AFFIRM; and Opinion Filed June 7, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00170-CR No. 05-18-00171-CR
JASON DANIEL STRICKLAND, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F15-76631-V Trial Court Cause No. F16-00834-V
MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Brown Appellant Jason Daniel Strickland appeals his convictions for one count of trafficking a
child1 and one count of sexual assault of a child.2 In three issues, appellant contends (1) article
38.37 of the Texas Code of Criminal Procedure violates his right to due process, (2) the trial court
abused its discretion in admitting evidence of prior convictions, and (3) the evidence is
insufficient to support his conviction for trafficking a child. For the following reasons, we affirm
the trial court’s judgments.
1 Trial court cause number F15-76631-V; appellate cause number 05-18-00170-CR. 2 Trial court cause number F16-00834-V; appellate cause number 05-18-00171-CR. BACKGROUND
Appellant entered pleas of not guilty to indictments charging him with one count of
trafficking a child and one count of sexual assault of a child. Before trial, the State filed a notice
of intent to use evidence of appellant’s previous convictions on five counts of rape pursuant to
article 38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.
38.37, § 2(b). At a pretrial hearing, appellant objected to the evidence as irrelevant and overly
prejudicial. He also challenged the constitutionality of article 38.37. The trial court overruled
appellant’s objections.
At trial, complaining witness V.P. testified she was fifteen-years-old and living with her
parents in Allen, Texas during the summer of 2015. She was not doing much other than some
babysitting and spent time communicating with people over the internet on her IPod Touch or an
old IPhone. Her parents did not know she had downloaded a number of applications, some of
which she was supposed to be eighteen to use. And, V.P. had been doing “things online that [she]
was not proud of,” including sending some nude pictures of herself. A recipient of the pictures
threatened to tell V.P.’s sister, and V.P. was terrified and felt trapped. She determined she needed
to get away, and began contacting people over social media to ask if she could stay with them.
V.P. first communicated with appellant, who was in his early thirties at the time, in an
online chat forum. She told him her parents were really strict and she wanted to get away. After
she asked if he could “help [her] out,” appellant suggested they could have a relationship if she
came to live with him. He talked about sex “pretty much all the time” and requested pictures,
including a picture of V.P.’s “private area” and another of her holding a sign saying that she
belonged to appellant. When appellant asked about doing sexual things, V.P. said “Sure. maybe”
because she had learned from talking to guys on social media “for a couple months” that he would
be more motivated to let her live with him.
–2– V.P. testified she told appellant she was fifteen-years-old. On cross-examination,
appellant’s counsel asked if she recalled telling appellant she was twenty-two. V.P. testified that
she did not recall that, but then responded “I guess not” when appellant’s counsel asked if she
“explicitly told him [she was] 15.” V.P. acknowledged telling guys on the internet that she was
older than fifteen, but she would have been surprised if appellant thought she was twenty-two
because she did not look twenty-two in the pictures she sent him. Additionally, they had discussed
that their plan could be “dangerous” for them because she was underage.
Twice, V.P. and appellant planned for appellant, who lived in Alabama, to pick her up, but
he was unable to come. He then asked if she could travel to him by bus. V.P. found a ride from
her house to the bus station when a seventeen-year-old boy she met on a messaging app told her
his father would pick her up, take her to a motel where they would wait overnight, and then take
her to the bus station in the morning. Appellant did not help V.P. arrange the ride, but told her
beforehand that she was “probably going to have to do something . . ., like sexual favors, because,
you know, people don’t just do things for free.” After V.P. told appellant she had arranged the
ride, he said, “yeah, he’s going to want to have sex with you and you should do it – you need to
do it.” V.P. told appellant she was “not ready for that,” but appellant told her to call him when she
was at the motel.
Cuauhtemoc Munoz, a man in his mid-forties, picked V.P. up at her house. He admitted
there was no seventeen-year-old boy and he had been communicating with V.P. He took V.P. to
a motel, where he removed her clothes and they “had sex.” V.P. called appellant, as he had
requested, on Munoz’s telephone. Appellant asked her to touch and suck Munoz’s penis. Munoz
and V.P. then had vaginal and oral sex while appellant remained on speaker phone. Later, Munoz
“started having sex” with V.P. again in the shower; she told him to stop “over and over,” but he
did not.
–3– At appellant’s suggestion, Munoz got V.P. a TracFone before dropping her off at the bus
station. She and appellant spoke while she waited for the bus, and he told her she might want to
wear some makeup to look a little older. Appellant then called V.P. while she was on the bus
because her father had called him.3 Appellant was very upset and told her not to come see him or
mention him to her parents. V.P.’s parents picked her up in Birmingham, Alabama. V.P. testified
appellant was the only reason she got on a bus to go to Alabama and arranged with Munoz for a
ride to the bus station.
The State introduced evidence of telephone company records that tracked text messages
and calls to and from V.P.’s, appellant’s, and Munoz’s phones. There were “a lot of” text
messages between V.P. and appellant the day before she left home. Then, at 12:38 a.m., there
was an outgoing text from appellant’s phone to Munoz’s phone, followed by six texts back and
forth that ended at 12:47 a.m. Cell tower mapping data showed Munoz entered Allen shortly
thereafter, at approximately 12:53 a.m. And, around 3:16 a.m., there was a long telephone call,
lasting just under an hour, from Munoz’s phone to appellant.
Munoz also testified at trial. For his conduct, Munoz had pleaded guilty to charges of
sexual assault and trafficking a person. He initially testified that he first spoke with appellant after
he and V.P. had sex, but later corrected his testimony to reflect that he spoke beforehand with
appellant, who wanted Munoz to “have sex with her.” Afterward, appellant and Munoz spoke,
and appellant asked “questions as far as how was she and stuff like that.” Munoz admitted he had
fabricated “stories” to the police detective because he was nervous and had a natural inclination to
lie. However, he consistently told the detective that appellant called and wanted to hear the
intercourse.
3 After he discovered she was missing, V.P.’s father found a list of phone numbers she left in her bedroom. He called the numbers, one of which was appellant’s.
–4– The State introduced evidence of appellant’s prior convictions for rape offenses committed
in Oklahoma when he was approximately twenty years old. The evidence consisted of a 2006
judgment and sentence showing appellant pleaded guilty to five counts of rape, a district attorney
narrative report showing the complainants in those cases were females between the ages of thirteen
and fifteen, and appellant’s sex offender registration records.
Following trial, the jury found appellant guilty of both offenses as charged in the
indictments. The trial court sentenced appellant to confinement for life in each case with the
sentences to run concurrently.
ARTICLE 38.37
Generally, evidence of an extraneous offense is inadmissible if offered to prove a person’s
character to show the person acted in conformity with that character. See TEX. R. EVID. 404(b).
Notwithstanding rule 404(b), evidence that a defendant on trial for certain sex offenses against a
child committed a separate sex offense against another child may be admissible under section 2(b)
of code of criminal procedure article 38.37.4 See CRIM. PROC. art. 38.37, § 2(b). The evidence is
admissible for any relevant purpose, including as proof of the defendant’s character and propensity
to act in conformity with his character. Id.
In his first issue, appellant asserts article 38.37 violates the Fourteenth Amendment’s due
process guarantees by “revers[ing] the historic practice of excluding character propensity
evidence.”5 An appellant bears the burden of demonstrating a statute is unconstitutional. See
4 Specifically, section 2(b) provides:
Notwithstanding Rules 404 and 405, Teas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) 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.
CRIM. PROC. art. 38.37, § 2(b). Both trafficking of a child and sexual assault of a child, as charged in these cases, are included in the offenses described in subsection (a)(1). See id. § 2(a)(1)(A), (D). 5 In addition to section 2(b), appellant cites section 2-a (requiring trial court to conduct hearing outside jury’s presence to determine whether the evidence will be adequate to support a jury finding the defendant committed the separate offense beyond a reasonable doubt) and section 3 (requiring State to give defendant thirty days’ notice before trial of its intent to use extraneous-sexual offense or sexual-misconduct evidence in its case in chief) as “relat[ing] to” his constitutional challenge. Appellant, however, only generally complains about the “use of propensity evidence.” –5– Rodriguez v. State, 93 S.W.3d 60, 68 (Tex. Crim. App. 2002). The court of criminal appeals has
yet to address the constitutionality of article 38.37, section 2, but this Court and other courts of
appeals have upheld its constitutionality under similar, if not identical, due process
challenges. See, e.g., Mayes v. State, No. 05-16-00490-CR, 2017 WL 2255588, at *18–19 (Tex.
App.—Dallas May 23, 2017, pet. ref’d) (mem. op., not designated for publication); Fronek v. State,
No. 05–14–01118–CR, 2016 WL 3144243, at *3–4 (Tex. App.—Dallas June 6, 2016, pet. ref’d)
(mem. op., not designated for publication); Buxton v. State, 526 S.W.3d 666, 685–89 (Tex. App.—
Houston [1st Dist.] 2017, pet. ref’d); Robisheaux v. State, 483 S.W.3d 205, 209–13 (Tex. App.—
Austin 2016, pet. ref’d); Bezerra v. State, 485 S.W.3d 133, 139–140 (Tex. App.—Amarillo 2016,
pet. ref’d); Belcher v. State, 474 S.W.3d 840, 843–47 (Tex. App.—Tyler 2015, no pet.); Harris v.
State, 475 S.W.3d 395, 398–403 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). Because
appellant does not distinguish his case from this prior authority or raise any new argument, we
conclude he has not satisfied his burden to demonstrate the unconstitutionality of article 38.37.
We overrule his first issue.
RULE 403
In his second issue, appellant contends that, notwithstanding article 38.37’s applicability,
the trial court erred in admitting evidence of his prior convictions for rape under Texas Rule of
Evidence 403. TEX. R. EVID. 403. Appellant complains the evidence was not probative because
it was unnecessary and the underlying offenses involved different conduct and were too remote in
time. He also contends the evidence was inherently inflammatory, likely to distract given its
“emotional content,” and likely to cause unfair prejudice because the previous offenses were “more
heinous.”
Admission of evidence under article 38.37 is limited by rule 403’s balancing test, which
authorizes a trial court to exclude relevant evidence if its probative value is substantially
–6– outweighed by its potential for unfair prejudice, confusion of the issues, mistaking the jury, undue
delay, or needlessly cumulative evidence. See TEX. R. EVID. 403; Belcher, 474 S.W.3d at 847;
Fahrni v. State, 473 S.W.3d 486, 492 (Tex. App.—Texarkana 2015, pet. ref’d); Robisheaux, 433
S.W.3d at 217–18. Probative value is the measure of how strongly the evidence serves to make
more or less probable the existence of a fact of consequence to the litigation, coupled with the
proponent’s need for the evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App.
2006). Unfair prejudice refers to a tendency to tempt the jury into finding guilt on an improper
basis, such as an emotional one. Id. Confusion of the issues refers to “a tendency to confuse or
distract the jury from the main issue in the case.” Id.
A rule 403 analysis requires balancing the following factors:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Id. at 641–42. In practice, “these factors may well blend together.” Id. at 642. We presume the
probative value of relevant evidence substantially outweighs the danger of unfair prejudice from
admitting the evidence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). Because
the trial court is in the best position to assess the impact of relevant evidence, we reverse a rule
403 determination “rarely and only after a clear abuse of discretion.” Id.
The State introduced evidence that appellant pleaded guilty to five counts of raping female
complainants between the ages of thirteen and fifteen. The offenses took place in 2002 and 2003,
one when appellant was nineteen-years-old and four when appellant was twenty-years-old. The
State introduced the evidence following the testimony of V.P. and Munoz, which the State relied
upon to prove the elements of the trafficking of a child and sexual assault of a child offenses.
–7– During cross-examination, appellant challenged the credibility of both the witnesses, focusing on
evidence that V.P. misrepresented her age to people on social media and Munoz’s admission that
he fabricated stories to the police. Appellant also attempted to develop testimony to show V.P.
was “kind of the puppet master” to support his defense that he neither trafficked V.P. nor caused
or contributed to her sexual assault. He argued V.P. contacted a number of people in her efforts
to run away and ultimately made the arrangements, including getting a ride from Munoz, to leave
town. Under these circumstances, the probative value of evidence showing appellant was sexually
attracted to and had raped young, underage females the same age as V.P. was significant to counter
the attacks on V.P.’s and Munoz’s credibility and rebut appellant’s defensive theory that he was
simply a victim of V.P.’s plans.
We are not persuaded by appellant’s argument that evidence of the convictions had no
probative value because the underlying facts of the prior offenses are not sufficiently similar to the
conduct at issue in these cases. Although appellant did not physically assault V.P., the evidence
that he was sexually attracted to and assaulted a number of young females V.P.’s age in the past
was probative of the facts that he groomed V.P. for “sexual favors,” enticed her to come live with
him in Alabama, and even directed her to perform sex acts with Munoz while he listened on the
phone. Nor does the fact that the previous offenses took place twelve years earlier mean the
evidence is not probative. Remoteness of an extraneous offense reduces the probative value of the
evidence, but it is not sufficient alone to render an extraneous offense excluded under rule 403;
instead, it is one aspect of whether the offense is probative. See Gaytan v. State, 331 S.W.3d 218,
226 (Tex. App.—Austin 2011, pet. ref’d); see Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—
Waco 2009, pet. ref’d). Here, the trial court could have reasonably concluded that the inherent
probative force of the evidence of appellant’s prior convictions, coupled with the State’s need for
the evidence, was considerable and weighed in favor of admissibility.
–8– Clearly, the prior convictions had “a tendency to suggest a verdict on an improper basis
because of the inherently inflammatory and prejudicial nature of crimes of a sexual nature
committed against children.” See, e.g., Newton v. State, 301 S.W.3d at 320. However, the
evidence, consisting of three documents in two exhibits, was straightforward and very limited in
scope. The State simply published the exhibits to the jury; there was no testimony regarding the
underlying offenses. Further, the trial court admonished the jury that it could consider the evidence
only if it found and believed beyond a reasonable doubt appellant committed the wrongful acts
and, if so, only for proper purposes under article 37.38. The trial court included a similar
instruction in the jury charge. We presume the jury obeyed these instructions. Thrift v. State, 176
S.W.3d 221, 224 (Tex. Crim. App. 2005). An appellant may rebut this presumption with evidence
the jury failed to follow the instruction, see id., but appellant identified no such evidence.
Therefore, the trial court could have reasonably concluded admitting evidence of the prior
convictions would not have a tendency to be given undue weight by the jury, suggest a decision
on an improper basis, or confuse or distract the jury from the main issues.
Appellant nevertheless claims the evidence had a substantial and injurious effect or
influence in determining the jury’s verdict because it was introduced on direct examination and
was “the focus” of the State’s opening statement and closing argument. We disagree. During
opening statements, the State advised the jury it would learn appellant was a registered sex offender
with rape charges out of Oklahoma for sex with a minor. During guilt-innocence, the exhibits
were admitted and referred to over approximately ten pages of a two-volume reporter’s record;
almost two of those pages consisted of the trial court admonishing the jury. After the State
published the exhibits, it referred only to the sex offender registration records briefly during the
testimony of Dallas police detective Eric Weast, who was able to identify and locate appellant after
subpoenaing the records. Finally, during closing argument, the State reminded the jury that
–9– appellant “got fifteen years for raping five different girls,” but only after appellant’s counsel argued
detective Weast was “more interested” in appellant than Munoz because appellant was “a
registered sex offender who might have committed a new offense.” After reviewing the record,
we conclude there was little or no likelihood the evidence was either repetitive or consumed an
inordinate amount of time.
Having considered the relevant factors,6 we conclude the trial court reasonably could have
determined the prejudicial effect of the convictions did not substantially outweigh its probative
value. Indeed, in cases like these, the probative value of extraneous offense evidence is
presumptively very high, and the rule 403 balancing test normally will not favor excluding
evidence of a defendant’s prior sexual assaults of children. See, e.g., Belcher, 474 S.W.3d at 848.
Accordingly, we conclude the trial court did not abuse its discretion in overruling appellant’s
objection to the evidence. We overrule appellant’s second issue.
SUFFICIENCY OF THE EVIDENCE
In his third issue, appellant contends the evidence is insufficient to show he “trafficked” a
child or compelled sexual assault as required to support his sex trafficking conviction. Instead, he
maintains V.P. “set this entire incident in motion . . . [and] created the plan and she orchestrated
the actions of everyone involved.” Thus, according to appellant, there is no evidence that, but for
his actions, “what happened . . . would not have happened.”
In reviewing the sufficiency of the evidence, we consider all evidence in the light most
favorable to the jury’s verdict and determine whether any rational juror could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
6 Appellant concludes his rule 403 argument by noting “it is difficult to imagine how a juror could have considered the inflammatory, prejudicial evidence only for non-character purposes.” However, the evidence was admitted under article 38.37, which explicitly allows a jury to consider evidence that appellant committed other acts of sexual misconduct precisely because of its relevance to a propensity to commit the crime charged. See CRIM. PROC. art. 38.37, §2(b).
–10– 318–19 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). We defer to the
jury, which must weigh the evidence, resolve conflicts in the testimony, and draw reasonable
inferences from basic to ultimate facts. Jackson, 443 U.S. at 319; Queeman, 520 S.W.3d at 622.
We presume the jury resolved any conflicts in favor of the verdict. Queeman, 520 S.W.3d at 622.
We determine only whether the State presented a legally sufficient case of the offense and the
evidence presented supports the jury’s verdict. Id.
To establish sex trafficking of a child, the State was required to prove appellant knowingly
“trafficked a child and by any means causes the trafficked child to engage in, or become the victim
of” a sexual assault. See TEX. PEN. CODE ANN. § 20A.02(a)(7)(C). ‘Traffic’ means to “transport,
entice, recruit, harbor, provide, or otherwise obtain another person by any means.” Id. §
20A.01(4). A “[c]hild” is defined as “a person younger than 18 years of age.” Id. § 20A.01(1).
“A person is criminally responsible if the result would not have occurred but for his
conduct, operating either alone or concurrently with another cause, unless the concurrent cause
was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” PEN.
§ 6.04(a); Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); Wooten v. State, 267
S.W.3d 289, 296 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Whether there is a sufficient
causal nexus between a defendant’s conduct and the charged harm is a fact issue for the jury to
decide. Id. The State may use circumstantial evidence to establish the causal connection. Id.
And, a jury may draw reasonable inferences regarding the ultimate facts from basic facts. Id.
In asserting his conduct did not cause the harm V.P. suffered, appellant cites evidence that
V.P. (1) sought to run away before she ever communicated with appellant, (2) admitted she
misrepresented her age to people on social media; (3) arranged for a ride to the bus station on her
own; and (4) “agreed to have sex with [Munoz] on her own.” Appellant also points to evidence
that he and Munoz did not communicate until after Munoz had already assaulted V.P.
–11– Appellant simply ignores his own conduct. V.P. testified that, but for appellant’s promises
that she could live with him, she would have never left home. Although V.P. first contacted
appellant and asked if he could “help [her] out,” he then fostered a relationship with her in which
he talked about “sexual favors” “pretty much all the time,” had V.P. send him provocative pictures
of herself, and told her he wanted to be her boyfriend. He twice planned to pick her up himself
and, when that did not transpire, he proposed she travel to him by bus. Before she even made
arrangements to get to the bus station, appellant advised her that she would probably have to have
sex because “people don’t just do things for free.” And, after she arranged for the ride, appellant
said, “Well, this man is doing you a big, like, a huge favor, and he’s going to expect [sex]. So
you’re going to do it for him.” Appellant told V.P. to call him once she arrived at the motel and,
when she did, directed her to perform sex acts and listened on the telephone while Munoz sexually
assaulted her. Afterwards, appellant spoke to Munoz about “how [she was] and stuff like that.”
Although Munoz testified he did not know or speak to appellant prior to taking V.P. to the motel,
there was evidence the two men texted back and forth that evening before he arrived at V.P.’s
house.
The jury was the sole judge of the witnesses’ credibility, the weight to be given their
testimony, and, in this case, whether there was a sufficient causal nexus between appellant’s
conduct and the harm to V.P. See Queeman, 520 S.W.3d at 622; Wooten, 267 S.W.3d at 295–96.
The evidence is clear that V.P. considered running away and contacted a number of people,
including appellant, about staying with them. However, she never left home, encountered Munoz,
or had sex with him as directed by appellant until after she and appellant planned, at appellant’s
suggestion, that she get on a bus to Alabama. Viewed in the light most favorable to the jury’s
verdict, a rational factfinder could have found (1) V.P.’s conduct was insufficient by itself to
produce the harm that resulted and (2) appellant enticed V.P. and his conduct alone or concurrently
–12– with V.P.’s conduct was sufficient to cause her to “engage in, or become the victim of” sexual
assault. See PEN. §§ 6.04(a); 20A.02(a)(7)(C). Accordingly, we conclude the evidence is legally
sufficient to show appellant trafficked V.P. and compelled sexual assault as required to support his
trafficking of a child conviction. We overrule appellant’s third issue.
We affirm the trial court’s judgments.
/Ada Brown/ ADA BROWN JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
180170F.U05
–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JASON DANIEL STRICKLAND, On Appeal from the 292nd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F15-76631-V. No. 05-18-00170-CR V. Opinion delivered by Justice Brown; Justices Bridges and Nowell participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 7th day of June, 2019.
–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JASON DANIEL STRICKLAND, On Appeal from the 292nd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F16-00834-V. No. 05-18-00171-CR V. Opinion delivered by Justice Brown; Justices Bridges and Nowell participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–15–