Gus Guevara v. the State of Texas
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Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00127-CR __________________
GUS GUEVARA, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 412th District Court Brazoria County, Texas Trial Cause No. 88817-CR __________________________________________________________________
OPINION
A jury convicted Gus Guevara on four counts of a six-count
indictment—specifically, counts two and three—which charged Guevara
with aggravated sexual assault of a child, count five—which charged
Guevara with touching a child’s breast, and count six—which charged
1 Guevara with causing a child to touch his genitals. 1 In the punishment
hearing that followed, the trial court sentenced Guevara to prison for life
on the two convictions finding him guilty of sexually assaulting a child.
The court assessed twenty-year sentences on the other two counts,
stacking the sentences so that Guevara would begin serving his sentence
for causing the child to touch his genitals after completing his sentence
on his conviction for touching the child’s breast.
Guevara appealed, raising two issues for our review. In issue one,
Guevara argues the judgment should be reversed because the evidence is
insufficient to support his four convictions. In issue two, Guevara argues
the trial court erred in admitting the testimony of four witnesses who
testified about sexual assaults he allegedly committed against two other
children, years before he allegedly sexually assaulted the child named in
1Tex. Penal Code Ann. § 22.021(a)(2)(B) (Aggravated Sexual Assault of a Child); id. § 21.11(a)(1) (Indecency With a Child). Guevara filed his appeal in the Fourteenth Court of Appeals. But in April 2021, the Texas Supreme Court signed a docket-equalization order and transferred the appeal to the Ninth Court of Appeals to equalize the appellate dockets. See Tex. Gov’t Code Ann. § 73.001. As to the counts on which the jury found Guevara not guilty, the jury found him not guilty of penetrating the child’s sexual organ and not guilty of penetrating the child’s anus. 2 the six counts of the indictment as the victim of his crimes. Because we
conclude Guevara’s arguments lack merit, we will affirm.
Background
The case against Guevara was tried in April 2021. The six count
indictment is based on acts that allegedly occurred between June 30,
2016, and November 21, 2019, the day the indictment was filed. The
indictment alleges that when the acts of sexual abuse occurred, Luciana,2
the child named as the victim of the crimes, was not yet fourteen years
old. As to the offenses alleged by the indictment,
1) count one alleges Guevara intentionally or knowingly caused the penetration of Luciana’s sexual organ by his sexual organ, 2) count two alleges that Guevara intentionally or knowingly caused Luciana’s sexual organ to contact his mouth, 3) count three alleges that Guevara intentionally or knowingly penetrated Luciana’s mouth with his sexual organ, 4) count four alleges that Guevara intentionally or knowingly penetrated Luciana’s anus with his sexual organ, 5) count five alleges that Guevara intentionally or knowingly engaged in sexual contact with Luciana by touching her breast, and
2To protect the identity of the victim of the indictment and the members of her family except for Guevara, we use pseudonyms for their names. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). The first time a pseudonym is used for a person’s name, we indicate a pseudonym is being used with italics. 3 6) count six alleges that Guevara, with the intent to arouse or gratify his sexual desire, intentionally or knowingly engaged in sexual contact by causing Luciana to touch his genitals.
Eight witnesses testified in the guilt-innocence phase of the trial.
All eight were called by the State. In closing argument, Guevara’s
attorney argued that we don’t know why young people tell stories, “some
of them are true, some of them are not.” Then, he suggested that even
though eight witnesses testified in the trial, the case boiled down to a
“she said, he said case[,]” but he argued that nothing corroborated
Luciana’s story about the elements the State was required to prove to
meet its burden of proving that Guevara was guilty of the crimes on
which he had been tried.
On appeal, Guevara argues the evidence “so overwhelmingly
outweighs the evidence which shows that he committed these four
felonies that the jury’s verdict is unsupported by proof beyond a
reasonable doubt.” To support that argument, Guevara relies on the
following evidence: (1) Detective Cecil Arnold’s testimony, whom
Guevara claims testified that Guevara denied having sexually abused
Luciana during the detective’s investigation of Luciana’s claims; (2)
evidence showing that Luciana waited two years before reporting the
4 sexual abuse to an adult; and (3) the fact the jury acquitted Guevara on
two of the indictment’s six counts.
Viewed in the light most favorable to the verdict, the evidence
shows that Luciana was living with her parents in April 2021 when the
case went to trial. She was in the third grade when she testified and
approaching her tenth birthday. Luciana’s mother—Helen—testified
that between June 2016 and October 2019, the family was living with
Guevara (Helen’s father) in a townhome. Luciana was in third grade
when she told a school counselor she had been sexually abused by her
grandfather when she was five or six years old. 3 Helen described the
family’s sleeping arrangements in the two-bedroom townhome,
explaining her father had a bedroom of his own. As to Helen’s family,
Helen testified they either slept in the other bedroom or that Luciana and
3Helen explained she was living in Guevara’s home when Luciana was born, but that she had moved out and back into Guevara’s home a few times since then. That said, Helen testified when the incident the subject of the Guevara’s indictments occurred, her family had moved back in and had been living in Guevara’s home since her son was “about a year old[.]” Helen testified that Luciana was about two years older than her son. 5 her brother sometimes “slept anywhere they fell asleep[,]” which was
either upstairs “in our bedroom or the living room.” 4
Helen also described how sometimes her work required that she
leave her children with Guevara (Helen’s father) when she went to work
or left to run errands. For example, Helen testified that in 2016, her
husband was working from sunup until sundown at two restaurants.
Helen testified that she too worked at restaurants in 2016, but her work
ended around November 2016. According to Helen, after her work ended
around November 2016, she stayed at home and took care of her children
until October 2017, when she got another job. Still, even when staying
home and caring for her children, Helen said there were occasions when
she left the home to run errands. When that happened, Helen explained
she left Guevara with her children in his home.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00127-CR __________________
GUS GUEVARA, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 412th District Court Brazoria County, Texas Trial Cause No. 88817-CR __________________________________________________________________
OPINION
A jury convicted Gus Guevara on four counts of a six-count
indictment—specifically, counts two and three—which charged Guevara
with aggravated sexual assault of a child, count five—which charged
Guevara with touching a child’s breast, and count six—which charged
1 Guevara with causing a child to touch his genitals. 1 In the punishment
hearing that followed, the trial court sentenced Guevara to prison for life
on the two convictions finding him guilty of sexually assaulting a child.
The court assessed twenty-year sentences on the other two counts,
stacking the sentences so that Guevara would begin serving his sentence
for causing the child to touch his genitals after completing his sentence
on his conviction for touching the child’s breast.
