Joshua Babin v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00247-CR
___________________________
JOSHUA BABIN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 3
Tarrant County, Texas
Trial Court No. 1513813D
Before Gabriel, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Joshua Babin appeals from his convictions for four counts of
aggravated sexual assault of a child (Elaine) and for one count of indecency with
Elaine, all occurring on or about July 4, 2017.1 He argues that he was denied the right
to introduce evidence of Elaine’s prior allegations that she had been inappropriately
touched by other children at her daycare and school. He also contends that the
forensic interviewer was erroneously allowed to testify to Elaine’s outcry regarding the
July 4, 2017 sexual abuse because Elaine’s mother was the first adult Elaine had told.
We conclude that Babin did not preserve error regarding Elaine’s prior allegations and
that Babin was not harmed by the admission of the forensic interviewer’s testimony;
thus, Babin is not entitled to appellate relief based on these complaints.
Babin also appeals from his concurrent forty-year and twenty-year sentences
and argues that based on his attorney’s affidavit recounting a post-verdict interview
with three jurors, the jury wrongly considered conduct that it previously had found
Babin not guilty of when assessing his sentence. Because the affidavit regarding the
jury’s deliberative process is not as categorical as Babin argues, we conclude the trial
court did not abuse its discretion by denying Babin’s motion for new trial based on
jury misconduct.
1
To protect the minor victim’s identity, we refer to her and her family members
(other than Babin) by fictitious names. See Tex. R. App. P. 9.8 cmt., 9.10; Tex. App.
(Fort Worth) Loc. R. 7.
2
I. BACKGROUND
A. THE INITIAL OUTCRY
Babin and Angela were married and had three children: Tina and twins Elaine
and Hope. They divorced when the twins were approximately eighteen months old;
Babin was given “extended standard” visitation rights to the three girls.
When Elaine was six and after she had returned with her sisters from an
eleven-day visitation with Babin over the July 4, 2017 holiday, Elaine told Angela that
Babin had been “touching her private parts . . . under her panties.” Elaine then
specified that Babin had taken his penis out of his pants and had “press[ed] it against
her pants or bottom and that hurt really bad.” Elaine told Angela that Babin had also
licked his fingers and touched “her privates” with his fingers. Angela contacted the
Department of Family and Protective Services and also spoke with law enforcement.
Officers referred Elaine for a forensic interview with Jessica Parada.
Elaine told Parada that Babin began sexually abusing her when she was five,
which continued until her outcry to Angela. She told Parada about several acts of
sexual abuse:
She talked about [Babin] grabbing his private part, which [Parada]
clarified, and [Elaine] said that it was used to pee. She talked about her
bottom, which she said was used to poop, and she talked about her front
part which she said it was used to pee. She talks about him putting his
private part . . . in her bottom in the hole. She talks about him putting
his front part in her front part on the line. She talks about him putting
his hand on her private part, talks about him putting his finger in her
private part, and talks about him putting his finger in her bottom.
3
....
. . . She . . . talks about him saying - - she says he said get it.
She talks about other things like it hurting. And [Parada] asked
how come it was hurting, and she says, because he kept pushing. . . .
[B]ecause she said he was holding his private area and pushing it.
Parada stated that Elaine had difficulty differentiating between when each act
occurred—when she was five or when she was six. Elaine told Parada that her sisters
were in the room during the last act of sexual abuse in July 2017 but that they did not
see what happened because she and Babin were “under the covers.”
Angela also took her to a hospital where a sexual-assault nurse examiner, Stacy
Henley, performed a medical exam on Elaine. Elaine told Henley that Babin had
“touched [her] private area” and that he told her to “get it.” Angela stated that when
she had sex with Babin, he said “get it” to her.
Elaine also told Henley that Babin put his finger and “[his] thing where he pees
from” inside her private area. She said that he also put his finger and his sexual organ
inside her anus. Henley saw no injuries or damage to Elaine’s genital area during the
physical exam; however, Henley’s diagnosis was that Elaine had been sexually abused
based on “the history that [Elaine] gave [Henley].”
