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Date: 09-06-2020
Case Style:
Ernesto Pedraza v. The State of Texas
Case Number: 01-19-00652-CR
Judge: Sherry Radack
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Andrew Fletcher
The Honorable Kim K Ogg
Daniel C. McCrory
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in Texas.
Description:
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The complaining witness, John,
1 was admitted to Ben Taub Hospital in
Houston, Texas, for a heroin overdose. At the time, appellant was working at Ben
Taub as a patient care technician. John testified that, while in the hospital, he was
in and out of consciousness and suffered some memory loss. John further testified
that, while he was in and out of consciousness, appellant sexually assaulted him
three times in one day by performing oral sex on him without his permission.
John testified that the first assault occurred after appellant told John that he
was his nurse and would be taking him for x-rays. On the way to what he believed
was an x-ray room, appellant “pulled [the bed] off” to a side area, closed a privacy
screen, and began fondling and performing oral sex on John.
Once in the x-ray room, appellant moved John’s bed into the corner of the
room and again performed oral sex on him. Although John was drifting in and out
of consciousness, he finally “realized . . . that it was actually happening.”
Appellant stopped performing oral sex only when he heard others approaching.
1 We refer to the complainant and the extraneous-offense witness by pseudonyms
for their privacy and ease of reading.
3
After the x-ray, John was moved back to his original location, where, hidden
from others by a privacy curtain, appellant performed oral sex on John for a third
time.
After the third assault, John was convinced that he was not delusional and he
waited until appellant “clocked out,” and then told others on the nursing staff and
law enforcement what had happened to him. Specifically, John reported that
appellant put his mouth on John’s penis without his consent.
During direct examination of the State’s forensic expert, Jessica Powers, the
State introduced evidence about different sources of DNA. Powers explained that it
was easier to obtain DNA from some sources of DNA, such as blood and saliva,
while DNA left by “shedding” through touch were less likely to leave testable
samples. She noted that DNA tests were often done by buccal swabs because the
saliva in the mouth made the DNA sample easier to obtain and the saliva held on to
the DNA well. She acknowledged that touch DNA, or DNA from skin, could be
obtained as well, noting that hard surfaces tend to hold touch DNA better. Powers
also noted that contact from skin was less likely to leave testable DNA than contact
from saliva. There was also evidence that nurses and patient care technicians
should always use gloves when handling patients.
Powers further testified that the penile swab done on John after he reported
the assault showed three DNA contributors: himself, appellant, and an unknown
4
third contributor. The test was also presumptively positive for saliva, but Powers
could not conclusively state that that saliva was the source of appellant’s DNA on
John’s penis.
On cross-examination of Powers, appellant raised the issue of whether
appellant’s DNA could have first been transferred to his gloves and then
innocently transferred to John’s penis when appellant helped John use a urinal to
obtain a urine sample, by asking:
So if somebody happened to be handling someone’s penis and that
person was having difficulty going to the bathroom, for example, and
another person was handling the penis to try and get this person to
leave a urine sample for testing within a hospital not for DNA, but for
medical reasons, they might could leave a lot of touch DNA, right?
Defense counsel then had Powers perform a demonstration by putting on a
pair of surgical gloves. In doing so, Powers touched her face. Counsel used the
demonstration to argue that touch DNA could then be transferred from Powers’
face, to the glove, and then to whatever she touched. On redirect, Powers also
testified that such secondary transfer contact would leave even less DNA than
direct touch contact.
At trial, the State argued that it should be permitted to introduce an
extraneous offense, arguing that it was admissible under Texas Rule of Evidence
404(b)(2) to rebut appellant’s defensive theory that appellant accidentally touched
John’s genitals thereby leaving DNA when helping John use a urinal to obtain a
5
urine sample. The trial court agreed that it was a “tough question,” but concluded
that “I do think there’s been . . . the potential if not misimpression being left with
the jury that the State is entitled to clear up about the DNA as well as the lack of
opportunity; and I’m gonna let it in after having done the appropriate balancing
test.”
The State then called another patient, Paul, who was treated by appellant at
Kingwood Emergency Room in August 2016. Paul testified that when he was
brought to the hospital by ambulance he was going “in and out” of consciousness.
While being triaged, appellant kept touching him and Paul told him to stop. Paul
was put into a care room alone, and appellant came by and “put something” in
Paul’s IV. Paul lost consciousness but later awoke to find appellant touching his
genitals. After he pushed appellant away and told him to stop, Paul again lost
consciousness. The next time Paul awoke, appellant was performing oral sex on
him. Paul grabbed appellant’s face and pushed him away, fighting until appellant
left. Approximately a week after he was discharged, Paul called the hospital and
reported the incident. After investigating the incident, Gail Deaver, the head of risk
management at Kingwood Hospital, noticed discrepancies between the event as
described by appellant and the video taken from the emergency room that night.
