Alfonzo Simpson v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00096-CR

Alfonzo Simpson,

Appellant

v.

The State of Texas,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court No. 8288

MEMORANDUM Opinion

A jury convicted Alfonzo Simpson of sexual assault of a child and sentenced him to thirty-five years in prison and a $5,000 fine. In two issues, he contends that he suffered egregious harm because the trial court limited extraneous offense evidence to an improper purpose and failed to limit extraneous offense evidence to its admissible purpose. We affirm.

FACTUAL BACKGROUND

Simpson was involved in a sexual relationship with A.S., who was then fifteen years of age. A.S. s mother, S.S., once discovered Simpson naked and on top of A.S. in A.S. s bedroom. They appeared to be engaging in sexual intercourse. S.S. left the home and began driving, during which she approached Officer Darrell Allen and informed him of the situation. A few days later, S.S. saw some shoes in A.S. s room. She went to the police station to inform them that she thought Simpson was at her home. When they arrived at the home, Simpson was not present. Allen later arrived to take S.S. s statement. S.S. had previously told Simpson to stay away from A.S. and told A.S. to stay away from Simpson.

On several occasions, Mel Davis observed A.S. and Simpson together at Davis s restaurant. They hugged up, kissing and hugging, talking, like regular boyfriend and girlfriend. Davis also saw Simpson touch A.S. s bottom. Simpson told Davis that he and A.S. were having sex. M.B., a minor, testified that Simpson informed her that he and A.S. were having sex. M.B. was angry because she and Simpson were also having sex and she did not want him having sex with someone else.

Mina Patel and Kenny Patel, managers of the Budget Inn, had both seen A.S. at their hotel with Simpson. After the police began looking for A.S. at the hotel, Kenny told Simpson not to come to the hotel again. Saurabh Desai, manager of the Marlin Inn, testified that Simpson had rented rooms at his hotel. After obtaining a warrant for Simpson s arrest, Allen and several other officers located Simpson and A.S. in a room at the Marlin Inn.

Simpson was subsequently charged with twelve counts of sexual assault. At the close of the State s evidence, it elected to proceed on only one count; namely, penetration of A.S. s sexual organ by Simpson s sexual organ. The trial court gave the following limiting instruction in the jury charge:

You are instructed that if there is any testimony before you in this case regarding the defendant s having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the identity or motive of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.

Simpson did not object to this instruction.

ANALYSIS

When reviewing a jury charge, we first examine the charge for error. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error occurred, we then decide whether the error caused harm. See id. Where, as here, the defendant does not object to the charge, he must show egregious harm to be entitled to reversal. See id. at 743-44 (citing Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).

In his first and second issues, Simpson contends that the trial court limited the jury s consideration of extraneous offense evidence to an improper purpose and failed to correctly limit the jury s consideration of such evidence to an admissible purpose. Because Simpson addresses both these issues collectively, we will do likewise.

Simpson contends that the following evidence became extraneous after the State s election: (1) Simpson s and A.S. s visits to the Budget Inn and Marlin Inn; (2) Simpson s failure to stay away from A.S. after S.S. s instruction to do so; (3) Simpson s and A.S. s conduct at Davis restaurant; (4) Simpson s statements to M.B. and Davis that he was having sex with A.S.; and (5) Simpson s sexual conduct with M.B.[1] He concedes that motive is a proper purpose for considering extraneous offense evidence in this case, but challenges the trial court s inclusion of identity as a purpose for considering the evidence. According to Simpson, identity was not in issue.

In reliance on Page v. State, 137 S.W.3d 75 (Tex. Crim. App. 2004), the State responds that identity was in issue by virtue of the following testimony elicited from S.S. during cross-examination by defense counsel:

DEFENSE COUNSEL: And on the time that you said -- the four days later, which I think we agree now is a couple of days later, you said you saw shoes in the bedroom, right?

WITNESS: Yes.

DEFENSE COUNSEL: And you went to the police to report that you thought Al [Simpson] was there, correct?

WITNESS: Yes.

DEFENSE COUNSEL: The police came, and Al [Simpson] wasn t there, was he?

WITNESS: He was gone.

DEFENSE COUNSEL: So -- but -- well, my point is, you saw shoes, but you didn t see Al [Simpson] that day; is that a fair statement?

WITNESS: I seen -- I seen somebody laying back there with no shirt on.

DEFENSE COUNSEL: When Ms. Gilliam asked you, you said you saw shoes in the bedroom.

WITNESS: Yes.

DEFENSE COUNSEL: Okay.

WITNESS: It wasn t no woman s shoes; it was men s.

DEFENSE COUNSEL: But they were shoes.

In Page, the Court of Criminal Appeals held that [i]dentity can be raised by defense cross-examination, such as when the identifying witness is impeached on a material detail of the identification. Page, 137 S.W.3d at 78. A material detail is relevant to the reliability of the identification. Id. at 79. [D]efense counsel s cross-examination of the victim suggested that his 265 pound client was not her 200 pound assailant. Id. at 78. This was sufficient to raise the issue of identity. See id. at 76.

Defense counsel s cross-examination suggested that Simpson may not have been the man whose shoes S.S. observed in A.S. s bedroom. Given that A.S. refused to testify, whether the shoes belonged to Simpson is a material detail of S.S. s identification of Simpson, which defense counsel s cross-examination called into question.[2] See Page, 137 S.W.3d at 78-79. As the Court of Appeals questioned in Page, If it was not about identity, what was it about? Id. at 79.

Accordingly, we cannot say that the trial court abused its discretion by determining that the issue of identity was in dispute or by including identity as a purpose for the jury s consideration of extraneous offense evidence. We overrule Simpson s first and second issues. The judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 9, 2008

Do not publish

[CRPM]

[1] Simpson does not challenge the admissibility of this evidence. Moreover, he did not object on Rule 403 or Rule 404 grounds at the time this evidence was admitted.

[2] A.S. refused to answer many of the State s questions regarding her relationship with Simpson and eventually left the courtroom after stating that she would not answer the State s questions.