Pete Jerry Luna v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-21-00198-CR

PETE JERRY LUNA,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 13th District Court
Navarro County, Texas
Trial Court No. D38903-CR

MEMORANDUM OPINION

In three issues, appellant, Pete Jerry Luna, challenges his conviction for continuous

sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02(b). Specifically, Luna

contends that: (1) the trial court erred by disallowing testimony from a defense expert;

(2) the trial court erred by admitting evidence of extraneous sexual conduct by Luna; and

(3) article 38.37, section 2 of the Texas Code of Criminal Procedure is unconstitutional on

its face and as applied to him. We affirm.
 Procedural and Factual History

On February 9, 2018, N.J., a fourteen-year-old child, made an outcry of sexual

abuse against Luna, her stepfather, to her teacher. The teacher reported the outcry to

CPS. After learning of the outcry from CPS, law enforcement arranged for a forensic

interview with the Navarro County Child Advocacy Center. Dr. Lydia Bailey conducted

the interview with N.J. In the interview, N.J. identified Luna as the perpetrator and

described several occasions of sexual contact between Luna and N.J. when N.J. was

twelve years old.

At trial, A.M. testified that she was abused by Luna in a manner similar to the

abuse recounted by N.J. in her testimony. Luna objected to A.M.’s testimony on several

grounds, including under article 38.37 of the Texas Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. art. 38.37. The trial court overruled Luna’s article 38.37 objection.

Additionally, Luna called Dr. Stephen Thorne as a defense expert to opine on the

quality of the forensic interview conducted by Dr. Bailey. The State requested a hearing

under Texas Rule of Evidence 702. See TEX. R. EVID. 702. At this hearing, Dr. Thorne

testified about his qualifications and his opinions regarding Dr. Bailey’s interview of N.J.

At the conclusion of Dr. Thorne’s testimony, the State objected to Dr. Thorne’s

qualifications under Texas Rule of Evidence 702. See id. The trial court sustained the

State’s objection.

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 At the conclusion of the trial, the jury found Luna guilty of the charged offense of

continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02. After the

jury was dismissed, Luna pleaded “true” to an enhancement paragraph contained in the

indictment, which referenced his prior felony conviction for aggravated sexual assault.

The trial court found the enhancement paragraph to be true and sentenced Luna to life

imprisonment in the Institutional Division of the Texas Department of Criminal Justice

with no fine. The trial court certified Luna’s right of appeal, and this appeal followed.

Issue One

In his first issue, Luna argues that the trial court abused its discretion by excluding

the testimony of his expert, Dr. Thorne, based on lack of qualifications and that the

exclusion of Dr. Thorne’s testimony violated Luna’s right to present a complete defense.

Assuming, without deciding, this was error, Luna was not harmed.1

At trial, Luna called Dr. Thorne to testify as an expert as to whether Dr. Bailey

followed the Best Practice guidelines and investigated to get the “most reliable, and

accurate, and detailed information possible” from the forensic interview with N.J. The

1 Although Luna argues on appeal that the exclusion of Dr. Thorne’s testimony violated his right
to present a complete defense, this contention was not made in the trial court. While the right to present a
complete defense is rooted in constitutional protections, see Holmes v. South Carolina, 547 U.S. 319, 324, 126
S. Ct. 1727, 164 L. Ed. 2d 503 (2006), even constitutional rights may not be preserved if the proper request,
objection, or motion is not asserted in the trial court. Garza v. State, 435 S.W.3d 258, 260-61 (Tex. Crim. App.
2014); Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). By failing to object in the trial court,
Luna failed to preserve his contention that the exclusion of Dr. Thorne’s testimony violated his right to
present a complete defense. Furthermore, because Luna failed to preserve his constitutional complaint
regarding his right to present a complete defense, we analyze the harm in this issue under Texas Rule of
Appellate Procedure 44.2(b), rather than Texas Rule of Appellate Procedure 44.2(a). See TEX. R. APP. P.
44.2(a)-(b).

Luna v. State Page 3
State objected to Dr. Thorne’s testimony based on a lack of qualifications, including a lack

of education, lack of publications, lack of professional training, lack of actual criminal

forensic interviews on child sexual abuse victims, and a lack of any showing of child

forensic interviews in his Curriculum Vitae. The trial court sustained the State’s objection

and excluded Dr. Thorne’s testimony.

