Pedro Acosta Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 24, 2023
• Docket: 13-22-00579-CR
• Status: Published

Opinion

NUMBER 13-22-00579-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

PEDRO ACOSTA JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Tijerina

A jury found appellant Pedro Acosta Jr. guilty of two counts of indecency with a

child, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11. The punishment was

enhanced to an automatic life sentence with two previous convictions. See id. § 12.42.

By two issues, appellant argues that (1) the trial court abused its discretion by allowing evidence of a previous conviction pursuant to Article 38.37 of the code of criminal

procedure, and (2) he received ineffective assistance of counsel. We affirm.

I. EXTRANEOUS OFFENSE

By his first issue, appellant argues that the trial court erred by allowing a previous

conviction to be introduced in violation of Article 38.37. See TEX. CODE CRIM. PROC. ANN.

art. 38.37. Specifically, appellant argues that his constitutional rights were violated when

the State introduced “evidence that [appellant] had previously been convicted of

Indecency [with] a Child pursuant to . . . 38.37 . . . without an appropriate witness to be

cross-examined by defense counsel.”

A. Pertinent Facts

At trial, after the jury was empaneled but before the guilt-innocence phase, the trial

court held a hearing outside the presence of the jury to determine the admissibility of

extraneous offense evidence in accordance with Article 38.37 of the Texas Code of

Criminal Procedure. See id. At the hearing, the State presented the following documents:

the declaration of Sarah Wright, the custodian of records for the Texas Department of

Criminal Justice Correctional Institutions Division (TDCJ) in Huntsville, Texas; a 2002

judgment of adjudication of guilt for the offense of indecency with a child by contact; a

2009 judgment of conviction for two counts of the offense of failure to register as a sex

offender; appellant’s fingerprint card taken after his arrest for the indecency with a child

offense; appellant’s fingerprint card taken after his arrest for the failure to register as a

sex offender offense; and appellant’s mug shots.

2 Appellant objected on the grounds that the admission of these previous judgments

would violate his right to due process and that it was prejudicial. Nolanna Ortiz, an

investigator with the San Patricio District Attorney’s Office, testified that she verified and

identified the information from those prior judgments with current identifiers of appellant

and confirmed that the prior judgments referred to appellant. For example, Ortiz clarified

that she compared appellant’s date of birth on the previous judgments to his date of birth

in the current case. She also verified that his current “SID number” given by the TDCJ is

the same SID number in the previous judgments, and she compared his photographs for

the previous judgments with his current booking photograph.1 The trial court found that

the State’s evidence was supported by testimony, relevant, and probative.

During the guilt-innocence phase, the State offered the same evidence in front of

the jury. Appellant re-urged his prior objection to the judgments. The trial court overruled

the objections and admitted the two exhibits.

B. Article 38.37

When a defendant is on trial for certain sexual offenses, evidence that the

defendant has committed a separate sexual offense may be admissible at trial 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. ANN. art. 38.37, § 2(b). The trial court must conduct a hearing to determine whether

1 Ortiz explained that the SID number is a single number assigned to one person to identify that

person.

3 the evidence likely to be admitted at trial will be adequate to support a jury finding “that

the defendant committed the separate offense beyond a reasonable doubt.” See id. § 2-

a(1). We review the trial court’s admission of extraneous offense evidence under an

abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).

In Singleton, the defendant contended “that he was deprived of a fair trial because

he did not have an opportunity to cross-examine anyone regarding the exhibits at the

[A]ticle 38.37 hearing, as the State did not present them through a sponsoring witness.”

Singleton v. State, 631 S.W.3d 213, 220 (Tex. App.—Houston [14th Dist.] 2020, pet.

ref’d). The court held that “a defendant’s right to a fair trial ‘is protected by

the . . . procedural safeguards provided in the statute.’” Id. (citing Harris v. State, 475

S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). The two safeguards

in Article 38.37 are as follows: (1) the trial court conducts a hearing outside the presence

of the jury to determine whether the evidence likely to be admitted will be adequate to

support a jury finding that the defendant committed the separate offense beyond a

reasonable doubt; and (2) the State gives notice of its intent to introduce the extraneous

offense evidence at least thirty days before trial. Id. at 220–21. The court held that there

is no such requirement in Article 38.37 requiring the State “to put on witnesses at the

hearing” for the defense to cross-examine. Id. at 221. Therefore, the State’s failure to put

on a sponsoring witness at the hearing to authenticate its exhibits related to extraneous

offense evidence of separate sexual offenses did not deprive defendant of his right to due

process. See id. at 221 (“Indeed, there are many ways to authenticate a document that

4 do not require witness testimony.”); see also Quinn v. State, No. 06-22-00104-CR, 2023

WL 2876434, at *2 n.6 (Tex. App.—Texarkana Apr. 11, 2023, no pet.) (mem. op., not

designated for publication) (noting that the trial court stated, “I’ve done it both ways. We’ve

had it where the person comes and we have kind of a minitrial or we have a proffer.”);

Gutierrez v. State, No. 01-19-00718-CR, 2021 WL 2931358, at *4 (Tex. App.—Houston

[1st Dist.] July 13, 2021, pet. ref’d) (mem. op., not designated for publication) (rejecting

appellant’s argument that the trial court did not comply with Article 38.37 requirements

because appellant “has not identified, nor could [the appellate court] find, any authority

indicating that the trial court must hear detailed testimony or announce its finding in a

particular format”) (emphasis added).

