Opinion issued March 17, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00915-CR
———————————
EDWIN ALVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 11-DCR-058577A
OPINION
Edwin Alvarez appeals his conviction of sexual assault of a 14-year old
child,1 Cathy,2 arguing that the trial court erred by allowing the State to proffer
1
TEX. PENAL CODE ANN. § 21.02(b)(2) (West Supp. 2015).
2
To protect her privacy, we identify the complainant by a pseudonym.
testimony of two witnesses who alleged that Alvarez had sexually assaulted them
as children. The State offered their testimony under Article 38.37 §2(b) of the
Texas Code of Criminal Procedure. Alvarez contends that Article 38.37 is
unconstitutional. He further contends that, if constitutional, the testimony should
have been excluded under Rule 403 of the Texas Rules of Evidence. We affirm.
Background
Alvarez was a “close family friend” of Cathy’s aunt. He grew up with the
aunt, and she considered him to be like a brother. Cathy lived with her aunt.
Alvarez lived with his long-term girlfriend and her two minor nieces.
Alvarez often had Cathy over to his house to socialize with his girlfriend’s
nieces. Even after Alvarez and his girlfriend broke up and Alvarez moved away, he
would arrange for the three girls—none of whom he was related to—to come to his
house for sleepovers.
According to Cathy’s trial testimony, one night, Alvarez went to Cathy’s
house, woke her up, and took her to his house, telling her that the other two girls
would be there. They were not. Alvarez took Cathy to his room and sexually
assaulted her.
In August 2013, Alvarez was tried for sexual assault of Cathy, but the trial
resulted in a hung jury. There was a subsequent change in the law when the Texas
Legislature passed Senate Bill 12, now codified as Article 38.37, which became
2
effective September 1, 2013. TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp.
2015); see Tex. S.B. 12, 83rd Leg., R.S. (2013). This law allowed the State, in a
criminal trial for sexual assault of a child, to present evidence that the defendant
had sexually assaulted other children. TEX. CODE CRIM. PROC. ANN. art. 38.37
§2(b). Accordingly, the State filed a pre-trial motion to admit evidence in
Alvarez’s second trial for the sexual assault of Cathy that Alvarez had previously
sexually assaulted his girlfriend’s two nieces.
At the hearing required by Article 38.37 to determine whether to admit the
nieces’ testimony, Alvarez objected that (1) the testimony was unfairly prejudicial
and thus should be barred by Texas Rule of Evidence 403 and (2) the statute
should not be applied to his case because “it’s an [ex post] facto retroactive
application of the law to offenses that were created or committed before the
effective date of the act . . . .” The trial court requested that the parties brief the
objections Alvarez raised.
In his pre-trial brief, Alvarez argued that (1) Rule 403 barred the nieces’
testimony and (2) allowing the evidence under Article 38.37 “was prohibited under
the Ex Post Facto Clause” of the U.S. Constitution. The trial court overruled his
objections and held that the evidence of Alvarez’s sexual assaults of the nieces was
admissible.
3
Before any evidence of Alvarez’s alleged sexual assaults of the nieces was
presented at trial, Alvarez again objected on the grounds that Article 38.37 “is
unconstitutional and violates the ex post facto laws” and the evidence is
inadmissible under Rule 403. The objections were again overruled.
One of the nieces then testified that Alvarez sexually assaulted her when she
was 11 or 12. She testified that Alvarez “frequently . . . [t]ouched me in
inappropriate places.” He would ask her to go into his room, and when she did,
they would engage in “[s]exual intercourse.” She testified that this occurred on
numerous occasions: “more than I can even count.”
The second niece testified that Alvarez sexually assaulted her when she was
13. She testified that he “would come into her room at night and began basically
feeling on me while I’m asleep.” He touched her breasts and vagina. She described
in detail that Alvarez had “sexual intercourse” with her.
The jury found Alvarez guilty of sexual assault of Cathy and sentenced him
to 20 years in jail. Alvarez appeals his conviction.
Statutory Background
Typically, the State cannot provide evidence of prior “crime[s], wrong[s], or
other act[s]” to show that the defendant “acted in accordance with that character”
or had a propensity to commit the crime. TEX. R. EVID. 404(b). In the context of
sexual assault of a child, a different rule applies to recognize that “[t]he special
4
circumstances surrounding the sexual assault of a child victim outweigh normal
concerns associated with evidence of extraneous acts.” Jenkins v. State, 993
S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d). Under Article 38.37, the
State is allowed to provide evidence of other children who the defendant has
sexually assaulted “for any bearing the evidence has on relevant matters, including
the character of the defendant and acts performed in conformity with the character
of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.37 §2(b).