Guevara appealed, raising two issues for our review. In issue one,
Guevara argues the judgment should be reversed because the evidence is
insufficient to support his four convictions. In issue two, Guevara argues
the trial court erred in admitting the testimony of four witnesses who
testified about sexual assaults he allegedly committed against two other
children, years before he allegedly sexually assaulted the child named in
1Tex. Penal Code Ann. § 22.021(a)(2)(B) (Aggravated Sexual Assault of a Child); id. § 21.11(a)(1) (Indecency With a Child). Guevara filed his appeal in the Fourteenth Court of Appeals. But in April 2021, the Texas Supreme Court signed a docket-equalization order and transferred the appeal to the Ninth Court of Appeals to equalize the appellate dockets. See Tex. Gov’t Code Ann. § 73.001. As to the counts on which the jury found Guevara not guilty, the jury found him not guilty of penetrating the child’s sexual organ and not guilty of penetrating the child’s anus. 2 the six counts of the indictment as the victim of his crimes. Because we
conclude Guevara’s arguments lack merit, we will affirm.
Background
The case against Guevara was tried in April 2021. The six count
indictment is based on acts that allegedly occurred between June 30,
2016, and November 21, 2019, the day the indictment was filed. The
indictment alleges that when the acts of sexual abuse occurred, Luciana,2
the child named as the victim of the crimes, was not yet fourteen years
old. As to the offenses alleged by the indictment,
1) count one alleges Guevara intentionally or knowingly caused the penetration of Luciana’s sexual organ by his sexual organ, 2) count two alleges that Guevara intentionally or knowingly caused Luciana’s sexual organ to contact his mouth, 3) count three alleges that Guevara intentionally or knowingly penetrated Luciana’s mouth with his sexual organ, 4) count four alleges that Guevara intentionally or knowingly penetrated Luciana’s anus with his sexual organ, 5) count five alleges that Guevara intentionally or knowingly engaged in sexual contact with Luciana by touching her breast, and
2To protect the identity of the victim of the indictment and the members of her family except for Guevara, we use pseudonyms for their names. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). The first time a pseudonym is used for a person’s name, we indicate a pseudonym is being used with italics. 3 6) count six alleges that Guevara, with the intent to arouse or gratify his sexual desire, intentionally or knowingly engaged in sexual contact by causing Luciana to touch his genitals.
Eight witnesses testified in the guilt-innocence phase of the trial.
All eight were called by the State. In closing argument, Guevara’s
attorney argued that we don’t know why young people tell stories, “some
of them are true, some of them are not.” Then, he suggested that even
though eight witnesses testified in the trial, the case boiled down to a
“she said, he said case[,]” but he argued that nothing corroborated
Luciana’s story about the elements the State was required to prove to
meet its burden of proving that Guevara was guilty of the crimes on
which he had been tried.
On appeal, Guevara argues the evidence “so overwhelmingly
outweighs the evidence which shows that he committed these four
felonies that the jury’s verdict is unsupported by proof beyond a
reasonable doubt.” To support that argument, Guevara relies on the
following evidence: (1) Detective Cecil Arnold’s testimony, whom
Guevara claims testified that Guevara denied having sexually abused
Luciana during the detective’s investigation of Luciana’s claims; (2)
evidence showing that Luciana waited two years before reporting the
4 sexual abuse to an adult; and (3) the fact the jury acquitted Guevara on
two of the indictment’s six counts.
Viewed in the light most favorable to the verdict, the evidence
shows that Luciana was living with her parents in April 2021 when the
case went to trial. She was in the third grade when she testified and
approaching her tenth birthday. Luciana’s mother—Helen—testified
that between June 2016 and October 2019, the family was living with
Guevara (Helen’s father) in a townhome. Luciana was in third grade
when she told a school counselor she had been sexually abused by her
grandfather when she was five or six years old. 3 Helen described the
family’s sleeping arrangements in the two-bedroom townhome,
explaining her father had a bedroom of his own. As to Helen’s family,
Helen testified they either slept in the other bedroom or that Luciana and
3Helen explained she was living in Guevara’s home when Luciana was born, but that she had moved out and back into Guevara’s home a few times since then. That said, Helen testified when the incident the subject of the Guevara’s indictments occurred, her family had moved back in and had been living in Guevara’s home since her son was “about a year old[.]” Helen testified that Luciana was about two years older than her son. 5 her brother sometimes “slept anywhere they fell asleep[,]” which was
either upstairs “in our bedroom or the living room.” 4
Helen also described how sometimes her work required that she
leave her children with Guevara (Helen’s father) when she went to work
or left to run errands. For example, Helen testified that in 2016, her
husband was working from sunup until sundown at two restaurants.
Helen testified that she too worked at restaurants in 2016, but her work
ended around November 2016. According to Helen, after her work ended
around November 2016, she stayed at home and took care of her children
until October 2017, when she got another job. Still, even when staying
home and caring for her children, Helen said there were occasions when
she left the home to run errands. When that happened, Helen explained
she left Guevara with her children in his home.
Helen also was asked about changes she noticed in Luciana’s
behavior. Helen testified she noticed a significant change in Luciana’s
behavior around October 2018. Helen explained the changes in behavior
were to everyone in the home, but Helen also said Luciana’s behavior
4Although the record is unclear, it appears the living room in the townhome was located downstairs from the context of other testimony when viewed from the record as a whole. 6 changed even more toward Guevara. When describing what had changed,
Helen testified Luciana began exhibiting signs of anger toward Guevara,
and she suddenly began secluding herself from everyone in the home.
Before Luciana’s behavior changed, Helen described Luciana as someone
who was “loveable, just always with smiles on her face[.]” But afterwards,
Helen said Luciana begged to go with her when she left the house and
made sad facial expressions when she left Luciana in Guevara’s care.
Helen also noticed that Luciana stopped coloring, even though Helen
explained that before things changed “[t]hat was her thing.”
Given the jury’s decision to acquit Luciana on some of the counts,
it’s clear the jury chose to believe most but not all of Luciana’s testimony.
Luciana, nearly ten years old when she testified, told the jury she was six
and in kindergarten when Guevara sexually abused her in his bedroom.
Luciana testified the abusive behavior occurred when her parents
weren’t at home, Guevara sexually abused her more than once, and
Guevara stopped sexually abusing her when she was around seven years
old. According to Luciana, all the incidents occurred in Guevara’s
bedroom. Luciana testified that her then four-year-old brother was in the
living room when these incidents occurred.
7 Luciana described the details of the abuse. According to Luciana,
Guevara: (1) “put his private part inside mine[;]” (2) “put his private in
my bottom[;]” (3) used his hands to touch her chest; (4) had her put her
mouth on his private part; and (5) had her put chocolate syrup on his
penis. When Luciana was asked what Guevara made her do with her
hands, she testified he “made me touch his private.” And when asked
whether Guevara ever touched her “front private with anything other
than his front private[,]” Luciana responded, “Yes.” Asked for more
detail, Luciana testified that Guevara touched her “front private” with
his hand and tongue. She testified his conduct occurred “sometimes every
day.”
On cross-examination, Guevara’s attorney asked Luciana: “[H]ow
many times have you had told this story?” Luciana responded and said
she had told it “[a] lot.” When the attorney asked her to be more specific,
Luciana testified: “It has been more than a dozen times.”
