COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00343-CR
MICHAEL ANTHONY APPELLANT
ALMENDAREZ
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In four issues, Appellant Michael Anthony Almendarez appeals his
conviction for one count of indecency with a child and one count of sexual
assault of a child. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
While on parole for an unrelated conviction, thirty-four-year-old
Almendarez moved in with his mother (Charlotte), his stepfather, and S.B., his
sixteen-year-old stepsister. According to S.B., he started regularly supplying her
with mixed drinks containing Everclear alcohol and getting her drunk when her
father and stepmother were at work, asleep, or otherwise not around. According
to S.B.‘s then-fifteen-year-old best friend Shelby Crowley, Almendarez called
Crowley and told her that he had gotten S.B. drunk one weekend and, while
giving S.B. a foot massage, ―one thing led to another‖ and, over S.B.‘s clothes,
he touched the inside of S.B.‘s thighs and rubbed on her genital area.
On May 3, 2008, after Almendarez supplied some Everclear-based mixed
drinks to S.B., S.B. became intoxicated. Almendarez helped S.B. to bed and left
her room. S.B. awoke later to find Almendarez next to her in bed, her hand on
his erect penis. S.B. passed out and awoke a second time to find that she was
naked and that Almendarez had his tongue on her female sexual organ. S.B.
passed out again. When she awoke a third time, she found Almendarez on top
of her, with his penis inside her female sexual organ. S.B. told him to stop,
pushed him off, passed out again, and when she awoke, she told Almendarez to
leave her room.
The following day, Almendarez wrote S.B. an apology letter that described
the assault in detail and asked for S.B.‘s forgiveness. S.B. tore up the letter and
threw the pieces in the trash can in her bedroom. Almendarez wrote S.B. two
2
more letters and a poem. S.B. left the second letter and poem on her bed, but
she tore up the third letter and also put it in the trash can in her bedroom.
Later that week, S.B. told Crowley about the assault. After school,
Crowley and S.B.‘s friend Kelsey Knighten confronted Almendarez at work, and
he admitted to them that he had sex with S.B. on May 3, when they were drunk.
The next evening, Crowley told her stepfather about the assault. Crowley, her
mother, and her stepfather went to S.B.‘s family‘s trailer to provide support for
S.B. when she told her father and Charlotte about the assault. S.B. went outside
to meet them, and when her father and Charlotte joined them, S.B. told them
about the assault. Almendarez stayed inside.
Crowley‘s mother called 911, and two sheriff‘s deputies responded to the
call. One deputy entered the trailer to speak with Almendarez, and the other
remained outside with S.B., S.B.‘s parents, Crowley, and Crowley‘s parents. At
some point, Charlotte entered the trailer and asked Almendarez about whether
he had given S.B. alcohol, and he admitted to her that they drank alcohol
together on the night of the assault.
S.B. told the deputy that Almendarez had written her some letters and that
they were in her bedroom. Because neither S.B. nor her father wanted to go into
the trailer, Crowley offered to retrieve the letters, and S.B. told her where to find
them. Crowley entered the trailer, went into S.B.‘s bedroom, and retrieved them.
Crowley returned outside, taped the torn letters back together, and gave all of the
documents to the deputy. Prior to trial, Almendarez filed several motions to
3
suppress these documents, which the trial court denied, and he reurged his
motion during trial, which the trial court again denied.
The first letter stated:
There‘s nothing that I can ever say to fix my stupidity. I think
that it started when you kissed me back and then started jacking me
off as I rubbed you down there. Part of me knew better, but being
drunk and feeling you respond back, made me think that it was ok to
lick you down there. As I did . . . , and you moving with my . . .
tongue and your ―xxx‖ . . . my mind went somewhere . . . .
I should have just left then. I kept screwing up because the
alcohol was kicking in stronger and stronger. I stuck it in a little &
you said it hurt, and that was the only time I was inside you. Maybe
2 seconds. I remember rubbing against you, but I wasn‘t inside.
