Leoncio Espinoza, Jr. v. the State of Texas ( 2022 )

Opinion filed August 31, 2022
In The
Eleventh Court of Appeals
__________
No. 11-19-00232-CR
__________
LEONCIO ESPINOZA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-18-1422-CR
MEMORANDUM OPINION
Leoncio Espinoza, Jr. was charged by eleven indictments with sexual assault
of a child. The indictments alleged the same victim, SR, Appellant’s stepdaughter.
Each of the indictments was filed in a separate case in the trial court. However, the
trial court subsequently entered an order that consolidated the eleven separate cases
“for the purposes of trial.” (Emphasis in original).
The case proceeded to a jury trial on eleven “counts” of sexual assault of a
child. 1 The jury convicted Appellant on nine of the eleven charges and acquitted
him on the two remaining charges (Charge Nos. Three and Four, trial court cause
nos. A-18-1424-CR and A-18-1426-CR). The jury assessed a sentence of
confinement for a term of twenty years in the Institutional Division of the Texas
Department of Criminal Justice for each conviction.
The State filed a request to cumulate sentences under Section 3.03 of the Penal
Code. See TEX. PENAL CODE ANN. § 3.03 (West Supp. 2021). The trial court granted
the State’s request to cumulate sentences. The trial court entered nine judgments of
conviction, eight of which provided that the respective sentence was to run
consecutively to one of Appellant’s other sentences. The trial court also entered two
judgments of acquittal. Each of the eleven judgments bears a different trial court
cause number. In six issues, Appellant challenges his convictions and sentences.
We affirm.
Background Facts
The indictments charged Appellant with the following conduct:
Charge One on or about November 12, 2017, penile penetration
of SR’s sexual organ (Trial Court Cause No. A-18-
1422-CR)
Charge Two on or about December 1, 2017, penile penetration of
SR’s sexual organ (Trial Court Cause No. A-18-
1430-CR)
Charge Three on or about January 1, 2018, penile penetration of
SR’s mouth (Trial Court Cause No. A-18-1424-CR)
1
The trial court referred to the individual charges as “counts” at trial. As recently noted by the
Texas Court of Criminal Appeals, “a ‘count’ is the statutory method of alleging a separate offense in an
indictment.” Jefferson v. State, No. PD-0677-21, 2022 WL 2961846, at *3 (Tex. Crim. App. July 27, 2022)
(emphasis added) (citing Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007)). Accordingly,
we will use the term “charge” to refer to each offense labeled as a “count” in the trial court’s charge to the
jury.
2
Charge Four on or about February 1, 2018, penile penetration of
SR’s mouth (Trial Court Cause No. A-18-1426-CR)
Charge Five on or about February 1, 2018, penile penetration of
SR’s anus (Trial Court Cause No. A-18-1427-CR)
Charge Six on or about March 1, 2018, penile penetration of
SR’s sexual organ (Trial Court Cause No. A-18-
1429-CR)
Charge Seven on or about March 1, 2018, penile penetration of
SR’s anus (Trial Court Cause No. A-18-1431-CR)
Charge Eight on or about May 1, 2018, penile penetration of SR’s
anus (Trial Court Cause No. A-18-1423-CR)
Charge Nine on or about May 1, 2018, penile penetration of SR’s
sexual organ (Trial Court Cause No. A-18-1425-
CR)
Charge Ten on or about May 16, 2018, penile penetration of
SR’s anus (Trial Court Cause No. A-18-1428-CR)
Charge Eleven on or about May 16, 2018, penile penetration of
SR’s sexual organ (Trial Court Cause No. A-18-
1432-CR)
SR was sixteen years of age at the time of trial. She grew up in the area of
Rio Hondo and San Benito. When she was fourteen, SR moved to Odessa with her
family, including Appellant, her stepfather. SR testified that Appellant met her
mother when SR was one year old and that Appellant and SR’s mother have been
together since then.
SR testified that Appellant began sexually abusing her when she was five
years old and lived in Rio Hondo. The first episode that she recounted occurred
when Appellant picked her up from school and took her to a hill where he started to
3
touch her chest and private areas over her clothes. SR testified about another
incident, which occurred when she was six, in which Appellant placed his penis
inside her mouth while her mother was taking a shower. SR testified that Appellant
sexually abused her at least twice a week when she was younger. She testified that
when she was around nine, Appellant began trying to have intercourse with her.
