JOSE MORALES v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

NUMBER 13-05-188-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JOSE MORALES, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 319th District Court
of Nueces County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Ya ez, and Castillo
Opinion by Justice Castillo

A jury found appellant, Jose Morales, guilty of aggravated sexual assault of a child. He was sentenced to ninety-nine years and assessed a $5,000 fine. Morales appeals. We affirm.

I. FACTUAL BACKGROUND

On May 9, 2002, Yvette Benavides (Mrs. Benavides) dropped off her two minor daughters, B.B. and Y. B., at the home of her mother-in-law, Maria Benavides. The paternal grandmother provided child care for her two granddaughters between seven in the morning until four-thirty in the afternoon. Morales was married to Maria Benavides at this time, (1) and was the girls step-grandfather. The children in the Benavides family referred to him as "Joe-Joe."

Since the youngest daughter, Y.B., was still asleep, Mrs. Benavides laid her down with the grandmother in the grandmothers room. Meanwhile, the older daughter, B.B., then four years old, said she was not sleepy and wanted to watch cartoons. B.B. was laid on the living room couch to watch cartoons. Morales was present in the kitchen, having just returned home from working the night shift. Mrs. Benavides left for work.

When Mrs. Benavides picked up her children after work, she observed B.B. wiggling around as if she had to use the bathroom. Mrs. Benavides, concerned she would have an accident, prodded her into the bathroom, following her to help her undress. B.B. then told her mother she did not want to go to the bathroom because it would hurt her. When asked what she meant, B.B. said she was not supposed to tell but would if her mother promised not to tell anyone else. B.B. revealed that Joe-Joe sat on the floor next to her while she was watching cartoons, and put his hands under her shorts and underwear, and then put his finger into her private. Jesse Benavides, B.B.'s father, arrived home soon after this statement was made, and B.B. repeated the same thing to him. He then called his mother and niece to come over to his home. Though they were in the house that morning, they did not know what had happened until B.B. retold her story to them. The grandmother then examined B.B. and testified she saw an injury to B.B.'s "privates."

B.B.'s parents took her to Driscoll Childrens Hospital where she received a sexual assault examination. Three tears and a labial agglutination were found. A forensic interviewer recorded B.B.'s statement as to the incidents. The parents were told by Child Protective Services not to talk to B.B. about what happened. However, Mrs. Benavides testified at trial that B.B. stated, while being bathed, that she was mad at Joe-Joe for hurting her. Meanwhile, B.B.'s grandmother returned home to wait for Morales and confront him. She testified that when he returned from work the following morning, he denied the allegations but would say nothing further until he spoke to a lawyer.

In a pretrial hearing, the State requested the trial court find B.B. an unavailable witness under article 38.071 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.071, 1, 2 (Vernon 2005). In making this determination, the court considered an admitted affidavit of a licensed counselor who had been seeing B.B. since the incident with Morales occurred, and the sworn testimony of Cynthia Villanueva, then assistant D.A., who testified that B.B. would suffer serious and undue psychological harm if made to testify. The trial court found B.B. unavailable and she did not testify. As B.B. was found unavailable under article 38.071, two additional videotapes were made and admitted into evidence at trial over Moraless objections.

At trial, which commenced on February 22, 2005, Morales pled not guilty to the offense of aggravated sexual assault of a child. The State also tendered testimony of another child, C.T., who subsequently made an outcry statement against Morales. C.T., B.B.s cousin, lived in Moraless home and testified that on five separate occasions Moralesinappropriately touched her. C.T.'s testimony was admitted over Moraless objections. II. POINTS OF ERROR

By two points of error, Morales asserts that the trial court erred in (1) allowing three videotapes of the child victim's testimony into evidence, and (2) admitting extraneous offense evidence.III. ADMISSION OF THREE VIDEOTAPES INTO EVIDENCE

