Lester Levelle Reedy v. State ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00045-CR
LESTER LEVELLE REEDY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 46311-B
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Lester Levelle Reedy was sentenced to life imprisonment after a Gregg County jury
convicted him of sexual assault of John Smith, a child. 1 See TEX. PENAL CODE ANN.
§ 22.011(a)(2) (West Supp. 2018). In a single point of error raised on appeal, Reedy argues that
the trial court abused its discretion in admitting a prior conviction of sexual assault of a different
child during the guilt/innocence phase of his trial.
We affirm the trial court’s judgment because we find that (1) Article 38.37 of the Texas
Code of Criminal Procedure provided for the admission of the extraneous sexual offense and
(2) the trial court did not abuse its discretion in concluding that the probative value of the prior
offense was not substantially outweighed by the danger of unfair prejudice or other reasons set
forth in Rule 403 of the Texas Rules of Evidence.
I. Factual and Procedural Background
At trial, Smith testified that the sexual assault occurred while he was working at his
family’s clothing store, along with his mother and aunt. Smith stated that he escorted a woman to
the dressing room after she approached him and asked to try on a pair of jeans. According to
Smith, the woman grabbed him, pulled him into a dressing room stall, took off his pants, and
placed his sexual organ in her mouth. Smith told the woman, “[T]his is not right” and pushed her
off. He added that the incident lasted three or four minutes, but admitted during cross-examination
that it could have lasted ten minutes.
1
We use a pseudonym in referring to the victim, who was a child on the date of the offense. See TEX. R. APP. P. 9.10.
2
On exiting the stall, Smith acted as the cashier for the woman who was purchasing the
jeans. Smith testified that his mother noticed something was wrong and asked him if everything
was fine. This prompted Smith to report the sexual assault to his mother while the woman was
still in the store. Smith’s mother and the woman engaged in an aggressive argument that was
noticed by a security officer who apprehended the woman. After the Longview Police Department
arrived and arrested the woman, Smith and others discovered that she was a man. Smith identified
Reedy as the perpetrator at trial.
The State sought to introduce Reedy’s prior conviction for sexual assault of a child. The
judgment of conviction and accompanying documents established that Reedy, pursuant to a plea
bargain agreement, pled guilty to “intentionally and knowingly caus[ing] the sexual organ of . . .
a child . . . to contact and penetrate [his] . . . mouth.” Reedy objected to the introduction of the
prior conviction on the ground that its probative value was substantially outweighed by the danger
of unfair prejudice. Noting the similarities between the current and prior offense, the trial court
overruled Reedy’s objection. On appeal, Reedy argues that the trial court’s decision to admit the
prior offense was erroneous.
II. Standard of Review
“[A] trial court’s ruling on the admissibility of extraneous offenses is reviewed under an
abuse-of-discretion standard.” Bradshaw v. State, 466 S.W.3d 875, 878 (Tex. App.—Texarkana
2015, pet. ref’d) (quoting Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). “A trial
court does not abuse its discretion if the decision to admit evidence is within the ‘zone of
reasonable disagreement.’” Id. (quoting Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—
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Texarkana 2011, pet. ref’d)). “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.”
Id. (quoting Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002)). “In determining
whether the trial court abused its discretion, ‘[w]e may not substitute our own decision for that of
the trial court.’” Id. (quoting Marsh, 343 S.W.3d at 478).
III. Admissibility of Certain Prior Offenses Under Article 38.37 and Rule 403
By statute, when a defendant is tried for a sexual offense committed against a child under
seventeen years of age, the State may, notwithstanding Rules 404 and 405 of the Texas Rules of
Evidence, introduce evidence that the defendant has committed a separate sexual offense against
another child “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, §§ 1–2 (West 2018). Thus, in cases like the one before us, Article
38.37 of the Code of Criminal Procedure permits the introduction of evidence “in a trial of a
defendant for the enumerated sexual crimes against children . . . that the defendant has committed
certain offenses against a nonvictim of the charged offense.” Belcher v. State, 474 S.W.3d 840,
844 (Tex. App.—Tyler 2015, no pet.). 2
However, “the admission of evidence under Article 38.37 ‘is limited by Rule 403’s
balancing test, which permits admission of evidence as long as its probative value is not
2
Before such evidence is introduced, the trial court must conduct a hearing outside of the presence of the jury to
“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.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-
a.