SR further testified that she found out that Appellant was her stepfather when
she was eleven, at which time he told her that it was okay for him to have sex with
her because he was not her biological father. SR also testified that she was scared
to tell anyone of the abuse because Appellant threatened SR and told her that her
mother might get deported or that he would go to jail.
When the family moved to Odessa, SR thought the abuse was going to stop.
But when she told Appellant that she wanted to change schools, Appellant told her
that she would have to have intercourse with him. Appellant subsequently picked
her up from school one day and drove her to the parking lot of a fitness gym in
Odessa. There, he covered the windows of his pickup and told SR to take off her
clothes. SR testified that, when she refused, Appellant began taking her clothes off.
SR testified that Appellant then had intercourse with her to an extent that he had not
previously done. This is the conduct upon which Charge One was based. She
testified that Appellant then inserted his penis in her anus. Afterwards, Appellant
took SR to a Burger King so that she could clean up in the restroom.
The next event that SR described occurred at the family’s trailer. SR
accompanied her mother to a neighborhood bible study. SR’s mother sent SR home
to their trailer with a plate of food for Appellant. SR testified that Appellant told her
to stay outside of the trailer and to take her pants off. He then took her pants off and
placed his penis inside of her vagina and anus. This is the conduct upon which
Charge Two was based.
4
The next occasion that SR testified about occurred when Appellant took SR
out of school and then took her to the Westerner Motel in Odessa. She testified that
this occurred in the second week of January 2018. Appellant told SR to duck down
in the pickup as he rented the room. Appellant then drove his pickup to the room
that he rented. After he went inside the room, Appellant would signal for SR to run
into the room. SR testified that Appellant took her to the Westerner Motel on seven
occasions and that during each time at the hotel, he would penetrate her vagina, anus,
and mouth with his penis. Charges Five through Eleven were based on conduct that
occurred at the Westerner Motel.
The owner and operator of the hotel identified Appellant as a person that had
rented rooms at his hotel. Detective Javier Gonzales of the Odessa Police
Department testified that he obtained recordings taken in May 2018 from the video
surveillance system at the hotel. He obtained recordings from May 11, 2018, and
May 16, 2018, that depicted Appellant renting a room at the motel for a short period
of time. 2 Detective Gonzales also identified Appellant’s pickup from the recordings
based upon a distinctive red mark on the hood of Appellant’s pickup. Detective
Gonzales testified that an unidentified person accompanied Appellant both times
into the room that he rented at the motel.
SR testified that Appellant communicated with her through Facebook
Messenger and that he would either delete the messages from her phone or would
instruct her to delete the messages. SR sometimes had her boyfriend keep
screenshots of the messages for her. One text message from Appellant was admitted
into evidence wherein he told SR that he had been “trying to grab [her] [slang words
for buttocks and breasts].” SR also testified that Appellant requested that she send
2
Detective Gonzales testified that he was not able to obtain earlier recordings because of the
surveillance system’s storage capacity.
5
him photographs of herself in various states of undress. She estimated that she took
100 photographs of herself that she sent to Appellant via Facebook Messenger.
SR testified that Appellant started asking for the photographs when she was
fifteen and that he would tell her how she should pose for the photographs. The
State offered approximately fifty photographs into evidence depicting SR without
clothing. These photographs were recovered from Appellant’s phone. SR identified
herself as the female depicted in the photographs. Detective Gonzales noted that SR
had suffered an injury to one of her breasts that confirmed her identity in some of
the photographs that did not show her face. One photograph depicted Appellant
naked with a naked female. SR testified that she is the female in this photograph
and that it was from a video of them that Appellant took at the motel.
Appellant’s prosecution came about as a result of a time in May 2018 when
SR’s boyfriend was looking at items on SR’s phone. The boyfriend came across a
naked photo of SR on her phone. When he confronted SR about the photo, she told
him that Appellant had been sexually assaulting her. SR’s boyfriend reported the
abuse to his mother, and she reported it to the police.
Lisa Montoya performed a sexual assault examination on SR on May 23,
2018. She observed a small, healed scar on SR’s vagina and some healed scars in
her anus. Montoya testified that the anal scars were unusual and that they were
consistent with SR’s reported abuse.