UNDER ARTICLE 38.071, 2

A. Relevant Facts In his first point of error, Morales contends the trial court erred in admitting the three videotapes of B.B.'s statement in evidence under article 38.071 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon 2005). In a pretrial hearing on March 30, 2004, the state sought to admit tape one in lieu of B.B.s in-court testimony. Morales objected to the first recording as unfair and prejudicial. The court declared B.B. unavailable and allowed the parties to proceed under section 2(b) of article 38.071. See Tex. Code Crim. Proc. Ann. art. 38.071, 2(b) (Vernon 2005). Morales objected to conducting a second recording without determining whether to admit the first tape, arguing it would impair his rights under due process and due course of law protections. Morales then agreed to submit a list of questions for this second interview pursuant to section 2(b) of article 38.071, so as to exercise his right to confrontation.

At a second pretrial hearing on June 3, 2004, Morales objected to the second recording, arguing it failed to comply with article 38.071 because some of the questions he had submitted were omitted. Ms. Villanueva testified that at this pretrial hearing she, defense counsel, and the trial court acknowledged that some of the questions on the list for the second interview had been omitted. (2) The forensic interviewer, Mr. Jimenez, who was established as an expert witness, testified that in this second recording, he did omit some questions that he felt were leading to ensure the tape would not be excluded from evidence. (3)

To ensure protection of Morales's right to confrontation, the trial court ordered a third recording, over Moraless objection. The trial court referred to this third tape as a continuation of the second tape. To again exercise his right to confront the witness, Morales submitted questions to be asked at the third interview. At the third interview, all of Morales's questions were asked by the same interviewer. However, Morales complains that the manner in which the third interview was conducted destroyed any continuity it may otherwise have had with the second interview.

In the second interview, the forensic interviewer appears relaxed and friendly. He offers B.B. markers and makes conversation with her about swimming. His demeanor demonstrates warmth and friendliness, and his voice is neutral, showing neither surprise nor disdain in response to her answers. In the third interview, while his demeanor remains friendly he does not try to befriend B.B. He comes into the room, sits down in front of her, and explains that he is going to ask questions off the list. He does not chat with her and does not offer her any markers. He asks the questions straight off the list, offering little to no guidance when she appears confused.

In Smith v. State, 88 S.W.3d 652, 672 (Tex. App.-Tyler 2002, pet. refd), written interrogatories, without added questions or comments, were not found to show lack of neutrality when demeanor, manner, and vocal intonation remained the same. (4) Here, though the interviewer did not establish a rapport with B.B. the way he did in the second interview, his demeanor, manner, and vocal intonations remained the same. Ms. Villanueva testified that she told the interviewer to ask the questions in the third interview verbatim from the list of submitted questions. (5) She further testified that she told the interviewer not to establish a rapport with the child as she understood the defense desired no additional questions asked. Morales contends that, when the State gave direction to the interviewer, the requirement of neutrality was compromised especially since neither the defense nor the trial court gave these directions to the interviewer. Thus, Morales complains the third interview fails to comply with article 38.071 because it is not neutral.

At a third pretrial hearing held on February 22, 2005, and throughout the trial, Morales objected that none of the three videos complied with article 38.071, sections 2, 4, and 5. (6)

See Tex. Code Crim. Proc. Ann. art. 38.071, 2, 4, 5 (Vernon 2005). Moralesargues impairment of his right to confrontation despite the existence of the multiple recordings.B. Standard of Review

In reviewing a trial court's ruling on the admissibility of evidence, an appellate court must first determine the applicable standard of review. Guzman v. State, 955 S.W.2d 85, 87, 89 (Tex. Crim. App. 1997) (reviewing the appropriate levels of appellate review in a motion-to-suppress proceeding). (7) In considering a trial court's ruling, an appellate court must determine whether the trial court abused its discretion. (8) Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh'g)). In other words, the appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. (internal citations omitted). Finally, an appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Id. (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)); Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). C. Article 38.071