B. TRIAL
Babin was indicted with four counts of intentional or knowing aggravated
sexual assault, occurring when Elaine was five (on or about April 1, 2017) by:
1. causing his sexual organ to contact Elaine’s sexual organ;
4
2. penetrating Elaine’s sexual organ with his finger;
3. causing his sexual organ to contact Elaine’s anus; and
4. penetrating Elaine’s anus with his finger.
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iv). Babin was indicted with four
counts of intentional or knowing aggravated sexual assault, occurring when Elaine was
six (on or about July 4, 2017) by:
1. causing his sexual organ to contact Elaine’s sexual organ;
2. penetrating Elaine’s sexual organ with his finger;
3. causing his sexual organ to contact Elaine’s anus; and
4. penetrating Elaine’s anus with his finger.
See id. Babin was indicted with two similar counts of indecency with a child, one
occurring on April 1, 2017, and the other on July 4, 2017: Babin “intentionally, with
the intent to arouse or gratify the sexual desire of any person, engage[d] in sexual
contact by touching . . . any part of Elaine’s genitals.” See id. § 21.11(a)(1). Finally,
Babin was indicted with continuous sexual abuse of a child (CSA) based on the acts of
sexual abuse alleged in the aggravated-sexual-assault and indecency counts. See id.
§ 21.02(b), (c)(2), (c)(4).
At trial, Elaine testified that she did not remember any April acts of sexual
abuse and that Babin had abused her only once in July 2017 when she was six. She
testified that while she and Babin were underneath the covers on a bed, Babin had
pulled her underwear down and had touched her “back private part” with his hand
5
and with his sexual organ. He had also penetrated her anus with his sexual organ.
Elaine did not remember if Babin had penetrated her sexual organ with his sexual
organ or if his hand had touched her sexual organ, but she did testify that his sexual
organ had touched her sexual organ. She also specified that when Babin had touched
her anus with his hand, he spit in his hand first. Her two sisters, Hope and Tina, had
been watching a movie in the same room at the time.
Tina, who was eleven in July 2017, testified that she saw Babin asleep in bed
with an awake Elaine “under the covers.” Although Tina could not see Babin’s
hands, she could see the outline of his hands under the covers around Elaine’s hips,
“[o]n the side and the back,” “[r]ight under [Elaine’s] bottom.” Tina, feeling
“[u]neasy” and “suspicious,” got Elaine out of the bed and took her to Tina’s room so
Elaine could sleep on Tina’s floor. Hope also slept on Tina’s floor. Babin later came
into Tina’s room and lay on the floor behind Elaine.
Babin testified and denied ever sexually abusing Elaine, characterizing Elaine as
“seriously confused” and positing that Tina’s “perception is just off.” According to
Babin, he would only “caress” and “cuddle” Elaine when putting her to bed at night.
Babin also testified that during the July 2017 visitation, he caught Elaine and her “very
good friend[],” eight-year-old Carl, “spooning each other in front of [Babin’s] recliner
under a blanket.” When Babin “whipped” the blanket off, he saw that Carl’s hand
was down the front of Elaine’s underwear and that Elaine’s shirt was “up around her
chest area.” Babin grabbed Carl away from Elaine, threw Carl into the recliner, and
6
ordered Elaine to go to her room. Babin then found Carl’s mother, who was in the
kitchen, and screamed at her, forcing her and Carl to leave his home. Tina also
testified to the incident with Carl and his mother and remembered Babin’s anger.
Babin also recounted that Angela had been sending sexually suggestive texts to
him in the days before Elaine’s outcry and had become upset when Babin would not
break up with his girlfriend. Babin believed Angela “blew [the alleged sexual abuse of
Elaine] out of proportion” based on her jealousy. Although Babin “believe[d]
somebody’s been abusing [Elaine],” he testified it was not him.
