Bryan Keith Arellanes v. State ( 2018 )

Affirmed as modified; Opinion Filed July 31, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00429-CR
BRYAN KEITH ARELLANES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-82219-2013
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers
Bryan Keith Arellanes appeals his conviction for indecency with a child by contact. After
finding appellant guilty, the jury assessed punishment at two years’ imprisonment. In four issues,
appellant claims: (1) the evidence is legally insufficient to support his conviction; (2) the trial court
erred by admitting certain evidence; (3) he was denied his constitutional right to confront a witness;
and (4) the State engaged in improper jury argument. We affirm the trial court’s judgment as
modified.1
BACKGROUND AND PROCEDURAL HISTORY
Penny Bartley lived in California with her six biological children, including her daughters,
Jaime and Melisa. As an adult, Jaime also lived in California and had six children. Because she
1
On April 21, 2015, this appeal was transferred to the Eighth District Court of Appeals in El Paso under a docket equalization order from the
Texas Supreme Court. On April 12, 2018, the supreme court ordered the appeal transferred back to this Court.
was unable to care for them, Jaime often asked Penny to take her children. Jaime’s personal
situation did not improve, and several of her children were physically and sexually abused by
Jaime’s boyfriends, roommates, and associates. Penny and her husband Bart eventually adopted
all six of Jaime’s children.
In February 2005, Penny, Bart, and the six (adopted) children moved from California to
Wylie, Texas. In August of that year, Melisa, appellant (her husband), and their daughter also
moved from California to Texas. Initially, they moved in with Penny and her family. Penny
described her relationship with Melisa as “very close” and said they were more like friends than
mother and daughter. During the time the two families lived together, everyone seemed happy.
After about eight or nine months, Melisa, appellant, and their daughter moved into their own home;
shortly thereafter, Melisa gave birth to a baby boy.
One night after Melisa’s family had moved, Penny went upstairs to check on the children
and discovered the youngest girls, R.E.B and R.A.B., simulating a sex act. Penny spanked and
scolded them. The following day, the oldest daughter, K.B. told school officials that her younger
siblings had been beaten with a belt. This resulted in a CPS investigation. K.B. was implicated in
initiating the sexual behavior of her siblings and entered a sex offender program for two years.
Several of the other children, including the two youngest girls, went to counseling at the Children’s
Advocacy Center.
In December 2012, Melisa and her family moved back in with Penny’s family. Although
everyone appeared to get along, Penny said there were times she felt uncomfortable with the way
appellant hugged R.E.B. and R.A.B., both of whom were beginning to develop physically.
According to Penny, appellant would lean “back in his chair and [the girls] would be laying,
literally laying across his whole body as he was reclining in the chair.” As a general rule, she did
not approve of “frontal hugs;” she definitely did not approve of the hugs appellant gave the girls.
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One evening, appellant reached down and picked R.A.B. up “by both of her buttocks,” using “both
his hands on her buttocks the whole time.” Penny said it looked inappropriate, and her “mom
alarm” went off. Rather than confront appellant, Penny decided it would be better that Melisa and
her family move out. Penny helped Melisa find a house and, in 2013, Melisa’s family, including
appellant, again moved out.
Tatiana Vazquez was a friend of both Penny’s and Melisa’s families. R.E.B. and R.A.B.
thought of her like a sister. Tatiana was also the Bible teacher for R.E.B and R.A.B. and helped
them with their Bible studies in preparation for their baptism as Jehovah’s Witnesses. One day,
after Melisa and appellant had moved out for the second time, R.E.B. called Tatiana and told her
that appellant “had been texting her throughout the day and it was making her very uncomfortable,
that he texted her a lot.” R.E.B. said it was “like between a boyfriend and a girlfriend” and it
bothered her. R.E.B. then said appellant made “her feel uncomfortable, [and] that he tried to touch
her breasts.” Tatiana told R.E.B. to text appellant, “Quit texting me or I will tell mom.” Appellant
responded, “Don’t know what you talking about but okay.” He then texted, “That’s not funny.
Don’t threaten me.” Tatiana called Penny and told her that the girls needed to talk to their mom
that evening. Tatiana said she would be there for “moral support.”
When Tatiana got to the house, R.E.B. and R.A.B. told Penny what had happened. Both
girls were emotional and crying. According to R.E.B., appellant touched her breasts in a circular
motion when he hugged her and “it was not an accident.” Penny knew that, as a Jehovah’s Witness,
“when someone does something against you first you go to him and say something to him directly.”
