Manuel Ramirez v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-18-00131-CR
___________________________

MANUEL RAMIREZ, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1520847R

Before Gabriel, Pittman, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

Appellant Manuel Valdez Ramirez appeals his conviction for one count of

continuous sexual abuse of a child,1 two counts of indecency by contact,2 and one

count of indecency by exposure. 3 A jury assessed punishment at 34 years’

confinement for the offense of continuous sexual abuse, 20 years’ confinement for

each count of the offense of indecency by contact, and 10 years’ confinement for the

offense of indecency by exposure, and the trial court sentenced Ramirez accordingly

with the sentences to run concurrently. On appeal, Ramirez asserts that (1) the

evidence is insufficient to support his conviction for continuous sexual abuse; (2) the

trial court caused him egregious harm when it instructed the jurors that they could

consider acts of sexual abuse committed on any date and that this error in the charge

permitted the jury to convict him for acts occurring prior to the effective date of the

continuous-sexual-abuse statute; (3) the State’s “repeated use of hearsay and

speculation” in questioning the State’s witnesses denied Ramirez a fair trial; and

(4) the complainant’s boyfriend’s testimony as to what the complainant “was thinking

and feeling and what she wanted the jury to do at punishment” denied Ramirez a fair

trial at the punishment hearing. We affirm.

1
See Tex. Penal Code Ann. § 21.02(b), (c)(4) (West Supp. 2018).
2
See id. § 21.11(a)(1) (West Supp. 2018).
3
See id. § 21.11(a)(2).

2
 II. Background

In 2017, Ramirez was indicted for one count of continuous sexual abuse of

E.V., his girlfriend’s 4 granddaughter. The indictment alleged that between

September 1, 2007 and November 21, 2010, Ramirez committed two or more acts of

sexual abuse (aggravated sexual assault) during a period of more than 30 days by

penetrating E.V.’s sexual organ with his finger. The indictment also charged Ramirez

with two counts of indecency by sexual contact on or about November 21, 2010, by

touching E.V.’s (1) genitals and (2) breast. Finally, the indictment charged Ramirez

with committing one count of indecency by exposure on or about November 21,

2010, by exposing his genitals to E.V.

At trial, the State called eight witnesses, including E.V.5 E.V. began by stating

that she was born in November 1996 and that she was 21 years old at the time of trial.

She testified that Ramirez began inappropriately touching her when she was six or

seven years old. He had rubbed her leg and put his finger inside of her vagina when

she visited her grandparents at the InTown Suites in North Richland Hills. E.V.

testified that when she was “[l]ike 11 [years old]” and her grandparents were living at a

new residence, Wildwood Branch Apartments, Ramirez started touching her breasts,

4
E.V.’s grandmother testified that she and Ramirez have a “[h]usband-and-wife
relationship.” They were married in 1972, divorced in 1977, and reunited around
1989. While they were apart, E.V.’s grandmother remarried and had a daughter, who
eventually gave birth to E.V. We refer to Ramirez and E.V.’s grandmother
collectively as E.V.’s grandparents.
5
We discuss the trial testimony in more detail below, as relevant to each point.

3
put his fingers inside of her vagina “three or four times,” exposed his penis to her and

had her touch it. E.V. then testified that when she was “[l]ike 12, 13,” she visited her

grandparents at a new residence at Spring Lake Apartments, and Ramirez would do

“[t]he same thing.” The Defense called three witnesses, including Ramirez, who

denied committing the acts alleged.

The jury returned a guilty verdict on Counts One, Four, Five, and Six.

III. Discussion

A. Point 1

In his first point, Ramirez argues that the evidence is insufficient to prove

beyond a reasonable doubt that he committed the offense of continuous sexual abuse

of a child. The State responds that the evidence, viewed in the light most favorable to

the verdict, is sufficient to establish all of the elements of the offense.

1. Standard of Review

Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

4
 This standard gives full play to the factfinder’s responsibility to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman, 520 S.W.3d at 622.

