Date: 01-07-2017

Case Style:

Sex Offender

Case Number: 05-15-01176-CR

Judge: David Evans

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Faith Johnson  
Johanna H. Kubalak

Defendant's Attorney:

Julie Woods  
Christian T. Souza

Description: Appellant was indicted for continuous sexual abuse of a young child. Complainant,
appellant’s biological daughter, was born in 1999 to appellant and her mother, YT. YT had a
second daughter, TT, in 2001 with a different father. Appellant left in 2002 and returned in 2010
and began to live with YT and the two girls.
At trial, complainant testified that appellant began to sexually abuse her in 2010 and it
continued through 2011. TT testified that appellant also abused her. YT testified about the
graphic sexual letters appellant wrote to complainant which triggered the investigation in this
case.
The jury found appellant guilty of continuous sexual abuse of a young child. Appellant
testified during the punishment phase of the trial and did not contest his abuse of his daughter
and TT. Appellant also admitted to his prior convictions which included evading arrest,
unauthorized use of a motor vehicle, felony drug offenses, and assault of prior girlfriends and
his sister. The jury sentenced appellant to life imprisonment. Appellant then filed this appeal.
ANALYSIS
A. Instructions to Jury Regarding Extraneous Offenses
In his first issue, appellant contends that the trial court erred by instructing the jury to
consider extraneous offenses as proof that appellant committed the instant offense in conformity
with character. We disagree.
1. Standard of review
When we review claims of jury charge errors, we first decide whether there was error in
the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no
pet.). If there was error and appellant objected to the error at trial, then only “some harm” is
necessary to reverse the trial court’s judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g). If, however, the appellant failed to object at trial—as in this
case—then appellant will obtain a reversal “only if the error is so egregious and created such
harm that he ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” Id. Egregious


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harm is the type and degree of harm that affects the very basis of the case, deprives the defendant
of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex.
Crim. App. 2008). In making an egregious harm determination, “the actual degree of harm must
be assayed in light of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other relevant
information [revealed] by the record of the trial as a whole.” Trejo v. State, 280 S.W.3d 258, 261
(Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). Egregious harm is a difficult
standard to meet and must be determined on a case-by-case basis. See Ellison v. State, 86
S.W.3d 226, 227 (Tex. Crim. App. 2002).
2. Jury Instruction
The instruction in the jury charge at issue provided as follows:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses, if any, other than the offense described in this paragraph, if any, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed. Then you may consider the same for any bearing it has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

3. Analysis

a. Jury Charge
Appellant contends that the language described above in the jury charge wrongfully
allowed the jury to consider testimony about certain extraneous offenses allegedly committed by
appellant as evidence of appellant’s character or that the acts were performed in conformity with
his character. We will discuss in two groups the evidence related to appellant’s complaint of
charge error. The first group is comprised of three extraneous offenses involving evidence that
appellant committed additional sexually abusive acts against complainant that were not included


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in the indictment, appellant sexually abused TT, and appellant transmitted an STD to
complainant.
The first group of extraneous offenses is within exceptions to the exclusion of such
evidence provided in the Texas Penal Code:
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.

See TEX. CODE CRIM. PROC. ANN. art. 38.37 §2(b) (West Supp. 2016). Here, appellant was tried
for continuous sexual abuse of a child which is an offense described under subsection (a)(1) of
section 2 of article 38.37 of the Texas Code of Criminal Procedure. Accordingly, evidence that
appellant committed a separate offense described by subsection (a)(1) or (2) would be admissible
to demonstrate appellant’s character and acts performed in conformity with his character. Id.
The offenses described by subsection (a)(1) and (2) include sex trafficking of a child, continuous
sexual abuse of a young child, indecency with a child, sexual assault of a child, aggravated
sexual assault of a child, online solicitation of a minor, sexual performance by a child, possession
or promotion of child pornography, and an attempt or conspiracy to commit one of these
offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.37 §2(a)(1) and (2) (West Supp. 2016).
Accordingly, the jury properly considered the evidence of the first three extraneous offenses as
proof that appellant committed the instant offense in conformity with character.
The second group of extraneous offenses related to appellant’s complaints of charge error
is composed of four additional extraneous offenses that appellant argues “the trial court should
have instructed the jury not to consider the extraneous offenses for any purpose, since there was
no relevant purpose, and if there were, a limited instruction was required.” These four instances
involve evidence that appellant (1) forced complainant to drink bleach, (2) struck TT with a belt,


