In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-18-00214-CR
07-18-00215-CR
07-18-00216-CR
BRIAN DOUGLAS RAMBO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 46th District Court
Hardeman County, Texas
Trial Court No. 4371 Counts I, II & III, Honorable Dan Mike Bird, Presiding
March 20, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Brian Douglas Rambo (appellant) appeals his convictions for two counts of
Aggravated Sexual Assault of a Child and one count of Indecency with a Child. Through
three issues, he contends that the trial court committed reversible error in 1) admitting
evidence of extraneous offenses which were not proven by beyond a reasonable doubt
and were more prejudicial than probative, and 2) cumulating his sentences which resulted
in violating the Eighth Amendment’s protection against excessive punishment. We affirm.
Background
Appellant was charged with two counts of aggravated sexual assault and one
count of indecency with a child, which were committed against a child, L.N. The child
was six years old at the time of the incidents and sixteen at the time of trial. During trial,
the State sought to admit evidence from four other witnesses who testified to suffering
similar acts of sexual abuse by appellant; the witnesses were around ten years of age
and younger when the acts occurred.
The trial court convened a hearing to determine whether the evidence of
extraneous offenses was admissible per article 38.27 of the Texas Code of Criminal
Procedure. The witnesses who testified were B.P., his older brother, N.P., J.C. and M.N.
All were 18 and older at the time of the hearing. Appellant objected to the admission of
the testimony due to vagueness and lack of specifics regarding time of occurrence.
Appellant further contended that insufficient details were given for a jury to find that the
extraneous offenses occurred beyond a reasonable doubt. So too did he object to the
testimony under Rule 403 of the Texas Rules of Evidence. The trial court found the
evidence admissible and overruled appellant’s Rule 403 objection.
Upon trial, a jury found appellant guilty of the charged offenses and assessed
punishment at 99 years each for both aggravated-sexual assault convictions and 20 years
for the indecency with a child conviction. The trial court ordered that the sentences be
served cumulatively.
Issue One – Sufficient Proof of Extraneous Offenses
Appellant initially contends that the trial court erred in permitting four witnesses to
testify during guilt/innocence about extraneous matters which were not proven beyond a
reasonable doubt. Only three actually testified, however, and we overrule the issue.
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According to appellant, the witnesses’ testimony was vague, limited and at times
contradictory. Therefore, according to appellant, the trial court denied him a fair and
impartial trial when it admitted the testimony. Without it, “there is no evidence to support
the jury’s verdict and it cannot be said that beyond a reasonable doubt a jury would have
convicted appellant without the wrongfully admitted evidence of extraneous offenses,”
according to appellant.
We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
abuses its discretion only if its decision is so clearly wrong as to lie outside the zone within
which reasonable people might disagree. Taylor v. State, 268 S.W.3d 571, 579 (Tex.
Crim. App. 2008).
Next, article 38.37 of the Texas Code of Criminal Procedure is an evidentiary rule
applicable to certain types of sexual offenses, including sexual assault of a child,
indecency with a child, and continuous sexual abuse of a child. Per its terms, “evidence
that the defendant has committed a separate [sexually assaultive] offense described by
Subsection (a)(1) or (2) 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.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (West 2018). The State must
afford a defendant notice, at least 30 days before trial, of its intent to introduce evidence
of the other offenses. Id. art. 38.37, § 3. And, before the evidence may be introduced,
the trial judge must: “(1) determine that the evidence likely to be admitted at trial will be
adequate to support a finding by the jury that the defendant committed the separate
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offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the
jury for that purpose.” Id. art. 38.37, § 2-a.
Here, the trial court conducted a hearing out of the presence of the jury wherein
the four witnesses of which appellant now complains testified. Again, appellant’s
complaint focused on whether the evidence proffered by the witnesses established that
he committed the extraneous acts beyond a reasonable doubt, as required by statute.
B.P. testified at the hearing that when he was about seven or eight years old, his
mother was in the hospital and appellant was home with him and his older brother, N.P.
Appellant came into his room, while B.P. was laying on the bed, appellant pulled his pants
down, inserted his penis into the boy’s anus. This occurrence was repeated over the next
two to three years. B.P. was asked how many times appellant penetrated the child’s anus
with his penis to which he answered “[i]f I had to give you an exact number about 200,
300 times.” Furthermore, his mother was in and out of the hospital for a week to two-
week stays due to health issues. While she was hospitalized, appellant also had B.P, his
brother N.P. and a couple of friends go into the bedroom and watch porn. During these
events, he would touch the children’s penises and testes.
Appellant complains that B.P. testified about numerous times the offenses
happened which according to his testimony “2-300 times yet gives no[] specifics to those
times and therefore would not rise to the burden required by the law of Appellant
committing them beyond a reasonable doubt.” First, we note that a charge of aggravated
sexual assault requires proof that the accused intentionally and knowingly caused the
sexual organ of a child under 14 to contact the sexual organ of another person, or
intentionally and knowingly caused the penetration of a child’s sexual organ by any
means. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv), (2)(B) (West Supp. 2018).
