Affirmed and Memorandum Opinion filed August 10, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00432-CR
OSCAR MEJIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1466767
MEMORANDUM OPINION
Appellant Oscar Armando Mejia appeals his conviction of continuous sexual
abuse of a child. In five issues he contends that his trial counsel was ineffective.
In two issues he contends that the trial court abused its discretion in admitting
evidence of an extraneous offense and in limiting cross-examination of certain
witnesses. We affirm.
I. BACKGROUND
Appellant was convicted of continuous sexual abuse of a child. The
complainant child was between the age of nine and eleven when appellant
committed three separate instances of sexual abuse. Each incident occurred at
appellant’s home while the complainant was spending the night. The
complainant’s father, who is also appellant’s uncle, asked the complainant about
whether appellant had touched the complainant inappropriately after reviewing a
series of text messages between appellant and another young family member,
“J.T.” The complainant told his father that appellant had touched his “private part”
under his pants while they were watching a movie at appellant’s home. Later,
when the complainant’s mother asked the complainant about appellant, the
complainant said that appellant had put his penis inside the complainant’s anus.
The complainant testified that he and his brother went to appellant’s
apartment several times a year. While at appellant’s apartment, the complainant,
his brother, and appellant would lie on the floor and watch movies. During the
movie, appellant would touch the complainant’s penis and penetrate the
complainant’s anus. The first instance of sexual assault occurred during Christmas
vacation and the last was on the complainant’s eleventh birthday. Also on the
complainant’s eleventh birthday, in addition to penetrating complainant’s anus,
appellant also put his mouth on the complainant’s penis.
O.T., another family member, testified that when he was twelve, he spent the
night at appellant’s apartment and awoke to find appellant touching O.T.’s penis.
J.T. testified that he admitted to telling appellant’s attorney that the complainant
lied about appellant sexually assaulting him and that he felt sorry about what was
happening to appellant. J.T. then told the jury that the complainant never asked
him to lie and that he believed appellant assaulted the complainant. J.T. also
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admitted that he initially told his mother that the text message he received from
appellant was sexual in nature, but then later told her it was not sexual. At trial
J.T. testified that the text message was sexual. J.T. testified that he felt sorry for
appellant and what was happening to him. J.T. testified that he did not fully
witness the sexual assault that occurred on the complainant’s birthday, but he did
see appellant “hugging” the complainant under the covers and the complainant
looking uncomfortable and moving a lot while appellant hugged him and held him
in place.
Appellant testified that he was very close to the complainant and loved him
like a son. He testified that he told the police that he may have accidentally
touched the complainant’s penis while they were asleep following the
complainant’s birthday. Appellant testified that the only time the complainant
spent the night at appellant’s apartment was on the complainant’s eleventh
birthday. Appellant admitted during cross-examination that he told an investigator
in an earlier statement that the complainant had stayed at appellant’s home
overnight a few other times, but appellant clarified that he meant the complainant
had just visited and not stayed the night.
Appellant’s wife testified that the complainant only spent the night once at
their apartment. Appellant’s mother testified that her brother, the complainant’s
father, was a liar. She also testified that the complainant and the other “boys” had
spent the night at appellant’s apartment on many occasions but admitted she did
not witness them at the apartment.
The jury returned a verdict of guilt. Appellant filed a motion for new trial
but did not raise the ineffective assistance issues in the motion. The motion for
new trial was overruled by operation of law. This appeal followed.
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I. INEFFECTIVE ASSISTANCE
In his first five issues, appellant contends that his trial counsel was
ineffective for (1) calling appellant’s mother as a witness because her testimony
contradicted appellant’s main defensive theory; (2) allowing the “child abuse
pediatrician” to testify that she “believed” the complainant; (3) introducing text
messages into evidence that appellant wanted a sexual favor from another child;
(4) calling a witness who opined that appellant sexually abused the complainant;
and (5) calling a witness who testified that appellant had sexually abused him.
