual abuse by J.S. Appellant wanted
to introduce evidence regarding that outcry to demonstrate E.H.’s “biased motivation, generated by
rage and anger, which compromised the credibility of her entire line of testimony.” However, this
evidence is not relevant as proof of “rage and anger” or of bias, prejudice, or ulterior motive by E.H.
to accuse appellant of sexually abusing her. See Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim.
App. 2000) (“Without proof that the prior allegation was false or that the two accusations were
similar, the evidence fails to have any probative value in impeaching [the complainant’s] credibility
in this case. For these same reasons, the risk that this evidence would unduly prejudice and confuse
the jury was high.”).
Appellant relies on Hammer v. State to support his position that the evidence was
admissible. In that case, the court of criminal appeals determined that the trial court abused its
discretion by excluding the complainant’s medical records from a sexual-assault examination.
Hammer, 296 S.W.3d at 569. The medical records showed that the complainant had told the
examining nurse that a young man sexually assaulted her, which allegedly occurred one month after
moving in with the defendant, her father. Id. at 559. She also told the nurse that she was particularly
angry at her father, who took her for the exam, because he wanted to prove that she had sexual
intercourse. Id. at 567. While the appellant was allowed to question the complainant generally about
her motive to falsely accuse him, the jury did not know she was particularly angry with him for
9 taking her to the hospital for the exam. Id. The record also revealed that she threatened to commit
suicide shortly after the exam and was admitted to a state hospital soon thereafter. Id. Her
accusations against appellant occurred approximately one month after her release from the hospital.
Id. The court concluded this was strong evidence of the complainant’s motive to falsely accuse
appellant of sexual assault. Id.
We do not find Hammer controlling here. First, unlike Hammer, nothing in the record
indicates that E.H. made any false sexual-abuse allegation. In the offer of proof, E.H. confirmed that
she told the CPS investigator about the abuse by J.S. However, she never indicated that the
allegations were false or suggested that the abuse by J.S. did not happen. Thus, while the law allows
appellant to offer evidence of a prior false accusation of sexual abuse to support a defensive theory,
nothing in the record before us tends to show that E.H. made a false allegation. Second, although
the excluded evidence in Hammer strongly supported a possible motive for the complainant to
fabricate her accusations, the excluded evidence in this case did not. Evidence that E.H. had
disclosed being sexually abused by another family member, even if the abuse consisted of similar
sexual acts, did not demonstrate a “definite and logical link” between E.H.’s outcry and an alleged
motive to fabricate allegations against appellant. See Todd v. State, 242 S.W.3d 126, 129-30 (Tex.
App.—Texarkana 2007, pet. ref’d); Stephens v. State, 978 S.W.2d 728, 735 (Tex. App.—Austin
1998, pet. ref’d).
Further, appellant has failed to establish how admission of this evidence was relevant
to his defensive theory that E.H. made sexual-abuse allegations against him due to her “rage and
anger” against him. He maintains that by making similar outcries about him and J.S., E.H. showed
10 bias against him about which he should have been allowed to cross-examine her. See Tex. R. Evid.
412(b)(2)(C). Notably, however, the questions and answers in the offer of proof are not probative
of E.H.’s motive or bias or of a specific bias, motive, or interest to testify in a particular fashion.
While the excluded evidence in Hammer plainly showed the child complainant’s bias and anger
toward her father and a willingness to change stories for strategic reasons, see Hammer, 296 S.W.3d
at 569, E.H.’s additional outcry of sexual abuse by another perpetrator does not show similar bias.
It shows only that when she described being sexually abused by appellant to the CPS investigator,
she also disclosed sexual abuse by another. Appellant made no showing that confronting E.H. about
her outcry about J.S.’s sexual abuse would show anything about her attitude toward appellant.
Appellant did not show that excluding this topic deprived him of his right to confront a witness
regarding her ill-feeling or bias against him, or about her motive to falsely accuse him. Accordingly,
the trial court did not abuse its discretion by concluding that appellant did not demonstrate how the
excluded evidence would have shown E.H.’s bias against appellant.
The dispositive issue here is the absence of any connection made between E.H.’s
outcry of J.S.’s sexual abuse to any issue relevant to the allegations against appellant, including
E.H.’s purported “rage and anger” toward appellant or her bias against him. We find no abuse of
discretion or deprivation of the right to confrontation in the trial court’s decision to prohibit appellant
from questioning E.H. or Dr. Carter about E.H.’s outcry of sexual abuse perpetrated by another
family member. See James v. State, No. 03-12-00462-CR, 2014 WL 2957751, at *4-6 (Tex.
