## NO. 12

- 19

- 00314

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

RAUL LOPEZ , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM TH E 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINI ON Raul Lopez appeals his conviction fo r continuous sexual abuse of a child. Appellant
raises two issue s on appeal. We affirm.

B ACKGROUND Appellant is the victim ’ s uncle. Accordi ng to the victim, Appellant first touched her in a
sexual manner while they s at in his vehicle when she was appro ximately in the fifth grade

. T he
sexual abuse escalated a few months later into penetration of her sexual organ

. These acts continued to occu r once or twice a week throughout her fifth and sixth grade year

. At th e time, Appellant resided at his girlfrie nd ’ s apartment , while the victim resided with her grandparents , along with her aunt and uncle and their nine children in a small home

. 1 Appell ant ceased his relationship with his girlfriend , and after living alone or with his child for a period of time, h e moved into the same home where the victim resided during her seventh grade year prior to her fourteenth birthday

. Because of the home ’ s smal l size and the large number of people living there , Appellant and the vi ctim shared sleeping quarters in the livi ng room , where the victim slept on a bed while Appellant slept on the sofa. O nce Appellant moved into the home, he continue d to commi t various acts of sexual abuse on a near nightly basis

. Furthermore ,

1 The victim’s aunt a nd uncle eventually had a tenth child, who also resided at the home.2 numerous acts of abuse occurred in Appellant ’ s vehic le throughout this time period. These acts continued until two weeks prior to the victim ’ s outcry when she was sixteen years old

. According t o the victim, Appellant also forced her to consume a “Plan B” pill and drink an
herbal tea formulated to abort an y possible pregnancy

. W hen the victim was in high school, she eventually disclosed the abuse to her boyfriend

. Her boyfriend told his mother, who is also the victim ’ s employer. Her boyfriend ’ s mother

no tified the authorities

. A forensic interviewer at t he Children ’ s Advocacy Center subsequently
interviewed the victim , who described the abuse. The victim told the interviewer that after the
abu se began, Appellant required her to perform sexual acts or alternatively send him nude photos of her in exchange for gifts he purchased for her

. The victim told the interviewer that she sent the photos to Appellant on an iPad that he purchased for her bec ause this would temporarily
relie ve her of having to perform physical sexual acts with Appellant. During the cou rse of the investigation, Appellant learned that the victim disclosed the nature of the abuse, and the victim later explained that he struck he r in the face and threatened to “ end” her, as well as threatened to kill her boyfriend and “take his head off.”
B ased on the information gathered in the forensic interview, t he police interviewed Appellant, who after initially denying any wrongdoing, ultim ately admitted that he had sex wi th
the victim on one occasion after she allegedly seduced him

. He also consente d to a search of his cell phone, which revealed nude photographs of the victim. The search of the phone also revealed messages Appellant sent to the victim such as “ Why don ’ t you love me anymore,” and
“You are what I want.”
Based on this info rmation, the authorities later obtained a warrant and went to arrest Appellant , who spoke only Spanish

. When the police arrest ed Appellant, an officer pres ent to translate in to Spanish t he execution of the warrant told Appellant that they were there to ar rest him for sexual assault of a child. The officer later explained at the ensuing trial that there is no
direct translation for “ sexual assau lt ” in Spanis h , and that the wor d or phrase used is more akin to

a n assaul t through physical violence such as str ikes. The officer stated that Appellant replied in Spanish that he did not assault anyone, and that the sexual relationship was “consensual.” Furthermore, the officer asked Appellant, “Didn ’ t you know she was underage?” Appellant replied, “Yes

. ”3 Appella nt was indicted for continuous sexual abuse of a child. Appellant pleaded “not guilty” to the offense and the matter proceeded to a jury trial

. The court ’ s charge included n ot only the offense of continuous sexual abuse of a child, but also the lesser in cluded offense of aggravated sexual assault of a child. The jury ultimately found Appellant guilty of the
continuous sexual abuse of a child o ffense and se ntenced him to imprisonment for life. This appeal followed.