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(3) threatened to hurt YT if TT revealed the abuse, and (4) appellant “went away” twice leading
the jury to conclude appellant went to prison. Because the instruction in the jury charge was
correct as to the first group of extraneous offenses, appellant would have been entitled to at most
a limiting instruction as to the second group.
Limiting instructions are governed by rule 105 of the Texas Rules of Evidence that
provides that “[i]f the court admits evidence that is admissible against a party or for a purpose—
but not against another party or for another purpose—the court, on request, must restrict the
evidence to its proper scope and instruct the jury accordingly.” TEX. R. EVID. 105(a). The Court
of Criminal Appeals has construed rule 105 as requiring a request for a limiting instruction at the
time the evidence is admitted. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App.
2007); Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). If evidence is admitted
without a request for a limiting instruction, the evidence becomes admitted for all purposes. See
Hammock, 46 S.W.3d at 895. In addition, if a defendant does not request a limiting instruction at
the time evidence is admitted, then the trial judge has no obligation to limit the use of that
evidence later in the jury charge. Delgado, 235 S.W.3d at 251.
Here, when the evidence of each of the extraneous offenses in the second group was
offered and admitted, appellant never requested a limiting instruction.1 Accordingly, the
extraneous offense evidence became admissible for all purposes and the trial court was not
required to give the jury a limiting instruction.
a. State of the Evidence and Argument of Counsel
Even if the trial court had erred by failing to provide a limiting instruction, however, the
trial court’s error would be reviewed for a showing of egregious harm pursuant to Almanza. The
1 Appellant has not cited any other relevant information in the record in support of appellant’s complaint of jury charge error.


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harm must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174. Based on our review
of the record, we cannot conclude that the trial court’s error, if any, caused appellant egregious
harm.
Jury charge error is egregiously harmful if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264.
Here, however, the testimony regarding the extraneous offenses consisted of only a small part of
the testimony presented by the State. For example, there was only one mention of appellant
telling complainant to drink bleach during complainant’s testimony and the State only mentioned
it once during its closing. In addition, there was only one mention of appellant threatening to
harm the girls’ mother if the abuse was disclosed and one mention of appellant striking TT with
a belt during TT’s testimony. The testimony against appellant regarding his sexual abuse of
complainant and TT, however, was voluminous and included letters written by appellant to
complainant containing graphic sexual content.
In regard to the testimony regarding appellant “going away,” appellant argues that the
conspicuous absence of any explanation about this testimony made it clear that appellant went to
prison. Appellant, however, fails to mention that this type of testimony was discussed during a
motion in limine hearing where appellant sought to preclude any mention of the fact that
defendant “is incarcerated or has been incarcerated on other offenses.” The trial court granted
appellant’s motion in limine during the guilt/innocence phase regarding any mention of prison
and the parties discussed the issue as follows:
[State]: In regards to the defendant being incarcerated, I have made my witnesses aware, and will again tomorrow and this afternoon. I will try to lead them in those parts and we will talk about him going away. I have provided the Defense with a copy of the letters I intend to introduce in guilt/innocence, where I have redacted what I believe are parts that could refer to him being incarcerated, such as his TDCJ number, being in prison, having a dorm, eating chow, rack time, count time, any of those kind of words that appear to be more prison oriented. And I’ve provided that to the Defense. He can check and see if there’s any


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additional redactions that he would like for me to make, and if we can agree upon those then, I will.

[Court]: Have you looked at the letters, and are you okay with the redactions?