So Penny confronted appellant about R.E.B., saying “I know what’s been going on between you
and [R.E.B.]. I read the texts off of her phone.” Appellant responded, “Well, did she tell you what
she’s been doing to me? How she rubs herself all over me?” He then walked away.
Penny was told the next steps included going to the church elders and forming a judicial
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committee to determine if the alleged wrongdoing violated Bible principles. She spoke with the
elders and learned that a judicial committee could not be formed because there were not “two
witnesses to the matter.” At that point, the police were notified. Appellant was arrested and
charged with two counts of indecency with R.E.B. He was acquitted of indecency by touching her
genitals but convicted of indecency by touching her breasts. This appeal followed.
DISCUSSION
1. Sufficiency of the Evidence
In his first issue, appellant asserts the evidence is insufficient to prove he committed the
offense of indecency with R.E.B. by sexual contact. Although he concedes he “may have touched
the breast of R.E.B.,” he contends the State failed to establish that he acted with the intent to gratify
his sexual desire.
When determining whether the evidence is sufficient to support a criminal conviction, we
view the evidence in the light most favorable to the verdict and determine whether a rational jury
could have found all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The
jury, as the fact-finder, may make reasonable inferences from the evidence presented at trial in
determining an appellant’s guilt. Hooper v. State, 214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007).
When there is conflicting evidence, we presume the fact-finder resolved those conflicts in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326; see also Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact’s determinations of a
witness’s credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks,
323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against
the rare occurrence when a fact-finder does not act rationally. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010) (citing Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009)).
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A person commits the offense of indecency with a child if, with a child younger than
seventeen years of age, he engages in sexual contact with the child. TEX. PENAL CODE ANN. §
21.11(a)(1) (West Supp. 2017). Sexual contact means any touching by the person, including
touching through clothing, of the breast or any part of the genitals of a child, with the intent to
arouse or gratify the sexual desire of any person. Id. § 21.11(c). Whether the person possessed
the requisite intent to commit an offense is most often proven through the circumstantial evidence
surrounding the crime. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.]
1981); Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). The jury
may infer the requisite intent from the acts, words, and conduct of the accused. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Scott, 202 S.W.3d at 408. No oral expression of
intent or visible evidence of sexual arousal is necessary. Jimenez v. State, 507 S.W.3d 438, 440
(Tex. App.—Fort Worth 2016, no pet.); Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.—
Houston [14th Dist.] 2001, pet. dism’d).
The guilt/innocence portion of appellant’s trial lasted three days, during which time
fourteen witnesses testified. Among those was R.E.B. who testified that when she was about 14
or 15 years old, appellant hugged her and put his hands on her breasts. She said he rubbed her
breast in a circular motion and “it was not an accident.” R.E.B. said appellant would extend his
arms like he was going to give her a “regular hug” but when she got close, he touched her breasts.
This began shortly after appellant and Melisa moved in with Penny’s family for the second time,
and it happened a lot. R.E.B. said appellant texted her too much and said it made her feel
uncomfortable. One time when she was sick, he asked her if it was “because of our special hugs.”
She replied that she did not like the way he touched her. R.E.B. also testified that on two occasions,
appellant told her “it’s our secret.”
In contrast, appellant testified R.E.B. was like a daughter to him. He denied intentionally
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touching her or intentionally hurting her. He admitted he frequently hugged R.E.B. in addition to
several other of Penny’s children. He said that around 2013, R.E.B. began flirting with him. She
often rubbed on his arm in a flirtatious manner and wore inappropriate clothing around him.
Nevertheless, he did not tell Penny, Bart, or Tatiana about her inappropriate behavior. He also
testified that it did not occur to him to back away from her or stop hugging her when she started
being “flirtatious.”
The jury is the exclusive judge of the credibility of the witnesses and the weight to be given
their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). As such, the jury
may choose to believe or disbelieve all or any part of any witness’s testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). R.E.B.’s testimony that appellant touched her breasts
and that it “was not an accident,” coupled with her testimony about “special hugs” and “our secret,”
is sufficient to support the jury’s verdict. Viewing all the evidence in the light most favorable to
the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt
that appellant acted with intent to gratify his sexual desire when he hugged R.E.B. and touched her
breasts. We overrule appellant’s first issue.