App.—Austin June 27, 2014, pet. ref’d) (mem. op., not designated for publication). We overrule
appellant’s second point of error.
11 Admission of Appellant’s Oral Statements
During its case-in-chief, the State offered evidence of statements that appellant made
to a DPS investigator about an incident wherein he became aroused when playing the “tickle game”
with E.H. Captain Manuel Espinosa, a certified polygrapher, conducted a polygraph examination
of appellant. During the post-polygraph interview, appellant recounted an incident of playing the
“tickle game” with E.H.—apparently he was attempting to explain possible reasons for deceptive
answers detected during the polygraph. Appellant explained that he was sitting on the couch with
E.H. sitting on his lap, straddling him, and his penis came into contact with her vaginal area (through
their clothing) and became erect. Appellant disclosed that E.H. then rubbed his erect penis with her
hand (through his clothing) for approximately two minutes. According to the date given in
appellant’s interview, this incident happened during the time frame of the continuous sexual abuse
alleged in the indictment. The interview, which lasted about one and a half hours, was videotaped,
but the video was not offered by the State. The State only offered the captain’s testimony of
appellant’s description of the couch incident and his admission that he became aroused during that
contact with E.H.
During the offer of proof outside the presence of the jury, appellant objected to the
evidence because it was not an admission against interest “toward this crime,” because the
prejudicial effect of the evidence outweighed any probative value, and because the evidence violated
his constitutional right to confrontation. The trial court admitted the testimony with the instruction
that there was to be no reference to the polygraph examination. Rather, the parties were to discuss
the statement only in the context of an “interview.” The trial court also overruled appellant’s
12 Rule-403 objection, finding that the probative value of the evidence outweighed any prejudicial
effect, and his confrontation objection. When the evidence was offered in front of the jury, appellant
also made a hearsay objection, which was overruled by the court. Appellant’s last two points of error
relate to the trial court’s admission of Captain Espinosa’s testimony of appellant’s oral statements.
Prejudicial Effect
In his third point of error, appellant asserts (without providing any significant
analysis) that the trial court should have excluded the evidence regarding appellant’s statements
about the extraneous conduct and his admission under Rule 403.
Article 38.37 of the Texas Code of Criminal Procedure addresses the admission of
extraneous-conduct evidence during the trial of an offense under chapter 21 of the Penal Code
alleged to have been committed against a child under 17 years of age. See Tex. Code Crim. Proc.
art. 38.37. Continuous sexual abuse of a young child, the offense for which appellant was tried, is
contained in chapter 21 of the Penal Code. See Tex. Penal Code § 21.02. The relevant portion of
article 38.37 that was in effect at the time of appellant’s trial provided the following:
Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.
See Act of May 29, 1995, 74th Leg. R.S., ch. 318, § 48, 1995 Tex. Gen. Laws 2734, 2748-49
(amended 2005, 2011, and 2013) (current version at Tex. Code Crim. Proc. art. 38.37)). However,
even when evidence of extraneous conduct is relevant and admissible under article 38.37, the
13 evidence is still subject to exclusion under the Rule-403 balancing test if its probative value is
substantially outweighed by the danger of unfair prejudice. Wheeler v. State, 67 S.W.3d 879, 888
(Tex. Crim. App. 2002); Colvin v. State, 54 S.W.3d 82, 84 (Tex. App.—Texarkana 2001, no pet.)
(collecting cases); see Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. ref’d)
(“When evidence of a defendant’s extraneous acts is relevant under article 38.37, the trial court is
still required to conduct a Rule-403 balancing test upon a proper objection or request.”).
Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise
relevant evidence when its probative value is substantially outweighed by the danger of unfair
prejudice. Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial. Davis v. State,
329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App.
2007). “The term ‘probative value’ refers to the inherent probative force of an item of
evidence—that is, how strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation—coupled with the proponent’s need for that item of evidence.” Davis,
329 S.W.3d at 806; Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair
prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Davis, 329 S.W.3d at 806.
All relevant testimony and physical evidence are likely to be prejudicial to one party
or the other. Id.; Jessop v. State, 368 S.W.3d 653, 694 (Tex. App.—Austin 2012, no pet.). Thus,
“[t]o violate Rule 403, it is not enough that the evidence is ‘prejudicial’—it must be unfairly
prejudicial.” Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). It is only when there
14 exists a clear disparity between the degree of prejudice produced by the offered evidence and its
probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806; see Gaytan v. State,
331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d). Our analysis under Rule 403 includes,
but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential
to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence,
and (4) the proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim.
