In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00464-CR
LEONEL MORALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 147th District Court
Travis County, Texas
Trial Court No. D-1-DC-11-900388, Honorable Wilford Flowers, Presiding
January 10, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Leonel Morales, appeals his conviction for the offense of aggravated
sexual assault,1 and resulting sentence of confinement for life in the Institutional
Division of the Texas Department of Criminal Justice (ID-TDCJ). Through one issue,
appellant contends that the trial court committed reversible error in allowing evidence of
an extraneous sexual assault to be presented to the jury. Contained within that issue,
appellant also complains that, if the extraneous offense evidence was admissible, the
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i) (West Supp. 2013).
probative value of such evidence was substantially outweighed by the danger of unfair
prejudice to appellant. We will address these issues in turn and affirm the judgment of
the trial court.
Factual and Procedural Background
Although appellant does not contest the sufficiency of the evidence, we will
discuss those portions of the record required to resolve the issue presented. At the
outset, appellant contends that the record reflects that the issue of consent was not
challenged, and the only defensive theory presented by trial counsel was that appellant
was guilty of only sexual assault and not aggravated sexual assault as charged in the
indictment. The State contends that through the cross-examination of the victim, Amy
Adams,2 and other State’s witnesses, appellant effectively challenged whether the
assault was without Amy’s consent.
On April 3, 2005, Amy got off work and was walking home along Cameron Road
in Austin. A small gold colored Chevrolet pick-up truck approached her and stopped
next to her. Appellant was the driver of the truck. Appellant got out of the truck, came
to the side where Amy was standing, and forced her into the truck. After going back to
the driver’s side and reentering the truck, appellant drove off rapidly, running red lights
en route to a heavily wooded area where he stopped the pick-up. The location of the
assault was adjacent to Johnny Morris Road between Loyola Lane and U.S. Highway
290 in Austin. After Amy got out of the truck, appellant forced her to have sexual
2
―Amy Adams‖ is a pseudonym used by the victim and we will refer to her as Amy throughout this
opinion.
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intercourse with him. Appellant then left the scene and Amy walked to her apartment
where she called 911.
On the day the assault was reported, Amy visited with several police officers
about the events and submitted to a sexual assault examination by a sexual assault
nurse examiner (SANE). All of those that interviewed Amy that day, later prepared
written reports or had written or recorded interviews with Amy. These reports and
recordings provided some of the cross-examination material that trial counsel used
during his examination of Amy and will be detailed later in this opinion.
In addition to the cross-examination of Amy, appellant cross-examined each of
the police officers who prepared incident reports or took written or recorded statements
from Amy about discrepancies between Amy’s trial testimony and the incident reports
and written or recorded statements. The tenor of this cross-examination was to portray
Amy as someone who either did not remember the facts or was skewing the facts to
support her view of the facts.
After the State had presented its evidence and Amy and several of the State’s
witnesses had been extensively cross-examined, the State requested that the trial court
rule on the issue of whether to permit proof of appellant’s extraneous offenses. The trial
court then allowed the State to proffer, out of the presence of the jury, what the
testimony was they proposed to present on this issue. Following a proffer and a
discussion of the application of the law of extraneous offenses, the trial court ruled that
it would permit the introduction of evidence of a single extraneous offense that the court
found to be most similar to the offense being tried. Further, in its ruling, the trial court
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stated that the evidence was allowed to show motive, common plan, or scheme to rebut
the issue of consent, which the trial court found that the questioning of the State’s
witnesses had raised.
Subsequently, the jury heard evidence regarding the sexual assault of Martha
Level.3 Martha testified that, on the night of May 22, 2005, she was searching for her
husband near the intersection of Manor and Loyola roads in Austin. She noticed a
small brown pick-up truck driving around that area. The truck came by her location on
at least two occasions and eventually stopped next to her. A Hispanic male then
pointed a gun at her and told her to get into the truck. He then drove her to a secluded
location in a wooded area on Old Manor Road in Austin, where he sexually assaulted
her.
At the conclusion of the evidence in the present case, the jury convicted
appellant of aggravated sexual assault and assessed his punishment at confinement in
the ID-TDCJ for life.
Through a single issue, appellant claims that the admission of the extraneous
offense evidence was reversible error and that, if the evidence was admissible, its
probative value was substantially outweighed by the danger of unfair prejudice to the
appellant. We disagree and will affirm.
3
―Martha Level‖ is a pseudonym used by the victim in the extraneous offense case, and we will
refer to the victim by that name.
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Extraneous Offense Evidence
Standard of Review and Applicable Law
As an appellate court, we review a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. Davis v. State, 329 S.W.3d 798, 803
(Tex. Crim. App. 2010). A trial court abuses its discretion when its decision is outside
the zone of reasonable disagreement. Id.
