In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-21-00230-CR ________________
JOSE EDMUNDO ZEPEDA, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 21-06-08435-CR ________________________________________________________________________
MEMORANDUM OPINION
Jose Edmundo Zepeda appeals his conviction for continuous sexual assault of
a child, for the sexual assault of two children K.M. (Kate), and N.M. (Nancy). 1 Tex.
Penal Code 21.02(b). Following a jury trial, Zepeda was found guilty of continuous
1 We refer to the victims and their family members by pseudonyms to conceal their identity. 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[.]”). 1 sexual assault of a child as to both Kate and Nancy. He was sentenced to life
imprisonment with the Texas Department of Criminal Justice. In four issues on
appeal, Zepeda challenges the sufficiency of the evidence to support the conviction,
the trial court’s decision to allow testimony about extraneous offenses or acts under
article 38.37 of the Texas Code of Criminal Procedure, and other evidentiary rulings.
We affirm.
Background
Zepeda and Kate’s and Nancy’s Mother were in a relationship starting in
2013. The parties were not married, but Zepeda was considered a stepfather to
Mother’s children. Zepeda lived with Mother, Kate, Nancy and their two other
siblings in Montgomery County. In February 2016, Kate approached her Mother and
told her that her stepfather was “bad.” After Kate informed Mother about what she
claimed Zepeda had done to her, Mother confronted Zepeda and demanded that he
leave their home. Zepeda left the home and went to Louisiana, but he was later
arrested in 2019 after he was charged with the continuous sexual assault of a child.
Juan Sauceda, a Sergeant with the Conroe Police Department, testified about
his training as a police officer, which included training on sexual assault
investigations. In February 2016, he was called to Memorial Hermann Hospital to
investigate an alleged case of sexual abuse of children. Sauceda talked to Mother at
the hospital, but not Kate or Nancy, explaining that he does not interview the
2 children about the allegations, but sends them to forensic interviewers trained to talk
to children. Sauceda spoke to the treating nurse, Francisco Martinez. Mother told
Sauceda that Kate had made an outcry the day before during dinner. She stated that
her daughter was being “molested or abused by the stepfather[,]” and that Mother
told Zepeda to leave the home. Kate described being touched “below the clothes.”
Martinez explained to Sauceda that he had examined the children when they came
into the hospital, was told there were allegations of sexual molestation, and
recommended a Sexual Assault Nurse Examination or a SANE. Approval was given
for a SANE, and the case was then referred to a detective for further investigation.
Francisco Martinez testified he is an emergency room nurse practitioner at
Memorial Hermann Southwest. He detailed his educational background, the intake
and medical processes for a suspected sexual assault victim, and the events the day
Mother brought Kate and Nancy to the hospital. Martinez stated that a SANE nurse
is involved if the victim is a child. He described Kate as “very calm and composed
and appeared to be very sincere.” He said he did not get into details of the assault
with the children, to not relive trauma and keep them calm. Over the objection of
Zepeda’s trial counsel, Martinez was allowed to testify as to what the children told
him that night.
I remember being told by [Kate] that she was touched by her stepfather; that she was undressed; and that her stepfather was undressed and he touched her. I did not elaborate on specifically how. And I asked for the timeline. [Kate] had said that some time a prior week prior to the 3 examination, which struck me was -- when I turned around, [Nancy] said that that had happened to her also.
He determined the children were not in immediate danger, received a “generalized
story[,]” and wrote a statement for the police that night.
Karin Hoffman testified she is a registered nurse and that she works in the
forensic department of Memorial Hermann Health Systems as a Sexual Assault
Nurse Examiner (SANE). Hoffman detailed her educational background, including
her training and certification to become a SANE nurse. Hoffman stated she has been
performing SANE examinations for ten years on almost three hundred and fifty
children. Hoffman explained her procedure in performing a SANE examination,
stating that she obtains a medical history of the child, does “a complete head-to-toe
exam[ination],” documenting any injuries, and performs a detailed genitalia
examination. She then discusses any injuries found, safety plans going forward, and
therapeutic treatments. When she interviews the child, she explains the importance
of being truthful and confirms that the child knows the difference between a truth
and a lie.
Hoffman’s forensic reports for Kate and Nancy were admitted into evidence.
The first report contained Kate’s personal information, her medical history, and
Kate’s oral history of her sexual assault. Kate stated as follows:
My stepfather does bad things to me. He locked me in his room when my mom is working and he is home. He touches my privates. (Points to her female genitalia area) with his private (points to male genitalia area) 4 mostly in the front. Sometimes in my back. (Points towards buttocks). Started when I was in the third grade. I’m in the fifth grade now. It happened about ten times. He did it to me the Sunday before last Sunday. Sometimes he holds his phone up and he has porn on it. You know, when people are having sex in a movie. He and my mom fight a lot and we left the house. We are staying with my dad. I had to tell my dad everything. I couldn’t hold it in anymore.
Hoffman testified that Kate told her she was sexually assaulted multiple times,
with the last assault being over a week before the examination. Kate told Hoffman
that the abuse had been occurring for “approximately two years[,]” starting when
she was in third grade; she was then in the fifth grade. Hoffman did not find any
injuries during the examination, confirming this was not unusual, especially given
the time frame since the alleged assault.
