AFFIRM AS MODIFIED; Opinion Filed January 30, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00370-CR
GERALD ALZONO JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F16-76031-N
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Kennedy
Opinion by Justice Kennedy
Gerald Jackson appeals his conviction for sexual assault of a child. In four
issues, appellant challenges the trial judge’s decision to admit evidence of
appellant’s prior conviction over his objection and further urges the judge’s
reasoning for that decision should be required to be articulated in order to permit
meaningful appellate review of same. The State argues in a cross-issue that the
judgment should be modified to reflect the correct degree of the offense. We affirm
as modified. Because all issues are settled in law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant dated the mother of M.B. from the time M.B. was approximately
nine or ten years old until M.B. was approximately fifteen or sixteen years old.
Sometime after he and M.B.’s mother began dating, appellant moved in with M.B.,
his mother, and his younger brother. M.B.’s mother worked at night and slept during
the day, and appellant would be around the home during the day. When M.B. was
ten or eleven years old, appellant began brushing up against him and touching his
hip. Appellant soon thereafter escalated the behavior by telling M.B. to take off his
clothes and touching M.B. on his chest and butt. Appellant then further escalated
the behavior to pleasuring himself in front of M.B., paying M.B. to take off his
clothes and rub baby oil on himself, requiring M.B. to orally pleasure him, rubbing
baby oil on himself and M.B., and penetrating M.B. when he was twelve or thirteen
years old and again when M.B. was fourteen or fifteen years old. Appellant told
M.B. not to tell anyone about the abuse.
When he was thirteen or fourteen years old, M.B. began staying the night at
his mother’s sister’s home, at first on the weekends and later “every chance I get.”
When he was thirteen or fourteen years old, M.B. told his aunt about what appellant
had done. M.B.’s aunt was the first adult he spoke to about appellant’s abuse
because he knew she had experienced trauma in her past and could therefore relate
to him and understand him. M.B.’s aunt called M.B.’s mother who then reported
appellant’s abuse of M.B. to the police and took M.B. for a forensic interview.
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In 2018, a grand jury indicted appellant for the offense of sexual assault of a
child, enhanced with a prior conviction for aggravated sexual assault of a child. The
State filed a notice of intent to enhance the punishment range, seeking an automatic
life sentence pursuant to section 12.42(c)(2) of the penal code. See TEX. PENAL
CODE § 12.42(c)(2). Appellant pleaded not guilty to the charged offense and not true
to the enhancement paragraph, and the case proceeded to trial before a jury which
found appellant guilty of the charged offense and the enhancement paragraph to be
true. The trial judge pronounced appellant’s sentence of confinement for life.
DISCUSSION
I. Trial Judge Did Not Err by Admitting Prior Conviction Evidence
In his first issue, appellant argues the trial court erred by admitting evidence
of his prior conviction for aggravated sexual assault of child over his objection that
the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice.
We review a trial judge’s decision to admit or exclude evidence under
an abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim.
App. 2016). A trial judge abuses her discretion when her decision falls outside the
zone of reasonable disagreement. Id. Before a reviewing court may reverse the trial
court’s decision, “it must find the trial court’s ruling was so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Id.
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Finding a piece of evidence to be relevant is the first step in a trial court
judge’s determination of whether the evidence should be admitted before the jury.
See Henley, 493 S.W.3d at 83. Relevant evidence is evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence. See id.
(citing TEX. R. EVID. 401). But, even if evidence is relevant, it may be properly
excluded under Rule 403, which permits a trial judge to exclude 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,
or needlessly presenting cumulative evidence.” See TEX. R. EVID. 403. To be clear,
Rule 403 does not exclude all prejudicial evidence and instead focuses only on the
danger of “unfair” prejudice. See State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim.
App. 2005).
In determining whether it was error to admit the evidence under Rule 403, we
balance the claimed probative force of the proffered evidence along with the
proponent’s asserted need for that evidence against (1) any tendency of the evidence
to suggest that the case would be decided on an improper basis; (2) any tendency of
the evidence to confuse or distract the jury from the main issues; (3) 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 (4) the likelihood that presentation
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of the evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. See Henley, 493 S.W.3d at 93.
At trial, the State offered evidence that a judgment of conviction had been
entered against appellant on July 24, 1994, for the offense of aggravated sexual
assault of a child. Defense counsel objected:
[DEFENSE COUNSEL]: Judge, I object under [Rule] 403 . . . .1 At this
point, this is not a properly certified document since three pages have
been removed from the document as it was previously certified.
THE COURT: Let the record reflect that the Court removed those
documents and your objections are overruled. It is admitted.
Appellant urges that the evidence of appellant’s prior conviction was not probative
because the offense was against a victim of a different age and gender than M.B.,
was committed years before the current offense, and involved the penetration of a
different part of the victim’s body. He further urges that the evidence was less likely
to establish appellant’s guilt of committing the offense than it was to be seen by the
jurors as proof appellant was a criminal or bad person in general, an improper basis
for consideration. See Old Chief v. United States, 519 U.S. 172, 180–81 (1997)
(holding improper grounds “certainly include . . . generalizing a defendant’s earlier
bad act into bad character and taking that as raising the odds that he did the later bad
act now charged”); see also TEX. R. EVID. 404(b).
1
Defense counsel also objected Rule 608 of the rules of evidence and that the evidence was hearsay,
but appellant does not reurge those bases on appeal.