A. Legal Principles
To prevail on a claim of ineffective assistance, an appellant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness and (2) counsel’s deficiency caused the appellant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88 (1984); Perez v. State, 310 S.W.3d 890, 892–
93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a
preponderance of the evidence. Perez, 310 S.W.3d at 893.
Generally, a claim of ineffective assistance may not be addressed on direct
appeal because the record usually is not sufficient to conclude that counsel’s
performance was deficient under the first Strickland prong. See Andrews v. State,
159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005) (“A reviewing court will rarely be in a position
on direct appeal to fairly evaluate the merits of an ineffective assistance claim.”).
Ordinarily, trial counsel should be afforded an opportunity to explain counsel’s
actions “before being denounced as ineffective.” Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003). A defendant is not entitled to “errorless or
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perfect counsel whose competency of representation is to be judged by hindsight.”
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
“Review of counsel’s representation is highly deferential, and the reviewing
court indulges a strong presumption that counsel’s conduct fell within a wide range
of reasonable representation.” Salinas, 163 S.W.3d at 740. “To overcome the
presumption of reasonable professional assistance, any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Id. (quotation omitted).
It is the “rare case” when an appellant raises a claim of ineffective assistance
on direct appeal and the record is sufficient to make a decision on the merits.
Andrews, 159 S.W.3d at 103. We must presume that trial counsel’s performance
was adequate unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 696-97
(Tex. Crim. App. 2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)). “The record must demonstrate that counsel’s performance fell
below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify counsel’s acts or omissions, regardless of
[counsel’s] subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011). If there is a potential reasonable trial strategy that counsel
could have been pursuing, we cannot conclude that counsel performed deficiently.
See Andrews, 159 S.W.3d at 103.
B. Was Trial Counsel Ineffective for Calling Mother to Testify?
Appellant argues trial counsel was ineffective because he called appellant’s
mother to testify and her testimony contradicted appellant’s “main defense” at trial.
Appellant argues that the jury was evenly deadlocked prior to asking the trial court
to read back the mother’s testimony about whether the complainant had stayed the
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night at appellant’s home more than once and the jury only returned a unanimous
guilty verdict once this testimony was provided. Because of this, appellant argues,
trial counsel “decimated” appellant’s main defensive theory causing the jury to
“not believe appellant, appellant’s wife, and appellant’s father-in-law” that the
complainant had only spent the night at appellant’s home once.
Trial counsel called appellant’s mother to testify in appellant’s defense. Trial
counsel asked appellant’s mother whether the complainant’s father, her brother,
was a liar or truth-teller. In trial counsel’s opening statement he stated that
“[appellant’s] mother . . . will testify also as to one of the statements made by [her
brother]. She will be serving as an impeachment witness to her brother’s statement.
. . . But she will also talk as to the character of [appellant] as well.” During
argument to the trial court, trial counsel argued that appellant’s mother would be
called to impeach the complainant’s father’s testimony:
The question was: Has he ever made any statements in front of other
family members saying that it doesn’t matter to him whether Mr.
Mejia is innocent. What matters to him is his reputation. And he said,
I have never said that. And so his sister is here to testify as to that
statement. She was a witness to that statement.
Appellant’s mother testified that her brother was a liar. On cross-examination by
the State, appellant’s mother admitted that she was aware that the complainant, his
brother, O.T, and J.T. spent the night more than once at appellant’s apartment. She
also testified that at family gatherings, the boys would approach appellant and ask
to go to his home and that they liked going to appellant’s home. She never
witnessed any of the boys say that they feared appellant or did not want to be
around him.
Appellant cites to one case in support of his theory that trial counsel was
ineffective for calling his mother to testify. In Ex Parte Guzmon, the Court of
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Criminal Appeals concluded that the defendant’s trial counsel was deficient
because he did not sufficiently prepare at least two witnesses that he called during
the punishment phase of trial noting that “counsel seemed not to know how the
[witness], his own witness, would testify.” 730 S.W.2d 724, 734 (Tex. Crim. App.
1987). “Witness preparation is vital to an effective defense presentation.” Id.
However, the court in Guzmon had the benefit of trial counsel’s explanation of
strategy and preparation from the writ hearing. Id. at 725.