2. Admission of Evidence
In his second issue, appellant contends the trial court erred by admitting certain evidence
during punishment. Appellant argues the evidence should have been excluded under rule 403 of
the rules of evidence because it confused and misled the jury.
During punishment, Melisa testified about appellant’s character and why he would be a
good candidate for probation. On cross-examination, the State asked Melisa if she knew that K.B.
“has also said that [appellant] molested her.” Appellant objected to the evidence as “hearsay
confrontational.” The trial court overruled the objection but later gave appellant a running
objection to “anything that [K.B.] might have said.”
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The law is well-settled that to preserve an issue for appellate review, a party must object
and state the grounds for the objection with enough specificity to make the trial judge aware of the
complaint. TEX. R. APP. P. 33.1(a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002). The objection must be sufficiently clear to give the trial court and opposing counsel an
opportunity to address and, if necessary, correct the purported error. Ford v. State, 305 S.W.3d
530, 533 (Tex. Crim. App. 2009). If a trial objection does not comport with arguments on appeal,
error has not been preserved. Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016);
Wilson, 71 S.W.3d at 349.
Here, appellant’s objection was “hearsay confrontational.” He did not object to the
probative value of the evidence being outweighed by the danger of confusing the issue or
misleading the jury, his issue on appeal. Under these circumstances, we conclude he has failed to
preserve error regarding this question. See Wilson, 71 S.W.3d at 349 (holding that to preserve
error, complaining party’s trial objection must be same as appellate complaint). We overrule
appellant’s second issue.
3. Confrontation Clause
In his third issue, appellant contends he was denied his constitutional right of confrontation
of another family member “who made serious allegations about bad acts he supposedly committed,
but who was never produced by the prosecution.” At issue is the State’s cross-examination of
Melisa during punishment about K.B.’s allegations against appellant, and whether this violated
appellant’s rights under the Confrontation Clause.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. An accused’s right to confront the witnesses against him is violated
by the admission of a hearsay statement made by a non-testifying declarant if the statement was
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testimonial and the accused lacked a prior opportunity to cross-examine the declarant. Crawford
v. Washington, 541 U.S. 36, 68 (2004). But the Confrontation Clause is not implicated when the
use of the evidence is for impeachment because the function of the Confrontation Clause is to
prohibit the use of out-of-court testimonial statements introduced to establish the truth of the matter
asserted. Del Carmen Hernandez v. State, 273 S.W.3d 685, 687–89 (Tex. Crim. App. 2008); see
also Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010); Juarez v. State, No. 05–12–
00125–CR, 2013 WL 3957008, *9 (Tex. App.—Dallas Jul. 31, 2013, pet. ref’d) (mem. op., not
designated for publication). The purpose of permitting cross-examination of a character witness
through “have you heard” or “do you know” questions is not to discredit the person whose
character is in issue, but to discredit the testimony of the character witness. Harrison v. State, 241
S.W.3d 23, 25 (Tex. Crim. App. 2007); Juarez, 2013 WL 3957008, *9. Because the complained-
about statements were offered to impeach Melisa’s opinion of appellant’s character, the
Confrontation Clause is not implicated. See Del Carmen Hernandez, 273 S.W.3d at 687–89. We
overrule appellant’s third issue.
4. Jury Argument
In his fourth issue, appellant argues he was denied due process when the State engaged in
improper jury argument. Appellant contends the State’s cumulative improper arguments were so
extreme as to constitute reversible error. For the reasons that follow, we disagree.
As a general rule, appropriate jury argument falls within only four areas: (1) summation
of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing
counsel; and (4) a plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim.
App. 2011). To preserve a complaint that jury argument was improper, a defendant must lodge a
“proper objection,” specifically “that the argument was outside the record, was not a reasonable
deduction from the evidence, was not an answer to argument of opposing counsel, and was not a
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plea for law enforcement.” Hougham v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. [Panel Op.]
1983); Vasquez v. State, 501 S.W.3d 691, 705 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
In contrast, statements such as, “We will object to this line of argument” are “insufficient to
preserve error” regarding a claim of improper jury argument because they are “too general to
apprise the trial court of the ground” for a defendant’s objection. Hougham, 659 S.W.2d at 414;
see TEX. R. APP. P. 33.1(a)(1)(A).
Once a defendant makes a proper objection, he must pursue it to an adverse ruling.
Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018); Cockrell v. State, 933 S.W.2d
73, 89 (Tex. Crim. App 1996). If he fails to do so, he forfeits his right to complain on appeal about
the argument. Hernandez, 538 S.W.3d at 622‒23; see Estrada v. State, 313 S.W.3d 274, 303 (Tex.
Crim. App. 2010) (even assuming State’s argument was so egregious that instruction to disregard
would be ineffectual, defendant “should have moved for a mistrial to preserve this error”);
Cockrell, 933 S.W.2d at 89 (right to trial untainted by improper jury argument is forfeitable).
Appellant first complains of the following argument at the conclusion of guilt/innocence:
STATE: I want you to keep in mind what came out in his testimony was that in the
grand jury he didn’t say to the grand jury I did not touch her. He said, “I
don’t think I touched her.”
DEFENSE: Objection, Judge, that was not in evidence.
COURT: Well, ladies and gentlemen, you’re going to have to use your own memory
as to what the evidence was. I can’t fill it in for you. If the attorneys say
something in argument that is not supported by the evidence, you are to
disregard it.
Although the trial court did not sustain appellant’s objection, it did instruct the jury to remember
the evidence. Appellant did not seek further relief. Because appellant did not pursue his objection
to an “adverse ruling,” he cannot complain on appeal about the argument. See Hernandez, 538
S.W.3d at 622.
Appellant next complains of the following statement by the State:
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I’m going to ask that you find the defendant guilty on all three counts because he is guilty,
and show these girls that they’re worth it and that they did the right thing and that you stand
with them.
Appellant objected to “improper argument;” the trial court responded by stating, “Rephrase the
last statement, counsel.” Even assuming the trial court’s instruction to the prosecutor to “rephrase
your statement” can be considered as sustaining the objection, appellant failed to request that the
jury be instructed to disregard the argument and failed to request a mistrial. Thus, any complaint
is waived. See Cockrell, 933 S.W.2d at 89 (appellant must object and pursue objection to adverse
ruling); Williams v. State, 747 S.W.2d 812, 813 (Tex. App.—Dallas 1986, no pet.).
Appellant’s third complained-of argument occurred after he presented his closing
argument. During the State’s final argument, the State said:
Reasonable doubt is very easy and in this case a verdict is very easy. Either she’s lying or
she’s not. If you believe she’s lying, find him not guilty. If you believe she’s telling the
truth, that she did the right thing, you send her a message––
Appellant objected to “improper argument,” which was overruled. As noted previously, a general
objection fails to apprise the trial court of the ground for a defendant’s objection and is insufficient
to preserve error. Hougham, 659 S.W.2d at 414. Moreover, it is a proper plea for law enforcement.
Finally, appellant complains of error when the State argued, “I ask you to find him guilty
on all counts because he is guilty and because he is the ‘monster’ that R.E.B. described to you.”
Appellant objected to “counsel’s characterizing the defendant as a monster. That’s improper
argument, Judge.” During trial, R.E.B. testified appellant “acts like in front of everybody he’s this
sweet person but nobody knows his other side, the side that hurt me. Nobody sees the monster
inside of him.” Thus, the State’s comment was proper because it was a summation of the evidence.
We overrule appellant’s fourth issue.
5. Modification of Judgment
Although not raised by the parties, we note that the trial court’s judgment of conviction
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states that the plea to and the findings on the first enhancement paragraph were “true.” The
indictment in this case does not have an enhancement paragraph and nothing in the clerk’s record
shows the State amended the indictment to include an enhancement paragraph. The reporter’s
record shows that appellant did not plea true to any enhancement paragraph and that the jury charge
on punishment does not include any instruction on a finding of true to an enhancement paragraph.
This Court may modify the trial court’s judgment and affirm it as modified. TEX. R. APP.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993). We can correct and reform the
judgment of the court below “to make the record speak the truth” when the necessary information
is in the record before us. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.
ref’d). Accordingly, we modify the trial court’s judgment of conviction for indecency with a child
by contact to reflect the plea and the finding as to the first enhancement paragraph is “N/A.”
As modified, we affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180429F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRYAN KEITH ARELLANES, Appellant On Appeal from the 219th Judicial District
Court, Collin County, Texas
No. 05-18-00429-CR V. Trial Court Cause No. 219-82219-2013.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Lang and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
PLEA TO 1st ENHANCEMENT N/A
PARAGRAPH
FINDINGS ON 1st ENHANCEMENT N/A
PARAGRAPH
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 31st day of July, 2018.
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