Nonetheless, in this case, the State presented a sponsoring witness: an

investigator with the district attorney’s office to authenticate the supporting judgments.

Appellant chose not to cross-examine her. Furthermore, during the guilt-innocence

phase, appellant admitted he had a “semi-inappropriate relationship” with a sixteen-year-

old in 2002, pleaded guilty to the charge, but was not able to complete community

supervision. Appellant knew it was inappropriate, and stated, “I’ve done my time for it[,]

and I paid for it, yes.” Therefore, we reject appellant’s argument that he was denied due

process by the trial court’s admission of his previous two offenses.

C. Probative Value and Prejudice

Next, appellant argues that the trial court erred by admitting evidence of his

previous convictions because “the probative value of the evidence was far outweighed by

5 the prejudice to” appellant. Specifically, appellant asserts that the related indecency

occurred on May 7, 2000, and the offense at issue “allegedly occurred May 19, 2018,”

which “is a difference of eighteen (18) years.” We construe this argument to be that the

previous judgment is too remote in time to the current offense, and therefore, is more

prejudicial than probative.

We review the trial court’s decision to admit evidence for abuse of discretion.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). “[A]s long as the trial

court’s decision was within the zone of reasonable disagreement and was correct under

any theory of law applicable to the case, it must be upheld.” Id. Texas Rule of Evidence

403 authorizes a trial court to exclude relevant evidence if its probative value is

substantially outweighed by a danger of unfair prejudice. 2 See TEX. R. EVID. 403.

“[P]robative value” is the measure of how strongly the evidence “serves to make more or

less probable the existence of a fact of consequence to the litigation—coupled with the

proponent’s need for that item of evidence.” Gigliobianco v. State, 210 S.W.3d 637, 641

(Tex. Crim. App. 2006). “Unfair prejudice” is a “tendency to tempt the jury into finding guilt

on grounds apart from proof of the offense charged.” State v. Mechler, 153 S.W.3d 435,

440 (Tex. Crim. App. 2005). “[T]here is a presumption that relevant evidence is more

probative than prejudicial.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.

2 Texas Rules of Evidence 403 provides that a trial court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. See TEX. R. EVID. 403. On appeal, appellant does not argue that probative value of the evidence was substantially outweighed by a danger of confusion of the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Thus, we need not address those factors. See id.

6 1997). An appellate court considers the following factors when analyzing a Rule 403

challenge on appeal: (1) the probative value of the evidence; (2) the potential to impress

the jury in some irrational yet indelible way; (3) the time needed to develop the evidence;

and (4) the proponent’s need for the challenged evidence. See Ryder v. State, 581

S.W.3d 439, 453 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Although “[r]emoteness of an extraneous offense can significantly lessen its

probative value,” remoteness “does not require the trial court to exclude evidence of an

extraneous offense under Rule 403.” Dies v. State, 649 S.W.3d 273, 285 (Tex. App.—

Dallas 2022, pet. ref’d) (citing West v. State, 554 S.W.3d 234, 239 (Tex. App.—Houston

[14th Dist.] 2018, no pet.)). Instead, “remoteness is but one aspect of an offense’s

probativeness the trial court is to consider along with the other factors in the Rule 403

analysis.” Id. (citing West, 554 S.W.3d at 239–40).

Extraneous offense evidence that the defendant sexually assaulted another child

“is relevant to whether the defendant sexually abused the child-complainant in the

charged case.” Caston v. State, 549 S.W.3d 601, 612 (Tex. App.—Houston [1st Dist.]

2017, no pet.). Here, the extraneous offense evidence showed that appellant had sexually

assaulted a child, and the State offered it to prove a disputed fact: that appellant engaged

in sexual contact with his biological daughter Tanya.3 See Castaneda v. State, No. 14-

22-00206-CR, 2023 WL 3743316, at *8 (Tex. App.—Houston [14th Dist.] June 1, 2023,

no pet. h.). Tanya was the only eyewitness to the alleged offenses, and there was no

3 We use a pseudonym to protect the minor complainant’s identity. See TEX. R. APP. P. 9.8 cmt.

7 other physical evidence to support her accusation. See Castaneda, 2023 WL 3743316,

at *8; cf. Gigliobianco, 210 S.W.3d at 641 (providing that when the proponent has other

compelling evidence to establish the fact that the challenged evidence goes to prove, the

probative value of the contested evidence weighs far less in the probative versus

prejudicial balance). In addition to denying the accusations against him, appellant

pursued a defensive theory that Tanya fabricated the accusations against him because

he “took her phone away.” In his opening statement, appellant told the jury that this case

was about “broken trust as to how [Tanya] claims false allegations against [appellant] and

how he touched her.” Appellant further informed the jury that it would not find Tanya

credible. Consequently, Tanya’s “credibility was clearly the focal issue in the case.”

Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.); see also Lane

v. State, 933 S.W.2d 504, 521 (Tex. Crim. App. 1996) (holding that need for extraneous

offense evidence is greatest when the evidence supported an element of a “hotly

contested issue”).

Furthermore, the age of the child in the previous case was sixteen years old, and

the record provides that Tanya’s age was twelve or thirteen years old when the offenses

occurred. Thus, both children were teenagers, and both charges were for the same

offense: indecency with a child. See Caston, 549 S.W.3d at 612 (concluding the State

had a great need for the extraneous evidence because it was relevant to whether the

defendant sexually abused the child in the charged case and also because it rebutted the

defendant’s defensive theory); Dies, 649 S.W.3d at 286 (holding that similarities between

8 the previous sexual abuse and the current sexual allegations strengthen the probative

value of the extraneous offense). While evidence of sexual abuse of a child is often

considered inherently inflammatory, in this case appellant has not demonstrated how the

challenged extraneous offense evidence was any more heinous or inflammatory than the

evidence pertaining to the charged offense. See Robisheaux v. State, 483 S.W.3d 205,

220 (Tex. App.—Austin 2016, pet. ref’d) (holding any potential to suggest a decision on

an improper basis was ameliorated somewhat by the fact that the extraneous offense

testimony was “no more serious than the allegations forming the basis for the indictment”).

After balancing the Rule 403 factors, we conclude “[t]he trial court did not abuse

its discretion in determining that the probative value of the extraneous offense evidence

was not substantially outweighed by the danger of unfair prejudice.” Belcher, 474 S.W.3d

at 848. We overrule appellant’s first issue.

II. CONFLICT OF INTEREST

By his second issue, appellant argues he received ineffective assistance of

counsel due to the conflict of interest his initially-appointed attorney had as his surety.

An attorney’s conflict of interest may result in the denial of a defendant’s right to

effective assistance of counsel. Acosta v. State, 233 S.W.3d 349, 352–53 (Tex. Crim.

App. 2007). To prevail on a conflicts-based ineffective-assistance claim, an appellant

must show that (1) an actual conflict of interest existed, and (2) the conflict “actually

colored counsel’s actions during trial.” Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim.

App. 2014) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)). “The appellant bears the

9 burden of proof by a preponderance of the evidence . . . to say that if ‘no evidence has

been presented on the issue’ or in the event that ‘the evidence relevant to that issue is in

perfect equipoise,’ the appellant’s claim will fail.” Id. 136–37 (citing Broxton v. State, 909

S.W.2d 912, 920 (Tex. Crim. App. 1995) (Clinton, J., dissenting)).

According to appellant, his counsel’s conflict of interest resulted in appellant being

incarcerated prior to trial. However, appellant never raised this issue in the trial court, and

it cannot be asserted for the first time now on appeal. See TEX. R. APP. P. 33.1(a);

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (“Direct appeal is

usually an inadequate vehicle for raising such a claim because the record is generally

undeveloped.”); see also Ex parte Garcia, No. 13-18-00607-CR, 2021 WL 6014664, at

*14 (Tex. App.—Corpus Christi–Edinburg Dec. 21, 2021, pet. ref’d) (mem. op., not

designated for publication) (holding that the defendant did not raise the conflict-of-interest

issue in the trial court, and therefore he could not raise it on appeal for the first time); Ex

parte Martin, No. 01-17-00025-CR, 2019 WL 2292631, at *12 (Tex. App.—Houston [1st

Dist.] May 30, 2019, no pet.) (mem. op., not designated for publication) (overruling the

issue of whether his trial counsel had a “conflict of interest” because appellant asserted

his issue for the first time on appeal).

Nonetheless, appellant’s former counsel withdrew from representing appellant on

August 16, 2022, and the trial court appointed a new trial counsel the same day—three

months before appellant’s jury trial.4 That is, complained-of counsel did not represent

4 Appellant does not complain about trial counsel’s performance.

10 appellant during trial, and, as a result, appellant is unable to show how his former

counsel’s alleged conflict of interest “actually colored [another] counsel’s actions during

trial.” Odelugo, 443 S.W.3d at 136. Therefore, we overrule appellant’s second issue. See

id.

III. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 24th day of August, 2023.