NUMBER 13-17-00180-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DANIEL OSCAR GOMEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Benavides
By his sole issue, appellant Daniel Gomez challenges his conviction for indecency
with a child by sexual contact, a second-degree felony. See TEX. PENAL CODE ANN. §
21.11 (West, Westlaw through 2017 1st C.S.). Gomez alleges the trial court abused its
discretion by allowing in the testimony of B.G.1 under article 38.37 of the code of criminal
1 In order to protect the complainant’s identity, we will use her initials and the initials of her family
procedure and rule 403 and 404(b) of the rules of evidence during the guilt-innocence
phase of the trial. See TEX. R. EVID. 403, 404(b); TEX. CODE CRIM. PROC. ANN. art. 38.37
(West, Westlaw through 2017 1st C.S.). We affirm.
I. BACKGROUND
Gomez was charged by indictment on four counts: two counts of aggravated
sexual assault of a child, D.G., a first-degree felony, and two counts of indecency with a
child by sexual contact with D.G. See TEX. PENAL CODE ANN. §§ 22.011, 22.11 (West,
Westlaw through 2017 1st C.S.). Counts one through three were disposed of in a prior
trial.2 The State elected to re-try Gomez on count 4, indecency with a child by sexual
contact. See id. § 22.11. D.G. testified at trial regarding the indecency with a child,
stating that she awoke to Gomez lying next to her, with his hands on her body, and she
felt his male sex organ on her lower back.
Prior to trial, the State provided notice to Gomez of its intent to call a second victim,
B.G., as a witness under article 38.37 of the code of criminal procedure. See TEX. CODE
CRIM. PROC. ANN. art. 38.37 (providing that evidence of extraneous offenses or acts may
be admissible in the prosecution of a defendant for certain sexual abuse offenses). The
State also indicated that it would offer into evidence one of the prior alleged assaults on
B.G. through her testimony under rules of evidence 403 and 404(b). See TEX. R. EVID.
403, 404(b). At trial, the State called B.G. as a rebuttal witness to testify regarding her
members throughout this memorandum opinion. See generally TEX. R. APP. P. 9.8.
2 The State abandoned count 1, the trial court granted a directed verdict on count 2, and Gomez
was acquitted by a jury on count 3. The jury was unable to come to a verdict on count 4 and the trial court
granted a mistrial. The State re-tried Gomez on count 4 in this pending action.
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allegations of previous sexual abuse against Gomez. 3 The trial court conducted a
hearing outside of the presence of the jury to evaluate the admissibility of B.G.’s
testimony.
A. Article 38.37 Hearing
During the hearing to determine if the article 38.37 testimony should be admitted,
B.G. testified about three separate incidents of abuse: one at a home on Rosebud
Avenue (Rosebud), one on Warren Street (Warren), and one on Melrose Avenue
(Melrose). B.G. made her initial outcry to a school counselor and was taken for a forensic
interview at Hope Center of South Texas, a local child advocacy center, as well as a
sexual assault nurse examination.
B.G. testified that Gomez first digitally penetrated her female sex organ at the
home on Rosebud. B.G. explained that she was asleep on a fold-out bed in the living
room and woke to Gomez’s hand under her pants and inside her female sex organ. She
stated that when he stopped, Gomez apologized, told her not to say anything, and that
her “mother would kill him, kill us, she’ll hate us” if she found out. Regarding the incident
on Warren, B.G. relayed that she awoke to Gomez rubbing her thigh with his male sex
organ over her clothing.4 Regarding the third incident which occurred on Melrose, B.G.
stated she awoke to Gomez penetrating her female sex organ with one hand, while
masturbating with his other hand. B.G. explained that her mother was lying in between
3 Gomez had previously been brought to trial on allegations of sexual abuse regarding B.G. and
was acquitted of those charges. See TEX. PENAL CODE ANN. § 22.011 (West, Westlaw through 2017 1st
C.S.).
4 The previous trial in which B.G. was the complaining witness involved a separate incident
involving penetration at Warren.
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them but had been consuming alcohol previously.