Cynthia Silva, Luciana’s school counselor, was also called by the
State to testify in the trial. Silva testified that on October 3, 2019, she
asked Luciana to come talk to her in her office after learning from a
parent of another child at the school that Luciana had reportedly told
8 that child about her grandfather’s abuse. Silva explained that she spoke
to Luciana, she had Luciana play with some sand and toy figurines. After
Luciana relaxed and began talking about members of her family, Silva
told Luciana that “someone told me what [you] had said about Grandpa.”
At that point, Silva said Luciana’s eyes widened, and Luciana said: “My
friend told you. I am so embarrassed.” Silva explained that she reassured
Luciana that she could trust her, and then Luciana told her: “It’s true. I
had s-e-x with my grandpa.”
According to Silva, Luciana told her what Guevara did to her when
she was five or six-years old when her parents weren’t home. Silva
testified Luciana told her that Guevara “put his thing in her private part”
when they were in his bedroom. Luciana also told Silva that Guevara
“would do it a lot” even though Luciana told “him to stop[.]” On cross-
examination, Silva agreed that on occasion she had seen children lie to
get someone else into trouble. Silva also agreed there’s “no ironclad way
to tell whether that’s what they are doing[.]”
The same day Luciana told Silva that Guevara had sexually abused
her, she spoke to Detective Cecil Arnold, an employee of the City of
Pearland Police Department about the alleged sexual abuse. During the
9 trial, Detective Arnold testified that Luciana decided to tell others about
Guevara’s sexual abuse because she told one of her friends and her friend
encouraged her to tell an adult. Detective Arnold testified that when he
interviewed Luciana, she told him she had “s-e-x with [her] grandpa.”
And he stated she told him these incidents occurred when she was five or
six years old.
Detective Arnold also discussed what Luciana told him about the
details of the sexual abuse. For example, the detective explained that
Luciana described “sex’ as “[Guevara’s] front private part in her front and
back private part.” Detective Arnold also said Luciana told him “she felt
[Guevara’s] front private part was hard and as she was being penetrated
that it hurt her and she would ask him to stop.” When Detective Arnold
asked her what functions her back and front private parts have, he said
she told him her “pee” came from her front private part and “she uses her
back private part to go poo.”
Detective Arnold said he asked Luciana whether anything else
happened, and “[s]he brought up oral.” Luciana described additional
details about the oral sex to the detective too, according to Detective
Arnold, as he testified that Luciana told him Guevara had asked her to
10 lick his private part and that she complied, licking what Luciana called
Guevara’s “front private part.” According to the detective, Luciana also
told him “her grandfather told her to go get some chocolate syrup and
bring it back and that the chocolate syrup was put on [Guevara’s] front
private part for her to lick off.”
Detective Arnold’s interview with Luciana provided details about
other acts of sex relevant to the counts in the indictment not yet
discussed. For instance, Detective Arnold testified Luciana “described an
incident where [Guevara] was putting his mouth onto her breast and she
used the word nipples” during the interview. He also said Luciana told
him that sometimes Guevara “would take her hand and put it on his front
private part,” which the detective explained Luciana understood to be
Guevara’s penis. Luciana also told the detective “her grandpa would get
a towel or a rag and, quote, wipe her front private part.” As to how often
these incidents occurred, Detective Arnold testified Luciana told him
they occurred “every day or every time that her parents were out
shopping[.]”
Detective Arnold explained that after he completed Luciana’s
interview, he spoke to Guevara at his home. In that interview, Detective
11 Arnold said he thought Guevara seemed “[v]ery laid back.” Detective
Arnold also testified that when he spoke to Guevara, Guevara laughed
after being informed about what Luciana told the detective what she was
claiming Guevara had done. According to Detective Arnold, after he told
Guevara about Luciana’s allegations, Guevara said: “[T]he only time he
would have ever touched her private part would be during a bathing
time.” Detective Arnold testified that Guevara told him that he often gave
Luciana her baths.
On October 9, 2019, Luciana was examined by Angie Chacko, a
sexual assault nurse. When Chacko testified, she explained she asks her
patients broad questions. In Luciana’s case, she testified she asked, “has
anyone ever touched you or did something to you that made you feel weird
or uncomfortable?” According to Chacko, Luciana responded: “Oh, yeah,
my grandpa.” Chacko explained that during Luciana’s examination,
Luciana told her that Guevara
would take his ‘front private,’ and patient points to genitalia, ‘and put it in my front and back private.’ Patient points to front genitalia and anus. ‘And he would touch my front private.’
Luciana also told Chacko about an incident when she (Luciana) put
her mouth on Guevara’s penis. Luciana described that incident 12 (according to Chacko) as involving the use of chocolate syrup. Chacko also
testified that Luciana told her that Guevara “put his tongue in my front
private part.” As to the part of the body Luciana was describing when she
referred to a person’s front private part, Chacko testified that Luciana
pointed to the correct area of a person’s body when she asked her what
she was talking about, the part consistent with a male or a female’s
sexual organ. And Chacko stated that Luciana pointed to her bottom
when she was talking about her back private part, which Chacko clarified
was Luciana’s anus.
Chacko’s history about when the sexual abuse occurred also fits
with what Luciana told Silva and Detective Arnold. Luciana told Chacko
that Guevara abused her when she was five or six years old. Luciana also
told Chacko Guevara sexually abused her when she was in kindergarten.
Chacko examined Luciana, but Chacko found no objective evidence in the
exam to suggest Luciana had suffered a physical injury from the alleged
abuse.
The testimony of the three remaining witnesses addressed the
evidence of the extraneous offenses that are the subject of Guevara’s
second issue, incidents involving sexual abuse of minors that allegedly
13 occurred in 1983 and 2004. Only the 1983 offense led to Guevara’s
indictment, and that indictment was dismissed. The evidence in
Guevara’s trial, however, does not show the reason the indictment was
dismissed.
Olivia testified about an extraneous offense that she claimed
occurred in 1983. Olivia was fifty three years old when she testified in
Guevara’s trial. Olivia testified about what she claimed Guevara did to
her in 1983 when she was fifteen years old. According to Olivia, in
January 1983 while she was babysitting at her aunt’s home, she was in
a loft bedroom, upstairs and by herself when Guevara (her uncle) came
upstairs and sat on the couch. According to Olivia, the next thing she
knew she was on the floor on her back. Then, Olivia continued, Guevara
covered her mouth with his hand, pulled the shorts she was wearing to
the side, and inserted his penis in her sexual organ. Olivia testified that
when Guevara finished, he told her to “go clean up.” Olivia explained that
when she went to the bathroom, she noticed Guevara had ejaculated. The
next morning, Guevara took her home and gave her $20 for babysitting.
Olivia agreed that when she got home, she didn’t tell anyone about what
14 Guevara did to her, excusing her failure to say anything to her parents
because she said she “was scared.”