Relevant evidence of a person’s bad character is generally not admissible for the
purpose of showing that he acted in conformity therewith. Robbins v. State, 88 S.W.3d
256, 259 (Tex. Crim. App. 2002). However, such evidence may be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake. TEX. R. EVID. 404(b);4 De La Paz v. State, 279 S.W.3d
336, 342-43 (Tex. Crim. App. 2009). The exceptions listed in Rule 404(b) are not
intended to be mutually exclusive or exhaustive. De La Paz, 279 S.W.3d at 343.
Further, Rule 404(b) is not intended as a rule of exclusion but is instead a rule of
inclusion. Id. Evidence that may be admissible under Rule 404(b) may still be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice. Rule
403.
In a prosecution for a sexual assault, the State must prove that the appellant
engaged in the conduct intentionally or knowingly without the victim’s consent. TEX.
PENAL CODE ANN. § 22.021(a)(1)(A)(i); See Johnson v. State, 932 S.W.2d 296, 302
(Tex. App.—Austin 1996, pet. ref’d). Accordingly, lack of consent is an element of the
4
Further reference to the Texas Rules of Evidence will be by reference to ―Rule ____.‖
5
crime charged. Further, when the defensive theory of consent is raised, a defendant
necessarily disputes his intent to do the act without consent. Martin v. State, 173
S.W.3d 463, 467 n.1 (Tex. Crim. App. 2005).
Analysis of the Rule 404(b) Challenge
Appellant argues that the extraneous offense offered by the State proves nothing
but conformity with the allegations of appellant’s bad character. According to appellant,
this is so because trial counsel’s theory of the case went to the issue that the State
could not prove the aggravating factors necessary to elevate the crime at issue from
sexual assault to aggravated sexual assault. Specifically, appellant argues that the
record reflects that trial counsel went to great lengths to explain that he was not
contesting the issue of consent and, therefore, there was no material issue of consent
before the jury. See Robbins, 88 S.W.3d at 261.
The State counters that, while appellant may have verbalized that he was not
contesting consent as a theory of the defense, the cross-examination of Amy and other
State’s witnesses could easily be viewed as an attack on the issue of whether Amy
consented to the intercourse that is the basis of the indictment.
An appellant’s plea of not guilty does not, in and of itself, open the door to the
admission of extraneous offenses. See id. at 260. However, when the appellant goes
beyond a simple plea of not guilty, he may through vigorous cross-examination of the
State’s witnesses open the door for the admissibility of such extraneous offenses. See
id. at 261.
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Our examination of the record before us leads to our conclusion that appellant
did, in fact, open the door to the admissibility of the extraneous offense in question.
This is demonstrated initially through the cross-examination of Amy. During that cross-
examination, trial counsel highlighted a perceived inconsistency in the report Amy
initially gave to the responding officer that she was waiting on a bus when she first
encountered appellant. She had testified on direct examination that she was walking
home when she initially observed appellant driving in his truck. This was then followed
by extensive cross-examination about whether she talked to appellant before getting
into his vehicle. Later, trial counsel had Amy demonstrate what actions appellant used
to force her into the truck. From reading the cold record, one could deduce that trial
counsel was trying to show how little force, if any, was used to get Amy in the truck.
Trial counsel questioned her extensively about the type of locks the door of the truck
had on it, specifically, whether these were manual locks or electronic locks. The
testimony revealed that the truck had manual locks that could be opened by simply
pulling up on them. Following this line of questioning, trial counsel inquired about what
appellant did after she was in the truck. Testimony was elicited from Amy that appellant
went around the back of the truck to the driver’s side door instead of taking a shorter
route around the front of the truck. The cross-examination then turned to the drive
toward the secluded spot where the assault took place. Amy was then specifically
asked whether or not, during the time she was in the truck, she tried to get out of the
vehicle or do anything. This was followed up with a line of questioning regarding
whether Amy had, during the drive to the secluded area, attempted to grab the steering
wheel. Trial counsel asked specifically:
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Q. Okay. But, isn’t it true that you told Detective Benningfield that you
tried to grab the steering wheel?
A. No.
Q. You never tried to grab the steering wheel?
A. No.
Q. Okay. Could you have told that to Officer Gordon?
A. No.
Q. So, you never told anyone that you tried to grab the steering wheel-
A. –No.
Q. – to get away? All right.
Trial counsel then elicited testimony from Amy that appellant did not strike her, threaten
her with a gun, or orally threaten her. Later, cross-examination of Amy produced
testimony that, when appellant got Amy to the spot where the assault took place, she
got out of the truck before appellant got to her side of the vehicle. Amy was also cross-
examined about whether appellant told her to pull her pants down or she did so on her
own.
In addition to the cross-examination of Amy, trial counsel aggressively cross-
examined all responding officers and the SANE nurse. Much of this cross-examination
went to the issue of Amy’s credibility. Essentially, trial counsel seemed to portray Amy
as someone who could or would not remember the facts.
