In th e sa m e trial, appellant wa s also convicted of the sexual assa ult of hi s grandd aughter. T hat convictio n is also af f irm ed 1 this sam e day

in Cause No. 11 -07 -00 38 1-CR. Opinion filed Jan uary21 , 2 010



### In The 

# Eleven th Court of Appeals

___________ 

### No. 1 1- 07 -0 03 82 -CR

____ ____ __ ISAB EL ES PIN OZ A, Ap pellant

V. STATE OF TEXAS , Appellee

On App eal from the 106th Distric t 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 Th e jur y c on vic te d I sa

be l Es pin oza of the a g g ra vate d se xua l a ssa

ult of his e le ve n- y e a r- old ste p- g ra nd so n a nd a sse sse d h is p un ish me nt at c on fi ne me nt f or fo rt y y e ars . We a ff

ir m. 1 There is no challeng e to the s ufficie ncy of t he evidence. The victim testified that, whe n he

wa s i n the fifth g rade , appellant would touch him “in a rea s that [he didn’t] like to be touched.” Appellant would touch b o t h t h e victim’s penis and his “butt.” When the vic tim was awake, he2

would try to move awa

y . Sometimes when the victim was asle ep, appe llant would start “doing stuff” to h im. Ap pe lla

nt w ou ld put his fi ng e r “[s ]lig htl y ” int o th e vic tim ’s anu s o r g ra b th e vic tim ’s pe nis , move it toward a

ppellant, and move his ha nd in a bac k and for

th motion. On Hallowee n, appellant pla c e d h is p e nis “ [s]lig htl y ” ins ide the vic tim ’s anu s. Th e vic tima lso te sti fi e d th a t a pp e lla nt w ou ld show his penis to the victim and make the vic tim “fee l around it” with the victim’s hand. I n his sole issue on appea l, appellant conte nds that the trial cour t erre d in admitting the testimony of his nephew

(one of the State’s re buttal witnesses) that appe llant had sexually assaulted him . App e lla

nt a rgue s th a t e vid e nc e of thi s e xtra ne ou s of fe ns e wa s no t re le va

nt t o th e pr e se nt c a se and wa s too remote and that the issues of hi s identity and intent wer e not in issue. Be cause appellant testified that he never

sexually assaulted the vic tim and beca use his defe nse at trial wa s that the victim had a motive to fabri cate the assault base d on the victim’s dislike of appellant’ s son (the victim’s stepfathe r), a

ppellant ar g ues that the trial c ourt abused its discre tion in admitt ing the testimony

. Appellant testified in his own beha lf and a fter ha ving be en fully

admon i s h ed as t o the conseque nces. A

ppellant denied sexually assaulting not only the victim but also his gr anddaug hter. Appellant testified that he “used to drink a lot” and th at h e had a “ few ” DWI s from whe n he wa s y oung er . A p p e ll an t f

u rth e r s tate d th a t, a t l e a s t t o h is k

n o w le d g e , h e d id

n o t t h in k h e h a d b e en
c on vic te d o f a

fe lony . H e e xpla ine d th a t he ha d tu rn e d h ims e lf

in b e c a us e he ha d h e ard

tha t a po lic e man w a s lo ok ingfo r h im. On c ro ss- e xami natio n, the State qu e sti on e d a pp e lla nt a bo ut h is p ri or

DWI s a nd a sk e d h im if he remember ed “smacking around Joe Salas with a lug wre nch, woundinghim.” When appellant state d th a t he did

no t kn owJoe, the State sh owe d a pp e lla nt a c op y of the 19 66 Da

ws on County ju d gm en t co n v icting him in Cause No. 7930 of the ag g ravated assault of Joe Salas with a lug

wre nch. Appe llant expl ained that, while he was the same person convicted of the offe nse in the 1966 judgme nt, he neve r hit the man and that he was not guilty even though he had ente red a g uilty plea. Ap pe lla nt s ta te d th a t, i n 1 96 6, he ha d tu rn e d him se lf in b e c a

us e the a uth or iti e s w e re loo kin g fo r h im. He a lso stated that he did not know if he ha d been c onvicted of the crime. The State then questioned appellant conce rning the offe nses that appellant wa s prese ntly on trial for a

nd asked if he reme mbere d threatening or touching eit h er victim. W hen appe llant3

con ti n u a ll y d e n ie d to u c h in g o r thr e a te n in g e it h e r v ic ti m, th e St a te a s k e d if h e r e me mbe red a n
oc c a sio n b a c k in 19 74 wh e n he ha d se xua lly a ssa ult e d his ne ph e w. Ap pe lla nt’ s c ouns e l im me diate ly

o b j e c t e d , an d

t h e t r i a l c o u rtc o n d

u c t e d a h e ar i n g o u t s i d e t h e p r e s e n c e o f t h e j u r y. At the he ari ng , th e ne ph e w t e sti fi e d c on c e rn ingina pp ro pr ia te se xua l touc hin g by a pp e lla nt. Counsel for appe llant cross-e x amined him. The trial c ourt explained its balancing of the probative