Assuming, without deciding, that the trial court abused its discretion by excluding

Dr. Thorne’s testimony, we conclude that the error, if any, was harmless. Generally, the

erroneous admission or exclusion of evidence is non-constitutional error governed by

Texas Rule of Appellate Procedure 44.2(b) if the trial court’s ruling merely offends the

rules of evidence. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 96 (Tex. Crim.

App. 2011); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Schutz v. State, 63

S.W.3d 442, 444-46 (Tex. Crim. App. 2001); see also Coker v. State, No. 05-17-00782-CR, 2019

Tex. App. LEXIS 6450, at **11-12 (Tex. App.—Dallas July 29, 2019, no pet.) (mem. op., not

designated for publication). Under Rule 44.2(b), we disregard all non-constitutional

errors that do not affect the appellant's substantial rights. TEX. R. APP. P. 44.2(b); Rich v.

State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). A substantial right is affected when the

error has a substantial and injurious effect or influence in determining the jury's verdict.

Rich, 160 S.W.3d at 577; Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). In

conducting the harm analysis, we consider everything in the record, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the

Luna v. State Page 4
evidence supporting the verdict, the character of the alleged error and how it might be

considered in connection with other evidence in the case, the jury instructions, the State’s

theory and any defensive theories, closing arguments, voir dire, and whether the State

emphasized the error. Rich, 160 S.W.3d at 577; see Easley v. State, 424 S.W.3d 535, 542 (Tex.

Crim. App. 2014).

As stated above, Luna called Dr. Thorne to testify about whether Dr. Bailey

followed the Best Practice guidelines and investigated to get the “most reliable, and

accurate, and detailed information possible” from the forensic interview with N.J.

Although Luna sought to use Dr. Thorne’s testimony to attack the credibility of N.J.’s

allegations, the record shows that N.J. testified about the incidents of sexual abuse and

that Luna cross-examined her extensively, including her understanding of telling the

truth and the nature of her statements to Dr. Bailey. In addition to N.J.’s testimony, the

record contains other relevant evidence addressing the credibility of N.J.’s allegations,

including A.M.’s testimony regarding similar instances of sexual abuse at the hands of

Luna, Luna’s 1991 judgment of conviction for aggravated sexual assault and the

corresponding pen packet, and the testimony of Mrs. French, the outcry witness in this

case. Additionally, the State’s closing argument did not rely heavily on Dr. Bailey’s

testimony and referenced it only briefly.

Because Dr. Thorne’s purported testimony was only a small portion of the large

amount of evidence presented that the jury could have considered in assessing N.J.’s

Luna v. State Page 5
credibility, we conclude that the trial court’s exclusion of Dr. Thorne’s purported

testimony was harmless. See TEX. R. APP. P. 44.2(b); see also Barshaw, 342 S.W.3d at 96

(“Even in cases in which credibility is paramount, Texas courts have found harmless error

when the inadmissible expert testimony was only a small portion of a large amount of

evidence presented that the jury could have considered in assessing the victim’s

credibility.” (citing Schutz, 63 S.W.3d at 446)). Accordingly, we overrule Luna’s first

issue.

Issue Two

In his second issue, Luna contends that the trial court erred by ruling that evidence

of extraneous sexual conduct, specifically the testimony of A.M., a 1991 judgment of

conviction for aggravated sexual assault, and the corresponding pen packet, was

admissible pursuant to article 38.37, section 2(1)(B) of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. Art. 38.37, § 2(1)(B).

ARTICLE 38.37

At the trial of a defendant accused of, among other things, continuous sexual abuse

of a young child, evidence of certain extraneous offenses committed by the defendant,

including aggravated sexual assault, is admissible under section 2 of article 38.37 “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; Fahrni v. State, 473 S.W.3d 486, 492 (Tex. App.—Texarkana 2015,

Luna v. State Page 6
pet. ref’d). Before evidence under article 38.37 is introduced, the trial judge must conduct

a hearing outside the presence of the jury to “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.” TEX. CODE CRIM. PROC.

ANN. art. 38.37, § 2-a.

Under article 38.37, evidence of extraneous offenses against other children is

admissible even if such evidence would be otherwise inadmissible under Texas Rules of

Evidence 404 or 405. Id. However, the admission of evidence under article 38.37 “is

limited by Rule 403’s balancing test, which permits admission of evidence as long as its

probative value is not substantially outweighed by its potential for unfair prejudice.”

Bradshaw v. State, 466 S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref’d); see TEX. R.

EVID. 403.