With Nancy, Hoffman repeated the same procedure of obtaining her personal
information and medical history; she described Nancy’s narrative of her assault.
He does bad things, stepfather. He touches me on my bottom, (points to female genitalia), with his finger. My clothes off. He did it a lot last year. Not much this year. I don’t remember last time. It was a long time ago. He does it when my mother [is] at work.
She described Nancy’s demeanor during the exam, stating Nancy’s eyes were cast
down, her voice low, and she was wringing her hands. Hoffman did not find any
injuries during her examination.
Sylvie Acklin testified she was previously employed by the Conroe Police
Department, and before that, she worked as a forensic interviewer of physically and
sexually abused children. She explained that her job was to conduct an objective 5 “fact-finding, evidentiary-type interview of children…to obtain information from
the child on a situation that they had happen[] to them or to something they had
witnessed.” Acklin stated that her investigation is part of a multidisciplinary team
including the SANE nurses, interviewers at a child advocacy center, and
involvement with the Department of Family and Protective Services, and law
enforcement. She uses the statements given during these interviews as part of her
investigation into the alleged sexual assault.
In 2016, Acklin received a report from Officer Sauceda about a potential
allegation of sexual abuse. She gave approval for the children to receive a SANE
examination and coordinated with the Department of Family and Protective Services
to arrange forensic interviews for everyone in the household. When the children
were interviewed by a forensic interviewer, Acklin observed the interview via closed
circuit television in another room. She also went to the home of the children. At the
residence, Mother told Acklin that she “kicked [Zepeda] out[]” and that he “fled to
Guatemala.” Ultimately, Acklin could not find Zepeda, but issued an arrest warrant
for him, and Zepeda was arrested in 2019. After Zepeda’s arrest, Acklin reached out
to Kate and Nancy again and learned that Kate was “having suicidal ideations…self
mutilation, some pretty significant depression and anxiety.” According to Acklin,
these symptoms are common in sexual abuse victims.
6 Daniel Pena testified he has been a specialist with SWAT and Gulf Coast
Violent Offenders Task Force since about 2010. He described his background,
including his training to become a SWAT specialist. He confirmed he received an
arrest warrant for Zepeda for continuous sexual abuse of a child and was part of a
team searching for Zepeda, but the task force could not find Zepeda.
Mayra Domingue testified she is a forensic interviewer with Children’s Safe
Harbor. She explained her training to become a forensic interviewer and what Safe
Harbor’s role is with regard to sexual assault victims. She testified that she has
performed “close to 3,000 forensic interviews[,]” and detailed her process in
interviewing children. In March 2016, she interviewed Kate and Nancy. During the
interview, Kate identified Zepeda as the perpetrator, and stated that he touched her
vagina with his hands and fingers and put his penis in her mouth. Kate told
Domingue that these acts happened more than one time between third and fifth
grade. According to Kate, these acts would occur on a bed in a storage room, when
the other children were playing or eating and her Mother was at work. When
Domingue interviewed Nancy, she followed the same interview procedures and
described Nancy as more “quiet, very soft-spoken.” She confirmed that Nancy also
stated she was sexually abused.
Mother testified that she has lived in Montgomery County for eighteen years
and has five children. She stated that Zepeda moved into her home “as my spouse”
7 in 2013, although she and Zepeda were never formally married. Her children,
including Kate and Nancy, considered Zepeda to be their stepfather. Mother
confirmed that in 2018 Kate was admitted to Cypress Creek Hospital. She described
Kate’s demeanor as “never normal” after her assault, testifying that she was
“aggressive and she started to answer back. Sometimes she was sad. Sometimes she
would lock herself up in her room and would not come out and then she would cut
her arms and hurt herself. I think that was her way to find relief.” She testified that
Nancy became “very depressed, very lonely, a loner, didn’t want to make friends,
didn’t want to talk to anyone, wanted to be far from everyone, far from all.” Nancy
also had thoughts of suicide, as Mother explained, “[Nancy] said that she took some
pills because – only to sleep. That she did not want to harm herself. But she took a
whole pill – jar of pills.”
Mother described communications between herself and Zepeda after he fled
her home in 2016, stating he asked for her “forgiveness” and that he “did not know
why” he harmed her family. She admitted reuniting with Father “five or six months”
after he left her home, and to having a sexual relationship with Father after he
returned to Montgomery County, stating that she “had to do it.” But Mother denied
that Zepeda lived with her and her children until he was arrested. Mother confirmed
she was pregnant at the time Father was arrested, and while Zepeda’s name is on her
child’s birth certificate, she denied the baby is Zepeda’s child. Mother testified she
8 feels threatened by Zepeda and that she and her daughters are in danger, although
she admitted she did not immediately call the police when Zepeda returned to Texas.