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04 (West 1979); Queeman, 520 S.W.3d at 622. Thus, when

performing an evidentiary-sufficiency review, we may not re-evaluate the evidence’s

weight and credibility and substitute our judgment for the factfinder’s. Queeman, 520

S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable

based on the evidence’s cumulative force when viewed in the light most favorable to

the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136

S. Ct. 198 (2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The

court conducting a sufficiency review must not engage in a ‘divide and conquer’

strategy but must consider the cumulative force of all the evidence.”). We must

presume that the factfinder resolved any conflicting inferences in favor of the verdict,

and we must defer to that resolution. Murray, 457 S.W.3d at 448–49.

To determine whether the State has met its Jackson burden to prove a

defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Crabtree v. State, 389

S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

5
determined by state law.”). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as

authorized by the indictment” means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging instrument.

See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the

State pleads a specific element of a penal offense that has statutory alternatives for

that element, the sufficiency of the evidence will be measured by the element that was

actually pleaded, and not any alternative statutory elements.”).

2. Applicable Law and the Hypothetically Correct Jury Charge

Section 21.02 of the penal code provides that

(b) A person commits an offense if:

(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more
victims; and

(2) at the time of the commission of each of the acts of sexual
abuse, the actor is 17 years of age or older and the victim is a child
younger than 14 years of age . . . .

....

(c) For the purposes of this section, “act of sexual abuse” means any act
that is a violation of one or more of the following penal laws:

....

6
 (4) aggravated sexual assault under Section 22.021[.]

Tex. Penal Code Ann. § 21.02(b)–(c).

In its indictment of Ramirez, the State alleged that “on or about” September 1,

2007, “through” November 21, 2010, he committed two or more acts of sexual abuse

during a period of time longer than 30 days by committing aggravated sexual assault

of E.V. by inserting his finger into her sexual organ. Thus, the hypothetically correct

jury charge to convict Ramirez of the offense of continuous sexual abuse of a young

child required that the State prove (1) Ramirez (2) committed two or more acts of

aggravated sexual assault by inserting his finger into E.V.’s sexual organ (3) over a

period of 30 or more days (4) between September 1, 2007,6 and November 21, 2010.

See Lewis v. State, No. 02-16-00179-CR, 2017 WL 2686325, at *6 (Tex. App.—Fort

Worth June 22, 2017, pet. ref’d) (mem. op., not designated for publication) (“In order

to be convicted of continuous sexual abuse of a child, the defendant must be found to

have committed two or more acts of sexual abuse against a child or children under the

age of 14 ‘during a period that is 30 or more days in duration.’”) (quoting Tex. Penal

Code Ann. § 21.02(b)).

6
Although discussed more fully below, section 21.02 first became effective on
September 1, 2007. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a),
2007 Tex. Gen. Laws 1120, 1127, 1148. Therefore, the statute cannot apply to acts
committed by Ramirez prior to September 1, 2007. See Kuhn v. State, 393 S.W.3d 519,
524 (Tex. App.—Austin 2013, pet. ref’d) (“The offense of continuous sexual abuse of
a young child became effective on September 1, 2007, and the statute does not apply
to acts of sexual abuse committed before that date.”).

7
 3. Application of the Law to the Facts

At trial, E.V. testified that she was born in November 1996. She testified that

Ramirez on multiple occasions put his fingers inside of her vagina when she visited

her grandparents at Wildwood Branch Apartments. When asked how old she was at

this time, E.V. stated she was “[l]ike 11.” E.V. further testified that Ramirez would do

“[t]he same thing” when she visited her grandparents at their next home at Spring

Lake Apartments. When asked how old she was at this time, E.V. stated she was

“[l]ike 12, 13.” State’s Exhibit 11 likewise reflected that E.V. visited Wildwood

Branch Apartments when she was between 9 and 12 years old and that she visited

Spring Lake Apartments when she was between 12 and 13 years old.