Here, there is no explanation from trial counsel of his strategy or
preparation. Appellant did not move for a new trial on ineffective assistance
grounds and did not afford his trial counsel an opportunity to explain strategy or
preparation. Without more, we cannot evaluate whether trial counsel had a
reasonable trial strategy for calling appellant’s mother, whether he had prepared by
talking with her prior to trial and what was discussed, and whether he knew what
her testimony would be regarding whether the boys had spent multiple nights over
at appellant’s home. See Darkins v. State, 430 S.W.3d 559, 571 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (“The record does not reflect counsel’s
strategy for [the defendant’s] testimony, nor does it reflect [the defendant’s]
preparation for trial. Without a fully developed record, we cannot speculate on
appellant’s counsel’s strategy.”).
We overrule appellant’s first issue.
C. Was Trial Counsel Ineffective for Eliciting Opinion Testimony?
In his second issue appellant argues that trial counsel was ineffective
because he allowed the child abuse pediatrician to testify as to her “belief” that the
complainant was telling the truth about the abuse. Trial counsel questioned the
child abuse pediatrician who examined the complainant about how she does her
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exams and why she asks certain questions. As part of this line of questioning, the
following exchanges took place:
[Trial counsel] Q. Okay. Then you asked him, How did it feel when
he did these things to you? And he said, Weird and sad, correct?
A. Yes.
Q. Why is it important to ask a child how these things feel? Isn’t it
just important that it happened regardless of how it makes him feel?
Why is this question medically important?
A. . . . . It’s important to understand the thoughts that are happening
to the child because very often, when it’s a family member, they have
a lot of what we call internal attribution they bring on themselves. . . .
So I try very hard to keep all the doors open to assess their risk.
Q. He said sad, and you believed him?
A. Yes.
Q. However, in the rest of your report you did not note that he cried
or that he was sad or anxious; yet when he told you he was sad, you
wrote down here and you believed him?
A. He had a painful event with a penis on his butt. Of course I
believe him.
....
Q. It’s impossible to know that what this child was telling you was
absolutely true or correct. There’s no way of being a hundred percent
certain, correct?
A. Well, there are indicators; but a hundred percent is a high bar. I
don’t know how to be a hundred percent certain about the trust of the
content of most conversations.
Q. . . . there’s never a really scientific way of verifying that children
that have accused somebody of abuse, to an examiner like you, have
told the truth and not exaggerated? There’s no way to verify that?
A. There are practice standards about contextual detail and the use of
the five senses and reliability. Those are how - - those dictate how we
collect our information on the history to try and identify those
children who may be, say, coached.
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At the end of trial counsel’s examination, the State requested a conference at
the bench to address whether the State could elicit testimony about whether the
child abuse pediatrician believed that the complainant was telling the truth or not.
The State argued that defense counsel had “opened the door” to such testimony
through his line of questioning. Appellant’s trial counsel responded that:
. . . that wasn’t the question. I think they are trying to confuse two
issues, Your Honor. The question is about certainty of their
understanding of what’s the truth as the child is being told. The
question is more directed - - the question is more a physical doctor,
how does she - - how does she decide what information she’s jotting
down. That’s what I am trying to get to.
Appellant argues on appeal that trial counsel was ineffective because he
allowed the child abuse pediatrician to testify that “she believed the complainant’s
claim that appellant sexually abused him.” However, the context of the line of
questioning shows that her testimony was not about whether she believed that the
complainant was sexually assaulted by appellant, but that she believed the
complainant was “sad.” The question trial counsel asked was “yet, when he told
you he was sad, you wrote down here and you believed him?” The question was
not eliciting a response, and the child abuse pediatrician did not testify, that she
believed the complainant when he said he was sexually assaulted. Just a few
questions later, trial counsel elicited testimony from the witness that she could not
ever be certain a child was telling her the truth and that sometimes children were
coached by an adult.
