In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-14-00307-CR ____________________
HOWARD JAY LILLEY, Appellant
V.
THE STATE OF TEXAS, Appellee _________________________________ ______________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 22324 ____________________________________________ ____________
MEMORANDUM OPINION
A jury convicted Howard Jay Lilley of indecency with a child, D.L., by
sexual contact and sentenced Lilley to eighteen years in prison. In two appellate
issues, Lilley challenges the admission of extraneous-offense evidence and the trial
court’s jury instruction on extraneous-offense evidence. We affirm the trial court’s
judgment.
In issue one, Lilley contends that the trial court abused its discretion by
allowing testimony regarding a 2003 incident involving T.H. Evidence of other
1 crimes, wrongs, or acts may be admissible as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R.
Evid. 404(b). Even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. We
review a trial court’s admission of extraneous-offense evidence under an abuse of
discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998)
(op. on reh’g). Error may not be predicated upon a ruling which admits evidence
unless a party’s substantial rights are affected. Tex. R. Evid. 103(a); see Tex. R.
App. P. 44.2(b). We will not reverse if, after examining the entire record, we have
fair assurance that the error did not influence the jury or had but slight effect.
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
At trial, the State sought to admit evidence of an incident that occurred in
2003. At a hearing outside the jury’s presence, Lilley argued that the remoteness of
the offense rendered the evidence more prejudicial than probative and that the
evidence was inadmissible under Texas Code of Criminal Procedure Article 38.37.
The trial court found the evidence admissible.
T.H. subsequently testified that in 2003 Lilley had been following her at a
high school basketball game and, at some point, Lilley approached her, touched her
breast, and grabbed her bottom when she walked away. Lilley told T.H., “You are
2 getting so big. I bet all the boys like you now.” K.F. testified that she saw Lilley
touching the side of T.H.’s breast. A.C., T.H.’s mother, testified that T.H. did not
want to pursue charges because Lilley was related to T.H.’s paternal family
members, Lilley’s wife worked at T.H.’s school, and T.H. was afraid. In the jury
charge, the trial court included the following limiting instruction:
Evidence has been introduced that the defendant committed offenses, wrongs or acts, other than that for which he is on trial. You are instructed that you cannot consider such evidence for any purpose unless you first find from the evidence presented beyond a reasonable doubt that the defendant did commit those other offenses, wrongs or acts, if any. Therefore, if the State has not proven the defendant’s guilt of those other offenses, wrongs or acts, if any, beyond a reasonable doubt, or if you have a reasonable doubt of the defendant’s guilt of those other offenses, wrongs or acts, if any, you shall not consider such evidence for any purpose.
If you find that the State has proven, beyond a reasonable doubt, the defendant's guilt of those other offenses, wrongs or acts, if any, you may consider such evidence for its bearing on matters relevant to the offense for which the defendant is on trial, including the character of the defendant and acts performed in conformity with the character of the defendant, and you may not consider those offenses, wrongs, or acts, if any, for any other purpose.
Assuming, without deciding, that the trial court abused its discretion by
admitting the complained-of evidence, we conclude that Lilley’s substantial rights
were not affected. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(b).
Given the evidence before the jury, it is unlikely that the admission of the 3 complained-of evidence had a substantial effect on the jury’s verdict. See Ladd v.
State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). The jury heard evidence that in
2011, D.L. told her mother that Lilley placed his hand under D.L.’s bra towards her
breast and asked to touch D.L.’s breasts. She also told her mother that Lilley would
bring his hands toward her breasts during hugs. D.L. testified that Lilley touched
her inappropriately by placing his hand inside her bra and touching her breast and
that, on another occasion, he asked to touch her breasts. She also testified that
Lilley would “kind of touch” her breasts during hugs. When D.L. told her
grandmother that Lilley had asked to touch her breasts, her grandmother told her
not to tell anyone and that she would speak with Lilley. Detective Christi Allen
testified that when she called Lilley to inform him that a warrant had been issued,
Lilley replied, “Oh, f---. I messed up” or “Oh, hell, I messed up[]” before hanging
up on Allen. The State discussed the offense against T.H. and argued that “[t]his is
a pattern[,]” but focused its arguments on the charged offense against D.L.
