Opinion issued August 27, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00784-CR
———————————
ALFRED CARL ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1295246
MEMORANDUM OPINION
The trial court found appellant, Alfred Carl Allen, guilty of the offense of
indecency with a child, 1 found true the allegation in an enhancement paragraph that
1
See TEX. PENAL CODE ANN. § 21.11(a) (Vernon 2011).
he had previously been convicted of a felony offense, and assessed his punishment
at confinement for twenty-five years. In five issues, appellant contends that the
evidence is legally insufficient to support his conviction and the trial court erred in
admitting the complainant’s outcry statement offered by a school counselor,
extraneous-offense evidence, and, during the punishment phase of trial, evidence
of a prior felony conviction from the State of Louisiana to prove the enhancement
allegation.
We affirm.
Background
The complainant testified that when she was eleven years old, she spent the
summer at her grandmother’s apartment. One day, while she and her grandmother
were “in front of her apartment on the steps,” appellant, who was moving into a
neighboring apartment, “walked over” and talked with her grandmother. He “kept
staring at” the complainant and made her “feel real uncomfortable.” Over time,
appellant and her grandmother “got close,” and he “started coming to her house”
and assisting her grandmother with running errands. The complainant noted that
he was “always over there” and “kept staring” at her.
On one occasion, as the complainant was walking into the kitchen, appellant
was standing in the doorway and “touched [her] on [her] breast” as she passed by
him. After she told her grandmother, who did not believe her, the complainant hid
2
under a dining room table. Appellant found her, “touched [her] on [her] breasts
again,” and then “touched [her] below [her] belt, [her] vagina.” After the
complainant began screaming, appellant left. When she told her brother what had
happened, he did not believe her.
The complainant further testified that “[o]n the day that [she] got raped,” her
grandmother, who was cooking, sent her to appellant’s apartment to retrieve
something. After seeing appellant’s fiancée and children leave their apartment, the
complainant knocked on the door, and appellant answered and invited her inside.
She declined, but he “told [her] to come in the house.” After she stepped inside,
appellant closed the door and locked it, “picked [her] up,” and “threw” her on the
floor. He then “pulled down” his “gym shorts,” pulled down her shorts and
underwear, and “raped her” by placing “his penis inside [her] vagina.” The
complainant explained that appellant held her down with his “body weight” while
she screamed and hit him, “trying to push him off.” And appellant “smil[ed]” at
her, like he “thought it was funny.”
After a “couple of” minutes, the complainant screamed louder, and appellant
got off of her. She then ran home and told her grandmother that “Mr. Alfred [had]
raped [her.]” However, her grandmother did not believe her. At some point after
the incident, “it wasn’t that day,” appellant told the complainant that if she told
anybody about what he had done, he would “hurt” her and her grandmother.
3
Approximately one year later, the complainant wrote about appellant’s
actions in her journal at school. After her teacher read the journal, the complainant
spoke with her school counselor, who then contacted her mother. The complainant
explained that, although she could not remember exactly when, she had previously
told her mother, while they were in a car together talking about dating, about what
appellant had done to her. When the complainant told her mother that she did not
want her to date because she did not want “the same thing to happen” to her, her
mother asked the complainant what she meant. And the complainant responded,
“Mr. Alfred raped me.” When her mother asked why she had not told her sooner,
the complainant stated that she was afraid “something” would happen to her.
On cross-examination, the complainant could not recall whether appellant
had abused her during the summer of 2008 or 2009. She asserted that he threw her
down, “pulled off his shorts,” unbuttoned her shorts and removed them, and then
“fell on top of her.” In contrast to her prior testimony, the complainant stated that
she did not “scream for help” because “nobody can hear you at an apartment.”
And she asserted that appellant had threatened her “while he was on top of [her].”
Although the complainant at one point stated that her mother “didn’t know” about
the abuse “until [the school counselor] told her,” she then stated that her mother
“already knew but she forgot.”
4
Kelly Minor, the complainant’s school counselor, testified that she spoke
with the complainant in the fall of 2010 after her teacher had become concerned
about her school journal entry. She told Minor that “two years prior,” “during the
summertime,” while she was staying with her grandmother, appellant would “come
over and help her [grandmother] with things that she physically could not do for
herself.” “[D]uring one occasion when he was there . . . working on a light
fixture,” he “needed [the complainant] to come back to his apartment to get
something else so that he could finish the project and during that time that he raped
her.” When Minor asked the complainant whether he had “penetrated her,” she
replied that “he took her clothes off of her and that there was . . . vaginal
penetration.” Minor made a report to the Texas Department of Family and
Protective Services (“DFPS”) and contacted the complainant’s mother. Minor
noted that the complainant’s mother had “brushed [her] off,” saying that “there was
not penetration” and appellant had “only laid on top of” the complainant.
Houston Police Department Officer N. Barnes, who was assigned to the
Harris County Children’s Assessment Center (“CAC”), testified that after DFPS
referred the complainant’s case to CAC, she scheduled a forensic interview and
medical examination of the complainant. Barnes also interviewed the
complainant’s mother and father, Minor, and appellant. The complainant’s mother
explained that the complainant did stay with her grandmother during the summer
5
of 2009, noting that her grandmother had since “passed away.” The complainant’s
mother “didn’t feel like [anything] had happened” with appellant and “didn’t see
any need to go any further with it.”