Following B.G.’s testimony, the State argued that although there was a prior trial
regarding a sexual incident on Warren between Gomez and B.G., that incident involved
penetration of B.G.’s sexual organ, and the incident B.G. testified to presently did not
involve penetration. Therefore, the State alleged there was no collateral estoppel related
to the Warren incident B.G. discussed and it should be admitted into evidence. The
State also discussed the Rosebud incident and acknowledged that it was not listed on its
article 38.37 notice but argued that the incident would be admissible under rule 404(b),
instead of article 38.37. See TEX. R. EVID. 404(b); TEX. CODE CRIM. PROC. ANN. art.
38.37. According to the State, Gomez did not request notice under rule 404(b) and in
the alternative, the State would present the evidence in response to a defensive theory.
As to rule 403, the State claimed the evidence B.G. would present was more probative
than prejudicial, but it has the right to bring evidence of prior sexual incidents with B.G.
under article 38.37. See TEX. R. EVID. 403; TEX. CODE CRIM. PROC. ANN. art. 38.37.
Gomez responded by arguing that the allegations B.G. discussed were presented
in the previous trial in which Gomez was acquitted and would be overly prejudicial.
Additionally, Gomez stated that B.G. relayed information regarding penetration of her
sexual organ, where the complainant here, D.G., relayed information regarding an
indecency with a child and those offenses are substantially different. Gomez also argued
that the facts being presented had already been presented to a jury in B.G.’s trial and the
issues were determined by a jury in which he was acquitted.
The trial court ruled that the Warren and Melrose incidents are “somewhat similar,”
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and it admitted those under article 38.37. See TEX. CODE CRIM. PROC. ANN. art. 38.37.
The trial court ruled the Rosebud incident fell under rule 404(b), was relevant to rebut a
defensive theory, and the probative value outweighed the prejudicial nature of the
testimony. See TEX. R. EVID. 403.
B. Trial Testimony
In front of the jury, B.G. testified with similar detail to the article 38.37 hearing.
She described the Rosebud incident stating Gomez penetrated her female sex organ with
his fingers. She then described the Warren incident where she awoke to Gomez’s
uncovered male sex organ touching her thigh over her clothing. B.G. then explained the
incident on Melrose stating that she awoke to Gomez penetrating her female sex organ
with his fingers, while using his other hand to masturbate his uncovered male sex organ.
B.G. said she stopped Gomez by grabbing his hand and twisting it and that her mother
was lying in between her and Gomez. B.G. discussed she made an outcry to her school
counselor and that law enforcement officers requested the pair of underwear she wore
the night of the Melrose incident.
On cross-examination by Gomez’s counsel, B.G. testified about her previous trial
testimony, specifically the offense the previous trial centered around. Gomez was
previously tried for penetration of B.G.’s female sex organ on Warren. B.G. had an
abortion following the incident according to her testimony. Gomez questioned B.G.
regarding the incident on Warren she was now alleging and stated that she did not discuss
it in the prior trial. Although B.G. agreed the current Warren incident was not discussed
at the previous trial, she stated that she had discussed it during her forensic interview.
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Gomez also questioned B.G. regarding any other motivation she had to report these
alleged assaults and discrepancies in her statements: the initial outcry to her school
counselor, the statement to the forensic interviewer, and to some extent, the prior trial.
B.G. testified that she did not initially give specific details to her school counselor but
expanded her description of the events when she met with the forensic interviewer.
Based on the nature of Gomez’s questions, and after hearing substantial argument from
the parties, the trial court allowed B.G.’s forensic interview to be played for the jury in its
entirety.
Following additional testimony from other witnesses, the jury found Gomez guilty
of indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11. The
trial court sentenced Gomez to twenty years’ imprisonment in the Texas Department of
Criminal Justice–Institutional Division and a $20,000 fine. This appeal followed.
II. NO ERROR IN ADMISSION OF EXTRANEOUS OFFENSES UNDER ART. 38.37
By his sole issue, Gomez argues that the trial court committed error by allowing
the admission of extraneous offenses under Texas Code of Criminal Procedure article
38.37 and Texas Rule of Evidence 403. See TEX. R. EVID. 403; TEX. CODE. CRIM. PROC.
ANN. art. 38.37.
A. Standard of Review
We review a trial court’s ruling on the admissibility of evidence under an abuse of
discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible
v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court’s ruling
is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the
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trial court’s ruling will be upheld. Prible, 175 S.W.3d at 731.