All of this is in case you‘re stressing over being pregnant.
You‘re not.
Please forgive me [S.B.]. I‘ve never wanted to mess up our
friendship. Lots of people have gotten drunk & done things they
regretted. Please understand it was alcohol. I love you. I don‘t
regret part of it, because you are attractive. I regret that you‘re
uncomfortable and stressed, and scared. I‘m pouring out the alcohol
today, and I‘ll never drink in your house again or be drunk around
you. I love you enough to do my best to make it right for the future.
I will leave if you want that. I won‘t be mad. I really am sorry. Just
please give me another chance to be normal with you. It hurts to
think that I am shut out of your life, but I can accept your decision.
I wish you the best in life and you‘ll always be in my heart.
I‘m sorry.
The second letter stated:
When I was on my knees holding your hands, the way that
you left made me realize that I needed to give you your space and
get another job.[2]
2
S.B. and Almendarez worked together at a barbecue restaurant.
4
Your feelings matter to me. I would prefer your happiness
over mine. When I‘m at work, I get pleasure from talking smack to
everyone that‘s entertaing [sic] it, because they laugh. I receive
pleasure from giving other people pleasure. So I put on my game
face lately, even though I‘m uncomfortable knowing that you don‘t
want me around you.
To be perfectly honest as I can with you, you have some of
the best qualities in anyone that I‘ve ever met. But I‘ve brought you
unhappiness. If I thought that by dropping Stephanie and trying to
feel your pain, and even trying to date you, would somehow make it
right; so that you wouldn‘t assume that I would ―hit something & then
quit something . . .‖ I would.
If I thought that there were someway [sic] to regain your trust, I
would.
If I thought that by leaving a job that I need, to give you your
space, would make you happier, I would.
If I thought that by moving I could bring you more happiness, I
would.
I love you and would do my best to prove it to you.
I have historically screwed things up. I‘ve never tried to make
things right, but this time I want to because I‘m motivated by love.
I don‘t expect you to believe me or to even finish reading this.
You are very special to me and because of this, I put your
happiness first. You have been my joy for so long. You‘ve made me
feel at peace. You‘re so wonderful in so many ways. And I‘ve
ruined our relationship.
I‘ll stay out of your way, and your space, for your happiness,
and hopefully, someday, you‘ll see that I really did care.
The only other option is for me to do something before you
hate me worse.
Take Care
5
In the poem, entitled, ―An Angel,‖ Almendarez blamed himself for making an
angel upset; in the last letter, he asked S.B. to pray with him.
Almendarez was arrested that night on an administrative warrant for a
parole violation. S.B. went home with the Crowleys, and the next morning,
Crowley‘s mother took S.B. to a hospital, where she underwent a sexual assault
examination. Because of the length of time that had elapsed between the
assault and the examination, no physical evidence was taken from S.B.
After further investigation, the State charged Almendarez with one count of
indecency by contact—causing S.B. to touch his genitals—and one count of
sexual assault of a child—causing S.B.‘s sexual organ to contact his sexual
organ.
Almendarez denied that he had provided alcohol to S.B. but admitted that
they had been drinking alcohol together on the night of the assault. He said that
they had been watching comedies on the internet when S.B. spilled her drink on
the computer keyboard. S.B. started throwing up on the rug near the computer
while Almendarez cleaned up the spill. He denied sexually assaulting S.B. or
that they had had any sexual relationship. Almendarez said that they had a
conversation the next day on the way to work about how upset he was about
S.B. spilling her drink and throwing up on the rug. He told S.B. that he was going
to tell their parents about it, and this made S.B. mad.
