Opinion
08-19-00136-CR
07-23-2021
AARON RIVERA, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Before Rodriguez, C.J., Palafox, and Alley, JJ.
Appeal from the 409th District Court of El Paso County, Texas (TC# 20050D02112)
OPINION
YVONNE T. RODRIGUEZ, Chief Justice
Appellant, Aaron Rivera, appeals his conviction of aggravated sexual assault of a child. Tex.Penal Code Ann. § 22.021(a)(2)(B). In four issues, Appellant seeks reversal, asserting the trial court abused its discretion. In Issue One, Appellant challenges the admission of certain outcry testimony, and the admission of extraneous-offense evidence in Issue Two. In Issue Three, Appellant claims the trial court abused its discretion in denying his motion for mistrial. Lastly, Appellant challenges the constitutionality of Article 38.37 of the Texas Code of Criminal Procedure as applied to him, claiming he was denied his presumption of innocence. We affirm.
BACKGROUND
Factual Background
In 1998, Appellant began sexually assaulting the child-victim in this case, M.R., when she was eight years' old. Appellant was married to M.R.'s eldest sister, Norma Porco ("Porco"). Appellant, Porco, and their two young daughters, J.F.-M.R.'s other older sister-M.R., and M.R.'s mother, Norma Reyes ("Reyes"), all resided together in Reyes's home in Sunland Park, New Mexico.
Although J.F. was an adult by the time M.R. made an outcry of sexual abuse to her, she (J.F.) was a minor at the time of the offense. See Tex.R.App.P. 9.10(a)(3).
At trial, M.R. described the details of the sexual assault she endured for years. M.R. testified the abuse began by Appellant making her masturbate him and in return, would promise her toys, candy, money, or other gifts as "prize[s]." M.R. would always tell him she would not want to; Appellant would assure her, "[i]t will be the last time," but as M.R. explained, "it was never the last time." M.R. testified the instances of abuse occurred in the living room of the family home, or in the bedroom she shared with her mother, Reyes. Reyes worked nights and M.R. described that Appellant would come into the room while her mother was at work and would make her perform sexual acts on him. Appellant would also perform sexual acts on M.R., including vaginal penetration, which M.R. described caused her excruciating pain. M.R. testified that although she would lock the bedroom door before going to sleep, Appellant would always find his way into her room.
Although M.R. was twenty-eight years old when she testified, the sexual assault committed against her occurred when she was a minor. See Tex.R.App.P. 9.10(a)(3).
M.R. recounted several specific instances of sexual assault that she particularly remembers. In several instances, Appellant took M.R. to Blockbuster Video and while en route, had her masturbate and fellate him in his truck. Appellant promised her candy in exchange and would also tell M.R. not to tell her mother because she would be angry at her, which made M.R. afraid and believe she was doing something wrong. M.R. testified she listened and did not tell her mother because she was afraid of being spanked or hit. When M.R. was about nine-years' old, she awoke to Appellant on top of her, trying to penetrate her with his penis, but M.R. complained of the pain and with M.R.'s sister in the room next door, Appellant stopped and left the room. M.R. also shared that when she was about ten years' old, Appellant took her to one of the bedrooms of the Sunland Park home, removed her pants and performed oral sex on M.R. M.R. complained of pain when Appellant performed other acts on her, and Appellant told her, "[i]t is okay. It is because you are growing" and had her fellate him while M.R. "rested" from the pain. Appellant also would show M.R. pornography, telling her, "[t]his is how you are supposed to do it," and would instruct her to "[w]atch that so that [she could] do it like that with [him]." In one instance after Appellant made M.R. watch pornography, Appellant attempted to penetrate M.R. with his penis, but M.R. complained of pain and Appellant began to penetrate her with his fingers, causing her further pain. Appellant would fondle and touch M.R.'s breasts, telling her the longer she kept touching them, the longer or the faster they would grow.
In early 2001, Appellant and Porco moved out of the Sunland Park home and into a home in El Paso, Texas where M.R. would occasionally spend the night. M.R. recalled sleeping in the upstairs guest bedroom where Appellant continued to sexually assault her. The sexual assault continued and in 2003, M.R. had a pregnancy scare. Appellant sexually abused M.R. around Thanksgiving at the Sunland Park home and after learning from her school friends how babies are made and having stopped menstruating for two months, M.R. believed she might be pregnant. M.R. told Appellant; Appellant told M.R. he would take care of it and not to tell her mother. Appellant called Porco and told her to get a pregnancy test for M.R. because M.R. had been "ditching school." Porco removed M.R. from school, drove her to a gas station and asked what was going on, which M.R. responded by telling Porco about the sexual assault. The pregnancy test result was negative and before taking M.R. back to school, Porco told M.R. not to tell their mother.