Similarly in appellant’s fourth issue, he argues that trial counsel was
ineffective because he called J.T. as a witness and elicited testimony that J.T.
believed appellant sexually abused the complainant. On direct examination,
appellant’s trial counsel confronted J.T. with the numerous inconsistencies in his
story about what happened between himself, the complainant, and appellant. Trial
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counsel confronted J.T. with a recorded telephone conversation between trial
counsel and J.T. wherein J.T. admitted that the complainant told him to lie and say
that appellant had touched the complainant. J.T. then testified that “I lied on the
phone, yes. [The complainant] did not tell me to lie. I said that by myself. I just
didn’t want nothing to do with . . . this situation anymore because I deeply know
that something did happen with [appellant] and [the complainant].” Trial counsel
further confronted J.T. with additional text messages that he sent to appellant
wherein J.T. said he was sorry to appellant, that he still cared about appellant and
appellant’s family, and that he would lie to his parents to come and see appellant.
In the same messages, appellant responded that J.T. was always welcome, but that
he could not come stay at appellant’s home because of the case. On re-cross
examination, the State asked whether J.T. was “confused about what . . . to do in
this situation?” J.T, responded that he had forgiven appellant but “that doesn’t
mean that I believe he didn’t do nothing to [the complainant] . . . . I don’t think he
is innocent, that’s what I am trying to say.” Trial counsel did not object to this
response.
Appellant cites to three cases in support of his argument that trial counsel
was ineffective for eliciting opinion testimony and failing to object to opinion
testimony. In Garcia, the appellate court found the defendant’s trial counsel
ineffective because he did not object when the State asked two witnesses about
“the truthfulness of the testimony of the complaining witnesses.” 712 S.W.2d 249,
253 (Tex. App.—El Paso 1986, pet. ref’d). In Miller v. State, two experts and the
complainant’s mother testified that “each believed the complainant was telling the
truth.” 757 S.W.2d 880, 883 (Tex. App.—Dallas 1988, pet. ref’d) (the State asked,
“[D]o you have an opinion as to whether or not [the complainant] has . . . been
sexually abused?”; the witness responded “Yes . . . . This child has been sexually
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abused.”). The court determined that trial counsel was ineffective for failing to
object to the inadmissible testimony. Id. at 884. In Fuller v. State, the State
elicited the expert’s opinion testimony about the expert’s “particular determination
of [the complainant’s] truthfulness.” 224 S.W.3d 823, 835 (Tex. App.—Texarkana
2007, no pet.) (the State asked, “[D]id you form an opinion as to whether she was
being truthful with you?”; the witness responded, “I saw nothing in her demeanor
and nothing in the information that she gave me that indicated that she was not
being truthful with me.”). The court determined trial counsel was ineffective for
failing to object the inadmissible testimony. Id. at 836.
This case is distinguishable from Garcia, Miller, and Fuller where the
witnesses were asked whether they believed the complainant was truthful. Here,
trial counsel was asking a specific question about whether the child abuse
pediatrician believed the complainant when he responded he was “sad” and delved
into her process of interviewing. It appears trial counsel was trying to show that
while the complainant said he was “sad” there did not appear to be any further
indications that he was feeling sad or distressed. Trial counsel never asked
whether the child abuse pediatrician had an opinion as to whether the complainant
was telling the truth about the sexual assaults. From the record, it appears that trial
counsel was questioning the child abuse pediatrician about her process of
interviewing, taking notes, and whether some children are coached to fabricate
stories of sexual assault.
Regarding J.T.’s testimony, trial counsel was not asking for J.T.’s opinion
about whether he believed something happened or whether the complainant was
telling the truth. From the record it appears that trial counsel was trying to
highlight how inconsistent J.T.’s statement were, that J.T. admitted to lying over
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the course of the proceedings, and that J.T.’s unreliable statements were the ones
that started the entire inquiry into appellant’s conduct.