Ramirez contends that E.V.’s testimony is not sufficient to support a

conviction because she was not asked and did not state “specifically that any finger

penetration occurred after September 1, 2007,” and she was not asked whether “two

or more occurrences of that particular act took place after September 1, 2007,

separated by 30 days.” Although E.V. did not detail each act of abuse and the specific

date it occurred, E.V.’s testimony that she was born in November 1996 coupled with

her testimony concerning her age and when the abuse occurred and State’s Exhibit 11

allowed jurors to reasonably conclude that Ramirez committed two or more acts of

sexual assault by inserting his finger into E.V.’s vagina in November 2007 (when E.V.

was 11 and the grandparents lived at Wildwood Branch Apartments) and a separate

time in 2009 (when E.V. was 13 and the grandparents lived at Spring Lake

8
Apartments). Regarding these dates, in his appellate brief, Ramirez concedes that acts

occurring when E.V. was older than 10 years and 9 months old occurred after the

continuous-sexual-abuse statute became effective. Thus, acts occurring after E.V. was

10 years and 9 months old could be used to support a conviction.

There is sufficient evidence that at least two acts of digital penetration occurred

over a period of more than 30 days between September 1, 2007, and November 21,

2010. See Lewis, 2017 WL 2686325, at *7–8 (holding “jury could have rationally

concluded” a date range of two or more abusive acts “[a]lthough [the victim’s]

testimony may have been imprecise as to dates,” in part because she testified to her

age when the first incident of sexual abuse occurred); Machado v. State, No. 02-15-

00365-CR, 2016 WL 3962731, at *3 (Tex. App.—Fort Worth July 21, 2016, pet. ref’d)

(mem. op., not designated for publication) (acknowledging that most of the remaining

evidence was weak concerning when the abuse occurred but holding that the record

“contains evidentiary puzzle pieces that the jury could have carefully fit together” to

determine abuse had occurred over period of 30 or more days).

Ramirez further contends that E.V.’s testimony that the “same thing”

happened at the Wildwood Branch Apartments is too vague to support that two acts

of sexual abuse (penetration of the complainant’s vagina with his fingers) occurred

between September 1, 2007 and November 21, 2010, and more than 30 days apart.

We disagree. Here, the State and the complainant clarified the term “same thing” in a

way that obviates Ramirez’s contention.

9
 On direct examination, the prosecutor asked E.V. to describe the first time

Ramirez had touched her while he was living at the InTown Suites, when E.V. was six

or seven years old:

Q. And the very first time that he did that, do you remember about how
old you were?

A. 6 to 7 years old.

Q. Was it one of the times that you were leaving where they lived here
at InTown Suites and you were in the car with him, or do you
remember?

A. I don’t remember.

....

Q. And when he -- I’ve got to ask you some specific questions about
that. Okay?

A. (Witness nods.)

Q. When he put his hands down your pants, did he go over your
underwear or under your underwear?

A. Under.

Q. And you said that he would put his fingers -- and he would do what
with his fingers?

A. Put them in me.

Q. And when you say “in” you -- I’m sorry that I have to ask this, but I
have to ask this. Okay?

When he would put his fingers in you, would he actually put his
fingers inside of your vagina?

A. Yes.

10
 The prosecutor then asked if the “same thing” happened other times:

Q. After the very first time that happened, were there other times that
he would do the same thing when y’all were in the car?

A. Yes.

Q. Were there times that he would do the same thing when you were
staying at the InTown Suites with [grandmother] and the Defendant?

A. Yes.

E.V. was asked to clarify whether “those things” meant anything other than

what she had already testified to:

Q. And when he would -- and I’m saying “those things.” Did he do
other things to you besides what you’ve just told the jury?

A. No.

Then, when she was asked what happened after Ramirez moved to Wildwood

Branch Apartments, E.V. stated, “The same things.” The prosecutor again clarified

what E.V. meant when she used that term:

Q. Okay. So when you were staying there, were there times that he
would -- you said he did the same thing. Would he touch your vagina
with his hand under and over your underwear?

