Opinion
No. 05-14-01013-CR
04-28-2016
MELECIO SANTANA DELACRUZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F12-62922-T
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Myers
Appellant was convicted by a jury of aggravated sexual assault on a child younger than fourteen years of age and sentenced by the trial court to seventy-five years in prison. In one issue, he argues that the trial court abused its discretion by admitting extraneous offense testimony. We affirm.
DISCUSSION
In his only issue, appellant contends the trial court abused its discretion by admitting extraneous offense testimony under article 38.37 of the Texas Code of Criminal Procedure.
Appellant was indicted for the offense of aggravated sexual assault of a child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B). The indictment alleged that, on or about June 1, 2011, he did "unlawfully then and there intentionally and knowingly cause the penetration of the anus of [B.M.], a child, who was not then the spouse of defendant, by an object, to-wit: the finger, of said defendant, and, at the time of the offense, the child was younger than 14 years of age."
Twelve years of age at the time of trial, B.M. testified that when she was six her mother had started working at a Metro PCS booth at the Plaza del Sol Bazaar, which is located at 8282 Spring Valley Road, in Dallas, Texas. The bazaar is like a shopping center, with individual spaces that are rented to various merchants. Appellant and his wife were tenants at the bazaar and operated two stores that were directly across the hallway from each other—a western wear store, Medrano's, and a candy store.
Because appellant does not challenge the sufficiency of the evidence, we limit our review of the facts to those necessary to address appellant's issue and put it in context.
B.M. was nine years old when she first met appellant. B.M. testified that, at first, he "seemed like a nice guy." He would buy B.M. and the other children candy and play games with them. Appellant would hug B.M. when he saw her but this did not bother the complainant; she thought it was okay. The first incident occurred when B.M. was nine years old. She said that, when she was in a back room of appellant's western wear store, he touched her breasts, over her clothes, and that this made her feel uncomfortable. No one else was in the store when this happened, appellant did not say anything to B.M., and she said nothing to him. B.M. testified that this was the only time appellant touched her breasts.
On another occasion, when B.M. was nine or ten years old, appellant touched her front "private part," which B.M. described as the part of the body where she urinated, under her clothes. He did not touch the inside of her front private part. This incident took place in the front part of appellant's western wear store. No one else was in the store at the time, and the bazaar was not too crowded. The next incident occurred when appellant put his hand behind B.M., touching her "ass" under her pants and over her underwear. On yet another occasion, appellant touched the inside of her "behind," underneath her underwear, and put his finger in her behind. B.M. remembered that this hurt. These incidents also occurred in the front part of Medrano's. Appellant told B.M. not to tell anyone about the abuse. He said that if B.M. told anyone something would happen to her mother, so B.M. did not tell her mother what had happened. B.M. also described another incident where appellant put his finger in her "behind," and this incident also took place in the front part of appellant's store.
B.M.'s mother eventually learned though a conversation with the mother of Raysa, B.M.'s friend, that there was something wrong with B.M. After talking to B.M., her mother took her to the Dallas Children's Advocacy Center (DCAC), where a forensic interview was conducted on September 21, 2002. During the first interview, B.M., ten years old, told the interviewer about an attempted touching of her breast by an individual she declined to name, but she did not tell the interviewer about any other sexual misconduct. Several days later, B.M.'s mother found in her purse a handwritten note from B.M. The note, which was admitted at trial, was in Spanish. As translated into English, it reads as follows:
What happened to me. What happened to me was something terrible. I was violated. I was threatened about my mom saying she was going to die. I tried to escape but I couldn't. He put his finger in my private parts. It was not only one. When I would go to buy sweets, candy, he would grab me and every time he would threaten me.After B.M.'s mother received this note, she took her daughter back to the DCAC for another interview, which occurred on September 27, 2012. During the second interview, B.M. described the events that led to the present indictment. B.M.'s mother testified that the note was the first time she learned that appellant had been sexually abusing her daughter.
This is the English translation of the note provided during the testimony of B.M.'s mother, the outcry witness, who testified through an interpreter. She read the note to the jury in Spanish and the interpreter translated it into English. B.M. also provided an English translation, but her translation of the note varied slightly from the interpreter's: "What happened to me was terrible. I was sexual abused. They would threaten me that you would die. He put his finger inside my bottom. It was only one time when I would go buy candy and he would threaten me."
