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Opinion filed April 20, 2006
In The
Eleventh Court of Appeals
__________
No. 11-04-00026-CR
__________
JAMIE LYNN ALLRED, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR16-931
O P I N I O N
The jury convicted Jamie Lynn Allred of aggravated sexual assault by intentionally or knowingly causing the penetration of the anus of a child who was younger than 14 years of age. The jury assessed appellant=s punishment at sixty years in prison and assessed a $5,000 fine. We affirm.
Background Facts
Appellant lived with Brenda Theis and her two children. On April 5, 2003, Theis left the house to purchase groceries. One of Theis=s children, the victim, suffered from cerebral palsy. The disease made it difficult for the victim to maneuver; and, consequently, he usually crawled when he was at home.
When Theis left, the victim crawled into the bedroom that appellant and Theis shared to play a video game. The victim testified at trial that he was kneeling at the edge of their bed when appellant entered the room and closed the door. Appellant then pulled the victim=s pants down and performed anal sex on him. The victim also described three other similar incidents involving appellant. The first occurred approximately one year prior to trial in a motel and involved anal sex. In the second, appellant rubbed his penis on the victim while the victim was on a couch at the house. In the third, appellant placed his mouth on the victim=s penis.
Theis testified that two days before the April 5th incident she had asked the victim if anyone had ever touched him because she had heard that a boy who had been to their house was a registered sex offender. The victim told her no. But, when she returned from the grocery store, the victim reminded her of the question. He told her that appellant had touched him and described the four incidents to her.
Appellant testified that Theis returned from shopping shortly before noon. He left the house to check on his mother and to mow two lawns. He returned to the house about 6:00 p.m. When he arrived, Theis was changing the victim=s clothing and underwear. Theis took her children to a friend=s house. Theis returned and told appellant that one of the children had accused him of touching them in a bad way. She eventually told appellant that the victim had accused him of performing anal sex.
The victim was taken to the hospital for an examination late that night. The victim was examined by Dr. Lathon Worthington, but no rape kit was performed because the victim had experienced a bowel movement before coming to the hospital. Dr. Worthington noted no rips or tears during his physical examination of the victim but testified that 75 to 80% of sexual assault cases leave no evidence of physical trauma.
The victim was also questioned at the hospital by investigators from the sheriff=s office. The investigators collected the victim=s underwear and sent it to the DPS lab for testing. Two semen stains were found, and DNA analysis was performed. The test results implicated appellant.
Appellant testified that he had masturbated in the bathroom on the night of April 4, 2003. He cleaned himself with underwear located in a pile of dirty clothes in the bathroom. He testified that he assumed Theis used this underwear when she dressed the victim to go to the hospital. Theis testified that there was no dirty clothes pile in the bathroom, that the victim did not change his clothes after the assault, and that the underwear tested was the same underwear the victim was wearing at the time of the assault.
Issues
Appellant challenges his conviction with two issues. Appellant contends that the probative value of the extraneous acts testimony was outweighed by its prejudicial effect and that its admission resulted in harm to him.
Standard of Review
The trial court=s decision to admit evidence of extraneous acts is reviewed using an abuse of discretion analysis. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991). This requires that we uphold a trial court=s admissibility decision when that decision is within the zone of reasonable disagreement. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We may not reverse the trial court=s decision if we simply disagree with it. Id.
If we determine that the trial court erred by admitting the evidence, we must then determine if the error affected appellant=s substantial rights. Tex. R. App. P. 44.2(b). Substantial rights are affected when the error had a substantial and injurious effect or influence in determining the jury=s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). When assessing whether substantial rights have been affected, we review the entire record. O=Canas v. State, 140 S.W.3d 695, 698 (Tex. App.CDallas 2003, no pet.).
Was Evidence of Extraneous Acts Admissible Under Article 38.37?
Evidence of an individual=s bad character is generally not admissible to show that he acted in conformity therewith. See Montgomery, 810 S.W.2d at 386-88. But, when a defendant is charged with sexual assault of a minor under seventeen, evidence of extraneous acts may be admissible under Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2005) which provides in pertinent part:
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.
Article 38.37, section 2. Article 38.37 makes otherwise irrelevant evidence relevant. That evidence may, however, still be excluded under Tex. R. Evid. 403 if its probative value is substantially outweighed by its prejudicial value. Walker v. State, 4 S.W.3d 98, 102-03 (Tex. App.CWaco 1999, pet. ref=d).