App. 2012), cert. denied, 134 S. Ct. 823 (2013); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.
App. 2006).
Concerning the probative value of the evidence, appellant argues that “the mere fact
that appellant did become aroused on one particular instance under the scenario described does
relatively nothing to make the allegations of continual sexual abuse more probable.” He reasons that
“to be subject to temptation . . . does not make one guilty of an improper act. It only makes one
human.” We disagree with appellant’s assessment of the probative value of this evidence. The
indictment charged appellant with continuous sexual abuse of a child by committing two or more
acts of aggravated sexual assault of a child against E.H. See Tex. Penal Code §§ 21.02,
22.021(a)(1)(B). “[I]ntent to arouse or gratify sexual desire” is an implicit element of sexual assault.
Sarabia v. State, 227 S.W.3d 320, 323-24 (Tex. App.—Fort Worth 2007, pet. ref’d); see Ochoa
v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (“[T]he Legislature did not intend that the
‘intent to arouse and gratify’ requirement be excluded from proof of the elements of aggravated
sexual assault.”). The State may prove intent through circumstantial evidence. Guevara v. State,
152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here, the complained-of testimony tends to show that
15 appellant admitted that he had become sexually aroused while engaged in what would normally be
considered innocent play with an eight-year-old child that he viewed as his daughter. This evidence
tends to show that appellant viewed the father-daughter relationship as a sexual one, at least in part.
His becoming sexually aroused in this situation was relevant circumstantial evidence of his intent
to arouse or gratify his sexual desire in perpetrating the alleged acts of sexual abuse against E.H. See
Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984); Sarabia, 227 S.W.3d at 324. Further,
because this case involved continuous sexual abuse of a child over a period of time, evidence of
appellant’s state of mind and relationship with E.H. during that time period was relevant. See Tex.
Code Crim. Proc. art. 38.37. The evidence of the couch incident is probative of appellant’s conduct
toward E.H., the nature of their relationship, his mental state, and his treatment of her during the time
frame of the alleged sexual abuse. See Burke v. State, 371 S.W.3d 252, 257-58 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d, untimely filed) (evidence of defendant’s previous
molestations of complainant was probative of relationship between defendant and complainant). The
factor regarding the probativeness of the evidence weighs in favor of admissibility.
The evidence had little potential to impress the jury in an irrational way. The State
offered only a brief description of appellant’s admission and account of the incident. The Texas
Court of Criminal Appeals has recognized that “sexually related bad acts and misconduct involving
children are inherently inflammatory.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App.
2013) (citing Wheeler, 67 S.W.3d at 889; Montgomery, 810 S.W.2d at 397). However, the plain
language of Rule 403 “does not allow a trial court to exclude otherwise relevant evidence when that
evidence is merely prejudicial.” Id. Rule 403 only addresses “unfair” prejudice, which refers “to
16 relevant evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of the
offense charged.” State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005) (emphasis added).
Here, the complained-of evidence established appellant’s state of mind when he committed the
charged offense; thus, the evidence does not “suggest a decision on an improper basis,” see Davis,
329 S.W.3d at 806, and did not tend to confuse or distract the jury from the main issues in the case,
see Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). Also, appellant’s
admission regarding the couch incident was “much less serious and potentially inflammatory” than
the multiple acts of sexual abuse that the State alleged that appellant perpetrated against E.H in the
charged offense. See Rivera v. State, 269 S.W.3d 697, 706 (Tex. App.—Beaumont 2008, no pet.)
(holding that extraneous evidence of “inappropriate conversation, touching, kissing, showing of
pornographic materials, and an unsuccessful attempt to touch [the complainant’s] penis” was less
prejudicial and potentially inflammatory than charged offenses that alleged “multiple instances of
oral and anal penetration over a period of approximately two years”). The second factor—the
potential the evidence has to impress the jury in some irrational but indelible way—also
favors admissibility.
Next, the State spent relatively little time developing the evidence regarding the couch
incident and appellant’s admission. See Mechler, 153 S.W.3d at 441 (favoring admissibility when
developing evidence “would not require an undue amount of time.”). The captain’s testimony in
front of the jury took very little time to develop, consisting of only five pages of the record. This
factor, the time spent in developing the evidence, also favors admissibility.