Appellant was then fired.
6
ADMISSION OF EXTRANEOUS-OFFENSE EVIDENCE
In his sole issue on appeal appellant contends that the trial court erred by
admitting the extraneous-offense evidence. Specifically, appellant claims that the
evidence was not admissible under: (1) Texas Rule of Evidence 404(b)(2) because
he did not “open the door” during his cross-examination of the State’s witnesses by
raising a defensive theory of accident, mistake, or lack of criminal intent, or (2)
Texas Rule of Evidence 403 because the extraneous-offense evidence’s probative
value was substantially outweighed by the risk of undue prejudice.
Standard of Review
We review a trial court’s admission of extraneous-offense evidence for an
abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996)
(op on reh’g); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d). A trial court does not abuse its discretion if its decision to
admit evidence is within the “zone of reasonable disagreement.” Montgomery v.
State, 810 S.W.2d 372, 391–92 (Tex. Crim. App. 1991). A trial court’s ruling on
extraneous-offense evidence is generally within the zone of reasonable
disagreement “if the evidence shows that 1) an extraneous transaction is relevant to
a material, non-propensity issue, and 2) the probative value of that evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.
7
2009). This Court will sustain a trial court’s decision on admissibility of evidence
if correct on any theory of law applicable to the case, even when the trial court’s
underlying reason for the decision is wrong. Romero v. State, 800 S.W.2d 539,
543–44 (Tex. Crim. App. 1990) (citing Spann v. State, 448 S.W.2d 128 (Tex.
Crim. App. 1969)).
Rule 404(b)(2)
Evidence of a person’s crime, wrong, or other act is not admissible to prove
that person’s character in order to show that the person acted in conformity with
that character when allegedly committing the charged offense. See TEX. R. EVID.
404(b)(1); see also Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.
2001); Montgomery v. State, 810 S.W.2d 372, 386-88 (Tex. Crim. App. 1990) (op.
on reh’g). Evidence of other offenses, however, may be admissible when the
evidence is relevant to a fact of consequence in the case. See TEX. R.
EVID. 404(b)(2); Montgomery, 810 S.W.2d at 387-88. For instance, evidence of
other crimes or wrongs may be admissible if it tends to establish some elemental
fact, such as identity, intent, or knowledge; tends to establish some evidentiary
fact, such as motive, opportunity, plan, or preparation, leading inferentially to an
elemental fact; or rebuts a defensive theory by showing, e.g., absence of mistake or
lack of accident. Montgomery, 810 S.W.2d at 387–88; see also TEX. R.
EVID. 404(b)(2). If the trial court determines that the offered evidence has
8
independent relevance apart from or beyond character conformity, the trial court
may admit the evidence and instruct the jury the evidence is limited to the specific
purpose the proponent advocated. See Prince v. State, 192 S.W.3d 49, 54 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d) (citing Montgomery, 810 S.W.2d at
387-88). This is a rule of inclusion, not exclusion. De La Paz, 279 S.W.3d at 343.
“The rule excludes only that evidence that is offered (or will be used) solely for the
purpose of proving bad character and hence conduct in conformity with that bad
character.” Id.
Appellant, relying on Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App.
2002), argues that he did not contest any of the State’s claimed reasons for
admitting the extraneous offense, i.e. accident, mistake, or intent, but that his
cross-examination of the witnesses “merely regurgitated the State’s direct
testimony confirming the phenomena of touch DNA and the fact that there was a
possibility that touch DNA could be transferred this way.” Thus, appellant
contends that he did not “open the door” to admission of any extraneous offense.
It is true that “in Texas a simple plea of not guilty usually does not make
issues such as intent a relevant issue of consequence for purposes of determining
the admissibility [of an extraneous offense] under Rule 404(b).” See Robbins, 88
9
S.W.3d at 260. However, a defendant, through cross-examination,2 may raise the
issue of whether the defendant acted with the requisite criminal intent. See id. at
261.
In Robbins, the defendant suggested through cross-examination of
prosecution witnesses that the victim’s death was not the result of an intentional act
by appellant, but that the victim could have died from Sudden Infant Death
Syndrome and the bruises on the victim’s body could have been caused by
incorrectly performed CPR efforts to save her life rather than from an intentional
act by appellant. See id. at 258.