Kate testified that she was sixteen at the time of trial, and that she currently
attends high school. She stated that she has four siblings, including Nancy. She
confirmed she understood the difference between a truth and a lie. In 2016, Zepeda
was her stepfather and living with her family in Montgomery County. When Zepeda
moved into her home, Kate viewed him as a father figure, stating he was “friendly”
and that she wanted to “just be like him.” She testified that the sexual abuse started
“like a month[]” after Zepeda moved into their home. She testified that he started to
kiss her on the mouth, then started to touch her private parts including her vagina,
butt and breasts. Kate stated the assaults usually occurred on Sundays because “my
mom went to work and he stayed[]” home. This was because Zepeda worked in
landscaping and he was off on Sundays. According to Kate, the first time he sexually
assaulted her, he took her to a storage room at the back of the property, told her to
take off her clothes and started to touch her vagina. She said that this continued more
than “one time” but it was hard to put a number to the amount of times he sexually
assaulted her. Other times, he would show her pornography videos on his phone, and
have her “suck his penis” and would “rub his penis on my vagina[.]” One time he
tried to penetrate her vagina with his penis, but stopped because Kate said it hurt.
The sexual assaults usually happened in the storage room or her Mother’s room, and
9 Zepeda told her not to tell anyone about the assaults. Kate explained that she did not
tell her Mother about the sexual assaults because Zepeda said he would go to jail if
she told anyone. She identified Zepeda as the person who perpetrated the sexual
assaults. She did not know that Zepeda was sexually assaulting Nancy. Kate said
that after she told her Mother, she later attempted to commit suicide, but she got
counseling. Kate denied ever seeing Zepeda again until the trial.
Nancy, who was fourteen-years old when the trial occurred, testified that she
was going into high school. Nancy confirmed that she knew the difference between
the truth and a lie. She stated that Zepeda was “like, my stepfather[]” and that he
moved into their home when she was in kindergarten or first grade. She liked Zepeda
when he first moved into the house. Nancy testified that she did not remember how
long Zepeda had been living in their home after Zepeda began to touch her, but she
said that his conduct began when she was in first grade. Nancy stated the first time
Zepeda touched her they were in the living room of the home, they were on the
couch, and Zepeda began to touch and rub her vagina with his hand. By Nancy’s
account, Zepeda stopped when he told her to go to her Mother’s bedroom. After they
went to the bedroom, Nancy said that Zepeda undressed her and put his penis in her
vagina. According to Nancy, Zepeda stopped when one of her siblings knocked on
the door, Zepeda stopped, and Zepeda told her not to tell anyone. She testified they
engaged in penis to vagina sex more than once, explaining that on the occasions “he
10 didn’t have work to do, he would stay.” According to Nancy, she did not tell the
hospital that Zepeda put his penis in her vagina because she “was embarrassed about
it.”
Nancy testified that she suspected something was happening to her sister
because she observed Zepeda and Kate leave a room, and her sister did not look at
her. “She avoided me. She didn’t look at me. She didn’t even answer.” Nancy
testified the first person she talked to about the sexual assault was her Mother.
According to Nancy, after her Mother kicked Zepeda out of the home, she never saw
him again.
Three witnesses, Ignoor Bains, Crystal Cheap, and Charlotte Payne each
testified at trial and addressed Kate’s and Nancy’s respective psychiatric diagnosis
and treatment after the alleged sexual assaults occurred. The witnesses testified
about their backgrounds, general observations, and the treatments available for
children who are victims of sexual assault. The notes and medical diagnoses of these
healthcare professsionals were admitted into evidence. Each witness testified about
their respective opinions regarding Kate’s and Nancy’s mental health. They testified
that Kate and Nancy both received psychiatric treatment after the alleged assaults
occurred.
The defense called three witnesses: Victor Cruz, Mario Zepeda, and Zepeda.
Victor Cruz testified that he leased a home to Mother and Zepeda in September 2016.
11 Cruz stated that although only Mother is listed on the lease agreement, Zepeda made
the payments and he lived in the home with Mother, four children, and Zepeda’s
brother until the spring of 2020. Cruz acknowledged that Zepeda’s name did not
appear on the receipts he issued for the payments he received, and he explained he
didn’t include Zepeda’s name on the receipts based on the joint instruction he
received from Zepeda and Mother. According to Cruz, Zepeda made the payments
due on the lease in person. Sometimes, Cruz said, Zepeda was accompanied by the
children or Mother when he paid the rent that was due on the lease. When he saw
the children, Cruz said they appeared happy and when he saw Mother, she did not
seem to be afraid of Zepeda.
Mario Zepeda testified that he is Zepeda’s brother. He stated he was living in
the home that Mother and Zepeda leased from Cruz. According to Mario, Mother
went to Louisiana to get Zepeda after he left Texas, and Mother, Zepeda, the
children, and Mario all lived together in the home leased from Cruz. Mario testified
that the children appeared happy when he lived with them.
When Jose Zepeda testified, he denied that he molested Kate or Nancy. He
stated that starting in 2013, he began living with Mother and her children, and he
always treated Kate and Nancy as his stepchildren. Zepeda denied that he fled Texas
after Mother confronted him about the alleged sexual abuse of her daughters.
Instead, Zepeda said that he left because Mother “wanted to stick me with a knife.”