When evidence of a defendant’s commission of one of the offenses listed in article
38.37, article 2-a is relevant under article 38.37, the trial court still must conduct a rule
403 balancing test upon proper objection or request. McCombs v. State, No. 14-17-
00214-CR, ___S.W.3d___, 2018 WL 5260983, *12 (Tex. App.—Houston [14th Dist.] Oct.
23, 2018, no pet.). When reviewing a trial court’s ruling on a rule 403 objection, we
presume the trial court performed a rule 403 balancing test and determined the evidence
was admissible. Id. We also presume that the probative value of relevant evidence
substantially outweighs the danger of unfair prejudice from admission of that evidence.
Id. Appellant must shoulder the burden to demonstrate that the danger of unfair
prejudice substantially outweighs the probative value. Id.
The Texas Court of Criminal Appeals has cautioned that in reviewing a trial court’s
rule 403 balancing determination, we are to “reverse the trial court’s judgment rarely and
only after a clear abuse of discretion.” Id. (quoting Mozon v. State, 991 S.W.2d 841, 847
(Tex. Crim. App. 1999)).
B. Applicable Case Law
1. Article 38.37
Texas Code of Criminal Procedure article 38.37, section 2(b) provides that,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject
to Section 2-a, evidence that the defendant has committed a separate
offense described by Subsection (a)(1) or (2) [sexual based offenses] may
be admitted in the trial of an alleged offense described by Subsection (a)(1)
or (2) 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.5
5 As noted in Belcher v. State, the 2013 amendment to article 38.37 has caused the rule to be in
line with the Federal Rule of Evidence 414, which both allow evidence of a defendant’s other sex crimes
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TEX. CODE. CRIM. PROC. ANN. art. 38.37, § 2(b); see Dominguez v. State, 467 S.W.3d 521,
525 (Tex. App.—San Antonio 2015, pet. ref’d). The State must provide the defendant
with notice of its intent to introduce such evidence not later than thirty days before the
date of trial. TEX. CODE. CRIM. PROC. ANN. art. 38.37, § 3. For such evidence to be
admitted, the trial court must rule it admissible after a hearing outside the presence of the
jury to “determine that evidence likely to be admitted at trial will be adequate to support a
finding by the jury that the defendant committed the separate offense beyond a
reasonable doubt.” Id. § 2-a; see also Chaisson v. State, No. 13-16-00548-CR, 2018
WL 1870592, *6 (Tex. App.—Corpus Christi Apr. 19, 2018, no pet.) (mem. op., not
designated for publication).
2. Rule 403
Rule 403 provides that relevant evidence may be excluded “if its probative value
is substantially outweighed by the danger of unfair prejudice” among other things. TEX.
R. EVID. 403. In determining whether the probative value of evidence is substantially
outweighed by the danger of unfair prejudice, we consider: (1) “the probative value of
the evidence; (2) the potential to impress the jury in some irrational, yet indelible way; (3)
the time needed to develop the evidence; and (4) the proponent’s need for the evidence.”
Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). “‘Probative value’
refers to the inherent probative force of an item of evidence–that is, how strongly it serves
against children to be admissible in order to show a propensity to commit the act of child sexual abuse
alleged. 474 S.W.3d 840, 846–47 (Tex. App.—Tyler 2015, no pet.); see also Robisheaux v. State, 483
S.W.3d 205, 211 (Tex. App.—Austin 2016, pet. ref’d.).
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to make more or less probable the existence of a fact of consequence to the litigation–
coupled with the proponent’s need for that item of evidence.” Gigliobianco v. State, 210
S.W.3d 637, 641 (Tex. Crim. App. 2006). “‘Unfair prejudice’ refers to a tendency to
suggest decision on an improper basis–commonly, though not necessarily, an emotional
one.” Id. In sum, a trial court, when undertaking a Rule 403 analysis, must balance (1)
the inherent probative force of the proffered item of evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the evidence to suggest
decision on an improper basis, (4) any tendency of the evidence to confuse or distract the
jury from the main issues, (5) any tendency of the evidence to be given undue weight by
a jury that has not been equipped to evaluate the probative force of the evidence, and (6)
the likelihood that presentation of the evidence will consume an inordinate amount of time
or merely repeat evidence already admitted. Id. at 641–42. An appellate court
presumes that the probative value will outweigh any prejudicial effect. See Montgomery
v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (en banc) (op. on reh’g).