Appellant testified during the guilt/innocence phase of trial. He testified that
he never molested SR or touched her in an inappropriate manner. Appellant also
testified that he has never seen SR’s body. He denied taking the explicit photographs
of SR, and he testified that he had never seen them despite the fact that they were
recovered from his phone. With respect to the photograph depicting himself naked
with a naked female, Appellant testified that the female in the photograph was his
6
wife. 3 Appellant testified that he could not have written the text message that was
admitted into evidence because he does not know how to text in English. Appellant
also denied ever being at the Westerner Motel in Odessa, and he stated that the
pickup on the surveillance videos was not his.
Analysis
We note at the outset that this case presents a docketing dilemma. The trial
court entered nine judgments of conviction bearing nine separate cause numbers.
However, the nine separately numbered judgments are contained in a single clerk’s
record that only bears trial court cause no. A-18-1422-CR. The “filed” stamps on
eight of these judgments do not reflect that they were filed in trial court cause no. A-
18-1422-CR. Furthermore, we have a single reporter’s record that only bears trial
court cause no. A-18-1422-CR.
It appears that Appellant only filed a single notice of appeal, which was filed
in trial court cause no. A-18-1422-CR, yet he appeals all nine convictions that bear
separate cause numbers. In the interest of justice, we will treat Appellant’s notice
of appeal filed in trial court cause no. A-18-1422-CR to extend to trial court cause
nos. A-18-1423-CR, A-18-1425-CR, A-18-1427-CR, A-18-1428-CR, A-18-1429-
CR, A-18-1430-CR, A-18-1431-CR, and A-18-1432-CR. See Gonzales v. State, 421
S.W.3d 674, 674–75 (Tex. Crim. App. 2014). In this regard, Appellant obviously
sought to appeal all nine convictions, and at the time that the notice of appeal was
filed, it appears the causes remained consolidated into cause no. A-18-1422-CR
because the judgments of convictions had not been entered in the other trial court
cause numbers.4
3
Appellant called his wife as a defense witness before his testimony. Appellant’s trial counsel did
not ask Appellant’s wife if she was the female depicted in the photo.
Appellant’s notice of appeal was filed approximately one hour before the judgments of convictions
4
were entered in trial court cause numbers A-18-1423-CR, A-18-1425-CR, A-18-1427-CR, A-18-1428-CR,
A-18-1429-CR, A-18-1430-CR, A-18-1431-CR, and A-18-1432-CR.
7
The better practice would have been for Appellant to have filed a separate
notice of appeal in each trial court cause number. Alternatively, the trial court clerk
should have notified this court when Appellant filed a single notice of appeal that
there were judgments of conviction bearing multiple trial court cause numbers. This
step would have permitted this court to notify Appellant that he needed to file notices
of appeal in each cause number. It would have also accommodated the filing of
separate appeals for each trial court cause number at the outset, which would have
been the proper course of action.
Sufficiency of the Evidence
In his sixth issue, Appellant challenges the sufficiency of the evidence
supporting his convictions. He contends that the jury “was presented with nothing
more than mere speculations and factually unsupported inferences and
presumptions.” He contends that the motel owner’s in-court identification of
Appellant was suspect and that the State failed to corroborate many of the details
reported by SR with school records of times and dates that Appellant withdrew her
from school. He also contends that the police investigation was incomplete and
inconclusive.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
8
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
point directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Because evidence must be considered cumulatively, appellate courts are not
permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the
evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead,
appellate courts must consider the cumulative force of all the evidence. Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
A person commits the offense of sexual assault if he intentionally or
knowingly causes the penetration of the anus or female sexual organ of a child by
any means. TEX. PENAL CODE ANN. § 22.011(a)(2)(A). A “child” is statutorily
defined as “a person younger than 17 years of age.” Id. § 22.011(c)(1). The
uncorroborated testimony of a child victim is alone sufficient to support a conviction
9
for sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2021);
Chapman v. State, 349 S.W.3d 241, 245 (Tex. App.—Eastland 2011, pet. ref’d).
When conducting an evidentiary review, “[w]e do not review the sufficiency
of the police investigation; we review the evidence presented at trial.” Quinonez v.
State, No. 06-07-00016-CR, 2007 WL 2608833, at *4 (Tex. App.—Texarkana
Sept. 12, 2007, pet. ref’d) (mem. op., not designated for publication). “[W]e do not
consider what evidence the State could have or even should have presented.” Id.Furthermore, we do not speculate about the evidence that the State did not present.