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Indecency with a child by contact requires proof that the accused touched the
genitals of a child under 17. Id. § 21.11. By statute, a complainant’s testimony may be
sufficient evidence to convict a defendant. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West
Supp. 2018). And it is well established that the uncorroborated testimony of a child victim
alone can be sufficient to support a conviction of aggravated sexual assault of a child.
Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). Physical evidence and a
timely report to the authorities are not required to support a conviction for sexual assault
or indecency with a child. See Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—Amarillo
2017, pet. ref’d). With this in mind, we conclude that the aforementioned testimony of
B.P. was sufficient to illustrate, beyond reasonable doubt, that appellant committed both
aggravated sexual assault and indecency with a child upon B.P. At the very least, the
trial court’s decision to that effect fell within the zone of reasonable disagreement and
was not an instance of abused discretion.
Next, appellant contends that “N.P.’s testimony . . . was even less specific.”
According to appellant, “[u]pon cross-examination he was unable to remember places,
times or dates of the alleged offenses. Further, he made statements that contradicted
B.P.’s testimony including whether or not the incidents in the living room with the computer
happened or not and certainly overall was much vaguer.” However, N.P. did not testify
during the guilt/innocence phase of the trial; thus, the parameters of article 38.37 were
not implicated. See TEX. CODE CRIM. PROC. art. 38.37 (stating that “[t]he state shall give
the defendant notice of the state’s intent to introduce in the case in chief evidence
described by Section 1 or 2 . . . .”).1
1 N.P. did testify at the punishment phase of the trial.
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Next, appellant contends that the trial court erred in allowing M.N. to testify
because “the credibility of [M.N.’s] testimony was severely limited due to her not being
able to recall certain facts about the incidents and admitting to being very impaired by
alcohol.” The record shows that M.N. testified she was in the same class with B.P. when
she was 12 years old. According to the witness, on Valentine’s Day in 2014, she spent
the night at the home of B.P and N.P. Earlier that evening, appellant had driven M.N.,
another friend of the group, and B.P. to a pancake dinner for the Disabled American
Veterans in Altus, Oklahoma. On the return drive to Chillicothe, appellant stopped at a
Walmart and purchased wine coolers for the group. M.N. testified that the group was
“chugging” the coolers so that B.P.’s mother would not catch them drinking. She recalled
“falling out of the car being really drunk, and then we went inside, and we were drinking
Jack Daniels. It was, like, honey flavored. It was, like, -- they were hyping us up, me and
[her friend] to try [to] out drink each other.” M.N. admitted to being “very intoxicated” when
the group started watching a movie. As they watched it, appellant moved closer to her
and began “playing with [her] hair.” She did not like that. Nonetheless, appellant
continued to touch her hair and neck, which made her uncomfortable. Appellant, then,
stuck his hands down her pants and placed his fingers in her vagina. She became ill and
left the room to throw up. The next day, appellant drove her to Vernon where he again
had her drink a wine cooler and placed his hand in her pants. She squirmed away from
him and nothing else occurred. The aforementioned testimony of M.N. was sufficient to
illustrate, beyond reasonable doubt, that appellant committed aggravated sexual assault
upon her. At the very least, the trial court’s decision to that effect fell within the zone of
reasonable disagreement and was not an instance of abused discretion.
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Lastly, appellant complains about the testimony of “M.C.” being too limited and
vague. We assume appellant is referring to J.C. since there was no “M.C. We also note
the following exchange had with the court at the hearing:
THE COURT: On [J.C.], your objections to [J.C.’s] testimony
– actually, what he testified about was two things –
MR. GRIFFIN: Yes, sir.
THE COURT: – improper touching and anal penetration.
MR. GRIFFIN: Yes, sir. I think his is closer to meeting that
statute. Now, I’m going to argue 403 –
THE COURT: Sure.
We can see by the aforementioned exchange that appellant agreed that J.C.’s testimony
was closer to meeting the statute, i.e. article 38.37, and decided to forego making an
argument concerning same. Therefore, we find that he did not preserve any complaint
regarding it, and the trial court did not err in admitting same. Yet, even if preserved, our
review of the record indicates that J.C.’s testimony sufficed to satisfy the parameters of
article 38.37 or at least the trial court’s ruling fell within the zone of reasonable
disagreement.
Issue Two – Rule 403
In his second issue, appellant contends that the extraneous evidence should have
been excluded due to its prejudicial nature. We disagree and overrule the issue.