S UFFICIENCY OF THE E VIDENCE In his fi rst issue, Appellant argues that the evidence is insufficient to support the verdict due to conflicting evi dence regarding the victim ’ s veracit y

. Standard o f Review An appellate court reviews a challenge to the sufficiency of the evidence under the
standar d of review set forth in Jackson v. Virginia

. 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State , 323 S.W.3d 89 3, 912 (Tex. Crim. App . 2010). A challenge to the sufficiency of the evidence requires the reviewing court to co nsider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could
have found all the element s of the offe nse beyon d a reasonable doubt. Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Brooks , 323 S.W.3d at 8 95. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, and the reconciliation of conflicts in
the evide nce. Whitaker v. State , 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). “When the record supp orts conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the prosecution and therefore defer to that det ermination.” Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence a re treated equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,
and circumstantial evidence alon e can be sufficient to establish guilt. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
T he sufficiency of the evid ence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State , 953 S.W.2d 23 4, 240 (Tex. Crim. App. 1997). A “hypothetically correct” jury charge is “one that accurately sets o ut the law, is
authorized by the indictment, does not unnecessarily increase the State ’ s burden of proof or4 unnecessarily restrict the State ’ s theories of l iability, and adequately describes the particular
offense for which the defendant was tried.” Id.
A pplicable Law
To establish the offense of continuous sexual abuse of a child, the State must prove that
the defendant , during a period of time thirty or mor e days in duration, committed at least two acts of sexual abuse against a child younger than fourtee n years of age, while he w as at least seventeen years of age at the time of each of the acts. See T EX

. P ENAL C ODE A NN

. § 21.02(b) (West 2019 ). In relevant part, a n “act of sexual abuse” is defined as including an act that
constitutes the offense of indec ency with a child by conta ct , sexual assault, and aggravated
sexual assault

. Id. § 21.02(c)( 2 )

- (4) ; see id. § 2 1 .11(a)( 1), (c) (West 2019 ) (de fining acts t hat constitute indecency with a child by contact , including touching the genitals of a child ); see i d. §
22.011 (a)(2)(A) (West Supp. 2020 ) (defining acts that constitute sexual assault of a child , including causing penetration of child ’ s sexua l organ by an y means); see id. § 22.021(a)(1)(B) (i) , (a) (2)(B) (West 2019 ) (enumerating acts that constitute offe nse of aggr avated sexual assault of a
child , including causing penetration of child ’ s sexual organ under the age of fourteen ). The State
need not prove the exact dates of the abuse, only that “there were two or more acts of sexual
abuse that occurred duri ng a period that was thirty or more days in duration.” Brown v. State , 381 S.W.3d 565, 574 (Tex. App.

— Eastland 2012, no pet.); Lane v. State , 357 S.W.3d 77 0, 773

– 74 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref ’ d) (stating that factfinder is not required to
agree o n exact dates that acts of sexual abuse were committed).
Discussion At the outset, we note that the victim testified unequivocally t hat Appellant committed
the offense of continuous sexual abuse of a chil d. Specifically, she testified that Appe llant
committed numerous aggravated sexual assaults, sexual assaults, and indecency with a child by

contact offenses that took place over a per iod of thirty or more days when she was younger than fourteen years of age and Appellant was at least sevente en y ears of age. The testimony of a child victim, standing alone, is sufficient to support a conviction for continuous sexual abuse of a
child. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.07 (West Supp. 2019) ; see also Garner v. State , 523 S.W.3d 266, 271 (Te x. A pp.

— Dallas 2017, no pet.). Appellant nevertheless contends that the evidence conflicts regarding the victim ’ s veracity. As part of this argume nt, Appellant points to testimony that the victim ’ s famil y did not5 believe her concerning the allegations she mad e against Appellant. Specifically, the victim ’ s

a

unt, who is also Appellant ’ s sister, testified that the victim fabricated the abuse. She tes tified
that t he home ’ s size, when coupled with the large number of people living there, shows that Appellant and the victim could not have engaged in repeated sexual acts without someone overhearing it. However, e ven with all the other people in the home, only Appella nt and t he victim slept in the living room. The victim explained that Appellant waited until the fa mily was asleep and that he shut a door in the living room so that no one would hear them. Furthermore,

on cross
- examination, the victim ’ s aun t admitted th at she a nd her husband conceived three
children in the same home during this period and that the res t of the family would not have heard
them have sexual intercourse because th e y were asleep. Additionally , the victim testified that many of th e acts occurr ed in Ap pellant ’ s vehicle “over and over” throughout the relevant time period.
The victim ’ s aunt al so testified that the victim told her ten time s that she falsified the allegations so that she could obtain legal documents that would allow he r to remain i n the

co untry

. The victim repeatedly denied that she fabricated the allegations or that anyone told her
that she woul d improve her immigration status by coming forward with the allegation s. The victim explained, and her aunt acknowledged, th at the victim had applied for and obtained Deferred Action for Childhood Arrivals (DACA) status prior to and inde pendent of her outcry , meaning that she w ould not be removed or deported from the country