A plain language reading of article 38.071 indicates that a child-complainant must be unavailable to testify before a videotape of the childs testimony is admissible. See Tex. Code Crim. Proc. Ann. art., 1 (Vernon 2005). The purpose of the article is to provide a way to protect child complainants while at the same time preserving the constitutional rights of those who stand accused. Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon 2005); Smith v. State, 88 S.W.3d 652, 659 n.2 (Tex. App.-Tyler 2002, pet. ref'd) (concluding that the interviewer was neutral). Among those constitutional rights is the right to confrontation which includes cross examination. (9) U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.071. Under article 38.071, the right to confrontation is not violated if the defendant is given the opportunity to submit written interrogatories to the unavailable witness. See Tex. Code Crim. Proc. Ann. article 38.071, 2(b). Article 38.071, 2(b) is an effective alternative to the traditional face-to-face confrontation provided at trial. (10) Id. D. Application To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1; Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc); Delacruz v. State, 167 S.W.3d 904, 905 (Tex. App.-Texarkana 2005, no pet.). A partys failure to timely and specifically object at trial forfeits any error on appeal. Blue, 41 S.W.3d at 131. Even constitutional error may be waived by the failure to specifically object. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (en banc).

1. The Admissibility of Tape One The trial court overruled Morales objection to tape one as being unfair and prejudicial. It was recorded one day after the incident occurred. We must look to article 38.071, 2(c) since the tape was made before an indictment was returned or a complaint was filed. Article 38.071, 2(c) provides:

(c) A recording made under Subsection (a) of this section is not admissible into evidence unless a recording made under Subsection (b) is admitted at the same time if a recording under Subsection (b) was requested prior to the time of the hearing or proceeding.

 

Tex. Code Crim. Proc. Ann. art. 38.071, 2(c) (Vernon 2005). Thus, this first tape cannot be admitted into evidence unless tape two or three is admitted simultaneously.2. The Admissibility of Tapes Two and Three

The State argues that Morales is estopped from making an appellate error of an action it induced according to the doctrine of invited error. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc). If a party affirmatively seeks action by the trial court, that party cannot later contend that the action was error. Id.

There is no violation of the right to confrontation with the admission of videotaped testimony if the defendant has the opportunity to cross-examine the witness. See Fultz v. State, 940 S.W.2d 758, 761 (Tex. App.-Texarkana 1997, pet. ref'd) (citing Carson v. Collins, 993 F.2d 461, 464 (5th Cir. 1993)). In fact, article 38.071, section 3 provides an alternative method of confrontation that Morales could have elected to use:

Sec. 3. (a) On its own motion or on the motion of the attorney representing the state or the attorney representing the defendant, the court may order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact. To the extent practicable, only the judge, the court reporter, the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys and the judge may question the child. To the extent practicable, the persons necessary to operate the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child and to communicate contemporaneously with his attorney during periods of recess or by audio contact, but the court shall attempt to ensure that the child cannot hear or see the defendant. The court shall permit the attorney for the defendant adequate opportunity to confer with the defendant during cross-examination of the child. On application of the attorney for the defendant, the court may recess the proceeding before or during cross-examination of the child for a reasonable time to allow the attorney for the defendant to confer with defendant.

 

Tex. Code Crim. Proc. Ann. art. 38.071, 3 (Vernon 2005). (11) Under the statute, Morales could have utilized section 3 as an opportunity to cross-examine the victim under oath in a manner that would have preserved the welfare and well-being of B.B. (12) See Tex. Code Crim. Proc. Ann. art. 38.071, 3(b). In the first pretrial hearing on March 30, 2004, the trial court stated it presumed that, even if the two tapes were made, defense counsel would still request that the child be interviewed via closed-circuit television at the time of the trial. The State acknowledged such a request would be permissible as the statute does not bar the use of both sections in preserving the right to confrontation. However, Morales did not take advantage of this opportunity and now cannot claim that he was denied any rights under the confrontation clause. (13) Fultz, 940 S.W.2d at 761.