6
Almendarez also denied telling Crowley that he and S.B. had sex on May 3
or that he had ever called Crowley to tell her that he had gotten drunk and
touched S.B. He said that Crowley demanded that he write the first letter, told
him what to write, and threatened that she and S.B. would have his parole
revoked if he did not. He admitted that he wrote the other two letters and the
poem on his own but said that he was motivated to make a false confession by
fear. Both S.B. and Crowley denied any involvement in Almendarez‘s letter-
writing efforts. Charlotte testified that S.B.‘s reputation for being truthful was bad.
After both parties rested, Almendarez asked for an article 38.23 instruction
related to the legality of Crowley‘s acquisition of the letters from S.B.‘s room.
Almendarez also asserted that because both counts arose from the same
incident, the application paragraph should require the jury to select from either
the indecency or the sexual assault charge. The trial court denied these
requests.
A jury found Almendarez guilty of both counts, and after Almendarez
pleaded true to the enhancement paragraphs and the jury heard punishment
evidence, the jury sentenced him to twenty-five years‘ confinement on each
count. This appeal followed.
III. Suppression
In his third issue, Almendarez asserts that the trial court erred by failing to
suppress the letters and poem that he wrote to S.B. because Crowley‘s entry into
his family‘s trailer violated his right to privacy under the United States and Texas
7
Constitutions and that the letters were thus inadmissible or, alternatively, that the
trial court erred by failing to include an article 38.23 instruction in the jury charge
with respect to the letters. In response, the State contends that Almendarez
lacks standing to challenge Crowley‘s actions because he did not have a
reasonable expectation of privacy in S.B.‘s bedroom.
To assert a challenge to a search and seizure under the United States and
Texas Constitutions and article 38.23, a party must first establish standing. See
Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996); Martinez v. State, 236 S.W.3d 361, 367
(Tex. App.—Fort Worth 2007, pet. dism‘d). Standing may be reviewed as part of
the claim presented or may be raised by the court of appeals sua sponte. Kothe,
152 S.W.3d at 60. Standing is a question of law that we renew de novo. Id. at
59.
To establish standing, the defendant has the burden of providing facts to
establish a legitimate expectation of privacy, and to carry this burden, he must
prove that (1) by his conduct, he exhibited an actual subjective expectation of
privacy and (2) circumstances existed under which society was prepared to
recognize his subjective expectation as objectively reasonable. Villarreal, 935
S.W.2d at 138. The following factors are relevant in determining whether the
defendant‘s subjective expectation is one that society is prepared to recognize as
objectively reasonable: (1) whether the accused had a property or possessory
interest in the place invaded; (2) whether he was legitimately in the place
8
invaded; (3) whether he had complete dominion or control and the right to
exclude others; (4) whether, prior to the intrusion, he took normal precautions
customarily taken by those seeking privacy; (5) whether he put the place to some
private use; and (6) whether his claim of privacy is consistent with historical
notions of privacy. Voyles v. State, 133 S.W.3d 303, 306 (Tex. App.—Fort Worth
2004, no pet.) (quoting Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App.
2002), cert. denied, 538 U.S. 927 (2003)). Courts must also examine the totality
of the circumstances surrounding the search. Id. (citing Villarreal, 935 S.W.2d at
138–39).
Almendarez bore the burden of proof to show that he had a legitimate
privacy interest in S.B.‘s bedroom. See Granados, 85 S.W.3d at 222–23;
Villarreal, 935 S.W.2d at 138. There is no evidence in the record showing that
Almendarez had a subjective expectation of privacy in S.B.‘s room or the
documents. Rather, the record reflects that Almendarez gave the letters and the
poem to S.B., thus surrendering any right that he had to assert a property interest
in them. See Pham v. State, 324 S.W.3d 869, 875–76 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref‘d) (stating that by giving the bag containing
methamphetamine to someone else, ―appellant assumed the risk that his
confidant would reveal that information to the public, thus frustrating appellant‘s
expectation of privacy‖; further, by so doing, appellant lost dominion and control
over the bag or its contents, relinquishing his right to exclude others from them),
cert. denied, No. 11-61, 80 U.S.L.W. 3058 (Oct. 3. 2011). Further, there is no
9
evidence to show that Almendarez had a subjective expectation of privacy over
the areas primarily occupied and controlled by S.B. See Martinez, 236 S.W.3d at
367–68 (acknowledging that appellant had no standing to challenge the search of
his son‘s pants). Accordingly, he lacked standing to complain of Crowley‘s
actions, and the trial court did not err by denying his motion to suppress. See
Voyles, 133 S.W.3d at 306 (listing the Granados factors).