The jury found Babin not guilty of CSA, the April aggravated sexual assaults,
and the April indecency with a child. The jury found Babin guilty of the July
aggravated sexual assaults and the July indecency with a child. Because Elaine was not
younger than six at the time of the July aggravated-sexual-assault offenses, the jury
found the punishment-enhancement allegation not true. See id. § 22.021(f)(1).
At punishment, the State “reoffer[ed] all of the evidence offered during the
guilt/innocence phase of the trial.” Babin’s father testified to Babin’s past problems
with marijuana and alcohol but stated that Babin was “an incredible father.” The jury
assessed Babin’s sentence at forty years’ confinement for each aggravated sexual
assault and at twenty years’ confinement for indecency. In the resulting judgments,
the trial court ordered the sentences to run concurrently. See id. § 3.03(b)(2)(A).
7
 C. POST-JUDGMENT
After the jury returned the punishment verdicts, Babin’s attorneys, the
prosecutors, and the trial judge met with three of the jurors at the jurors’ request. The
foreman “expressed that he believed the [CSA] charge was likely true, but that the
evidence [‘unfortunately’] was simply not quite strong enough to convict on that
count.” The foreman continued that had Babin “admitted the acts on or about
July 4th, 2017 and accepted responsibility instead of just denying everything, ‘it would
have significantly reduced [the foreman’s] suspicion of [CSA]’ and that [Babin’s]
punishment would have been much lower.” The other two jurors “nodded their
heads in agreement.” One of Babin’s attorneys made notes of the conversation
immediately after it ended and included the information in an affidavit in support of
Babin’s motion for new trial. In the motion, Babin argued that he was entitled to a
new punishment trial based on jury misconduct—considering the acquitted CSA
offense in assessing punishment.
Babin also argued in the motion that he was entitled to a new trial on the July
offenses because he was not allowed to introduce evidence that Elaine previously had
made outcries of sexual abuse three times at her daycare and once at school. This
evidence, Babin contended, would have shown Elaine’s bias or motive to lie.
In an “OFFER OF PROOF” filed the same day as the new-trial motion, Babin
asserted that the following evidence should have been admitted at trial:
8
1. [Elaine] made allegations that 3 separate children touched her
inappropriately at the daycare she attended. This daycare was
owned and operated by her grandmother.
2. [Elaine] was aware that persons accused of touching her
inappropriately would get in trouble for doing so and that her
accusations of such conduct could get them in trouble.
Specifically, [Elaine] informed prosecutors that she notified
school personnel that a boy touched her at school and that boy
got in trouble for his behavior.
3. This evidence would have coincided with the fact that [Babin] had
threatened a friend of [Elaine’s] within a week of her outcry and
was possibly mad or afraid of him[,] presenting a possible motive
to make a false accusation.
Babin stated that because he was denied the right to introduce the evidence in the first
paragraph, it was “impossible” to introduce the evidence in the second paragraph.
Babin asserted that “the sheer number of purported [prior] victimizations” would
have made Elaine’s testimony against Babin “less reliable.”
At the hearing on Babin’s new-trial motion, Babin’s attorney argued that the
foreman “admitted he was contemplating these counts of acquittal during his
[punishment] deliberation.” The prosecutor disputed Babin’s attorney’s interpretation
of the foreman’s remarks, positing an alternate reading of the foreman’s statements:
[The foreman] talked about that he had wanted [Babin] to show more
remorse or admit more about his conduct in guilt/innocence. What he
was referring to, not the other [April] acts [of sexual abuse and CSA],
but that [Babin] blamed - - was blaming everything on the mother. Not
taking anything into account about [Elaine]. Not anything out about
these [April] acts [and CSA] that they found him not guilty of. I mean,
the [foreman] told [the prosecutor that she] didn’t prove that.
9
The other bases for Babin’s new-trial motion and offer of proof were not discussed at
the hearing. The trial court stated that it would rule on the new-trial motion “at a
later date”; however, the motion was deemed denied. See Tex. R. App. P. 21.8(c).
