COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-174-CR
PHRORY MORAN GAMBLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON
PETITION FOR DISCRETIONARY REVIEW
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After reviewing Appellant’s petition for discretionary review, we withdraw
our November 26, 2008, opinion and judgment and substitute the following.
Introduction
Appellant appeals his conviction and life sentence for aggravated sexual
assault of a child under fourteen years of age. In two points, Appellant argues
1
… See Tex. R. App. P. 47.4.
that the trial court abused its discretion by admitting evidence of extraneous
offenses Appellant committed against the sexual assault complainant, M.L., and
M.L.’s mother, Christine. We affirm.
Factual and Procedural Background
A grand jury indicted Appellant for aggravated sexual assault of a minor.
Appellant pleaded “not guilty,” and the case was tried to a jury.
M.L. was born in 1995, and he was eleven years old at the time of trial.
His mother, Christine, testified that she met Appellant at work in 1998 and that
they developed a romantic relationship while living together as roommates.
Christine and Appellant had two children together, Z.H. in 1999 and K.H. in
2002. Christine testified that her relationship with Appellant was imperfect and
that he eventually became physically abusive.
Christine testified that she moved to Boston with the children to get away
from Appellant, but Appellant followed them to Boston two months later. She
said that while they were living in Boston, M.L.’s teacher made a physical-
abuse referral to Child Protective Services (“CPS”). Christine testified that CPS
investigated and concluded that Appellant had physically abused M.L. Christine
said that after living in Boston for about a year, she, Appellant, and the children
moved to Arkansas, where Appellant’s family lived. She later left Appellant and
returned to Texas with the children.
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Christine testified that when M.L. was almost ten, she and M.L were
watching a television news program about a man who said he had been
molested. She said that M.L. then told her that Appellant had blindfolded him,
taken him to the bathroom, told him he was going to give him some candy,
instructed him to open his mouth, and put Appellant’s penis into M.L.’s mouth.
She testified that M.L. said that he did not tell her sooner because he was
scared Appellant would kill him if he told anyone. Christine reported M.L.’s
outcry to Irving police, whose investigation ultimately led to this case.
M.L. testified that when he was three years old and lived in Texas (he
could not remember what city) with Christine and Appellant, Appellant would
sometimes watch him when Christine was at work. He testified that Appellant
would play “the ninja game,” in which Appellant would put a plastic grocery
bag over M.L.’s head and prevent M.L. from breathing. He said that if he got
dizzy and fell down, Appellant would tie the bag shut at M.L.’s neck. M.L. said
they played the ninja game “a lot.”
M.L. also testified that Appellant would sometimes choke him with one
or both hands. He testified that Appellant told M.L. he would kill him if he told
Christine about the ninja game. M.L. recounted the following incident, which
he said happened in Boston around the time his teacher called CPS:
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He had put the plastic bag over my head, but this time for some
reason he left a hole in there so I could breathe. And then I took
advantage and opened it. And then he put another one over my
head and this time I bit through it and then opened it. And then he
put another one over my head and I bit through that one and
opened it. And then he took all of them and shoved them in my
mouth and took me in the kitchen and had me on the counter and
screamed I was—he was going to kill me.
He said that on another occasion, Appellant pushed his head down onto a
coffee table, leaving a permanent scar; the State, without objection, exhibited
the scar to the jury.
M.L. said that on yet another occasion, Appellant became angry when
M.L. would not eat a peanut butter sandwich. He testified that Appellant tied
a belt around M.L.’s throat, hung him in a closet by the belt, and knocked on
the door while “scream[ing] the scary movie guy’s name.” 2
Finally, M.L. testified about the alleged sexual assault. He said that
Appellant told M.L. that Appellant had some candy in the bathroom, took him
into the bathroom, told him to close his eyes, and put his “private” into M.L.’s
mouth. He said there was candy on Appellant’s private. M.L. testified that he
knew it was Appellant’s private because he heard him “zipping . . . back up.”
He said he did not remember having previously said that Appellant had
2
… Other testimony indicated that M.L. meant the names of various
horror-movie villains.