CAC forensic interviewer L. Holcomb testified that on January 11, 2011, she
interviewed the complainant and found her to be “forthcoming and very narrative
when disclosing the events.” Dr. L. Thompson, Jr., director of therapy and
psychological services at CAC, testified that it is not unusual for there to be a
delayed outrcry after a child has told someone about sexual abuse, but was not
believed.
Dr. B. Isaac, a CAC staff physician, testified that she examined the
complainant at a hospital in January 2011. After the trial court admitted into
evidence, without objection, the complainant’s medical records, Isaac testified
about its contents and the “directed interview” that she had conducted with the
complainant. Issac explained that although she found no physical evidence of
injury during the examination, none was expected given that it had been two years
since the alleged contact.
Sufficiency of the Evidence
In his fifth issue, appellant argues that the evidence is legally insufficient to
support his conviction because it does not establish that the offense was
6
“committed on or before the date alleged in the indictment” or he “engaged in
sexual contact with [the] complainant.”
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,
2788–89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Our role is that of a due process safeguard, ensuring only the rationality of the trier
of fact’s finding of the essential elements of the offense beyond a reasonable
doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We
give deference to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh evidence, and draw reasonable inferences from the facts.
Williams, 235 S.W.3d at 750. However, our duty requires us to “ensure that the
evidence presented actually supports a conclusion that the defendant committed”
the criminal offense of which he is accused. Id.
A person commits the offense of indecency with a child by contact if the
person, with a child younger than seventeen years of age and not the person’s
spouse, engages in sexual contact with the child or causes the child to engage in
sexual contact. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011). “Sexual
contact” means the following acts, “if committed with the intent to arouse or
7
gratify the sexual desire of any person: . . . any touching by a person, including
touching through clothing, of the anus, breast, or any part of the genitals of a
child.” Id. § 21.11(c)(1). The specific intent required may be inferred from a
defendant’s conduct and remarks, and all of the surrounding circumstances.
Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref’d).
And the uncorroborated testimony of a child complainant, standing alone, is
sufficient to support a conviction for indecency with a child. See TEX. CODE CRIM.
PROC. ANN. art. 38.07 (Vernon Supp. 2014); Bazanes, 310 S.W.3d at 40; Jones v.
State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Here, the complainant testified that when she was eleven years old, appellant
“pulled down” his “gym shorts,” pulled down her shorts and underwear, and
“raped her,” by placing “his penis inside [her] vagina.” This evidence establishes
the offense of indecency with a child.2 See TEX. CODE CRIM. PROC. ANN. art.
38.07; Jones, 428 S.W.3d at 169.
As noted by appellant, the State did not present medical, physical, or other
forensic scientific evidence to prove that he had committed the offense of
indecency with a child. Under the circumstances, however, the lack of medical or
2
Although appellant stood accused by indictment of the offense of aggravated
sexual assault of a child, the trial court found him guilty of the lesser-included
offense of indecency with a child. See Cunningham v. State, 726 S.W.2d 151,
154–55 (Tex. Crim. App. 1987) (holding indecency with a child lesser-included
offense of aggravated sexual assault of a child when both offenses predicated on
same act).
8
scientific evidence does not render the evidence supporting appellant’s conviction
legally insufficient. See Jones, 428 S.W.3d at 169 (“The State has no burden to
produce any corroborating or physical evidence.”); Washington v. State, 127
S.W.3d 197, 205 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) (“The jury
could have reasonably believed that [the complainant] was sexually assaulted, but
that, due to the circumstances of the assault, there was no physical evidence of the
assault remaining.”).
Appellant further asserts that the complainant “lacked credibility” and
presented “differing accounts of her story.” However, the trier-of-fact resolves all
conflicts in the evidence and is the exclusive judge of the credibility of the
witnesses and the weight to be given to their testimony. Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000); IslasMartinez v. State, 452 S.W.3d 874,
877 (Tex. App.—Dallas 2014, pet. ref’d).
Moreover, it is well-established that an indictment need not allege, and the
State need not prove, that an offense was committed on a specific date. See Garcia
v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998); Scoggan v. State, 799
S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990); see also TEX. CODE CRIM. PROC.
ANN. art. 21.02(6) (Vernon 2009). Rather, the date alleged or proved need only be
“anterior to [the] presentment of [the] indictment” and within the period of
limitations. Scoggan, 799 S.W.2d at 680 n.3; Worley v. State, 870 S.W.2d 620,
9
622 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Appellant “does not deny
[that] he was put on notice that he should prepare for proof [that] the event
happened at any time within the statutory period of limitations.” He argues, rather,
that the “dates proven at trial (summer of 2008, 2009, and 2010) are impossible
dates because [he] was no longer living at the location where the [offense] is
alleged to have occurred.” Although the evidence established that appellant was
not listed on a lease at the apartment complex at the time of the offense, the
complainant’s testimony established that he was, at the time of the offense, living
at the apartment complex with his fiancée.
Viewing all of the evidence in the light most favorable to the prosecution,
we conclude that a rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is
legally sufficient to support appellant’s conviction.