[Appellant’s attorney]: Yes.
Appellant did not object to the proposed accommodations offered by the State and there is no
evidence in the record that the State failed to comply with these accommodations. In addition,
appellant did not object at trial when the State introduced appellant’s letters with redactions nor
did he object when the State asked the witnesses about appellant’s absences.
Although appellant broadly argues that jury instruction “affected the basis of the case”
and “deprived Appellant of a fair trial”, the record does not support this contention. In addition,
appellant cannot demonstrate that the jury charge vitally affected his defensive theory because
appellant only argued that there were “missing pieces,” not that the sexual abuse did not take
place. In appellant’s closing argument, his attorney argued that certain “missing pieces” could
amount to reasonable doubt, including why complainant’s mother (1) did not identify appellant
as complainant’s biological father for many years, (2) could not remember all the different places
she had lived with appellant, and (3) had a DNA test performed on TT. The jury charge issues
raised by appellant would not have “vitally affected” any of these defensive theories.2 Because
we conclude that there was no error in the jury charge and any alleged jury charge error did not
result in egregious harm, we overrule appellant’s first issue.
B. Admission of Evidence
In his second issue, appellant contends that the trial court erred in admitting evidence that
appellant abused complainant’s sister. We disagree.
2 We have reviewed the record regarding appellant’s complaint of jury charge error but have not found any other relevant information.


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1. Standard of review
A trial court’s decision to admit or exclude evidence is viewed under an abuse of
discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court
abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green
v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
2. Analysis
Appellant argues that the trial court erroneously reasoned that the abuse of TT was same
transaction contextual evidence and allowed the evidence as an exception to the rule against
using character conformity evidence. As he did in his first issue regarding charge error,
appellant fails to take into account the exceptions permitting the admission for evidence of
extraneous offenses or acts under the Texas Penal Code. See TEX. CODE CRIM. PROC. art. 38.37
§2(b). As we have analyzed and rejected this argument above based upon the exceptions for
evidence of extraneous offenses or acts under the Texas Penal Code, we again reject this
argument.3
In a letter brief dated August 12, 2016, appellant argues that the court cannot apply the
current version of article 38.37 of the Texas Code of Criminal Procedure because to do so would
violate appellant’s state and federal ex post facto rights. Appellant also argues that the current
version of Article 38.37 is inapplicable because the State failed to satisfy its statutory
requirements. Appellant cites to rules of appellate procedure 38.3 and 38.7 in support of this
letter brief. See TEX. R. APP. P. 38.3 (reply brief) and 38.7 (amendment or supplementation). To
the extent appellant is arguing that this letter brief constitutes a reply brief, we note that new
issues may not be raised in reply briefs. Barrios v. State, 27 S.W.3d 313, 322 (Tex. App.—
Houston [1st Dist.] 2000, pet. ref’d). To the extent that appellant is seeking to brief these new 3 See Section A(3).


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issues pursuant to rule 38.7, we conclude appellant’s arguments are without merit. First, other
courts have analyzed and rejected appellant’s ex post facto argument. See Baez v. State, 486
S.W.3d 592, 600 (Tex. App.—San Antonio 2015, pet. ref’d) (rejecting ex post facto argument in
regard to section 2(b) to article 38.37 of the Texas Code of Criminal Procedure); Robisheaux v.
State, 483 S.W.3d 205, 214–15 (Tex. App.—Austin 2016, pet. ref’d) (following Baez).
Second, appellant did not preserve his argument that the State failed to satisfy its
statutory requirements. Section 2-a of article 38.37 requires that before evidence of other
offenses may be introduced under section 2, the trial judge must 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 hold a hearing outside the
presence of the jury for that purpose. See TEX. CODE CRIM. PROC. art. 38.37 § 2-a(1) and (2)
(West Supp. 2016). Section 3 of article 38.37 requires that the State shall give defendant notice
of the State’s intent to introduce evidence described by section 1 or 2 no later than the 30th day
before the date of defendant’s trial. See TEX. CODE CRIM. PROC. art. 38.37 § 3 (West Supp.
2016). In his letter brief, appellant argues that the State failed to seek a gatekeeping hearing or
comply with the notice requirements. The State contends that it provided timely notice and
requested a gatekeeping hearing. Regardless, the record is clear that appellant failed to object
either to the alleged lack of a hearing or proper notice. These complaints are forfeited if not
raised in the trial court. See Stephens v. State, Nos. 02-15-00046-CR and 02-15-00047-CR, 2016
WL 2586639, at *7 (Tex. App.—Fort Worth May 5, 2016, pet. ref’d) (“Like the hearing required
by article 38.072, we conclude that article 38.37’s hearing requirement, which does not contain
language expressly requiring a waiver, is subject to the general requirement of preservation and
is therefore subject to forfeiture.”); Belcher v. State, 474 S.W.3d 840, 850 (Tex. App.—Tyler
2015, no pet.) (error not preserved because appellant failed to object to admission of evidence