TEXAS RULE OF EVIDENCE 403

Rule 403 of the Texas Rules of Evidence allows the exclusion of relevant evidence

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,

wasting time, or needlessly presenting cumulative evidence. TEX. R. EVID. 403. Luna

complains on appeal that the probative value of the extraneous-offense evidence was

substantially outweighed by the danger of unfair prejudice.

Luna v. State Page 7
 Probative value refers to the inherent probative force of an item of evidence—that

is, how strongly it serves 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. Valadez v. State, No. PD-0574-19, 2022 Tex. Crim. App. LEXIS 217, at *11 (Tex.

Crim. App. Mar. 30, 2022) (publish). Relevant evidence is presumed to be more probative

than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). However,

evidence may be unfairly prejudicial if it prompts the jury’s hostility or sympathy for one

side without regard to the logical probative force of the evidence. Valadez, 2022 Tex. Crim.

App. LEXIS 217, at *11. Thus, a court must balance the probative force of the proffered

evidence and the proponent’s need for it against any tendency of the evidence to suggest

a decision on an improper basis. Id. at **11-12.

A trial judge has substantial discretion in balancing probative value and unfair

prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006). All testimony

and physical evidence will likely be prejudicial to one party or the other. Jones v. State,

944 S.W.2d 642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity

between the degree of prejudice of the offered evidence and its probative value (i.e., the

evidence is unfairly prejudicial) that Rule 403 is applicable. Hammer v. State, 296 S.W.3d

555, 568 (Tex. Crim. App. 2009).

When conducting a Rule 403 balancing test, courts should consider: (1) the

evidence’s probative force; (2) the proponent’s need for the evidence; (3) the evidence’s

Luna v. State Page 8
potential to suggest a decision on an improper basis; (4) the evidence’s tendency to

distract the jury from the main issues; (5) any tendency for the jury to give the evidence

undue weight because it has not been fully equipped to evaluate the evidence’s probative

force; and (6) the likelihood that presenting the evidence will consume an inordinate

amount of time. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

ANALYSIS

As noted earlier, the trial court conducted an Article 38.37 hearing at Luna’s

request. At this hearing, A.M. testified that Luna was her mother’s boyfriend when A.M.

was four or five years old. At the time of trial, A.M. was thirty-nine years old. In any

event, when A.M. was four or five years old, Luna moved in with her family and began

touching A.M. She recounted that he touched her body, put his hands down her pants,

rubbed on her butt, and repeatedly tried to kiss her. Luna would come into her room at

night and fondle her. The family then moved to a bigger house, and that is when Luna’s

actions escalated. At the new house, he would unzip his pants and ask A.M. to touch his

penis. Later, Luna would take A.M. on car rides and park on a dirt road. A.M. recounted

that Luna would then unzip his pants, force her to have oral sex, grope her, kiss her, and

“basically hump me with his body.” Luna would then give A.M. a Dr. Pepper to get her

to stop screaming. On at least one occasion, Luna tried to penetrate A.M. N.J.’s

description of the continuous sexual abuse perpetrated by Luna was substantially similar

to A.M.’s.

Luna v. State Page 9
 The State also presented testimony from Jerry Putman, an investigator with the

Navarro County District Attorney’s Office. Putnam explained his training in identifying

fingerprints and proceeded to authenticate the judgment and pen packet referring to

Luna’s 1991 conviction for aggravated sexual assault and the offense failing to comply

with the requirements of a sex offender as related to his 1991 aggravated-sexual-assault

conviction.

In arguing against the probative force of this evidence, Luna argues that the

remoteness of the extraneous sexual conduct “lessens the probative value to the extent

that prejudice would ultimately outweigh the probative value remaining.” Remoteness

can lessen the probative value of extraneous offense evidence because the passage of time

allows people and things to change. Gaytan v. State, 331 S.W.3d 218, 226-27 (Tex. App.—

Austin 2011, pet. ref’d); Newton, 301 S.W.3d at 320. However, remoteness alone is not

sufficient to render an extraneous offense excludable under Rule 403. Gaytan, 331 S.W.3d

at 226-27. Evidence of a separate sexual offense against a child admitted under article

38.37, section 2(b) is probative of a defendant’s character or propensity to commit sexual

assaults on children. See Bradshaw, 466 S.W.3d at 883. We do not believe that the

“remoteness of the extraneous offenses rendered the probative value of this evidence so

weak as to render this evidence inadmissible under Rule 403.” Harty v. State, 552 S.W.3d

928, 935 (Tex. App.—Texarkana 2018, no pet.); see Gaytan, 331 S.W.3d at 226 (where the

extraneous sexual acts complained of were twenty-four and twenty-eight years before

Luna v. State Page 10
the time of trial); see also Deggs v. State, No. 10-20-00068-CR, ___ S.W.3d ___, 2022 Tex.