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
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the trial court from applying that test. Furthermore, “the plain language of Rule 403 does
not allow a trial court to exclude otherwise relevant evidence when that evidence is merely
prejudicial.” Robisheaux v. State, 483 S.W.3d 205, 217-18 (Tex. App.—Austin 2016, pet.
ref’d). This is so because all evidence against a defendant is, by its very nature, designed
to be prejudicial. Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). And, we
must remember that in reviewing the trial court’s decision under the standard of abused
discretion, we must afford the decision “an especially high level of deference.”
Robisheaux, 483 S.W.3d at 218 (citing United States v. Fields, 483 F.3d 313, 354 (5th
Cir. 2007)).
In the following excerpt from appellant’s brief, he discusses the Rule 403 factors.
Regarding the first factor this Court should find that the
evidence relating to the extraneous offenses of Appellant
should not have been allowed in and does not tend to make a
fact of consequence any more likely; rather, the only
corroborative force of the evidence was to show that Appellant
was acting in conformity with his character. Regarding the
second factor the Court of Criminal Appeals has stated
“sexually related misconduct involving children are inherently
inflammatory. Montgomery v. State, 810 S.W.2d 372 (Tex.
Crim. App. 1990) on reh’g (June 19,1991) [.] In regard to the
third factor the testimony regarding the extraneous offenses
consisted of most of the State’s evidence and much of that
testimony was incredible due to it being conflicting, vague and
lacking specificity. When combining the second and third
factors the Court will see that the testimony had significant
potential to impress the jury in some irrational but
nevertheless ineffaceable way and thus creating the potential
for the jury to reach a decision on an improper basis. Lastly,
in connection to the fourth factor the Court should find that the
State had remaining evidence they could have presented to
allow the jury to reach the conclusion that Appellant acted with
intent. Therefore, when all the factors are combined the Court
should find the trial court abused its discretion when it found
that the danger of unfair prejudice did not substantially
outweigh the probative value of the objected-to extraneous
act evidence.
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Regarding the allegation concerning character conformity, we note that article
38.37, § 2(b) expressly permits the evidence to be admitted to prove relevant issues
including the character of appellant and whether the acts performed were in conformity
with that character. Thus, it does not matter that the extraneous evidence was used to
establish character and conformity therewith for that is one of the reasons the statute
permits its use.
As for the allegation about the “inherently inflammatory” and highly prejudicial
nature of the evidence, we agree, it is clearly prejudicial. Yet, that too was contemplated
by the legislature when enacting article 38.37. As our sister court said in Bradshaw v.
State, 466 S.W.3d 875 (Tex. App—Texarkana 2015, pet. ref’d), “[t]he statute recognizes
that evidence of this type is, by definition, propensity, or character evidence. It is
admissible notwithstanding those characteristics.” Id. at 883. “This evidence [is] clearly
prejudicial . . . [h]owever, ‘the plain language of Rule 403 does not allow a trial court to
exclude otherwise relevant evidence when that evidence is merely prejudicial.’” Id.
(quoting Pawlak v. State, supra). In other words, its clear prejudice does not warrant
exclusion under Rule 403, only unfair prejudice.2 Given that the only direct evidence
available to the State was the victim’s own testimony, appellant endeavored to discredit
it. Appellant still believes it to be “incredible,” and that the extraneous evidence tended
to illustrate that appellant acted in conformity with his propensity to sexually assault
children. In illustrating conformance with character, the testimony of the three other
children supplemented the purportedly non-believable evidence of appellant’s guilt for
2 Unfair prejudice means a tendency to tempt the jury into finding guilt on grounds apart from proof
of the offense. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
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crimes for which he was being tried. Thus, we cannot say that the trial court abused its
discretion in rejecting appellant’s Rule 403 attack.
Issue Three – Grossly Disproportionate Sentence
In his third issue, appellant contends that the trial court erred in cumulating his
sentences. In so cumulating it, “[a]ppellant was assessed a grossly disproportionate
punishment when he was sentenced to 218 years in the institutional division, TDCJ.” We
disagree and overrule the issue.
Appellant failed to raise this complaint at the time of sentencing or in a motion for
new trial. Because it went unmentioned then, it is not preserved for review. See Drain v.
State, 540 S.W.3d 637, 639-40 (Tex. App.—Amarillo 2018, no pet.); see also Hammons
v. State, No. 10-17-00037-CR, 2017 Tex. App. LEXIS 8718, at *5 (Tex. App.—Waco Sept.
13, 2017, no pet.) (mem. op., not designated for publication); accord, Prado v. State, No.
07-16-00273-CR, 2016 Tex. App. LEXIS 13109, at *4 (Tex. App.—Amarillo Dec. 8, 2016,
no pet.) (mem. op., not designated for publication) (holding that a claim regarding the
punishment being cruel and unusual must be preserved for review by a timely request,
objection or motion).
Accordingly, we affirm the judgments of the trial court.
Per Curiam
Do not publish.
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