We overrule appellant’s fifth issue.
Outcry Statement
In his first issue, appellant argues that the trial court erred in admitting into
evidence the complainant’s outcry statement to Minor because she had already
made “statements that described the offense in a discernible manner” to her mother
“at least a year before talking to Minor.” See TEX. CODE CRIM. PROC. ANN. art.
38.072 (Vernon Supp. 2014).
10
We review trial court’s decision to admit evidence for an abuse of discretion.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
abuses its discretion only if its decision is “so clearly wrong as to lie outside the
zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d
571, 579 (Tex. Crim. App. 2008). We will not reverse a trial court’s evidentiary
ruling under article 38.072 unless it falls outside this zone of reasonable
disagreement. Bautista v. State, 189 S.W.3d 365, 367 (Tex. App.—Fort Worth
2006, pet. ref’d). We uphold a trial court’s evidentiary ruling if it is correct on any
theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336, 344
(Tex. Crim. App. 2009).
A statement made by a child fourteen years of age or younger who is the
victim of certain offenses, including indecency with a child, is exempted from the
hearsay rule if it was made by the person against whom the act was committed and
the witness testifying about the statement is “the first person, 18 years of age or
older, other than the defendant, to whom the child . . . made a statement about the
offense.” TEX. CODE CRIM. PROC. ANN. art. 38.072; see also Sanchez v. State, 354
S.W.3d 476, 484 (Tex. Crim. App. 2011). The complainant’s statement must be
“more than words which give a general allusion that something in the area of child
abuse [is] going on”; rather, it must describe the alleged offense in some
discernible manner. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
11
The trial court must “find, in a hearing conducted outside the presence of the jury,
that the statement is reliable based on time, content, and circumstances of the
statement.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2). And the child
must testify or be available to testify “at the proceeding in court or in any other
manner provided by law.” Id. art. 38.072, § 2(b)(3).
Here, the trial court conducted a hearing on the admissibility of the
complainant’s outcry statements to her mother and Minor. Minor testified that in
the fall of 2010, the complainant’s teacher brought the complainant to her office
regarding the complainant’s journal entry. Minor testified, in pertinent part, as
follows:
[Minor]: [The complainant] explained to me that in the summer
two years before, . . . she was with her grandmother
and . . . there was a man that was a friend of her
grandmother’s and that the man had raped her. She had
gone to the man’s apartment and that he had raped her. I
asked her if there was penetration and she said yes.
....
I wanted to know had she told anyone about it. She did
tell me that she had told her grandmother and her mother,
but her father did not know.
[State]: And specifically when she said she was raped, would you
please describe to the Court exactly what she told you
had happened.
[Minor]: She said that her grandmother was having some—a light
fixture or something replaced by this man Alfred Allen.
And that he was a 28-year-old guy that would help out
12
her grandmother because her grandmother was ill. And
that her grandmother thought highly of him. And that he
was changing a light fixture or something. They went
back to his apartment to get something to help. And in
the process that he raped her, that he took her clothes off
and raped her.
[State]: And when they went back to his apartment did she give
you any details of what happened inside of the
apartment?
[Minor]: Just that he took her clothes off and that there was
penetration.
[State]: Okay. And when you say “penetration,” penetration of
what?
[Minor]: That he inserted his penis inside of her vagina.
[State]: Okay. Did she say—describe anything else in that
incident when she was talking to you about the rape
itself?
[Minor]: Not that I recall.
Minor explained that she then contacted DFPS and the complainant’s mother.
The complainant’s mother testified that she remembered having received a
telephone call from someone at the complainant’s school “about two years ago,” in
the fall of 2010. She “vaguely remembered” an occasion prior to that when the
complainant, while riding in the back seat of the car, had “casually mentioned” that
“her grandmother [had] sent her to borrow some sugar from her neighbor,”
appellant, and “he pulled her into the house, into the apartment, pulled her shorts
13
down, and assaulted her.” The complainant’s mother further testified, in pertinent
part, as follows:
[State]: So after you start questioning her, what exactly does she
say to you happened, that you can remember?
[Mother] That he assaulted her. That he, you know, raped her.
[State]: Okay. And did she use the word “raped”?
[Mother]: She used the word “raped.”
[State]: And did you ask her any questions after that?
[Mother]: Well, after that—after I asked her, you know, like I said,
she kind of stopped talking about it. We didn’t talk
anymore about it. . . .
[State]: At that time when she said that she was raped what—did
she describe what had happened or just say that she was
raped?
[Mother]: Well, when I asked her about it, about him pulling her
into the house, pulling her shorts down, and getting on
top of her.
[State]: Okay. And what—did she say that—
[Mother]: She said—she said, No. That’s about all I can remember,
I mean.
[State]: Okay. Did she ever tell you that he put his penis in her
vagina?
[Mother]: Yes.
[State]: Okay. At this point did you call the police?
14
[Mother]: No, I did not. Actually the—well, the penis in the vagina,
that was another time.
....
[State]: And at that point what did she tell you about? Did she
tell you . . . that he put his penis in her vagina at that
time?
[Mother]: Not at this time. No, that came out later.
[State]: What does she tell you at that time?