Furthermore, although Almendarez alternatively argues that the trial court
erred by failing to include an article 38.23 instruction in the jury charge, because
Almendarez lacked standing to complain about the seizure of the evidence, the
trial court did not err by denying his request for the instruction. See Chavez v.
State, 9 S.W.3d 817, 819–20 (Tex. Crim. App. 2000) (holding that because
appellant lacked standing to complain about the seizure of cocaine when it was
not obtained in violation of his rights, he was not entitled to an article 38.23
instruction); Pham, 324 S.W.3d at 874 (stating that to assert a challenge to a
search and seizure under the U.S. and Texas Constitutions and article 38.23, the
party must first establish standing); Orr v. State, 306 S.W.3d 380, 401 (Tex.
App.—Fort Worth 2010, no pet.) (overruling appellant‘s article 38.23 point
because she lacked standing when her rights were not violated). We overrule
Almendarez‘s third issue.
IV. Harmless Error
In his first two issues, Almendarez argues that he was denied the right to
present a full defense because the trial court excluded evidence of S.B.‘s specific
10
prior bad acts and her prior allegations of physical abuse against others and that
the trial court erred by admitting evidence of his extraneous offenses without a
limiting instruction.
A. Excluded Testimony
S.B., Charlotte, and Almendarez all testified outside of the jury‘s presence
as set out below.
S.B. admitted to most of the misdeeds alleged by Almendarez, namely
drinking alcohol, smoking cigarettes, driving her father‘s truck without permission
or a driver‘s license, dating an eighteen-year-old boy and going to his house
when she was not supposed to, and being late for work due to spending time
with her boyfriend, but she denied smoking marijuana. S.B. admitted that she
and Almendarez had a conversation about these acts around May 4, 2008, but
she denied that she was upset with Almendarez for telling her that he was going
to tell her parents about them.
S.B. also denied that her allegations against Charlotte for physical abuse
in 2003, 2005, and 2006 were false and said that she did not make the
allegations because she was mad at Charlotte. She admitted that she signed an
affidavit of nonprosecution so that she could return to live with her father and
Charlotte, but on cross-examination by the State, she explained that the affidavit
just stated that she did not want to go forward with the charges and that she did
not make any statements in the affidavit about lying about the allegations or that
they were false.
11
S.B. denied making an allegation of abuse against her biological mother so
that she could return to live with her father and Charlotte. S.B. also denied that
she had been in a fight with a boy at church in 2004 and had assaulted him. In
response to defense counsel‘s question about whether she would agree that the
allegation that the boy had assaulted her was false, S.B. replied, ―Yes. Well, no;
it‘s not false.‖
Charlotte testified that in 2003, S.B. falsely accused her of physical abuse
when S.B. was upset with her, and Child Protective Services (CPS) became
involved. She said that CPS‘s investigation did not result in any charges against
her. Charlotte also said that in 2005, she and S.B. had had an argument the day
before she took S.B. to the airport for a visit to her biological mother, and she
learned later from S.B.‘s biological mother that S.B. had again made false
allegations of physical abuse against Charlotte. CPS investigated again, but no
charges were brought against Charlotte. Charlotte also said that in 2004, S.B.
told her that a boy had assaulted her at church; after Charlotte called the police
and investigated, she learned that the allegation was false.