McLemore v. State, No. 05-15-00160-CR, 2015 WL 9591398, at *3 (Tex. App.—
Dallas Dec. 31, 2015, no pet.) (mem. op., not designated for publication) (citing
Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012)).
With respect to Appellant’s contention that his convictions were based on
speculation, a jury is prohibited from drawing conclusions based on speculation.
Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (citing Hooper, 214
S.W.3d at 15). “Speculation is mere theorizing or guessing about the possible
meaning of the facts and evidence presented.” Id. (quoting Hooper, 214 S.W.3d at
16). Conversely, “an inference is a conclusion reached by considering other facts
and deducing a logical consequence from them.” Id. “Juries are permitted to draw
multiple reasonable inferences from the evidence as long as each inference is
supported by the evidence presented at trial[.]” Id. (citing Hooper, 214 S.W.3d at
15).
SR, the victim of the offense, testified that Appellant sexually assaulted her
on numerous occasions. This evidence did not require the jury to speculate on its
meaning. Furthermore, her testimony alone was sufficient to support Appellant’s
convictions—without corroboration. See CRIM. PROC. art. 38.07. However, there
was corroboration of her testimony in the form of naked photos of herself on
Appellant’s phone, including one photo depicting both her and Appellant without
10
clothing. Furthermore, there was medical evidence in the form of anal scarring as
well as surveillance videos from the hotel for the jury to consider. The jury’s
decision to believe SR’s testimony and disbelieve Appellant’s denials constitutes a
credibility determination to which we defer to the jury to resolve. See Brooks, 323
S.W.3d at 899. Viewing the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational trier of fact could have found the essential elements of
the offenses for which Appellant was convicted. See Jackson, 443 U.S. at 319. We
overrule Appellant’s sixth issue.
Oath to Jury Venire
In his first issue, Appellant contends that the trial court erred when it failed to
administer the statutorily required oath to the jury venire before the beginning of
voir dire. See TEX. CODE CRIM. PROC. ANN. art. 35.02 (West 2006). The Texas
Code of Criminal Procedure requires the trial court to administer an oath to the jury
venire panel before the beginning of voir dire. 5 CRIM. PROC. art. 35.02. This
provision ensures that any statements made by prospective jurors are made under
oath. Duffy v. State, 567 S.W.2d 197, 200 (Tex. Crim. App. 1978).
Here, the record does not reflect that the trial court administered the required
oath to the jury venire before the start of the voir dire examination. The record also
does not reflect any objections to the lack of the oath or to the seating of any selected
juror on that basis. See id. Rule 44.2(c)(2) of the Texas Rules of Appellate Procedure
provides as follows: “Presumptions. Unless the following matters were disputed in
the trial court, or unless the record affirmatively shows the contrary, the court of
appeals must presume: . . . (2) that the jury was properly impaneled and sworn[.]”
TEX. R. APP. P. 44.2(c)(2). Thus, we must presume on appeal that the jury was
5
The oath provides as follows: “You, and each of you, solemnly swear that you will make true
answers to such questions as may be propounded to you by the court, or under its directions, touching your
service and qualifications as a juror, so help you God.” CRIM PROC. art. 35.02.
11
properly empaneled and sworn unless the matter was disputed in the trial court or
the record affirmatively shows that the trial court failed to complete the proper
procedure. Hollek v. State, No. 13-16-00402-CR, 2017 WL 1380525, at *1 (Tex.
App.—Corpus Christi–Edinburg, Feb. 2, 2017, no pet.) (mem. op., not designated
for publication). When the record is silent on the matter, it is not enough to amount
to an “affirmative” showing. Id. (citing Osteen v. State, 642 S.W.2d 169, 171 (Tex.
Crim. App. 1982); Duffy, 567 S.W.2d at 201).
Here, Appellant has not rebutted the statutory presumption that the jury was
properly empaneled and sworn. As noted previously, Appellant’s trial counsel made
no objection to the proceeding or to the seating of the jurors at any point. Appellant
argues that, because the court reporter included transcript notations that individual
witnesses were sworn and that the selected jury panel was sworn, but included no
such notation as to the venire panel at the beginning of voir dire, there is an
affirmative showing that the venire panel was not sworn. We disagree—this merely
demonstrates that the record is silent, not that there is affirmative evidence that the
venire panel was not sworn. See Duffy, 567 S.W.2d at 201; Hollek, 2017 WL
1380525, at *2; Stiggers v. State, No. 05-97-01373-CR, 2000 WL 150851, at *2
(Tex. App.—Dallas Feb. 14, 2000, no pet.) (mem. op., not designated for
publication). Appellant has not provided this court with any affirmative evidence to
overcome the presumption that the seated jury was properly empaneled and sworn
in this case. Rule 44.2(c)(2), therefore, mandates that we presume on appeal that the
jury was properly empaneled. We overrule Appellant’s first issue.