II. PRIOR ALLEGATIONS OF SEXUAL ABUSE
Babin contends that the trial court erred by refusing to allow him “to bring in
evidence pertaining to [Babin’s] claims that [Elaine] was touched inappropriately
multiple times at her daycare” and regarding “another outcry” that the State disclosed
during discovery. The “another outcry” apparently refers to the incident Babin raised
in his post-judgment offer of proof—Elaine told “school personnel” that a boy had
touched her at school and the boy got in trouble. 2 We review the exclusion of
evidence regarding a victim’s prior sexual-abuse accusations under an abuse-of-
discretion standard. See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009);
Martin v. State, 173 S.W.3d 463, 467–68 (Tex. Crim. App. 2005).
During Babin’s testimony, the State cross-examined him about the incident
with Carl and Elaine and questioned why Babin did not seek medical attention for
Elaine after seeing Carl’s hand on Elaine’s sexual organ. Outside the presence of the
jury, Babin’s counsel asserted that the State’s cross-examination had opened the door
to evidence of “additional sexual acts with other little boys” at Elaine’s daycare and
school, Rule 412 notwithstanding. See Tex. R. Evid. 412(a) (prohibiting admission of
2
As the State points out, the record does not include the State’s disclosures or
discovery produced to Babin.
10
evidence of sexual-assault victim’s past sexual behavior). In an offer of proof, Babin
testified to inappropriate touching at Elaine’s daycare:
Q. Were you . . . ever made aware of [Elaine] being inappropriately
touched at some other point in her life?
A. I have been.
....
Q. . . .[L]ike a couple of years [ago]?
A. Yes, sir.
Q. . . . What were you told or how were you made aware of
inappropriate touching . . . of [Elaine]?
A. There was a few times that I would pick her up from
daycare and one of the daycare workers, typically the manager . . ., would
pull me in her office and tell me a problem she had with [Elaine] at
daycare that day.
Q. Okay. Do you know any specific, and the legal term is
manner and means, but what are we talking about actually happening?
A. Some inappropriate touching of some sort or another.
Q. Of [Elaine] being touched inappropriately or [Elaine]
touching someone else inappropriately?
A. Of [Elaine] being touched inappropriately.
Q. Okay. Would it have been in her private area or her anal
area that you were made aware of?
A. I honestly never received those kind of details.
Q. Okay. My final question is, when you’re being informed by
personnel at the daycare, were you ever told or was it part of the
11
protocol that, hey, the authorities needs to be discussed because
inappropriate touching had occurred?
A. No, I was a parent and they talked to me and they talked to
the other child’s parent as well. And I think it was expected that the
parents would handle it appropriately.
Q. Okay. But to handle it in-house because it was kids on
kids, correct?
A. Correct, yes, sir.
Babin’s counsel argued the evidence was admissible to explain why Babin did not
contact the authorities when he saw Carl and Elaine by the recliner in July 2017. The
trial court excluded Babin’s proffered testimony.
Babin failed to preserve any error arising from the exclusion of evidence
regarding an incident at Elaine’s school. Babin proffered no evidence at trial of an act
of sexual abuse occurring at Elaine’s school.3 By not informing the trial court of the
substance of this incident, the details of which were not apparent, Babin did not
preserve this claim. See Tex. R. Evid. 103(a)(2). And Babin’s counsel’s statement to
the trial court that the proffered evidence was “a discussion of additional sexual acts
with other little boys . . . in the [State’s] Brady disclosure” was not a reasonably
specific summary for preservation purposes. See Warner v. State, 969 S.W.2d 1, 2 (Tex.
Crim. App. 1998) (per curiam). Although Babin attempted to offer more specific
3
Henley testified that Elaine mentioned “some issues she was having at school”
during the sexual-assault exam; however, Henley did not document anything further
about the comment, which she would have if the issues had involved sexual abuse.