[Mother]: That she—when she went to get the sugar, that he had
pulled her in. No one was there. He pulled down her
shorts and, you know, the penis in the vagina did not
come into it. I asked her and we didn’t go into detail. . . .
[State]: So all she told you at that time was that he pulled her into
the apartment; is that right?
[Mother]: Yes.
[State]: And that—and then he pulled down her pants?
[Mother]: Yes.
....
And she said he threatened her then.
[State]: Okay. And that’s all in this conversation?
[Mother]: That’s this conversation in the car, yes.
[State]: And you never asked her if, when he pulled down her
pants, if he raped her or put his penis in her vagina?
[Mother]: She froze up and, you know, she—she froze up. She did
not talk to me anymore about it. . . .
15
....
[State]: . . . About, between the car right where she is telling you
and getting the phone call from [Minor] at the middle
school, how much time had passed?
[Mother]: I am not sure. I would say about close to a year maybe.
[State]: And in that time period you hadn’t talked to [the
complainant] again about the assault from [appellant]?
[Mother]: No. . . .
(Emphasis added.)
On cross-examination, however, the complainant’s mother again testified
that the complainant, during a conversation in their car about year prior to the
telephone call from the complainant’s school counslor, said that her grandmother
sent her to borrow some sugar from appellant, and when she went to his apartment,
he “pulled her shorts down” and “raped her.” And the complainant’s mother
understood the word “rape” to mean a “sexual assault where [appellant] had put his
penis in the vagina.”
The State argued that Minor is the proper outcry witness under article 38.072
because the complainant had given her a “more detailed account—actually penis to
vagina—[which is] actually an important detail in this case, since the allegation is
sexual organ contacting sexual the defendant’s sexual organ.” And it asserted that
Minor was the “first person who could remember and relate what was actually said
by the witness.”
16
Appellant argued that the complainant’s mother is the proper outcry witness
because she is “the first adult” to whom the complainant “told the details of this
offense” and “specific detail about a penis in a vagina” was not required. He
asserted that the complainant’s mother “clearly understood” the words, “[h]e
pulled my shorts down and raped me,” to “mean sexual intercourse and some sort
of alleged force and sexual assault.” And the complainant made the statement to
her mother “clearly a year prior to [Minor] hearing it in the counselor’s office at
school.”
The trial court found:
[A]lthough there is clearly more than one outcry witness in this
matter, as is contemplated by Garcia versus State, . . . [Minor] is the
outcry witness appropriate for this matter inasmuch as she was told
more specific details than was told to the complaining witness’s
mother. So for purposes of the hearing—or for purposes of the trial,
rather, the Court will allow [Minor] to be the outcry witness . . . .
There may be only one outcry witness to a complainant’s statement about a
single event. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000,
pet. ref’d) (noting “outcry witness is not person-specific, but event-specific”). And
the proper outcry witness is not to be determined by simply comparing the
statements made by a complainant to different individuals and then deciding which
person received the most detailed statement about the offense. Elder v. State, 132
S.W.3d 20, 26 (Tex. App.—Fort Worth 2004, pet. ref’d).
17
Here, Minor and the complainant’s mother testified about the complainant’s
statements to them about a single event. The complainant’s statement to her
mother that “her grandmother [had] sent her to borrow some sugar from her
neighbor,” appellant, “and he pulled her . . . into the apartment, pulled her shorts
down,” and “raped her,” which her mother understood to mean, a “sexual assault
where [appellant] had put his penis in the vagina,” constituted more than a “general
allusion” that something in the area of child abuse had occurred and contained
sufficient information about the nature of the acts and the perpetrator to meet the
requirements of article 38.072. See Sanchez, 354 S.W.3d at 480, 484, 486 (holding
complainant’s statement defendant “picked her up, took her into the other room
and . . . put his penis in her” admissible under article 38.072). Although the
complainant’s mother had difficulty in remembering dates and specifics, “the
credibility of the outcry witness is not a relevant issue at a hearing to determine
admissibility of an outcry.” See id. at 487–88 (article 38.072 “does not charge the
trial court with determining the reliability of the statement based on the credibility
of the outcry witness”).
Accordingly, we hold that the trial court erred in admitting Minor’s
testimony regarding the complainant’s outcry statement made to her. See Brown v.
State, 189 S.W.3d 382, 386–87 (Tex. App.—Texarkana 2006, pet. ref’d)
(concluding CAC counselor not proper outcry witness because child complainant
18
had previously described offense in discernible manner to her father and his
girlfriend); Reed v. State, 974 S.W.2d 838, 841 (Tex. App.—San Antonio 1998,
pet. ref’d) (rejecting argument CPS worker was proper outcry witness because
complainant’s statements to her were “more detailed”).
Having concluded that the trial court so erred, we next consider whether the
error requires reversal. The admission of inadmissible hearsay constitutes
nonconstitutional error and must be considered harmless if an examination of the
record as a whole provides reasonable assurance that the error did not influence the
verdict or had but a slight effect. See TEX. R. APP. P. 44.2(b); Garcia v. State, 126
S.W.3d 921, 927 (Tex. Crim. App. 2004). An erroneous admission of evidence
does not constitute reversible error if the same or similar evidence is admitted
without objection at another point in the trial. Brooks v. State, 990 S.W.2d 278,
287 (Tex. Crim. App. 1999).