12 According to Zepeda, he went to Louisiana to live with cousins “until I would figure
out what was going on with her.” He testified that it was Mother who later contacted
him and asked him to come back to Texas, stating “she loved me and she didn’t
know what was going on.” Zepeda told the jury that he only asked for forgiveness
from Mother because “she ended up alone with all the expenses and she couldn’t
handle them alone.” He testified there were times that he hid while living with
Mother, particularly from Kate’s father. He denied knowing there was a warrant out
for his arrest. Zepeda also explained that he did not sign the lease because he did not
have proper identification.
As a rebuttal witness, the State called Amy Vallejo, an “alternative response
specialist” with the Department of Family and Protective Services. She testified that
she investigates possible abuse and neglect for the Department. In February 2020,
she was involved with an investigation into Mother, Zepeda, Kate and Nancy. She
had received information that Mother had given birth to a child with the last name
of Zepeda, so she led an investigation to determine whether the baby and Zepeda
lived in the same home. She stated her focus was to determine whether Zepeda was
still living in the household with Kate and Nancy. She spoke to Mother and the
children, but described Mother as “[n]ot that forthcoming[,]” which led her to get a
court order that required Mother to participate in family services. According to
13 Vallejo, she could not conclude “beyond a reasonable doubt” that Zepeda lived in
the home.
At the end of trial, the jury found Zepeda guilty of continuous sexual abuse of
a child. Zepeda waived his right to have the jury decide his punishment, and
following a punishment hearing, the trial court ordered Zepeda to serve a life
sentence in the Texas Department of Criminal Justice. Zepeda timely appealed.
Sufficiency of the Evidence
In his brief, Zepeda challenges the sufficiency of the evidence to support his
conviction. Specially, Zepeda argues that the evidence is not enough to establish that
the abuse happened during a duration of thirty or more days and that as to the two
alleged victims he committed two or more acts of sexual abuse.
Standard of Review and Applicable Law
We review the sufficiency of the evidence to support a conviction under the
standard in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we review all the
evidence in the light most favorable to the verdict and determine, based on that
evidence and any reasonable inferences therefrom, whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson,
443 U.S. at 318-19). “The jury is the sole judge of credibility and weight to be
14 attached to the testimony of witnesses.” Id. We give full deference to the jury’s
responsibility to fairly resolve conflicts in the testimony, to weigh evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not substitute our judgment for that
of the factfinder concerning the weight and credibility of the evidence. King v. State,
29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We permit juries to draw multiple
inferences from facts as long as each inference is supported by the evidence
presented at trial. Temple, 390 S.W.3d at 360.
A person commits the offense of continuous sexual abuse of a child if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is [] a child younger than 14 years of age[.]
Tex. Penal Code Ann. § 21.02(b)(1), (2)(A).
Section 21.02 of the Penal Code defines “act of sexual abuse” as including,
among other things, an act that constitutes the offense of aggravated sexual assault
and indecency with a child. Id. § 21.02(c)(2), (4). A person commits the offense of
aggravated sexual assault of a child if the person intentionally or knowingly causes
the penetration of the anus or sexual organ of a child by any means and the victim is
younger than fourteen years of age. Id. § 22.021(a)(1)(B)(i), (a)(2)(B). A person 15 commits the offense of indecency with a child if he “(1) engages in sexual contact
with the child or causes the child to engage in sexual contact; or (2) with intent to
arouse or gratify the sexual desire of any person: (A) exposes the person’s anus or
any part of the person’s genitals, knowing the child is present; or (B) causes the child
to expose the child’s anus or any part of the child’s genitals.” Tex. Penal Code Ann.
§ 21.11(a)(1), (2). The State need not prove the exact dates of the abuse, only that
“there were two or more acts of sexual abuse that occurred during a period that was
thirty or more days in duration[.]” Brown v. State, 381 S.W.3d 565, 574 (Tex.
App.— Eastland 2012, no pet.); Lane v. State, 357 S.W.3d 770, 773-74 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d).
In part of his sufficiency challenge, Zepeda asserts that “[t]here is no evidence
or testimony to corroborate that during a period of 30 or more days in duration,
[Zepeda] committed two or more acts of sexual abuse against [Kate] and [Nancy].”
As detailed above, Kate told the SANE examiner the abuse occurred for
“approximately two years[]” from third grade to fifth grade, with the last assault
occurring more than a week before the examination. Nancy also stated that her
stepfather touched her last year, but “not much this year[,]” during her examination
with Hoffman. Domingue testified that Kate told her that Zepeda touched her vagina
and put his penis in her mouth, more than one time between third and fifth grade.
Finally, there was testimony from Kate, that while she could not put a definitive
16 number on the times that Zepeda sexually assaulted her, it started a month after he
moved into her home, and it was “more than one time.” This testimony supplements
the undisputed testimony from both Zepeda and Mother that he moved into Mother’s
home in 2013 and left the home after Kate and Nancy outcried about the sexual abuse
in 2016.