Before such evidence is admitted, however, the defendant is protected by
“numerous procedural safeguards.” Harris v. State, 475 S.W.3d 395, 402 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d). First, the State must give the
defendant 30 days’ notice of its intent to introduce the evidence. TEX. CODE CRIM.
PROC. ANN. art. 38.37 § 3 (West Supp. 2015). Second, the trial court must
“conduct a hearing out of the jury’s presence to determine that the evidence likely
to be admitted will support a jury finding that the defendant committed the separate
offense beyond a reasonable doubt.” Belcher v. State, 474 S.W.3d 840, 847 (Tex.
App.—Tyler 2015, no pet.). These procedural safeguards were satisfied here.
On appeal, Alvarez contends that Article 38.37 violates his constitutional
right to due process. He argues that it causes him to be tried for actions other than
for the offense charged, thereby infringing on his “presumption of innocence and
lessens the State’s burden of proof.”
5
Preservation of Error on Due-Process Claim
The State argues that Alvarez did not preserve his due process claims. “In
briefing his first point of error, [Alvarez] provides no citation to the record to show
that the arguments he makes on appeal were presented to the trial court.”
For a party to preserve an issue for appeal, it must make a timely, specific
objection on the alleged error and obtain a ruling. See TEX. R. APP. P. 33.1(a). Even
a potential constitutional violation can be waived if the party fails to object at trial.
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
Preserving error is not a technical exercise that requires the party to meet a
certain formula; instead, “[s]traightforward communication in plain English will
always suffice.” Lankston v. State, 827 S.W.2d 907, 908–09 (Tex. Crim. App.
1992). The party’s communication must (1) tell the trial judge what the party
wants, (2) inform the judge why the party is entitled to that relief, and (3) be clear
enough so that the judge understands the party’s position in time for the judge to
correct the error. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005);
Lankston, 827 S.W.2d at 909. To meet these requirements, the party must “state[]
the grounds for the ruling that the complaining party sought from the trial court
with sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A).
6
Constitutional challenges to statutes, including facial challenges, must be
preserved in the trial court and cannot be raised for the first time on appeal.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Sutton v. State,
469 S.W.3d 607, 614–15 (Tex. App.—Beaumont 2015, pet. granted). To preserve
a constitutional issue, the party challenging the constitutionality of the statute must
identify the provision of the constitution that the statute violates. See Lovill v.
State, 319 S.W.3d 687, 692–93 (Tex. Crim. App. 2009).
For example, in Lovill, the defendant failed to preserve her equal–protection
argument that the district attorney would not have moved to revoke her community
supervision if she had not been pregnant. Id. at 692. The defendant never
mentioned that her right to equal protection was violated or cited the Equal
Protection Clause. Id. Thus, she did not preserve her constitutional issue for
appeal. Id. at 693.
Likewise, in Green v. State, the defendant failed to preserve his
constitutional challenge to Texas’s death penalty schemes. 912 S.W.2d 189, 194
(Tex. Crim. App. 1995). At trial, the defendant argued that the schemes were
unconstitutional because they do “not properly narrow the class of persons eligible
for the ultimate punishment.” Id. On appeal, the defendant again challenged the
constitutionality of the death penalty scheme but changed his unconstitutionality
argument to assert that “it fails to direct the sentencer’s discretion to include
7
consideration of circumstances of the offense in any meaningful manner.” Id. The
Court of Criminal Appeals held that the defendant was precluded from making
those new arguments on appeal. Id. at 195.
These general principles were applied by the Waco court of appeals in
concluding that a defendant did not preserve his constitutional challenge to Article
38.37. Brinegar v. State, No. 10-14-00195-CR, 2015 WL 6777445, at *3 (Tex.
App.—Waco Nov. 5, 2015, no pet.) (mem. op., not designated for publication). In
Brinegar, the defendant objected to the relevant testimony by telling the trial judge
that the testimony “violates the Defendant’s constitutional rights, and I would ask
that the Court exclude the statement.” Id. This statement was “plainly not specific”
because, generally speaking, “the complaining party should invoke the controlling
federal and state constitutional provisions or use key legal phrases to ensure that
the trial judge is informed of the particular complaint.” Id. If a party, like the
defendant in Brinegar, challenges the constitutionality of a statute, the party should
“specify what laws or constitutional provisions are implicated.” Id.