A. Yes.

Q. And would he actually put his fingers inside of your vagina there at
Wildwood Branch Apartments?

A. Yes.

11
 The prosecutor then asked E.V. how old she was when she visited Ramirez at

the Spring Lake Apartments and what he did during those visits:

Q. Okay. About what age do you think you were when you were
visiting him at Spring Lake Apartments?

A. Like 12, 13.

Q. What would he do during that time?

A. The same. The same thing.

Thus, the term “same thing” did not, as Ramirez contends, possibly refer to

multiple acts. Instead, “the same thing” referred to Ramirez putting his fingers in

E.V.’s vagina. Viewing the evidence in the light most favorable to the verdict as we

must, this testimony is sufficient evidence of two predicate acts—first, at Wildwood

Branch Apartments, and second, at Spring Lake Apartments—as alleged in the

indictment, occurring more than 30 days apart, between September 1, 2007, and

November 21, 2010. See Raybon v. State, No. 02-12-00071-CR, 2013 WL 4129126, at

*5 (Tex. App.—Fort Worth Aug. 15, 2013, pet. dism’d) (per curiam) (mem. op., not

designated for publication) (recognizing that when the evidence permits two

reasonable inferences, we defer to the jury’s choice).

Accordingly, we overrule Ramirez’s first point.

B. Point 2

In his second point, Ramirez contends that he was egregiously harmed because

the jury charge erroneously instructed the jurors that they were not bound by the

12
dates listed in the indictment and could convict him for the offense of continuous

sexual assault of a child based on any acts committed prior to the presentment of the

indictment.7 This instruction was erroneous because section 21.02 of the penal code,

which criminalizes continuous sexual abuse of a young child, did not become effective

until September 1, 2007, and it does not apply to any acts occurring before that date.

In its brief, “the State concedes that the jury charge in this case was erroneous” but

argues that the conviction should nevertheless be affirmed because Ramirez failed to

meet the egregious harm standard of review for an unobjected-to charge error.

Because the parties agree that the jury charge was erroneous and because we likewise

agree that the jury charge was erroneous for failing to instruct the jurors that they

were not permitted to convict Ramirez for acts committed before September 1, 2007,

we focus our analysis on whether the erroneous jury charge caused Ramirez egregious

harm and conclude that it did not.8

1. Standard of Review

We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

7
Ramirez acknowledges that he did not object to the instruction.
8
See Martin v. State, 335 S.W.3d 867, 873 (Tex. App.—Austin 2011, pet. ref’d)
(holding the trial court had a duty to instruct the jurors on its own motion that they
were not permitted to convict defendant under section 21.02 for acts committed
before September 1, 2007).

13
ends. Id. But unpreserved charge error warrants reversal only when the error resulted

in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex.

Code Crim. Proc. Ann. art. 36.19 (West 2006).

The appropriate inquiry for egregious harm is fact- and case-specific. Gelinas v.

State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489

(Tex. Crim. App. 2011). In making an egregious harm determination, we must

consider “the actual degree of harm . . . in light of the entire jury charge, the state of

the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of the

trial as a whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–

10 (applying Almanza). Errors that result in egregious harm are those “that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defensive theory, or make a case for conviction clearly and significantly more

persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The

purpose of this review is to illuminate the actual, not just theoretical, harm to the

accused. Almanza, 686 S.W.2d at 174.

2. Applicable Law

“It is a longstanding rule that the State is not required to prove that an offense

was committed on the date alleged in the indictment (whether or not the words ‘on or

about’ are used) but may prove that the offense was committed on any date prior to

14
the return of the indictment and within the period of limitations.” Martin, 335 S.W.3d

at 873. As noted above, however, section 21.02 first became effective on September

1, 2007, so acts committed prior to that date cannot support the conviction. See Kuhn,

393 S.W.3d at 524; Martin, 335 S.W.3d at 873. Indeed, both the United States and

Texas constitutions prohibit ex post facto laws because “there can be few rights more

valuable or more basic to our system of justice than that a person cannot be punished

as a criminal for conduct that was innocent when done.” Martin, 335 S.W.3d at 876.

