Opinion issued June 25, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01004-CR
———————————
BRIAN VICTORIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1363644
MEMORANDUM OPINION
A jury convicted Brian Victorian of aggravated sexual assault of a child
under age 14.1 He was sentenced to 45 years’ incarceration. In three issues, he
contends: (1) the evidence is insufficient to support his conviction, (2) the trial
1
TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011).
court abused its discretion by allowing the complainant to testify about extraneous
bad acts over his Rule 403 objection, and (3) the trial court abused its discretion by
admitting into evidence unredacted medical records relating to extraneous bad acts
over his Rule 403 objection. We affirm.
Background
Victorian is the father of the complainant, Jane. 2 Jane was eleven years old
and lived with her younger sister, her mother, and Victorian. Shortly after starting
sixth grade, Jane confided to three classmates that Victorian had sexually assaulted
her. The classmates informed the school counselor, but when the counselor asked
Jane, she denied the account. A CPS investigator also interviewed Jane. She again
denied that Victorian had abused her and instead claimed that an unknown man
had accosted her at a bus stop.
Police Detective T. Brinson interviewed Jane and her three classmates. Jane
initially repeated her account of being accosted by a stranger at a bus stop, but she
eventually admitted to Detective Brinson that Victorian had abused her. Victorian
was arrested and charged with sexual assault.
At trial, Jane gave a detailed description of the sexual assault. Jane also
testified about three earlier incidents. One time, she awoke wearing her pants
backwards and her shirt inside out. Another time, Victorian laid in bed with Jane
2
To protect the complainant’s identity, we refer to her using this pseudonym.
2
while she was wearing a t-shirt and athletic shorts. Both of these events occurred
when she was nine years old. Finally, Jane testified that Victorian had touched her
breasts and buttocks on at least one other occasion. Victorian objected to these
extraneous acts under Rule 403. See TEX. R. EVID. 403. The trial court overruled
the objection.
Jane’s mother also testified that in the months before the allegations
surfaced, Jane seemed angry at her father and had begun cutting herself. One night,
she awoke to find her husband, Victorian, in their daughters’ bedroom with the
door locked. However, she also allowed that Jane was not always truthful and that
she never suspected anything inappropriate until Jane’s allegations against
Victorian surfaced.
The State called several other witnesses, including Dr. Reena Isaac, a child-
abuse pediatrician who examined Jane after Jane reported the alleged abuse to
Detective Brinson. Victorian objected under Rule 403 to a paragraph in Dr. Isaac’s
records reporting Jane’s statement during her examination that Victorian had
sexually assaulted her “like five times.” See TEX. R. EVID. 403. The trial court
overruled the objection. Dr. Isaac’s records included additional statements from
Jane describing the assaults, but indicated no physical evidence of abuse.
Victorian offered no evidence in his case-in-chief. In closing argument,
Victorian argued that Jane had succumbed to pressure from her classmates and
3
police and made up her allegations against Victorian. The State responded that
Jane was a credible witness and it did not make sense for her to lie.
The jury convicted Victorian. He timely appealed.
Sufficiency of the Evidence
In his first issue, Victorian contends that the evidence is insufficient to
support his conviction.
A. Standard of review
We review a challenge to the sufficiency of the evidence under the standard
announced in Jackson v. Virginia. 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89
(1979); see Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010).
Under the Jackson standard, evidence is insufficient to support a conviction if,
considering all of the record evidence in the light most favorable to the verdict, no
rational factfinder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 317–19, 99 S.
Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).
We consider both direct and circumstantial evidence and all reasonable inferences
that may be drawn from the evidence in making our determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The Jackson standard defers to the factfinder to resolve any conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from “basic facts to
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ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d
at 778. We presume that the factfinder resolved any conflicts in the evidence in
favor of the verdict and defer to that resolution, provided that the resolution is
rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
Evidence is insufficient when (1) the record contains no evidence, or merely
a “modicum” of evidence, probative of an element of the offense, (2) the evidence
conclusively establishes a reasonable doubt, or (3) the acts that the State alleges, if
true, do not constitute the charged crime. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007); see Jackson, 443 U.S. at 314–19, 99 S. Ct. at 2786–89. If
an appellate court finds the evidence to be insufficient under this standard, it must
reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S.
31, 41, 102 S. Ct. 2211, 2217 (1982).