App. LEXIS 3390, at *6 (Tex. App.—Waco May 18, 2022, pet. ref’d) (publish) (where the

extraneous sexual act complained of was eighteen years old before the first offense upon

which the charge occurred); Shimp v. State, Nos. 11-16-00234-CR & 11-16-00235-CR, 2017

Tex. App. LEXIS 11639, at *14 (Tex. App.—Eastland Dec. 14, 2017, no pet.) (mem. op., not

designated for publication) (where the extraneous sexual offense was committed more

than twenty years prior to trial). Instead, we find that the evidence relating to the

extraneous offenses offered by the State were probative of Luna’s character or propensity

to pursue single mothers with young female children. As a result, we conclude that this

factor weighed strongly in favor of admission.

The second factor, the proponent’s need for evidence, weighs strongly in favor of

admission; without A.M.’s testimony, the State’s case would come down to Luna’s word

against N.J.’s. See Hammer, 269 S.W.3d at 568 (“Rule 403 . . . should be used sparingly,

especially in ‘he said, she said’ sexual-molestation cases that must be resolved solely on

the basis of the testimony of the complainant and the defendant.”).

Luna also argues that evidence of extraneous sexual conduct may lead the jury to

convict based on those prior acts, rather than the acts alleged in the instant case. The

extraneous offense could suggest a verdict on an improper basis, due to the “inherently

inflammatory and prejudicial nature of crimes of a sexual nature committed against

children.” Newton, 301 S.W.3d at 320; see, e.g., Deggs, 2022 Tex. App. LEXIS 3390, at *15

Luna v. State Page 11
(recognizing that “the inherently inflammatory and prejudicial nature of evidence of

extraneous sexual offenses against children does tend to suggest a verdict on an improper

basis”). However, the trial court instructed the jury that it could only consider A.M.’s

testimony for proper purposes:

You are not to consider this evidence at all unless you find beyond a
reasonable doubt that the defendant did in fact commit the wrongful act.
Those of you who believe the defendant committed one or more of the
wrongful acts described in this paragraph may consider the evidence. If you
consider it, you may consider it 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.

The court included a similar instruction in the jury charge. We presume that the jury

obeyed the court’s instructions. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App.

2003) (appellate courts presume the jury follows instructions). Because the trial court did

what it could do to mitigate the improper influence of this evidence, the third factor at

most somewhat favors exclusion. See Banks v. State, 494 S.W.3d 883, 894 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d); Gaytan, 331 S.W.3d at 227-28; see also Webb v. State,

575 S.W.3d 905, 912 (Tex. App.—Waco 2019, pet. ref’d).

With regard to the fourth factor, Luna argues that the remaining factors weigh in

favor of excluding the evidence because they are so prejudicial that a jury will not be able

to separate the prior sexual offense from the current issue. Luna argues that the State’s

closing focused too heavily on Luna’s criminal propensity. However, the evidence of

extraneous sexual conduct was straightforward and directly relevant to the only issue in

Luna v. State Page 12
the case, namely whether Luna sexually abused N.J. As such, this factor weights in favor

of admission.

The fifth factor, the tendency of the evidence to be given undue weight by the jury,

addresses concerns that a jury is not equipped to judge the probative force of the

evidence. Gaytan, 331 S.W.3d at 228. “’[S]cientific’ evidence might mislead a jury that is

not properly equipped to judge the probative force of the evidence.” Id. (quoting

Gigliobianco, 210 S.W.3d at 641). However, matters easily comprehensible to laypeople,

like evidence of extraneous sexual conduct, are not prone to this tendency. See id. Thus,

the fifth factor weighs in favor of admission.

The sixth factor, the likelihood that the evidence will be too time-consuming or

repetitive, weighs in favor of admission. A.M.’s testimony took up less than twenty pages

of a trial transcript spanning hundreds of pages. See Lane v. State, 933 S.W.2d 504, 520

(Tex. Crim. App. 1996) (factor weighed in favor of admission where extraneous-offense

testimony amounted to “less than one-fifth” of trial testimony); see also Gaytan, 331 S.W.3d

at 228. Further, the evidence of extraneous sexual conduct is not repetitive because it was

crucial to the State’s case, and it was unlike other evidence presented. See Gaytan, 331

S.W.3d at 228.