Referring to the Complaining Witness as “Victim”
In his second issue, Appellant asserts that the trial court erred when it failed
to enforce its own order in limine to preclude the State and its witnesses from
referring to SR as “the victim.” During his cross-examination of Detective
Gonzales, Appellant’s trial counsel objected on the basis that Detective Gonzales
12
had “repeatedly” violated the trial court’s order granting Appellant’s motion in
limine to not refer to SR as “the victim.” In that regard, Detective Gonzales had
referred to SR as “the victim” over thirty times prior to Appellant’s objection.
Appellant’s trial objection was solely based on the violation of the limine order. On
appeal, Appellant contends that the reference to SR as “the victim” was “highly
prejudicial.”
A ruling on a motion in limine does not preserve error for appellate review.
Thierry v. State, 288 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(citing Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d)).
A ruling on a motion in limine is not a ruling on the merits but, rather, is one which
regulates the administration of a trial. Id. By its nature, a ruling on a motion in
limine is subject to reconsideration by the trial court throughout the course of trial.
Id. Accordingly, the violation of a ruling on a motion in limine may entitle a party
to relief, but any remedy for such violation lies with the trial court, which may hold
the litigant or attorney in contempt or use other remedies or sanctions. Id. (citing
Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972)).
Appellant did not preserve the complaint he is asserting for appellate review
in two respects. First, Appellant’s trial objection was solely based on the violation
of a limine order. See Harnett, 38 S.W.3d at 655 (holding that where appellant
objected to violation of order granting motion in limine, not to admission of evidence
itself, no error is preserved). Additionally, to preserve error for appellate review, an
appellant is ordinarily required to make a timely request, objection, or motion to the
trial court. See TEX. R. APP. P. 33.1(a)(1). An objection is timely if raised as soon
as the ground for the objection becomes apparent; otherwise, the matter is forfeited.
Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994); see Yazdchi v. State,
428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (“[A] party must make the complaint
at the earliest possible opportunity.”). As we have noted, Detective Gonzales
13
referred to SR as “the victim” over thirty times before Appellant’s trial counsel
objected. Because the objection was not made at the earliest possible opportunity,
the issue complained of on appeal was forfeited.
Moreover, Appellant has not cited, and we have not found, any authority that
precludes the State or its witnesses from referring to the complainant in a sexual
assault case as a victim. Because of the lack of authority to the contrary, the trial
court did not abuse its discretion by reconsidering its prior ruling on Appellant’s
motion in limine. We overrule Appellant’s second issue.
Evidence of Extraneous Offenses Committed by Appellant against SR
In his third issue, Appellant contends that the trial court erred by permitting
evidence of extraneous offenses committed by Appellant against SR. The State
provided Appellant notice under Article 38.37 of its intent to introduce extraneous
offense evidence during the guilt/innocence phase. See CRIM. PROC. art. 38.37. The
notice listed several sexual acts allegedly committed by Appellant against SR, some
of which occurred in Ector County and others which occurred in Cameron County.
Prior to trial, the trial court heard the parties’ motions in limine. The trial court ruled
that evidence of alleged sexual acts between Appellant and SR would be admissible
at trial. When the topic of conduct occurring in Cameron County came up at trial,
Appellant’s trial counsel objected to the admission of evidence of extraneous
offenses on the basis that they were “prejudicial, not probative, and outside the scope
of this case.” The trial court overruled the objection.
Whether to admit evidence at trial is a preliminary question to be decided by
the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex.
Crim. App. 2012). We review a trial court’s ruling on the admissibility of evidence
for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.
2007). We will uphold the trial court’s decision unless it lies outside the zone of
14
reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991)).
Under Article 38.37, section 1(b):
Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the
defendant and the child.
Appellant asserts on appeal that the admission of the extraneous offense evidence
violated Rule 404(b) because it constituted character conformity evidence.
However, Appellant’s trial counsel did not object under Rule 404(b) at trial.