While not ever challenging Amy directly regarding whether the sexual intercourse
between her and appellant was consensual, the overall tenor and import of the cross-
examination can, in fact, be understood to imply that she consented to the sexual
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intercourse. That a jury might have understood this was the import of the questioning is
certainly not outside the zone of reasonable disagreement. See Davis, 329 S.W.3d at
803. With this in mind, we are reminded that the trial court ―has the best vantage from
which to decide‖ questions of admissibility. See Gorman v. State, No. 03-07-00416-CR,
2008 Tex. App. LEXIS 5344, at *13 (Tex. App.—Austin July 17, 2008, no pet.) (mem.
op., not designated for publication) (quoting Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh’g)). In fact, such is the reasoning behind the
deference appellate court’s pay to the trial court’s rulings on admissibility of evidence.
See Robbins, 88 S.W.3d at 259-60. Accordingly, we overrule appellant’s issue to the
contrary.
Analysis of the Rule 403 Challenge
A second part of appellant’s issue contends that, even if the evidence was
admissible, the probative value of such evidence was substantially outweighed by the
danger of unfair prejudice. Rule 403.
When we review a trial court’s ruling regarding a Rule 403 objection, we again
apply an abuse of discretion standard of review. See Davis, 329 S.W.3d at 803. Rule
403 requires the trial court to perform a balancing test of the factors listed in the rule.
See De La Paz, 279 S.W.3d at 348-49. According to De La Paz, the factors we are to
consider are:
1) How compellingly the extraneous offense evidence serves to make a fact
of consequence more or less probable--a factor which is related to the
strength of the evidence presented by the proponent to show the
defendant in fact committed the extraneous offense;
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2) The potential the other offense evidence has to impress the jury ―in some
irrational but nevertheless indelible way‖;
3) The time the proponent will need to develop the evidence, during which
the jury will be distracted from consideration of the indicted offense; and
4) The force of the proponent’s need for this evidence to prove a fact of
consequence, i.e., does the proponent have other probative evidence
available to him to help establish this fact, and is this fact related to an
issue in dispute.
Id. (quoting Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)).
A review of appellant’s issue regarding the trial court’s ruling attacks the potential
to impress the jury in an irrational but nevertheless indelible way, factor two, and the
State’s need for the evidence, factor four. In an effort to be complete, we will review
each of the factors in the trial court’s balancing test.
Turning to the first of the factors in the balancing test, the evidence of the sexual
assault of Martha was very compelling regarding the issue of consent. A review of the
record reveals that the assault on Martha was carried out in much the same manner as
that on Amy. The victims were in similar situations, alone on the streets late at night.
Both were forced into a small pick-up truck that was described in much the same
manner. Both were transported to a secluded wooded area in the same part of Austin.
Appellant drove straight to the area where the assaults occurred. DNA evidence in both
attacks identified appellant as the attacker. The assaults occurred within a month and a
half of each other. Thus, the two assaults are very similar to each other, and this
similarity makes the extraneous offense more compelling and gravitates toward support
of the trial court’s ruling. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.
Crim. App. 2006).
10
Turning to the second factor, appellant contends that the extraneous offense
evidence must have impressed the jury in some irrational but nevertheless indelible
manner. Initially, we observe that the trial court gave a limiting instruction to the jury
that limited the use of the extraneous offense evidence to show lack of consent, the
issue for which the evidence was admitted. Further, the extraneous offense evidence
was no more heinous a crime than the crime for which appellant was indicted, and
therefore the evidence of the extraneous offense was not so inflammatory as to prevent
the jury from considering it for its proper purpose. See Taylor v. State, 920 S.W.2d 319,
323 (Tex. Crim. App. 1996). Thus, the second factor of the balancing test supports the
trial court’s ruling.
The third factor of the balancing test, the time required presenting the evidence
and whether this would distract the jury from its primary purpose, is not contested by
appellant. The record reflects that the presentation of the extraneous offense evidence
took less than a complete day in a trial that took five days total, three of which were
spent on the guilt/innocence portion of the trial. We do not find that the presentation of
the evidence was so time consuming as to warrant this Court overturning the ruling of
the trial court.
The fourth factor of the balancing test, the need of the State for this evidence, is
attacked by appellant under the theory that the State’s evidence on the issue of lack of
consent was strong. Such a postulation does not withstand the record before us.
Appellant spent a significant amount of time on cross-examination trying to prove that
Amy was not a credible person and should not be believed. As noted in the Rule 404(b)
portion of this opinion, this cross-examination clearly attacked the element of consent.
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Accordingly, the State needed the evidence to show that the sexual assault against
Amy was without her consent.
After reviewing the record, the trial court’s ruling, and the limiting instruction given
to the jury, we find that the trial court was correct in overruling appellant’s Rule 403
objection, and no abuse of discretion has been demonstrated. See Davis, 329 S.W.3d
at 803. Therefore, the second portion of appellant’s issue is overruled.
Conclusion
Having overruled appellant’s issue, we affirm the trial court’s judgment.
Mackey K. Hancock
Justice
Do not publish.
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