On the fourth day of the trial, the trial court held a hearing outside of the jury's presence to consider the State's request to introduce extraneous offense testimony. The extraneous offense witness, L.P., testified at that hearing. Two years prior to trial, L.P.'s parents had worked at the Plaza del Sol Bazaar. L.P. knew appellant and identified him at the hearing. L.P. was eleven years old when he testified. He testified that appellant worked in the boot store and his wife worked at the nearby candy store. When he was four years old, L.P. worked for appellant and his wife by helping them sell candy. Appellant would sometimes buy L.P. things like food from McDonald's, and he played soccer with L.P. L.P. attended church with appellant for a time, and appellant helped L.P. with his homework. Appellant also sometimes played games like hide and seek with the kids in his store.
L.P. testified that when he was five or six years old, appellant would hold him by the wrists and push his hands into the "heating hat" or hat steamer, which was on a table next to the counter in the front of the store. Appellant would then stand behind L.P. while they were both fully clothed in such a way that his stomach and his "middle part" was touching L.P.'s bottom. L.P. testified that he could feel appellant's body "[k]ind of moving," that he could feel appellant's "middle part" "[j]ust a little," and that it felt "[r]ough." This behavior, which would go on for few minutes, happened more than three or four times, although L.P. did not know exactly how many times it happened.
L.P. testified that he was five years old when appellant started abusing him, but he did not remember the last time it happened. L.P. also testified he felt "[w]eird" when appellant abused him and did not like it, but that when he was younger he did not know that what appellant was doing was wrong. L.P. did not tell his parents what appellant was doing until L.P.'s father asked him about it. L.P. recalled that his father told him L.P.'s sister had mentioned "something about it" to him, and he asked L.P. if something had happened to him. L.P. denied that he told his sister about the abuse. L.P. also stated that appellant did not threaten him or his family. L.P. testified that he knew appellant's sons and said they were not in the store all of the time and were only there occasionally.
At the close of the hearing, the trial court overruled appellant's written objections concerning lack of notice under article 38.37 and the oral objections appellant made at the hearing regarding lack of intent and relevance. The court found "that the acts, plural, described are sufficient for a jury to find beyond a reasonable doubt that that extraneous offense occurred. And I find that the extraneous offense is indecency with a child under 21.11 [of the Texas Penal Code]."
Before the jury, L.P. testified that until a few months before trial, L.P.'s parents had worked at the Plaza del Sol Bazaar running a Mexican restaurant. L.P. identified appellant in court, testifying that he liked appellant as a friend and played soccer with him at the bazaar. Other kids also occasionally played with appellant and L.P., but no other adults played with them. L.P. sometimes helped appellant sell candy, and appellant, who spoke English, assisted L.P. with his homework. Appellant also took L.P. to church for a couple of months.
Appellant's western wear store had a heat steamer that he used to heat and shape the hats. The heat steamer was on a desk that was later replaced by a second counter. L.P. testified that, when he was five or six years old, appellant would hold him by the wrists while they were both fully clothed and put L.P.'s hands on the heat steamer. As he held L.P.'s wrists, appellant would stand behind L.P. in such a way that appellant's "middle part" or "weenie" was touching L.P.'s behind. Appellant would then move, wiggle, and shake. L.P. tried to get away by pushing back against appellant, and L.P. recalled that appellant would tell him that he is strong. L.P. testified that his hands would get "hot" and "kind of red" when he touched the steamer, but they were not burned.
L.P. clarified that by "middle part" he meant appellant's "weenie." --------
L.P. testified that this would occur when there was no one in the store. L.P. did not know how many times it happened, but it occurred more than three or four times over a couple of years during random times of the day. L.P. testified that he would scream if he saw people walking by, but they kept on walking. Appellant never threatened L.P. or told him not to say anything.
During L.P.'s testimony before the jury, as the prosecutor was inquiring into details concerning appellant's sexual acts against L.P., the prosecutor asked, "Were there times—every time this happened did it happen in his store?" L.P. replied, "Sometimes like out of the store." L.P. testified that he would run around and appellant would chase him in a back hallway, which L.P. agreed was like horseplay. The prosecutor asked, "And where did it happen where he did something that he shouldn't have in the hallway? Do you remember any location?" Defense counsel then asked to approach the bench and the jury was excused.