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We address the factors involved in the Rule 403 balancing test in turn. First,
we consider the claimed probative force of the proffered evidence along with the
proponent’s asserted need for that evidence. The State had no DNA evidence and
offered testimony from a pediatrician specializing in child abuse cases that, based
on her examination of his medical records, M.B. was examined “too late” after the
reported abuse to collect DNA evidence. Consequently, the State’s case against
appellant largely relied on testimony from M.B. Additionally, appellant testified
and denied the allegations thereby challenging M.B.’s credibility. The court of
criminal appeals has warned that excluding evidence under rule 403 in “he said, she
said cases” should be done “sparingly.” See Woodland v. State, No. 05-19-00174-
CR, 2020 WL 1862126, at *3 (Tex. App.—Dallas Apr. 14, 2020, no pet.) (mem. op.,
not designated for publication) (citing Hammer v. State, 296 S.W.3d 555, 561–62
(Tex. Crim. App. 2009) (discussing rule 403 generally before specifically reviewing
admission of prior false accusation evidence)). Appellant’s prior conviction made it
less probable that M.B. was lying because—despite the disparities appellant urges—
the offenses had factual similarities. Both involved the sexual assault of a child with
whom appellant was living and thus the prior conviction was probative to show
appellant’s propensity to sexually assault children living with him. Therefore, we
conclude the trial court could have found the probative force and the State’s need
for the evidence was great and weighed in favor of its admission.
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Weighing the foregoing against the remaining factors of the requisite
balancing test, we conclude the trial court did not err. As the State concedes,
sexually related misconduct and misconduct involving children are inherently
inflammatory, which would mean this evidence had at least some tendency to
suggest that the case would be decided on an improper basis. See Montgomery v.
State, 810 S.W.2d 372, 397 (Tex. Crim. App. 1990) (en banc). Further, the prior
conviction involved a child under the age of five years, and M.B. testified appellant
began abusing him when he was approximately ten or eleven years old, which
arguably makes the offense in the prior conviction one of a more serious nature than
the charged offense. However, the other remaining factors weigh against exclusion
of this evidence. The trial court instructed the jury regarding the proper use of the
prior conviction as an extraneous offense, and we presume the jury followed those
instructions. See Beltran De La Torre v. State, 583 S.W.3d 613, 620 (Tex. Crim.
App. 2019). Moreover, nothing in the record suggests the evidence of appellant’s
prior conviction was likely to confuse or distract the jury from the main issues in the
case, that it was likely to be given undue weight, or that the jury was ill-equipped to
evaluate its probative force. Finally, the evidence itself was a certified judgment and
testimony regarding the expert witness’s experience and the process by which he
established appellant’s fingerprints matched those of the prior conviction, the
introduction of which did not take an inordinate amount of time.
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We conclude the trial judge did not err by admitting the evidence of
appellant’s prior conviction. Accordingly, we overrule appellant’s first issue.
II. Remaining Issues
Appellant’s remaining three issues all relate to his first. In his second issue,
appellant urges the trial court erred by failing to conduct a balancing test weighing
the potential probative value of the proffered evidence against the potential unfair
prejudice that may result from admission of the evidence before the jury. In his third
issue, appellant challenges binding precedent, which presumes a trial court
conducted the requisite balancing test without requiring the record evidence as
much, as essentially eliminating effective appellate review. In his fourth and final
issue, he argues that without any explicit application of the balancing test in the
record, there can be no meaningful appellate review, and thus the case must be
abated and remanded to the trial court for findings regarding the requisite balancing
test.
The court of criminal appeals has explicitly held that “a judge is presumed to
engage in the required balancing test once Rule 403 is invoked” and further explicitly
“refuse[d] to hold that silence of the record implies otherwise.” See Williams v.
State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997) (en banc). As we are bound
by the holdings of the higher court, we overrule appellant’s second and third issues.
In his fourth issue, appellant argues that the trial judge’s alleged error in not
conducting a Rule 403 balancing test on the record is a remediable error requiring
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abatement pursuant to appellate rule 44.4.2 See TEX. R. App. P. 44.4. However,
because we have overruled his second and third issue, we need not address
appellant’s fourth issue. See TEX. R. App. P. 44.1.
MODIFICATION OF THE JUDGMENT
In a single cross-issue, the State requests the judgment be modified to reflect
that appellant was convicted of a second-degree felony instead of a first-degree
felony. The record reflects appellant was charged with and convicted of sexual
assault of a child, a second-degree felony and that the judgment identifies the offense
as a first-degree felony. See TEX. PENAL CODE § 22.011.
We may modify a trial court’s written judgment if the necessary information
to do so is contained in the record. TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–
30 (Tex. App.—Dallas 1991, pet. ref’d). We have concluded that there is a sufficient
basis in the record to support the modifications of the judgment requested by the
State. Accordingly, we modify the judgment where it reads “Degree of Offense” to
say “2nd degree felony” instead of “1st degree felony.”
2
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an
appeal if:
(1) the trial court's erroneous action or failure or refusal to act prevents the proper
presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a)
exist, the court of appeals must direct the trial court to correct the error. The court of appeals
will then proceed as if the erroneous action or failure to act had not occurred.
TEX. R. App. P. 44.4.
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CONCLUSION
As modified, we affirm the trial court’s judgment.
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
220370F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GERALD ALZONO JACKSON, On Appeal from the 195th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1676031-N.
No. 05-22-00370-CR V. Opinion delivered by Justice
Kennedy. Justices Partida-Kipness
THE STATE OF TEXAS, Appellee and Nowell participating.
Based on the Court’s opinion of this date, we the MODIFY judgment of the
trial court as follows:
where it reads “Degree of Offense” to say “2nd degree felony” instead
of “1st degree felony.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 30th day of January, 2023.
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