Russel Rotz v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

RUSSEL ROTZ, § No. 08-08-00203-CR Appellant, § Appeal from the v. § 41st District Court THE STATE OF TEXAS, § of El Paso County, Texas Appellee. § (TC#20060D00758) §

OPINION

This is an appeal from a jury conviction for the offense of aggravated sexual assault of a

child. The jury assessed punishment at ten years’ imprisonment and a fine of $10,000. We affirm.

BACKGROUND

Linda Black testified that on November 29, 2005, she was a registered nurse working at Ross

Middle School in El Paso, Texas. On that date at about 11:45 a.m., three young girls came to her

office. One, a sixth grader, was nervous and was wringing her hands. She proceeded to tell Black

that a person she called “Grandpa” was touching her private parts. This was occurring for a period

longer than a year. Black notified the school principal, and the police were notified.

The thirteen-year-old complainant testified that she and her father, a single working parent,

rented an apartment from Appellant when the complainant was about five years old. Appellant and

his wife baby-sat the complainant so that Appellant’s father could save the $400 per month day-care

fee. As the complainant’s father worked odd hours as a carpenter, a room was provided at

Appellant’s house so that the complainant could spend the night. She did not share the room with

anyone. She thought of Appellant as her grandfather. There were no difficulties with this arrangement until the complainant turned seven. During

the summer, Appellant took the complainant to an apartment he was renting out. In one of the

bedrooms, Appellant pulled down the zipper of her shorts and began rubbing her vagina. He then

pulled down her shorts and underwear and licked her vagina. Appellant refused her requests to stop.

Appellant did not take his clothes off and she did not touch him. Appellant told her not to tell

anyone, and they went back home.

These sexual assaults continued on a weekly basis; usually in her room at Appellant’s house.

The last such attack occurred several days before she made her outcry statement to the school nurse.

During cross-examination, the complainant testified that she considered Appellant and his

wife to be like her grandparents. She stayed with them on a daily basis. They bought her food and

clothes, and she went with them on out-of-town trips. The complainant stated that she never told

anyone about the illicit sexual acts for fear that her father would kill Appellant. She did not tell

Appellant’s wife because she was afraid that it would destroy their marriage.

The complainant related that she once took a massager from Appellant’s room. On another

occasion, she had attempted to use Appellant’s credit card on the computer to buy pornography

which depicted, among other things, oral sex. She tried to effect this purchase on just one occasion,

and she was unsuccessful with the download. The complainant testified that she had not had sexual

relations with anyone other than Appellant.

Michael Timmons of the El Paso Police Department’s Crimes Against Children unit testified

that he witnessed the interview of the complainant by a forensic interviewer at the Child Advocacy

Center. During this interview, the complainant related that from the time she was seven until she

was eleven, she was molested by Appellant. She stated that she had been licked on her vagina on

many occasions. Twenty-year-old Aaron Hernandez testified that he was also sexually molested by Appellant.

When he was between the ages of three and six years old, he lived with his single mother in an

apartment she rented from Appellant. The apartment was situated behind Appellant’s house. As

Hernandez’s mother was a college student, Appellant baby-sat Hernandez at Appellant’s house.

Appellant became like a grandparent. Appellant bought things for Hernandez. During this time,

Appellant sexually abused Hernandez by putting his fingers in Hernandez’s rectum. This would

happen approximately three to four times a week, and usually took place in Appellant’s bedroom,

or in the shower at times when the mother was at school. Hernandez was afraid to tell Appellant to

stop the abuse, or to tell anyone else because Appellant had stated that he would kill his mother if

he told. When Hernandez was six years old, he told him mother, and they moved to New Jersey to

get away from Appellant.

Appellant testified on his own behalf. He stated he was self-employed and owned several

apartments. He rented an apartment to the complainant’s father and his eighteen-month-old

daughter. Appellant treated the complainant as a granddaughter, and he helped her grow up. He

encountered some difficulty with the complainant when he found out that she had used his credit

card to charge some pornography. Appellant testified that he had put the complainant “in a corner”

by telling her she had to repay the money she spent on pornography, and she reacted by trying to

frame him by falsely accusing him of sexual abuse. Appellant stated that he had no sexual contact

with the complainant. He stated she was a liar who could cry on demand.

Charles Lind, a licensed professional counselor, testified that he had known Appellant for

approximately twenty-five years. He had visited at Appellant’s home on many occasions, and he

knew the complainant. During those visits, he did not observe anything unusual in the complainant’s

behavior towards Appellant. Eunice Truax, Appellant’s older sister, testified that she knew the complainant, and she had

gone on family trips in the company of the complainant. She never noticed anything unusual in the

complainant’s actions or demeanor towards Appellant.