After the jury was excused, the defense objected "to any of this testimony coming in," arguing the State had given no notice of any extraneous offense occurring in the hallway and that it was trying to proffer extraneous conduct that was not discussed at the previous hearing. The prosecutor asked for an opportunity to finish questioning L.P. to further develop his testimony, after which L.P. testified out of the jury's presence that appellant chased him around with a needle and poked him in the back, but no sexual acts occurred outside the store. Appellant again argued that the prosecutor was asking about something the court had ruled inadmissible, and that the defense had not received proper notice. The prosecutor told the court that the situation was "easily curable" if he could be "given some latitude to lead the witness to say, 'Okay, so the only times that he did these things were in the store; right?'" After listening to further argument, the court stated, in part:
I do believe there's been a false impression left with the jury, that false impression being, "Where else did it happen?"
And I think the jury—excuse me, let me back up. The question, "Where else did
it happen," I think certainly leaves a false impression with the jury that the sex act described by [L.P.] occurred someplace other than the store.There was further argument from counsel, after which the trial court denied appellant's request for a mistrial and his request that L.P. not be allowed to testify further. When the jury returned to the courtroom, the court instructed the jurors as follows: "The objection made by [defense counsel] just prior to me removing the jury is sustained. I'm instructing the jury to disregard that question and any answer you may have heard to that question prior to you being removed from the courtroom." The prosecutor then resumed his direct examination, asking, "So [L.P.], where we picked up, the only time that he put his middle part against your back side, all of that occurred in his store, Medrano's; right?" L.P. replied, "Yes."
There has been no other extraneous offense introduced into this case that has not been discussed out of the jury's presence, other than the impression left by the phrasing of the question.
I'm going to sustain the objection. I'm going to instruct the jury to disregard the last question from the State and any answer they may have heard thereto.
I'm then going to allow [the prosecutor] to clarify with the witness that the sex acts occurred only in the store.
L.P. further testified that, at the time, he did not know what appellant was doing was wrong, but as he grew older he started to realize it was not a game. L.P. testified that he knew Raysa and Samantha, who were close friends of B.M., the complainant in the instant aggravated sexual assault of a child case, and that the four of them sometimes played together at the bazaar. L.P. admitted that appellant once reproached him for playing too roughly with one of the girls, and L.P. testified that he "felt bad because I didn't know what was I doing." L.P. also admitted that, in an interview at the Dallas Children's Advocacy Center, he said that no one had ever touched him "in those places," but he also said in the interview that appellant put his stomach and "his stuff" on his back. L.P. clarified to the jury that "his stuff was appellant's "middle part," and that the "middle part" to which he was referring was the same area they had been discussing in court. L.P. said that therapy had helped him "kind of remember stuff from back then."
We review the trial court's decision to admit or exclude evidence for abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). The trial court does not abuse its discretion if some evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). We uphold the trial court's evidentiary ruling if it was correct on any theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
As a general rule, the State cannot provide evidence of prior crimes, wrongs, or other acts to show that the defendant acted in accordance with that character or had a propensity to commit the crime. TEX. R. EVID. 404(b). However, article 38.37 of the code of criminal procedure, entitled "Evidence of extraneous offenses or acts," contains a rule of evidence that governs certain types of sexual abuse cases, including the present case. See TEX. CODE CRIM. PROC. ANN. art. 38.37 §§ 1(a), 2(a); Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref'd). Article 38.37 specifically includes offenses in Chapter 21 (sexual offenses) and Chapter 22 (assaultive offenses) of the penal code committed against a child under seventeen years of age. TEX. CODE CRIM. PROC. ANN. art. 38.37 §§ 1(a)(1)(A), 1(a)(1)(B). Under Article 38.37, section 2(b):
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.Id. art. 38.37 § 2(b) (emphasis added). Before such evidence can be admitted, though, certain procedural safeguards must be followed. Harris v. State, 475 S.W.3d 395, 402 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd). First, the State must give the defendant 30 days' notice of its intent to introduce the evidence. TEX. CODE CRIM. PROC. ANN. art. 38.37 § 3. Second, the trial court must "conduct a hearing out of the jury's presence to determine that the evidence likely to be admitted will support a jury finding that the defendant committed the separate offense beyond a reasonable doubt." Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 2015, no pet.). Section 2-a provides:
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. ANN. art. 38.37, § 2-a. In the instant case, B.M. was 9 or 10 years old when appellant committed the alleged instant aggravated sexual assault against her, and L.P. was 5 or 6 and no more than 10 years of age when appellant committed the alleged extraneous indecency with a child offense. Thus, both offenses fall within the scope of article 38.37.