12
proof of this incident in a post-trial offer filed twenty-five days after his sentences
were imposed in open court, this offer was untimely. See Solley v. State, No. 14-07-
00803-CR, 2009 WL 396268, at *3 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009,
pet. ref’d) (mem. op., not designated for publication). Accordingly, there is nothing
for this court to review. See, e.g., Lavoie v. State, No. 02-14-00333-CR, 2015 WL
5108854, at *5 (Tex. App.—Fort Worth Aug. 28, 2015, pet. ref’d) (mem. op., not
designated for publication) (“We are not at liberty to judge the propriety or the
potential harm of the trial court’s evidentiary ruling without knowing the content of
the potential testimony.”).
Regarding the daycare evidence, Babin now argues that it should have been
admitted because it suggested “the repetition of highly unlikely events,” rendering
Elaine’s similar allegations against Babin implausible and likely false—the doctrine of
chances. See De La Paz v. State, 279 S.W.3d 336, 347–48 (Tex. Crim. App. 2009). At
trial, Babin did not argue the doctrine of chances as a basis to admit the daycare
evidence; rather, he asserted that the proffered evidence related to Babin’s (not
Elaine’s) credibility regarding his testimony about Carl and Elaine, implicitly
explaining why Babin did not call the police. See generally Hammer, 296 S.W.3d at 565–
66 (recognizing different theories of admissibility permitting use of prior false
accusations when offered to show witness’s bias or motive). Although Babin argued
in his new-trial motion that the daycare incidents were admissible because they related
to Elaine’s motive or bias, see Tex. R. Evid. 412(b)(2)(C), an argument raised in a
13
motion for new trial is untimely for purposes of informing the trial court of an
asserted admissibility ground. See Torres v. State, 424 S.W.3d 245, 256 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d); see also Tex. R. App. P. 33.1(a)(1)(A).
Babin also seems to assert on appeal that the exclusion of the daycare evidence
violated his constitutional confrontation rights. But he did not raise this argument
until he moved for a directed verdict after the State had rested its case and after Elaine
had testified. This was too late to preserve a confrontation argument for our review.
See Torres, 424 S.W.3d at 255–56.
Babin relies on admissibility arguments on appeal that were not timely raised to
the trial court and, therefore, failed to preserve any error arising from the exclusion of
the evidence.4 We overrule Babin’s second issue.
III. OUTCRY TESTIMONY
In his third issue, Babin argues that the trial court erred by allowing the
forensic interviewer, Parada, to testify about Elaine’s statements to her because
Angela was the only appropriate outcry witness, rendering Parada’s testimony
4
Even if Babin had preserved his arguments, we would conclude that he was
not harmed by the exclusion. See, e.g., Ramos Pabon v. State, No. 02-18-00517-CR, 2019
WL 4122611, at *5 (Tex. App.—Fort Worth Aug. 29, 2019, no pet.) (mem. op., not
designated for publication). The jury heard that shortly before Elaine’s outcry against
Babin, Babin saw Carl with his hand inside Elaine’s underwear, causing Babin to yell
at Carl and his mother and to forcibly eject Elaine’s “very good friend[]” from the
house. Babin also suggested during his testimony that Angela “blew [Elaine’s
accusations against him] out of proportion” after Babin romantically rejected her.
This evidence put the veracity of Elaine’s outcry at issue, but the jury rejected this
theory, at least as to the July allegations.
14
inadmissible hearsay. Before trial, the State notified Babin that it intended to call
Angela and Parada as outcry witnesses. See Tex. Code Crim. Proc. Ann. art. 38.072,
§ 2(b)(1). Babin objected to Parada’s testifying as an outcry witness because Angela
had been the first adult Elaine told about the sexual abuse. See id. art. 38.072,
§ 2(a)(3). The State argued that Parada was an appropriate outcry witness because
Elaine specifically described the sexual abuse to Parada after only generally alluding to
the abuse with Angela. The trial court overruled Babin’s objection and allowed
Parada to testify. Parada testified that Elaine stated Babin had penetrated her anus
with his sexual organ and with his finger, penetrated her sexual organ with his finger,
and touched her sexual organ with his sexual organ and with his hand.
Article 38.072 allows the admission of hearsay outcry statements if certain
requirements are met. Id. art. 38.072, § 2. One of these requirements is that the
designated outcry witness must be the first adult that the victim told about the abuse.
Id. art. 38.072, § 2(a)(3). To be considered the first outcry, the victim’s statements
must be more than a “general allusion of sexual abuse” but, rather, must describe the
specific event in some “discernible manner.” Garcia v. State, 792 S.W.2d 88, 91 (Tex.
Crim. App. 1990); see also West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort Worth
2003, pet. ref’d) (“[A]n outcry witness is not person-specific, but event-specific.”).
With child victims, this determination is “a difficult one that demands close scrutiny
by the trial judge,” which we review for a clear abuse of discretion. Garcia,
792 S.W.2d at 91–92.
15
But even if the trial court abused its discretion here by allowing Parada to
testify, a holding we do not expressly make, we conclude that any error would have to
be disregarded as harmless. See Tex. R. App. P. 44.2(b); West, 121 S.W.3d at 104. In
reviewing nonconstitutional error, we must determine if it affects a substantial right
and is, therefore, reversible. See Tex. R. App. P. 44.2(b). A substantial right is not
affected by the erroneous admission of evidence if the same evidence is admitted
elsewhere without objection. See Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim.
App. [Panel Op.] 1978); Denton v. State, No. 2-05-044-CR, 2006 WL 2076534, at *8
(Tex. App.—Fort Worth July 27, 2006, pet. ref’d) (mem. op., not designated for
publication) (citing Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d)).
Elaine testified to some of the July acts of sexual abuse, essentially describing
Babin’s pulling down her underwear, touching her anus with his hand (after spitting
on his hand), touching her anus with his sexual organ, touching her sexual organ with
his sexual organ, and penetrating her anus with his sexual organ. Angela testified that
Elaine said Babin had touched her “private parts” and pressed his sexual organ against
her “bottom,” hurting her. Elaine also told Angela that Babin licked his fingers
before touching her sexual organ. Henley testified to the details of Elaine’s outcry
during the sexual-assault exam and testified to most of the same allegations that
Elaine had told Parada: Babin had touched Elaine’s sexual organ and penetrated her
anus with his sexual organ and with his finger.
16
In short, the outcry statements included in Parada’s testimony were also
included in Elaine’s, Angela’s, or Henley’s testimony, to which Babin did not object.
Their testimony established the essential elements of the July indecency and
aggravated sexual assaults apart from Parada’s testimony. See Lamerand v. State,
540 S.W.3d 252, 259–60 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d); Bersosa v.
State, No. 05-06-00129-CR, 2007 WL 137367, at *2–3 (Tex. App.—Dallas Jan. 22,
2007, no pet.) (not designated for publication). As such, Babin’s substantial rights
were not affected by the admission of Parada’s testimony. See Lamerand, 540 S.W.3d
at 260; Bersosa, 2007 WL 137367, at *2–3; Denton, 2006 WL 2076534, at *8–9; Duncan,
95 S.W.3d at 672. We disregard any error and overrule issue three.
IV. JURY MISCONDUCT AT PUNISHMENT
Babin asserts that he is entitled to a new punishment trial based on the
foreman’s post-verdict assertion that Babin’s failure to take responsibility, thereby
reinforcing the foreman’s “suspicion” that CSA had occurred, resulted in a longer
assessed sentence. Babin contends that this statement shows that three jurors
considered allegations they had previously found Babin not guilty of, which
constituted jury misconduct and rendered his punishment trial unfair. See Tex. R.
App. P. 21.3(g).