B. The complainant’s testimony is sufficient evidence
Jane, the complainant, testified against Victorian. Generally, “[t]he
testimony of a child victim alone is sufficient to support a conviction” in child sex-
abuse cases. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). “A conviction under
Chapter 21, Section 20A.02(a)(3), (4), (7), or (8), Section 22.011, or Section
22.021, Penal Code, is supportable on the uncorroborated testimony of the victim
of the sexual offense . . . .” TEX. CODE. CRIM. PROC. ANN. art. 38.07(a) (West
5
Supp. 2014). “We liberally construe testimony given by a child victim of sexual
assault, and as long as the child communicates to the fact finder that the touching
occurred on a part of the body within the definition of the statute, the evidence will
be sufficient.” Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st
Dist.] 2011, no pet.).
Jane testified that Victorian sexually assaulted her. In particular, Jane
described Victorian unzipping his pants and touching Jane’s “middle part” with his
“middle part.” Using anatomically correct dolls, Jane identified male and female
genitalia as their respective “middle parts.” The State asked Jane, “What did he do
with his middle part when it was touching your middle part?” Jane responded: “He
was holding me down and put his in mine.”
Victorian concedes that “[t]he testimony of a child victim is sufficient to
support a conviction for the sexual assault of a child.” But he argues that “[Jane]
should not be extended the almost complete deference victims in other sexual
assault cases have been afforded in determining the sufficiency of the evidence”
because: (1) “[c]hild abuse pediatrician Dr. Reena Isaac found no physical
evidence of abuse,” (2) the complainant’s allegation “came on after a friend
revealed her abuse to [Jane],” (3) “[Jane’s mother] acknowledged there were times
her daughter was untruthful,” (4) Jane previously denied that she was abused when
6
asked by CPS and police, (5) Jane’s account of Victorian’s abuse changed over
time, and (6) Jane’s “relationship with [Victorian] was good prior to the incident.”
We disagree with Victorian for two reasons. First, the credibility of Jane’s
testimony is the province of the jury. Jackson, 443 U.S. at 318–19, 99 S. Ct. at
2788–89; Clayton, 235 S.W.3d at 778. Under Jackson we presume that the jury
found Jane to be credible and defer to that finding. 443 U.S. at 326, 99 S. Ct. at
2793.
Second, we have upheld the sufficiency of a child-complainant’s testimony
despite similar deficiencies. For example, in Lee, the child-complainant’s
testimony was sufficient to uphold a conviction for indecency with a child despite
no physical evidence of the crime. 176 S.W.3d at 458. And in Martines, we found
sufficient evidence of guilt when the child-complainant testified against the
defendant, but later recanted. 371 S.W.3d at 240.
Because Jane described Victorian sexually assaulting her and such testimony
from a child-complainant is legally sufficient evidence to support a guilty verdict
on that offense, we conclude that the evidence is sufficient to support the jury’s
guilty verdict. We overrule Victorian’s first issue.
7
Objections to Extraneous Acts
In his second and third issues, Victorian contends that the trial court erred by
admitting evidence of certain extraneous offenses over his Rule 403 objections.
See TEX. R. EVID. 403. We will address each issue in reverse order.
A. Standard of review
“A trial court’s ruling on the admissibility of extraneous offenses is
reviewed under an abuse of discretion standard.” Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009). “The test for whether the trial court abused its
discretion is whether the action was arbitrary or unreasonable. An appellate court
should not reverse a trial judge whose ruling was within the zone of reasonable
disagreement.” State v. Mechler, 153 S.W.3d 435, 439–40 (Tex. Crim. App. 2005).
B. Expert’s evidence
In his third issue, Victorian contends that the trial court abused its discretion
by failing to redact part of State’s Exhibit Four, which the State offered through its
expert witness, child-abuse pediatrician Dr. Reena Isaac. The exhibit contains
records from Dr. Isaac’s assessment of Jane after Jane reported her abuse.
Victorian objected under Rule 403 to a portion of the exhibit that recorded Jane
reporting additional inappropriate conduct. See TEX. R. EVID. 403. Victorian,
through his attorney, made his objection in these words:
8
[O]n page four of the actual records . . . the question is, “How many
times were you touched overall by him inappropriately?” The answer
appears to be, “Like, five times.”
Next question, “When was the first time?” The answer was, “Last
year.”
The next question, “The last time?” “Two weeks ago.”