Similarly, Alvarez’s only constitutional objection to the nieces’ testimony
was that the statute allowing their testimony “is unconstitutional and violates the
ex post facto laws.”3 The objection is “plainly not specific” as to any due–process
3
The ex post facto clause of both the United States and Texas Constitutions
prevents the Legislature from passing “laws, after a fact done by a subject, or
citizen, which shall have relation to such fact, and shall punish him for having
8
challenge. See id. He made this general “unconstitutional” and “ex post facto”
argument at the statutorily-required hearing and in his brief to the trial court after
that hearing. He made a similar, general “unconstitutional” and “ex post facto”
objection at trial. An objection that the law is “unconstitutional” does not allow the
judge to understand the party’s legal argument and thus avoid any error. See
Reyna, 168 S.W.3d at 179; Lankston, 827 S.W.2d at 909.
On appeal, Alvarez makes a new argument. He argues that Article 38.37
violates his “right to due process” by “causing him to be tried not only for the
offense charged[,] infringes on [his] presumption of innocence, and lessens the
State’s burden of proof.” He continues that “the statute permits the jury to assume
the defendant is guilty of the charged offense simply because he allegedly
committed other similar acts . . . .” Alvarez made none of these arguments or
similar arguments at trial. Nor did he mention the due process clause or the right to
due process. Even if he did not specifically invoke the right to due process,
done it.” Ex parte Heilman, 456 S.W.3d 159, 163 (Tex. Crim. App. 2015) (quoting
Calder v. Bull, 3 U.S. 386, 390 (1798)). Alvarez argued in the trial court that,
because Article 38.37 was enacted after he committed the alleged crimes, applying
that evidentiary rule violated the ex post facto clause. But “[h]ere, the question is
the admissibility of the evidence . . . [t]he statute does not lower the quantum of
proof required for conviction. . . . [It] enlarges the scope of the child’s admissible
testimony, but leaves untouched the amount or degree of proof required for
conviction.” McCulloch v. State, 39 S.W.3d 678, 684 (Tex. App.—Beaumont
2001, pet. ref’d). Thus, applying Article 38.37 does not implicate ex post facto
concerns. Id.
9
Alvarez should have, at a minimum, informed the trial court that he was making
these types of arguments against Article 38.37. See Lovill, 319 S.W.3d at 693.
There is one exception to the requirement that a party raise his constitutional
challenge at trial. “An unconstitutional statute is void from its inception” and thus
“when a statute is adjudged to be unconstitutional, it is as if it had never been . . . .
[S]uch an unconstitutional statute is stillborn.” Smith v. State, 463 S.W.3d 890, 895
(Tex. Crim. App. 2015). This rule allows a defendant to raise a constitutional
challenge to a statute for the first time on appeal if that statute “has already been
held void.” Id. at 896; see Schuster v. State, 435 S.W.3d 362, 367 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (holding defendant did not need to object to due–
process violation at trial because statute he was convicted under had been declared
unconstitutional before appeal). But if the statute “had not yet been declared void”
by an appellate court before a determination of the defendant’s appeal, an appellate
court will not review the case unless the defendant first objected at trial. Smith, 463
S.W.3d at 895 (citing Karanev, 281 S.W.3d at 434); Lebo v. State, 474 S.W.3d
402, 403 (Tex. App.—San Antonio 2015, pet. ref’d) (noting that Smith only applies
when statute has been declared unconstitutional during pendency of appeal on
different issue in court of appeals).
This exception does not apply here. First, Alvarez does not challenge the
constitutionality of the statute under which he was convicted—only an evidentiary
10
rule that he argues contributed to his conviction. Thus, this challenge does not fall
within the Smith exception. Second, even if we were to expand the scope of Smith
to extend to evidentiary rules that allowed evidence to be admitted at trial, we have
not previously held that Article 38.37 is unconstitutional. Nor does Alvarez cite to
any authority holding that statute unconstitutional. Instead, the only cases that the
parties have pointed to, and that we have found through our own research,
addressing the constitutionality of Article 38.37 have held that it is constitutional.
See Harris, 475 S.W.3d at 402 (holding Article 38.37 is constitutional because
defendant’s rights are “protected by the numerous procedural safeguards provided
in the statute”); Belcher, 474 S.W.3d at 847 (following federal cases holding
comparable federal rules do not violate due process to hold that Article 38.37 is
“more narrowly drawn” than federal rules and adequately protects defendant’s
constitutional rights).
Because Alvarez did not preserve this issue and the Smith exception does not
apply to his arguments, we conclude that he waived any due-process challenge to
Article 38.37.
Rule 403
Alvarez next argues that “[e]ven if extraneous evidence is admissible under
Article 38.37, such admission must yield to Texas Rule of Evidence 403. . . . The
trial court erred in admitting the testimony of [the nieces] because its probative
11
value was substantially outweighed by danger of unfair prejudice.” The evidence
was unfairly prejudicial, he argues, because it “provided an avenue for the jury to
conclude that [Alvarez] committed the charged offense in conformity with his
character.”