Here, the record reveals that prior to Minor’s testimony, Dr. Isaac, without
objection, testified in detail about how the complainant, in her interview with
Isaac, gave her substantially the same account of the offense as she gave to Minor.
Specifically, Isaac testified, in pertinent part:
[Isaac]: When asked why she was here at the clinic, she reported,
Because I told my mom about the rape. . . .
[State]: So what did you ask her next?
[Isaac]: What do you mean by rape?
19
[State]: And what did she respond?
[Isaac]: When somebody forces to have sex with you.
[State]: And what is the next question that you ask?
[Isaac]: Who did that to you?
[State]: And what does she respond?
[Isaac]: Some man. Allen or Alfred. I was 11. I was staying with my
grandmother for the summer. And this guy, he is in his 20’s.
He was my grandma’s friend or kind of like her son. I
thought he looked at me funny, he gave me a look made me
feel uncomfortable. He had raped me. I knocked on his
door to get something for my grandmother. She told me to
go over and ask him for something. His fiancée and kids
left. He gave me what my grandmother asked, then he
grabbed me and he pulled me on the floor. He fell on top of
me. He pulled down his red shorts and he pulled down
mine. He stuck his penis inside my vagina.
The trial court also, without objection, admitted into evidence the complainant’s
CAC medical records that contain essentially the same details about the offense.
See Duncan v. State, 95 S.W.3d 669, 671–72 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) (improper admission of testimony harmless because similar
testimony admitted through complainant, pediatrician, and medical records).
After examining the record as a whole, we conclude that the trial court’s
error in admitting Minor’s testimony about the complainant’s outcry statements to
her did not have a substantial and injurious effect or influence in determining the
20
outcome of trial. See Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App.
1998). Accordingly, we hold that the trial court’s error was harmless.
We overrule appellant’s first issue.
Extraneous-offense Evidence
In his fourth issue, appellant argues that the trial court erred in admitting
extraneous evidence of his conduct with the complainant because it was not
relevant and its probative value was substantially outweighed by the danger of
unfair prejudice. See TEX. R. EVID. 403, 404(b). As noted above, we review a trial
court’s decision to admit evidence for abuse of discretion. Martinez, 327 S.W.3d
at 736.
Evidence of a defendant’s bad character is generally not admissible to prove
that he acted in conformity therewith. See TEX. R. EVID. 404(b). When a
defendant is charged with indecency with a child, however, evidence of a previous
offense or bad act involving the same child may be admissible, as follows:
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, § 1(b), § 2(a)(1)(C) (Vernon Supp. 2014).
21
Here, the complainant testified that once, as she was walking into the
kitchen at her grandmother’s apartment, appellant, who was standing in a doorway,
“touched [her] on [her] breast” as she passed by him. After she hid under a dining
room table, appellant found her, “touched [her] on [her] breasts again,” and then
“touched [her] below [her] belt, [her] vagina.” This testimony was relevant to
demonstrate appellant’s state of mind and relationship with complainant. See
Sanders v. State, 255 S.W.3d 754, 759 (Tex. App.—Fort Worth 2008, pet. ref’d).
Even if evidence is admissible under article 38.37, a trial court still has “a
nondiscretionary obligation to weigh the probative value of the evidence against
the unfair prejudice of its admission” when, as here, a defendant objects to the
admission of extraneous offense evidence based on rule 403. See Martines v.
State, 371 S.W.3d 232, 246–47 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
When determining whether the danger of unfair prejudice in the admission of
evidence substantially outweighs the probative value of the evidence, we consider
(1) the probative value of evidence, (2) the potential of the evidence to impress the
jury in some irrational but indelible way, (3) the time during trial required to
develop the evidence, and (4) the State’s need for the evidence. State v. Mechler,
153 S.W.3d 435, 440 (Tex. Crim. App. 2005); see also Smith v. State, 355 S.W.3d
138, 153–54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). If the trial court
overrules the objection, we assume that it conducted the balancing test and
22
determined that the evidence was admissible. Martines, 371 S.W.3d at 247. The
trial court need not perform this balancing test on the record. Id.
Here, the first factor of the balancing test weighs in favor of admission of the
extraneous-act evidence because it was probative of appellant’s state of mind and
his relationship with the complainant and helped explain why the complainant
delayed her outcry. The second and third factors also weigh in favor of admission
of the evidence. The complainant’s testimony about the extraneous act was no
more detailed than her testimony about how appellant had assaulted her in his
apartment. As a result, the complainant’s testimony regarding the “rape” in
appellant’s apartment overshadowed any potential inflammatory response to
testimony about the extraneous act. And, as appellant concedes, the State spent
“very little time” in “developing the article 38.37 evidence.” And the fourth factor
weighs in favor of admission of the evidence because the State had no other
evidence that could similarly establish appellant’s state of mind and his
relationship with the complainant.
Accordingly, we hold that the trial court did not err in admitting the
complained-of extraneous evidence.
We overrule appellant’s fourth issue.
23
Punishment Evidence
In his third issue, appellant argues that the trial court erred in admitting into
evidence, during the punishment phase of trial, State’s exhibit 17, which consists
of court records concerning his prior conviction of a felony offense in the State of
Louisiana, because the records were not authenticated and violated his Sixth
Amendment right to confront the witnesses against him. See U.S. CONST. amend.