While Zepeda denied all sexual abuse and other witnesses testified that the
children appeared happy and there was no physical evidence of the abuse found
during the examinations performed on the children, the weight to be given
contradictory testimonial evidence is within the sole province of the jury because it
turns on an evaluation of credibility and demeanor. See Cain v. State, 958 S.W.2d
404, 408-09 (Tex. Crim. App. 1997); see also, e.g., Reed v. State, 991 S.W.2d 354,
360 (Tex. App.—Corpus Christi 1999, pet. ref’d) (evidence sufficient to support
aggravated sexual assault of a child conviction based on victim’s testimony even
though the testimony was contradictory). As the factfinder, the jury was entitled to
judge the credibility of each witness, and the jury could accept some portions of a
witness’s testimony while rejecting others. See Hughes v. State, 897 S.W.2d 285,
289 (Tex. Crim. App. 1994). The testimony from a child who testifies that she is the
victim of a sexual assault is sufficient to support a defendant’s conviction for sexual
assault. Tex. Code Crim. Proc. Ann. art. 38.07(b)(1); Carr v. State, 477 S.W.3d 335,
338 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
17 As for Appellant’s argument that the evidence is circumstantial and that there
is no direct evidence of assault, “[t]he lack of physical or forensic evidence is a factor
for the jury to consider in weighing the evidence.” Lee v. State, 176 S.W.3d 452, 458
(Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App.
2006). The jury heard testimony from Hoffman, a forensic nurse and the girls’ SANE
examiner, that she conducted the exam on Kate more than a week after the last
alleged sexual assault by Zepeda and that, given the nature of the allegations, it is
not unusual that there would be a lack of physical injuries.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational factfinder could have found the essential elements of the offense of
continuous sexual abuse of a child beyond a reasonable doubt. See Brooks, 323
S.W.3d at 912; Hooper, 214 S.W.3d at 13. We overrule Appellant’s sufficiency
issue.
Evidentiary Issues
In Zepeda’s final three issues, he challenges several of the trial court’s
evidentiary rulings. First, he argues the trial court abused its discretion when it
overruled a hearsay objection during nurse practitioner Francisco Martinez’s
testimony. Second, he contends the trial court erred when it allowed the testimony
from Nancy regarding extraneous offenses or acts under article 38.37 of the Code of
18 Criminal Procedure. Finally, he claims the trial court erred when it granted the
State’s motion in limine regarding Kate’s and Nancy’s immigration status.
Hearsay objection
In his first evidentiary issue, Zepeda argues that the trial court erred when it
overruled Zepeda’s hearsay objection during Francisco Martinez’s testimony.
Martinez was a nurse practitioner at Memorial Hermann Hospital and spoke with the
children when their mother brought them to the hospital for an examination.
Martinez testified that Kate and Nancy told Martinez that Zepeda last touched them
a week before their examination. Zepeda contends that Kate’s and Nancy’s accounts
about what they were claiming Zepeda had done to them were “bolstered by the
repetition of [t]his hearsay statements through Mr. Martinez.”
While out-of-court statements may be hearsay if offered for the truth of the
matter asserted therein, there are exceptions to the hearsay rule. See Texas Rule of
Evidence 803. The State argues the exception in Rule 803(4) applies. This exception
to the rule against hearsay pertains to statements made for medical diagnosis or
treatment. Id. This exception expressly provides that it includes “[a] statement that
is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
describes medical history; past or present symptoms or sensations; their inception;
or their general cause.” Tex. R. Evid. 803(4).
19 Generally, to establish this exception, the proponent must show that the
declarant knew that the statement was being made for purposes of medical diagnosis
or treatment, that proper diagnosis or treatment depended on the declarant’s veracity,
and that the statement offered was pertinent to treatment or diagnosis. See Taylor v.
State, 268 S.W.3d 571, 578−79, 589, 591 (Tex. Crim. App. 2008). The declarants
who made the statements, here Kate and Nancy, were taken to the hospital for an
examination. We look to the entire record to determine whether a child understands
the importance of being truthful when being questioned by medical personnel.
Calvert v. State, No. AP-77,063, 2019 Tex. Crim. App. Unpub. LEXIS 584, at *116
(Tex. Crim. App. Oct. 9, 2019) (not designated for publication) (citing Franklin v.
State, 459 S.W.3d 670, 676-77 (Tex. App.—Texarkana 2015, pet. ref’d); Beheler v.
State, 3 S.W.3d 182, 188 (Tex. App.—Fort Worth 1999, pet. ref’d). The Texas Court
of Criminal Appeals has stated, “it seems only natural to presume that adults, and
even children of a sufficient age or apparent maturity, will have an implicit
awareness that the [medical personnel]’s questions are designed to elicit accurate
information and that veracity will serve their best interest.” Taylor, 268 S.W.3d at
589. It is reasonable to assume that a child of sufficient age understands that
statements made to a recognized medical professional, such as a physician or nurse,
are “made for the purpose of medical diagnosis or treatment.” Gohring v. State, 967
S.W.2d 459, 463 (Tex. App.—Beaumont 1998, no pet.). The witness does not have
20 to expressly state that the victim recognized the need to be truthful in their statements
for the medical treatment exception to apply. See Wright v. State, 154 S.W.3d 235,
241 (Tex. App.—Texarkana 2005, pet. ref’d). “[C]ourts can infer from the record
that the victim knew it was important to tell a SANE the truth in order to obtain
medical treatment or diagnosis.” Franklin, 459 S.W.3d at 677 (citing Prieto v. State,
