In the same trial, appellant was also convicted of the sexual assault of his granddaughter. That conviction is also affirmed 1

this same day in Cause No. 11-07-00381-CR.

Opinion filed January 21, 2010

In The

Eleventh Court of Appeals

___________

No. 11-07-00382-CR

__________

 ISABEL ESPINOZA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

 Dawson County, Texas

Trial Court Cause No. 06-6494

M E M O R A N D U M O P I N I O N

The jury convicted Isabel Espinoza of the aggravated sexual assault of his eleven-year-old

step-grandson and assessed his punishment at confinement for forty years. We affirm. 1

There is no challenge to the sufficiency of the evidence. The victim testified that, when he

was in the fifth grade, appellant would touch him “in areas that [he didn’t] like to be touched.”

Appellant would touch both the victim’s penis and his “butt.” When the victim was awake, he
2

would try to move away. Sometimes when the victim was asleep, appellant would start “doing stuff”

to him. Appellant would put hisfinger “[s]lightly” into the victim’s anus or grab the victim’s penis,

move it toward appellant, and move his hand in a back and forth motion. On Halloween, appellant

placed his penis “[s]lightly” inside the victim’s anus. The victim also testified that appellant would

show his penis to the victim and make the victim “feel around it” with the victim’s hand.

In his sole issue on appeal, appellant contends that the trial court erred in admitting the

testimony of his nephew (one of the State’s rebuttal witnesses) that appellant had sexually assaulted

him. Appellant argues that evidence of this extraneous offense was not relevant to the present case

and was too remote and that the issues of his identity and intent were not in issue. Because appellant

testified that he never sexually assaulted the victim and because his defense at trial was that the

victim had a motive to fabricate the assault based on the victim’s dislike of appellant’s son (the

victim’s stepfather), appellant argues that the trial court abused its discretion in admitting the

testimony. 

Appellant testified in his own behalf and after having been fully admonished as to the

consequences. Appellant denied sexually assaulting not only the victim but also his granddaughter.

Appellant testified that he “used to drink a lot” and that he had a “few” DWIs from when he was

younger. Appellant further stated that, at least to his knowledge, he did not think he had been

convicted of a felony. He explained that he had turned himself in because he had heard that a

policeman was looking for him.

On cross-examination, the State questioned appellant about his prior DWIs and asked him

if he remembered “smacking around Joe Salas with a lug wrench, wounding him.” When appellant

stated that he did not know Joe, the State showed appellant a copy of the 1966 Dawson County

judgment convicting him in Cause No. 7930 of the aggravated assault of Joe Salas with a lug

wrench. Appellant explained that, while he was the same person convicted of the offense in the 1966

judgment, he never hit the man and that he was not guilty even though he had entered a guilty plea.

Appellant stated that, in 1966, he had turned himselfin because the authorities were looking for him.

He also stated that he did not know if he had been convicted of the crime.

The State then questioned appellant concerning the offenses that appellant was presently on

trial for and asked if he remembered threatening or touching either victim. When appellant
3

continually denied touching or threatening either victim, the State asked if he remembered an

occasion back in 1974 when he had sexuallyassaulted his nephew. Appellant’s counsel immediately

objected, and the trial court conducted a hearing outside the presence of the jury.

At the hearing, the nephew testified concerning inappropriate sexual touching by appellant.

Counsel for appellant cross-examined him. The trial court explained its balancing of the probative

value with the prejudicial effect of the testimony and concluded that the evidence was admissible

to rebut appellant’s defensive theory that both victims had fabricated their accusations and was

relevant and probative to a material issue other than appellant’s character. The trial court noted that

defense counsel had questioned the voir dire panel extensively concerning children fabricating

stories. The trial court limited the admission of the testimony to the State’s rebuttal evidence and

stated that a limiting instruction would be given. When cross-examination of appellant continued

in the presence of the jury, appellant denied sexually assaulting any child. Appellant went on to

explain that his step-grandson would not obey him.

On redirect, appellant testified that he had not been arrested or accused of “any crime” since

1990 and that he did not remember any arrests or accusations from the 1980s. On recross, the State

asked appellant if he remembered his 1986 and 1988 convictions. He also stated that he did not

remember being placed in jail two years prior to this trial and that he was having a “little bit of a bad

time recollecting” since he had had a stroke while he was in the jail in Brownfield. His trial counsel

then had appellant explain his various medical problems, including impotence, high blood pressure,

and a hiatal hernia.

After appellant rested his case, the State called three rebuttal witnesses including appellant’s

nephew. Appellant’s nephew testified that, when he was a child, he would play with appellant’s

children at appellant’s home. When he was around ten years old, appellant began touching him. His

nephew stated that he woke up when appellant was rubbing his penis. Appellant would expose

himself and make his nephew touch him. His nephew stated that he was scared when these things

happened. The first time, his nephew cried, and appellant told him to be quiet and not wake up

appellant’s wife. The second time, appellant covered his nephew’s mouth and threatened to hurt his

nephew’s parents. The third time, appellant offered his nephew money not to say anything.

Appellant’s nephew testified that he did not go back to appellant’s home after the third time and that

he blocked out any memory of the incidences for years.
4

TEX. R. EVID. 404(b) provides that evidence of extraneous offenses are admissible only for

purposes other than to prove that a person acted in conformity to his character. Moses v. State, 105

S.W.3d 622, 626 (Tex. Crim. App. 2003); Montogomery v. State, 810 S.W.2d 372, 387-88 (Tex.

Crim. App. 1991). Under Rule 404(b), such purposes include motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. The Texas Court of

Criminal Appeals has found that extraneous offenses are admissible to rebut a defensive theory of

fabrication or retaliation. Moses, 105 S.W.3d at 627; Wheeler v. State, 67 S.W.3d 879, 887-88 (Tex.

Crim. App. 2002).

The trial court’s decision to admit evidence of an extraneous offense will not be disturbed

on appeal absent an abuse of discretion. Moses, 105 S.W.3d at 627; Montgomery, 810 S.W.2d at 391.

The appellate court is prohibited from conducting a de novo review of the record to make its own

independent determination of the admissibility of the evidence. Id. Therefore, as long as the trial

court’s ruling is within the zone of reasonableness, the appellate court will affirm. Id.

We disagree with appellant that the trial court abused its discretion. We cannot say that the

ruling to allow the nephew’s testimony was outside the zone of reasonableness. Appellant’s defense

was that both victims were fabricating their accusations. We also disagree with appellant’s argument

that any remoteness of the extraneous offense automatically makes the testimony irrelevant under

TEX. R. EVID. 401. Appellant’s sole issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

January 21, 2010

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.