Appellant first argues that no adequate notice was given under article 38.37. The State is required to give a defendant 30 days' notice before trial "of the state's intent to introduce in the case in chief [extraneous offense] evidence described by" article 38.37. See id. art. 38.37 § 3. Appellant's trial for aggravated sexual assault of a child began on May 8, 2014, when the jury was sworn. In its "Third Amended Notice of Extraneous Offenses," which was filed on March 27, 2014, and faxed to defense counsel that same day, the State gave notice that the specified "crimes, prior convictions, wrongs or acts" may be introduced or used to impeach appellant. The notice included the following three acts that pertained to L.P.:
- As a continuing course of conduct, the defendant contacted the buttocks of [L.P.] with the defendant's hands and sexual organ. This occurred in Dallas County, Texas see Case F12-62526
- As a continuing course of conduct, the defendant forced [L.P.] to place his hands on a hot steam machine while contacting [L.P.]'s buttocks with his sexual organ. This occurred at 8282 Spring Valley Richardson, TX in Dallas County specifically at the defendant's store at the Plaza del Sol Bazaar between approximately 2007 and 2009.
- As a continuing course of conduct, the defendant stuck [L.P.] with a needle in his back. This occurred at 8282 Spring Valley Richardson, TX in Dallas County specifically at the defendant's store at the Plaza del Sol Bazaar between approximately 2009 and 2011.
The notice stated that it was given pursuant to rules 404(b) and 609(f) of the rules of evidence and article 37.07, section 3(g), of the code of criminal procedure. Appellant points out that it did not reference article 38.37, but we find nothing in article 38.37 that requires the State to specifically refer to the statute in the notice. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 3 (requiring state to "give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 1 or 2"); McCoy v. State, 10 S.W.3d 50, 54 (Tex. App.—Amarillo 1999, no pet.) ("The fact that the benefit of the statute was not specifically invoked by the State at trial does not prevent it from being applicable in our consideration of the challenge before us."); Martin v. State, No. 01-14-00202-CR, 2014 WL 7174256, at *2 (Tex. App.—Houston [1st Dist.] Dec. 6, 2014, pet. ref'd) (mem. op., not designated for publication) (noting that statute does not require an express reference to article 38.37). The State's notice stated that the proffered "crimes, prior convictions, wrongs or acts," might be introduced or used to impeach appellant, and the State introduced evidence of appellant's alleged acts of indecency with a child against L.P. during its case-in-chief, pursuant to the notice. We therefore reject appellant's argument that the notice was insufficient merely because it did not specifically refer to article 38.37.
Appellant suggests the State did not give him notice that the above acts would be used to show his character, rather than motive, scheme, plan, or design. But article 38.37 specifically authorizes the extraneous offense evidence to be introduced "for any bearing the evidence has on relevant matters," which can include, but is not limited to, "the character of the defendant and acts performed in conformity with the character of the defendant." See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Additionally, as another court has stated, the purpose of extraneous offense notice requirements "is to prevent surprise and inform the defendant of the offenses the State plans to introduce at trial." Price v. State, 245 S.W.3d 532, 539 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The State's "Third Amended Notice of Extraneous Offenses" included allegations that appellant had contact with the anus, sexual organs, or breasts of six other people in addition to the acts appellant allegedly committed against B.M. and L.P. There is no basis in this record for concluding appellant was somehow surprised by the State's use of L.P.'s testimony, the subject of which was set out in the third amended notice. We also reject appellant's assertion that had he known the State was going to use L.P.'s testimony to attack his character, he would have altered his defense, perhaps by taking the stand, offering character witnesses, or offering expert testimony as to appellant's character. Appellant does not specify what additional witnesses he would have called. Furthermore, the fact that appellant's defense was premised on an attempt to discredit both L.P. and B.M. suggests he had adequate notice of the extraneous offenses involving L.P., and was prepared to defend against that testimony. We conclude the trial court did not abuse its discretion by overruling appellant's objection that the notice provided by the State under article 38.37 was insufficient.
