Affirmed and Opinion Filed July 30, 2014
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00921-CR
JOSHUA PAUL WASHBURN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1161795-Y
OPINION
Before Justices Moseley, O’Neill, and FitzGerald
Opinion by Justice FitzGerald
A jury convicted appellant of aggravated sexual assault of a child under fourteen years of
age and sentenced him to twenty-five years’ imprisonment. In four issues on appeal, appellant
challenges the admission of testimony concerning other crimes, wrongs, and bad acts committed
against the victim. Concluding appellant’s arguments are without merit, we affirm the trial
court’s judgment.
BACKGROUND
At trial, M.W. testified that she was born on October 12, 1992, in Tanzania, Africa, and
was adopted along with her brother, F.W., by appellant’s parents, Phil and Phyllis Washburn,
when she was four years old. The Washburns have another adopted child, C.A., and two
biological sons, appellant and his brother Jacob. The family moved to Ferris, Texas when M.W.
was five.
In November of 2001, when M.W. was nine, the family moved to Dallas. M.W., F.W.,
and C.A. each had a separate bedroom in Dallas. Appellant and Jacob shared a guest bedroom
until Jacob moved out in 2002. Appellant lived in the house full-time for six months until he
started school in Arlington in May of 2002; after that, he came home every weekend.
M.W. testified that she first remembers inappropriate contact by appellant when she was
five years old. M.W. said that she and appellant would “snuggle on the couch” and appellant
would touch her, or get very close to her and “rub” her as he touched her breasts and vagina. The
two would also snuggle in appellant’s bed, where appellant would touch M.W. and unbutton his
jeans. The activity M.W. described as “touching and kissing and dry humping . . . just rubbing up
against each other” happened many times in Ferris and continued until the family moved to
Dallas.
During the first six months in Dallas, appellant and M.W. developed a routine in which
they frequently got in bed together, and appellant kissed and touched M.W. and made her climb
on top of him. After appellant moved to Arlington, this activity continued whenever he came
home. Eventually, Appellant began removing M.W.‘s clothing before she climbed on top of him,
and she could feel his penis through the hole in his underwear. While he was touching her,
appellant told M.W. that her kissing was getting better, and he complimented her breasts and
asked if she ever shaved around her vagina. While M.W. was on top of him, appellant would tell
her to “move around a lot,” and that she “needed to go slower.”
When M.W. was ten years old, she began questioning appellant about his behavior.
Appellant told her, “You know not to tell Mama and Papa.” On one occasion appellant
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masturbated in front of M.W. On another occasion, he asked to see her training bra, and when
she showed him he started “grabbing” and “caressing” her breasts.
Appellant first put his fingers in M.W.’s vagina when she was ten. When M.W. told
appellant that it hurt, he told her that “it won’t hurt for too long,” and that he was doing it to get
her “ready.” Appellant would ask M.W. things such as why she liked to be on top. One night,
everyone in the family except M.W. and appellant went to the movies. When the family returned
home and had gone to sleep, M.W. and appellant engaged in their “usual routine.” But this time
appellant got on top and M.W. could feel his penis penetrate her. He stopped before he
ejaculated. Afterwards, M.W. simply got dressed and “went to bed.”
Appellant penetrated M.W. with his penis “more than once,” but “less than five times.”
He would rub M.W.’s vagina with his penis through the hole in his boxers, and he continued to
penetrate her vagina with his fingers. Appellant also instructed M.W. about how to touch his
penis.
The abuse ceased in 2003 when appellant got married. M.W. had no further contact with
appellant other than a text message in which appellant inquired about M.W.’s sexual activity
with others.
In 2006, M.W. told a church-camp counselor about the abuse, and the counselor told
M.W. to tell her mother. M.W. did not tell her parents when she returned home from camp
because she was afraid. The church-camp counselor testified that there was no way that she was
going to step forward and tell anyone because appellant’s father, Mr. Washburn, was a pastor at
the church.
When she was fifteen years’ old and a freshman in high school, M.W. finally told her
parents. Her parents “brushed it off.” When she was eighteen, M.W. told her mother she wanted
to get some counseling. M.W.’s mother said, “Oh, this thing again.”
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M.W. met with a counselor in 2011, and the counselor reported the abuse. M.W. also told
her sister, C.A., and her sister-in-law, and the three of them confronted appellant’s father. C.A.
accompanied M.W. when she reported the abuse to the Dallas Police Department. A detective
interviewed M.W., the church-camp counselor, and another person from the church camp. The
detective also met with appellant’s father. Appellant was subsequently indicted. The indictment
charged that on or about the first day of February, 2002, appellant sexually assaulted M.W. by
causing the contact and penetration of her female sexual organ with his own, when M.W. was
younger than fourteen years of age.