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blindfolded him. He said he told Christine about this incident when he was nine
and that he did not tell her sooner because he was afraid Appellant would kill
him.
Dr. Jayme Coffman, medical director of a CARE team at Cook Children’s
Medical Center, testified that she had examined M.L.’s medical records, and she
read to the jury notes from an interview M.L. gave to members of another
CARE team. According to the notes, M.L. told the interviewer that Appellant
had hung M.L. by his neck in a closet, tied plastic bags over M.L.’s head, and
put his private in M.L.’s mouth. Dr. Coffman characterized the physical abuse
described by M.L. as “serious and sadistic.” She testified that abuse can be a
form of control over children, and when asked whether physical dominance and
sexual abuse “kind of go together,” she answered,
[A]ny time you have domestic violence, you’re more likely to see
physical abuse and/or sexual abuse. Any time you see physical
abuse, you’re more likely to see–I mean see domestic violence
and/or sexual abuse. All three things are more common when you
see any one.
Carolyn Kincaid, a Dallas CPS investigator, testified that she interviewed
M.L. in June 2005. Kincaid said that M.L. told her that when he was about
three, Appellant would choke him with his hands, tie grocery bags over his
head, hang him by a belt in the closet, and, on one occasion, put his penis in
M.L.’s mouth after telling M.L. that he was going to give him a piece of candy.
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The jury convicted Appellant of aggravated sexual assault, and the trial
court sentenced him to life in prison.
Discussion
1. Extraneous offense evidence related to M.L.
In his first point, Appellant argues that the trial court abused its discretion
by admitting evidence concerning the extraneous offenses against M.L.,
specifically, the “ninja game,” the choking and belt-hanging incidents, and the
injury to M.L.’s head. At a pretrial hearing regarding the admissibility of that
evidence, the trial court heard testimony from M.L. about the extraneous
offenses. Appellant objected to the extraneous offense evidence as irrelevant,
unrelated to the charged sexual assault, and unfairly prejudicial. The trial court
ruled that it would admit the evidence under code of criminal procedure article
38.37, section 2.3
3
… The trial court also granted Appellant a running objection. The State
argues that the running objection extended only to M.L.’s testimony, not to Dr.
Coffman’s and Kincaid’s testimony, and that by failing to object when the latter
witnesses testified about extraneous physical abuse allegations, Appellant failed
to preserve his complaint for appeal. Concerning the running objection, the trial
court said, “And for purposes of the record, you may have a running objection
to that, [Defense Counsel], so that it would not be necessary, at least in my
opinion, to have to stand up and physically object tomorrow in the presence of
the jury.” The trial court did not specifically limit the running objection to
M.L.’s testimony, and all of the witnesses testified “tomorrow,” i.e., the day
after the pretrial hearing. Thus, in the interest of justice, we construe the
running objection to cover all extraneous offense testimony regarding M.L., and
we will address the merits of Appellant’s first point.
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We review a trial court’s evidentiary rulings for an abuse of discretion.
Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g). A trial court abuses its discretion only when the decision lies outside
the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101–02
(Tex. Crim. App. 1996). When determining whether a trial court’s evidentiary
ruling was an abuse of discretion, we review the ruling in light of the evidence
that was before the court at the time of its ruling. Rangel v. State, 250 S.W.3d
96, 97–98 (Tex. Crim. App. 2008); Hoyos v. State, 982 S.W.2d 419, 422
(Tex. Crim. App. 1998); see Cantu v. State, No. 01-08-00263-CR, 2008 WL
4890035, at *6 (Tex. App.—Houston [1st Dist.] Nov. 13, 2008, no pet.)
(mem. op., not designated for publication) (applying time-of-ruling standard to
admission of extraneous evidence).
a. Article 38.37
Code of criminal procedure article 38.37, section 2 provides,
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 [physical or sexual assault]
shall be admitted for its bearing on relevant matters,
including:
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(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 § 2 (Vernon Supp. 2008). Thus, article
38.37 is an exception to rule 404(b)’s prohibition on the admission of
character-conformity extraneous offense evidence. See id.; Tex. R. Evid.