Charlotte said that on the night Almendarez was arrested, she asked S.B.
if she had been going over to her boyfriend‘s house instead of going straight to
work after school and that S.B. first lied but then admitted that she had been
doing this. S.B. also initially denied other activities such as drinking, smoking,
and taking the truck when she was not supposed to; Charlotte said she did not
12
recall if S.B. later admitted to drinking, smoking, or taking the truck. Charlotte
said that S.B. had a bad reputation for truthfulness.3
Almendarez testified that he had seen S.B. drink alcohol over thirty times,
that he had seen her smoke cigarettes at least ninety times, and that he had
seen her on several occasions take the truck on her own when she was not
supposed to. He also said that S.B. told him about her eighteen-year-old
boyfriend and that he had seen the boyfriend drop S.B. off at work late. When he
called home to look for her once when she was late for work and later told her
about this, S.B. got mad, threatened him, and told him to never call anywhere
looking for her.4
On the day after the alleged sexual assault, Almendarez testified that when
he and S.B. drove to work, he told her that everything would have to stop: the
boyfriend, the cigarettes, going to the boyfriend‘s house, the drinking, and the
truck stealing, or he was going to report the boyfriend to the police because of his
age, and tell their parents. Almendarez said that he told S.B. this because when
they had been drinking together on May 3, S.B. spilled some alcohol on an
expensive computer, and the risk of him getting in trouble was too high.
3
Charlotte also stated before the jury that S.B.‘s reputation for being
truthful was bad.
4
Almendarez‘s brother, Robert Boeker, also testified outside the jury‘s
presence that in April 2008, Almendarez told him that he had seen S.B. ―running
around with her dope-head boyfriend‖ instead of going to work after school and
that Almendarez was going to tell Charlotte and S.B.‘s father ―because she didn‘t
need to be running around with a pothead.‖
13
Almendarez said that S.B. then threatened that if he said anything to their
parents, she was going to put him in jail first.
Almendarez also stated that he was aware of S.B.‘s abuse allegations to
CPS prior to May 2008 and knew that S.B. was capable and had a history of
putting people in compromised legal situations. S.B. had told him that she
wanted to get back to her father and Charlotte‘s trailer for Christmas because
they had more money than her biological mother, and she wanted better
Christmas gifts, so she had made false allegations against her biological mother
to get back home.
The trial court sustained the State‘s objection to the testimony above and
to Almendarez‘s request to admit CPS records ruling out S.B.‘s physical abuse
accusations against Charlotte.
B. Limiting Instruction on Extraneous Acts
Almendarez requested a limiting instruction on his extraneous acts:
Crowley‘s testimony about Almendarez telling her that he had touched S.B.‘s
thigh and genital area over S.B.‘s clothes while S.B. was drunk on a prior
occasion and S.B.‘s testimony that he had performed oral sex on her on the night
of the assault, as well as the letters‘ references to same.
C. Harm
We assume, without deciding, that the trial court erred by excluding S.B.‘s
specific bad acts and by failing to give a limiting instruction on Almendarez‘s
extraneous offenses.
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1. Constitutional Error
In his second issue, Almendarez states that the trial court abused its
discretion by excluding his evidence because the specific bad acts were to show
S.B.‘s motive for making false accusations against him. Likewise, he contends
that Charlotte‘s testimony about S.B.‘s false allegations of abuse were also
admissible to show S.B.‘s motive in making the accusations against him.
Both Almendarez and the State agree that a Confrontation Clause issue is
not presented, although the State contends that the evidence would also have
been excluded under the Sixth Amendment because there was no causal
connection or logical relevance that could give rise to a potential bias or motive to
testify and Almendarez, while limiting his analysis to the rules of evidence,
argues that if this court disagrees that the evidence is admissible under the rules
of evidence, it is ―nevertheless admissible under the Confrontation Clause.‖
Because the Confrontation Clause is implicated in this analysis, we will review
the assumed error under rule 44.2(a). See Rubio v. State, 241 S.W.3d 1, 3 (Tex.
