In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00296-CR
MANUEL ZUBIA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2016-410,823; Honorable John J. McClendon III, Presiding
March 16, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Manuel Zubia, was convicted following a jury trial of indecency, by
sexual contact, with a child younger than fourteen years of age, J. G.1 On appeal, he
asserts that the trial court erred in (1) admitting evidence of prior sexual misconduct by
appellant involving his niece, C. S. and (2) overruling his objections to the purported
allusion by the State to his failure to testify made during closing argument. We affirm.
1We identify complainant and her family members by their initials to protect their identities. See
TEX. R. APP. P. 9.8 & cmt.
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Background
In November 2016, an indictment was filed alleging that appellant intentionally or
knowingly engaged in sexual contact with J. G., a child younger than fourteen years of
age, by touching her genitals. At trial, J. G. testified that appellant, her grandfather,
touched her private area beneath her clothes in her backyard while he was teaching her
to shoot a BB gun. While appellant assisted J. G. to aim the gun, he would sometimes
squeeze her private area. Other times, he would rub her legs, then squeeze her private
area and tell her “good job” after she had fired the BB gun. On the first day of practice,
he held her private area or squeezed it twice. He touched her once on the second day
and once on the third day for a total of four times. The touching incidents made J. G. feel
guilty and she subsequently made an outcry to her grandmother, R. G.
R. G.’s testimony describing J. G.’s outcry was consistent with J. G.’s description
of abuse. R. G. also testified that when J. G. told her about the incidents, she was very
nervous, embarrassed, and shaky. J. G. told R. G. that when she asked appellant why
he was touching her, he laughed.
C. S. testified that when she was fourteen years old,2 she visited the residence
where appellant, his girlfriend, and his girlfriend’s son were living. After his girlfriend and
her son left the house, C. S. waited for appellant to take her home. While she was sitting
on the sofa, appellant approached and began rubbing her legs while laughing and telling
her “nothing’s going to happen.” She attempted to push him away when he tried to get
between her legs, but appellant persisted twisting between her legs while he knelt. He
was touching her all over in his efforts; however, she testified that the incident happened
so fast, she was unsure whether he touched her on her vagina. Ultimately, she kicked
2 At trial, C. S. was thirty-seven years old.
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him hard, and he backed off laughing. He then drove her home. She testified that she
belatedly came forward because she heard of J. G.’s outcry and believed that appellant’s
behavior “ha[d] to stop.”
Patricia Salazar, a Sexual Assault Nurse Examiner, testified that J. G.’s description
of the abuse was consistent throughout her examination. She also testified that her
findings were consistent with J. G.’s outcry to R. G.
John Werflein, a forensic interviewer with the Children Advocacy Center for the
South Plains, also interviewed J. G. He testified that J. G.’s description of the abuse was
consistent throughout the interview. Appellant’s cross-examination of Salazar and
Werflein primarily focused on whether J. G. was credible and the incident was fabricated.
At the trial’s conclusion, the jury convicted appellant of indecency with a child younger
than fourteen years of age by sexual contact and assessed punishment of forty years’
confinement.
Issue One – C. S.’s Testimony
In his first issue on appeal, appellant asserted the trial court abused its discretion
by permitting C. S. to testify to an incident of abuse that occurred twenty-three years ago.
Allegedly, his behavior was too remote in time and dissimilar to that involving J. G. He
also believed C. S.’s testimony was substantially more prejudicial than probative. We
overrule the issue.
We review a trial court’s decision on admissibility of extraneous-offense evidence
under an abuse of discretion standard. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim.
App. 2016); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). A trial court
abuses its discretion when its decision lies outside the zone of reasonable disagreement.
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).
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In actions involving the offense of indecency with a child, article 38.37 of the Texas
Code of Criminal Procedure permits the admission of evidence of other sex crimes
committed by the defendant against children, other than the complaining witness of the
alleged offense, “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 §§ 1(a) (1)(A), 2(b) (West 2018). Yet,
the statute does not preclude an objection based on Texas Rule of Evidence 403. TEX.
R. EVID. 403 (stating that relevant evidence may be excluded if its probative value is
substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading
the jury, undue delay, or needlessly presenting cumulative evidence). A Rule 403
analysis requires consideration of the following:
(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.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (these factors may
“well blend together in practice”). The rule contemplates the exclusion of evidence only
when there is a clear disparity between the probative value of the evidence and its degree
of prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
Here, C. S.’s testimony demonstrated that appellant attempted to engage in a
sexual act with a child other than J. G. As such, it was relevant to the case at hand. See
Caston v. State, 549 S.W.3d 601, 612 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
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(proof that a defendant sexually abused another child is relevant to whether he sexually
abused the child-complainant in the charged case); Gaytan v. State, 331 S.W.3d 218,
228 (Tex. App.—Austin 2011, pet. ref’d) (evidence that defendant committed extraneous
offenses against two other children was “straightforward and directly relevant to the only
issue in the case, namely whether [defendant] abused [complainant]”). Indeed, since
evidence of prior sexual abuse is especially probative of the accused’s propensity to
sexually assault children, the Rule 403 balancing test generally disfavors exclusion of the
prior sexual assaults. Caston, 549 S.W.3d at 612 (quoting Alvarez v. State, 491 S.W.3d
362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)). Furthermore, even old acts
of molestation may be admissible if they involve similar acts against a similar victim. See
Yepez v. State, No. 14-17-00590-CR, 2019 Tex. App. LEXIS 753, at *23 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (mem. op., not designated for publication); see also
West v. State, 554 S.W.3d 234, 239–40 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(stating that while remoteness may lessen the inherent probative value of the evidence,
the passage of time will not necessarily require exclusion of prior act).