404(b). The State, as the proponent of extraneous offense evidence, bears the
burden of showing admissibility of the evidence under article 38.37. See
Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh’g).
Evidence of an extraneous offense is relevant to explain why a victim of
sexual assault did not make a prompt outcry. Brown v. State, 657 S.W.2d
117, 119 (Tex. Crim. App. 1983) (holding sexual assault victim’s testimony
that appellant threatened to kill her family was admissible to show reason for
delayed outcry); Isenhower v. State, 261 S.W.3d 168, 179 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); Walker v. State, 4 S.W.3d 98, 103
(Tex. App.—Waco 1999, pet. ref’d) (holding evidence that defendant subjected
complainant to numerous sexual and physical assaults relevant under article
38.37 to show reason for delayed outcry). It is also relevant to show the
reason for a complainant’s acquiescence to sexual assault and a defendant’s
dominance over the complainant. McCulloch v. State, 39 S.W.3d 678, 681
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(Tex. App.—Beaumont 2001, pet. ref’d) (holding evidence that defendant
committed extraneous acts of sexual assault against complainant when
pretending to discipline her relevant under 38.37 to show complainant’s and
defendant’s state of mind, victim’s fear and compelled acquiescence,
defendant’s intent and ability to commit crime, and defendant’s misuse of his
position of authority as family disciplinarian to commit crime).
In this case, evidence of Appellant’s physically abusing M.L. was relevant
to show the relationship between Appellant and M.L. before and after the
alleged sexual assault under article 38.37. See Tex. Code Crim. Proc. Ann. art.
38.37 § 2. Appellant’s threats to kill M.L. were admissible to explain why M.L.
waited six years before making his outcry to Christine. See Brown, 657
S.W.2d at 119; Isenhower, 261 S.W.3d at 179. The physical abuse evidence
also demonstrated Appellant’s dominance over M.L. See McCulloch, 39
S.W.3d at 681. We therefore hold that the trial court did not abuse its
discretion by ruling that the extraneous offense evidence was relevant under
article 38.37.
b. Rule 403 Balancing Test
Evidence relevant under article 38.37 must nevertheless be excluded if
the probative value of the evidence is substantially outweighed by the danger
of unfair prejudice. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 847
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(Tex. Crim. App. 1999). “[I]n prosecutions for sexual offenses against children,
‘extraneous acts between the complainant and the defendant are usually more
probative than prejudicial.’” Poole v. State, 974 S.W.2d 892, 898 (Tex.
App.—Austin 1998, pet. ref’d) (quoting Boutwell v. State, 719 S.W.2d 164,
178 (Tex. Crim. App. 1985)). Rule 403 provides, “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. “Probative value” refers to the inherent
probative force of an item of evidence—that is, how strongly it serves to make
more or less probable the existence of a fact of consequence to the
litigation—coupled with the proponent’s need for that item of evidence.
Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “Unfair
prejudice” refers to a tendency to suggest a decision on an improper basis,
commonly, though not necessarily, an emotional one. Id. Only “unfair”
prejudice provides the basis for exclusion of relevant evidence. Montgomery,
810 S.W.2d at 389. “Confusion of the issues” refers to a tendency to confuse
or distract the jury from the main issues in the case. Gigliobianco, 210 S.W.3d
at 641. “Misleading the jury” refers to a tendency of an item of evidence to be
given undue weight by the jury on other than emotional grounds. Id.
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When a defendant makes a rule 403 objection, the trial court has a
nondiscretionary obligation to weigh the probative value of the evidence against
the unfair prejudice of its admission. Montgomery, 810 S.W.2d at 389. By
overruling such an objection, the trial court is assumed to have applied a rule
403 balancing test and determined the evidence was admissible. See Poole,
974 S.W.2d at 897; Yates v. State, 941 S.W.2d 357, 367 (Tex. App.—Waco
1997, pet. ref’d); Caballero v. State, 919 S.W.2d 919, 922 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d).