We’re going to object to that in that it talks about the extraneous
offenses. She has talked specifically about one occasion here, the one
indicted occasion. And we’re asking that that answer be restricted or
redacted out of this copy as it is more prejudicial than it is probative.
The court overruled the objection.
The State contends that Victorian failed to object to other sections of Exhibit
Four that contained the same or similar evidence. We agree. For example, page
three of the exhibit reads: “[Jane] stated that [Victorian] has sexually assaulted her
by putting his penis against/inside her vagina at least 3 times.” And the paragraph
above the objected-to portion reflects Jane’s statement that Victorian touched her
“middle part . . . 4 times.” Victorian objected to neither statement.
Any erroneous admission of evidence is rendered harmless when “the same
or similar evidence was admitted at another point in the trial without objection.”
Nelson v. State, 405 S.W.3d 113, 130 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d). Because Victorian did not object to portions of the report almost identical to
the objected-to section, he rendered any error harmless. Accordingly, we overrule
Victorian’s third issue. See TEX. R. APP. P. 44.2(a).
9
C. Complainant’s testimony
In his second issue, Victorian complains that three episodes related by Jane
to the jury should not have been admitted under Rule 403. See TEX. R. EVID. 403.
In the first, Jane awoke with her pants on backwards and her shirt on inside out. In
the second, Victorian laid in bed with Jane, who was wearing a t-shirt and athletic
shorts. In the third, Victorian touched her breasts and buttocks.
The State sought to admit this testimony under article 38.37 of the Texas
Code of Criminal Procedure, which reads:
(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.
TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2014). Article 38.37
overrides the character-evidence proscriptions in Texas Rule of Evidence 404. Id.;
Howland v. State, 966 S.W.2d 98, 103 (Tex. App.—Houston [1st Dist.] 1998),
aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). But evidence that would be
10
admissible under the statute may still be excluded under Rule 403. 3 Martines, 371
S.W.3d at 246.
“A proper Rule 403 analysis includes, but is not limited to, four 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 proponent’s need for the evidence.” Mechler, 153 S.W.3d at 440. “There is
a presumption that relevant evidence is more probative than prejudicial.” Howland,
966 S.W.2d at 103.
1. The first factor: probative value
“The first factor looks to the evidence’s probativeness or how compellingly
the evidence serves to make a fact of consequence more or less probable.”
Mechler, 153 S.W.3d at 440. Victorian contends that the extraneous conduct “does
not make any fact of consequence more probable.”
“[U]nder [article 38.37], the State may permissibly introduce testimony
involving the defendant’s extraneous bad acts when that evidence is relevant ‘to
demonstrate the unnatural attitude and relationship’ between a defendant and his
child victim.” Campos v. State, Nos. 01-13-00415-CR, 01-13-00416-CR, 01-13-
3
“Although 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, 61 TEX. B.J. 374, 377
(Tex. & Tex. Crim. App. 1998, amended 2015).
11
00417-CR, 2015 WL 162123, at *8 (Tex. App.—Houston [1st Dist.] Jan. 13, 2015,
pet. filed) (quoting Sanders v. State, 255 S.W.3d 754, 759 (Tex. App.—Fort Worth
2008, pet. ref’d)). But the first two acts provide almost no evidence of such an
unnatural relationship. In the first, Jane awoke wearing her pants backwards and
her shirt inside out. Jane did not know how her clothes came to be inside out and
did not notice anything else “wrong.” Victorian makes no appearance in the
account and there is no testimony regarding who else was in the house while Jane
slept. In the second, Jane describes her father lying in bed with her, and at one
point, turning on top of her. But the account ends there. Thus, neither episode
clearly indicates any inappropriate relationship prior to the alleged abuse.
With respect to the third extraneous act, the State contends: “Jane’s
testimony regarding the appellant touching and fondling her breasts and buttocks
not only provided context for the jury to understand how the sexual abuse started,
it showed how the offense related directly to their previous relationship and states
of mind.” We agree. This testimony is evidence of Victorian’s state of mind and
the nature of his relationship with Jane. See Hinojosa v. State, 995 S.W.2d 955,
957 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (complainant’s testimony that
“appellant had touched her at least once a week for ten years” admissible under
article 38.37 to show state of mind); Pool v. State, 981 S.W.2d 467, 469 (Tex.
App.—Waco 1998, pet. ref’d) (in trial for sexual assault of minor, evidence of
12
defendant’s sexual activity with complainant after she became of age admissible to
show subsequent relationship). Evidence is admissible for these purposes under the
express language of article 38.37.
For the first two extraneous acts, this factor weighs in Victorian’s favor
because the evidence is not especially compelling. But the third extraneous act
demonstrates Victorian’s state of mind and the nature of his relationship with Jane
more clearly than the first two. Thus, for the third act, this factor favors the State.
2. The second factor: danger of unfair prejudice
“The second factor asks whether the evidence has the potential to impress
the jury in some irrational but indelible way.” Mechler, 153 S.W.3d at 440.
Victorian cites two potential dangers of unfair prejudice. First, he contends
that “the complainant’s testimony cast the appellant as a sexual predator who was
acting in conformity with his character the day of the alleged events.” Normally,
Rule 404 proscribes the admission of character-conformity evidence, and any
danger that the jury will infer from otherwise proper evidence that the defendant
possesses a character trait and acted in conformity therewith is a danger of unfair
prejudice under Rule 403. TEX. R. EVID. 403–04; see Mozon v. State, 991 S.W.2d
841, 846 (Tex. Crim. App. 1999) (character-conformity evidence, if admissible for
another legitimate purpose, is subject to Rule 403 balancing test). But that danger
is not present here because article 38.37 allows the admission of character-
13
conformity evidence. Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d, untimely filed); Howland, 966 S.W.2d at 103.
Second, Victorian contends that any inference of sexual misconduct with a
child is inherently inflammatory. In response, the State supplies three reasons why
the emotional weight of this testimony is limited. First, it notes that Jane did not
mention Victorian in her account of the first extraneous act. Second, the State notes
that the jury charge contained a limiting instruction. 4 Although not dispositive, we
consider such instructions when evaluating the danger of unfair prejudice. Lane v.
State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996); Jaggers v. State, 125 S.W.3d
661, 670 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Third, “her detailed
description of [the assault for which Victorian was convicted] likely overshadowed
any inflammatory response the jury may have had to these acts.”
In general, courts often conclude that extraneous acts that are not more
heinous than the alleged crime do not carry a danger of further emotional
inflammation. See Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996)
4
That instruction read:
You are further instructed that if there is any evidence before you in this
case regarding the defendant committing other crimes, wrongs, or acts
against the child who is the victim of the alleged offense in the indictment
in this case, you cannot consider such evidence for any purpose unless you
find and believe beyond a reasonable doubt that the defendant committed
such other crimes, wrongs, or acts against the child, if any, and even then
you may only consider the same in determining 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, and for no other purpose.
14
(“[T]he first murder, being no more heinous than the second, was not likely to
create such prejudice in the minds of the jury that it would have been unable to
limit its consideration of the evidence to its proper purpose.”); Jones v. State, 119
S.W.3d 412, 422–23 (Tex. App.—Fort Worth 2003, no pet.) (prejudicial effect did
not substantially outweigh probative value of extraneous acts admitted under
article 38.37 when “all of the extraneous acts involving G.V. were less heinous
than the evidence relating to the charged offense involving Jones’s reaching into
G.V.’s pants and touching her.”).
In Burke v. State, a child-complainant testified that the defendant had
assaulted him on several occasions before the assault for which the defendant was
on trial. 371 S.W.3d at 255. There, the complainant’s account of the offense
included more violent details than his accounts of earlier assaults. Id. at 258.
Therefore, we held that the brief accounts of earlier sexual assaults were not more
inflammatory than the more detailed and shocking account of the charged offense.
Id. at 258. Accordingly, they presented little danger of unfair prejudice. Id.
But in Montgomery v. State, the Court of Criminal Appeals found some
danger of unfair prejudice from less-heinous extraneous acts of a defendant who
was the parent of the child-complainant. 810 S.W.2d 372, 397 (Tex. Crim. App.
1990). There, the defendant was tried for and convicted of sexually assaulting his
daughter. Id. at 374. The State introduced evidence that the defendant walked
15
around his house naked and visibly aroused in the company of his children. Id. at
375, 397. Because “[a] substantial portion of the State’s case was devoted to
showing such extraneous misconduct, and most of appellant’s evidence was
responsive to it,” the Court of Criminal Appeals found “a grave potential for
decision on an improper basis, as jurors may have lost sight of specific issues they
were called upon to decide and convicted appellant out of a revulsion against his
parental demeanor.” Id. Thus, the Court concluded: “Though relevant, such
evidence has only marginal probative value. By contrast, the danger of unfair
prejudice from such testimony is substantial. Both sexually related misconduct and
misconduct involving children are inherently inflammatory.” Id. at 397.
Jane’s testimony regarding the first two extraneous acts carried very little
danger of further inflaming the emotions of the jury because Jane did not mention
or describe any unmistakably inappropriate action by Victorian. We therefore
conclude that, for the first two acts, this factor favors the State.
Jane’s testimony regarding the third extraneous act indicated clear sexual
misconduct by Victorian. This carries some danger of unfair prejudice because, as
with any evidence of sexual misconduct with children, it is inherently distressing.
Id. Evidence of ongoing sexual misconduct may be particularly distressing. See id.
However, the unfairly prejudicial effect of this evidence is limited under Burke
because the acts were less heinous than the crime charged and less heinous than the
16
additional penetrative assaults described in Dr. Isaac’s records. In addition, the trial
court issued a limiting instruction in its charge. Thus, for the third act, this factor
weakly favors Victorian.
3. The third factor: time for development
“The third factor looks to the time the proponent will need to develop the
evidence, during which the jury will be distracted from consideration of the
indicted offense.” Mechler, 153 S.W.3d at 441. Here Victorian concedes that the
State rapidly developed the extraneous-act evidence. Accordingly, this factor
favors the State.
4. The fourth factor: necessity
“The fourth factor focuses on the proponent’s need for the evidence. This
last factor encompasses the issues of whether the proponent has other evidence
establishing this fact and whether this fact is related to a disputed issue.” Id.
Victorian contends that because he “offered no evidence at guilt/innocence, the
complained-of evidence was not necessary to refute a defensive theory.” While he
did not offer evidence, he did advance an alternate theory—that Jane made up her
story. For example, in closing argument, Victorian argued:
Because remember, [Jane] started off saying it didn’t happen. And
people just would not leave it alone. What do you do when you’re 11
years old and somebody asks you the same questions over and over
and over? Sooner or later you change your answers and you give them
what they want to hear.
17
We know she’s not truthful because . . . .
When, as here, a defendant denies that the criminal act occurred and
contends that the complainant fabricated her account, evidence of similar
extraneous acts may be necessary to corroborate the complainant’s account and
rebut the defensive theory. Montgomery, 810 S.W.2d at 397. However, the need
for the objected-to evidence may diminish if the State offers other compelling
bolstering evidence. See id. at 396 (no need for evidence to show intent when “the
State had other compelling evidence to show appellant touched his children with
the intent to arouse and gratify his own sexual desire.”).
Here, Jane’s testimony provided the most compelling and specific evidence
of the other bad acts. But the necessity of Jane’s direct testimony was somewhat
diminished by the admittance of Jane’s prior statements in Dr. Isaac’s records.
Further, Jane’s mother testified that she noticed behavioral changes in Jane and had
once caught Victorian in Jane’s room with the door locked. Because this evidence
augmented Jane’s extraneous-acts testimony, this factor only somewhat favors the
State.
5. Rule 403 balancing test
We must uphold the trial court’s conclusion if it is within the zone of
reasonable disagreement. Mechler, 153 S.W.3d at 439–40. Under Rule 403, the
danger of unfair prejudice must substantially outweigh the probative value. TEX. R.
18
EVID. 403. Jane’s account of the first two extraneous acts contained no
unmistakably inappropriate actions by Victorian. Accordingly, the probative value
of this evidence was not great—but neither was the risk of unfair prejudice. In
contrast, the third extraneous act was clearly inappropriate conduct by Victorian
and thus highly probative under article 38.37. But the danger of unfair prejudice,
thought present, was ameliorated because the third act is less heinous than both the
crime charged and other extraneous acts described in Dr. Isaac’s records. In
addition, the jury charge contained a limiting instruction. Further, the evidence did
not take long to develop and was significant, though not essential, in rebutting
Victorian’s fabrication theory. Accordingly, we conclude that the trial court’s
ruling was within the zone of reasonable disagreement. Thus, the trial court did not
abuse its discretion by overruling Victorian’s Rule 403 objection.
We overrule Victorian’s second issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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