Appellant also argues that "[t]he proffered testimony was not relevant in that the extraneous acts alleged were not in any conformity whatsoever with the acts alleged in the Indictment." As we pointed out earlier, article 38.37, section 2(b), authorizes extraneous offense evidence to be introduced "for any bearing the evidence has on relevant matters," which can include, but is not limited to, "the character of the defendant and acts performed in conformity with the character of the defendant." See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Additionally, rule 401 states that "relevant evidence" is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the case more probable or less probable. TEX. R. EVID. 401. "[T]he evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence." Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990).
Evidence that appellant committed sexual acts against another child, L.P., was relevant to prove appellant's character as well as his sexual motive and intent in the contact he had with B.M., the complainant in the charged offense. Although B.M. and L.P. were not the same gender, and the acts appellant was alleged to have committed against L.P. were not identical to the ones he allegedly committed against B.M., the offenses against L.P. were sufficiently similar in method to the instant offense so as to earmark them as the handiwork of the accused. See Casey v. State, 215 S.W.3d 870, 880-81 (Tex. Crim. App. 2007) (discussing theory of modus operandi, which may encompass "doctrine of chances"); see also De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009) ("The 'doctrine of chances' tells us that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance."). Both B.M. and L.P. were children aged ten or younger who were befriended by appellant using candy, food, and games, both children alleged offenses that were similar in nature, and the offenses occurred at the same location, the western wear store that appellant operated, when no one else was around. The trial court could have found that the fact that appellant committed similar sexual acts against another young child in his western wear store had a tendency to make the existence of appellant committing a sexual act against B.M. in that same store more probable. We conclude the trial court did not abuse its discretion by overruling appellant's relevance objection to L.P.'s testimony.
Appellant further argues that the trial court abused its discretion by admitting L.P.'s testimony under article 38.37 because it was not adequate to support a finding by the jury that appellant committed the "separate offense" beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Appellant specifically contends there is no evidence to support the "sexual intent" element of the indecency with a child extraneous offense.
Section 21.11(a)(1) of the Texas Penal Code provides that the offense of indecency with a child is committed if, with a child younger than seventeen years of age, a person "engages in sexual contact with the child or causes the child to engage in sexual contact." TEX. PENAL CODE ANN. § 21.11(a)(1). Section 21.11(c)(2) provides that "sexual contact" means "any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person," if committed with the "intent to arouse or gratify the sexual desire of any person." Id. § 21.11(c)(2).
A child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault of a child or indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07; Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref'd); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd); see also Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.). In the context of indecency with a child, the finder of fact can infer the requisite intent to arouse or gratify sexual desire from a defendant's conduct, remarks, and all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Rodriguez v. State, No. 05-14-01225-CR, 2015 WL 8729283, at *4 (Tex. App.—Dallas Dec. 11, 2015, no pet.) (mem. op., not designated for publication). No oral expression of intent or visible evidence of sexual arousal is necessary. Rodriguez, 2015 WL 8729283, at *4; see also Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no pet.); Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd); Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.—Houston [14th Dist.] 2001, pet. dism'd).
L.P. testified before the jury that when he was five or six years old, appellant would stand behind him with his "weenie" or "middle part" touching L.P.'s behind, and that appellant would move, wiggle, and shake. The jury could have reasonably inferred from L.P.'s testimony that appellant's conduct was undertaken to arouse or gratify his sexual desire. The intent to arouse or gratify could have been inferred from the sexual nature of the evidence. Additionally, the testimony suggests appellant was trying to hide his actions by engaging in the conduct when he and the child were alone. The jury could have reasonably concluded that this conduct was not accidental or inadvertent. Therefore, the State proved appellant had the requisite intent needed to commit the extraneous offense, and L.P.'s testimony was properly admitted into evidence.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141013F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F12-62922-T.
Opinion delivered by Justice Myers. Justices Fillmore and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of April, 2016.