During its discussion about whether evidence of prior injuries to the infant
victim while in the defendant’s care was relevant to the element of intent, the Court
of Criminal Appeals considered it “crucial” that the defendant went beyond a
simple plea of not guilty by advancing theories that would explain the infant’s
death. See id. at 261. The Court concluded that, through vigorous crossexamination and the presentation of defensive theories, the defendant put at issue
his intent: “[W]e cannot say that the trial court would have been outside the zone
2 A defendant may also “open the door” to extraneous offenses through opening
statements. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (“Our
case law supports a decision that a defense opening statement . . . opens the door
to the admission of extraneous-offense evidence . . . to rebut the defensive theory
presented in the defense opening statement”). However, in this case, appellant
waived the right to make an opening statement.
10
of reasonable disagreement to have decided that the relationship evidence was
relevant to [defendant’s] intent.” See id.
Thus, the issue we must decide is whether appellant’s cross-examination of
the State’s witnesses “merely regurgitated” the State’s evidence or whether it went
further and contested elements of the State’s case, specifically here, the element of
intent.
Appellant was charged with sexual assault. As applied to appellant, “[a]
person commits an offense if the person intentionally or knowingly causes the
sexual organ of another person, without that person’s consent, to contact or
penetrate the mouth, anus, or sexual organ of another person, including the
actor[.]” TEX. PENAL CODE § 22.011(a)(1)(C). The State argues that the extraneous
offense evidence was admissible on the issues of accident or mistake, intent, and
consent. Specifically, the State contends that appellant’s defensive theory was that
he accidentally touched John’s penis, thereby transferring his DNA to John, when
helping John use a urinal to produce a urine sample.
Intent is a contested issue for purposes of justifying the admission of
extraneous offense evidence if the required intent for the subject offense cannot be
inferred from the act itself or if the defendant presents evidence to rebut the
inference that the required intent existed. Hudson v. State, 112 S.W.3d 794, 803
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Here, the required intent could
11
not be inferred from the mere act of touching John’s penis because the touching
must occur without John’s consent, which appellant contested.
Appellant’s cross-examination of the State’s forensic expert, Powers, raised
the issue of his intent through the following questioning:
So if somebody happened to be handling someone’s penis and that
person was having difficulty going to the bathroom, for example, and
another person was handling the penis to try and get this person to
leave a urine sample for testing within a hospital not for DNA, but for
medical reasons, they might could leave a lot of touch DNA, right?
Based on this questioning during cross-examination, the defensive theory
put forth by appellant was that, when he accidentally touched John’s penis he had
no criminal intent, but acted in accordance with John’s consent to medical
treatment. This questioning contests both John’s consent, as well as whether the
touching was accidental or intentional or with criminal intent. Put another way,
appellant did not act with the requisite criminal intent if he had John’s consent to
touch his penis as a part of John’s legitimate medical treatment. Likewise,
accidentally touching John’s penis during legitimate medical treatment would
implicate the issue of appellant’s criminal intent. See Johnston v. State, 145
S.W.3d 215, 222 (Tex. Crim. App. 2004) (noting extraneous offense evidence
admissible when “a defendant admits the conduct, but raises a defense of ‘it was an
accident,’ or ‘it was inadvertant’”); Johnson v. State, 932 S.W.2d 296, 302 (Tex.
12
App.—Austin 1996, pet. ref’d) (“Intent is most clearly in issue when the defendant
argues that the charged offense was unintentional or the result of an accident”).
To establish intent when it is contested, the State may “introduce other
transactions involving the appellant in its case-in-chief[.]” Plante v. State, 692
S.W.2d 487, 490 (Tex. Crim. App. 1985); Irvin v. State, No. 01-15-00139-CR,
2016 WL 3947085, *4 (Tex. App.—Houston [1st Dist.] July 19, 2016, pet. ref’d)
(mem. op., not designated for publication). Once a defendant’s intent to commit
the offense charged is at issue, “the relevance of an extraneous offense derives
from the doctrine of chances—the instinctive recognition of that logical process
which eliminates the element of innocent intent by multiplying instances of the
same result until it is perceived that this element cannot explain them all.” Brown
v. State, 96 S.W.3d 508, 512 (Tex. App.—Austin 2002, no pet.). The doctrine
applies when there is a similarity between the charged and extraneous offenses,
because “highly unusual events are unlikely to repeat themselves inadvertently or
by happenstance.” De La Paz, 279 S.W.3d at 347. “Modus operandi may also
encompass the ‘doctrine of chances’ theory to show lack of consent, motive, and
the manner of committing an offense.” Casey v. State, 215 S.W.3d 870, 881 (Tex.