3. Analysis of Egregious Harm Factors

a. Entire Jury Charge

The opening paragraph of the charge recites that Ramirez was alleged to have

committed continuous sexual abuse of a young child “on or about the 1st day of

September 2007 . . . through the 21st day of November, 2010.” “Thus, the opening

paragraph in the charge expressly reminded the jury of the relevant time period in the

case.” Kuhn, 393 S.W.3d at 529.

But the charge in the abstract portion erroneously instructed the jurors that

they could convict Ramirez based on any acts, regardless of whether they comported

with the date range in the indictment:

For the offenses of continuous sexual abuse of young child or children
and indecency with a child, you are further instructed that the state is not
bound by the specific date on which the offense, if any, is alleged in the
indictment to have been committed, but conviction may be had upon
proof that the offense, if any was committed any time prior to the
presentment of the indictment.

15
 The application portion of the charge, however, properly limited the jury’s

consideration to offenses occurring during the date range set out in the indictment:

Now, if you find from the evidence beyond a reasonable doubt that
Manuel Ramirez, on or about the 1st day of September 2007, in the County of
Tarrant, State of Texas, through the 21st day of November 2010, during a period
of time that is 30 days or more in duration, did commit two or more acts
of sexual abuse, namely: aggravated sexual assault of a child under 14 by
causing the penetration of the sexual organ of [E.V.] by inserting his
finger into her sexual organ, and at the time of the commission of each
of these acts of sexual abuse, the defendant was 17 years of age or older
and [E.V.] was younger than 14 years of age and not the spouse of the
defendant, then you will find the defendant guilty of the offense
continuous sexual abuse of young child or children, as charged in count
one of the indictment.

[Emphasis added.]

In Kuhn, a continuous-sexual-abuse case, the Austin Court of Appeals

concluded that a similar charge error did not cause egregious harm because the error

had occurred in the abstract portion of the charge but the application paragraph

correctly instructed the jurors that in order to convict the defendant, they had to find

beyond a reasonable doubt that the two or more acts of sexual abuse occurred “on or

about the 1st day of September, 2007, through on or about the 16th day of

December, 2009.” Id. at 524, 529. Kuhn stated that Texas courts have “repeatedly

held” that where the application paragraph of the charge correctly instructs the jury

on the law applicable to the case, a correct statement in the application portion makes

any error in the abstract portion of the charge less likely to be egregious. Id.; see

Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (“Where the application

16
paragraph correctly instructs the jury, an error in the abstract instruction is not

egregious.”). Thus, the Kuhn court held that “[w]hile the application paragraph does

not make the abstract portion of the charge any less erroneous, . . . the correct

statement of the law in the application paragraph mitigates against a finding of

egregious harm.” 393 S.W.3d at 529–30.

We agree with Kuhn and conclude that the charge as a whole weighs against a

finding that the charge error caused Ramirez egregious harm.

b. State of the Evidence

As explained above in our sufficiency review, there is sufficient evidence to

support Ramirez’s conviction for continuous sexual abuse of a child based on acts

occurring after September 1, 2007. And, while some of the evidence—i.e., acts

occurring at the InTown Suites—described acts that occurred prior to September 1,

2007—the specific issue of whether the abuse had occurred prior to or after

September 1, 2007, was not “heavily contested” during trial. Kuhn, 393 S.W.3d at 528.

Instead, Ramirez categorically denied committing the offense. Thus, “[t]he fact that

the timing issue did not ‘vitally affect a defensive theory’ also weighs against a finding

of egregious harm.” Id. (quoting Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App.

1985)).

c. Arguments of Counsel

In closing argument, the prosecutor told the jurors that they were not restricted

to the dates in the indictment. The prosecutor then instructed the jurors that they

17
could consider any two acts that were 30 days apart, even acts that may have occurred

at InTown Suites, i.e., acts that occurred when E.V. was 6 or 7 years old (in 2002 or

2003 based on her date of birth9):

I’m going to direct your attention to Page 2 [of the jury charge] relating
to the continuous [sexual abuse of a child] count. You’re not required to
agree on the dates and the specific acts that happened. All you have to
agree is that [E.V.] was under 14, and that this defendant committed two
sexual acts that were 30 days apart. So four of you can think, hey, maybe
it happened at the Wildwood Branch Apartments. Four of you can think,
hey, maybe it happened at the [InTown] Suites. It doesn’t matter as long as you
agree that this defendant put his finger in her vagina, and then he did it again and
those are 30 days apart.