337 S.W.3d 918, 921 (Tex. App.—Amarillo 2011, pet. ref’d).
The record supports an inference that Kate and Nancy understood the
importance of being truthful for the purpose of medical diagnosis or treatment. See
Fahrni v. State, 473 S.W.3d 486, 497-98 (Tex. App.—Texarkana 2015, pet. ref’d)
(citing Taylor, 268 S.W.3d at 589); see also Gohring, 967 S.W.2d at 463 (ordinarily
it is reasonable to assume that a child will understand that a statement given to a
“recognizable health professional, such as a physician, nurse, psychologist, or
mental health therapist[]” will be for the purpose of medical diagnosis or treatment);
Beheler, 3 S.W.3d at 188 (“there is no requirement that a witness expressly state that
the hearsay declarant recognized the need to be truthful in her statements for the
medical treatment exception to apply[,]” even if that declarant is a child). The
circumstances surrounding Kate and Nancy’s examination by Martinez in the
emergency room allowed the trial court to reasonably conclude that Martinez
thought the information about the timeline of the alleged assault was important and
for purposes of medical treatment to the children.
21 We conclude that the trial court did not abuse its discretion in admitting
Martinez’s testimony as it relates to Kate and Nancy’s statements describing their
sexual assaults. See Tex. R. Evid. 803(4). We overrule this issue.
Article 38.37 Testimony
In his second evidentiary issue, Zepeda argues that the trial court erred when
it allowed the State to present Nancy’s testimony about extraneous offenses or acts
under article 38.37, section 1(b) of the Texas Code of Criminal Procedure. See Tex.
Code. Crim Proc. Ann. art. 38.37, § 1(b).
During the jury trial, the trial court held a hearing outside the presence of the
jury to determine whether extraneous offenses would be admitted under Texas Code
of Criminal Procedure article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37. The
trial court determined that Nancy could testify about extraneous offenses against her.
Specifically, the trial court determined that Nancy could testify that Zepeda tried to,
in more than one instance, put “his private parts in my private parts[,]” in Zepeda
and Mother’s bedroom. During the hearing, Nancy stated she could not testify as to
the exact date or how many times Zepeda assaulted her in this way, and she recalled
that Zepeda told her not to tell anyone about the sexual assault. After the hearing,
the defense argued against the admission of the extraneous offense, stating the State
had not met it’s burden under article 38.37.
She hasn’t mentioned any of this until recently to the prosecutor. It’s something new that she’s remembering evidently. I don’t know that 22 they meet their burden under 38.37 as far as the extraneous acts. She -- there’s nothing -- nothing to indicate that that it actually happened. There’s been no report to any -- any other authority other than [the prosecutor]. I think we should stay there. I don’t think they met their burden under 38.37, Judge.
The defense made no other objections at trial regarding this testimony. The trial court
overruled Zepeda’s objection, finding “I do find that it would be adequate support
- - to support a finding by the jury that the defendant committed that separate offense
beyond a reasonable doubt.”
We review a trial court’s ruling on the admissibility of extraneous offense
evidence for an abuse of discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.
App. 2011). A trial court does not abuse its discretion if its decision falls within the
“zone of reasonable disagreement.” Id. “If the trial court’s decision on the admission
of evidence is supported by the record, there is no abuse of discretion, and the trial
court will not be reversed.” Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—
Texarkana 2011, pet. ref’d). Reviewing courts should not substitute their judgment
for that of the trial court. Id. Also, “a court of appeals may not reverse a judgment
of conviction without first addressing any issue of error preservation.” Meadoux v.
State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010) (emphasis in original).
“The erroneous admission of extraneous-offense evidence constitutes non-
constitutional error[.]” Pittman v. State, 321 S.W.3d 565, 572 (Tex. App. —Houston
[14th Dist.] 2010, no pet.). An appellate court may not reverse for non-constitutional
23 error if, after examining the record as a whole, the appellate court has “fair assurance
that the error did not have a substantial and injurious effect or influence in
determining the jury’s verdict.” Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim.
App. 2004) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)
(emphasis in original); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997));
see also Tex. R. App. P. 44.2(b). Therefore, even if evidence were admitted by a
trial court in error, substantial rights are not affected by the erroneous admission of
evidence “‘if the appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but a slight effect.’” Motilla
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Johnson, 967 S.W.2d
at 417). If the trial court’s evidentiary ruling is correct under any applicable theory
of law, it will not be disturbed. See Johnson v. State, 490 S.W.3d 895, 908 (Tex.
Crim. App. 2016).
Generally, an accused must be tried only for the charged offense and may not
be tried for a collateral crime or for being a criminal generally. Harris v. State, 475
S.W.3d 395, 399 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); 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.”).