The trial court has wide latitude to admit or exclude evidence of
extraneous offenses. Montgomery, 810 S.W.2d at 390; Poole, 974 S.W.2d
at 897. A reviewing court must therefore recognize that the trial court is in a
superior position to gauge the impact of the relevant evidence and not reverse
a trial court’s ruling if it is within the “zone of reasonable disagreement.”
Mozon, 991 S.W.2d at 847; Montgomery, 810 S.W.2d at 391. In balancing
probative value and unfair prejudice under rule 403, an appellate court
presumes that the probative value will outweigh any prejudicial effect.
Montgomery, 810 S.W.2d at 389. It is therefore the objecting party’s burden
to demonstrate that the probative value is substantially outweighed by the
danger of unfair prejudice. Hinojosa v. State, 995 S.W.2d 955, 958 (Tex.
App.—Houston [14th Dist.] 1999, no pet.); Poole, 974 S.W.2d at 897.
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The relevant criteria in determining whether the prejudice of an
extraneous offense clearly outweighs its probative value include (1) the inherent
probative force of the proffered item of evidence along with (2) the proponent’s
need for that evidence against (3) any tendency of the evidence to suggest
decision on an improper basis, (4) any tendency of the evidence to confuse or
distract the jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco, 210 S.W.3d at 641–42. A trial court does not
have to perform the balancing test on the record. Yates, 941 S.W.2d at 367.
“In reviewing the trial court’s balancing test determination, a reviewing court
is to reverse the trial court’s judgment ‘rarely and only after a clear abuse of
discretion.’” Mozon, 991 S.W.2d at 847 (quoting Montgomery, 810 S.W.2d
at 389).
In this case, the first two balancing criteria weigh in favor of admitting
the extraneous offense evidence. The evidence was probative of the
relationship between Appellant and M.L. and the reason for M.L.’s delayed
outcry. In light of Dr. Coffman’s testimony that sexual abuse is more likely in
a relationship where there is also physical abuse, the evidence that Appellant
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physically abused M.L. makes it more likely that he sexually abused M.L.
Further, Appellant’s defense was that M.L. made up the sexual abuse story;
thus, the extraneous offense evidence was relevant to M.L.’s credibility. See
McCulloch, 39 S.W.3d at 681. The State’s need for the physical abuse and
death-threat evidence—in some form, though not necessarily the detailed,
graphic, and repetitive testimony actually presented to the jury—was
substantial to explain M.L.’s delayed outcry.
The next two factors weigh in favor of exclusion. The detailed evidence
of Appellant’s physically abusing M.L. had a definite tendency to suggest a
decision on an improper basis, that is, conviction for the physical abuse instead
of the charged sexual assault. Likewise, M.L.’s horrific testimony about the
“ninja game” and being hung by the neck with a belt had the tendency to
confuse or distract the jury from the main issue, whether Appellant sexually
assaulted M.L., and there was a danger that the jury would give the physical
abuse testimony undue weight.
The final factor—the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence already
admitted—does not clearly weigh in favor of admission or exclusion. M.L.’s
testimony about the physical abuse comprises over seven pages of reporter’s
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record, while his testimony about the sexual assault comprises two pages. Dr.
Coffman’s and Kincaid’s testimony was similarly skewed; for example, Dr.
Coffman’s testimony about M.L.’s statement concerning the sexual assault
comprises four lines of the record, while her testimony about the physical abuse
comprises sixty-six lines. But the question is whether the physical abuse
testimony consumed an inordinate amount of time. See Gigliobianco, 210
S.W.3d at 642. Because the alleged physical abuse occurred repeatedly over
a long period of time while the sexual assault occurred just once, describing the
physical abuse necessarily consumed more time than describing the sexual
assault. Therefore, we cannot say that the physical abuse testimony, as
extensive as it is, consumed an inordinate amount of time. On the other hand,
Dr. Coffman’s and Kincaid’s testimony largely repeated what M.L. had already
told the jury, and this repetition weighs in favor of exclusion, though only of Dr.