Crim. App. 2007) (stating that any Confrontation Clause violation is subject to
harmless error analysis).
In applying the ―harmless error‖ test, our primary question is whether there
is a ―reasonable possibility‖ that the error might have contributed to the conviction
or punishment. Tex. R. App. P. 44.2(a); Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070 (1999). Our
harmless error analysis should not focus on the propriety of the outcome of the
15
trial; instead, we should calculate as much as possible the probable impact on
the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d
103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We
consider a nonexclusive list of factors, including the nature of the error, whether it
was emphasized by the State, the probable implications of the error, and the
weight the jury would likely have assigned to it in the course of its deliberations.
Snowden v. State, No. PD-1524-10, 2011 WL 4467280, at *4 (Tex. Crim. App.
Sept. 28, 2011) (―At bottom, an analysis for whether a particular constitutional
error is harmless should take into account any and every circumstance apparent
in the record that logically informs an appellate determination whether ‗beyond a
reasonable doubt [that particular] error did not contribute to the conviction or
punishment.‘‖).
The trial court excluded S.B.‘s and Almendarez‘s testimonies about S.B.‘s
misdeeds (drinking, smoking, driving without permission, dating an older boy,
and being late for work because of her relationship with the older boy) and about
S.B.‘s reaction to Almendarez‘s threat to tell Charlotte and her father about these
misdeeds—S.B. said that she was not upset, and Almendarez said that she was
and that she threatened him. However, the jury heard Almendarez testify that
when he told S.B. that he was going to tell their parents about her spilling her
alcoholic drink on the computer and then vomiting on the rug, S.B. and Crowley
threatened that they would have his parole revoked if he did not write the first
letter and that his motivation to make a false confession by writing the first letter
16
and then the subsequent two letters and the poem was fear of S.B. and
Crowley.5 Therefore, the jury still had a chance to judge S.B.‘s credibility in light
of her alleged threat to have Almendarez‘s parole revoked and, inferentially—
based on the letters‘ content—that her threat involved the charged offenses.
Further, although the trial court excluded S.B.‘s, Almendarez‘s, and
Charlotte‘s testimonies about S.B.‘s physical abuse allegations against Charlotte
made several years before, along with the records covering the family‘s
extensive CPS history, the jury heard Charlotte testify that S.B. had bad
character for truthfulness.
In its opening statement, the State focused on Almendarez‘s letters.
Immediately following the State‘s opening statement, Almendarez informed the
jury in his opening statement that the jury needed to pay close attention to S.B.‘s
testimony, to listen ―to what her motivation may be to tell something that‘s less
than the truth,‖6 and to listen for consistency in what S.B. had told various people.
He also attempted to mitigate the letters‘ impact, stating that the jury should
5
Almendarez told the trial court outside the jury‘s presence that if State‘s
Exhibits 1, 2, and 3—his letters and the poem—had been suppressed, then he
would not have testified.
6
Almendarez‘s counsel also stated,
And what you‘re going to hear is that right around this time,
right around May 9th of 2008, when she made this allegation, just
before that, you‘re going to hear that there was some sort of a
confrontation between [S.B.] and . . . Almendarez, that would cause
[S.B.]—would give her motivation to accuse him of something like
this.
17
determine whether ―it‘s possible that a person could write these notes and write
these letters for some motivation other than the fact that they‘re true.‖
In the first part of its closing argument, the State argued that the jurors
should think about the evidence that they heard and look at the letters.
Almendarez then argued that there were inconsistencies in the witnesses‘
testimonies, that S.B. was a liar, and that Almendarez had told the jury ―that
something was going on, and that he felt threatened by these girls.‖ He further
argued that Crowley had dictated the contents of the letter to him and that
Charlotte had testified that S.B. was not a truthful person. The State then closed
by reemphasizing Almendarez‘s letters, how absurd Almendarez‘s blackmail
theory was as S.B. had torn up and thrown away two of the letters, and that the
letters contained the truth.