[Emphasis added.]

The argument in this case differs from the one made by the prosecutor in Kuhn,

who used part of the closing argument to specifically explain that the continuous-

sexual-abuse statute “didn’t exist” before September 1, 2007, and to draw the jury’s

attention to the correct statement of law and specific dates between which the acts of

abuse must have occurred. 393 S.W.3d at 530. Here, the prosecutor did the opposite

and essentially stated that the jurors could consider acts that occurred prior to

September 1, 2007.

Although Ramirez’s defensive strategy did not focus on the timing of the acts

as occurring prior to the statute’s effective date, in closing, his counsel did generally

E.V.’s grandmother testified that she and Ramirez lived at InTown Suites
9

around 2005 and that they lived there for “[a]bout a year.” Regardless, the record
supports that acts occurring while Ramirez lived at InTown Suites were prior to
September 1, 2007.

18
argue that the dates of the allegations mattered:

How can you defend yourself? They may say don’t focus on the dates.
The dates don’t matter. We heard testimony over and over trying to pin
down who lived where, when and who was there as if it doesn’t matter,
but it does matter. Because how can you prove a negative if you can’t
even pin it down to a location or a time?

The arguments quoted represent only isolated snippets of the State’s and Ramirez’s

counsel’s arguments, and our review of the record reveals that the parties’ counsel’s

arguments generally did not focus on the timing of the acts. But the prosecutor did

tell the jurors to consider acts that predate the effective date of the statute in deciding

whether to convict Ramirez. The prosecutor’s argument offers some support to

Ramirez’s contention that he suffered egregious harm.

d. Other Relevant Information in the Record as a Whole

At the beginning of trial, the State read the indictment to the jurors, and as did

the application paragraph of the charge, the indictment correctly recited the law

applicable to the case:

Manuel Ramirez, hereinafter called defendant, on or about the 1st day of
September 2007, in the County of Tarrant, State of Texas, through the 21st day of
November, 2010, during a period of time that is 30 days or more in
duration, did commit two or more acts of sexual abuse, namely,
aggravated sexual assault of a child under 14 by causing the penetration
of the sexual organ of [E.V.] by inserting his finger into her sexual organ,
and at the time of the commission of each of these acts of sexual abuse,
the defendant was 17 years of age or older and [E.V.] was younger than
14 years of age and not the spouse of the defendant[.]

[Emphasis added.] “Thus, [even] before the parties presented their opening

arguments, the jury was made aware of the relevant time period in this case.” Kuhn,

19
393 S.W.3d at 531. This does not weigh in favor of egregious harm.

Throughout the course of trial, the State emphasized that the abuse had

occurred over a long period of time and did not distinguish between acts of abuse

occurring before and after the September 1, 2007 effective date of the continuous-

sexual-abuse statute, which could weigh in favor of egregious harm. See id. However,

because the evidence of abuse that occurred prior to September 1, 2007, could

permissibly be considered by the jury as circumstantial evidence of the abuse that

occurred after that date, this does not favor a showing of egregious harm. See Martin,

335 S.W.3d at 876.

e. Conclusion Regarding Harm

Considering these factors in their totality, we cannot conclude that the

erroneous instruction in the jury charge affected the very basis of the case and

deprived Ramirez of a fair and impartial trial. See Kuhn, 393 S.W.3d at 531; Martin, 335

S.W.3d at 876. The trial was bookended with the reading of the indictment and the

application paragraph of the charge. Both properly limited the jurors’ consideration

to a proper date range. The abstract portion of the charge and passing references

during the prosecutor’s argument, in our mind, less directly impacted the date range

the jury might consider than the reading of the indictment and the application portion

of the charge. These events initially and correctly described the crime that the State

charged and then defined the process the jury had to follow to convict Ramirez of

continuous sexual abuse. We overrule Ramirez’s second point.