A. Rule 403=s Balancing Test
When a defendant objects to the admission of extraneous acts because of unfair prejudice, the trial court must conduct a Rule 403 balancing test. Poole v. State, 974 S.W.2d 892, 897 (Tex. App.CAustin 1998, pet. ref=d). When the trial court denies an unfair prejudice objection, we presume that it applied a balancing test and determined that the evidence was admissible. Walker, 4 S.W.3d at 103.
The Texas Court of Criminal Appeals has noted that ARule 403 creates a presumption of admissibility of all relevant evidence and authorizes a trial judge to exclude such evidence only when there is a >clear disparity between the degree of prejudice of the offered evidence and its probative value.=@ Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); see also Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996)(because Rule 403 favors the admissibility of relevant evidence, there is a presumption that relevant evidence will be more probative than prejudicial).
To overcome this presumption, the objecting party must show that the evidence is more than prejudicial. It must show that the evidence is Aunfairly prejudicial,@ which requires Aan undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one.@ Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). To determine if unfair prejudice exists, courts should consider:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable B a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury Ain some irrational but nevertheless indelible way@;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; [and]
(4) the force of the proponent=s need for this evidence to prove a fact of consequence.
Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).
When the State attempted to ask the victim about the other similar incidents, appellant objected, and the trial court excused the jury. The victim was questioned on voir dire by both counsel, and he described each of the prior incidents. Following the voir dire examination, the trial court found that the evidence was relevant; that the evidence was admissible under Article 38.37; that the evidence was admissible under Tex. R. Evid. 404(b) for determining motive, opportunity, or plan; and, finally, that the probative value of the testimony was not outweighed by its prejudicial effect.
Appellant requested a limiting instruction. The trial court granted that request and instructed the jury:
You are instructed that the following evidence concerning the Defendant=s committing other crimes, wrongs or acts against the child who is the complainant of the alleged offense in the Indictment, if any, may only be considered if, one, you believe beyond a reasonable doubt that the Defendant committed such other crimes, wrongs or acts against the child, if any; and two, even then, you may only consider such evidence in determining its bearing on relevant matters including, A, the state of mind of the Defendant and the child, and B, the previous and subsequent relationship between the Defendant and the child, and C, the motive, opportunity and plan of the Defendant, if any, in connection with the offense alleged against him in the Indictment. You are not to consider this evidence for any other purpose.
The victim then testified to the jury about each of the extraneous acts.
Appellant argues that the trial court abused its discretion by admitting this evidence because the victim could not provide an accurate time frame and, thus, his testimony did not make a compelling case that the indicted offense was more probable. Further, appellant contends that the evidence created a substantial danger that the jury based its decision on its revulsion for the alleged acts and that the State did not need the evidence to establish appellant=s state of mind.
B. The Victim=s Credibility
When conducting a Rule 403 balancing test, trial courts should consider the strength of the evidence to show that the defendant did in fact commit the extraneous offense. Wyatt, 23 S.W.3d at 26. Appellant argues that the victim=s inability to provide an accurate time frame for the extraneous events compels the evidence=s exclusion. The victim testified that the first event occurred approximately one year prior to trial while the family was on a trip to the Texas Youth Center in Vernon to see his brother. The victim could not remember when the other two events occurred, except that they happened after the trip to Vernon and before the April 5th incident.
We cannot say that this alone demonstrates an abuse of discretion. The trial court was much better positioned to determine if the victim=s testimony was sufficiently credible to present to the jury. The victim was fourteen years old at the time of trial and testified about matters which were obviously difficult to discuss. He provided a location for three of the four incidents and a specific description of what occurred each time. This specificity was a sufficient basis for the trial court to determine that the testimony was admissible.
C. The Evidence=s Potential To Improperly Influence The Jury
Appellant points out that sexual misconduct allegations in cases involving children are inherently inflammatory. See Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993)(evidence of sexual misconduct has long been considered inherently inflammatory); Montgomery, 810 S.W.2d at 397 (cautioning against the potential impact extraneous acts evidence can have in a case involving alleged indecency with a child). Appellant argues that, because of the sympathetic victim and the heinous acts with which he was accused, there was a greater concern in this case that he would be convicted simply because of the accusations.