Even considering the context of the testimony, the record is silent as to trial
counsel’s strategy for eliciting this testimony from the child abuse pediatrician and
failing to object to J.T.’s testimony. As a result, appellant has failed to meet his
burden to show that trial counsel’s performance was deficient. See Lopez v. State,
343 S.W.3d 137, 143–44 (Tex. Crim. App. 2011) (“The record is silent as to why
trial counsel failed to object to the outcry-witness testimony. . . . appellant did not
produce additional information about trial counsel’s reasons for allowing all three
outcry witnesses to give similar testimony about the same event or for allowing
opinion testimony about the credibility of the complainant, both without
objection.”); Macias v. State, 539 S.W.3d 410, 417 (Tex. App.—Houston [1st
Dist.] 2017, pet. ref’d) (“[T]he record in this case is silent concerning trial
counsel’s reasons for failing to object to Gomez’s testimony regarding D.M.’s
credibility. In the absence of evidence concerning trial counsel’s reasons for
failing to object to this opinion testimony, we conclude that appellant has failed to
meet his burden . . . .”).
We overrule appellant’s second and fourth issues.
D. Was Trial Counsel Ineffective for Introducing the Text Messages?
In his third issue appellant argues that trial counsel was ineffective when he
introduced text messages between J.T. and appellant that suggested “appellant
wanted ‘something’ sexual” from J.T. Appellant argues that trial counsel
“introduced highly prejudicial evidence (the text messages) for no valid purpose.”
During the State’s case-in-chief, the complainant’s father testified that the
case against appellant “started with some text messages” sent between J.T. and
12
appellant. The State never sought to put these text messages into evidence. On
cross-examination, the complainant’s father testified about the text messages but
confirmed that they were in English and that he only understood “a little” English
and testified he “didn’t understand all because my English, it’s not too much; so I
couldn’t understand everything.” At this point, trial counsel introduced the text
messages into evidence. Trial counsel asked the complainant’s father about what
part of the messages aroused his suspicions, why he waited so long to tell his wife
or ask the complainant, and why he did not ask appellant or J.T. When questioning
J.T. on direct examination, trial counsel confronted J.T. with the text messages and
their meaning. J.T. testified that he believed that the messages were of a sexual
nature. Trial counsel then impeached J.T. with his prior statement that he had
admitted to lying about the text messages being sexual. Finally, in closing
argument, trial counsel argued that:
We . . . have brought evidence that . . . the State didn’t bring to you.
We wanted you to see everything, whether it was good -- even when it
wasn’t that great, we put it in front of you. So we think that’s fair.
Stuff the State didn’t want you to hear. Witnesses like [J.T.] they
didn’t want you to hear from. We put them in front of you so you can
be a fair judge. That’s what the Judge expects from you, and that’s
what I expect from you.
Appellant argues that trial counsel “introduced into evidence the extremely
damaging and prejudicial text messages between [J.T.] and appellant” and that
“these text messages had no purpose in appellant’s defense.” Appellant argues that
this evidence could not have been introduced by the State and that trial counsel did
the State a favor by introducing them into evidence. Appellant argues the text
messages are clearly inadmissible without citing or outlining any argument as to
why the text messages were clearly inadmissible.
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Where evidence is clearly inadmissible “there can be no reasonable trial
strategy for introducing it before the jury.” Huerta v. State, 359 S.W.3d 887, 892
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Robertson v. State, 187
S.W.3d 475, 485–86 (Tex. Crim. App. 2006)); see Ex Parte Skelton, 434 S.W.3d
709, 722 (Tex. App.—San Antonio 2014, pet. ref’d) (“Where a defendant’s
credibility is central to her defensive strategy, it is not sound trial strategy to allow
the introduction of inadmissible evidence that directly impairs the defendant’s
credibility without objection.”). However, it may be strategic to pass over the
admission of prejudicial and arguably inadmissible evidence. Ex Parte Menchaca,
854 S.W.2d 128, 132 (Tex. Crim. App. 1993) (quoting Lyons v. McCotter, 770
F.2d 529, 534 (5th Cir. 1985)). In addition to there being no record of trial
counsel’s explanation of his strategy or preparation, appellant does not argue or
show how this evidence was clearly inadmissible in this case. As a result,
appellant has failed to meet his burden under Strickland. See Lopez, 343 S.W.3d at
144.
We overrule appellant’s third issue.