20
C. Points 3 and 4

In points 3 and 4, Ramirez contends that he was denied a fair trial because the

State improperly elicited hearsay and speculation from its witnesses and because the

State improperly elicited testimony from E.V.’s boyfriend regarding E.V.’s thoughts

and feelings and what she wanted the jury to do in assessing punishment.

In support of the first contention, Ramirez first quoted for almost six pages

trial testimony as demonstrating that the State had improperly elicited hearsay

testimony from Haltom City Police Officer Gipson, Fort Worth Police Officer Harris,

and E.V.’s boyfriend about statements made by E.V. to them that Ramirez had

abused her. Ramirez then cited to three occasions when his counsel actually objected

but acknowledged that “most of the time [he] did not [object].” In support of the

second contention, Ramirez quoted testimony from E.V.’s boyfriend at the

punishment phase, in which he testified that E.V. viewed the verdict as a victory for

all women and wanted the jurors to send a message in their punishment assessment.

1. Fair Trial

Initially, we note that Ramirez contends that the evidentiary errors he describes

effectively denied him his right to a fair trial pursuant to the Fourteenth Amendment

to the U.S. Constitution, article 2.03(b) of the code of criminal procedure, and the

purpose of the code of criminal procedure generally. U.S. Const. amend. XIV; Tex.

Code Crim. Proc. Ann. arts. 1.03(5), 2.03(b) (West 2005). Ramirez primarily relies

upon two cases to support his position, Randle v. State, 826 S.W.2d 943 (Tex. Crim.

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App. 1992), and D.L.N. v. State, 590 S.W.2d 820 (Tex. Civ. App.—Dallas 1979, no

writ). Both cases are distinguishable.

Randle was an appeal from a conviction for delivery of a controlled substance in

which the court held that article 2.03(b) had been violated because “the [trial] court

and its officers [had] failed in their duty to preserve his presumption of innocence” by

“forcing this defendant to trial in jail clothes.” 826 S.W.2d at 946. Although we agree

that article 2.03(b) creates a statutory duty to ensure a fair trial, Ramirez was not

forced to stand trial in jail clothes, so Randle is not applicable to these facts and does

not support Ramirez’s contention that he did not receive a fair trial.

D.L.N. was an appeal from a deviate-sexual-intercourse conviction in which

the defendant was 15 years old and the victim was three years old, and the defendant

had been convicted in large part due to hearsay and highly prejudicial testimony from

the victim’s mother, the victim’s father, and a minister, as well as testimony from a

police officer concerning a polygraph test. 590 S.W.2d at 821–22. The Dallas Court

of Appeals concluded that even though the appellant had failed to object each time

the hearsay testimony was offered, they were convinced “[a]fter reading this record

. . . that appellant should not be held to have waived the incompetency of this

evidence because of the inadequacy of his counsel’s objections.” Id. at 823. D.L.N.

reasoned that “[r]epeated objections to the hearsay were made; some were sustained

and others overruled. Several motions for mistrial were made and overruled.” Id.

However, the Dallas Court of Appeals subsequently declined to apply D.L.N. and

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recognized that it “is contrary to the well-established rule that a party must object

every time allegedly inadmissible evidence is offered.” Jerell, Inc. v. Perkins, No. 05-96-

00592-CV, 1998 WL 19940, at *9 n.11 (Tex. App.—Dallas Jan. 22, 1998, no pet.) (not

designated for publication). We agree with Jerell and to the extent D.L.N. may be read

to disregard the obligation to preserve error, we decline to follow it. See Geuder v.

State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193

(Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth

2012, no pet.).

Because nothing in the testimony cited by Ramirez or our own review of the

trial record reveals an unfair trial, we overrule Ramirez’s third point regarding the

denial of a fair trial. Cf. Pearce v. State, 513 S.W.2d 539, 543 (Tex. Crim. App. 1974)

(explaining that the court “rarely reverses a conviction of crime solely because an

improper question was asked”); Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct.