A court of appeals reviews a trial court’s decision to admit or not admit
evidence for an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790
(Tex. Crim. App. 2007). “In other words, as long as the trial court’s decision was
within the zone of reasonable disagreement and was correct under any theory of
law applicable to the case, it must be upheld.” Id. We apply this deferential
standard “because trial courts are usually in the best position to make the call on
whether certain evidence should be admitted or excluded.” Id. (internal quotation
marks and ellipses omitted).
Texas Rule of Evidence 403 provides that otherwise relevant and admissible
evidence may be excluded “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.”
TEX. R. EVID. 403. Article 38.37 neither explicitly requires that the Rule 403
balancing test be applied or prohibits the trial court from applying that test. The
State does not argue that the Rule 403 balancing test does not apply to evidence
12
admissible under Article 38.37, therefore, we will assume (without deciding) that it
does.
Applying the Rule 403 balancing test does not permit “a trial court to
exclude otherwise relevant evidence when that evidence is merely prejudicial.”
Bradshaw v. State, 466 S.W.3d 875, 481 (Tex. App.—Texarkana 2015, pet. ref’d)
(quoting Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013)). The rule
“should be used sparingly,” only when the prejudicial effects substantially
outweigh the probative nature of the evidence. Id. (quoting Hammer v. State, 296
S.W.3d 555, 562 (Tex. Crim. App. 2009)). In determining whether the prejudicial
effects substantially outweigh the probative nature of the evidence, the trial court
must consider four factors: (1) “how compellingly the extraneous offense evidence
serves to make a fact of consequence more or less probable”; (2) the potential of
the evidence “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
. . . . ” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). Alvarez
argues that the nieces’ testimony fails all four prongs.
Belcher v. State dealt with testimony admitted under Article 38.37. 475
S.W.3d 840. In that case, the defendant argued that the evidence of his prior sexual
13
abuse of other children was highly prejudicial. Id. at 848. Like in this case, the only
evidence in Belcher directly showing that the defendant sexually assaulted the
child was the child’s testimony. Id. Because the evidence of prior sexual abuse of
children “was especially probative of Appellant’s propensity to sexually assault
children,” the Rule 403 balancing test normally will not favor the exclusion of
evidence of the defendant’s prior sexual assaults of children. Id. Alvarez does not
present any counter-authority that evidence of past sexual abuse proffered to show
that a defendant committed the charged offense in conformity with his character
fails the Rule 403 balancing test.
Alvarez argues that the testimony offered against him “is unfairly prejudicial
for the very reason the statute—and the documented legislative history—allows for
its admissibility,” namely that sexual assault of a child is a highly offensive crime.
Bradshaw, 466 S.W.3d at 884. The statute itself recognizes that evidence of
children whom the defendant has previously sexually assaulted is “by definition,
propensity, or character evidence.” Id.
The reason for the particular rules excluding character evidence is not that
such evidence is irrelevant because it is not probative of a fact of consequence (the
first Mozon factor). It is often relevant and therefore otherwise admissible. Nor is it
that character evidence is an “irrational” basis for determining a person’s conduct.
Character evidence “offered to prove conduct or a state of mind conforming to that
14
character is logically relevant. . . . [A] person’s conduct on one occasion would be
thought by most persons to be presumptively probative on the issue of her disputed
behavior on another.” 1 GOODE, WELLBORN AND SHARLOT, TEXAS PRACTICE
SERIES: GUIDE TO THE TEXAS RULES OF EVIDENCE § 404.2 (3d ed. 2002).
This is true here. Without the evidence of the other children that Alvarez
abused, “this becomes a ‘he said, she said’ case.” Bradshaw, 466 S.W.3d at 884.
The State had only the victim’s testimony. It appears that Alvarez’s trial strategy
was to turn this case into a “he said, she said” case and impeach Cathy by accusing
her of “some lies.” Alvarez’s other sexual assaults were relevant to Cathy’s
credibility and therefore were prejudicial to Alvarez.
But they were not unfairly prejudicial. Alvarez does not identify any
particular facts about the two other sexual assaults that make them uniquely or
unfairly prejudicial. Following the reasoning of Belcher and Bradshaw and the text
of Rule 403, we hold that Alvarez has not demonstrated that the trial court abused
its discretion in overruling Alvarez’s objection to his girlfriend’s nieces’ testimony.
We, therefore, overrule Alvarez’s second issue.
Conclusion
We affirm the judgment of the trial court.
15
Harvey Brown
Justice
Panel consists of Justices Radack, Massengale, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
16