24 Article 38.37, section 1 of the Code of Criminal Procedure, which applies to
the prosecution of a defendant for offenses including continuous sexual abuse of a
child, provides:
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
(2) the previous and subsequent relationship between the defendant and the child.
Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b).
Article 38.37, section 2, also applicable to a trial for continuous sexual abuse of a
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) [including an offense of aggravated sexual assault of a child] 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.
Id. art. 38.37, § 2(b); see also Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—
Tyler 2015, no pet.) (noting that section 2(b) allows admission of evidence that
defendant has committed certain sexual offenses against nonvictims of charged
offense).
Section 2–a provides as follows: 25 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. Ann. art. 38.37, § 2. On appeal, Zepeda argues that the
evidence violated the article 38.37 because it did not demonstrate the state of mind
of Zepeda and the child, and a previous and subsequent relationship between Zepeda
and Nancy, because a “mere denial of the commission of an offense generally does
not open the door to extraneous offenses[,]” and this testimony was admitted
elsewhere and established through other witnesses. Additionally, he argues the
evidence fails under the Texas Rules of Evidence as it is not relevant, not admissible
to prove that he acted in accordance with the character or trait on a particular
occasion, and more prejudicial than probative.
Zepeda was charged with the continuous sexual abuse of a child under section
21.02 of the Penal Code, an offense to which article 38.37 applies. See Tex. Code
Crim. Proc. Ann. art. 38.37, § 1(a)(1)(A); Tex. Penal Code Ann. § 21.02(b).
Therefore, under section 1(b) of article 38.37, evidence of other crimes or wrongs
committed by the defendant against the alleged child victim “shall be admitted for
its bearing on relevant matters[.]” See Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b)
26 (emphasis added). We conclude that the trial court did not abuse its discretion in
allowing Nancy’s testimony pertaining to the penis in vagina incident because the
testimony met the requirements under article 38.37, section 1(b) of the Texas Code
of Criminal Procedure.
Furthermore, section 2 of article 38.37 also applies. See Tex. Code Crim. Proc.
Ann. art. 38.37, § 2(a)(1)(B) (section 2 applies where the defendant is tried for
continuous sexual abuse of a child under section 21.02 of the Penal Code).
Therefore, evidence that the defendant committed a separate offense included in
Chapter 21 of the Penal Code may be admitted “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.” See Tex. Code Crim. Proc. Ann.
art. 38.37, § 1(a)(1)(A), § 2(b).
The trial court conducted a hearing outside the presence of the jury and did
not abuse its discretion in overruling the objection. The complained-of evidence was
admissible under section 1(b) and section 2. The evidence was relevant to show
Zepeda’s state of mind and the relationship between Zepeda and the alleged victim.
See Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b). The defense offered no witnesses
nor any other evidence about the penis in vagina incident, and the trial court
instructed the jury not to consider evidence of “crimes, wrongs, or acts other than
the offense alleged against him in the indictment in this case . . . unless you find and
27 believe beyond a reasonable doubt that the Defendant committed such other crimes,
if any were committed, and even then you may only consider the same in
determining the motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident of the Defendant, if any, in connection with the
offense, if any, alleged against him in the indictment and for no other purpose.” We
presume the jury followed the court’s instruction. See Thrift v. State, 176 S.W.3d
221, 224 (Tex. Crim. App. 2005).
While not framed as separate issues, Zepeda cites to the Texas Rules of
Evidence 404 for the proposition that extraneous offenses should not have been
admitted here against him. See Tex. R. Evid. 404; Tex. Code. Crim. Proc. Ann. art.
38.37. With respect to Zepeda’s assertion the extraneous offenses were not
admissible under Texas Rules of Evidence 404, article 38.37 expressly states such
evidence may be admitted “[n]otwithstanding Rules 404 and 405[.]” Tex. Code
Crim. Proc. Ann. art. 38.37, § 2(b); see also Vajda v. State, No. 09-16-00371-CR,
No. 09-16-00372-CR, No. 09-16-00378-CR, 2017 WL 6062469, at *4 (Tex. App.—
Beaumont Dec. 6, 2017, pet. ref’d) (mem. op., not designated for publication)
(concluding trial court did not err and Rule 404 did not preclude admission of
extraneous offense evidence of the possession of child pornography in trial of sexual
assault of a child). We also note that Zepeda failed to make a Rule 404 or 405
objection at trial.
28 Zepeda further asserts that the evidence of extraneous offenses should not
have been admitted as such evidence was irrelevant and unfairly prejudicial. See
Tex. R. Evid. 401-403. Generally, all relevant evidence is admissible. Tex. R. Evid.
402. Relevant evidence is evidence that tends to make a fact more or less probable
or is of consequence in determining the action. Tex. R. Evid. 401. An exception to
the general rule that relevant evidence is admissible is if a trial court concludes its
probative value is substantially outweighed by the danger of unfair prejudice or
confusion of the issues. Tex. R. Evid. 403. There were no objections made at trial to
the extraneous offense testimony of Nancy on relevance grounds, unfair prejudice,
or confusion of the issues. Therefore, Zepeda has failed to preserve these complaints
for appeal. See Tex. R. App. P. 33.1(a). We overrule this issue.