va lue wi th t

he pr e jud ic ia l e ff

e c t of the te stimo ny and

c on c lud e d th a t th e e vid e nc e wa s a dmi ssi ble to rebut appe llant’s defe nsive theory that both victi m s h ad fabricated the ir ac cusations and wa s rele vant and pr obative to a mate rial issue other than appellant’ s char acte r. The trial court noted that defe nse counse l had questioned the voir dir e pane l ext ensively conce rning children f

abric ating stories. The trial court limit ed the admission of the testimony to the State’s re buttal evidence and stated that a limiting instruction would be g iven. When cross-e x amination of appe llant continued in t he pres ence of

the jur y , a pp e lla nt d e nie d s e xua lly

a ssa ult ingany

c hil d. Ap pe lla

nt w e nt o n to
e xpla in t hat hi s st e p- g ra

nd so n w ou ld n ot o be y

him

. On re direc t, appellant testified that he had not bee n arr ested or a ccuse d of “a ny crime” since 19 90 and that he did

no t r e me mbe r a

ny arr e sts or a c c us a tio ns fr om t

he 19 80 s. On

re c ro ss, the State asked a ppellant if he r emember ed his 1986 and 1988 c onv i ct ions. He also stated that he did not

reme mber be ing pla ced in jail two y ear s prior to this trial a nd that he was having a “little bit of a ba d time rec ollecting ” since he had ha d a stroke w hile he was in the jail in Br ownfield. His trial counsel then had appellant ex plain his various medica l problems, including impotenc e, hig h blood pressure , and a hiatal hernia

. After appellant r ested his case, t he S tate called t hree rebuttal witnesses including a ppellant’s nephew . Appellant’s ne phew testified that, when he w as a c hild, he woul d p l ay wi th appellant’s

c hil dr e n at a

pp e lla nt’ s h ome . Whe n he wa s aro un d te n y e ars old , a pp e lla nt b e g an to uc hin g him . H is

ne ph e w s t a t e d

t h a th e w o k e u

p w h e na p p e l l an tw a s r

u b b i n g h i s p e n i s . A p p e l l an tw o u l d e xp os e h i m s el f an d m ak e hi s n ep h ew t o u ch h i m . Hi s n ep h ew s t at ed t h at h e wa s s ca re d wh en t h es e t h i n gs happene d. The fir st t i m e, his nephew c ried, a nd appellant told him to be quiet and not wake up
a pp e lla nt’ s w if e . Th e se c on d tim e , a

pp e lla nt c ov e re d his ne ph e w’ s mouth and thr e a te ne d to hurt his

n ep h ew ’s p ar en t s . T h e t h i rdt i m e, ap p el l an to ff er edh i s n ep h ew m o n e y

n o tt o s ay

an y t h i n g. Appellant’s ne phew testified that he did not g o back to appellant’ s home af ter the third time and that he blo c ke d o ut a

ny me mor y of the inc ide nc e s f

or y e ars .4

T EX
. R. E V ID . 404(b) pr ovides that evidenc e of extraneous offe nses are admissible only for purposes other than t o prove that a person acte d in conformity to his chara cter

. Mo se

s v . S tat e , 105 S.W. 3d 62 2, 62 6 ( Te x. Cr im. App. 20 03 ); Mo ntogo me ry v . S tat e , 8 1 0 S. W. 2 d

3 7 2 , 3 8 7

- 8 8 ( T e x. Cr im. Ap p. 19 91 ). Un de r R ule 40 4( b) , s uc h p ur

po se s in c lud e mot ive, o pp ortuni ty , in te nt, prepa ration, plan, knowle dg e, i d en t ity , or abse nce of mistake or ac cident. The Texas Court of Criminal Appeals has found that extraneous offenses are admissi ble t o rebut a defe nsive theory

of fabr ication or re taliation. Moses , 1 05 S.W. 3d a t 62 7; W he e le r v . S

tat e , 6 7 S. W. 3 d 8 7 9 , 8 8 7

- 8 8 ( T e x. Crim. App. 2002). The trial c ourt’s dec ision to admit evidenc e of an extraneous of fense will not be disturbed on appea l absent an a

buse of discr etion. Moses , 1 05 S.W. 3d a t 62 7; Mo ntgom e ry , 810 S.W .2d at 391. The a ppellate c ourt is prohibited from conducting a de novo revie w of the record to make its own independe nt determination of the a dmissibi lity of the e vidence

. Id

. There fore , as long as the trial court’s r uling is within the zone of re asonable ness, the appe llate cour t will affirm. Id. We disag ree with appellant that the tria l court abuse d its discretion. We c annot say that the

ru lin g to a llo w the ne ph e w’ s te sti mony wa s ou tsi de the zon e of

re a so na ble ne ss. Ap pe lla

nt’ s d e fe ns e was that bo th

victims were f

abric ating their ac cusations. We also disag ree with appellant’s a rg ument that any remotene ss of the extraneous off ense a utomatically

makes the testimony

irrele vant under T EX
. R. E V ID . 401. Appellant’s sole issue is over ruled. The judg ment of the trial c ourt is affir med.

PER C URI AM

J anuar y 21, 2010 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.