E. Was Trial Counsel Ineffective for Calling J.T. to Testify?
In his fifth issue, appellant argues that his trial counsel was ineffective when
he called J.T. to testify because he testified that appellant sexually abused him.
After direct examination by trial counsel, the State cross-examined J.T.
about the text messages. J.T. testified that his mother kept on asking J.T. what was
meant by the text messages and that he “had to tell her” that appellant “tried” to
“get with” him. Trial counsel asked to approach the bench and conduct a hearing
on “extraneous witness testimony” concerning any allegations that appellant ever
had any sexual encounters with J.T. The State argued that trial counsel opened the
door to this line of questioning by introducing the text messages and the trial court
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agreed. Trial counsel objected to the testimony under Rules of Evidence 401, 402,
403, and 404 and the trial court overruled his objections. J.T. then testified that he
thought appellant was trying to “get with” him:
[State]: So you said earlier that you finally had to tell her the truth
because she kept asking about the text messages. So what was your
truth? What did you tell her?
[J.T.]: That I know for sure that [appellant] was trying to get with me
because also [the complainant] came -- he confronted me, and he told
me that [appellant] did touch him or that he did try to touch him. Also,
[O.T.] told me. So I just connected the dots and I just -- you know, my
mom found the messages by accident. It’s not like I came up to her
and I told her and -- she found it and she just came up to me and I
should have told her before. I just -- I was just little and scared. I
thought he was a good guy, you know.
....
Q So [the complainant] told you about what [appellant] had been
doing to him?
A That one night, yeah.
Q And [O.T.] also told you about what [appellant] had been doing?
A Yes, the same date.
Q And you also confirmed to them that he had –
A About the messages.
Q – [Appellant] had been doing the same things to you?
A Yes.
Q And you were uncomfortable when your mom found these text
messages?
A Yeah.
Earlier on direct examination by trial counsel, J.T. testified that O.T. told him that
appellant tried to touch him, not that he ever actually touched him. J.T. never
testified about any details about any alleged sexual encounter with appellant and
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repeatedly stated that he thought appellant was trying to “get with” him but not that
any sexual contact had happened.
As detailed above, from the record it appears that trial counsel called J.T. as
a witness to show that he had admitted to lying about the meaning of the text
messages, that he had apologized to appellant for what J.T. had done to him, that
his statements were inconsistent, and that he was not actually afraid or wary of
appellant in any way. J.T. also testified that O.T. had disclosed to him that
appellant had not touched him but only tried to touch him, highlighting another
inconsistency in the stories told by the children against appellant.
“[T]he decision whether to present witnesses is largely a matter of trial
strategy.” Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.]
2005, pet. dism’d). “We cannot on appeal hold that a trial strategy which did not
develop as planned, constitutes such ineffective assistance of counsel that would
require a reversal.” Hicks v. State, 630 S.W.2d 766, 768 (Tex. App.—Houston [1st
Dist.] 1982, pet. ref’d) (counsel not ineffective for calling parole officer to testify
about important fact issue in defense of case where “residual effect” was that
parole officer also testified about extraneous offenses). “We are not in a position
to ‘second guess’, through appellate hindsight, the strategy adopted by counsel at
trial.” Id. Without the benefit of knowing trial counsel’s rationale in calling J.T.
as a witness, we cannot second guess trial counsel’s strategy through hindsight.
We overrule appellant’s fifth issue.
II. EXTRANEOUS OFFENSE EVIDENCE
In his sixth issue, appellant asserts that the trial court abused its discretion by
permitting evidence of an extraneous offense under article 38.37 of the Texas Code
of Criminal Procedure by utilizing the wrong standard of admissibility. Appellant
16
argues that the trial court should not have admitted the extraneous offense
testimony because article 38.37 “does not dispense with the need for corroboration
regarding testimony of an extraneous offense.” Appellant’s argument is that
“beyond reasonable doubt” under article 38.37 requires corroborating evidence
despite article 38.07 of the Code of Criminal Procedure.