The sexual assault became known to both of M.R.'s sisters, and on July 4, 2004, at Appellant's parent's house, Appellant again attempted to sexually assault her. Later that same year, M.R. confided in her math teacher about the sexual assault, and M.R.'s teacher called J.F. to tell her. M.R. told J.F. that Appellant had sexually assaulted her for as long as she could remember, and J.F. confronted Porco, who pleaded to allow her some time to tell their mother. J.F. enlisted the help of a church minister, and the two of them eventually told Reyes about the abuse; two days later, Reyes and J.F. reported Appellant's sexual assault of M.R. to the Sunland Park Police. Appellant's sexual assault was then reported to the El Paso Police Department ("EPPD") on September 22, 2004.
Appellant fled to Mexico after being served with court documents, and although EPPD had secured a warrant for his arrest, EPPD was unable to execute it due to Appellant's absence. While in Mexico, Appellant married another woman and became a stepfather to a young girl named C.Q. Appellant sexually abused C.Q. in essentially the same manner he did M.R. Appellant's sexual abuse of C.Q. ended when C.Q. confided in a friend, whose mother informed C.Q.'s mother. Appellant was charged and two videos of Appellant's sexual encounters with C.Q. were admitted into evidence, depicting a myriad of sex acts ranging from oral sex to intercourse. The EPPD investigation of Appellant was delayed due to his proceedings in Mexico.
Procedural Background
In 2005, Appellant was indicted of aggravated sexual assault of a child. Tex.Penal Code Ann. § 22.021(a)(2)(B). Following a trial in 2019, the jury returned a guilty verdict and the trial court imposed a fifty-year sentence in the Texas Department of Criminal Justice Institutional Division. This appeal followed.
DISCUSSION
Issues
Appellant appeals from a jury verdict finding him guilty of aggravated sexual assault of a child. Tex.Penal Code Ann. § 22.021(a)(2)(B). In four issues, Appellant challenges his conviction on grounds the trial court abused its discretion in admitting certain evidence, claims his motion for mistrial was wrongfully denied, and asserts his constitutional due process rights were violated.
EVIDENTIARY RULINGS
In Issues One and Two, Appellant asserts the trial court abused its discretion in admitting certain evidence.
Applicable Law & Standard of Review
A reviewing court evaluates a trial court's admissibility decision under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Because trial courts are in the best position to make calls on questions of admissibility, we will uphold a trial court's admission of evidence if it falls within the zone of reasonable disagreement, and we afford great deference to a trial court in its evidentiary decision. Martinez v. State, No. 08-17-00165-CR, 2019 WL 4127261, at *7 (Tex.App.-El Paso Aug. 30, 2019, no pet.)(not designated for publication).
Issue One Analysis
In Issue One, Appellant asserts the trial court abused its discretion in designating J.F. an outcry witness, claiming Porco, not J.F., was the proper outcry witness.
At the outcry hearing held outside the presence of the jury, J.F. testified that in July 2004, M.R. told her Appellant had been molesting her. J.F. asked M.R. if Appellant had "put his penis inside" of her, which M.R. answered in the affirmative, explaining the abuse had been going on for as long as she could remember. M.R. told J.F. the abuse started at their family home in Sunland Park New Mexico, and continued when Appellant and Porco moved to El Paso, Texas. J.F. also testified to the time Porco called her in January of 2003 with news of M.R.'s pregnancy scare. At Porco's request, J.F. agreed not to discuss the situation with M.R., but upon learning of M.R.'s outcry of sexual abuse, J.F. later confirmed with M.R. while they were at church that it was Appellant whom M.R. believed had impregnated her around Thanksgiving at the Sunland Park home. This confirmation occurred in 2003. J.F. testified she believed she was the first person M.R. shared details with about the abuse she suffered in El Paso.