The victim will almost always present a more sympathetic appearance than the accused in a case involving allegations of sexual misconduct toward a minor. That is particulary true in this case given the victim=s youth and medical condition. Conversely, it is often difficult to believe allegations that a parent or guardian sexually assaulted their child or a child in their care because the alleged conduct is so abnormal. It is the presence of this paradox that courts have relied upon as a basis for the admission of extraneous acts evidence. Justice Davis, writing for the Austin Court of Appeals, noted that evidence of extraneous sexual conduct explains how Aa person in a position of authority, custody, or care of a young child has developed an unnatural attitude and relationship toward that child to explain the charged act C an act that would otherwise seem wholly illogical and implausible to the average juror.@ Ernst v. State, 971 S.W.2d 698, 700 (Tex. App.CAustin 1998, no pet.). In Ernst, the court affirmed the admission of the victim=s testimony about other incidents in which her father sexually assaulted her, made numerous sexual statements to her, and asked her about the possibility of having sex with one of her friends. These acts started when the victim was ten and increased in frequency when the victim=s mother was hospitalized for an indefinite period with a mental illness. Id. at 699.[1]
We believe a similar situation was present in this case. Article 38.37 allows evidence of extraneous acts to show the accused=s state of mind and the nature of the relationship between the victim and the accused. Id. at 701. The State was entitled to introduce the extraneous acts to help the jury understand how an otherwise illogical crime could take place. Cf. McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.CBeaumont 2001, pet. ref=d)(evidence of extraneous acts admissible to prevent a jury from drawing false impression that the relationship between the victim and accused was a healthy one and, thus, concluding the alleged assault was unlikely to have occurred).
The alleged extraneous acts were potentially inflammatory; but, the trial court gave a limiting instruction, and the testimony helped the jury by placing the charged act in context. The alleged extraneous acts were heinous, but there was not a clear disparity between the degree of their prejudice and their probative value. We cannot, therefore, say the trial court abused its discretion because of the potential inflammatory nature of the evidence.
D. The State=s Need For The Evidence of Extraneous Acts
Appellant next argues that the State did not need the extraneous acts evidence to establish his state of mind because the victim testified in detail about the events of April 5, 2003, and the State had evidence that appellant=s semen was found on the victim=s underwear. Appellant also argues that the State had ample evidence of the previous and subsequent relationship between himself and the victim, that there was no question about opportunity, and that the State had other evidence to bolster the victim=s credibility.
The State points to testimony from appellant and his sister to establish a need for the extraneous acts evidence. That testimony, however, came after the victim testified. Appellant properly objected to the extraneous acts evidence. When that objection was overruled, he was entitled to offer a response without waiving his original objection.
The State=s need for the testimony involves consideration of the record at the time of the offer and the purposes for which Article 38.37 allows its consideration. In appellant=s opening statement, he indicated that the victim=s credibility would be an issue, asked the jury to consider whether the victim had a motive to make up the allegation, and indicated that the jury would hear testimony about a possible motive. He also indicated that the victim=s credibility was important because the doctor found no evidence of penetration.
The jury=s determination of a victim=s credibility in sexual assault cases against a minor can often implicate events well before and after the indicted offense. The Beaumont Court noted in McCulloch, 39 S.W.3d at 678, that the absence of evidence of extraneous acts can harm the victim=s credibility because the jury may otherwise be misled to believe that the victim and accused had a healthy relationship and draw inferences from that belief. Because appellant had lived with the victim and his family for five years, the trial court could reasonably conclude that the State needed the extraneous acts evidence to support the victim=s credibility by placing the events in context.
Similarly, this testimony would help establish appellant=s state of mind. Appellant argues that the State had other evidence to establish that he committed the offense for sexual gratification. This is correct, but the state of mind inquiry is much broader than that because the more narrow question of C for what immediate purpose did appellant commit the alleged physical act? C is subsumed within the preliminary questions of why this child and why now? Evidence of other extraneous acts between appellant and the victim provided evidence of appellant=s intent, motivation, and ability to commit the offense for which he was charged.
We find that the trial court could reasonably conclude the State needed this evidence and, therefore, did not err when it admitted the victim=s testimony about extraneous acts. Appellant=s first issue is overrued. This holding makes it unnecessary for us to conduct a harm analysis and, therefore, we do not reach appellant=s second issue. Tex. R. App. P. 47.1.
Conclusion
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
April 20, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]The victim=s testimony described three extraneous acts. Texas Courts have affirmed the admission of evidence of substantially greater numbers of equally reprehensible extraneous sexual assaults committed by one family member against another than was present in this case. See McCulloch, 39 S.W.3d at 682 (testimony that the victim=s step-father sexually assaulted her from once a month to once a week over a period of several years was admissible); Hinojosa v. State, 995 S.W.2d 955, 958 (Tex. App.CHouston [14th Dist.] 1999, no pet.)(testimony that the child victim was assaulted by her brother once a week for ten years was admissible); Poole, 974 at 898 (the prejudicial effect of testimony that the child victim was sexually assaulted over 750 times by her father during a four-year period did not outweigh the probative value of that testimony).