Morales argument that the code does not provide for multiple recordings is also invalid under the doctrine of invited error as in both instances, regarding the second and third tapes, he acquiesced by submitting questions under section 2 and electing to request a recording under section 3. By failing to utilize all the provisions available under article 38.071, Morales opted not to exercise his right to confrontation as authorized under section 3. Thus, Morales is estopped from complaining on appeal that admitting the tapes in evidence denied him his right to confrontation when the trial court afforded the relief he requested on the method of confrontation he chose. See Fultz, 940 S.W.2d at 761; see also Prystash, 3 S.W.3d at 531.

Moreover, in response to Morales's complaints as to each tape at each pretrial hearing, the trial court responded by affording him an opportunity to exercise his right to confront B.B. under the specific provisions of article 38.071 that Morales used as grounds for his complaints. Importantly, Morales did not complain below nor does he now on appeal that the trial court improvidently declared B.B. unavailable to testify under section 1 of article 38.071. See Tex. Code Crim. Proc. Ann. art. 38.071, 1.

Rather, seeking to exercise his right to confront B.B., he agreed to propound questions for purposes of the second interview and that procedure is statutorily authorized. See Tex. Code Crim. Proc. Ann. art. 38.071, 2(b). Because Morales complained that his questions were not asked, (14) the trial court responded by ordering a continuation of that interview. Thus, we further conclude that Morales has not shown deprivation of his constitutional right to cross-examine the child because (1) he did not object to the trial court's declaration that B.B. was unavailable, (2) the trial court provided him the redress he sought, and (3) he has not shown that the trial court disregarded his substantial rights. See Tex. R. App. P. 44.2.

Even assuming the trial court erred, we conclude that Morales has not shown the tapes are incomplete. (15) Further, he has not demonstrated reversible error. See Tex. R. App. P. 44.2; Weatherred, 15 S.W.3d at 542. Further still, his objection as to the neutrality of the interviewer was untimely. See Tex. R. App. P. 33.1(a); Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) (stating that the purpose of a timely objection is to "give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection").

Morales did not present a neutrality complaint to the first tape or the second tape and he waited until the eve of trial, when the trial court could not effect a remedy, to complain. We conclude the objection was untimely. Martinez, 22 S.W.3d at 507. Moreover, we have reviewed the recordings and addressed in this opinion the question of neutrality. We will not disturb the trial court's evidentiary rulings under article 38.071 unless the trial court abused its discretion by reaching a decision that falls outside the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; Garcia, 792 S.W.2d at 92. We conclude that the trial court's ruling is supported by the record and is not an abuse of discretion.

E. Disposition

Morales consistently chose to submit written interrogatories as his method of confrontation rather than consider the suggestion by the trial court that section 3 was also available. Using article 38.071 as its guiding rule or principle, the trial court chose to order a continuation of tape two, by conducting a third recording so as to preserve Morales right to confrontation. See Tex. Code Crim. Proc. Ann. art. 38.071, 1, 2(b). In light of what was before the trial court at the time each complained-of ruling was made, we conclude that the trial court did not abuse its discretion in admitting the videotapes. See Tex. Code Crim. Proc. Ann. art. 38.071, 1, 2(b); Willover, 70 S.W.3d at 845. We overrule Morales first point of error.

IV. BALANCING THE PREJUDICIAL EFFECTS OF EXTRANEOUS OFFENSE EVIDENCE

A. Relevant Facts

In his second point of error, Morales contends that the trial court erred in admitting evidence of extraneous offenses regarding C.T., the victim's cousin and Morales step-granddaughter, because its prejudicial effect outweighed its probative value. C.T.s outcry was made subsequent to B.B.s. C.T. testified that, beginning at age ten, Morales sexually assaulted her several times. The instances she testified to included Moralesinappropriately touching her, sticking his tongue into her mouth while kissing her, touching her vaginal area, rubbing her leg while attempting to reach up her shorts, and attempting to bite her breast.