A. General Legal Principles
“The admissibility of evidence is within the discretion of the trial court and
will not be reversed absent an abuse of discretion.” Osbourn v. State, 92 S.W.3d
531, 537 (Tex. Crim. App. 2002). “If there is evidence supporting the trial court’s
decision to admit evidence, there is no abuse and the appellate court must defer to
that decision.” Id. at 538. “Even when the trial judge gives the wrong reason for
his decision . . . if the decision is correct on any theory of law applicable to the
case it will be sustained.” Id. (citation omitted).
Article 38.37 of the Code of Criminal Procedure allows the introduction of
evidence that the defendant has committed another sexual offense against another
child “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. art. 38.37, §§ 1–2.
Before evidence described by Section 2 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 offense beyond a reasonable doubt;
and (2) conduct a hearing out of the presence of the jury for that
purpose.
Tex. Code Crim. Proc. art. 38.37, § 2-a.
Article 38.37 states that the trial court must determine that the evidence
likely to be admitted will be adequate to support a finding by the jury that the
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defendant committed the extraneous offense beyond a reasonable doubt. See Tex.
Code Crim. Proc. art. 38.37, § 2-a. It is well established that the uncorroborated
testimony of a child victim alone can be sufficient to support a conviction of
indecency with a child by contact. Tex. Code Crim. Proc. art. 38.07; see also
Chasco v. State, 568 S.W.3d 254, 258 (Tex. App.—Amarillo 2019, pet. ref’d).
These types of cases are often “he said, she said” in which the jury must reach a
unanimous verdict based on two completely different versions of an event without
any corroborative evidence. See Hammer v. State, 296 S.W.3d 555, 561–62 (Tex.
Crim. App. 2009).
B. Background
Outside of the presence of the jury, another of appellant’s male cousins,
O.T., testified that one night when he slept over at appellant’s home, appellant
touched his penis on the outside of his pants. O.T. testified that he was fourteen or
younger when this incident occurred. O.T. testified that he did not tell anyone
about the incident because he would “make excuses why it didn’t happen” and that
he was scared and embarrassed.
C. Analysis
Appellant argues that a higher burden should be placed on the admission of
extraneous offense evidence than that is required to prosecute such an act. Article
38.37 uses the term “beyond a reasonable doubt” which is the same standard that
would have to be met in the prosecution of such an offense. Thus, where in the
prosecution of indecency with a child by contact, the uncorroborated testimony of
a child victim would be legally sufficient to support a conviction, the same
uncorroborated testimony would be adequate to support a finding by the jury that
the defendant committed the separate offense beyond a reasonable doubt under
article 37.38, § 2-a. Given that the statute has other procedural safeguards in place,
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we decline to hold that article 38.07 does not apply to extraneous act evidence
sought to be admitted through article 38.37 §2-a. See Perez v. State, 562 S.W.3d
676, 689 (Tex. App.—Fort Worth 2018, pet. ref’d) (“Physical evidence and a
timely report to the authorities are not required to support a conviction for sexual
assault or indecency with a child. Here, their testimony alone was sufficient . . . .
We overrule [the defendant’s] second point in regard to the admissibility of [the]
testimony under article 37.38.”). As a result, the admission of the evidence
regarding the extraneous act without requiring corroborating evidence was not an
abuse of discretion.
We overrule appellant’s sixth issue.
III. LIMITING CROSS-EXAMINATION
In appellant’s seventh issue he argues that the trial court abused its
discretion by limiting appellant’s cross-examination of the complainant, J.T, and
O.T. “regarding their sexual preference for males” because it was “relevant to
show possible bias, interest, or motive for testifying against appellant.” Appellant
argues that sexual orientation was relevant because “[t]he jury did not have any
other option but to presume that [the complainant] could not have knowledge of
such homosexual acts, unless appellant had committed those acts against him.”
A. General Legal Principles
A trial court’s decision to exclude evidence is reviewed under an abuse of
discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). We must uphold the trial court’s decision if it is in the zone of reasonable
disagreement. Id. A trial court does not abuse its discretion if some evidence
supports it decision. Osbourn, 92 S.W.3d at 538. We will uphold a trial court’s
evidentiary ruling if it is correct on any theory of law applicable to the case. Id.