Crim. App. 2007). “[E]vidence of a remarkably similar act might be admissible to
prove the corpus delicti (the crime itself), intent, or lack of consent under ‘the
13
doctrine of chances.’” Daggett v. State, 187 S.W.3d 444, 453 n.18 (Tex. Crim.
App. 2005).
Here, the charged offense and the extraneous offense bore remarkable
similarities. Both involved patients treated by appellant in an emergency room who
were either unresponsive or “in and out” of consciousness and both patients
testified that they awoke from unconsciousness to find appellant had placed them
in a secluded location and was performing oral sex on them without their
permission. The two events were approximately one year apart, occurred at
different hospitals at which appellant worked, and the two patients did not know
one another.
Nevertheless, appellant argues that this Court cannot consider the “doctrine
of chances” in regard to appellant’s intent because the State did not argue it at trial.
We disagree. We must affirm the trial court’s evidentiary ruling if it is correct on
any theory applicable to the ruling. Devoe v. State, 354 S.W.3d 457, 469 (Tex.
Crim. App. 2011). Indeed, we must uphold the trial court’s ruling “even if the trial
judge gave the wrong reason for the right ruling.” De La Paz, 279 S.W.3d at 344.
Because appellant placed his intent at issue with questioning suggesting an
accidental touching for purposes of legitimate medical reasons, we cannot say that
the trial court was outside the zone of reasonable disagreement in deciding that the
14
extraneous offense evidence was so similar as to be relevant on the issue of
appellant’s intent. See Robbins, 88 S.W.3d at 261.
Accordingly, we overrule the portion of issue one challenging the admission
of the extraneous offense under Texas Rule of Evidence 404(b)(2).
Rule 403
Rule 403 allows a trial court to exclude otherwise relevant evidence if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. Id. Admission of relevant evidence is favored, and we
therefore presume that relevant evidence will be more probative than prejudicial.
Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). Evidence that is
unfairly prejudicial has an undue tendency to suggest an improper basis for
reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000).
When a rule 403 objection is made, the 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 a 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
15
evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.
2006).
We have already explained the relevance of the extraneous-offense
testimony to show appellant’s intent. The similarity of the extraneous offense to
the charged offense, under the doctrine of chances, made it more likely that
appellant’s touching of John’s penis was intentional and without consent, rather
than accidental during legitimate medical treatment. The State’s need for the
testimony is apparent. Without the extraneous-offense testimony, and because
there were no eyewitnesses other than the complainant who was in-and-out of
consciousness, the State had little to counter appellant’s theory that he was
providing legitimate medical treatment by touching John’s penis. While the State
had physical evidence of appellant’s touching of John, i.e., the DNA evidence, it
had no uncontested evidence of appellant’s intent. But, with the aid of Paul’s
testimony, the State was able to show that appellant had the opportunity to abuse
appellant and that he had a history of moving unconscious or semi-conscious
patients to remote or secluded areas of the hospital to perform oral sex, all of
which was consistent with John’s description of the abuse, making appellant’s
legitimate-touching-for-a-medical-reason defense less likely. The trial court,
16
therefore, did not abuse its discretion by determining that these factors weighed in
favor of admitting the testimony.
While we understand the inherently inflammatory and indelible nature of
sexually related misconduct, see Montgomery v. State, 810 S.W.2d 372, 397 (Tex.
Crim. App. 1990) (op. on reh’g), we disagree with appellant’s assertion that, in this
case, the testimony influenced the jury in an irrational way or suggested a decision
on an improper basis. We note that the trial court included a proper limiting
instruction in the jury charge, and without evidence otherwise, we presume the jury
followed the instructions of the trial court. See Thrift v. State, 176 S.W.3d 221, 224
(Tex. Crim. App. 2005). Indeed, in closing argument, the prosecutor emphasized to
the jury the limited purpose for which it could consider the extraneous offense.
And, there is nothing in the record to suggest that the jury was not equipped to
properly evaluate the probative value of the evidence. We, therefore, view these
factors as also weighing in favor of admitting the testimony.
Paul, the extraneous-offense witness, was just one of twelve witnesses
brought by the State. There are four volumes of reporter’s record from the State’s
case-in-chief, and Paul’s testimony constituted just 18 pages. Of that 18 pages,
only 13 pages are discussing the event that occurred between appellant and Paul at
the hospital. As such, Paul’s testimony did not take an inordinate amount of time
17
or confuse or distract the jury from the main issues of the case. These factors also
weigh in favor of admitting the testimony.
Accordingly, we hold that the trial court acted within its discretion by
overruling appellant’s Rule 403 objection to Paul’s testimony.
Having overruled both appellant’s Rule 404(b) and 403 objections, we also
overrule issue one in its entirety.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: