NUMBER 13-03-303-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ERIC GUZMAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez and Garza
Memorandum Opinion by Justice Yañez
In a single issue, appellant, Eric Guzman, appeals his convictions for aggravated sexual assault of a child and for indecency with a child. He argues that the trial court erred in admitting, under Texas Rule of Evidence 404(b), evidence of two extraneous offenses he committed. We affirm.
As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
The record contains the trial court’s certification that the case is not a plea-bargain case and the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2).
Preservation of Error
The State argues that appellant failed to preserve his right to complain concerning the admission of evidence of two extraneous offenses. To preserve error over admission of extraneous-offense evidence, an accused must first object under rule 404(b) of the rules of evidence. Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1991) (op. on reh’g); Saldivar v. State, 980 S.W.2d 475, 491 (Tex. App.–Houston [14th Dist.] 1998, pet. ref’d). The State then must demonstrate that the proffered evidence is relevant apart from its tendency to show that the accused is a criminal, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387; Saldivar, 980 S.W.2d at 491. The State then should articulate the limited purpose for which the evidence is offered. Montgomery, 810 S.W.2d at 388; Saldivar, 980 S.W.2d at 491. In considering the relevancy of the evidence, the trial court must determine, at the proffer of the evidence, that a jury reasonably could find beyond a reasonable doubt that the accused committed the extraneous offense. Saldivar, 980 S.W.2d at 491.
If the trial court determines that the extraneous-offense evidence is relevant, the accused then must object under rule 403 and obtain a ruling as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 388; Saldivar, 980 S.W.2d at 492. When “the trial court is called on by sufficient objection to balance probativeness and prejudice, the presumption is now that probativeness is the weightier consideration unless in the posture of the particular case, the trial court determines otherwise.” Montgomery, 810 S.W.2d at 388.
Accordingly, an objection under both rules 404(b) and 403 is required to preserve error over the admission of evidence of an extraneous offense. Id. Further, when an extraneous offense is admitted in the culpability phase of a trial without a limiting instruction at the time of admission, it may result in the jury drawing an impermissible inference about the accused’s guilt based on character conformity. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). However, an accused subsequently waives error by affirmatively asserting he has “no objection” to the admission of improper evidence. Flores v. State, 129 S.W.3d 169, 172 (Tex. App.–Corpus Christi 2004, no pet.) (citing Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986)).
Application
In a hearing outside the presence of the jury, the State argued that during cross-examination, appellant urged the defensive theories of lack of opportunity, identity, and fabrication, and that the extraneous-offense evidence should therefore be admitted. In response, appellant objected under rule 404(b), claiming that the State was engaging in character assassination and was not rebutting any defensive theory. See Tex. R. Evid. 404(b). Additionally, appellant argued that the evidence was more prejudicial than probative under rule 403. See id. at rule 403. The trial court ruled that the extraneous-offense evidence was admissible, and at the request of defense counsel, gave a limiting instruction to the jury, both orally and in the charge of the court. The State then commenced presentation of evidence of both extraneous offenses.
As to the extraneous offense of sexual assault against J.M., appellant properly preserved error by: (1) objecting under both rules 404(b) and 403; (2) obtaining a ruling on such objections; and (3) obtaining a limiting instruction after the evidence was ruled admissible. See Montgomery, 810 S.W.2d at 387-88; Hammock, 46 S.W.3d at 894; Saldivar, 980 S.W.2d at 491. However, appellant did not preserve error as to the extraneous offense against S.S. At the time the State offered the videotaped interview in which S.S. claimed he and appellant had engaged in consensual sexual acts, appellant was asked if he had any objection to the exhibit, and he answered, “no.” Thus, because appellant affirmatively stated that he had no objection to the admission of the extraneous-offense evidence, he waived his previous objection and forfeited his right to complain about the admission of evidence relating to appellant’s act with S.S. See Flores, 129 S.W.3d at 172.
Accordingly, we now address only whether the trial court abused its discretion in ruling that the extraneous-offense evidence regarding the sexual assault against J.M. was admissible.
Sexual Assault Against J.M.
Appellant argues that the evidence was inadmissible under rule 404(b) because he did not urge the defensive theories of identity, fabrication, and lack of opportunity at trial. We hold that the extraneous-offense evidence was admissible as a rebuttal to the defense’s “lack of opportunity” theory urged by appellant during cross-examination.
In reviewing the trial court’s admission or exclusion of evidence, we apply an abuse-of-discretion standard. See Montgomery, 810 S.W.2d at 379-80. An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules and principles. Id. at 380. Therefore, we uphold a trial court’s evidentiary ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Jones v. State, 833 S.W.2d 118, 125 n.15 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). We do not reverse a trial court’s evidentiary ruling on a theory of admissibility or inadmissability not raised at trial. Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 1992).
When the defensive theory of “lack of opportunity” is asserted in an opening statement or on cross-examination, the State may present extraneous-offense evidence to rebut the theory. Powell v. State, 63 S.W.3d 435, 439-50 (Tex. Crim. App. 2001). In Powell, the defendant was charged with aggravated sexual assault of a child. The defense asserted that the defendant lacked the opportunity to commit the assault because there were other children present at the slumber party where the assault occurred. Id. The court held that this defense theory permitted the State to offer evidence about other occasions where the defendant had assaulted girls at his home during slumber parties. Id. In allowing the extraneous-offense evidence, the State proved that the defendant did, in fact, have the opportunity to sexually assault the victim even though other children were present at the slumber party. Id.
In comparison, here, appellant cross-examined the victim as follows:
Q: [Defense Counsel] So if the staff person isn’t looking directly into that room there’s no way he can see anything?
A: [D.R.] Yes, sir.
Q: Is that correct? Okay. But if that staff person is awake, surely he can hear things happening, correct?
A: Yes, sir.
Q: For some reason whoever that staff person was out there that night he didn’t hear anything going on in your room?
In pursuing this line of questioning, defense counsel likely was attempting to show the jury that appellant lacked the opportunity to commit the offense because there was a staff person on duty who would have heard or seen the act. In an attempt to rebut this theory, the State presented evidence of a previous sexual assault committed by appellant against J.M. That sexual assault took place only a month prior to, and in the same “ICU” unit as, the offense in this case. The State attempted to show that appellant was successful in sexually assaulting J.M. while remaining undetected in the same setting as the sexual assault against the victim in this case.
Thus, we conclude that the trial court did not abuse its discretion by allowing the State to offer evidence of the extraneous offense of sexual assault against J.M. in order to rebut the theory of “lack of opportunity” asserted by appellant. See Powell, 63 S.W.3d at 439-50. We overrule appellant’s issue. Accordingly, we affirm the judgment of the trial court.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b)
Memorandum Opinion delivered and filed this the
26th day of August, 2004.