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based on the State’s failure to give notice required by article 38.37, section 3). Accordingly,
appellant has failed to preserve this argument and we overrule appellant’s second issue.
C. Parole Instruction
In his third issue, appellant contends that the trial court erred by failing to include an
instruction in the punishment phase jury charge that he was ineligible for parole. We disagree.
The trial judge is required to give the jury a written charge “setting forth the law
applicable to the case; not expressing any opinion as to the weight of the evidence, not summing
up the testimony, discussing the facts or using any argument in his charge calculated to arouse
the sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West
2007). Article 37.07 of the code of criminal procedure provides the instructions that trial courts
are required to give juries to inform them about the law of parole. See TEX. CODE CRIM. PROC.
ANN. art. 37.07 § 4 (West Supp. 2016). Section 4 of Article 37.07 provides as follows:
In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense of which the jury has found the defendant guilty is an offense under Section 71.02, Penal Code, other than an offense punishable as a state jail felony under that section, an offense under Section 71.023, Penal Code, or an offense listed in Section 3g(a)(1), Article 42.12, or if the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, unless the defendant has been convicted of an offense under Section 21.02, Penal Code, an offense under Section 22.021, Penal Code, that is punishable under Subsection (f) of that section, or a capital felony, the court shall charge the jury in writing as follows:

Id. (emphasis added). As stated above, this section provides that the language usually required in
a charge addressing the law of parole does not apply to offenses arising under section 21.02 of
the Penal Code. Here, appellant was charged with the offense of continuous sexual abuse of a
young child which is an offense under section 21.02 of the Texas Penal Code. TEX. PENAL CODE
ANN. § 21.02 (West Supp. 2016). Accordingly, the instructions to inform a jury about parole set
forth in article 37.07 of the code of criminal procedure do not apply to appellant.


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Appellant argues that an affirmative instruction that he was ineligible for parole would
have been more accurate than the absence of any instruction because the absence of such an
instruction only “sanctioned the jury’s speculation” that “life” meant “something else.” The
Court of Criminal Appeals, however, has previously held that trial courts cannot cut and paste
parole law instructions as they see fit:
The Texas Legislature enacted legislation that requires the trial judge to instruct the jury in the precise wording that the statute recites. Article 37.07, section 4(a) sets out, verbatim, the words that the trial judge is to use. There are even quotation marks around the wording of the instruction. That is at least some indication that the Legislature did not want any creative deviations from its chosen language. The Legislature prefaced its instruction language with directions that “the court shall charge the jury in writing as follows: ...” The use of the word “shall” generally indicates a mandatory duty. There is no reason to think that the Legislature enacted merely a suggested parole law jury instruction, one that trial judges should cut and paste as they see fit.

See Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). Where, as here, the legislature
has not provided for such an instruction, we conclude that appellant was not entitled to a new
punishment trial because the trial court declined to provide him with a special, non-statutory
instruction. See Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007) (holding that all
jury instructions relating to a penal code offense or defense must be statutorily based and that
special, non-statutory instructions generally have “no place in the jury charge.”). Accordingly,
we overrule appellant’s third issue.

Outcome: