AFFIRMED and Opinion Filed March 21, 2019
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01463-CR
JESUS GONZALEZ, JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1312410-S
MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Whitehill A jury convicted appellant of continuous sexual abuse of a child and the trial court assessed
punishment at twenty-five years in prison. In eight issues, appellant argues that:
(i) the evidence is insufficient to support his conviction;
(ii) the indictment was defective because it alleged an impossible window of time for the
offense;
(iii and iv) the court erroneously instructed the jury that it could consider extraneous
offenses for character-conformity purposes;
(v) the court should have instructed the jury to disregard a detective’s testimony about
trying to contact appellant during her investigation; (vi) the court erred by allowing the detective to testify that she believed the complainant
was telling the truth;
(vii) the court erred by allowing the CPS investigator to explain why she believed the
complainant recanted; and
(viii) the court erred by admitting the complainant’s statement to a SANE nurse.
Finding no reversible error, we affirm the trial court’s judgment.
I. BACKGROUND
Appellant is the complainant JL’s stepfather. JL provided detailed testimony about how
appellant sexually abused her from the time she was six or seven until she was ten. During the
course of her outcries, JL recanted several times. At trial, she explained that she had done so
because she (i) thought her mother wanted her to do so, (ii) was afraid, and (iii) did not want CPS
to take her or her siblings away.
After hearing all of the evidence, the jury found appellant guilty of continuous sexual abuse
of a child. The trial court assessed punishment at twenty-five years in prison and entered judgment
accordingly. This appeal followed.
II. ANALYSIS
A. First Issue: Do JL’s recantings render the evidence insufficient to support the conviction?
Appellant’s first issue argues that the evidence is insufficient to support his conviction
because no rational factfinder would have found that the essential elements of the offense were
proven beyond a reasonable doubt. Alternatively, appellant argues that because of JL’s numerous
recantations and “materially shifting stories,” no rational jury would have found that appellant
committed two or more acts of sexual abuse during a period that was thirty days or more in
duration. As argued, however, appellant focuses on JL’s recantings and different stories. As
discussed below, we disagree with appellant’s premise that these credibility issues render the –2– evidence insufficient. It is the jury’s job to assess credibility—not ours. See Dobbs v. State, 434
S.W.3d 166, 170 (Tex. Crim. App. 2014).
1. Standard of Review and Applicable Law
We review the sufficiency of the evidence to support a conviction by viewing all of the
evidence in the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
This standard gives full play to the factfinder’s responsibility to resolve testimonial
conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.
Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the factfinder is
the sole judge of the evidence’s weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04;
See Dobbs, 434 S.W.3d at 170. Accordingly, we presume that the factfinder resolved any
conflicting inferences in the verdict’s favor and defer to that resolution. Murray. 457 S.W.3d at
448–49. Thus, we may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the factfinder’s. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based
upon the cumulative force of the evidence when viewed in the light most favorable to the verdict.
Murray, 457 S.W.3d at 448.
The standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d
at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
A person commits the offense of continuous sexual abuse of a young child if (i) during a
period that is thirty or more days in duration the person commits two or more acts of sexual abuse
against one or more victims, and (ii) at the time each act was committed the accused is seventeen
–3– years old or older and the victim is younger than fourteen years old. See TEX. PENAL CODE
§ 21.02(b)(1)-(2).
An “act of sexual abuse” means any act that violates certain enumerated penal laws,
including indecency with a child by contact and aggravated sexual assault. TEX. PENAL CODE
§ 21.02(c)(2),(4).
A person commits indecency with a child by contact if, with a child younger than seventeen
years old, the person engages in sexual contact with the child or causes the child to engage in
sexual contact. See TEX. PENAL CODE § 21.11(a)(1). “Sexual contact” means the following acts,
if committed with the intent to arouse or gratify the sexual desire of any person: 1) any touching
by a person, including touching through the clothing, of the anus or any part of the genitals of a
child; or 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. TEX. PENAL CODE § 21.11(c)(1)—
(2); cf. TEX. PENAL CODE § 21.02(c)(2) (excepting touching the breast of a child from the
continuous sexual abuse of a child statute).
A person commits aggravated sexual assault if the person intentionally or knowingly
causes the penetration of the anus or sexual organ of a child by any means or causes the sexual
organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, and if
the victim is younger than fourteen years of age. See TEX. PENAL CODE § 22.021(a)(1)(B)(i), (iii),
(2)(B).
The uncorroborated testimony of a child victim alone is sufficient to support a conviction
for continuous sexual abuse of a child. TEX. CODE CRIM. PROC. art. 38.07 (a), (b); Garner v. State,
523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.). And a child victim’s recantation in a
sexual abuse case does not automatically render the evidence insufficient. See Owens v. State, 381
S.W.3d 696, 709 (Tex. App.—Texarkana 2012, no pet.).
–4– 2. The Evidence
JL’s family lived several different places from when she was six until she was eleven. In
2005, the family lived in a converted bedroom in the front of JL’s grandmother’s house in
Carrollton.
JL believed the sexual abuse started when she was six, but she could not remember. She
said that from the time she was six until she was ten appellant would turn her body so that her legs
were hanging off of the bed and put his penis on her vagina.
The first specific incident JL described occurred when she was seven. JL and appellant
were driving to the store and he had her put her mouth on his penis and “do oral.”
In 2007, the family moved to The Colony. There, appellant would rub his penis on JL’s
vagina to make himself ejaculate.
JL also recalled a time when she was in second grade and appellant picked her and her
brother up from school. When they got home, appellant took JL to his room and she “already
knew what was gonna happen.” She asked him, “Why do you do this?” and appellant replied,
“Because I love you.” Then, appellant took JL’s pants off and rubbed his penis on her vagina.
A year later, the family moved back in with JL’s grandmother and lived in the “back
house.” JL was eight years old. One day, appellant took off JL’s underwear and licked her vagina.
On another day, he “forced his penis” into her “butthole and [she] started bleeding.” JL recalled
that she either screamed or started crying.
Six months later, JL was still eight years old when the family moved to a rental house in
Carrollton where JL had her own room. On one occasion during that time, appellant told JL to go
to his room after she got home from school. He took his pants off and showed her how he would
masturbate, and put her hand on his penis and showed her how to rub it. Then he told her to put
her head down and lick it, telling her it was “like a lollipop.”
–5– During the time at the rental house, appellant made JL suck on his penis twice, and made
her touch his penis and masturbate him “too many [times] to know.” He would also rub his penis
against JL’s vagina until he ejaculated.
Six months later, the family moved back in with JL’s grandmother in the “front house.”
JL was nine years old. There, almost every night, appellant would touch her “down there,” and
put his erect penis on her vagina, masturbate, and ejaculate. Appellant called the sexual abuse
“playing.”
In 2011, when JL was eleven years old, the family bought a house in Little Elm. Appellant
never touched her after they moved to Little Elm. But one day he showed her a message he had
written on his phone that said, “Do you want to play”? JL told him no, called her mother and said,
“When you get home I need to have a serious talk with you.”
When JL’s mother got home and asked her what was wrong, JL initially said, “never mind.”
But then she started crying, and told her mother that appellant had tried to touch her and asked her
to have sex with him in a message on his phone. JL didn’t tell her about all of the other sexual
abuse “that happened in the past.”
JL’s mother went downstairs and screamed at appellant. Although appellant “acted
clueless” and protested “What are you talking about?” she kicked him out of the house. But she
let him back in when it started to rain. JL cried all night. Later that week, appellant asked JL to
forgive him for the note on the phone.
A week later, JL moved in with her biological father. She stayed there for two or three
months until she got in trouble at school for kissing a boy. JL said she had done so because she
wanted to see if she could be comfortable “touching . . . or kissing anybody” without seeing
appellant’s face or thinking about what he had done. She moved back in with her mother in
December 2012.
–6– Appellant and JL’s mother became active in a small church group led by Marisela and
Timothy Rubio. During a meeting in 2013, JL’s mother asked Marisela to speak with JL to find
out what was going on.
JL told Marisela that “there was more than just the note,” but did not tell her everything
because, “It was too much to say at that moment.” Marisela asked her how many times, and JL
just shrugged her shoulders.
Marisela reported to the police what JL told her and also told JL’s mother.
The police escorted JL to the Children’s Advocacy Center for a forensic interview and
exam. During the interview, JL described two specific incidents that occurred when she was in
the fourth grade and lived in the “front house,” and the phone incident. Joanie Sackett, the SANE
nurse conducting the exam recorded JL’s history.1 The exam showed no evidence of injury, which
Sackett described as normal when there is a delayed outcry.
JL’s mother learned from CPS that JL had alleged sexual abuse, so mother and the children
moved out of the Little Elm house. When appellant moved out of the Little Elm house, JL, her
mother, and siblings moved back in. JL knew her siblings were sad because their father was not
there, and her brother blamed her for appellant’s absence. Her mother was crying a lot, and told
JL that they were going to lose their home because she couldn’t meet their financial needs alone.
By August 2013, JL’s mother said she didn’t believe JL’s allegations. In that same month,
she made JL send an email to Brook Busbee, appellant’s attorney at the time. The email said,
“What I said about my dad is not true.”
JL was “mad” and “sad” about the situation she put her family in. She decided she was
being “selfish” because telling what happened meant the family would lose so much. So she “took
1 A SANE nurse is a sexual assault nurse examiner.
–7– it back,” co-authoring a letter with her mother asking that appellant be allowed supervised
visitation. Appellant returned to the house in December 2013.
In March 2014, JL met with school counselor Joseph Brigandi, and told him she was “not
feeling comfortable” with appellant living in the house and that she was “scared he was gonna do
it again.” She said her mother told her to forgive appellant. JL also cried and said her mom blamed
her for everything and “My mom chose him over me.” Brigandi told JL he had to notify CPS,
which upset JL even more.
When JL got home that night her mother was crying because CPS had contacted her. She
told JL that CPS “was going to take the kids.”
JL returned to Brigandi’s office the next day and “took it back.” She told him there was
no need to contact CPS because appellant had moved out. But by that point, a CPS investigator
had arrived at the school to interview JL.
JL told the CPS investigator, Avis Clark, that she had lied to Brigandi; and that appellant
was not in the home, “had never touched her,” and “didn’t do it.” She said she claimed sexual
abuse because: (i) she and her mother had gotten into a fight, (ii) she didn’t want to get in trouble,
(iii) she wanted to have a boyfriend; and (iv) she wanted her mother to feel sorry for her.
JL also claimed that she had bribed her siblings to say appellant was living in the home.
But that didn’t make sense to Clark because JL claimed she bribed them with “an iPod,” and “a
hundred dollars,” rather than with something like a candy bar.
JL denied that her mother was pressuring her to recant, but she mentioned that her mother
and sister were crying and she knew they were upset because appellant was not there. Clark
thought JL’s mother had pressured her to recant because JL’s story was so inconsistent with her
siblings’ story.
–8– A week later, JL’s mother took her to see lawyer Busbee. Busbee told JL what would
happen to appellant if he was convicted, handed JL the probable cause affidavit from appellant’s
case, and asked her to underline anything that wasn’t true. JL underlined almost the entire
document and then wrote and initialed “not true” in the margins.
Busbee’s paralegal (who was also JL’s aunt) typed an affidavit in which JL recanted. JL
signed the affidavit and her aunt notarized it. But JL’s mother did not think JL understood what
she had signed.
At trial, JL explained that she signed the affidavit because she was scared and she “just
wanted a family.” She said that she did not want her sisters to not have their dad and that she
thought when she signed the affidavit appellant would change and they could go back to normal
as a family.
The evidence also showed that JL’s mother was not very supportive of JL. For example,
the school counselor testified that JL told her that she had been instructed by her mother to forgive
appellant. Similarly, the investigating detective said JL’s mother did not seem supportive and
seemed “kind of cold-hearted.” Additionally, investigator Clark opined that JL’s relationship with
her mother was “rocky” and that JL didn’t want to get in trouble.
Timothy Rubio (one of the leaders of the church group the family participated in) visited
appellant at the Little Elm house and thought appellant “looked distraught,” and “seemed
regretful” as they spoke. Appellant told him that, “I regret what happened. I’m really sorry for
[JL’s] sake . . . It was a mistake.” During the conversation, appellant never denied the sexual
abuse.
In 2014, appellant wrote a letter to his children saying he was “sorry for everything,
especially for our family not being together.” He also said, “I’m just a lonely man that lost
–9– everything because of some stupid decision. And I will have to live with this for the rest of my
life not being able to make it up or make it right.”
3. Analysis
The crux of appellant’s sufficiency complaint is that JL was not credible because she
recanted several times. But this is not a case where the evidence is totally irrational—such as
finding that the moon is made of blue cheese. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007) (appellate court acts as a procedural failsafe against irrational verdicts). A
rational jury could conclude, based on the evidence, that JL was telling the truth about the sexual
abuse and recanted because she was concerned about the negative consequences for her family,
felt pressured to do so because of her mother, and was afraid. Thus, we conclude that the evidence
is sufficient to support appellant’s conviction. See Owens, 381 S.W.3d at 709.
Accordingly, we resolve appellant’s first issue against him.
B. Second Issue: Did the indictment’s “on or about” wording render the indictment defective?
Appellant’s second issue argues that the indictment’s wording foreclosed the State’s ability
to prove that the abuse was “continuous” over a period of thirty days or more because it alleged
that the offense occurred “on or about September 1, 2010 . . . during a period that was 30 days or
more in duration.” According to appellant, the indictment thus alleged something that was
impossible to prove—that acts occurring on one day also occurred during a longer period. Without
citing supporting authority, appellant further argues that this defect does not involve a “defect,
error, or irregularity of form or substance in [the] indictment” that code of criminal procedure
article 1.14(b) waives for lack of an objection before trial.
We agree with the State, however, that appellant’s argument concerns an alleged defect in
the indictment that is not cognizable on appeal because the defect was not raised before the day on
which the trial began:
–10– If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.
TEX. CODE CRIM. PROC. art. 1.14(b); Teal v. State, 230 S.W.3d 172, 182 (Tex. Crim. App. 2007).
