Gabriel Adrian Guerra v. State

Opinion

Affirm and Opinion Filed December 14, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00720-CR

GABRIEL ADRIAN GUERRA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-81860-2018

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Pedersen, III, and Justice Evans Opinion by Justice Pedersen, III A jury found appellant Gabriel Adrian Guerra guilty of continuous sexual

abuse of a child, and the trial court assessed his punishment at twenty-five years’

confinement. In a single issue, appellant complains that the trial court reversibly

erred by admitting evidence of an extraneous offense in violation of the Texas Code

of Criminal Procedure and the Texas Rules of Evidence. We affirm the trial court’s

judgment. Background

Appellant was charged with continuous sexual abuse of JA, who was eight

years old at the time of trial. At the time of the charged offense, appellant lived with

JA, her younger sister EA, and their mother, to whom he was engaged.

Before the trial, the State notified appellant that it intended to offer evidence

that he had also abused EA once when she was six years old. The State called EA to

testify. She stated that she awakened one night to see appellant by her bed. He moved

her legs apart with his hand, and—using the flashlight on his phone—he “looked at

the private part that [she] pees with.”

The jury found appellant guilty of abusing JA, and he was sentenced to

twenty-five years’ confinement. This appeal followed.

Discussion

Appellant contends that the trial court erred by admitting EA’s testimony. We

review the trial court’s decision to admit evidence for an abuse of discretion.

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

–2– Appellant acknowledges that the code of criminal procedure allows admission

of certain extraneous-offense evidence when a defendant is prosecuted, as he was,

for a sexual offense involving a child under seventeen years of age. TEX. CODE CRIM.

PROC. ANN. art 38.37, § 1(a)(1)(A). Specifically, the statute provides that—

notwithstanding rules 404 and 405 of the Texas Rules of Evidence—evidence that

the defendant has committed such a separate sexual offense may be admitted at 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.”

Id. art. 38.37, § 2(b). It provides further, though, that before section-2 evidence may

be admitted, the trial court must:

(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and

(2) conduct a hearing out of the presence of the jury for that purpose. Id. art. 38.37, § 2-a. Appellant asserts that the trial court never conducted a hearing

to determine whether EA’s testimony would be adequate to support a finding by the

jury, beyond a reasonable doubt, that appellant committed the separate offense. Our

record contains no reference to such a hearing.

However, the record also contains no objection by appellant to EA’s

testimony itself or to the absence of a section 2-a hearing. The statute’s hearing

requirement is subject to the general requirement of preservation and, therefore, is

subject to forfeiture. Carmichael v. State, 505 S.W.3d 95, 103 (Tex. App.—San

–3– Antonio 2016, pet. ref’d); see also, Gonzalez v. State, No. 05-17-01463-CR, 2019

WL 1292502, at *8 (Tex. App.—Dallas Mar. 21, 2019, pet. ref’d) (mem. op., not

designated for publication); Murphy v. State, No. 01-17-00588-CR, 2018 WL

6378004, at *7 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet.) (mem. op.,

not designated for publication). In the absence of an objection, appellant has not

preserved this complaint for our review, and we cannot conclude the trial court

abused its discretion by admitting EA’s testimony without holding a section 2-a

hearing.

Appellant argues that in the absence of a section 2-a hearing, EA’s testimony

was barred by rule 404 of the rules of evidence. That rule provides, in relevant part.

that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in

accordance with the character.” TEX. R. EVID. 404(b)(1). But because we have found

no abuse of discretion related to section 2-a of article 38.37, EA’s testimony was

admissible under that article, and rule 404’s prohibition does not come into play. See

CODE CRIM. PROC. art. 38.37, § 2(b) (specifying the extraneous evidence is

admissible “[n]otwithstanding Rules 404 and 405”).1

We overrule appellant’s sole issue.

1 To the extent that appellant urges rule 404(b)(1) as a separate basis for excluding the evidence, he failed to object to the testimony at trial on that basis as well. –4– Conclusion

We affirm the trial court’s judgment.

/Bill Pedersen, III/. BILL PEDERSEN, III 190720f.u05 JUSTICE

Do Not Publish TEX. R. APP. P. 47

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

GABRIEL ADRIAN GUERRA, On Appeal from the 380th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 380-81860- No. 05-19-00720-CR V. 2018. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Chief Justice Burns and Justice Evans participating.

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

Judgment entered this 14th day of December, 2020.

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