At trial, Porco was asked what M.R. told her while they were at the gas station when Porco took M.R. out of school to make her take the pregnancy test. Porco testified she asked M.R. what was going on, to which M.R. responded, "[d]idn't [he] tell you?" Porco stated M.R. told her she believed she had been impregnated by Appellant around Thanksgiving. According to Porco, M.R. did not give her any details about how she had been impregnated, and admitted that at the time, M.R. did not tell her that the sexual abuse had continued at their home in El Paso. M.R. confirmed this and testified that Porco did not ask for any details, and she (M.R.) did not volunteer any because she was embarrassed.
At the conclusion of testimony, the State argued J.F. was the proper outcry witness because she was "the first adult over the age of 18 to get the outcry from the victim in sufficient detail of the who, what, when, where of the alleged offense that is indicted," while M.R.'s statements to Porco were only general allusions of abuse and related to offenses that occurred in New Mexico, rather than the charged offense that occurred in El Paso. Defense counsel objected to J.F.'s and Porco's outcry statements as "improper" and "bolstering of the testimony." Defense counsel made an additional objection, arguing, "[a]nd I know that [J.F.] came in and testified that she was given a lot of specific information, but that is different from what M.R. testified to and for that reason I would object to any outcry testimony." The trial court overruled Appellant's objections and designated J.F. as the proper outcry witness "based on the fact that-what the alleged victim said reference the alleged offense here in El Paso County was made by the child against who a crime was committed and made to the first person 18 years of age or older that she made the statement to about the alleged crime."
At trial, when the State offered M.R.'s outcry statement made to J.F.-including extraneous offenses Appellant committed against M.R. in New Mexico, which the State argued were admissible pursuant to Article 38.37-defense counsel did not object, instead stating, "Judge, it is part of our trial strategy to allow that in."
On appeal, the State argues Appellant's trial objections do not comport with his appellate complaint, and he therefore failed to preserve error for review. As a threshold matter, there must be preservation of error by a specific and timely objection at the trial level to bring the issue on appeal. See Moore v. State, 371 S.W.3d 221, 225 (Tex.Crim.App. 2012)(an appellate issue that is not preserved at trial is ordinarily forfeited). We agree. Because Appellant's trial objections of J.F.'s outcry testimony as "improper," "bolstering," and "different from what [M.R.] testified to," do not comport with his appellant complaint of J.F. being the improper outcry witness and instead, Porco being the proper outcry witness, we find Appellant failed to preserve error on this point of review.
However, even if Appellant had properly preserved error, we find J.F. was the proper outcry witness. Article 38.072 of the Texas Code of Criminal Procedure allows the admission of a hearsay statement describing sexual abuse made by a child-abuse victim to an outcry witness. See Rodgers v. State, 442 S.W.3d 547, 552 (Tex.App.-Dallas 2014, pet. ref'd). For the outcry statement to be admissible, the witness must be the first person over the age of eighteen to whom the child made a statement about the offense. See Martinez v. State, No. 05-18-01096-CR, 2020 WL 897247, at *2 (Tex.App.-Dallas Feb. 25, 2020, no pet.)(mem. op., not designated for publication)(citing Tex.Code Crim.Proc.Ann. art. 38.072, § 2(a)(3)). The proper outcry witness is generally the first person to whom the child-victim described the "how, when, and where" of the abuse. Id. The statement must describe the alleged offense in some discernable manner and must be more than a general allusion that something in the area of child abuse was occurring. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990).
In the instant case, Appellant was charged with aggravated sexual assault of a child, specifically, penetrating the sexual organ of M.R. by the means of his sexual organ, while in El Paso, Texas. Tex.Penal Code Ann. § 22.021. The record does not support M.R. told Porco about instances of sexual assault that occurred in El Paso County; M.R. told Porco about the sexual assault that occurred near Thanksgiving Day at Reyes's home in Sunland Park, New Mexico in which M.R. did not give Porco any details. Regarding the pregnancy scare incident, when Porco took M.R. out of school and asked her what was going on, M.R. testified:
I told her that was not true. I never ditched school because I was afraid always to miss class. I said, 'No, that is not what I told him.' She said, 'Well, what did you tell Aaron?' I said, 'Well, didn't he tell you?' And she said, 'No. Tell me what?' So I told her -- I said, 'It was him.' And she said, 'What are you talking about?' And I said, 'Well, this happened in November after Thanksgiving. I mean, I was, like, with him.' I couldn't tell her specific details. I was very embarrassed.