Based on the foregoing, we cannot say there is a “clear disparity” between the

danger of unfair prejudice posed by the complained-of evidence and its probative value.

See Hammer, 296 S.W.3d at 555. Thus, we cannot conclude that the trial court abused its

Luna v. State Page 13
discretion by admitting the complained-of evidence. See TEX. CODE CRIM. PROC. ANN. art.

38.37, § 2(b); TEX. R. EVID. 403; Gigliobianco, 210 S.W.3d at 641-42; see also Tillman, 354

S.W.3d at 435. We overrule Luna’s second issue.

Issue Three

In his third issue, Luna contends that article 38.37, section 2(b) of the Texas Code

of Criminal Procedure is unconstitutional on its face and as applied to him. Specifically,

Luna asserts that article 38.37, section 2(b) is unconstitutional because it violates a

defendant’s right to due process under the United States Constitution and to due course

of law under the Texas Constitution. TEX. CODE CRIM. PROC. ANN. Art. 38.37, § 2(b); U.S.

CONST. amend. XIV; TEX. CONST. art. I, § 19.

In Balboa v. State, this Court addressed a similar challenge to article 38.37 and

concluded that the statute is constitutional. See No. 10-15-00024-CR, 2016 Tex. App.

LEXIS 908, at **10-12 (Tex. App.—Waco Jan. 28, 2016, pet. ref’d) (mem. op., not

designated for publication). This Court also noted that section 2(b) of article 38.37 was

intended to: (1) bring the Texas Rules of Evidence in line with Federal rule of Evidence

413(a), which several federal courts have determined does not violate the Due Process

Clause of the United States Constitution because it does not implicate a fundamental

right; and (2) “‘give prosecutors additional resources to prosecute sex crimes committed

against children.’” Id. at *10 (quoting Harris v. State, 475 S.W.3d 395, 401 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d)). Additionally,

Luna v. State Page 14
 a defendant’s right to a fair trial is protected by numerous procedural
safeguards contained in the statute, including: (1) the requirement that the
trial court conduct a hearing before the evidence is introduced to determine
whether the evidence will be adequate to support a finding by the jury that
the defendant committed the separate offense beyond a reasonable doubt;
(2) defense counsel’s right to challenge any witness’s testimony by cross-
examination at the hearing; and (3) the requirement that the State give the
defendant notice of its intent to introduce the evidence in its case-in-chief
not later than the thirtieth day before trial.

Id. at **10-11 (citing Harris, 475 S.W.3d at 402). “And finally, the Harris Court explained

that section 2 of article 38.37 does not impermissibly lessen the State’s burden of proof.”

Id. at *11 (citing Harris, 475 S.W.3d at 402-03).

Moreover, as Luna acknowledges, several other Texas courts have also arrived at

this same conclusion—that article 38.37 is constitutional. See Buxton v. State, 526 S.W.3d

666, 688-89 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); Bezerra v. State, 485 S.W.3d

133, 139-40 (Tex. App.—Amarillo 2016, pet. ref’d); Robisheaux v. State, 483 S.W.3d 205, 209-

13 (Tex. App.—Austin 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 846-47 (Tex.

App.—Tyler 2015, no pet.) (concluding that section 2(b) of article 38.37 is constitutional

and noting that the “ban against propensity evidence in our jurisprudence is over three

hundred years old dating back to the seventeenth century. . . . However, that the practice

is ancient does not mean that it is embodied in the Constitution.” (internal quotation

marks & citations omitted)).

Here, the record reflects that the safeguards outlined in Harris, Balboa, and the

other cases cited above were followed. Therefore, based on the foregoing, we cannot say

Luna v. State Page 15
that article 38.37, section 2(b) is unconstitutional on its face or as applied to Luna. See

Buxton, 526 S.W.3d at 688-89; Bezerra, 485 S.W.3d at 139-40; Robisheaux, 483 S.W.3d at 209-

13; Belcher, 474 S.W.3d at 846-47; see also Balboa, 2016 Tex. App. LEXIS 908, at **10-12. We

overrule Luna’s third issue.

Conclusion

Having overruled all of Luna’s issues on appeal, we affirm the judgment of the

trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Affirmed
Opinion delivered and filed August 10, 2022
Do not publish
[CRPM]

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