Motion in Limine
In his final evidentiary issue, Zepeda argues the trial court erred when it
granted the State’s motion in limine regarding the “alleged victims’ . . . immigration
status.” Zepeda directs this Court’s attention to the Confrontation Clause, the Sixth
and Fourteenth amendments of the United States Constitution, and Texas Rules of
Evidence arguing the motion in limine limited his right to confront or cross-examine
the alleged victims and their immigration status. See U.S. CONST. amends. VI, XIV;
Tex. R. Evid. 607.
29 At trial, before his case in chief, Zepeda approached the trial court regarding
the State’s motion in limine of Mother’s immigration status. Zepeda argued that this
is an issue in the case because she and Zepeda are both from Guatemala, and there
was motive for her to lie because “[s]he gets victim status for making sure he is
convicted. She’s illegal as well. That raises her to the top of the list of, you know,
victim – being a victim.” Specifically, he argued there was a motive for Mother to
lie. The State responded that there was absolutely no testimony or evidence that
Mother availed herself of this program or that she even knew it was available to her,
and that Zepeda had the opportunity to cross-examine her on this issue. The trial
court denied Zepeda’s request, stating that there was not “enough out there” in the
testimony to “touch the immigration issue[,]” and that it was not relevant.
As noted above, Zepeda complains that the trial court violated his
constitutional right to present a complete defense when it refused to permit him to
cross-examine Mother on her immigration status. At the motion in limine hearing,
defense counsel argued that the evidence of Mother’s immigration status was
relevant to his theory that she had a motive to lie, but he did not cite any rules of
evidence, cases, or constitutional provisions to support his contention that the
evidence was admissible. Zepeda’s counsel did not raise the issue during his cross-
examination of Mother at trial. Because Zepeda failed to object at trial to the
exclusion of the testimony based on his constitutional right to present a defense, we
30 conclude Zepeda has failed to preserve this complaint for appellate review. See
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (concluding appellant
waived his federal constitutional due process rights when he failed to lodge an
objection at trial); Wright v. State, 374 S.W.3d 564, 575-76 (Tex. App.—Houston
[14th Dist.] 2012, pet. ref’d) (concluding appellant did not preserve issue for review
when appellant failed to specifically assert in the trial court that the evidentiary
rulings violated her constitutional right to present a defense).
Zepeda also complains that the trial court violated his constitutional right to
confront witnesses when it refused to permit him to cross-examine Mother on her
immigration status. A defendant must preserve error in the trial court to argue on
appeal that his right to confront witnesses was violated. Anderson v. State, 301
S.W.3d 276, 280 (Tex. Crim. App. 2009); Deener v. State, 214 S.W.3d 522, 527
(Tex. App.—Dallas 2006, pet. ref’d). To preserve error on Confrontation Clause
grounds, a defendant must make a sufficiently specific objection on that basis. Reyna
v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005). Defense counsel did not
raise a confrontation clause or argue the trial court violated his right to present a
defense by failing to allow him to cross-examine Mother about her immigration
status during trial. Therefore, Zepeda cannot make this argument on appeal. Id.; see
also Tex. R. App. P. 33.1. We conclude that Zepeda did not preserve these
complaints, because he failed to do “‘everything necessary to bring to the judge’s
31 attention the evidence rule or statute in question and its precise and proper
application.’” See id. at 177 (quoting Martinez v. State, 91 S.W.3d 331, 335-36 (Tex.
Crim. App. 2002)).
Even if Zepeda had preserved these issues for review, we review a trial court’s
decision to admit or exclude evidence under an abuse of discretion standard.
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). An abuse of
discretion occurs when the trial court acts without reference to any guiding rules or
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Based on the record, we conclude the trial court’s ruling was not an abuse of
discretion. A trial court maintains broad discretion to impose reasonable limits on
cross-examination and “[i]n weighing whether evidence must be admitted under the
Confrontation Clause, the trial court should balance the probative value of the
evidence sought to be introduced against the risk its admission may entail.” Lopez v.
State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).). Here, the trial court found the
testimony was not relevant and further noted on the record that the nature of
Mother’s immigration status would be highly prejudicial, and the prejudicial nature
of the testimony would outweigh any potential relevance. See Tex. R. Evid. 403;
Lopez, 18 S.W.3d at 222. Zepeda’s counsel also admitted on the record that he had
been unable to verify the claims that Mother was using this case to avail herself of
immigration laws to gain “victim status.” Zepeda presented no evidence to support
32 his claim that Mother was attempting to claim “victim status” to gain asylum, and
the trial court could have concluded that the questions Zepeda sought to ask would
constitute no more than a mere fishing expedition with a substantial prejudicial
effect. Consequently, we find no abuse of discretion in the trial court’s ruling. We
overrule Zepeda’s last evidentiary issue.
Conclusion
Having overruled all of Zepeda’s issues on appeal, we affirm the judgment of
the trial court.
AFFIRMED.
JAY WRIGHT Justice
Submitted on May 2, 2023 Opinion Delivered January 10, 2024 Do Not Publish
Before Horton, Johnson and Wright, JJ.