C. Discussion
Gomez argues the trial court abused its discretion by admitting evidence of prior
extraneous sexual offenses. During trial, the trial court conducted a hearing, outside the
presence of the jury, to determine if the testimony of B.G. would support a finding that
Gomez committed those offenses beyond a reasonable doubt. See TEX. CODE. CRIM.
PROC. ANN. art. 38.37, § 2-a. Gomez did not complain in the trial court and does not
argue on appeal that the trial court failed to comply with article 38.37, section 2-a, that the
trial court erred in applying article 38.37, section 2 to the evidence of extraneous sexual
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assaults of B.G., or that the evidence of the extraneous sexual assaults of B.G. were not
relevant under article 38.37, section 2. Thus, we presume without deciding, that the trial
court complied with the dictates of article 38.37, section 2, and the evidence presented
was relevant. See id. Gomez argued that the introduction of the evidence violated rule
403. See TEX. R. EVID. 403; see McCombs, 2018 WL 5260983, at *11.
1. Probative Value of Evidence and Strength of Need for the Evidence
The probative value factor of a rule 403 analysis requires us to consider the
strength of the extraneous offense evidence to make a fact of consequence more or less
probable. See Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010). B.G.’s
testimony served the purpose of article 38.37 in this type of offense: to permit the jury
to consider the character of Gomez and demonstrate that he had performed such acts on
a similarly situated person. B.G. and D.G. were both young relatives, his daughter and
granddaughter respectively, present in Gomez’s home, giving him access to perform the
alleged acts. The State demonstrated a need for the extraneous offense testimony from
B.G., due to both girls complaining of “somewhat similar” acts of indecency and sexual
assault by Gomez, but a lack of physical findings present on the examination reports.
See McCombs, 2018 WL 5260983, at *12; Gaytan v. State, 331 S.W.3d 218, 227 (Tex.
App.—Austin 2011, pet. ref’d) (lack of physical evidence is a basis for needing evidence
of extraneous offenses).
Gomez also argues that the evidence was too remote to have probative value.
When determining the probative value of past criminal behavior, courts should consider
“the closeness in time between the extraneous offense and the charged offense.” Kiser
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v. State, 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). Here,
B.G. testified that Gomez molested her between the sixth and eighth grades, around
2001-2004. Gomez was alleged to have molested D.G in 2008. A time period of four
to seven years was not so remote as to erode the probative value of the extraneous
offense evidence. This factor weighs in favor of admission. See Gigliobianco, 210
S.W.3d at 641.
2. Tendency of Evidence to Suggest Decision on Improper Basis
The acts recounted by B.G. could by their nature “tend to inflame,” but Gomez was
allowed substantial leeway to cross-examine B.G. regarding the prior trial where she was
the complaining witness. Gomez was allowed on cross-examination to go into
inconsistencies in B.G.’s testimony, as well as Gomez’s acquittal in the prior case in which
B.G. was the complainant. Additionally, B.G.’s forensic interview was played in its
entirety for the jury and both parties questioned B.G. regarding that video evidence. The
jury was allowed to determine B.G.’s credibility following her direct and cross-examination
testimony. This factor weighs in favor of admission. See id.
3. Tendency of the Evidence to Confuse or Distract the Jury from the
Main Issue, Be Given Undue Weight, and Consume an Inordinate
Amount of Time
Gomez argues that the time needed to fully develop B.G.’s testimony, including
calling outcry witnesses, took up substantial time and “took away time from the jury
assessing the indicted offense.” Although B.G.’s testimony did stretch over several
volumes of the trial record, the substantial portion of the reporter’s record involved
argument of counsel to the trial court. There was no evidence that the amount of time
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needed to develop B.G’s testimony prevented the jury from assessing the indicted
offense. Gomez makes no argument that B.G.’s testimony confused or distracted the
jury from the task before them, or there was any indication that the jury heavily favored
B.G.’s testimony in returning its verdict of guilty. This factor weighs in favor of admission.
See id.
4. Conclusion of Balancing Test
Under the applicable standard of review, we conclude that the trial court did not
abuse its discretion in determining that a danger of unfair prejudice, confusing the issues,
misleading the jury, or undue delay did not substantially outweigh the probative value of
the extraneous offense evidence regarding B.G. See McCombs, 2018 WL 5260983 at
*13. We overrule Gomez’s sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
7th day of February, 2019.
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