Morales argues that extraneous offense evidence was not necessary to prove opportunity or intent. He asserts that jury had already heard evidence that he was alone with B.B. and, thus, extraneous offense evidence was not necessary to prove opportunity to commit the offense. He further argues that, because the jury had already heard no one else was present, extraneous offense evidence was not necessary to prove intent. The State responds this extraneous evidence was necessary to establish (1) why its expert witness had reason to believe Morales committed the act in question, and (2) his state of mind at the time, an essential element of the crime. The State further responds that Morales opened the door by attacking the credibility of the victim, suggesting he had been framed by family members, and suggesting fabrication and conspiracy. B. Standard of Review

We review the trial courts ruling concerning the rules of evidence for an abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (en banc) (citing Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). We uphold the trial courts ruling on the admissibility of evidence so long as the ruling falls within the zone of reasonable disagreement. Id. (quoting Montgomery, 810 S.W.2d at 391).

C. Preservation of Error Requisite for review of any complaint on appeal is preservation of error. Tex. R. App. P. 33.1(a); Blue, 41 S.W.3d at 131. To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context. Adams v. State, 180 S.W.3d 386, 399 (Tex. App.-Corpus Christi 2005, no pet.) (citing Tex. R. App. P. 33.1(a); Blue, 41 S.W.3d at 131). The complaining party must also obtain an adverse ruling on the objection. Id. Generally, a partys failure to timely and specifically object at trial forfeits any error. Tex. R. App. P. 33.1; see Blue, 41 S.W.3d at 131.

D. Application

An objection must be made under both rules 404(b) and 403 to preserve error regarding the admission of evidence of an extraneous offense. Montgomery, 810 S.W.2d at 388 (stating that an objection under rule 404(b) must now be followed by a further objection based on rule 403); see Tex. R. Evid. 403, 404(b). Extraneous offense evidence is admissible under both rules 404(b) and 403 if it satisfies the two-part test set out in Martin:

(1) whether the extraneous offense evidence is relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character; and (2) whether the probative value of the evidence is not substantially outweighed by unfair prejudice.

 

Martin, 173 S.W.3d at 467.

The State contends the defense failed to raise a rule 404(b) objection. In the instant case, Morales objected that the States attempt to admit evidence during the culpability phase of the trial violated part of the 38.37 on the extraneous offense. And certainly 403, and possibly 404(b) with the prejudicial effect it would have on this particular case. (16) The court declined to rule at that instant, reserving its decision until it had time to review case law. Later, the objection was overruled and the extraneous evidence was admitted. Morales agreed to limit the expert witnesss testimony to the contents of the report, but maintained his objection. The trial court noted Morales had not waived anything and that his objection was noted. Thus, Morales preserved error by securing a ruling on a timely and specific objection.

1. Applying the Two Prongs of the Martin Test

a. Part 1: Relevance of extraneous offense evidence apart

from tendency to prove conduct in conformity with character

 

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. However, not all relevant evidence is admissible. See Tex. R. Evid. 402. Some relevant evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). However, under rule 404(b), extraneous offense evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). Extraneous offense evidence may also be admissible when a defendant raises a defensive issue that negates an element of the offense with which he is charged. (17) Martin, 173 S.W.3d at 466. Determining the relevance of extraneous evidence apart from character conformity is a decision for the trial court. Id. (quoting Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).

In this case, the trial court's ruling to allowing the evidence under rule 404(b) is supported by the record and, thus, was not outside the zone of reasonable disagreement. Extraneous evidence, as noted above, can be admitted to prove opportunity, or an essential element if the defendant raises an issue that negates it. Morales presented evidence that he was away from the house for most of the day obtaining stickers for both his and his ex-wifes vehicles. This permitted the court to make a reasonable inference that Morales was suggesting he did not have the time to commit the alleged acts. By presenting his activities on the day in question to demonstrate lack of opportunity to commit the crime, he opened the door to admission of the extraneous evidence. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (during opening statement and in cross-examination of State's witnesses, defense counsel raised issue of lack of opportunity for the defendant to have committed the sexual offenses); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (permitting child victims sister to testify that defendant had sexually assaulted her to show opportunity).