VI; TEX. R. EVID. 901, 902. Again, we review a trial court’s decision to admit
evidence for an abuse of discretion. Martinez, 327 S.W.3d at 736.
The trial court admitted, as a “certified public record,” 3 State’s exhibit 17,
which consists of court records from the Clerk of the Criminal District Court of
Orleans Parish, Louisiana, including a bill of information, a computerized printout
of the court’s records, and an extract of court minutes.
Extrinsic evidence of authenticity “as a condition precedent to admissibility
[of documents] is not required” with regard to:
(4) Certified Copies of Public Records. A copy of an official
record—or a copy of a document that was recorded or filed in a public
office as authorized by law—if the copy is certified as correct by:
(A) the custodian or another person authorized to make the
certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a
statute, or a rule prescribed under statutory authority.[4]
3
See TEX. R. EVID. 902(4).
4
We note that prior to the restyling of the Texas Rules of Evidence, effective April
1, 2015, rule 902(4) read as follows:
24
TEX. R. EVID. 902(4) (emphasis added). “Certified as correct” means that the copy
is certified as a correct copy of the governmental record. Bruton v. State, 428
S.W.3d 865, 875 (Tex. Crim. App. 2014). The record from which the certified
copy is derived need not itself be the original document, so long as the original
document is also a public record. Id. at 875–76.
Here, the bill of information states that on March 23, 2002, “Alfred Allen,”
within the jurisdiction of the Criminal District Court of Orleans Parish, did
A copy of an official record or report or entry therein, or of a
document authorized by law to be recorded or filed and actually
recorded or filed in a public office, including data compilations in
any form certified as correct by the custodian or other person
authorized to make the certification, by certificate complying with
paragraph (1), (2), or (3) of this rule or complying with any statute or
other rule prescribed pursuant to statutory authority.
TEX. R. EVID. 902(4), 61 TEX. B.J. 374, 398 (Tex. & Tex. Crim. App. 1998,
amended 2015); see Order, Final Approval of Amendments to the Texas Rules of
Evidence, Misc. Docket No. 15-001 (Tex. Crim. App. Mar. 12, 2015). The court
of criminal appeals, in its order, explained that, with limited exception, the rules
were not substantively changed:
Except for the amendments to Rules 511 and 613, which include
substantive amendments, these amendments comprise a general
restyling of the Texas Rules of Evidence. They seek to make the
rules more easily understood and to make style and terminology
consistent throughout. The restyling changes are intended to be
stylistic only.
....
. . . . The Texas Rules of Evidence restyling project was initiated
with the aim of keeping the Texas Rules as consistent as possible
with Federal Rules, but without effecting any substantive change in
Texas evidence law.
Order, Misc. Docket No. 15-001, § 2 (emphasis added). We apply the current
version of rule 902(4) accordingly.
25
“illegally and intentionally procure, receive, possess or conceal . . . a Chevrolet
Corsica valued at five hundred dollars or more.” The computerized printout of the
records of the Criminal District Court of Orleans Parish shows that on April 16,
2002, in case number 429-559, a bill of information was filed, charging “Alfred
Allen, Jr.” with possession of a stolen automobile valued at “over $500.” The
records further show that on February 12, 2003, “Alfred Allen, Jr.” appeared for
trial and was “found guilty” by the Honorable Frank Marullo of the offense of
possession of a “stolen auto” and sentenced to “18 months, at DOC at hard labor.”
The extract of court minutes also states that on February 12, 2003, in case number
429-559, “defendant Alfred Allen” was sentenced to “18 months, at the
Department of Corrections at hard labor.” Each page of State’s exhibit 17 bears a
stamped certification that it is “A True Copy” from the records of the “Hon. Arthur
A. Morrell,” “Clerk of [the] Criminal District Court” of “Orleans Parish,” and a
deputy clerk’s signature.
A “computer-generated compilation of information setting out the specifics
of a criminal conviction that is certified as correct by the county or district clerk of
the court in which the conviction was obtained is admissible under Rule 902.”
Flowers v. State, 220 S.W.3d 919, 922–23 (Tex. Crim. App. 2007). “The district
clerk is the legal custodian of the originals on file in the convicting court.” Reed v.
State, 811 S.W.2d 582, 584 (Tex. Crim. App. 1991). Rule 902(4) expressly
26
provides that the person executing the certification need not be the custodian of the
records so long as he is “authorized to make the certification.” 5 See TEX. R. EVID.
902(4); Bruton, 428 S.W.3d at 876.
Accordingly, we hold that the copies of the convicting court’s records,
which an Orleans Parish deputy clerk certified as correct, are self-authenticating.
See TEX. R. EVID. 902(4)(A); Martinez v. State, No. 08-06-00107-CR, 2008 WL
1903488, at *2 (Tex. App.—El Paso Apr. 30, 2008, no pet.) (not designated for
publication) (holding records of prior conviction from convicting court containing
certification from Bexar County Clerk’s office self-authenticating). Appellant
complains that “none of the documents in exhibit 17 contain a state seal.”