Because the letters written by Almendarez contained explicit, graphic
descriptions of the charged offenses and were admitted into evidence, and
because the defense theory that S.B. was a liar with a motivation to lie and to
blackmail Almendarez into writing the letters was before the jury, after carefully
reviewing the record and performing the required harm analysis under rule
44.2(a), we hold beyond a reasonable doubt that the trial court=s alleged error did
not contribute to Almendarez=s conviction or punishment. Tex. R. App. P.
44.2(a). We overrule Almendarez‘s second issue.
18
2. Non-Constitutional Error
In his first issue, Almendarez complains that the trial court erred by
―admitting evidence of extraneous acts, allegedly committed by [Almendarez],
without a limiting instruction on the proper use or reasonable doubt standard.‖7
When a trial court errs by refusing to give a contemporaneous limiting
instruction, that error is non-constitutional and is subject to a harmless error
analysis pursuant to Texas Rule of Appellate Procedure 44.2(b). Jones v. State,
944 S.W.2d 642, 653–54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832
(1997); Jones v. State, 119 S.W.3d 412, 423–24 (Tex. App.—Fort Worth 2003,
no pet.). A non-constitutional error is harmless unless it affects a defendant‘s
substantial rights. Tex. R. App. P. 44.2(b); Jones, 119 S.W.3d at 424. A
substantial right is affected when the error had a substantial and injurious effect
or influence in determining the jury‘s verdict. King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66
S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial
right if we have a fair assurance that the error did not influence the jury, or had
but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In
making this determination, we review, among other things, the record as a whole,
7
Almendarez does not argue the propriety of entering the extraneous acts
into evidence, thus we only consider any error associated with the trial court‘s
failure to issue limiting instructions.
19
including any testimony or physical evidence admitted for the jury=s
consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection with
other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002).
Here, the record reflects ample evidence of Almendarez‘s guilt because
S.B.‘s testimony about Almendarez‘s actions during the assault is sufficient to
support the jury‘s verdict as to each of the charged offenses. In addition, the
objected-to evidence was statutorily relevant pursuant to article 38.37 of the code
of criminal procedure to show Almendarez‘s and S.B.‘s states of mind and to
show the previous and subsequent relationship between them. See Tex. Code.
Crim. Proc. Ann. art. 38.37 (West 2005 & Supp. 2011). Moreover, the
extraneous evidence was not more heinous or inflammatory than the evidence
pertaining to the charged offenses, minimizing its prejudicial effect even in the
absence of a contemporaneous limiting instruction. See, e.g., Jones, 944
S.W.2d at 654; Jones, 119 S.W.3d at 425. And the jury charge contained a
limiting instruction with regard to extraneous offenses committed by Almendarez,
which further reduced the risk that the jury might misuse the evidence during jury
deliberations. See Jones, 119 S.W.3d at 425. For these reasons, we conclude
that any error by the trial court by overruling Almendarez‘s requests for a
contemporaneous limiting instruction was harmless. See Tex. R. App. P.
44.2(b).
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V. Lesser Included Offense
In his fourth issue, Almendarez complains that the trial court erred by not
including a lesser included offense instruction in the jury charge. Specifically, he
argues that because they stemmed from the same transaction, the indecency
count was a lesser included offense to the sexual assault count.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). An offense is a lesser included offense of another offense, under article
37.09(1), if the indictment for the greater-inclusive offense either: (1) alleges all
of the elements of the lesser included offense, or (2) alleges elements plus facts
(including descriptive averments, such as non-statutory manner and means, that
are alleged for purposes of providing notice) from which all of the elements of the
lesser included offense may be deduced. Ex parte Watson, 306 S.W.3d 259,
273 (Tex. Crim. App. 2009) (op. on reh‘g). Both statutory elements and any
descriptive averments alleged in the indictment for the greater inclusive offense
should be compared to the statutory elements of the lesser offense. Id. If a
descriptive averment in the indictment for the greater offense is identical to an
element of the lesser offense, or if an element of the lesser offense may be
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deduced from a descriptive averment in the indictment for the greater-inclusive
offense, this should be factored into the lesser included offense analysis in
asking whether all of the elements of the lesser offense are contained within the
allegations of the greater offense. Id.