Olivia explained that about five months after Guevara raped her,
her stomach “just started getting bigger.” She told her brother’s girlfriend
what Guevara had done and after that, her brother found out. When he
told her mother, the police were called to investigate. According to Olivia,
the “family was very divided at the time.” Explaining why the family was
divided, Olivia testified that some members of her family called her a
“mentirosa, which is a liar.” Olivia had a baby in September 1983, a baby
she testified that Guevara fathered. But according to Olivia, her mother
told her “she couldn’t raise his – [Guevara’s] child and be – have
[Guevara’s] child running around with his other kids and all the family.”
Olivia explained she never got to see her baby and didn’t get to keep her;
instead, Olivia explained “they took [the baby] away” to a family who
adopted the child.
At trial, Olivia agreed she knows where her daughter now lives.
According to Olivia, her daughter contacted her in 2009. Olivia testified
that occasionally, the two of them “speak.” As to other sexual
relationships Olivia had with other men around January 1983, Olivia
15 explained she had sex in the summer of 1982 with her boyfriend. But
Olivia denied she and that boyfriend were still together by January 1983.
According to Olivia, in January 1983 she had a different boyfriend, a boy
with whom she had not slept.
The evidence about Guevara’s other extrinsic offenses related to
two unindicted offenses he allegedly committed in 2004 against his then
seven-year-old granddaughter, Luisa. At trial, Luisa testified about two
specific acts she said Guevara committed against her in 2004. In one, she
said she was walking by a couch when Guevara grabbed her, put her on
his lap, reached in her pants, and touched her skin but touched her above
her sexual organ. She said that when that incident occurred, Guevara
didn’t say anything and she “just grabbed him and tried to get it out and
then ran upstairs.”
In the other incident, Luisa testified that Guevara came in his
bedroom while she and her siblings were playing on his bed. When
Guevara sat on the bed, Luisa explained she was afraid he might try to
“grab” her and “touch” her, so she tried to avoid him by hopping away
beyond his reach. But Luisa told the jury that Guevara “tackled [her] and
16 reached his hand in [her] pants[.]” Luisa testified Guevara’s hand
touched her “vagina” after he put his hands in her pants.
Luisa also told the jury that she told her cousin what happened to
her that day. Then, according to Luisa, her nine year old cousin told her
mother. After her parents found out, Luisa said her family took her to
the police station, where they told the police what she told them Guevara
had done. But to Luisa’s recollection, said she didn’t remember speaking
to a police officer that day. Instead, Luisa said she remembered sitting
on her father’s lap and the officers telling her parents that, “in time she’ll
forget about it.” According to Luisa, until Detective Arnold took her
statement in Luciana’s case, the investigation the police conducted into
what happened in 2004 didn’t go anywhere.
Luisa’s mother, Sara, testified that, after Luisa’s cousin told her
Sara was crying, she went to the room where Luisa was to see what was
wrong. Sara told the jury that Luisa “told me about the incident that
happened with her grandfather[,]” explaining that Luisa told her about
the incidents that occurred on the couch and in the bedroom. According
to Sara, these incidents both occurred in April 2004. Sara’s account about
what Luisa told her largely tracks Luisa’s, except Sara didn’t testify (and
17 wasn’t asked) whether Luisa told her exactly where Guevara’s hand
contacted Luisa’s body in either of the incidents that Luisa described.
Sara also testified the day or two after Luisa told her about what Guevara
did to her on the bed, she took Luisa to a therapist. Sara also told the
jury that before testifying in court that day, she had not appeared in court
to testify about what happened to Luisa in April 2004. Sara also
explained she has always wondered why the police didn’t follow up on the
report that she and her husband filed about what Luisa told them
Guevara had done.
At the end of the guilt-innocence phase of the trial, the jury found
Guevara guilty on four counts of the indictment—counts two and three,
which charged Guevara with sexually assaulting Luciana, a child; count
five, which charged Guevara with touching Luciana’s breast; and count
six, which charged Guevara with causing Luciana to touch his genitals.
There was no dispute at trial and there is no dispute in the appeal
that during the period relevant to Guevara’s indictment—June 30, 2016,
until November 19, 2019—Luciana was a child as that term is defined by
18 the Penal Code. 5 With respect to counts two and three, the counts
charging Guevara with the offense of aggravated sexual assault of a
child, the State needed to prove the defendant intentionally or knowingly:
(ii) cause[d] the sexual organ of a child to contact or penetrate the mouth . . . of another person, including the actor[—as to count two]; (iii)cause[d] the penetration of the mouth of another person by the sexual organ of the actor[—[as to count three]. 6
As for counts five and six—the counts charging Guevara with the
offense of indecency with a child by contact—Penal Code Section 21.11(a)
required the State to prove that Guevara “engage[d] in sexual contact
with [Luciana] or cause[d Luciana] to engage in sexual contact” with the
intent to arouse or gratify the sexual desire of any person regardless of
whether he knew Luciana’s age. 7 Under Penal Code Section 21.11(c),
sexual contact is defined as follows:
(c) In this section, ‘sexual contact’ means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
5Tex. Penal Code Ann. § 22.011(c) (for the offense of sexual assault, defining child to mean “a person younger than 17 years of age”); id. § 22.021(b) (for the offense of aggravated sexual assault, defining child as having “the meaning assigned by Section 22.011(c)”). 6Id. § 22.021(a)(1)(B)(ii), (iii), (a)(2)(B). 7Id. § 21.11(a).
19 (1) any touching by a person, including touching through the clothing, of the anus, breast, or any part of the genitals of a child, (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. 8
Issues
Guevara raises two issues in his appeal, one complaining about the
sufficiency of the evidence supporting his four convictions and the other
complaining of the trial court’s ruling admitting evidence that shows
Guevara engaged in other sexual misconduct with Olivia and Luisa,
children when the conduct that they described in the trial occurred.
Guevara frames his issues as follows:
(1) The Evidence Was Insufficient To Support Appellant’s Convictions For Aggravated Sexual Assault Of A Child and Indecency With A Child By Contact[; and] (2) The Trial Court Erred by Allowing Evidence Of Extraneous Offenses.