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“Exposing a witness’ motivation to testify for or against the accused or the
State is a proper and important purpose of cross-examination.” Carpenter v. State,
979 S.W.2d 633, 634 (Tex. Crim. App. 1998). “Parties are allowed great latitude
to show ‘any fact which would or might tend to establish ill feeling, bias, motive
and animus on the part of the witness.’” Id. (quoting London v. State, 739 S.W.2d
842, 846 (Tex. Crim. App. 1987)). This right is not unqualified; the trial judge has
discretion to limit the scope and extent of cross-examination as appropriate. In re
O.O.A., 358 S.W.3d 352, 355 (Tex. App.—Houston [14th Dist.] no pet.) (citing
Smith v. State, 352 S.W.3d 55, 64 (Tex. App.—Fort Worth 2011, no pet.)).
The proponent of evidence to show bias must show that the evidence is
relevant “by demonstrating that a nexus, or logical connection, exists between the
witness’s testimony and the witness’s potential motive to testify in favor of the
other party.” Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004) (en
banc). The trial court does not abuse its discretion by excluding evidence of
alleged bias or motive if the defendant’s offer of proof does not establish the
required nexus. See id. at 111–12.
B. Background
During the offer of proof, trial counsel stated that in questioning the
complainant:
We would have asked him what his sexual orientation was. And it is
our expectation that he would have said that he is gay. . . . an
important part of the Defense’s theory as to knowledge regarding
these children and the sexual descriptions that they have given
throughout this trial.
Trial counsel later made another proffer stating:
[I]f it would be allowed by the Court to address questions to the
children that will testify during the case in chief concerning their
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sexuality or sexual preferences from a young age, including [O.T.], if
he were to testify, [J.T.], and the complainant. If the Court would
allow it, we would ask that question of whether they have the sexual
preference towards other males, if they are gay or not.
The trial court did not allow trial counsel to ask the children what their sexual
orientation was.
C. Analysis
Appellant argues that because of the exclusion of this evidence that the jury
was forced to believe that the only way the children, particularly the complainant,
could have possessed knowledge of such acts was because appellant had
committed them on the children. However, the record does not establish any nexus
between the proffered evidence, the sexual orientation of the children, and their
knowledge regarding specific sexual acts. Simply put, there is no indication in the
record that the children’s sexual orientation gave them knowledge of specific
sexual acts. See Carpenter v. State, 979 S.W.2d 633, 635 n.4 (Tex. Crim. App.
1998) (upholding exclusion of evidence related to witness’s pending federal
criminal charges because “[n]aked allegations which do no more than establish the
fact that unrelated federal charges are pending do not, in and of themselves, show a
potential for bias”); see also In re O.O.A., 358 S.W.3d at 355 (upholding exclusion
of evidence of complainant’s alleged sexual orientation where the defendant failed
to show nexus between orientation and motivation to testify against the defendant).
Appellant cites to Vaughn v. State, to support his argument that “sexual
orientation might be relevant to show bias.” See 888 S.W.2d 62 (Tex. App.—
Houston [1st Dist.] 1994), aff’d, 931 S.W.2d 564 (Tex. Crim. App. 1996). In
Vaughn, the witness was asked whether she was romantically involved with the
female defendant. 888 S.W.2d at 74. The prosecution then followed up with the
question of whether it was a “fair characterization to say that when two people are
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in love with each other, you care deeply for someone, that you will do whatever
you can to protect them and help them?” Id. The subject of the prosecution’s
question was the relationship between the witness and the defendant, not the sexual
orientation of the defendant or the witness. Id. at 75. Thus, Vaughn does not
support appellant’s contention that the evidence in this case should have been
admitted.
As the proponent of evidence, appellant failed to demonstrate a nexus or
logical connection existed between the witness’s testimony and the witness’s
potential motive to testify against the accused. See Woods, 152 S.W.3d at 111.
Because appellant failed to show this nexus, the trial court did not abuse its
discretion in excluding the evidence.
We overrule appellant’s seventh issue.
IV. CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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