. Moreover, e ven though
the victim ’ s aunt testified t hat she did n ot believe the victim and that she believed the victim
falsifie d the allegations to obtain legal res idency status , she admitted that Appellant confessed to her in the hallway during a recess a t trial that he had sex with the victim. In any ev ent, the
cred ibility of the witnesses and the conflicts in the testimony between the victim and her aunt
were for the jury to resolve

. See Hooper , 214 S.W.3d at 13. Furthermore, a child ’ s outcry testimony , even if contradicted by other evidence or witnes ses at trial, retains probative value
sufficient to prove the offense. See Bargas v. State , 252 S.W.3d 876, 888 (Tex. App.

— Houston [14th Dist.] 2008, no pet.)

. Finally, Appellant admitted that he had sex with the victim, albeit on only one occasion.
Howe ver, he also admitted to the translating officer during his arrest that he did not assault anyone, and that the r elationship was consensual. Appellant also possessed nude photographs of
the victim on his phone, just as the victim had explained in her fore nsic intervie w. In light of all6 the circumstances, it was reasonable for the jury to conclude that the sexual ab use occurred more
than once to satisfy the statutory requirements for continuous sex ual abuse of a child

. See T EX

. P ENAL C ODE A NN

. § 21.02 (de scribing stat utory requirements to satisfy conviction for continuous sexual abuse of a child). Accordingly, base d on this record, we hold that a r ational jury could have found beyond a reasonable doubt that Appellant committed the offense of
continuous se xual abuse of a child. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Brooks , 323
S.W.3d at 895. Appellant ’ s first issue is overruled.

E XCLUSION OF T ESTIMONY In his second issue, Appellant contends that the trial court abused its discretion when it

e xcluded evide nce regarding her motive for fabricating the accusations, namely, to achieve
l awful immigration stat us. Standard of Review and Applicable Law
We revi ew trial court decisions admitting or excluding evidence for an abuse of discretion, and und er this stand ard the trial court ’ s decision admitting or excluding evidence will be upheld so long as it is withi n the “zone of reasonable disagreement.” Beham v. State , 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).
Texas Rule of Evidence 401 provides that evidence is r elevant if it has any tendency to make a fact more or less probable than it would be without the evi dence. T EX

. R. E VID

. 401. “Generally, all relevant evidence is admissible.” Layton v. State , 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); T EX

. R. E VID

. 40 2. When determining whether evidence is relevant, it is important for courts to examine the purpose for which the evidence is being introduced. Layton , 280 S.W.3d at 240. “It is critical that there is a direct or logical connection between the actual

ev idence and the proposition sought to be proved.” Id.
Texas Rule of Evidence 403 provides that “[t]h e court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
unfair pr ejudice , conf using the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence .” T EX

. R. E VID

. 403 ; Gonzalez v . State , 544 S.W.3d 363, 372 (Tex. Crim. App. 2018). “The probative force of evidence refers to how strongly it s erves to make the existence of a fact of consequence more or less probable.” Id.7 Relevant evidence is presumed t o be more probative than prej udicial. Santellan v. State , 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State , 420 S.W.3d 807, 811 (Tex. Crim. App. 2013)

. Rule 403 does not exclude all prejudicial evidence; instead, it focuses on the danger of “unfair” prejudice. State v. Mechler , 153 S.W.3d 435, 440 (Tex. Crim. A pp. 2005). Evidence is unfairly prejudicial if it has the capacity to lure the factfinder into decl aring guilt on a ground other than proof specific to the offense charged. Manning v. State , 114 S.W.3d 922, 928 (Tex. Crim. App. 2003). The t rial judge ha s substantial discretion in balancing probative value and unfair prejudice. See Powell v. Stat e , 18 9 S.W.3d 285, 288 (Tex. Crim. App. 2006).
A R ule 403 balancing test includes, but is not limited to, the following factors: (1) the probative v alue of the e vidence; (2) the potential to impress the jury in some irrational, yet
indelible way; (3) the t ime n eeded to develop the evidence; and (4) the proponent ’ s need for the
evidence. Hernandez v. State , 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). A R ule 403

a nalysis may also consider whether there is any tendency of the evidence to confuse or distract the j ury from the main issues as well as any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative for ce of the evidence.
See Gigliobianco v. State , 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “ [T] hes e factors may well blend together in practice.” Id. at 641

- 42.
We review nonconstitutional error to determine whether it affected the defendan t ’ s substanti al rights. T EX

. R. A PP

. P. 44.2(b); Johnson v. State , 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). An er ror affects a substantial right if it had a substantial and injurious effect or influence
on the verdict. King v. State , 953 S.W.2d 266, 271 ( Tex. Crim. Ap p. 1997). A nonconstitutional error that does not affect substantial rights must be disregard ed. T EX

. R. A PP

. P. 44.2(b).
Discussion
In Tyler Police Department Detective Judson Moore ’ s investigative report, he wrote that
he asked the victim whether she was told by anyone that she could receive her immigration papers in exchange for coming forward with the allegations against Appellant. She smiled and nodded her head in response. Detective Moore noted in his report that this response initia lly
concerned him. After a hearing outside the jury ’ s presence, the trial court excluded this
eviden ce. Appella nt argues that the trial court abused its discretion in this regard.8 Detective Moore testified at the hearing that he did not know what the vi ctim was
thin king in response to this question

. Rather, he stated that he needed to further investig ate , and
eit her confirm or dispel his concern and determine whether the victim ’ s allegations were
credible. At the hearing, Detective Moore explained that any brief co ncern he may have had was quickly dispelled upon completing his investigation. Therefor e, the exclu ded evidence, considered in its entirety, would not support the proposition that he now argues

— that Detective
Moore remained concerned that the victim lied to improve her immigration status

. Instead, the actual evidence led to the opposite con clusion

— that the victim delayed her disclosure of the abuse because she feared being deported if she made an outcry, which is what her family and Appellant repeatedly t old her. Therefore, the probative value of the evidence and Appellant ’ s need for it is slight, espe cially when considered in its proper context.
Furthermore , even if the trial court should have admitted the evidence , Appellant was not
harmed by its exclus ion

. First, it is undisputed that the victim ’ s DACA status prevents her
removal from the country ir respective of her cooperation in this criminal investigation. Second, Appellant ’ s counsel questioned the victim extensively concerning her mot ive to fabric ate the allegations in order to obtain her lawful residency in the country. The jury also heard evi dence
from the victim ’ s aunt, who testified that neither she nor the rest of her family believed the
victim ’ s allegation s , and that they though t she fabrica ted the allegations in order to improve her immigration status. When the trial co urt excludes evide nce, and substantially the same or similar
evidence i s admitted elsewhere, any error is harmless. See Mosley v. State , 983 S.W.2d 249, 258 (Te x. Crim. App. 1998) (op. on reh ’ g) (explaining that harm from the erroneous exclusion of evidence may be mitigate d by the admission of similar evidence). T he trial court likewise allowed defense counsel to argue to the jury that the victim fabricated the allegations i n order to
obtain the lawful status to remain in the country. Finally, Appe llant wanted to offer th e evidence to show that the victim falsified the allegations

. Yet defense counsel also argued to the jury, due
to his admission of a single in stance of sex ual intercourse , that he i s at most guilty of aggravated
sexual assault of a child, not continuous s exual abuse of a child. Appellant therefore acknowledges with this jury argument that the allegations are not totally fabricated. Accordingly , we hold tha t the trial court did not abuse its discretion in excluding the evidenc e. A ppellant ’ s second issue is overruled.9 D ISPOSITION Having overruled both of Appellant ’ s issues, we affirm the trial court ’ s judgment.

B RIAN H OYLE Justice
Opinion d elivered Octo ber 21, 2020. Panel consisted of Worthen, C.J., Hoyle, J., and Ne eley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTO BER 21 , 2020

NO. 12

- 19

- 00314

- CR

RAUL LOPEZ , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114

- 1583

- 18 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same bei ng considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED an d DECREED that the judgment of
the cou rt below be in all things affirmed , and that this decision be certified to the c ourt below
fo r observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.