Second, some evidence must exist in the record that would permit a jury to
rationally find that if the appellant is guilty, he is guilty only of the lesser offense.
Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be evaluated in
the context of the entire record. Moore, 969 S.W.2d at 8. There must be some
evidence from which a rational jury could acquit the appellant of the greater
offense while convicting him of the lesser included offense. Id. The court may
not consider whether the evidence is credible, controverted, or in conflict with
other evidence. Id. Anything more than a scintilla of evidence may be sufficient
to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
Indecency with a child is a lesser included offense of aggravated sexual
assault of a child when both offenses are predicated on the same act. See
Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009); Ochoa v. State,
982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (holding that the defendant should
not have been charged with both indecency with a child and sexual assault, but
instead, indecency with a child should have been submitted as a lesser included
offense because there was evidence of only one act by the appellant). However,
separate charges of indecency with a child and sexual assault of a child are
22
proper when the evidence indicates that two separate offenses took place. See
Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (holding that when
two penetrations were separated by a short period of time, two independent
assaults occurred, and it was proper to submit two different charges to the jury);
Tyson v. State, 172 S.W.3d 172, 178 (Tex. App.—Fort Worth 2005, pet. ref‘d)
(holding that in a prosecution for aggravated sexual assault of a child based on
different acts occurring in the same transaction, each act is a separate offense
under section 22.021 of the penal code unless one of the acts would be
subsumed by another, such as contact subsumed by penetration); Bottenfield v.
State, 77 S.W.3d 349, 358 (Tex. App.—Fort Worth 2002, pet. ref‘d) (holding that
even though appellant‘s two acts may have been committed during the same
occurrence, appellant‘s touching of victim‘s genitals with his finger was a
separate and distinct criminal act from touching her genitals with his penis), cert.
denied, 539 U.S. 916 (2003).
To resolve Almendarez‘s challenge, we must focus on whether the
evidence justified the trial court in submitting instructions that would permit the
jury to convict and sentence Almendarez both for committing aggravated sexual
assault and for committing indecency with a child. See Ochoa, 982 S.W.2d at
907. The record reflects that Almendarez committed two separate acts—
penetrating S.B.‘s sexual organ with his sexual organ and placing S.B.‘s hand
upon his penis—which constitute two separate offenses. See In re J.H., 150
S.W.3d 477, 485 (Tex. App.—Austin 2004, pet. denied) (holding that defendant‘s
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touching child‘s genitals with his fingers was separate offense from causing her
genitals to touch his mouth); Murray v. State, 24 S.W.3d 881, 889 (Tex. App.—
Waco 2000, pet. ref‘d) (same); cf. Bottenfield, 77 S.W.3d at 358 (holding that
even though appellant‘s acts may have been committed during same occurrence,
appellant‘s touching of victim‘s genitals with his finger was a separate and
distinct criminal act from touching her genitals with his penis). Therefore, here,
the indecency with a child count is not a lesser included offense of the sexual
assault count. See Bottenfield, 77 S.W.3d at 358; Murray, 24 S.W.3d at 889
(holding that because the evidence supported that defendant committed two
separate acts, indecency with a child was not a lesser included offense of
aggravated assault); see also Ochoa, 982 S.W.2d at 907. We overrule
Almendarez‘s fourth issue.
VI. Conclusion
Having overruled Almendarez‘s third and fourth issues and having
determined that any error associated with his first and second issues was
harmless, we affirm the trial court‘s judgment.
BOB MCCOY
JUSTICE
PANEL: WALKER and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 1, 2011
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