Rodriguez v. State

974 S.W.2d 364, 1998 WL 304324
Court of Appeals of Texas·Decided July 13, 1998·No. 07-97-0188-CR·Published·Cited by 35 cases

Opinions

QUINN, Justice.

Ruben T. Rodriguez, Jr. (appellant) appeals his conviction for sexual assault. Through three points of error, he questions 1) the trial court’s decision to admit evidence of extraneous offenses, 2) the trial court’s failure to provide an instruction limiting the purposes for which the jury could consider the extraneous offenses, and 3) the effectiveness of his counsel. We affirm.

Background

C. O., a fourteen year old female, was spending the night with a cousin at appellant’s house. As she slept on the floor of the living room near her cousin, appellant laid down beside her, raised her nightgown, attempted to unfasten her bra, unzipped her [367]*367pants (she wore jeans underneath the gown), slipped a hand down her pants, and inserted a finger into her vagina. Throughout the incident, appellant told C.O. to be quiet as she called for her cousin and tried to struggle free. Despite C.O.’s cries, her cousin remained asleep. Eventually, C.O. managed to strike her assailant, who then passed out on the floor. Whether he collapsed as a result of the strike or because he was drunk is unknown. However, evidence indicated that appellant had consumed several beers earlier and that he was known to pass out after drinking heavily.

Once free of appellant’s hold, C.O. went to her aunt’s bedroom. There she awoke her aunt and told her that she had been “touched” by someone in the house. In response, the woman told C.O. that it was probably appellant and then directed her to return to bed. C.O. persisted and eventually persuaded her aunt to follow her into the living room. When the two entered the room and turned the lights on, they found appellant lying where C.O. had left him.

Subsequently, appellant was indicted for sexual assault. At trial, a jury found him guilty of sexual assault. It also sentenced him to twenty years in prison.

Points of Error One and Two

In his first two points, appellant complains of the trial court’s refusal to exclude evidence of extraneous offenses and to instruct the jury about the purposes for which it could consider the evidence. We overrule the points.

The evidence in question arose during the following exchange:

Q: Now, you have testified that you don’t think it’s in Ruben’s character to do anything like this.
A: Yes.
Q: Do you know what he is accused of?
A: Of sexual assault.
Q: And do you think that’s a bad thing?
A: For a person that would do it, yes.
Q: So, it would take someone with a bad nature to do something like that?
A: Yes.
Q: And are you telling this jury or giving them the impression that your cousin, Ruben, is a nice person—
A: Yes, he is.
Q: —and wouldn’t be capable of doing anything bad?
A: Yes.
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Prosecutor: We’re of the opinion that they have opened the door to a litany of things, bad things.
Defense Counsel: I didn’t open the door to anything.
Prosecutor: They have given the jury the impression that this guy is a great guy through their witness. And we’re of the opinion that we have a right to go into—
Defense Counsel: I strenuously object, Your Honor.
Prosecutor: He asked her if it was in his character to do anything like this.
Court: I know.
Prosecutor: We didn’t go looking for it. It happened. And it leaves a false impression to [sic] this jury.
Court: Well, the Court will overrule your objection, his objection.
Q: Do you think it’s in Ruben’s character to assault anyone?
A: No.
Q: Would you be shocked to know that he’s been charged with aggravated assault, arrested for it? Did you know about that?
A: No, I didn’t.
Q: Did you know that he has been arrested and convicted of DWI?
A: Yes.
Q: Twice,—
A: Yes.
Q: —two separate probations — two separate convictions?
A: Yes.
Q: You knew about that?
[368]*368A: Uh-huh.
Q: Do you know that he had been arrested and charged with felony criminal mischief?
A: No.
Q: You didn’t know about that?
A: No.
Q: Would those facts change your opinion of your cousin Ruben’s character and his nature?
A: No.
Q: So, irregardless of anything he’s done in the past, you’re here to testify in his behalf?
A: Yes.

As can be seen, appellant objected to the State’s attempt to interject evidence of aggravated assault, driving while intoxicated, and felony criminal mischief. However, once the objection was overruled, he did not contemporaneously request a limiting instruction. Nor did he later ask that one be included in the jury charge.

Finally, the exchange referred to by the State as purportedly opening the door consisted of appellant’s counsel previously asking the following questions and receiving the following responses from the same witness:

Q: Have you ever had problems with Ruben in regards to matters as these that were brought up this night, that they’re alleging happened this night?
A: No.
Q: Have any of your other friends ever complained about anything like that?
A: No.
Q: Have you ever had any problems with Ruben like that?
A: No.
Q: Do you think that that is even within Ruben’s nature?
A: Yes.
Q: Do you think it’s — I’m sorry. Let me ask you the question.
A: Do you think it’s within Ruben’s nature to do something like they are accusing him of doing?
Q: Oh, no.

Complaint Regarding Admission of Extraneous Offenses

1. Standard of Review

In determining whether a trial court erred in admitting evidence, we apply a standard of abused discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). That is, unless the decision fell outside the zone of reasonable disagreement, given the law and pertinent circumstances, we must uphold it. Id.

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Rodriguez v. State, 974 S.W.2d 364, 1998 WL 304324 (Tex. Ct. App. 1998).

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