However, J.F. testified M.R. told her specifics, such as Appellant penetrating her with his penis, that the abuse had been going on for as long as M.R. could remember, specifying the abuse began at their family home in Sunland Park, New Mexico when Reyes worked at the El Paso Times (in 1998-1999) and continued when Appellant and Porco moved to El Paso, Texas-the "how, when, and where" of the abuse. Whereas the only account of sexual assault M.R. told Porco occurred in New Mexico and not in El Paso County, and was merely a general allusion that M.R. was possibly pregnant because she and Appellant had been together.
Furthermore, because M.R. testified to the same facts as the complained-of outcry testimony of J.F., any error in the admission of J.F.'s outcry testimony was cured and thus, harmless. See Gibson v. State, 595 S.W.3d 321, 327 (Tex.App.-Austin 2020, no pet.)("In cases involving the improper admission of outcry testimony, the error is harmless when the victim testifies in court to the same or similar statements that were improperly admitted or other evidence setting forth the same facts is admitted without objection."). Accordingly, Porco was not the proper outcry witness and the record supports J.F. was the first person over the age of eighteen to whom M.R. made a statement about the sexual assault that occurred in El Paso County. The trial court did not abuse its discretion in designating J.F. an outcry witness. Issue One is overruled.
Issue Two Analysis
C.Q. testified at trial-C.Q. was the subject child-victim of Appellant's sexual assault proceedings in Mexico, and was also Appellant's stepdaughter. Defense counsel objected to the admission of evidence that Appellant sexually assaulted C.Q. on grounds that the evidence was inadmissible under Rules 404(b) and 403 of the Texas Rules of Evidence. After conducting a 38.37 hearing outside the presence of the jury, the trial court overruled Appellant's objections and determined that the complained-of evidence was relevant to Appellant's character and propensity to commit such crimes, was relevant to show the similarity of the crimes-specifically, the young age of the victims, the manner of the sexual abuse, and the design and scheme of his motives to commit these offenses-and was not unfairly prejudicial.
In Issue Two, Appellant complains of the admission of extraneous-offense evidence regarding his sexual assault of C.Q., claiming the evidence is inadmissible under Rules 404(b) and 403 of the Texas Rules of Evidence. a) Rule 404(b)
Pursuant to Article 38.37, the trial court admitted the complained-of evidence. Section 2(b) of Article 38.37 provides that, in cases of sexual crimes against children-such as the aggravated sexual assault of a child offense alleged in this case-evidence that the defendant has committed certain offenses against a nonvictim of the charged offense is admissible for any bearing it may have 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(b). By its express terms, Article 38.37 supersedes the application of Rule 404(b) and extraneous-offense evidence that would ordinarily be excluded is admissible. Hitt v. State, 53 S.W.3d 697, 705 (Tex.App.- Austin 2001, pet. ref'd)("By its express terms, article 38.37, section 2 creates an exception to Texas Rules of Evidence 404 and 405. Article 38.37, section 2 supersedes in certain sexual abuse cases the application of Texas Rules of Evidence 402 and 404.").
In the instant case, C.Q. was a child when Appellant molested her-she was about eleven years' old when it began and she is not the subject child-victim in this case. C.Q. testified about the sexual assault committed against her by Appellant; much of what she alleged was similar to what M.R. alleged. C.Q. alleged Appellant bought her gifts to accept his sexual advances, showed her pornography, fondled her in intimate places, and began having vaginal intercourse with her when she was twelve-years' old. And just like M.R. testified, Appellant also told C.Q. not to tell her mother because her mother would be upset with her. Due to Appellant's threats, C.Q. did not tell anyone until she was almost sixteen-years' old.
We find the testimony of C.Q. admissible for the bearing it has on the relevant matter of the charged offense-sexual assault of a child-including the character of Appellant and the sexual assault performed in conformity with his character. See Tex.Code Crim.Proc.Ann. art. 38.37, § 2(b). The trial court did not abuse its discretion in admitting the complained-of evidence over Appellant's Rule 404(b) objection. b) Rule 403
Relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. See Tex.R.Evid. 403. "Probative value" refers to the "inherent probative force of an item of evidence"-the force of it making more or less probable the existence of a fact of consequence-coupled with the proponent's need for the complained-of evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006). "Unfair prejudice" refers to the tendency to suggest a decision on an improper bias, commonly, an emotional one. Id.