Furthermore, by its express terms, Article 38.37, section 1, supersedes the
application of Rule 404(b) and makes extraneous offense evidence admissible that
Rule 404(b) would preclude. See Lara v. State, 513 S.W.3d 135, 141 (Tex. App.—
Houston [14th Dist.] 2016, no pet.); Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—
Austin 2001, pet. ref’d).
When evidence of a defendant’s extraneous acts is relevant under
Article 38.37, the trial court is still required to conduct a Rule 403 balancing test
upon proper objection or request. Belcher v. State, 474 S.W.3d 840, 847–48 (Tex.
App.—Tyler 2015, no pet.). Under Rule 403, a trial court may exclude relevant
evidence if its probative value is substantially outweighed by the danger of “unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” TEX. R. EVID. 403; see Young v. State, 283 S.W.3d
854, 874 (Tex. Crim. App. 2009). “Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence will be more probative
than prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002);
15
Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d).
Evidence is unfairly prejudicial when it has the undue tendency to suggest an
improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex.
Crim. App. 2000); Render, 347 S.W.3d at 921.
In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery, 810 S.W.2d at 392). When conducting a Rule 403 analysis, the trial
court must balance the following factors:
(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 [a] 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). These
factors may well blend together in practice. Id. Rule 403, however, does not require
that the balancing test be performed on the record. Greene v. State, 287 S.W.3d 277,
284 (Tex. App.—Eastland 2009, pet. ref’d). In overruling a Rule 403 objection, the
trial court is assumed to have applied a Rule 403 balancing test and determined that
the evidence was admissible. Id.Appellant asserted at trial that the extraneous acts that Appellant was alleged
to have committed against SR had no probative value and were prejudicial. The first
Gigliobianco factor focuses on the inherent probative force of the proffered
evidence. Evidence about extraneous offenses committed by the defendant against
the victim are relevant to show the state of mind of the defendant and the victim and
16
the previous and subsequent relationship between them—permissible areas of
inquiry under Article 38.37, section 1(b). See Hinojosa v. State, 995 S.W.2d 955,
957 (Tex. App.—Houston [14th Dist.] 1999, no pet.). As the Court of Criminal
Appeals explained in Gigliobianco, “probative value” is more than just relevance.
210 S.W.3d at 641. It refers to how strongly an item of 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.” Id. As noted in
Distefano v. State, “[A]rticle 38.37 expands a trial court’s analysis under Rule 403
of the probative value of qualifying extraneous offense evidence by allowing the
trial court to consider character conformity evidence.” 532 S.W.3d 25, 37 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d).
With respect to the State’s need for the evidence under the second
Gigliobianco factor, as is often the case with sexual offenses against children, the
State’s case pitted SR’s version of the events against Appellant’s denials. One issue
that Appellant attempted to develop was that SR was unhappy about the move to
Odessa. As such, evidence that sexual abuse occurred prior to the move could have
served to rebut the suggestion that SR’s reports were contrived.
The remaining Gigliobianco factors focus on the potential negative effects of
the proffered evidence. The third factor focuses on the tendency of the evidence to
suggest a decision on an improper basis. Extraneous offenses that involve the sexual
assault of children are inherently inflammatory and prejudicial. Montgomery, 810
S.W.2d at 397; Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet.
ref’d). We note that the trial court included a limiting instruction in its charge
regarding the jury’s consideration of extraneous offense evidence. We presume the
jury obeyed this instruction. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim.
App. 2003) (appellate courts presume that the jury follows instructions). Thus, the
trial court took measures to mitigate the potential improper influence of extraneous
17
offense evidence. See Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin
2011, pet. ref’d); Newton, 301 S.W.3d at 320.
The fourth factor focuses on the potential of the proffered evidence to confuse
or distract the jury from the main issues. This factor weighs in favor of admission
because the evidence was probative of the relationship between Appellant and SR,
a topic that is relevant under Article 38.37. The fifth factor focuses on the potential
of the proffered evidence to mislead the jury. We have previously noted that the
trial court gave a limiting instruction. Finally, the sixth factor focuses on the time
needed to present the proffered evidence and whether it is cumulative of other
evidence. SR’s testimony concerning the sexual abuse that occurred in Cameron
County only spanned ten pages in the reporter’s record, and it was not cumulative of
other evidence.
In summary, the extraneous offense evidence in this case was prejudicial.