We review the trial court’s deemed denial of Babin’s new-trial motion based on
jury misconduct for an abuse of discretion. See Burch v. State, 541 S.W.3d 816, 820
(Tex. Crim. App. 2017); Mallet v. State, 9 S.W.3d 856, 868 (Tex. App.—Fort Worth
17
2000, no pet.). Our review is deferential and requires us to view the evidence in the
light most favorable to the trial court’s denial. See Burch, 541 S.W.3d at 820. We may
not substitute our own judgment for the trial court’s and must uphold the ruling if it
could have been based on a reasonable view of the evidence. See id. Any credibility
issues are the sole province of the trial court. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.
Crim. App. 1995). And “[w]here there is conflicting evidence on an issue of fact as to
jury misconduct, the trial judge determines the issue and there is no abuse of
discretion in [denying] the motion for new trial.” Thomas v. State, 699 S.W.2d 845, 854
(Tex. Crim. App. 1985).
Here, Babin’s counsel recounted the foreman’s comments and concluded that
the foreman impermissibly considered the CSA count when determining Babin’s
sentence.5 But the State argues that Babin’s counsel’s interpretation of the foreman’s
statements was incorrect; the foreman’s statements, as recounted by Babin’s counsel,
merely showed that the foreman justifiably believed a harsher sentence was needed
because Babin refused to take responsibility, blaming everyone but himself for his
5
Although we question whether Babin’s counsel can testify to a juror’s post-
verdict statements regarding the jury’s deliberations, see Tex. R. Evid. 606(b)(1), the
State did not object to the admission of counsel’s affidavit at the new-trial hearing.
See, e.g., Orozco v. State, No. 04-09-00456-CR, 2010 WL 3782198, at *6–7 (Tex. App.—
San Antonio Sept. 29, 2010, no pet.) (mem. op., not designated for publication);
Wilson v. State, No. 09-05-232 CR, 2006 WL 800777, at *1–2 (Tex. App.—Beaumont
Mar. 29, 2006, no pet.) (mem. op., not designated for publication). Thus, the affidavit
was before the trial court at the time the motion was deemed denied. See Tex. R.
Evid. 103(a)(1).
18
actions in July 2017. This reasonable view of the foreman’s statements could have
supported the trial court’s conclusion that Babin was not denied a fair punishment
trial. See, e.g., King v. State, No. 13-04-446-CR, 2005 WL 2470525, at *7–8 (Tex.
App.—Corpus Christi–Edinburg Oct. 6, 2005, pet. ref’d) (mem. op., not designated
for publication). Thus, we cannot conclude that the trial court abused its discretion.
See, e.g., Sanchez v. State, No. 13-08-00747-CR, 2010 WL 1407114, at *3 (Tex. App.—
Corpus Christi–Edinburg Apr. 8, 2010, no pet.) (mem. op., not designated for
publication); King, 2005 WL 2470525, at *7–8; Gomez v. State, 991 S.W.2d 870, 873
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (op. on reh’g). We overrule Babin’s
first issue.
V. CONCLUSION
Babin failed to preserve any error arising from the alleged exclusion of Elaine’s
prior allegations of sexual abuse, occurring at daycare and at school. Regarding the
daycare allegations, Babin failed to timely raise the same admission arguments in the
trial court that he now asserts on appeal. And Babin did not submit evidence of the
school incident in an offer of proof during the trial.
Further, even if the trial court erred by allowing Parada to testify as an outcry
witness, the sexual-abuse details in her testimony were similar to the details Elaine,
Angela, and Henley testified to without objection. Thus, Babin was not harmed by
any arguable error in admitting Parada’s testimony.
19
Finally, the trial court could have credited the facts recounted in Babin’s
counsel’s affidavit and concluded that Babin was not denied a fair punishment trial.
This reasonable view of the evidence supports the trial court’s deemed denial and
precludes this court from finding an abuse of discretion. Accordingly, we affirm the
trial court’s judgments. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 3, 2020
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