However, a state seal is not required for authentication. See TEX. R. EVID. 902(4)
(providing copy must be certified as correct by “the custodian or another person
authorized to make the certification or a certificate that complies with Rule 902(1)
[requiring seal], (2), or (3), a statute, or a rule prescribed under statutory authority”
(emphasis added)).
Appellant next argues that the trial court’s admission of State’s exhibit 17
violated his Sixth Amendment right to confront the witnesses against him because
5
In Texas, a deputy district clerk is authorized by statute to perform in the name of
the district clerk all official acts of the office of the district clerk. See TEX. GOV’T
CODE ANN. § 51.309(a) (Vernon 2013).
27
he had no “opportunity to cross-examine the Parish clerk” before trial and the State
did not show that the clerk was unavailable to testify during trial.
The Confrontation Clause of the Sixth Amendment guarantees an accused
the right “to be confronted with the witnesses against him” by having an
opportunity to cross-examine the witnesses. U.S. CONST. amends. VI, XIV; see
also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986);
Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The Confrontation
Clause bars the admission of testimonial statements of a witness who does not
appear at trial unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine him. 6 Crawford v. Washington, 541 U.S. 36, 59, 124
S. Ct. 1354, 1369 (2004); Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App.
2005).
6
Appellant asserts that there “remains an open question as to whether the
[C]onfrontation [Clause] applies during the punishment phase” of trial. The Texas
Court of Criminal Appeals has held that “when a PSI [pre-sentencing
investigation] is used in a non-capital case in which the defendant has elected to
have the judge determine sentencing,” the information in the PSI is “not subject to
the Confrontation Clause.” Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App.
2010). What the court in Stringer expressly declined to address was “whether
Crawford applies when a jury determines the sentence in a non-capital case.” Id.
(citing Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004)
(emphasis added)); see also Dixon v. State, 244 S.W.3d 472, 482–83 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (applying Confrontation Clause during
punishment phase of trial). Here, although appellant elected to have the trial court
determine his sentence, the evidence at issue does not involve a PSI. We need not
determine whether the Confrontation Clause applies in this case, however, because
we conclude that the complained-of evidence does not contain testimonial
statements.
28
A statement is “testimonial” if it constitutes a “solemn declaration or
affirmation made for the purpose of establishing or proving some fact.” Crawford,
541 U.S. at 51, 124 S. Ct. at 1364; see Russeau, 171 S.W.3d at 880. “[C]ourts that
have addressed the issue of public records documenting prior convictions or other
similar official findings have concluded that such records are non-testimonial and
therefore beyond the prohibition of Crawford.” Segundo v. State, 270 S.W.3d 79,
107 (Tex. Crim. App. 2008). These courts have “recognized [a] distinction
between official records that set out a sterile and routine recitation of an official
finding or unambiguous factual matter such as a judgment of conviction or a
bare-bones disciplinary finding and a factual description of specific observations or
events that is akin to testimony.” Id.; cf. Russeau, 171 S.W.3d at 880–81 (holding
jail records containing specific incident reports written by corrections officers
graphically documenting detailed observations of defendant’s numerous
disciplinary offenses testimonial and inadmissible under Crawford because officers
did not testify at trial).
Although appellant complains that he was denied his right to cross-examine
the Parish clerk, the records at issue merely set out a sterile recitation of the
proceedings in the Orleans Parish Criminal District Court, along with its official
findings, judgment of conviction, and assessment of punishment. See Segundo,
270 S.W.3d at 107. The records do not contain testimonial statements, narratives,
29
or written observations made by the Parish clerk. See Russeau, 171 S.W.3d at 880.
Further, appellant does not identify any specific statements as testimonial.
Accordingly, we hold that the trial court’s admission of State’s exhibit 17
did not violate appellant’s Sixth Amendment confrontation rights.
We overrule appellant’s third issue.
Sufficiency of Punishment Evidence
In his second issue, appellant argues that the court records contained in
State’s exhibit 17 are legally insufficient to establish that his prior conviction was
final because they do not include a “certified judgment or sentence,” or the
“functional equivalent,” and a waiver of appeal.
We note that the State, to establish that appellant was, in fact, convicted of a
prior felony offense, had to prove beyond a reasonable doubt (1) the existence of a
prior conviction and (2) appellant’s connection to the conviction. Flowers, 220
S.W.3d at 921; see also TEX. CODE CRIM. PROC. ANN. art. 37.07, § (3)(a)(1)
(Vernon Supp. 2014). Proof of a prior conviction does not require the production
of a certified judgment. Flowers, 220 S.W.3d at 922 (noting no “best evidence”
rule exists requiring proof of previous conviction with any document, “much less
any specific document.”). In Flowers, the court explained:
While evidence of a certified copy of a final judgment and sentence
may be a preferred and convenient means, the State may prove both of
these elements in a number of different ways, including (1) the
defendant’s admission or stipulation, (2) testimony by a person who
30
was present when the person was convicted of the specified crime and
can identify the defendant as that person, or (3) documentary proof
(such as a judgment) that contains sufficient information to establish
both the existence of a prior conviction and the defendant’s identity as
the person convicted.