The Court of Criminal Appeals has recognized that extraneous sexual misconduct evidence may be relevant to counteract a perceived societal aversion to the idea that parents or those standing in loco parentis can commit sexual crimes against their own children. Boutwell v. State, 719 S.W.2d 164, 175-76 (Tex. Crim. App. 1986). This evidence may be needed because the State's case may depend upon the credibility of the child-complainant, as most incestuous crimes occur in secrecy. Montgomery, 810 S.W.2d at 394. When the credibility of the child-complainant is challenged by the accused, evidence of other identical or similar acts of sexual misconduct may be used to support the testimony of the child-complainant if it logically shows a lascivious attitude (relevant to culpable intent) and a willingness to act on that attitude (relevant to prohibited conduct) that a jury might not otherwise want to acknowledge as existing in some familial relationships. Id. When the circumstances of the case show the evidence logically serves its purpose, it may be relevant under rule 404(b) apart from showing character conformity. Id. In the instant case, C.T.'s testimony logically demonstrates that B.B. is a credible witness by showing that an incestuous relationship could arise between a step-grandfather and his step-grandchildren.

The trial court did not err in admitting the extraneous sexual offenses as they were admissible under rule 404(b) to show opportunity, Powell, 63 S.W.3d at 438, Wolfberg, 73 S.W.3d at 443, and to prove an essential element. Contreras v. State, 838 S.W.2d 594, 600 (Tex. App.-Corpus Christi 1992, pet. ref'd) (allowing similar burglary and sexual offenses to show intent and identity); Johnson v. State, 932 S.W.2d 296, 302-04 (Tex. App.-Austin 1996, pet. ref'd) (admitting substantially similar extraneous offense to show intent). Nor was it error to allow the extraneous sexual offense to serve as the basis for the State's expert witness's reason to believe Morales committed the charged act. Blacklock v. State, 820 S.W.2d 882, 884-85 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd) (demonstrating that extraneous sexual offenses were relevant in a sexual assault case in the pretrial competency hearing to prove a pattern of behavior on which the expert relied for his testimony). b. Part 2: Probative value of the evidence

must substantially outweigh unfair prejudice In addition to challenging relevancy, Morales also successfully preserved his objection that the prejudicial effect of the extraneous offense evidence outweighed its probative value. This balancing test is expressed in rule 403, which states, Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. A presumption exists whereby relevant evidence is more probative than it is prejudicial. Rivera v. State, 130 S.W.3d 454, 460 (Tex. App.-Corpus Christi 2004) (citing Phelps v. State, 5 S.W.3d 788, 795 (Tex. App.-San Antonio 1999, pet. ref'd)).

A rule 403 analysis should consider the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational, yet indelible way, (3) the time needed to develop the evidence, and (4) the proponents need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery, 810 S.W.2d at 372). When considering a trial court's rule 403 balancing test determination, the appellate court is not to conduct a de novo review of the record. See Montgomery, 810 S.W.2d at 392. The result a trial court reaches in conducting its rule 403 balancing test is to be reversed rarely and only after a clear abuse of discretion is found. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 389). Thus, we apply the facts of the instant case to these factors.

C.T.'s testimony, as direct evidence, has great probative value and provided strong and compelling evidence to establish (1) opportunity and (2) state of mind. Further, there were significant similarities and circumstances between the instant offense and the conduct C.T. described in her testimony. See Boutwell, 719 S.W.2d at 176 (noting extraneous sexual offenses between a defendant and a third party are not always inadmissible if they are relevant to a material issue in the case, and the relevancy value outweighs its prejudicial potential). Through her testimony, a pattern showing Moraless increasing brazenness developed. His inappropriate touches soon turned into an aggressive attempt to bite her breast. C.T. testified that this last incident occurred a month before the incident involving B.B.

The extraneous offenses introduced were not so inherently inflammatory that they would have swayed the jury in some irrational and indelible manner. See Alexander v. State, 88 S.W.3d 772, 778 (Tex. App.-Corpus Christi 2002). Time needed to develop the evidence weighs in favor of admissibility. Erazo, 144 S.W.3d at 489. C.T. outcried soon after B.B. did, and despite Moraless objections, was readily available to testify.

When considering the last factor, the proponents need for evidence, the reviewing court should address three questions: (1) Does the proponent have other available evidence to establish the fact of consequence that the evidence is relevant to show? (2) If so, how strong is that other evidence? and (3) Is the fact of consequence related to an issue that is in dispute? Erazo, 144 S.W.3d at 495-96 (citing Montgomery, 810 S.W.2d at 390). The State adduced other relevant evidence. It had the testimony of various family members that Morales was alone that morning with B.B. Raising the defensive theory of lack of opportunity is sufficient to justify admission of extraneous offense evidence under 404(b). Powell, 63 S.W.3d at 438; Wolfberg, 73 S.W.3d at 443. Here, this other evidence was not as strong as C.T.s first-hand account. Although the State had other evidence, the factors under rule 403 are merely factors included among other factors to be considered. See Hayden v. State, 155 S.W.3d 640, 646 (Tex. App.-Eastland, 2005) (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)). All of the other evidence was related to the issue in dispute as, taken together, it showed similar circumstances and close temporal proximity to B.B.s outcry.

E. Disposition

A balancing of the factors does not reveal a clear abuse of discretion on the part of the trial court. Mozon, 991 S.W.2d at 847 (quoting Montgomery, 810 S.W.2d at 389). Therefore, we conclude the trial court properly conducted the rule 403 balancing test and did not abuse its discretion in concluding that the probative value of the extraneous offense evidence was not substantially outweighed by any prejudicial effect. We overrule Moraless second point of error.IV. CONCLUSION

Having overruled Moraless two points of error on appeal, we affirm.

ERRLINDA CASTILLO

Justice

 

Concurring Opinion by Justice Ya ez.

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 9th day of November, 2006.

1. Jose Morales and Maria Morales divorced two months after B.B.'s outcry of sexual abuse.

2. From the trial court's recitation, we note that the omitted questions are:

 

What's your address?

What's the name of your teacher?

Do you like Joe-Joe?

Why don't you like him or why do you like him?

Did you tell your cousins Joe-Joe had touched you? (With a follow up question).

3. Leading questions that are isolated, or those concerning the details of testimony already given in response to proper interrogation, or those concerning matters not directly relating to the offense, will not destroy the videotape's admissibility so long as the overall product is not the result of suggestion. Carlock v. State, 99 S.W.3d 288, 292 (Tex. App.-Texarkana 2003, no pet.).

4. In Smith v. State, 88 S.W.3d 652, 671 (Tex. App.-Tyler 2002, pet. ref'd.), our sister court analyzed the first interview of the child complainant made under article 38.071, 2(a). See id.; see also Tex. Code of Crim. Proc. Ann. 38.071, 2(a), (b) (Vernon 2005). The second interview, made under section 2(b), was conducted solely to ask the written interrogatories propounded by counsel. Smith, 88 S.W.3d at 671; see also Tex. of Crim. Proc. Ann. 38.071, 2(a), (b). The court concluded that the interview was objective and thus the interviewer was neutral, because the demeanor, mannerisms, and vocal intonations of the interviewer did not suggest answers or reveal her reaction to the child victim's responses. Smith, 88 S.W.3d at 672.

5. Ms. Villanueva testified at trial that she was operating according to her understanding of the trial court's instructions.

6. All of Moraless pretrial objections were carried over and overruled at trial.

7. In Guzman, the Court of Criminal Appeals observed that, "An appellate court's review of a trial court's evidentiary rulings generally does not involve an 'application of law to fact question' or a 'mixed question of law and fact.'" Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The Court further noted that trial courts have broad discretion in their evidentiary rulings and are usually in the best position to make the call on whether certain evidence should be admitted or excluded. Id.

8. A trial court has wide discretion in its decision to admit or exclude evidence. Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991) (en banc); Reyes v. State, 69 S.W.3d 725, 735 (Tex. App.-Corpus Christi 2002 pet. ref'd). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery, 810 S.W.2d at 380. Therefore, the trial court's ruling must be at least within the zone of reasonable disagreement to prevent reversal. Id. at 391. The inquiry on appeal is whether the result was reached in an arbitrary or capricious manner. Id. at 380.

9. The common law guarantee of the right to cross examine witnesses exists to tease out the truth. Reyna v. State, 168 S.W.3d 173, 182-83 (Tex. Crim. App. 2005) (citing Crawford v. State, 541 U.S. 36, 43-46 (2004)). The elements of confrontation guaranteed by the Sixth Amendment include the physical presence of the witness, an oath, cross-examination, and observation of the witness's demeanor by the trier of fact." Craig, 497 U.S. at 846.

10. Section 2 of article 38.071 of the code of criminal procedure reads in part:

(a) The recording of an oral statement of the child made before the indictment is returned or the complaint has been filed is admissible into evidence if the court makes a determination that the factual issues of identity or actual occurrence were fully and fairly inquired into in a detached manner by a neutral individual experienced in child abuse cases that seeks to find the truth of the matter.
(b) If a recording is made under Subsection (a) of this section and after an indictment is returned or a complaint has been filed, by motion of the attorney representing the state or the attorney representing the defendant and on the approval of the court, both attorneys may propound written interrogatories that shall be presented by the same neutral individual who made the initial inquiries, if possible, and recorded under the same or similar circumstances of the original recording with the time and date of the inquiry clearly indicated in the recording.
(c) A recording made under Subsection (a) of this section is not admissible into evidence unless a recording made under Subsection (b) is admitted at the same time if a recording under Subsection (b) was requested prior to the time of the hearing or proceeding.

 

Tex. Code Crim. Proc. Ann. art. 38.071, 2 (Vernon 2005).

11. This provision is to be utilized after charges have been filed against a specific defendant or defendants and its focus is upon the exercise of the right of counsel, and the right of confrontation which includes the right of cross-examination. See Lawson v. State, 697 S.W.2d 799, 802 (Tex. App.-Houston [1st Dist.] 1985), rev'd on other grounds, 752 S.W.2d 572 (Tex. Crim. App. 1988). Thus, section 3 is an appropriate means of confronting a child-complainant that Morales failed to utilize. See Tex. Code Crim. Proc. Ann. art. 38.071, 3 (Vernon 2005).

12. We recognize that belated cross-examination, under certain circumstances, can serve as a constitutionally adequate substitute for cross-examination contemporaneous with the original statement. Buckley v. State, 786 S.W.2d 357, 360 (Tex. Crim. App. 1990) (en banc).

13. Alternatively, article 38.071 section 2 reads may propound, and so Morales was not constrained to choose this method. He could have not asked any questions at all and allowed only the first tape in or he could have requested to be present when the questions were propounded. He chose the former and then complained.

14. See note 2. As to the propounded questions, we note that in the first videotaped interview, the interviewer asked B.B. where she lived and she responded she lived with her parents. Before reaching the sexual contact matter, the interviewer also asked B.B. whether Joe-Joe was nice to her and she responded that he was. The interviewer also asked her if she told anyone that Joe-Joe touched her and if anyone told her whether he did anything to them. Morales has not shown that, absent answers to the remaining two unanswered questions (as to her teacher's name and why B.B. did or did not like Joe-Joe) affected his substantial rights. See Tex. R. App. P. 44.2.

15. As discussed in note 15, the record shows that B.B. had already provided information Morales sought and, to the extent she did not, Morales has not shown deprivation of his substantial rights.

16. The best objection would be that such evidence is inadmissible under rule 404(b), but an objection that the evidence is not relevant, constitutes an extraneous offense or extraneous misconduct, though not precise, ought ordinarily [be] sufficient under the circumstances to apprise the trial court of the nature of the complaint. Montgomery, 810 S.W.2d at 387 (citing Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977)).

17. A party may introduce extraneous evidence if that evidence logically tends to make an elemental fact more or less probable, inferentially leads to an elemental fact, or is defensive evidence that undermines the elemental fact. Montgomery, 810 S.W.2d at 372.