When undertaking a Rule 403 analysis, a trial court must balance: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Id. at 641-42; Tex.R.Evid. 403.
Evidence that a defendant sexually abused another child is relevant to whether the defendant sexually abused the child-victim in the instant case. Caston v. State, 549 S.W.3d 601, 612 (Tex.App.-Houston [1st Dist.] 2017, no pet.). Because evidence of prior sexual abuse of children is especially probative of a defendant's propensity to sexually assault children, Rule 403's balancing test will not normally favor the exclusion of evidence of a defendant's prior sexual assaults of children. Id. Applying this notion, we find evidence that Appellant sexually assaulted C.Q. is relevant to whether he sexually abused M.R.
Furthermore, M.R. was the only witness of the sexual assault committed against her over the years and because she gave a delayed outcry, there was no physical evidence to corroborate her testimony. Without any other evidence to corroborate M.R.'s testimony, this becomes a "he said, she said" case. See Alvarez v. State, 491 S.W.3d 362, 371 (Tex.App.-Houston [1st Dist.] 2016, pet. ref'd). The State argues Appellant's questions during cross-examination regarding the layout of the homes where Appellant abused M.R., the presence of others in the home during the acts of sexual abuse, and whether the bedroom doors were locked, all suggested the implausibility of M.R.'s allegations against Appellant. We agree. In addition to C.Q.'s testimony being relevant to M.R.'s credibility, it was also relevant to rebut Appellant's defensive theories. See Caston, 549 S.W.3d at 612 (holding that the complained-of extraneous-offense evidence was probative because it served to rebut appellant's defensive theory). Moreover, evidence that Appellant had vaginal intercourse with C.Q. was no more serious that the allegations in this case-that he also had vaginal intercourse with M.R. See id. at 613 (holding that any tendency of the extraneous-offense evidence to suggest a decision on an improper basis was ameliorated in part because the sexual misconduct involved in the extraneous offense was no more serious than the allegations in the charged offense). Thus, C.Q.'s testimony was relevant and was not unfairly prejudicial.
Furthermore, the possibility of unfair prejudice was further ameliorated during voir dire when all of the potential jurors who indicated their inability to only consider evidence for the limited purpose for which it was admitted were struck. The trial court also issued a jury instruction; the tendered instruction stated:
You are instructed that you are to decide whether the State has proved beyond a reasonable doubt that the defendant is guilty of the crimes charged in the indictment. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment.
. . .
You are instructed that, if there is any evidence before you in this case regarding the Defendant having committed other crimes, wrongs, or bad acts, other than the offense alleged against him in the indictment in this case, you cannot consider said evidence for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other crimes, wrongs, or bad acts, if any were committed.
The State also discussed the instruction in its closing and stressed the presumption of innocence and the State's burden of proof. The complained-of evidence thus, did not have a tendency to distract the jury or be given undue weight.
Lastly, we find the complained-of evidence was not given an inordinate amount of time in the State's case-in-chief and was not emphasized over the charged offense. C.Q.'s testimony was presented on the last day of trial, consisted of approximately forty pages out of over two hundred pages of testimony, and included eight exhibits. The two videos associated with C.Q.'s sexual assault were not published to the jury. Although the State made remarks such as, "do justice for [M.R.] and for [C.Q.]" during its closing statement, the State focused its argument on the elements of the charged offense as applied to M.R. The State also properly used the complained-of evidence in relation to the charged offense, stating, "he did this in [C.Q.'s] case so that makes it more likely that he did it in [M.R.'s] case."
We find the trial court did not abuse its discretion in admitting the complained-of evidence over Appellant's Rule 403 objection.
For all the foregoing reasons, Issue Two is overruled.
MOTION FOR MISTRIAL
In Issue Three, Appellant argues the trial court abused its discretion in denying his motion for mistrial.
Standard of Review & Applicable Law
We review a trial court's ruling on a motion for mistrial for abuse of discretion and will uphold the ruling if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007). "A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Smith v. State, 491 S.W.3d 864, 873 (Tex.App.-Houston [14th Dist.] 2016, pet. ref'd). In only extreme circumstances is a mistrial required; when the resulting prejudice is incurable. Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004)).