ANALYSIS
Appellant raises four challenges to the admission of M.W.’s testimony concerning other
crimes, wrongs, and bad acts. Appellant argues: (1) the trial court abused its discretion in
admitting the testimony; (2) the trial court erred in failing to give a limiting instruction at the
time of the testimony; (3) the trial court abused its discretion in refusing to conduct a Rule 403
balancing test; and (4) the trial court erred in refusing a limiting instruction in the charge. We
begin our review with consideration of whether the evidence was properly admitted.
Admission of the Evidence.
Appellant argues the trial court erred in admitting M.W.’s testimony about acts other than
the charged offense. Specifically, appellant complains the trial court erred when it allowed M.W.
to testify that appellant “rubbed or touched her breasts or vagina, penetrated her sexual organ
with his fingers, masturbated in front of her, or committed any other crimes, wrongs, or acts
other than the charged offense.” Appellant contends this evidence was inadmissible under Rule
404(b) and was not same transaction contextual evidence. The State responds that appellant
failed to preserve this issue for our review, but regardless, the evidence was admissible under
article 38.37 of the code of criminal procedure.
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We review the trial court’s decision to admit the evidence for abuse of discretion.1 If the
trial court’s ruling is within the zone of reasonable disagreement, there is no abuse of discretion.2
If a trial court’s action is correct, although incorrect or insufficient reasons are given, no
reversal will follow, especially with regard to the admission of evidence.3 Here, we need not
consider whether the trial court erred in admitting the evidence as same transaction contextual
evidence because the evidence was admissible under article 38.37 of the code of criminal
procedure.4
In sexual abuse cases involving minors, article 38.37 of the Texas Code of Criminal
Procedure provides that evidence of crimes, wrongs, or acts committed by the defendant against
a child who is the victim of the alleged offense shall be admitted for its bearing on relevant
matters, including the state of mind and previous relationship between the defendant and child.5
Article 38.37 is an evidentiary rule and by its express terms supersedes in certain sexual abuse
cases the application of Texas Rule of Evidence 404(b)6. Specifically, the statute provides:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of
other crimes, wrongs, or acts committed by the defendant against the child
who is the victim of the alleged 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.7
1
Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
2
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
3
See McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).
4
See TEX. CODE CRIM. PROC. ANN. art. 38.37, §2 (West Supp. 2002) (version of statute in effect at time of offense). Current version at TEX.
CODE CRIM. PROC. ANN. art. 38.37 (1) (b) (West Supp. 2013).
5
TEX. CODE CRIM. PROC. ANN. art. 38.37; see also Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006) (stating appellant not entitled to
be protected from admission of extraneous sexual offenses committed by him against child; article 38.37 permits admission of evidence of
offenses to show previous and subsequent relationship between appellant and child victim).
6
See Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref’d).
7
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2.
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The complained-of testimony all described acts committed by appellant against M.W.
prior and subsequent to the charged offense. M.W. described appellant’s actions beginning when
she was five years old and the family lived in Ferris and during the first six months the family
lived in Dallas. M.W. testified that she and appellant got into bed “frequently,” and that it
became a “routine.” Appellant encouraged M.W.’s sexual activity by making sexual comments
and masturbating in front of her. Appellant got M.W. “ready” to have sex by penetrating her
vagina with his fingers.
This testimony was relevant to the charged offense, and showed both the prior and
subsequent relationship between M.W. and appellant as well as appellant’s and M.W.’s state of
mind. Consequently, the trial court did not abuse its discretion in allowing the testimony.
Appellant’s first issue is overruled.
Limiting Instructions.
In his second and fourth issues, appellant asserts the trial court erred in refusing to give
the jury limiting instructions, contemporaneously when the testimony was offered, and in the
charge to the jury.
When the prosecutor asked M.W. the first thing she remembered happening with
appellant when she was five, defense counsel objected, stating:
I object as extraneous, ask the court for an instruction prior to them or at
the time the– understand the court’s ruling previously but I ask for an
instruction at the time of the testimony.8
The trial judge overruled the objection and stated, “I’m not going to instruct the jury.”
Appellant argues that the trial judge denied the request because he believed the testimony
was same transaction contextual evidence. According to appellant, the evidence was not same
8
The record does not reflect any “previous ruling” on this issue.
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transaction contextual evidence and therefore the trial court was required to give a limiting
instruction.
With regard to limiting instructions, Texas Rule of Evidence 105(a) provides that when
“evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the
jury accordingly.”9 “The language of Rule 105(a) requires, upon proper request, a limiting
instruction to be given at the time the evidence is admitted.”10 However, the Texas Court of
Criminal Appeals has held that “a limiting instruction is not required when evidence is admitted
as same-transaction contextual evidence.”11
When a party requests a limiting instruction, he must inform the trial court what limits
must be placed on the evidence; otherwise, denial of the request has not been preserved for
appellate review.12 When appellant objected, he did not specify what limitations should be placed
on the testimony. Indeed, appellant only objected to the question referenced above. There were
no further objections or requests for an instruction for the remainder of M.W.’s testimony, nor
was there a request for a running objection. Appellant’s complaint about the lack of a
contemporaneous instruction has not been preserved for our review.13
Appellant also requested a limiting instruction at the charge conference. The following
exchange occurred:
9
TEX. R. EVID. 105(a); see Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001).
10
Hammock v. State, 46 S.W.3d 889,894 (Tex. Crim. App. 2001); Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996) (op. on
orig. submission).
11
Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim. App. 2011) (citing Castaldo v. State, 78 S.W.3d 345, 352 (Tex. Crim. App. 2002)).
12
See Wells v. State, 241 S.W.3d 172, 179 (Tex. App.—Eastland 2007, pet. ref’d).
13
See TEX. R. APP. P. 33.1.
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COUNSEL: I believe we’re entitled to get just a limiting instruction
without the Court out loud stating what it went through in a 403, 404
balancing test. The Court’s determined it’s admissible for a limited
purpose.
THE COURT: It wasn’t a 403, 403 balancing test. It was that I decided
that it was not 404(b) in the first place, that it was inextricably intertwined
charged offense and res gestae. I could tell them that or I could tell them in
the alternative, it goes to show the defendant’s plan if you wanted me to
do that but then I cautioned you that I didn’t necessarily think that would
be the most sagacious thing in the world.
COUNSEL: I certainly do not want you to state what you have just said
now in front of the jury.
THE COURT: Right. You want me to just say that I think it’s inextricably
intertwined or you want to think about that over lunch?
COUNSEL: Let me think over lunch. Obviously we do not want the Court
to express out loud any --
THE COURT: What exactly do you want me to tell them?
COUNSEL: That he is on trial for one offense. These other things are
being offered for the purposes for which they are being offered to show
his state of mind or relationship between the accused and the complainant
and it’s for that purpose only, not to show any other.
THE COURT: I decline to do that. Exactly the way I said it or not at all.
PROSECUTOR: I believe the language defense counsel is using is under
38.37 specifically.
THE COURT: I made my ruling. I think I know what I am doing. So
that’s that.
On appeal, appellant now complains that he was entitled to an instruction “in keeping
with the dictates of article 38.37.” But even if we were to construe the charge conference
exchange as a sufficiently specific request for an instruction pursuant to 38.37, the request was
not timely made because testimony had already been admitted without limitation.
An objection to the admission of evidence and the request for a limiting instruction must
be made when the evidence is first introduced for a party to be entitled to a limiting instruction
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regarding the proper use of the evidence.14 Once the evidence has been admitted without a
limiting instruction, it is part of the general evidence and may be used for all purposes.15 As
stated in Hammock:
If the jury is required to consider evidence in a limited manner, then it
must do so from the moment the evidence is admitted. Allowing the jury
to consider evidence for all purposes and then telling them to consider that
same evidence for a limited purpose only is asking a jury to do the
impossible. If a limiting instruction is to be given, it must be when the
evidence is admitted to be effective.16
When the evidence was first introduced at trial, appellant failed to request a specific
instruction, and made no reference to article 38.37. When the court overruled appellant’s
objection, the evidence was admitted for all purposes. After all of the evidence had been
presented to the jury, an instruction was not warranted. Therefore, the trial court did not err in
refusing to include a limiting instruction in the charge to the jury. Appellant’s second and fourth
issues are overruled.
Rule 403 Balancing Test.
In his third issue, appellant argues the trial court “refused” to conduct a Rule 403
balancing test. Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.”17 A party must make a specific objection based on Rule 403; a Rule
404(b) objection will not preserve a Rule 403 complaint.18 But we find no Rule 403 objection in
14
Hammock, 46 S.W.3d at 894.
15
Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).
16
Hammock, 46 S.W.3d at 894.
17
TEX. R. EVID. 403.
18
See Williams v. State, 290 S.W.3d 407, 411 (Tex. App.—Amarillo 2009, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 388
(Tex. Crim. App. 1990)).
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the record, and appellant has not cited to one. Therefore, the appellant’s complaint has not been
preserved for our review.19 Appellant’s third issue is overruled.
CONCLUSION
Having resolved all of appellant’s issues against him, we affirm the trial court’s
judgment.
/Kerry P. FitzGerald/
Do Not Publish KERRY P. FITZGERALD
TEX. R. APP. P. 46 JUSTICE
130921F.U05
19
Id.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSHUA PAUL WASHBURN, Appellant On Appeal from the Criminal District Court
No. 7, Dallas County, Texas
No. 05-13-00921-CR V. Trial Court Cause No. F-1161795-Y.
Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee Justices Moseley and O'Neill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 30, 2014
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