However, Rule 403 contemplates excluding evidence only when there is a “clear
disparity” between the offered evidence’s prejudice and its probative value.
Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). Considering the standard of
review, the presumption favoring admissibility of relevant evidence, and the
Gigliobianco factors, we cannot conclude that the trial court abused its discretion in
overruling Appellant’s Rule 403 objection. See Hammer, 296 S.W.3d at 568(“Because Rule 403 permits the exclusion of admittedly probative evidence, it is a
remedy that should be used sparingly, especially in ‘he said, she said’ sexual-
molestation cases that must be resolved solely on the basis of the testimony of the
complainant and the defendant.” (footnote omitted)). We overrule Appellant’s third
issue.
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Admission of Photographs and Denial of Request to Conduct Voir Dire
Examination of SR
In his fourth issue, Appellant asserts that the trial court erred by admitting
photographs into evidence without permitting his trial counsel to conduct a voir dire
examination of SR, the sponsoring witness. Specifically, Appellant asserts that his
trial counsel should have been permitted to question SR on voir dire examination
when photographs were admitted during her testimony. He also contends that SR
failed to properly authenticate the photographs and that the trial court erred by
overruling his trial counsel’s objections on this ground.
Evidence is properly authenticated if the proponent produces evidence
“sufficient to support a finding that the item is what the proponent claims it is.”
TEX. R. EVID. 901(a). For instance, a witness with knowledge of the item can testify
that it is “what it is claimed to be.” TEX. R. EVID. 901(b)(1). When a photograph is
authenticated by a witness with knowledge, the admissibility of the photograph is
conditioned on the witness’s identification of the exhibit as a fair and accurate
depiction of the subject that the photograph purports to portray. Kelley v. State, 22
S.W.3d 642, 644 (Tex. App.—Waco 2000, pet. ref’d); Davis v. State, 687 S.W.2d
78, 81 (Tex. App.—Dallas 1985, pet. ref’d). There is no requirement the individual
authenticating the photograph have been the photographer or have even been present
when the photograph was taken. Kelley, 22 S.W.3d at 644; Davis, 687 S.W.2d at
81.
The photographs that Appellant’s trial counsel objected to fall into multiple
categories. First, the State offered an aerial photograph of the gym where one of the
sexual assaults occurred. The trial court denied the request by Appellant’s trial
counsel to take SR on voir dire when this photograph was offered. The next category
consisted of photographs of the Westerner Motel. The next category was a
photograph of the text message that we previously discussed. Once again, the trial
19
court denied the request by Appellant’s trial counsel to question SR on voir dire
about the photograph. The final category of photographs are those depicting SR
without clothing. Appellant’s trial counsel objected to these photographs of SR on
the basis that SR could not authenticate that they came from Appellant’s phone and
that she did not prepare the computer disk on which the photographs were located.
With respect to the two times that Appellant’s trial counsel requested to take
SR on voir dire, we find the following language from the Austin Court of Appeals
to be instructive:
When there is some reason to doubt whether the witness possesses the
requisite personal knowledge, it may be appropriate for the court to
afford the opposing party a chance to take the witness on voir dire. But
it is neither reasonable nor practical to permit such voir dire when there
is no apparent reason for doubting that the witness is testifying from
personal knowledge.
Shugars v. State, 814 S.W.2d 897, 898 (Tex. App.—Austin 1991, no writ). We agree
with this principle—it is neither practical nor necessary to permit a voir dire
examination of a witness every time it is requested. Here, on the first occasion when
Appellant’s trial counsel requested to question SR on voir dire, she had previously
testified that she had been to the location and that the photograph depicted that
location. The second occasion involved the photograph of the text message. SR had
already testified that the photograph depicted a text message that Appellant sent to
her. Accordingly, the trial court did not abuse its discretion by denying the requests
by Appellant’s trial counsel to conduct a voir dire examination of SR.
Appellant also asserts that the photograph of the text message was not
relevant. Under Rule 402 of the Texas Rules of Evidence, “[i]rrelevant evidence is
not admissible.” TEX. R. EVID. 402. “Evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.” TEX. R. EVID 401. As was the
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case with extraneous offense evidence, the text message was relevant to show the
relationship between Appellant and SR, and it corroborated her reports of sexual
abuse. Accordingly, the trial court did not abuse its direction by overruling
Appellant’s relevancy objection.