220 S.W.3d at 921–22 (footnotes omitted). “Regardless of the type of evidentiary
puzzle pieces the State offers to establish the existence of a prior conviction and its
link to a specific defendant, the trier of fact determines if these pieces fit together
sufficiently to complete the puzzle.” Id. at 923. If the two necessary elements
“can be found beyond a reasonable doubt, then the various pieces used to complete
the puzzle are necessarily legally sufficient to prove a prior conviction.” Id.
As noted above, the records, including the bill of information, computerized
printout, and extract of court minutes, of the Orleans Parish Criminal District Court
establish that on February 12, 2003, in case number 429-559, “Alfred Allen, Jr.”
appeared for trial and was “found guilty” by the Honorable Frank Marullo of the
offense of possession of a “stolen auto” and sentenced to “18 months, at the
Department of Corrections at hard labor.” Further, the trial court admitted into
evidence State’s exhibit 20, a record, created by the Louisiana Department of
Corrections, of fingerprints taken from “Alfred Allen” on February 12, 2003,
related to case number 429-559. It includes appellant’s birthdate, social security
number, and personal descriptors. And it is certified by an authorized
representative of the Deputy Secretary to be true copy of the “subject’s record from
31
the files of the Bureau of Criminal Identification, Office of Louisiana State
Police.” Moreover, Harris County Sheriff’s Deputy R. Glover, a fingerprint
examiner, testified, without objection, that he compared the fingerprints contained
in State’s exhibit 20 with those that he took from appellant in the courtroom, and
he concluded that the fingerprints contained in State’s exhibit 20 were made by
appellant.
In Flowers, the State used a “certified copy of a computer printout” from the
Dallas County Clerk to establish that the defendant had been previously convicted
of the offense of driving while intoxicated (“DWI”). 220 S.W.3d at 924–25. The
printout set out that the defendant had been convicted on August 18, 1995 of the
offense of DWI and sentenced to confinement for 45 days. Id. And it contained
his birthdate, address, social security number, and other personal descriptors. Id. at
925. The trial court also admitted the defendant’s driver’s license record, which
matched the personal information contained in the clerk’s record. Id. The
defendant challenged the use of the computer printout on the ground that it was not
a certified copy of a final judgment. Id. at 920–21. The court of criminal appeals,
in holding this evidence legally sufficient to prove that the defendant had been
previously convicted as alleged, explained that “the important issue [was] not
whether [the exhibit] represent[ed] a judgment of conviction or its functional
equivalent,” but whether a “reasonable trier of fact could view [the exhibit] and
32
find beyond a reasonable doubt” that the alleged prior conviction existed and was
linked to the defendant. Id. at 924.
Here, given the information contained in State’s exhibit 17 and Deputy
Glover’s testimony about appellant’s fingerprints, the trial court could have
reasonably found that appellant is, in fact, the same person who was convicted of
“the felony of POSSESSION OF [A] STOLEN AUTO . . . on FEBRUARY 12,
2003, in Cause Number 429-559, in the CRIMINAL DISTRICT COURT,
PARISH OF ORLEANS, LOUISIANA.” See id. at 921; Castle v. State, 402
S.W.3d 895, 899–900 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding
evidence, which included indictment and extract of court minutes, both certified by
deputy clerk, legally sufficient to support finding defendant had prior Louisiana
conviction).
Appellant further argues that the State did not prove that the Louisiana
conviction is final because State’s exhibit 17 “does not include a waiver of appeal”
and the absence of such a waiver “raises a question as to the finality of the
enhancement conviction.” In support of his argument, he relies on Henry v. State,
331 S.W.3d 552, 555 (Tex. App.—Houston [14th Dist.] 2011, no pet.). In Henry,
however, the court held that there was a question as to the finality of the prior
conviction because the State had introduced as its evidence a prior judgment of
conviction that stated on its face that a notice of appeal had been filed. Id. at 555–
33
56. The court held that when “‘the State’s proof of [a] prior conviction shows on
its face that the conviction was appealed, the State must put on evidence that [the]
mandate has issued.’” Id. at 556 (quoting Ex parte Chandler, 182 S.W.3d 350, 358
(Tex. Crim. App. 2005)). Because the State had failed to sustain its burden of
proof, the conviction could not be used for enhancement purposes. Id.
Here, the record does not reflect that appellant challenged by appeal his
Louisiana conviction. Once the State provides prima facie evidence of an
enhancement conviction, as here, “this Court will presume that [the] conviction is
final when faced with a silent record regarding such.” Fletcher v. State, 214
S.W.3d 5, 8 (Tex. Crim. App. 2007); see Johnson v. State, 583 S.W.2d 399, 403
(Tex. Crim. App. 1979) (noting once State has introduced prima facie evidence of
final conviction, “the defense has the burden of proving that the conviction was not
final”). Because nothing in the record before us suggests otherwise, we presume
that appellant’s Louisiana conviction is final. See Fletcher, 214 S.W.3d at 8.
Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the trial court could have reasonably found the allegation in the
enhancement paragraph of the indictment true beyond a reasonable doubt.
Accordingly, we hold that the evidence is legally sufficient to support the trial
court’s finding that the enhancement allegation is true.
We overrule appellant’s second issue.
34
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
35
Alfred Carl Allen v. State
Combined Opinion