Coffman’s and Kincaid’s testimony. But we must review the trial court’s ruling
in light of the evidence that was before the court at the time of its ruling,
Hoyos, 982 S.W.2d at 422, and nothing in the record suggests that the trial
court should have known that the evidence of physical abuse would consume
as much time as it did or be as repetitive as it was when the court overruled
Appellant’s objections at the pretrial hearing.
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This is a close case. The physical abuse evidence was horrific. It was
undoubtedly prejudicial to Appellant. It was probably unfairly prejudicial. But
it was probative, and the balancing test factors, considered as a whole, do not
clearly weigh in favor of holding that the evidence’s unfair prejudice
substantially outweighed its probative value. Thus, we cannot say that the trial
court’s overruling of Appellant’s rule 403 objection fell outside the zone of
reasonable disagreement, and we hold that the trial court did not clearly abuse
its discretion. See McCulloch, 39 S.W.3d at 681 (holding rule 403 did not
require exclusion of extraneous offense evidence when evidence was “both
strongly probative and strongly prejudicial”); Walker, 4 S.W.3d at 103; Allen v.
State, No. 03-05-00755-CR, 2007 WL 178457, at *1–2 (Tex. App.—Austin
Jan. 23, 2007, no pet.) (mem. op., not designated for publication) (holding trial
court did not abuse its discretion by admitting evidence of extraneous “bizarre
punishments,” which included defendant’s forcing complainant to hold jugs of
water at arm’s length for up to an hour, spanking her with a ping-pong paddle,
and making her perform calisthenics and stand in a corner while naked); Kenley
v. State, No. 02-06-00127-CR, 2006 WL 2925159, at *3 (Tex. App.—Fort
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Worth Oct. 12, 2006, no pet.) (mem. op., not designated for publication). We
therefore overrule Appellant’s first issue.4
2. Extraneous evidence related to Christine
In his second point, Appellant argues that the trial court erred by
admitting extraneous testimony from Christine regarding Appellant’s threatening
and abusing her and her children. On direct examination, Christine testified
generally about her and the children’s several changes of residence between
Texas, Massachusetts, and Arkansas. On cross, defense counsel questioned
her more closely about the changes of residence, with whom the family lived,
and whether Appellant was living with them. Before conducting redirect
examination, the prosecutor—outside the presence of the jury—argued that
Appellant had opened the door to testimony regarding the reasons for the many
changes of residence, namely, Appellant’s threats and abuse directed at her and
the children. The trial court heard extensive (eighteen pages’ worth) voir dire
4
… Because we hold that the trial court did not clearly abuse its
discretion, we need not conduct a harm analysis. See Tex. R. App. P. 44.2.
We note that much of the State’s closing argument emphasized the physical
abuse testimony and even encouraged the jury to convict Appellant “because
[he is] the kind of person” who would “humiliate, . . . brutalize, and . . .
terrorize a three-year-old little boy.” Because the State’s emphasis of
erroneously-admitted evidence is a harm-analysis factor, see Rich v. State, 160
S.W.3d 575, 577–78 (Tex. Crim. App. 2005), we will not set out or analyze
the State’s argument.
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testimony from Christine outside the presence of the jury about Appellant’s
violent behavior as well as argument from counsel as to whether Appellant had
opened the door to its admission. The trial court did not pronounce a ruling on
the record (the court asked the attorneys to meet in chambers before the jury
returned to the courtroom, but the chambers conference does not appear in the
record).
When the trial resumed, the State asked Christine why she moved several
times without telling Appellant where she was going, and she answered that
she was afraid because Appellant said he would kill the children while making
her watch and then kill her. Appellant did not object to the questions or
answers.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). Further, the trial court must have ruled on the request, objection,
or motion, either expressly or implicitly, or the complaining party must have
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objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
Appellant argued to the trial court that he had not opened the door to
evidence of abuse by cross-examining Christine. But he did not object that
admission of the evidence violated rules 403, 404, and 405, as he now argues
on appeal. We therefore hold that Appellant failed to preserve his complaint
regarding Christine’s testimony for our review, and we overrule his second
point.
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER and WALKER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 27, 2009
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