DISCUSSION

In Appellant’s sole issue on appeal, he asserts that the court erred by allowing the testimony

of a witness regarding an extraneous offense. During the cross-examination of the complainant,

Appellant’s counsel began to question her about the incident with the credit card and the

pornography. The State objected on the grounds of relevance and with regard to a motion in limine.

The witness was taken on voir dire and she testified regarding the credit card incident. Defense

counsel stated that it was their defensive posture that the complainant made her outcry to the school

nurse to preempt Appellant from telling her father about the credit cards. The State then withdrew

its objection and the case continued.

Prior to the testimony of Detective Timmons, a hearing was conducted outside the presence

of the jury to determine the admissibility of Aaron Hernandez’s testimony. The State argued, among

other things, that his testimony was admissible under Texas Rule of Evidence 404(b) to rebut the

defensive posture of the implication of fabrication or motive to lie. The State maintained that the

facts that Hernandez related were similar enough to the underlying charge to be admissible.

Appellant then objected that it was premature to allow the testimony because no defensive theory

had been developed to allow the introduction of an extraneous offense.

A voir dire examination of Hernandez was conducted, and at the conclusion of his testimony,

Appellant again objected that the testimony was premature as no defensive theory had yet been

presented. The court overruled Appellant’s objection and found that: (1) Aaron Hernandez’s

testimony was admissible to rebut the implied defense of fabrication raised by Appellant, and (2) the probative value of the evidence was not outweighed by its prejudicial effect.1

Initially, we must respond to the State’s contention that Appellant had waived his contention

on appeal. Generally, a party cannot complain on appeal concerning the trial court’s admission of

exclusion of evidence unless the objecting party made a timely objection, request, or motion

concerning the matter, gave specific legal grounds for the desired ruling, and pursued the matter to

an adverse ruling. TEX . R. APP . P. 33.1(a); Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.

1999). In order to preserve error, the complaint on appeal must comport with the objection raised

at trial. TEX . R. APP . P. 33.1(a); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002). The

generally acknowledged policies of requiring specific objections are twofold. Zillender v. State, 557

S.W.2d 515, 517 (Tex. Crim. App. 1977). First, a specific objection is required to inform the trial

judge of the basis of the objection and afford the court the opportunity to rule on it. Id. Second, a

specific objection is required to afford opposing counsel an opportunity to remove the objection or

supply other testimony. Id. However, where the correct ground for exclusion was obvious to the

judge and opposing counsel, no waiver results from a general or imprecise objection. Id.

A trial objection that the admission of extraneous offense evidence was premature was not

based on Rule 404(b);2 therefore, it did not comport with a Rule 404(b) contention raised on appeal.

1 In the court’s charge to the jury at the guilt innocence stage of trial, the jury was instructed:

You are instructed that if there is any evidence before you in this case regarding the defendant having committed an alleged offense other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense, in any, and even then you may only consider the same to rebut the defensive theory of fabrication, if any, in connection with this offense, if any, alleged against him in the indictment and for no other purpose.

2 Under the Texas Rules of Evidence 404(b), evidence of other crimes, wrongs, or acts is not admissible “to prove the character of a person in order to show action in conformity therewith.” T EX . R. E VID . 404(b). However, it may be admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” De La Paz v. State, 279 S.W .3d 336, 342-43 (Tex. Crim. App. 2009). These exceptions are neither mutually exclusive nor collectively exhaustive. Id. at 343. The rule See Crooks v. State, No. 11-97-00115-CR, 1998 WL 34193980, at *2 (Tex. App.–Eastland October

22, 1998, no pet.) (not designated for publication). Here, Appellant objected solely on the ground

that the introduction of the extraneous offense evidence was premature, not that the offenses were

too dissimilar to be admissible. Accordingly, Appellant has waived his contention on appeal.

However, we note that the matter of the dissimilarities of the two offenses was raised in the State’s

initial presentation to the court concerning the admissibility of the extraneous offense. As such, as

the matter was in some sense before the court, although not in a degree to preserve error. In the

interest of justice, we will address Appellant’s complaint on appeal.

The admissibility of evidence is within the discretion of the trial court and will not be

overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003). As long as the trial court’s ruling was within the zone of reasonable disagreement, the

appellate court should affirm. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on reh’g)). Whether extraneous offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court. Id. An appellate court owes

no less deference to the trial judge in making this decision than it affords him in making any other

relevancy determination. Id.