Appellant’s trial counsel objected to the photographs of SR recovered from
Appellant’s phone because they lacked dates to authenticate them. However, SR
testified that the photographs depicted her and that she took many of them. Based
upon this authentication evidence, the trial court did not abuse its discretion in
overruling Appellant’s objection to the photographs of SR. We overrule Appellant’s
fourth issue.
Cumulation of Sentences
In his fifth issue, Appellant contends that the trial court erred by granting the
State’s request to cumulate Appellant’s sentences without giving Appellant the
opportunity to present argument on the motion. After the jury returned its verdicts
on punishment, the State presented its request to cumulate sentences. The trial court
granted the request without asking for argument from Appellant. Appellant did not
object at that point on not being able to present argument. However, when the trial
court later asked if there was any legal reason why sentence should not be
pronounced, Appellant’s trial counsel asked to approach the bench and then objected
“to the constitutional parameters of this jury not being able to decide whether or not
it was cumulative when they made their decision.” On appeal, Appellant cites the
dissenting opinion in Barrow v. State for the proposition that the relevant statute
does not explicitly provide that the trial court is to decide whether to cumulate
sentences. 207 S.W.3d 377, 382 (Tex. Crim. App. 2006) (Meyers, J., dissenting
opinion) (discussing Penal Code Section 3.03(b)).
Under Article 42.08 of the Texas Code of Criminal Procedure, the trial court
has the discretion to order the sentences for two or more convictions to run
21
consecutively. CRIM. PROC. art. 42.08(a) (West 2018). The majority opinion in
Barrow noted that the legislature has assigned the decision to cumulate sentences to
the trial court rather than the jury. 207 S.W.3d at 380. Accordingly, Appellant is
incorrect in his contention that the jury should have had some role in deciding
whether his sentences should be cumulated. See id.Appellant was convicted on nine charges under Section 22.011(a)(2)(A) of
the Texas Penal Code. See PENAL § 22.011(a)(2)(A). Section 3.03(b) specifically
allows consecutive sentencing when, as in this case, an accused is found guilty of
more than one statutorily specified sexual offense, including Section 22.011, arising
out of the same criminal episode that is committed against a victim younger than
seventeen years of age. See id. § 3.03(b)(2)(A). We review a trial court’s decision
to “stack” or to run sentences consecutively for an abuse of discretion. See CRIM.
PROC. art. 42.08(a); Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.—Houston [1st
Dist.] 2006), aff’d, 250 S.W.3d 107, 115 (Tex. Crim. App. 2008); Nicholas v. State,
56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). An abuse
of discretion will generally be found only if (1) the trial court imposes consecutive
sentences when the law requires concurrent sentences, (2) the trial court imposes
concurrent sentences when the law requires consecutive ones, or (3) the trial court
otherwise fails to observe the statutory requirements pertaining to sentencing.
Nicholas, 56 S.W.3d at 765.
The court in Barrow held that “the decision whether to cumulate does not turn
on any discrete or particular findings of fact on the judge’s part.” 207 S.W.3d at
380. “Instead, cumulating is purely a normative decision.” Id. As a normative
process, the decision to cumulate is not intrinsically fact bound, but rather it is a
question of policy. See Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App.
2000) (quoting Miller–El v. State, 782 S.W.2d 892, 895–96 (Tex. Crim. App. 1990)).
22
Accordingly, the trial court was not required to make a finding that showed a need
to stack Appellant’s sentences.
The trial court did not abuse its discretion by granting the State’s motion and
determining to cumulate Appellant’s sentences without hearing arguments from
Appellant. As we have noted, the trial court is not required to make any particular
findings of fact before cumulating sentences under Section 3.03(b)(2)(A).
Additionally, and before the cumulation of sentences was pronounced by the trial
court, Appellant’s trial counsel did object and argued that the jury should have a role
in the decision to cumulate sentences—a contention rejected in Barrow. See 207
S.W.3d at 380. We overrule Appellant’s fifth issue.
This Court’s Ruling
We affirm the judgments of the trial court entered in the following trial court
cause numbers: A-18-1422-CR, A-18-1423-CR, A-18-1425-CR, A-18-1427-CR,
A-18-1428-CR, A-18-1429-CR, A-18-1430-CR, A-18-1431-CR, and A-18-1432-
CR.
JOHN M. BAILEY
CHIEF JUSTICE
August 31, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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