Standard of Review
When reviewing the evidence supporting a defendant’s conviction,
we view it in the light favoring the verdict the jury reached. 9 In our
8Id.§ 21.11(c). 9Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State,
520 S.W.3d 616, 622 (Tex. Crim. App. 2017). 20 review, the question is not whether we believe the witnesses; instead, the
question is whether, after viewing the evidence in the light favoring the
prosecution, “a rational juror could have found the essential elements of
the crime beyond a reasonable doubt.” 10
“Our review of ‘all the evidence’ includes evidence that was properly
and improperly admitted.” 11 If the record supports conflicting inferences,
we still must presume the jurors resolved any conflicts in a manner that
favors the jury’s verdict, and we must defer to the verdict it reached in
the trial. 12 When deliberating on its verdict, the jury may rely on direct
or on circumstantial evidence to establish the defendant’s guilt as both
have equal probative value. 13 In trials to juries, the jury is the ultimate
authority in deciding which witnesses were credible and in deciding the
weight to assign to the testimony. 14 As a reviewing court, we “must give
deference to ‘the responsibility of the trier of fact to fairly resolve conflicts
10Queeman, 520 S.W.3d at 622 (quoting Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013)). 11Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(cleaned up). 12Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010);
Clayton, 235 S.W.3d at 778. 13Clayton, 235 S.W.3d at 778. 14Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
21 in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.’” 15 Also, each fact need not point
directly to the defendant’s guilt; “it is enough if the [jury’s] conclusion is
warranted by the combined and cumulative force of all the incriminating
circumstances.” 16
Analysis
Guevara argues the evidence doesn’t support his convictions
because: (1) he denied Luciana’s allegations when Detective Arnold spoke
to him about what Luciana told him Guevara had done; (2) Luciana
waited two years before reporting the sexual abuse to any adults; and (3)
the jury returned verdicts acquitting him on two of the six counts of the
indictment—the counts alleging he sexually abused Luciana by
penetrating her sexual organ and the count alleging he penetrated her
anus.
As for the counts on which the jury returned convictions, count two
of the indictment required the State to prove that Guevara intentionally
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting 15Hooper v.
Jackson, 443 U.S. at 118-19). 16Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
22 or knowingly caused Luciana’s sexual organ to contact his mouth. 17 At
trial, Luciana testified that Guevara touched her front “private” with his
tongue. Nurse Chacko testified that when she questioned Luciana about
what parts of Guevara’s body touched Luciana’s body, Luciana told her:
“Oh, yea, he would put his tongue in my front private part.”
There was also testimony that allowed the jury to reasonably
conclude that when Luciana used the term front private part, she was
referring to her sexual organ. Detective Arnold testified that when he
asked Luciana about the functions of her front private part, she told him
the front was “where she pees from.”
Luciana’s testimony alone allowed the jury to find Guevara guilty.
Under Article 38.07 of the Texas Code of Criminal Procedure, when the
victim is seventeen or younger and even when the sexual offense of
aggravated sexual assault is not reported within a year, Texas law
provides that a conviction for aggravated sexual assault of a child “is
supportable on the uncorroborated testimony of the victim of the sexual
offense[.]” 18
17SeeTex. Penal Code Ann. § 22.021(a)(1)(B)(iii). 18Tex. Code Crim. Proc. Ann. art. 38.07(a)(b)(1).
23 To be sure, Guevara like most defendants accused of sexually
assaulting a child didn’t admit he sexually abused Luciana when
confronted with the allegations of the abuse. Guevara points to Luciana’s
delay in reporting his sexual misconduct to an adult to cast doubt on
whether the jury should have believed her. And we must concede the
record shows the first adult Luciana told of the abuse was her school
counselor, a delay of over a year when considering the first time Luciana
claimed Guevara engaged in the sexual misconduct she described in the
trial. Still, Luciana also testified that she didn’t tell her parents or
anyone about what Guevara did to her because Guevara asked her to
keep it a secret. And it’s so well known that it would have been within
the jury’s common knowledge that the cognitive skills of a child Luciana’s
age would not have been developed like that of an adult or even an older
child. 19 Thus, it wouldn’t have been irrational for the jury to have
19See Edwards v. State, No. PD-0585-21, 2023 Tex. Crim. App. LEXIS 98, *6 (Tex. Crim. App. Feb. 15, 2023) (explaining “the jury may use common sense, common knowledge, personal experience, and observations from life when drawing inferences”); Booker v. State, 929 S.W.2d 57, 60 (Tex. App.—Beaumont 1996, pet. ref’d) (explaining “the jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence”). 24 concluded that Luciana—a five to six-year-old child when the abuse
occurred—would have chosen not to report her grandfather for the
conduct based on her age and lack of perspective about what was right
and wrong together with the right the jury had to credit Luciana’s
testimony that she stayed silent for over a year because she was
complying with what her grandfather asked her to do.
So essentially Guevara simply wants this Court to reach a verdict
different than the one the jury reached in his trial by making an
assessment of the evidence that differs from that of the jury. As the trier
of fact, however, it was the jury’s responsibility to fairly resolve the
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from the evidence in reaching its verdict. 20 Simply put, as an
appellate court it is not our role to decide whether a witness in a trial was
a credible witness and then assign a different weight to that witness’s
testimony when the jury’s verdict from the evidence it heard is
reasonable. 21
20SeeJackson, 443 U.S. at 318-19. 21Penagraph, 623 S.W.2d at 343.
25 Guevara also argues the evidence must be insufficient to support
the jury’s verdict on the four counts on which it found him guilty since it
acquitted him on two of the counts, the counts alleging he penetrated
Luciana’s sexual organ and penetrated her anus. According to Guevara,
the jury’s decision to acquit him on these two counts but to convict him
on the other four “casts serious doubt” on her claims that she was
sexually abused. Although Guevara doesn’t expressly state his argument
in these words, his claim is that the jury’s verdicts on counts one and four
conflict with counts two, three, five and six.
First, we disagree that the differences between the jury’s finding on
the counts cannot be rationally explained. Even though we need not
provide Guevara with an explanation, we can see why a rational jury
based on the testimony would have chosen to acquit him on counts one
and four.
The jury heard Nurse Chacko testify that when she examined
Luciana, she didn’t find anything she could definitely associate with
trauma. And since Luciana was five or six years old when the alleged
events she described occurred, the jury could have rationally determined
that she either did not understand or was unable to distinguish between
26 penetration and attempted penetration to the degree expected of an
adult. 22 So even though Luciana testified that she felt pain and that from
her perspective (as a child) Guevara put his private part in her front and
back private parts, the jury acting rationally could have decided that
Luciana was mistaken about whether penetration of her sexual organ
and anus occurred.
Even so, no matter how the jury reached its decision as to the counts
on which it acquitted Guevara, to affirm Guevara’s convictions we need
not speculate about why the jury might have chosen to convict him on
some counts but to acquit him on others. We need not do so because in
measuring whether the evidence is sufficient to support a defendant’s
conviction, the conviction on “each count must stand or fall on its
own[.]”23
That the standard requires the evidence on each conviction to be
examined separately is long established blackletter law. In rejecting a
sufficiency challenge based on the defendant’s argument that the jury
reached inconsistent verdicts on different counts of a multiple-count
22See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). 23Hernandez v. State, 556 S.W.3d 325, 331 (Tex. Crim. App. 2018)
(opinion on rehearing). 27 indictment, the United States Supreme Court explained the differences
in the verdicts on a multiple-count indictment “may have been the result
of compromise, or of a mistake on the part of the jury. . . . But verdicts
cannot be upset by speculation or inquiry into such matters.” 24 Relying
on Dunn, our own Court of Criminal Appeals has held that “if a defendant
is acquitted of one count and convicted of another based on the same
evidence in a single trial, the defendant cannot rely on the inconsistent
verdicts to attack [his] conviction.” 25
Essentially, Guevara wants this Court to become a thirteenth juror
and substitute our judgment for that of the jury. Even so, that’s not our
role. 26 After reviewing the evidence and viewing it in the light favorable
to the verdict, we conclude the jury acted rationally in finding Guevara
guilty under count two of the indictment of the offense of aggravated
sexual assault of a child, as the evidence supports its conclusion that he
caused Luciana’s sexual organ to contact his mouth.
Under count three of the indictment, the State had to prove that
Guevara knowingly or intentionally penetrated Luciana’s mouth with his
24Dunn v. U. S., 284 U.S. 390, 394 (1932). 25See Hernandez, 556 S.W.3d at 331. 26See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
28 sexual organ to prove Guevara was guilty of the offense of aggravated
sexual assault of a child. 27 In his trial, Luciana testified that Guevara
made her put “his private part” in her mouth. She testified that when he
did so, she “didn’t like it[,]” and she “thought it was disgusting.” Since
Luciana was a child when the offense occurred, her testimony alone
supports his conviction since the jury had the right to believe her
testimony in its role as the finder of the facts. 28 Measuring the evidence
the jury heard on count three in the light most favorable to the
prosecution, we conclude a rational jury could have found that Guevara
knowingly or intentionally penetrated Luciana’s mouth with his sexual
organ. 29
Count five of the indictment required the State to prove that
Guevara engaged in sexual contact with Luciana by touching Luciana’s
breast with the intent to arouse or gratify his sexual desire. 30 Count six
of the indictment required the State to prove that Guevara knowingly or
27Tex.Penal Code Ann. § 22.021(a)(1)(B)(ii). 28Tex.Code Crim. Proc. Ann. art. 38.07(a)(b)(1); see Brooks, 323 S.W.3d at 899 n.13; Clayton, 235 S.W.3d at 778. 29See Hernandez, 556 S.W.3d at 331; Tex. Penal Code Ann. §
22.021(a)(1)(B)(ii). 30Tex. Penal Code Ann. § 21.11(a)(1), (c)(1).
29 intentionally caused Luciana to touch his genitals with the intent to
arouse or gratify his sexual desire. 31
Turning to the testimony supporting count five, the jury heard
Luciana testify that Guevara touched her chest with his hands. And it
heard Detective Arnold testify that during Luciana’s interview, she
“described an incident where [Guevara] was putting his mouth onto her
breast and she used the word nipples[.]” Thus, since we must assume the
jury credited this testimony, we conclude that the jury, acting rationally,
could have found Guevara guilty of the allegations in count five of the
indictment. 32
Next, we turn to the testimony supporting Guevara’s conviction
under count six, which charges Guevara with indecency with a child by
contact based on Luciana’s contact with Guevara’s genitals. At trial, the
jury heard Luciana testify that Guevara had her put chocolate syrup on
his penis. When she was asked what Guevara made her do with her
hands, she testified he “made me touch his private.” The jury also heard
Detective Arnold testify that when he interviewed Luciana, she told him
31Id. § 21.11(a)(1), (c)(2). 32Id. § 21.11(a)(1).
30 “her grandfather would take her hand and put it on his front private
part[,]” a reference Luciana used to describe Guevara’s penis. And the
detective told the jury that when Luciana was “talking about her hand
being put on his penis[,] she would move her hand back and forth.”
In evaluating Luciana’s testimony, it was up to the jury to decide
whether the inconsistencies between the accounts Luciana gave the jury
at trial and the accounts she told adults in earlier interviews were
sufficient to make the jury believe she was not credible or that she was
mistaken about what occurred. That said, the details Luciana provided
about the incident of touching Guevara’s genitals—one that included
Guevara’s use of chocolate syrup—allowed a rationale jury to decide that
Guevara made Luciana touch his genitals with her hands while intending
to arouse or gratify his sexual desire when she was a child. As mentioned,
it was up to the jury to decide which witnesses were credible and to decide
how to weigh their testimony. 33
For all the reasons explained above, we conclude the evidence
allowed a rational jury to conclude that Guevara was guilty under counts
two and three, the two counts charging Guevara with aggravated sexual
33See Penagraph, 623 S.W.2d at 343. 31 assault of a child. We further conclude the evidence supports Guevara’s
convictions under counts five and six of the indictment, the counts
charging him with indecency with a child. For these reasons, we overrule
Guevara’s first issue.
Evidence of Other Crimes, Wrongs, or Acts
In Guevara’s second issue, he complains the trial court erred in
allowing the jury to hear testimony by witnesses about Guevara’s other
alleged crimes, wrongs, or acts “because their testimony was not
adequate to support a finding by the jury that [Guevara] committed the
offense of indecency With a Child against [Luisa] and Aggravated Sexual
Assault Of A Child against [Olivia] beyond a reasonable doubt as
required by Article 38.37 of the Texas Code of Criminal Procedure.”34 In
issue two, Guevara complains about the trial court’s admission of the
testimony of four witnesses—Olivia, Luisa, Sara, and Detective Arnold.
In addition to arguing the evidence was inadmissible because the State
34Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a. (West 2018 and West Supp. 2022). Although the Legislature amended Article 38.37 after Guevara committed the offenses made the subject of his six-count indictment, none of the changes made to the Article are relevant to the issues Guevara has raised in his appeal. For that reason, we cite the current version of the Article when referring to it in the opinion.
32 failed to present sufficient evidence to allow the jury to find he committed
the extraneous offenses beyond reasonable doubt, Guevara argues that
Olivia’s testimony about the alleged rape was more prejudicial than
probative to proving his character given the remoteness a crime
committed in 1983 in proving a defendant’s propensity to commit crimes
alleged to have occurred over thirty years later.
At trial, Olivia testified that Guevara raped her in 1983 when she
was fifteen years old. Luisa testified that Guevara put his hand down her
pants twice in 2004 when she was seven years old. Sara, Luisa’s mother,
testified that Luisa told her about what Guevara did to her in 2004, and
she testified she reported Guevara’s misconduct to the police. Detective
Arnold testified he investigated the incident involving Luisa after it was
reported to the Pearland Police Department, took statements from
Luisa’s parents, and attended an interview that Luisa gave at the
Children’s Assessment Center. He then explained that based on the laws
available in Texas in 2004 and based on his investigation, the police
decided there wasn’t a crime with which Guevara could be charged so the
case was closed.
33 We determine whether a trial court erred in admitting evidence of
other crimes, wrongs, or acts under an abuse of discretion standard.35 “As
long as the trial court’s ruling is within the ‘zone of reasonable
disagreement,’ there is no abuse of discretion, and the trial court’s ruling
will be upheld.”36 Generally, when challenged on appeal, rulings
admitting evidence of extraneous offenses will be found to fall within the
zone of reasonable disagreement if “the evidence shows that 1) an
extraneous transaction is relevant to a material, non-propensity issue,
and 2) the probative value of the evidence is not outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury.” 37
The trial court conducted two hearings outside the presence of the
jury before allowing any witnesses to testify about any extraneous
crimes, wrongs, or bad acts. Olivia, Luisa, and Sara testified in the first
hearing. Detective Arnold testified in the other. As to the extraneous
crimes, wrongs, or acts discussed in the first hearing—the 1983 rape and
35Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005); Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). 36De La Paz v. State, 279 S.W.3d 336, 342-43 (Tex. Crim. App. 2009). 37Id. at 344.
34 the 2004 incidents involving Luisa—Guevara’s attorney made one
objection. He argued the testimony about these extraneous acts shouldn’t
have been admitted because none of the witnesses could remember how
the reports made to the police were ultimately resolved and based on
what the witness said happened the jury “can’t possibly get beyond
reasonable doubt.” As to Detective Arnold’s testimony, Guevara’s
attorney stated he had “no objection” to the detective’s testimony when
the Article 38.37 hearing ended.
When the extraneous offense is one of the offenses listed in
subsections (a)(1) and (b) of section 2(b) of the statute, Article 38.37 § 2(b)
allows trial courts to admit evidence of a defendant’s commission of the
extraneous wrong, crime, or act against a child “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.”38 But before allowing the jury to hear the evidence, the trial
court must conduct a hearing outside the jury’s presence to “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
38Id. art. 38.37, § 2(a)(1), (b). Tex. R. Evid. 404. 35 beyond a reasonable doubt.” 39 If the evidence is admissible under Article
38.37, the statute makes it admissible “[n]otwithstanding Rules 404 and
405, Texas Rules of Evidence[,]” two rules that when Article 38.37 does
not apply often prevent juries from hearing evidence that a defendant
committed an extraneous crime, wrong, or act. 40
The counts on which Guevara was tried included counts charging
him with aggravated sexual assault of a child and indecency with a child.
Before the trial court decided whether to admit the evidence addressing
Guevara’s extraneous offenses, the court conducted the required Article
38.37 hearing without the jury being present. 41 The evidence the trial
court considered in the hearing included testimony by Olivia and Luisa,
both eyewitnesses to the respective extraneous offenses. At the end of the
hearing, the trial court found the “evidence likely to be admitted at trial
will be adequate to support a finding by the jury that [Guevara]
committed the separate offenses beyond a reasonable doubt[.]”
As to the 2003 offense involving Olivia, the State’s theory was that
the testimony about the 1983 offense against Olivia was admissible to
39Id. art. 38.37, § 2-a. 40Id. art. 38.37, § 2(b); Tex. R. Evid. 404, 405. 41Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a(1).
36 show Guevara’s character and to show the acts he committed against
Luciana fit with Guevara’s character. 42 From Olivia’s description of what
Guevara did to her in January 1983, the State could have charged
Guevara with the offense of rape of a child under the then existing
version of the Penal Code, which applied to the offense Olivia described.43
To prove rape of a child under the 1983 Penal Code, the State had to
prove the defendant had sexual intercourse with a female, not his wife,
when the female was younger than seventeen years old. 44 Today, section
22.021(a)(1)(B) of the Penal Code, which defines the crime of aggravated
sexual assault of a child, is the functional equivalent of rape of a child as
that offense is described by the 1983 version of the Penal Code. 45 Thus,
assuming the evidence is relevant proving “the character of the defendant
and acts performed in conformity with the character of the defendant[,]”
to prove Guevara committed the extraneous crime of rape of a child under
42Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). 43Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 21.09, 1973 Tex.
Gen. Laws 883, 917-18 (current version at Tex. Penal Code Ann. § 22.021(a)(1)(B) (defining the offense of aggravated sexual assault of a child)). 44Id. 45Compare Tex. Penal Code Ann. § 22.021(a), with Act of May 24,
1973, 63rd Leg., R.S., ch. 399, § 21.09, 1973 Tex. Gen. Laws at 917-18. 37 the 1983 Penal Code, the State needed to present evidence sufficient to
allow the jury to find that Guevara raped Olivia a child who was not his
wife to justify the trial court ruling admitting the testimony about that
extraneous offense into the evidence in the case at issue in this appeal.46
Guevara’s claims the State didn’t present sufficient evidence to
meet its Article 38.37 burden in the hearing to prove the evidence about
Olivia’s rape was admissible. We disagree. During the hearing, the trial
court heard Olivia testify that she was fifteen years old when Guevara
raped her in 1983. The trial court heard Olivia testify that she didn’t
consent to the sex—specifically, Olivia testified that when Guevara
pulled her down on the floor and got on top of her while holding her arm
behind her back, she “kept saying no, no, no, no.” While Guevara had her
on the floor, Olivia told the trial court that he had “his hand over her
mouth.” During the hearing, Olivia also testified that she and Guevara
were never married.
On appeal, Guevara argues that Olivia wasn’t a credible witness.
He points to the fact that Olivia didn’t report she was raped until May
1983, after it was obvious she was pregnant. He also complains the State
46Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). 38 failed to prove that the child Olivia testified she gave birth to in
September 1983 was his child based on a paternity test. And Guevara
suggests the State failed to exclude the possibility that the child Olivia
gave birth to in 1983 was fathered by her boyfriend, a boyfriend Olivia
admitted having in January 1983. Olivia, however, testified during the
Article 38.37 hearing that she and the boyfriend she had in January 1983
never had sex. And even though a paternity test would have proven
beyond question whether Guevara fathered Olivia’s child, the fact no test
was presented by either party doesn’t show that the jury could not have
reasonably chosen to believe Olivia’s testimony that Guevara raped her.
When a party wants to offer evidence of an extraneous crime, wrong
or act, the trial court must first determine outside the jury’s presence
whether the testimony about the offense would likely allow the jury to
find beyond reasonable doubt that the “defendant committed the
separate offense[.]” 47 Rule 104(b) of the Texas Rules of Evidence provides
the guiding rule trial courts must follow when the relevancy of the
evidence depends on fulfilling a preliminary condition of fact. 48 To decide
47Tex. Code Crim. Proc. Ann. art. 38.37 § 2-a(1). 48Tex. R. Evid. 104(b); Montgomery v. State, 810 S.W.2d 372, 376 n.
4 (Tex. Crim. App. 1990) (citing Huddleston v. U. S., 485 U.S. 681 (1988) 39 whether the State has introduced sufficient evidence to meet a
preliminary condition under Rule 104(b)—which in Guevara’s case was
does the evidence in the Article 38.37 hearing show the evidence likely to
be admitted at trial would be adequate to support the jury’s finding that
the defendant committed the separate offense beyond reasonable doubt—
“the trial court neither weighs credibility nor makes a finding that the
[State] has proved the conditional fact[.]” 49 Instead, the court acts as a
gatekeeper, examines the evidence introduced in the hearing, and
decides whether the evidence, if admitted before the jury, would support
the jury’s finding of the conditional fact. 50
With exceptions that do not apply here, the general rule is that the
testimony of an eyewitness alone is sufficient to support a defendant’s
conviction. 51 The trial court knew that when Olivia testified before the
for the proposition that “Rule 104(b) applies to all preliminary issues of relevancy including the admission of extraneous offenses under Tex. R. Evid. 404(b).”). 49See Huddleston, 485 U.S. at 690; Tex. Code Crim. Proc. Ann. art.
38.37 § 2-a(1). 50Id. 51Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Price
v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Vernon v. State, 571 S.W.3d 814, 820 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d); Smith v. State, 421 S.W.3d 161, 164 (Tex. App.— San Antonio 2013, no pet.); Thomas v. State, No. 09-12-00458-CR, 2013 40 jury, the jury could observe her demeanor and in its role as the factfinder
reconcile any discrepancies in her testimony—discrepancies such as
whether she was being truthful about sleeping with the boyfriend in
January 1983 and whether the child she claimed Guevara fathered was
his child. 52 We conclude the trial court did not abuse its discretion in
allowing Olivia to testify about the 1983 rape. Olivia’s testimony, if the
jury as the factfinder chose to believe it, offers reasonable support for a
finding under a standard of proof beyond reasonable doubt that Guevara
raped Olivia, a female not his wife, when Olivia was younger than
seventeen years old. 53
For similar reasons, we conclude the trial court didn’t abuse its
discretion by concluding that if the jury chose to believe Luisa’s
testimony, her testimony would reasonably support the jury’s conclusion
that Guevara engaged in the two extraneous crimes, wrongs, or acts that
she described—indecency with a child by contact and attempted
Tex. App. LEXIS 11765, at *3 (Tex. App.—Beaumont Sept. 18, 2013, pet. ref’d) (mem. op., not designated for publication). 52See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991). 53Tex. R. Evid. 104(b); Tex. Code Crim. Proc. Ann. art. 38.37, § 2-
a.(1). 41 indecency with a child by contact. 54 As discussed, with exceptions not
applicable here, the testimony of a single eyewitness can support a
defendant’s conviction. 55 During the Article 38.37 hearing, Luisa testified
that on one occasion, when she was walking by the couch, Guevara
grabbed her hand, pulled her onto his lap, and slipped his hand in her
pants. Luisa testified she grabbed his hand and stopped him before he
touched her sexual organ. According to Luisa, on another occasion, she
was playing with her siblings in Guevara’s bedroom when Guevara
tackled her, put his hands down her pants, and touched her sexual organ.
According to Luisa, the conduct she described occurred in 2004
when she was seven years old. While the section of the Penal Code that
describes the elements the State must prove to convict a defendant of
indecency with a child has been amended since 2004, the changes the
legislature made to the statute are not relevant to Guevara’s appeal.56
Previously, we discussed the elements the State must prove to convict a
54Tex.Penal Code Ann. § 21.11(a)(1). 55Aguilar,468 S.W.2d at 77. 56Compare Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 3, 1973
Tex. Gen. Laws 1463-64, with Tex. Penal Code Ann. § 22.11 (Indecency With a Child). 42 defendant of the offense of indecency with a child by contact. 57 To convict
the defendant of the offense of attempted indecency with a child by
contact, the State must prove the defendant, with the specific intent to
commit the offense of indecency with a child by contact, did an act
amounting to more than mere preparation that tends but fails to effect
the commission of the offense. 58
When Luisa testified in the trial, the trial court knew that the jury
could observe her demeanor and as the factfinder had the right to resolve
any discrepancies in her testimony. 59 It was proper for the trial court to
leave the credibility decisions about what Luisa claimed occurred up to
the jury, since as the gatekeeper in the Article 38.37 hearing it was not
the trial court’s role to weigh Luisa’s credibility. 60 We conclude the trial
court did not abuse its discretion by concluding that, should the jury
choose to believe Luisa’s testimony, her testimony would reasonably
support findings by the jury that Guevara touched Luisa’s sexual organ
and that he attempted to touch her sexual organ based on her testimony
57Tex. Penal Code Ann. 21.11(a)(1). 58Id.§ 15.01(a); id. § 21.11(a). 59See Chambers, 805 S.W.2d at 461. 60See Huddleston, 485 U.S. at 690; Tex. R. Evid. 104(b).
43 about the two incidents she described. 61 And when considering the
testimony as a whole, the jury could also reasonably conclude both of the
incidents Luisa described occurred with the intent to arouse or gratify
Guevara’s sexual desire. 62
Last, Guevara argues that he “objected to the admission of these
extraneous offenses because their prejudicial effect would outweigh their
probative value under rule 403 of the Texas Rules of Evidence[.]”
According to Guevara, he raised his Rule 403 objection to the evidence at
volume 4, page 41 of the Reporter’s Record during the Article 38.37
hearing. We disagree Guevara preserved his Rule 403 objection for the
purpose of his appeal.
During the Article 38.37 hearing, Guevara made but one objection
to the evidence of the extraneous crimes, wrongs, or acts the witnesses
discussed—he claimed the evidence the State presented wouldn’t allow
the jury to “possibly get beyond reasonable doubt. So this stuff, I submit,
is not proper – or not properly proven or developed extraneous items that
should be included.” When Olivia, Luisa, Sara, and Detective Arnold
61Tex. Penal Code Ann. § 21.11(a); Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a.(1). 62Id.
44 testified before the jury, Guevara didn’t object to their testimony about
the extraneous offenses and claim it was not relevant or that it was
prejudicial. 63
To preserve an issue for appellate review, a party must lodge a
timely objection, stating the specific basis for the objection.64
Preservation is a “systemic requirement[,]” meaning that when an issue
isn’t “preserved for appeal, neither the court of appeals nor [the Court of
Criminal Appeals] should address the merits of that issue.”65 “Ordinarily,
a court of appeals should review preservation of error on its own
motion[.]” 66 Once a trial court decides to admit the extraneous offense
evidence under Article 38.37, it conducts a Rule 403 balancing test only
“upon proper objection or request.” 67 No such objection or request was
made here. We conclude that the complaints Guevara raised in his brief
claiming for the first time that the trial court’s admission of the evidence
63Tex. R. Evid. 402, 403. 64Tex. R. App. P. 33.1(a)(1). 65Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). 66Id. at 533. 67Keller v. State, 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020, pet.
ref’d) (emphasis in original) (quoting Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)); see also Montgomery, 810 S.W.2d at 388-89. 45 about the extraneous crimes was more prejudicial than probative was not
properly preserved for the purposes of his appeal. 68
Conclusion
For the reasons explained above, Guevara’s issues are overruled.
The trial court’s judgment is
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on October 14, 2022 Opinion Delivered April 12, 2023 Publish
Before Golemon, C.J., Horton and Wright, JJ.
68Tex. R. App. P. 33.1. 46
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