Appellant insists that he is not arguing about a defect, or irregularity of form or substance
in the indictment, but rather, that the time frame wording alleges a different offense than what was
intended. But a complaint that the indictment charges the wrong offense must be raised in a written
motion to quash filed in the trial court. See Cruz v. State, No. 11-17-00008-CR, 2019 WL 386537,
at *3 (Tex. App.—Eastland Jan. 31, 2019, no pet. h.) (mem. op. not designated for publication).
Likewise, a date defect (of form or substance) must be objected to before trial. See Ex parte
Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990).
Because appellant did not raise any of the complained-of defects or irregularities in the
court below as article 1.14(b) requires, this issue was not preserved for our review. We thus resolve
appellant’s second issue against him.
C. Third and Fourth Issues: Did the court erroneously instruct the jury that it could consider extraneous offenses for character-conformity purposes?
1. Standard and Scope of Review
Appellant argues that the court’s charge concerning extraneous conduct was erroneous
because: (i) it was misleading and confusing; (ii) it did not identify or mention “the alleged
offense” or “separate offense”; (iii) it included or suggested potential bases for consideration that
were not supported by any evidence; (iv) it instructed the jury to consider the entirety of the sexual
abuse that may have occurred as proof of appellant’s guilt; and (v) article 38.37 is unconstitutional.
We review charge error by determining first whether error exists, then evaluating the harm
caused by any error. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017). When a
–11– defendant timely objects to the charge at trial, reversal is required if the reviewing court finds
“some harm” to the defendant. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018).
On the other hand, when a defendant does not object to the charge, we review the record
for egregious harm. Sanchez v. State, 376 S.W.3d 767,775 (Tex. Crim. App. 2012). To establish
egregious harm, appellant must show that he has suffered actual, rather than merely theoretical,
harm. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Errors that result in egregious
harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or
vitally affect a defensive theory. Id. In examining the record for egregious harm, we consider (i)
the entire jury charge, (ii) the state of the evidence, including the contested issues and the weight
of the probative evidence, (iii) the final arguments of the parties, and (iv) any other relevant
information revealed by the record of the trial as a whole. Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008).
2. Was the instruction proper?
Appellant’s first two arguments essentially argue that the instruction improperly allowed
the jury to consider extraneous acts as character evidence. We disagree. The charge instructed the
jury on the law and was supported by the evidence. The complained-of instruction provided:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed other crimes, wrongs, or bad acts against the complaining witness in the indictment in this case, you cannot consider such testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs or acts, if any, against the complaining witness. You may only consider such evidence for its bearing on relevant matters including the state of mind of the defendant and the child or the previous and subsequent relationship between the defendant and the child, or in determining motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident, character of the defendant, or acts performed in conformity with the character of the defendant.
Because an accused must be tried only for the offense for which he is charged and may not
be tried for a collateral crime or for being a criminal generally, extraneous offense evidence is
–12– usually not admissible “to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Stafford v. State, 813 S.W.2d 503, 506 (Tex.
Crim. App. 1991); see also TEX. R. EVID. 404(b)(1) (evidence of “a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character”). In prosecutions for crimes against children,
however, article 38.37 permits admitting evidence of extraneous offenses under certain
circumstances.
This exception exists because society, the legal system, and in particular, the legislature,
have recognized that the unique nature of sexual assault crimes justifies admitting extraneous
offense evidence, even though traditional notions of due process generally caution against
admitting such evidence. See Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet.
ref’d) (“The special circumstances surrounding the sexual assault of a child victim outweigh
normal concerns associated with evidence of extraneous acts.”). Child sex offense prosecutors
encounter evidentiary problems because they must typically rely on largely uncorroborated
testimony of the child victim, making the child’s credibility the focal point. See Belcher v. State,
474 S.W.3d 840, 845 (Tex. App.—Tyler 2015, no pet.); see also Harris v. State, 475 S.W.3d 395,
388–403 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (legislature carved out specific and
limited exceptions to prohibition against using extraneous offenses).
Thus, in prosecutions for sexual offenses against children under the age of seventeen,
article 38.37, § 1 permits admitting evidence concerning extraneous offenses committed by the
defendant against the child:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and –13– (2) the previous and subsequent relationship between the defendant and the child.
TEX. CODE CRIM. PROC. art. 38.37, § 1(b).
Section 2(b) then provides that:
Notwithstanding Rules 404 and 405, Texas 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.
TEX. CODE CRIM. PROC. art. 38.37, § 2(b).
Section 2-a provides:
Before evidence described by section 2 may be introduced, the trial judge must:
(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.
TEX. CODE CRIM. PROC. art. 38.37, § 2-a. This hearing requirement, however, is “subject to the
general requirement of preservation, and therefore subject to forfeiture.” Carmichael v. State, 505
S.W.3d 95, 103 (Tex. App.—San Antonio 2016, pet. ref’d); see also, Murphy v. State, No. 01-17-
00599-CR, 2018 WL 6378004, at *7 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet.) (mem.
op., not designated for publication).
Here, appellant was tried for continuous sexual abuse of a child under seventeen years of
age, which is an offense under chapter 21 of the penal code (thereby triggering article 38.37).
Consequently, evidence that appellant committed other crimes, wrongs, or acts against JL was
admissible for its bearing on relevant matters, including appellant’s and JL’s state of mind and
their previous and past relationship. TEX. CODE CRIM. PROC. art. 38.37, § 1(b). In addition,
evidence that appellant committed separate offenses of indecency with a child, aggravated sexual
assault of a child, or an attempt to commit either offense against JL was admissible for any bearing
–14– it had on relevant matters, including appellant’s character and acts performed in conformity
therewith. TEX. CODE CRIM. PROC. art. 38.37, § 2(b).
The evidence showed that appellant committed aggravated sexual assault against JL in
2010 and aggravated sexual assault and indecency with a child against her in 2010 and 2011. JL
also testified about multiple separate offenses from 2007-2010. Appellant did not request any
limiting instructions on JL’s testimony.2 A limiting instruction request must be made at the time
the evidence is admitted, otherwise, the evidence is admitted for all purposes. Hammock v. State,
46 S.W.3d 889, 894 (Tex. Crim. App. 2001). See TEX. CODE CRIM. PROC. art. 38.37, § 2-a.
Consequently, the extraneous offense evidence was admitted for all purposes and the trial court
did not err by giving the 38.37 instruction.3
3. Is article 38.37 unconstitutional?
Appellant also argues that article 38.37 § 2(b) violates constitutional due process because
it deprives an accused of a fair opportunity to defend against a certain charge and permits a finding
of guilt based solely on bad character rather than a specific instance of conduct.
Appellant acknowledges that this court has previously held that article 38.37 is
constitutional. See 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), cert. denied,
139 S. Ct. 77 (2018).
Our sister courts have also uniformly held that the statute is constitutional and have
analogized it to Federal Rule of Evidence 414, which allows evidence that a defendant committed
“any other child molestation” to be considered “on any matter to which it is relevant” in the
2 The rules of evidence provide that “[i]f the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly. TEX. R. EVID. 105. 3 Likewise, appellant did not request an admissibility hearing under 38.37 section 2-a, nor does he complain about the absence of such a hearing on appeal. Thus, we do not consider whether there should have been a preliminary admissibility hearing. See Carmichael, 505 S.W.3d at 103.
–15– prosecution of child molestation. FED. R. EVID. 414(a); see Holcomb v. State, No. 09-16-00198-
CR, 2018 WL 651228, at *2 (Tex. App.—Beaumont Jan. 31, 2018, pet. ref’d) (mem. op. on reh’g,
not designated for publication); Buxton v. State, 526 S.W.3d 666, 685–89 (Tex. App.—Houston
[1st Dist.] 2017, pet. ref’d); Burke v. State, No. 04-16-00220-CR, 2017 WL 1902064, at *2 (Tex.
App.—San Antonio May 10, 2017, pet. ref’d) (mem. op., not designated for publication); Carrillo
v. State, No. 08-14-00174-CR, 2016 WL 4447611, at *8–9 (Tex. App.—El Paso Aug. 24, 2016,
no pet.) (mem. op., not designated for publication); Gates v. State, No. 10-15-00078-CR, 2016 WL
936719, at *4 (Tex. App.—Waco Mar. 10, 2016, pet. ref’d) (mem. op., not designated for
publication); Bezerra v. State, 485 S.W.3d 133, 139–40 (Tex. App.—Amarillo, pet. ref’d);
Robisheaux v. State, 483 S.W.3d 205, 209–13 (Tex. App.—Austin 2016, pet. ref’d); Gusman v.
State, No.—2018 WL 3060213, at * 2 (Tex. App.—Fort Worth June 21, 2018, pet. ref’d).
This result is primarily because the defendant still has the protection of certain procedural
safeguards. Specifically, the State must notify the defendant before trial of its intent to use such
evidence, and the trial court must hold a hearing outside the jury’s presence to determine whether
the evidence “will be adequate to support a finding by the jury that the defendant committed the
separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC. art. 38.37, § 2-a.
Having previously determined that article 38.37 is constitutional, and because there has
been no change in the law, we decline appellant’s invitation to revisit the issue in this case. See
MobilVision Imaging Servs., L.L.C. v. LifeCare Hosps. Of N. Tex., L.P., 260 S.W.3d 561, 566
(Tex. App.—Dallas 2008, no pet.) (“We may not overrule a prior panel decision of this Court
absent an intervening change in the law by the legislature, a higher court, or this Court sitting en
banc.”).