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substantially outweighed by its potential for unfair prejudice.’” Fahrni v. State, 473 S.W.3d 486,
492 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Bradshaw v. State, 466 S.W.3d 875, 882
(Tex. App.—Texarkana 2015, pet. ref’d)). When conducting a Rule 403 balancing test, the court
must balance (1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any tendency of
the evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that presentation
of the evidence will consume an inordinate amount of time or merely repeat
evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). In any given case, “these
factors may well blend together in practice.” Id. at 642.
IV. The Trial Court Did Not Abuse Its Discretion In Overruling Reedy’s Rule 403
Objection
Reedy argues that the trial court erred in the manner in which it conducted the Rule 403
balancing test. We disagree.
With respect to the first factor in the balancing test, evidence of a separate sexual offense
against a child admitted under Article 38.37 is probative of a defendant’s character or propensity
to commit sexual assaults on children. See Bradshaw, 466 S.W.3d at 883. This evidence was also
probative of Smith’s credibility, which was an issue at trial. 3 The trial court found the extraneous
offense was “particularly admissible” because the manner and means by which the offense was
3
During cross-examination, Reedy’s attorney pointed out discrepancies between Smith’s testimony at trial and his
Children’s Advocacy Center interview and established that the incident may have lasted ten minutes. In closing
argument, Reedy’s counsel accused Smith of lying, emphasized the lack of any security footage, discussed the
discrepancies between Smith’s prior version of events and the version he told at trial, and noted that neither Smith’s
mother or aunt, who were both in the store during the incident, heard Smith call for help. On appeal, Reedy’s counsel
suggests that consent was at issue.
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committed—penetration of the defendant’s mouth with the victim’s sexual organ—was the same
manner and means by which Smith testified that the offense was committed by Reedy. We
conclude that this factor weighed strongly in favor of admission.
As to the second factor, Reedy essentially argues that this case is a swearing match “with
consent at issue.” By adopting Article 38.37, Section 2, the Legislature recognized that, in child
sex offenses, “there is typically very little evidence to assist prosecutors with proving their cases.”
Id. at 884 (quoting Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S.
(2013)). Because there was no DNA evidence, surveillance footage, or third-party eyewitness to
the assault, the State had a considerable need for the evidence. “Rule 403 ‘should be used sparingly
to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the
defendant or complainant in such ‘he said, she said’ cases [involving sexual assault].’” Id. at 883–
84 (quoting Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009)). Accordingly, the
second factor also weighed in favor of admission.
With respect to the third factor, we recognize that the inherently inflammatory and
prejudicial nature of evidence of extraneous sexual offenses against children does tend to suggest
a verdict on an improper basis. Newton v. State, 301 S.W.3d 315, 320 (Tex. App.––Waco 2009,
pet. ref’d). Thus, the third factor weighed against admission.
As to the fourth factor, the ultimate issue in this case was whether Reedy committed the
sexual assault against Smith as the State alleged. The trial court mitigated the tendency of the
extraneous-offense evidence to confuse or distract the jury from the main issues at trial by
instructing the jury that it could only consider the extraneous offense for the limited purpose of
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“show[ing] the defendant’s motive, opportunity, intent, preparation, plan, knowledge or absence
of mistake or lack of accident” if it first found beyond a reasonable doubt that Reedy committed
the extraneous offense. Notwithstanding Article 38.37, the trial court further instructed the jury
that it could not consider the evidence “to prove that the defendant is a bad person and for this
reason was likely to commit the charged offense.” The charge clarified, “In other words, you
should consider this evidence only for the specific, limited purpose I have described.” We presume
that the jury followed the trial court’s instructions. See Resendiz v. State, 112 S.W.3d 541, 546
(Tex. Crim. App. 2003). We find the fourth factor weighed in favor of admission.
The fifth factor refers to evidence such as highly technical or scientific evidence that might
mislead the jury because it is not equipped to weigh the probative force of the evidence.
Gigliobianco, 210 S.W.3d at 641. Here, the evidence in question was not scientific or technical
and pertained to matters that could easily be understood by a jury. We find the fifth factor weighed
in favor of admission.
As to the last factor, the presentation of the extraneous-offense evidence did not consume
an inordinate amount of time. Introduction of the prior offense through the testimony of a law
enforcement officer comprised a total of 5 out of over 300 transcribed pages, and cross-
examination regarding the prior offense comprised less than one page. On this record, we find that
the last factor favored admission.
Accordingly, we find that the trial court, after balancing the Rule 403 factors, could have
reasonably concluded that the probative value of the extraneous offense was not substantially
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outweighed by the danger of unfair prejudice and the other factors in the rule. Consequently, we
find that the trial court did not abuse its discretion and overrule Reedy’s sole issue on appeal.
V. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: November 21, 2018
Date Decided: December 7, 2018
Do Not Publish
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