Even absent the complained-of evidence, the testimony of D.L. alone
supports Lilley’s conviction for indecency with a child. See Cantu v. State, 366
S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); see also Navarro v. State,
241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). After
examining the record as a whole, we have fair assurance that the error, if any, did
4 not influence the jury, or had but slight effect. See Ladd, 3 S.W.3d at 568; see also
Taylor, 268 S.W.3d at 592. We overrule issue one.
In issue two, Lilley contends that the trial court’s limiting instruction failed
to correctly advise the jury on the law applicable to extraneous offenses. During
the trial conference, Lilley had no objections to the trial court’s jury charge. An
affirmative denial of objection is the equivalent to a failure to object; thus, we may
not reverse unless the error, if any, is ‘“so egregious and created such harm’” that
the defendant did not receive a fair and impartial trial. Sakil v. State, 287 S.W.3d
23, 26 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985)); Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App.
2004). We consider (1) the entire jury charge, (2) the state of the evidence, (3) the
parties’ arguments, and (4) any other relevant information found in the record as a
whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
Assuming, without deciding, that the trial court’s jury charge was erroneous,
we conclude that harm, if any, was not egregious. The State briefly mentioned the
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-14-00307-CR ____________________
HOWARD JAY LILLEY, Appellant
V.
THE STATE OF TEXAS, Appellee _________________________________ ______________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 22324 ____________________________________________ ____________
MEMORANDUM OPINION
A jury convicted Howard Jay Lilley of indecency with a child, D.L., by
sexual contact and sentenced Lilley to eighteen years in prison. In two appellate
issues, Lilley challenges the admission of extraneous-offense evidence and the trial
court’s jury instruction on extraneous-offense evidence. We affirm the trial court’s
judgment.
In issue one, Lilley contends that the trial court abused its discretion by
allowing testimony regarding a 2003 incident involving T.H. Evidence of other
1 crimes, wrongs, or acts may be admissible as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R.
Evid. 404(b). Even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. We
review a trial court’s admission of extraneous-offense evidence under an abuse of
discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998)
(op. on reh’g). Error may not be predicated upon a ruling which admits evidence
unless a party’s substantial rights are affected. Tex. R. Evid. 103(a); see Tex. R.
App. P. 44.2(b). We will not reverse if, after examining the entire record, we have
fair assurance that the error did not influence the jury or had but slight effect.
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
At trial, the State sought to admit evidence of an incident that occurred in
2003. At a hearing outside the jury’s presence, Lilley argued that the remoteness of
the offense rendered the evidence more prejudicial than probative and that the
evidence was inadmissible under Texas Code of Criminal Procedure Article 38.37.
The trial court found the evidence admissible.
T.H. subsequently testified that in 2003 Lilley had been following her at a
high school basketball game and, at some point, Lilley approached her, touched her
breast, and grabbed her bottom when she walked away. Lilley told T.H., “You are
2 getting so big. I bet all the boys like you now.” K.F. testified that she saw Lilley
touching the side of T.H.’s breast. A.C., T.H.’s mother, testified that T.H. did not
want to pursue charges because Lilley was related to T.H.’s paternal family
members, Lilley’s wife worked at T.H.’s school, and T.H. was afraid. In the jury
charge, the trial court included the following limiting instruction:
Evidence has been introduced that the defendant committed offenses, wrongs or acts, other than that for which he is on trial. You are instructed that you cannot consider such evidence for any purpose unless you first find from the evidence presented beyond a reasonable doubt that the defendant did commit those other offenses, wrongs or acts, if any. Therefore, if the State has not proven the defendant’s guilt of those other offenses, wrongs or acts, if any, beyond a reasonable doubt, or if you have a reasonable doubt of the defendant’s guilt of those other offenses, wrongs or acts, if any, you shall not consider such evidence for any purpose.
If you find that the State has proven, beyond a reasonable doubt, the defendant's guilt of those other offenses, wrongs or acts, if any, you may consider such evidence for its bearing on matters relevant to the offense for which the defendant is on trial, including the character of the defendant and acts performed in conformity with the character of the defendant, and you may not consider those offenses, wrongs, or acts, if any, for any other purpose.
Assuming, without deciding, that the trial court abused its discretion by
admitting the complained-of evidence, we conclude that Lilley’s substantial rights
were not affected. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(b).
Given the evidence before the jury, it is unlikely that the admission of the 3 complained-of evidence had a substantial effect on the jury’s verdict. See Ladd v.
State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). The jury heard evidence that in
2011, D.L. told her mother that Lilley placed his hand under D.L.’s bra towards her
breast and asked to touch D.L.’s breasts. She also told her mother that Lilley would
bring his hands toward her breasts during hugs. D.L. testified that Lilley touched
her inappropriately by placing his hand inside her bra and touching her breast and
that, on another occasion, he asked to touch her breasts. She also testified that
Lilley would “kind of touch” her breasts during hugs. When D.L. told her
grandmother that Lilley had asked to touch her breasts, her grandmother told her
not to tell anyone and that she would speak with Lilley. Detective Christi Allen
testified that when she called Lilley to inform him that a warrant had been issued,
Lilley replied, “Oh, f---. I messed up” or “Oh, hell, I messed up[]” before hanging
up on Allen. The State discussed the offense against T.H. and argued that “[t]his is
a pattern[,]” but focused its arguments on the charged offense against D.L.
Even absent the complained-of evidence, the testimony of D.L. alone
supports Lilley’s conviction for indecency with a child. See Cantu v. State, 366
S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); see also Navarro v. State,
241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). After
examining the record as a whole, we have fair assurance that the error, if any, did
4 not influence the jury, or had but slight effect. See Ladd, 3 S.W.3d at 568; see also
Taylor, 268 S.W.3d at 592. We overrule issue one.
In issue two, Lilley contends that the trial court’s limiting instruction failed
to correctly advise the jury on the law applicable to extraneous offenses. During
the trial conference, Lilley had no objections to the trial court’s jury charge. An
affirmative denial of objection is the equivalent to a failure to object; thus, we may
not reverse unless the error, if any, is ‘“so egregious and created such harm’” that
the defendant did not receive a fair and impartial trial. Sakil v. State, 287 S.W.3d
23, 26 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985)); Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App.
2004). We consider (1) the entire jury charge, (2) the state of the evidence, (3) the
parties’ arguments, and (4) any other relevant information found in the record as a
whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
Assuming, without deciding, that the trial court’s jury charge was erroneous,
we conclude that harm, if any, was not egregious. The State briefly mentioned the
limiting instruction during closing arguments, but also told the jury that it could
find Lilley guilty if it believed D.L.’s testimony alone; and defense counsel
reminded the jury that the case on trial was the offense against D.L. The jury
charge tracked the language of the indictment and instructed the jury that the State
5 bore the burden of proving Lilley’s guilt beyond a reasonable doubt. The charge
also instructed the jury that it could only find Lilley guilty if it found he committed
the offense of indecency with a child beyond a reasonable doubt or acquit Lilley if
it could not so find. The trial court instructed the jury that Lilley was presumed
innocent and was not required to prove his innocence and advised the jury that it
was the exclusive judge of the credibility of the witnesses and the weight to be
given their testimony. Moreover, as previously discussed, even without the
extraneous-offense testimony, the evidence of the charged offense supports
Lilley’s conviction. The record does not suggest that the extraneous-offense
instruction confused the jury or caused the jury to convict on less than beyond a
reasonable doubt. Based on the record before us, we conclude that Lilley was not
denied a fair and impartial trial. See Sakil, 287 S.W.3d at 26. We overrule issue
two and affirm the trial court’s judgment.
AFFIRMED.
___________________________ STEVE McKEITHEN Chief Justice
Submitted on December 8, 2014 Opinion Delivered January 14, 2015 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.