–16– 4. Was the instruction misleading and confusing?
Appellant offers several reasons why the instruction was confusing and misleading and
therefore erroneous. First, he argues that the State “needed to elect what act it was alleging,”
because “an indictment can’t charge more than one offense,” and needed to specify that conduct
occurring on specified dates was not at issue.
Both the indictment and the charge, however, alleged only a single offense—continuous
sexual abuse of a young child by two different means: (i) penetration of the complainant’s female
sexual organ by appellant’s sexual organ, and (ii) contact between appellant’s hand and the genitals
of the complainant. The continuous sexual abuse of a child statute creates a single offense that
allows the State to seek one conviction for a “series of acts” of sexual abuse with evidence of the
means that, during the relevant time period, the defendant committed two or more acts defined in
the statute. Escobar v. State, No. 05-15-00219-CR, 2016 WL 3474398, at *2 (Tex. App.—Dallas
June 17, 2016, pet. ref’d) (mem. op., not designated for publication). Moreover, the statute does
not require that the jury agree unanimously on the specific acts of sexual abuse the defendant
committed or the exact dates when those acts were committed. See TEX. PENAL CODE § 22.02(d);
see also Hernandez v. State, No. 05-17-00560-CR, 2018 WL 2316026, at *7 (Tex. App.—Dallas
May 22, 2018, pet. ref’d) (mem. op., not designated for publication).
The 38.37 instruction, however, pertained to extraneous acts other than the acts (that is,
means) for the charged offense. Appellant does not explain, nor do we see how, the 38.37
instruction was confusing because of alleged deficiencies in the indictment, which we previously
addressed in the second issue, or the State’s failure to elect a single act. Therefore, we reject this
aspect of appellant’s argument.
Appellant also argues that the instruction was confusing because it included potential bases
for consideration that were not involved in the case, such as “preparation, identity, absence of
–17– mistake, and lack of accident.” As previously noted, appellant did not request a limiting instruction
when the extraneous evidence was admitted. Consequently, the judge was not obligated to limit
the use of that evidence in the charge. See Cathcart v. State, No. 05-15-01176-CR, 2017 WL
34588, at *2 (Tex. App.—Dallas Jan. 4, 2017, pet. ref’d) (mem. op., not designated for
publication).
Finally, appellant argues that the instruction was misleading because “it did not refer to
‘crimes, wrongs, or bad acts other than those alleged in the indictment.”’ The instruction at issue
reads: “if there is any testimony before you in this case regarding the defendant having committed
other crimes, wrongs, or bad acts against the complaining witness in the indictment in this case
. . . .” (Emphasis added). This instruction is missing the words “other than alleged [in the
indictment].” Although the sentence refers to “other crimes,” and later refers to “such other crimes,
wrongs, or acts,” without the omitted qualifying language, the instruction does not clearly refer to
acts other than those charged in the indictment. For this reason, the instruction is erroneous.
Although appellant objected to the charge for several reasons, this was not among them.4
We therefore review the error for egregious harm. See Sanchez, 376 S.W.3d at 775.
We begin by considering the entire jury charge. Id. at 774. The jury was correctly
instructed that the State is not required to prove the exact dates alleged in the indictment but “may
prove the offense, if any, to have been committed any date prior to the date of the filing of the
indictment . . . .” To this end, the application paragraph read:
. . . if you believe from the evidence, beyond a reasonable doubt, that the defendant . . . on or about 1st day of September 2010 . . . during a period that was 30 or more days in duration . . . intentionally or knowingly committed two or more acts of sexual abuse against [JL], a child younger than 14 years of age . . . by contact or penetration of the complainant’s sexual organ by the defendant’s sexual organ, or
4 Appellant objected that the instruction: “. . . is unconstitutional. It’s a violation of 404 (b). It shifts the burden of proof. It allows the defendant to be prosecuted and convicted based on conformity with character or the defendant’s poor character, which is a violation of the Sixth Amendment and due process.”
–18– by the contact between the hand of the defendant and the genitals of the complainant with the intent to arouse or gratify the sexual desire of the defendant, then you will find the defendant guilty of the offense of Continuous Sexual Abuse of a Young Child, as charged in the indictment.
The charge clearly identifies the charged offense, the time frame in which it was allegedly
committed, and the means by which it was allegedly committed. Because the charge clearly
instructed and inquired about the charged offense, it is less likely that the jury would be confused
or mislead by the extraneous offense instruction.
The state of the evidence also does not weigh in favor of egregious harm. As we discussed
in the first issue, the evidence was sufficient to convict appellant of the charged offense. JL
testified that appellant sexually abused her on a number of occasions. The defensive theory was
that JL was not credible because she recanted, and the extraneous offense instruction did not affect
this argument.
Neither side mentioned “extraneous offenses” or the instruction in closing argument.
Instead, the State reminded the jury that the charged offense required proof of two or more acts of
sexual abuse during a period that was thirty days or more in duration. The defense emphasized its
theory that JL was not credible. Thus, closing argument does not weigh in favor of harm.
There is no other relevant information in the record that is pertinent to our analysis. While
the instruction was not the model of clarity, we cannot conclude that appellant suffered actual
harm. Accordingly, we resolve appellant’s third and fourth issues against him.
D. Fifth Issue: Was an instruction to disregard concerning the investigator’s contact with appellant during the investigation required?
Appellant’s fifth issue argues that the trial court erred in refusing to instruct the jury to
disregard the police investigator’s reference to contacting appellant during her investigation.
Referencing post-arrest principles, see Sanchez v. State, 707 S.W.2d 575, 578-92 (Tex. Crim. App.
1996), appellant argues that the pre-arrest reference violated appellant’s Fifth Amendment right to
–19– be free from compulsory self-incrimination. The record reflects, however, that no instruction was
requested and there was no reference to any statements that were made by appellant or whether he
refused to answer any questions posed.
When questioning the investigator, the State asked, “Did you speak with anyone else . . .
regarding the sexual abuse allegations that [JL] had made”? The investigator responded, “Um,
yes. I actually tried to contact the defendant once the forensic interviews were over and made
contact. . . .” Appellant’s counsel objected and asked to approach the bench.
Appellant’s counsel then said, “I’m gonna object to Fifth Amendment. The question and
the answer, I’m gonna ask that they be stricken. I’m gonna ask that you instruct the jury. And
then I’ll move for a mistrial.” A lengthy conversation ensued about whether appellant’s Fifth
Amendment rights were implicated by the specific question posed. The State argued that all the
investigator said was that she attempted to contact appellant, but agreed that the questioning
needed to stop there. The judge then told the State to tell the witness to be sure not to reference
the appellant in any interviews and the State agreed. Then, the judge said, “Sustained.”
Appellant’s counsel did not request an instruction to disregard or a mistrial. See Young v.
State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (proper method of pursuing an objection until
an adverse ruling is to object, request an instruction to disregard, and move for a mistrial if
instruction insufficient). And there is no argument that the alleged error was so offensive or
flagrant as to be incurable by an instruction to disregard. See Wesbrook v. State, 29 S.W.3d 103,
116 (Tex. Crim. App. 2000). As a result, appellant did not preserve the issue for our review. See
Livingston v. State, 739 S.W.2d 311, 335–36 (Tex. Crim. App. 1987) (any error could have been
cured by an instruction to disregard but was waived by appellant’s failure to object and request the
instruction). Accordingly, we overrule appellant’s fifth issue.
–20– E. Sixth Issue: Was it error to allow the detective’s testimony that JL was believable?
Appellant’s sixth issue complains that the trial court erred in allowing testimony from a
police investigator that JL was very believable during the forensic interview. This issue, however,
presents nothing for our review.
When the investigator testified that JL was very believable because she provided detail that
an eleven year old would not have unless she had experienced “it,” defense counsel objected and
the trial judge sustained the objection. Counsel asked that the testimony be stricken and the jury
instructed to disregard, and the trial court advised the jury, “members of the panel, you will
remember the instructions that the Court provided you the other day regarding the Court’s ruling
and sustaining objections. You are not to consider that as evidence.”
Because the court sustained the objection and instructed the jury to disregard the evidence,
appellant’s issue presents no alleged error to review. See TEX. R. APP. P. 33.1. We thus resolve
his sixth issue against him.
F. Seventh Issue: Should the CPS investigator’s explanation have been excluded?
Appellant’s seventh issue argues that the trial court erred by allowing Avis Clark, the CPS
investigator, to testify that she believed JL had falsely recanted “because of the pressure.” The
State agrees that it was error but argues that the error was harmless. Considering the record as a
whole, we agree.
The complained-of testimony was in response to the State’s redirect:
STATE: So my question to you is, knowing all the pressure that this child was under from everyone in her life, is it unusual for her to recant and say I lied about it? Is that unusual?
CLARK: Well, on all the cases I’ve worked it doesn’t happen a lot. But, yes, I have seen kids recant.
STATE: Now, in this particular instance with [J.L.] do you believe that she was not being truthful because of the pressure?
DEFENSE: Objection; calls for a legal speculation conclusion and advisory. –21– COURT: State.
STATE: She’s testified to it, Your Honor, and I’m just trying to clarify why she believed that this child is telling her that she lied. Is it pressure or she thinks that she was lying.
COURT: Overruled.
Expert testimony that a particular witness is truthful is inadmissible under TEX. R. EVID.
702. Therefore, an expert witness may not offer a direct opinion on the truthfulness of a child
complainant’s allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).
