NO. 12-03-00108-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOSEPH CHAVIRA, § APPEAL FROM THE
APPELLANT
V. § CRIMINAL DISTRICT COURT 2
THE STATE OF TEXAS,
APPELLEE § TARRANT COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Appellant Joseph Chavira of sexual assault and assessed his punishment at imprisonment for fifteen years. In two issues presented, Appellant contends the trial court erred in excluding evidence of the complainant’s prior sexual history and in overruling his objection to the prosecutor’s jury argument. We affirm.
Background
C.S., the complainant, traveled the country selling magazines door to door and in shopping center parking lots. On March 10, 2001, C.S. approached Appellant as he drove his pickup into the Albertson’s grocery parking lot. Appellant seemed enthusiastic about buying several magazines. C.S., following the training instructions for the sales job, got in the passenger side of Appellant’s pickup and began filling out an order form. C.S. had been instructed to get cash for sales. When Appellant told her that he did not have cash with him to pay for the magazines, C.S. suggested that they go to a nearby automatic teller machine. Appellant agreed, but as they left the parking lot, he turned in a different direction explaining that he wanted to go to his own ATM machine.
During the drive, Appellant told C.S. she was pretty, and tried to rub her shoulders and leg. This made C.S. uncomfortable, but when Appellant turned into a deserted parking lot behind North Riverside Elementary School, she “got really scared.” When she tried to open the truck door to get out, she heard a plastic bottle fall out onto the ground. Appellant reached across her, pulled the door shut, and locked it. He pushed C.S. against the door and seatback in the corner of the cab. She was on her side with her arm pinned beneath her. Appellant then pulled her pants down and put his penis into her female sexual organ. After Appellant had finished, he drove to the parking lot exit and let her out of the truck.
C.S. ran down the street knocking on doors until she found someone at home who let her use the telephone. She called 911 and reported the assault. When the police arrived, C.S. told the police what had happened, and gave them a partially completed magazine order form that she had filled out for Appellant and put in her pocket.
C.S. was taken to the hospital where she underwent a sexual assault examination. The examining physician found superficial abrasions on C.S.’s chest. He also found that the back of her neck and her right jaw were tender upon palpation. While at the hospital, C.S. gave the police a written statement and identified Appellant in a photo lineup.
The police arrested Appellant when he returned to his house. A search of his truck revealed C.S.’s receipt book. The DNA of the sperm sample from C.S.’s vaginal swab matched Appellant’s DNA.
Appellant initially told the police that he had not had sexual relations with anyone on the day C.S. claimed Appellant assaulted her. At trial, however, he testified that C.S. initiated the sexual overtures, which eventually led to consensual intercourse. On cross-examination, the prosecutor asked Appellant what he believed motivated C.S. to fabricate the charges against him. Appellant replied that he believed she became angry after he refused to pay her cash for the magazines he had agreed to buy, and that she had brought the rape charge in retaliation for his failure to pay her. Appellant also admitted that he had been convicted of indecent exposure forty days before the assault charged in this case.
Exclusion of Evidence of Bias or Motive
In his first issue presented, Appellant contends the trial court erred in excluding evidence of the complainant’s bias or motive.
Standard of Review
A reviewing court shall reverse a trial court’s decision to exclude evidence only if the trial court abused its discretion. Holloway v. State, 751 S.W.2d 866, 870 (Tex. Crim. App. 1988). A trial court abuses its discretion when “its decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
Applicable Law and Analysis
Under Texas Rule of Evidence 412(b), evidence of specific instances of an alleged sexual assault victim’s past sexual behavior is not admissible unless it is evidence that comes within one of five enumerated exceptions and its probative value outweighs the danger of unfair prejudice, including the danger of unfair prejudice to the alleged victim. Tex. R. Evid. 412(b)(2), (3); see also Stephens v. State, 978 S.W.2d 728, 733 (Tex. App.–Austin 1998, pet. ref’d).
Appellant sought to introduce evidence of C.S.’s past sexual behavior upon the issue of C.S.’s motive or bias to falsely accuse him. See Tex. R. Evid. 412(b)(2)(B), (C). Upon notice by Appellant that he proposed to offer evidence of the victim’s past sexual behavior, the trial court conducted an in camera hearing to determine the admissibility of the proposed evidence. See Tex. R. Evid. 412(c). During the in camera examination of C.S. by Appellant’s attorney, C.S. admitted that she had had sexual relations with her boyfriend four or five days before the incident in question, and that when her boyfriend came to pick her up at the hospital there were problems between them which “probably escalated and moved on from him to everybody else in the company.” C.S. also admitted that she was being treated for depression prior to March 10, and that she had taken one Paxil pill, an antidepressant, before discovering she was allergic to the medication. When asked by the court how the fact that she had sexual relations with her boyfriend four or five days before the alleged assault showed bias, defense counsel responded, “Well, she got a lot of heat with the boyfriend over this and with other people, I think is what she said.”
The trial court commented that the boyfriend’s attitude developed “after the fact” and excluded the evidence.
Appellant argues that C.S.’s consent was the crucial issue confronting the jury, and that the evidence developed in the in camera hearing demonstrated a bias or motive bearing on C.S.’s credibility. To support his argument, Appellant contends this case is analogous to Yzaguirre v. State, 938 S.W.2d 127 (Tex. App.–Amarillo 1997, pet. ref’d). In Yzaguirre, the defendant was charged with the assault of a twelve-year-old boy. The boy’s mother found her son and the defendant in a compromising position. The boy initially denied that anything had happened, but later accused the defendant of molesting him. The trial court excluded the testimony of the victim’s mother that before the assault she had scolded the victim for comparing genitals with his male cousin, and that she told him that he would be spanked if he were caught doing such things again. The trial court also excluded the victim’s testimony that he was afraid to tell his mother about the sexual assault because he was afraid she would get mad at him. The court of appeals held the trial court erred because the excluded evidence tended to establish the victim’s motive for making the accusation. The jury was faced with the choice of believing the victim’s first statement that nothing had happened or his subsequent accusation that the defendant had molested him. Id. at 128.
In Yzaguirre, the excluded testimony would have shown that the victim had been in trouble for improper sexual behavior in the past, and, therefore, had a motive to blame someone else. The excluded testimony in this case regarding C.S.’s past sexual conduct does no more than show she was sexually active. It does not establish that she had a motive to falsely accuse Appellant.
That C.S. took one Paxil pill for depression at an unspecified time prior to the alleged assault and that her boyfriend was angry with her when he picked her up at the hospital after she had accused Appellant do nothing to establish C.S.’s bias against Appellant or a motive to falsely accuse him. Moreover, these last two circumstances did not involve specific instances of C.S.’s past sexual behavior under Rule 412, the only ground urged at trial for their admission in evidence. The trial court did not abuse its discretion in excluding the proffered testimony because it did not tend to establish C.S.’s bias or motive under Rule 412. Appellant’s first issue is overruled.
Jury Argument
In his second issue, Appellant claims the trial court erred in overruling his objection to the prosecutor’s final argument.
Applicable Law and Analysis
Permissible jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997).
During final argument at the guilt stage of the trial, defense counsel alluded to the Albertson’s parking lot videotape, which had been briefly mentioned during trial but never shown or described to the jury. Defense counsel argued as follows:
[DEFENSE COUNSEL]: And why would she be getting in the car with somebody if she didn’t want to be in the car? And if it’s anything other than that, then where is that videotape from Albertson’s? Where did that go? Why isn’t that here? The prosecutor will stand up and say, Oh, Mr. Ray could have brought it to you. And as soon as those words come out of her mouth, you need to be thinking, Mr. Ray does not have the burden of proof in a criminal case.
The prosecutor, in her closing argument, responded in the following fashion:
[PROSECUTOR]: Defense counsel makes a big deal about us not bringing a video. We brought everything of value. If there’s anything that helps them out, we’d have to turn it over to them. So he could have brought you that video.
[DEFENSE COUNSEL]: Excuse me. Excuse me. She’s outside the record. I object.
THE COURT: I’ll overrule it.
[DEFENSE COUNSEL]: Thank you.
[PROSECUTOR]: So if that video helped him, he could have brought you that video. But there was nothing of value on that video.
[DEFENSE COUNSEL]: Excuse me. That assumes facts that are not in evidence. I object to that. It’s also outside the record.
THE COURT: All right. This is final argument. It’s not evidence. I’ve already instructed the jury. Whatever argument there is, it’s just that. It’s overruled. Let’s move on.
Appellant argues that since consent was the central issue in the case, the question of how C.S. came to be in Appellant’s pickup was extremely important. Therefore, the prosecutor’s comment, “there was nothing of value on that video,” was improper and harmful.
The prosecutor’s remark that “there was nothing of value on the video” was clearly a reference to a fact not in evidence. That portion of the argument was improper and the trial court erred in overruling Appellant’s objection.
Harm
Jury argument presenting facts outside the record is nonconstitutional error and must be disregarded unless it affected a substantial right of the defendant. See Tex. R. Evid. 44.2(b); see also Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). A substantial right is affected when an error has a substantial and injurious effect or influence upon the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In evaluating whether an improper argument affected an appellant’s substantial rights, the reviewing court considers three factors:
(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). (citations omitted).
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
It is undisputed that C.S. voluntarily entered Appellant’s pickup and that she suggested that they drive together to an ATM so Appellant could get cash to pay her for the magazines. The prosecutor’s comment did not imply that the videotape contained anything favorable to the State’s case, and it is impossible to conclude that, given the evidence, the jury could have drawn such an inference from it. At the most, the comment could have had only a minimal prejudicial effect.
There was an abundance of evidence supporting the conviction. C.S. reported the assault immediately upon her release by Appellant. Her injuries were consistent with her report of the assault. The jury heard her demeanor on the tape of her 911 call, and there was evidence that she was still upset and crying later that night at the hospital.
Appellant’s version of events was not consistent with what he first told the police. The jury learned that Appellant initially denied have sexual relations with anyone on the day in question. Appellant also admitted that he had pleaded guilty to an accusation of indecent exposure forty days before the charged offense.
Despite the absence of any curative instruction from the judge, the effect of the challenged argument was negligible. No substantial right of Appellant was affected. Appellant’s second issue is overruled.
Disposition
Having overruled Appellant’s first and second issues, the judgment of the trial court is affirmed.
BILL BASS
Justice
Opinion delivered June 23, 2004.
Panel consisted of Worthen, C.J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 23, 2004
NO. 12-03-00108-CR
JOSEPH CHAVIRA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the Criminal District Court 2
of Tarrant County, Texas. (Tr.Ct.No. 0800162D)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Bill Bass, Justice.
Panel consisted of Worthen, C.J., DeVasto, J., and Bass, Retired Justice,
Twelfth Court of Appeals, Tyler, sitting by assignment.
THE STATE OF TEXAS
M A N D A T E
TO THE CRIMINAL DISTRICT COURT OF TARRANT COUNTY, GREETINGS:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 23rd day of June, 2004, the cause upon appeal to revise or reverse your judgment between
JOSEPH CHAVIRA, Appellant
NO. 12-03-00108-CR and Tr. Ct. Case Number 0800162D
Opinion by Justice Bill Bass.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.
CATHY S. LUSK, CLERK
By:_______________________________
Deputy Clerk