When a trial court further decides not to exclude the evidence, finding that the probative

value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be

given deference. Id. Thus, the court of appeals cannot simply substitute its own decision for the trial

court’s. Id. The appellate court should not conduct a de novo review of the record with a view to

making a wholly independent judgment whether the probative value of evidence of “other crimes,

excludes only that evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that character. Id. wrongs, or acts” is substantially outweighed by the danger of unfair prejudice. Id . It should reverse

the judgment of the trial court “rarely and only after a clear abuse of discretion.” Id.3

An extraneous offense may be admissible to rebut a defensive theory of “fabrication,”

“frame-up,” or “retaliation.” See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008);

Wheeler v. State, 67 S.W.3d 879, 888 n.22 (Tex. Crim. App. 2002); Bargas v. State, 252 S.W.3d

876, 891 (Tex. App.–Houston [14th Dist.] 2008, no pet.); Dennis v. State, 178 S.W.3d 172, 177

(Tex. App.–Houston [1st Dist.] 2005, pet. ref’d). To be admissible for rebuttal of a fabrication

defense, the extraneous offense must be “similar to the charged one and an instance in which the

‘frame-up’ motive does not apply.” Wheeler, 67 S.W.3d at 887 n.22; Dennis, 178 S.W.3d at 178.

Although some similarity is required, the requisite degree of similarity is not as exacting as necessary

when extraneous-offense evidence is offered to prove identity by showing the defendant’s “system”

or modus operandi. Dennis, 178 S.W.3d at 179. The degree of similarity required to rebut a

defensive issue is not great; the extraneous offense need not be identical to the charged offense. See

Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); see also

Dennis, 178 S.W.3d at 178-79.

Appellant relies on Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992), in arguing

that the extraneous acts were not so similar to the charged offense that they would fall within an

exception of Rule 404(b). The Owens trial court had admitted evidence of a prior sexual assault of

a young female on the basis that such evidence established a “system,” and the Texas Court of

Criminal Appeals analyzed that basis as one relating to Owens’ “modus operandi” or

3 W hile the court found the probative value of the evidence was not outweighed by its prejudicial effect, Appellant did not object to this finding either at trial or on appeal. Accordingly, we will not address the issue. See Castillo v. State, No. 08-04-00377-CR, 2006 W L 1710062, at *7 (Tex. App.–El Paso June 22 2006, no pet.) (not designated for publication). “methodology.” See id. at 914-15. The Court of Criminal Appeals concluded that the extraneous

offense was not so similar to the charged offense that it would establish such a “system.”

Specifically, the Owens court observed that:

When the State seeks to admit extraneous offense evidence under a theory of “system” or modus operandi, “there must be a showing that the extraneous offense which was committed by the defendant was ‘so nearly identical in method [to the charged offense] as to earmark them as the handiwork of the accused.’”

Id. at 915. The Owens court then concluded that the extraneous offense and the charged

offense were not so idiosyncratically similar as to show that “the two offenses were the handiwork

of the same individual.” Id.

We note that the Owens court analyzed the admission of the evidence to determine whether

such evidence was relevant as a showing of a “system” of operation. There, the State failed to reach

the requisite high standard in showing similarity between the extraneous acts and the charged

offense. Id. In the present case, the evidence was offered to rebut a defensive theory which, as stated

above, invokes a lesser degree of similarity. Owens is thus distinguishable from the case at bar.

Here, the extraneous offense was clearly similar to the charged offense. Both children were

tenants of Appellant whose single parents were absent from the rented apartments for extended

periods of time. Appellant baby-sat both children and he assumed a familiar type of relationship

with both children to the extent he was considered a putative grandparent. He bought both children

various items, and went places with them. The assaults in both cases were usually committed in

Appellant’s home. The sexual assaults in each instance occurred over extended periods of time.

Both children were young in age. While there are dissimilarities in gender and the nature of the

sexual contact, we find that none of the dissimilarities are of such consequence or magnitude to

preclude finding that the offenses were sufficiently similar. See Blackwell, 193 S.W.3d at 13. Appellant’s sole issue is overruled.

CONCLUSION

We affirm the judgment of the trial court.

GUADALUPE RIVERA, Justice

March 24, 2010

Before Chew, C.J., Rivera, J., and Garcia, Judge Garcia, Judge, sitting by assignment

(Do Not Publish)