The evidence showed that appellant, charged with indecency with an eight-year-
old child, also attempted to commit the same offense twenty-three years earlier to a
fourteen-year-old child. Although he characterized the two offenses as dissimilar, we
disagree. Like the offense at trial, he 1) approached C. S. while she was alone with him;
2) C. S. was also a member of his extended family; 3) he initiated contact by rubbing C.
S.’s legs; 4) sought access to the victim’s vaginal area; and 5) laughed in response to the
victim’s defensive moves.
Furthermore, the State needed the evidence. For instance, appellant implicitly and
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explicitly accused J. G. of fabricating her allegations of abuse, given the absence of
physical evidence or other eyewitness testimony supporting J. G.’s allegations. The
circumstance was very much a “he said, she said” situation. See Hammer, 296 S.W.3d
at 568–69 (noting that Rule 403 “should be used sparingly, especially in ‘he said, she
said’ sexual molestation cases that must be resolved solely on the bases of the testimony
of the complainant and the defendant”); see also Newton v. State, 301 S.W.3d 315, 320
(Tex. App.—Waco 2009, pet. ref’d) (finding a twenty-five-year-old extraneous offense
admissible based on the State’s need for extraneous-offense evidence because the State
had no physical evidence or eyewitness testimony and the defendant claimed fabrication).
C. S.’s testimony also concerned matters readily comprehensible by lay people,
and her testimony was directly relevant to the only issue in the case, whether appellant
abused J. G. Thus, it presented little risk of confusing the issues. Moreover, in its entirety,
it comprised about 22 pages of the reporter’s record and took a relatively short time to
present.
Given the foregoing circumstances, we find that the trial court’s decision to overrule
appellant’s Rule 403 objection fell within the realm of reasonable disagreement and,
therefore, constituted a legitimate exercise of discretion.
Issue Two – Improper Jury Argument
Through appellant’s second issue, he argues that the trial court erred by overruling
his objection to the State’s improper jury argument. Specifically, he claims the improper
argument concerned his Fifth Amendment right not to testify and improperly foisted upon
him the obligation to prove his defenses. We overrule the issue.
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During closing arguments, the State made the following statements:
So, what do you do when you have someone that you know,
it’s a family member, so you know them, identity’s is not an
issue. When you have a known person that’s molesting a
child. “Well, it wasn’t me,” isn’t going to work as a defense, is
it? It’s your name, you’re a family member, you’re known. So,
I guess you might be left with, “Well, it was an accident.” The
touching of her middle, “I didn’t—my hand slipped, didn’t really
mean to touch her there. It sure wasn’t to arouse or gratify
myself.” We don’t really have that either, do we?
Appellant subsequently objected, contending that the State’s utterance was a
comment on his failure to present a defense and to testify. The trial court overruled the
objection but instructed the jury that the defendant had a right to not testify and pursuing
it could not be used against him. The trial court also gave a similar instruction in open
court to the jury prior to deliberations and there were written instructions in the jury charge.
Thus, when appellant’s issue first arose, the trial court immediately instructed the jury in
accordance with appellant’s request. Prior to the jury’s deliberations and in the trial court’s
written instructions, the trial court emphasized appellant’s right to remain silent and that
the State always bears the burden of proof.
We find the State’s comments on the evidence more in the nature of comments on
a lack of evidence establishing appellant did not 1) commit the offense, 2) touch J. G. by
accident, and 3) if he touched her, he did not intend to arouse or gratify himself. The
State also chose to deliver these comments by primarily asking rhetorical questions.
Simply said, the prosecutor’s argument was akin to summarizing the evidence presented
and what was absent from it. See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App.
2000) (stating that proper argument includes “summation of the evidence presented at
trial”). It attempted to illustrate that there was no contrary or contradictory evidence
refuting the elements of the offense and no defensive theories to justify his conduct, and
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such is a tack that the State may pursue. Id. (observing that the State “may comment on
the defendant’s failure to produce witnesses and evidence so long as the remark does
not fault the defendant for exercising his right not to testify”); accord Zamarripa v. State,
N0. 13-19-00271-CR, 2020 Tex. App. LEXIS 9427, at *17 (Tex. App.—Corpus Christi
Dec. 3, 2020, no pet.) (mem. op., not designated for publication) (stating the same).
There was no direct reference by the State to appellant’s right against self-
incrimination, and an indirect or implied allusion to his silence is not enough. Wead v.
State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). Rather, the prosecutor must
manifestly intend the comment to be, or the comment must be of such character that a
juror would naturally and necessarily take it to be, a comment on defendant’s silence. Id.
Such was and is not present here.
Having overruled appellant’s issues, we affirm the trial court’s judgment.
Per Curiam
Do not publish.
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