Consequently, the trial court abused its discretion by allowing this testimony. See Rodgers v. State,
205 S.W.3d 525, 527 (Tex. Crim. App. 2006) (appellate court reviews a trial court’s ruling on the
admission of evidence for an abuse of discretion).
The erroneous admission of evidence is nonconstitutional error. Casey v. State, 215
S.W.3d 870, 885 (Tex. Crim. App. 2007). Nonconstitutional error requires reversal only if it
affects the substantial rights of the accused. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342
S.W.3d 91, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for
nonconstitutional error if, after examining the record as a whole, we have fair assurance the error
did not influence the jury or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93.
In assessing potential harm, our focus is not on whether the error had a substantial or
injurious effect or influence on the jury’s verdict. Id. at 93–94. We review the entire record to
ascertain the wrongfully admitted evidence’s effect or influence on the verdict. See Coble v. State,
330 S.W.3d 253, 280 (Tex. Crim. App. 2010). We consider all the evidence that was admitted at
trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how
the evidence might be considered in connection with other evidence in the case. Barshaw, 342
S.W.3d at 94. We also may consider the jury instructions, the parties’ theories of the case, closing
–22– arguments, voir dire, and whether the State emphasized the error. Id.; Morales v. State, 32 S.W.3d
862, 867 (Tex. Crim. App. 2000).
Here, for several reasons we conclude that appellant has not shown that the error had a
substantial and injurious effect or influence in determining the jury’s verdict:
First, JL testified in detail about the sexual abuse appellant committed. She also told the
SANE nurse about the aggravated sexual assault in the “front house.”
Second, Clark’s testimony did not pertain to whether JL’s sexual abuse allegations were
truthful; instead, the testimony concerned the credibility of JL’s recantations. But Clark’s
testimony that she thought JL recanted “because of pressure” was not the only evidence about
those circumstances. JL’s mother testified that JL knew her siblings were sad that appellant was
not home and that her brother blamed her for his absence. JL also knew that her mother was sad
and crying a lot.
Third, JL confirmed this testimony and further said that her mother told her they were going
to lose their home. The evidence also showed that JL’s mother was not very supportive of JL, and
JL was concerned about getting in trouble. She said she was “mad” and “sad” about putting her
family in this situation and that she felt she was being selfish. Her mother told her CPS was going
to take her and her siblings away.
Fourth, in addition to describing the pressure, JL explained why she recanted. She didn’t
want to go to foster care. She was afraid. She thought her mother wanted her to recant, and she
just wanted to have a normal family.
Fifth, the jury also heard evidence concerning appellant that suggested awareness of his
guilt. For example, appellant told Timothy Rubio that he regretted what happened and that it was
a mistake. The letter appellant wrote to his children said he made “a stupid decision.”
–23– Finally, during closing argument, the State argued that JL recanted because of the pressure
she was under, and described the evidence about all of that pressure. But the State did not mention
Clark’s opinion about the veracity of the recantation at all.
Therefore, although Clark’s opinion on the matter should not have been allowed, in light
of all of the other evidence bearing on the credibility of JL’s recanting, as well as the totality of
the evidence in the case and the State’s lack of emphasis on the erroneously admitted evidence,
we cannot conclude that the error influenced the jury’s verdict.5 We thus resolve appellant’s
seventh issue against him.
G. Eighth Issue: Should JL’s statement to the SANE nurse have been excluded?
Appellant’s eighth issue argues that JL’s statement to the SANE nurse describing
aggravated sexual assault in the “front house” should not have been admitted over his hearsay
objection. The State responds that the objection was made with several other objections and
therefore not preserved and that the statement was made for medical diagnosis or treatment.
Assuming without deciding that the error was preserved and the testimony did not meet the
criteria for medical diagnosis or treatment, we hold that JL’s testimony (to which there was no
objection) describing the same sexual assault cured any error. See Lane v. State, 151 S.W.3d 188,
193 (Tex. Crim. App. 2004) (an error in the admission of evidence is cured when the same evidence
comes in elsewhere without objection). We thus resolve appellant’s eighth issue against him.
5 Although there was some discussion of recantations during voir dire, there was no mention of a third party’s opinion on the veracity of a recantation, or any indication that any of the seated jurors had opinions that might have been swayed by Clark’s opinion.
–24– III. CONCLUSION
Having resolved all of appellant’s issues against him, we affirm the trial court’s judgment.
/Bill Whitehill/ BILL WHITEHILL JUSTICE
Do Not Publish TEX. R. APP. P. 47 171463F.U05
–25– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JESUS GONZALEZ, JR., Appellant On Appeal from the 282nd Judicial District Court, Dallas County, Texas No. 05-17-01463-CR V. Trial Court Cause No. F-1312410-S. Opinion delivered by Justice Whitehill. THE STATE OF TEXAS, Appellee Justices Molberg and Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2019
–26–