17 Finally, we address the State’s need for the evidence. The State argues that “in a case
of a child alleging sexual abuse [by an adult] with no physical evidence, there is a strong need” for
the State to admit this evidence. We agree. The Texas Court of Criminal Appeals has explained:
[S]exual assault cases are frequently “he said, she said” trials in which the jury must reach a unanimous verdict based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or other corroborative evidence. Thus, the Rules of Evidence, especially Rule 403, should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in such “he said, she said” cases.
Hammer, 296 S.W.3d at 561-62. Here, there was no physical evidence (such as medical evidence
or scientific evidence) and no eyewitness to corroborate E.H.’s testimony; thus, the State needed the
evidence of appellant’s extraneous conduct and admission to becoming sexually aroused by physical
contact with E.H. to lend credibility to her testimony. In addition, the State had to prove appellant’s
mental state. See Tex. Penal Code §§ 21.02(b), (c)(4), 22.021 (1)(B) (requiring proof that alleged
acts of sexual abuse, aggravated sexual assault of child, were done “intentionally or knowingly”).
To prove intent, the State may rely upon circumstantial evidence, including evidence of other
relevant bad acts. See Guevara, 152 S.W.3d at 50 (“Intent may also be inferred from circumstantial
evidence such as acts, words, and the conduct of the appellant.”). Based on the foregoing, we agree
that the State’s need for the evidence was strong. This factor also favors admissibility.
In sum, the evidence of appellant’s admission to becoming aroused by his contact
with E.H. during the tickle game on the couch was probative, with little danger that it would impress
the jury in some irrational way, took little time to develop, and was relied on by the State to show
appellant’s state of mind and relationship with E.H. Thus, after considering all of the Rule-403
18 factors, and bearing in mind that Rule 403 should be “used sparingly to exclude relevant, otherwise
admissible evidence” in these types of cases, see Hammer, 296 S.W.3d at 562, we conclude that
appellant has not established that the trial court committed a “clear abuse of discretion” when it
concluded that the danger of unfair prejudice did not substantially outweigh the probative value of
the evidence and admitted the captain’s testimony about appellant’s statements. See Russo v. State,
228 S.W.3d 779, 799 (Tex. App.—Austin 2007, pet. ref’d) (“In evaluating the trial court’s
determination under Rule 403, a reviewing court is to reverse the trial court’s judgment ‘rarely and
only after a clear abuse of discretion,’ recognizing that the court below is in a superior position to
gauge the impact of the relevant evidence.”). We overrule appellant’s third point of error.
Denial of Confrontation
Appellant complains in his fourth point of error that the admission of his statements
from his post-polygraph interview (concerning the tickle-game incident on the couch) violated his
right to confrontation because, according to appellant, he was unable to utilize the video recording
of that interview in his cross-examination of Captain Espinosa. This purported inability resulted
from the fact that the polygraph equipment was visible on the video, so that if appellant had shown
the video during his cross-examination, the jury would have seen the equipment and known that
appellant had taken a polygraph.
The Confrontation Clause of the Sixth Amendment provides a right in both federal
and state prosecutions to confront and cross-examine adverse witnesses. U.S. Const. amends. VI,
XIV; Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v. State, 336 S.W.3d 634, 641 (Tex.
Crim. App. 2011). It is the “literal right to ‘confront’ the witness at the time of trial that forms the
19 core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157
(1970). However, “‘the Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.’” Woodall, 336 S.W.3d at 643 (quoting Delaware v. Fensterer, 474 U.S. 15,
19 (1985)) (emphasis in original). The “‘Confrontation Clause is generally satisfied when the
defense is given a full and fair opportunity to probe and expose [forgetfulness, confusion, or evasion]
through cross-examination, thereby calling to the attention of the factfinder the reasons for giving
scant weight to the witness’ testimony.’” Id. (quoting Fensterer, 474 U.S. at 21-22).
Neither the existence of an evidentiary item nor its character violate a person’s right
of confrontation. Evidence simply is what it is. The character of the evidentiary item at issue here
was that the video recording of the polygraph examination displayed the polygraph equipment.
Accordingly, appellant’s counsel opted not to utilize the video in his cross-examination of Captain
Espinosa. However, the trial court did not preclude him from doing so. Simply because appellant
could not cross-examine the captain in the manner he wanted (or preferred) does not mean appellant
was denied the right to confront the officer. Captain Espinosa testified at trial and was subject to
cross-examination regarding the statements appellant made to him and the conditions and
circumstances under which he made them. Discerning no violation of appellant’s confrontation
rights, we overrule appellant’s fourth point of error.
CONCLUSION
Having overruled appellant’s four points of error, we affirm the trial court’s judgment
20 __________________________________________ J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Field
Affirmed
Filed: December 30, 2014
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