Unless the remark was clearly calculated to inflame the minds of the jury or was of such damning character as to make it impossible to remove the harmful impression from the jurors' minds, a witness's reference to a defendant's criminal history or previous incarceration, standing alone, is generally cured by a prompt instruction to disregard. Id. at 873.
Analysis
At trial, Rhonda Russ, a former detective for the El Paso Police Department, testified on behalf of the State. Detective Russ was assigned to the Crimes Against Children Unit and was assigned to investigate the allegations against Appellant. During her testimony, the following exchange occurred:
Q. So earlier you testified that you were initially assigned this case back in September of 2004. Why are you just now interviewing the victim on November 5th of 2004?
A. It is my understanding that the offender had been in prison in Mexico.
Q. Had--
[Defense]: Objection, Judge. May we approach?
[Court]: Okay.
(At the bench, on the record)
[Defense]: I'm going to object to that response. And I'm going to ask the Court to strike it from the record and ask the jury to ignore it. But, Judge, when this investigation started he was not in prison.
[State]: Your Honor, that's not the answer that I anticipated.
[Court]: That's the danger of a wide question.
[Defense]: And I feel that now the jury knows that something happened in Mexico and he was convicted. I feel it is impossible at this point for my client to receive a fair trial and I feel compelled to request a mistrial on his behalf.
[State]: Your Honor, I think right now that an instruction can be cured at this point. I think there has already been talk about flight to Mexico. I think that an instruction would cure it at this point. I think that they're under the understanding that he went to Mexico and I think an instruction would be enough to overcome anything that she has talked about right now.
The trial court overruled the objection and denied Appellant's request for mistrial, then instructed the jury, "Ladies and gentlemen, you are to disregard the last response of the witness."
Nothing in the record indicates Detective Russ's reference to Appellant's prior incarceration was clearly calculated to inflame the minds of the jury. The reference was uninvited and was cured by a prompt instruction to disregard. Detective Russ did not elaborate on her objected-to remark, and the State did not emphasize the reference to the jury. Because the trial court gave a prompt and appropriate curative instruction to the jury to disregard the reference to Appellant's prior incarceration, the trial court acted within its discretion in denying Appellant's motion for mistrial. See Smith, 491 S.W.3d at 873 (holding because nothing in the record indicated the reference to appellant's previous incarceration clearly was calculated to inflame the minds of the jury, and because the court gave a prompt and appropriate curative instruction to the jury to disregard the reference, the trial court acted within its discretion when it denied appellant's motion for mistrial).
Issue Three is overruled.
ARTICLE 38.37
In Issue Four, Appellant challenges the constitutionality of Article 38.37, claiming it denied him of due process.
Standard of Review & Applicable Law
In determining the constitutionality of a statute, a reviewing court presumes it is valid, and that the Legislature did not act unreasonably or arbitrarily in enacting it. See Buxton v. State, 526 S.W.3d 666, 686 (Tex.App.-Houston [1st Dist.] 2017, pet. ref'd). The appellant bears the burden to establish the unconstitutionality of the challenged statute. See id.
Analysis
Appellant claims Article 38.37 allows the admission of prior sexual offenses based on the premise that sex offenders have a lustful predisposition to commit additional sex offenses, which he claims is tantamount to an impermissible, mandatory presumption of his guilt. In effect, Appellant argues Article 38.37 shifted the burden to prove his innocence beyond a reasonable doubt.
However, before reaching the merits of this argument, we find Appellant has failed to preserve this issue for our review. Constitutional challenges-both facial and as-applied-must be preserved by trial level objection. See Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995) (holding defendant's as-applied challenge to constitutionality of statute was not preserved for review where it was not raised in the trial court). Appellant claims he preserved this issue for review; however, our review of the record proves otherwise.
Notwithstanding Appellant's failure to preserve this issue, we have previously ruled on this matter, finding that Section 2(b) of Article 38.37 does not violate a defendant's due process rights. Carrillo v. State, No. 08-14-00174-CR, 2016 WL 4447611, at *9 (Tex.App.-El Paso Aug. 24, 2016, no pet.)(not designated for publication).
Section 2(b) of Article 38.37 does not lessen a defendant's presumption of innocence or alter the State's burden of proof; it is constitutional. Appellant has not met his burden in his due process challenge.
Issue Four is overruled.
CONCLUSION
For these reasons, we affirm. July 23, 2021