481, 490 (1953) (“A defendant is entitled to a fair trial but not a perfect one.”).

However, because we view the substance of Ramirez’s contentions in point 3 as

essentially complaints about evidence, in the interest of thoroughness, we analyze

point 3 under the standard of review and law applicable to evidentiary rulings.

2. Standard of Review

We review a trial court’s evidentiary rulings under an abuse-of-discretion

standard. See Jenkins, 493 S.W.3d at 607. A trial judge’s decision is an abuse of

discretion only when it falls outside the zone of reasonable disagreement. Winegarner

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v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be

upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State, 195

S.W.3d 114, 126 (Tex. Crim. App. 2006).

3. Error Preservation

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an

express or implicit adverse trial-court ruling or object to the trial court’s refusal to

rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.

App. 2013); Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000).

To preserve error regarding the admission of evidence, a party must object as

soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); London

v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Reyes v. State, 361 S.W.3d 222,

228–29 (Tex. App.—Fort Worth 2012, pet. ref’d); Pena v. State, 353 S.W.3d 797, 807

(Tex. Crim. App. 2011); see also Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim.

App. 2012) (discussing policies underlying the timeliness requirement); Saldano v. State,

70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (“We have consistently held that the

failure to object in a timely and specific manner during trial forfeits complaints about

the admissibility of evidence. This is true even though the error may concern a

constitutional right of the defendant.” (citations omitted)). Generally, a party must

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object each time the objectionable evidence is offered. Geuder, 115 S.W.3d at 13;

Martinez, 98 S.W.3d at 193; Clay, 361 S.W.3d at 766.

4. Analysis of Point 3

Regarding the portions of quoted testimony from E.V.’s boyfriend, Officer

Gipson, and Officer Harris, the record reveals that Ramirez failed to object, and on

appeal, he fails to provide a reason why. Accordingly, any error in the admission of

this testimony has not been preserved for our review. See Tex. R. App. P. 33.1; Mack

v. State, 872 S.W.2d 36, 38 (Tex. App.—Fort Worth 1994, no pet.) (holding any error

in admission of hearsay testimony was not preserved because defendant failed to

make a timely objection and secure a ruling on the objection); see also DeBlanc v. State,

799 S.W.2d 701, 709 (Tex. Crim. App. 1990) (“It is axiomatic that before a party may

assert error in any of the trial court actions that error must be brought to the trial

court’s attention.”).

Regarding the three specific objections cited by Ramirez, they were sustained

by the trial court, and Ramirez did not obtain an unfavorable subsequent ruling, so no

adverse ruling appears in the record to preserve error. See Darty v. State, 709 S.W.2d

652, 653 (Tex. Crim. App. 1986) (“The issue before us is whether the admission of

evidence by the trial court over objection implies that the objection is overruled, and

error is preserved, when no precise ruling by the trial court appears in the record. We

hold that absent an adverse ruling that appears of record, such an admission of

evidence does not preserve error.”).

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 We overrule Ramirez’s third point.

5. Analysis of Point 4

E.V.’s boyfriend testified at the punishment hearing that he wanted Ramirez to

die in prison and that E.V. viewed Ramirez’s conviction as a “victory . . . not only for

her, but women all around and children all around and anyone who does not have a

voice, period.” Ramirez is correct that a witness’s opinion on what the length of a

defendant’s sentence should be is improper. See Wright v. State, 962 S.W.2d 661, 663

(Tex. App.—Fort Worth 1998, no pet.) (“The argument that a witness may

recommend a particular punishment to the trier of fact has been soundly rejected by

the court of criminal appeals.”). However, Ramirez failed to object to the

complained-of testimony at the punishment hearing. Accordingly, he has failed to

preserve any such error for our review. See Nino v. State, 223 S.W.3d 749, 755 (Tex.

App.—Houston [14th Dist.] 2007, no pet.) (holding appellant failed to preserve error

as to evidentiary objection during punishment phase).

We overrule Ramirez’s fourth point.

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 IV. Conclusion

Having overruled Ramirez’s four points, we affirm the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 17, 2019

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