## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 15

- 00065

- CR

NO. 02

- 15

- 00066

- CR

NO. 02

- 15

- 00067

- CR

NO. 02

- 15

- 00068

- CR

PABLO GONZALES, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 90TH DISTRI CT COURT OF YOUNG C OUNTY

TRIAL COURT NO S . 08792, 08793, 0879 6, 08794

----------



### OPINION

----------

A jury convicted Appellant Pablo Gonzales, Jr. of one count of aggravated

sexual assault of a child and three counts of indecency with a child, charged in

four separate indictm ents. The jury assessed his punishment at life

imprisonment in the sexual assault case, twenty years’ imprisonment in each of

the indecency cases, and a $10,000 fine in each case. The trial court sentenced2 him accordingly. Appellant brings four issues o n appeal. He does not contest

the sufficiency of the evidence supporting his guilt. Instead, he challenges the

admission of outcry testimony, evidence that he did not waive extradition, and

evidence of extraneous sexual offenses. Because the trial court committed no

reversible error, we affirm the trial court’s judgment s

.

Summary of the Facts

Because of the confusing nature of this record, we adopt the State’s

summary of the relationships of the witnesses and the pseudonyms assigned to

the complainants i n these four cases:

• Amanda

. . . , Appellant’s niece who lived with him at the time of

the abuse [;]

•

. . .

• Jane Doe A, Complainant [in] Cause No. 08792, Jane Doe B’s

sister, and cousin to Jane Does C and E [;]

• Jane Doe B, Complainant [in] Cause No. 0 8794, Jane Doe A’s

sister, and cousin to Jane Does C and E [;]

• T.P., Jane Doe A’s and B’s mother ;

• Jane Doe C, Complainant [in] Cause No. 08793, Jane Doe E’s

sister, and cousin [] to Jane Does A and B [;]

• Jane Doe E, Complainant [in] Cause No. 08796, Jan e Doe C’s

sister, and cousin [] to Jane Does A and B [;]

• J.P., Jane Doe C and E’s mother and T.P.’s ex

- sister

- in

- law [; and]

• T.H., complainant in extraneous offense admitted at trial [.]

Appellant lived in a two

- bedroom house in which drug use was rampant.

People would come and go on a regular basis, often leaving their children for3 him to watch. Jane Doe children A, B, C, and E made outcries that Appellant

had sexually abused them. The grand jury returned four separate indictments

against Appellant in 2 005, alleging that he had committed aggravated sexual

assault against one child (Jane Doe C) and indecency with a child by sexual

contact with three other children (Jane Does A, B, and E) when the children

stayed in or visited his hom e in 2004 and 2005. A ppellant left Texas after the

Jane Doe children made outcries. He was finally arrested in California in 2012.

He did not waive extradition to Texas.

Appellant’s adult niece Amanda, who lived with Appellant at the time of

the alleged abuse, testified that Jane Doe D, who was then ten years old, also

lived in the house with Appellant. When Amanda moved in, Jane Doe D was

staying with Appellant in hi s bedroom, which had one bed. Amanda testified that

Jane Does A, B, C, and E, T.P., and T.H.’s father would al so come to

Appellant’s house. Amanda testified that she took Jane Doe D with her when

she moved out of Appellant’s house. Amanda also testified that later, when

Jane Doe D learned that Amanda planned to take her to Appellant’s house so

that he could ba bysit her for Amanda, Jane Doe D reacted hysterically and

refused to go. Jane Doe D was murdere d prior to Appellant’s trial.

Jane Doe C testified that she had witnessed Appellant abusing Jane Doe

A and that Appellant had abused her at the same time as Jan e Does A and D on

multiple occasions. She described how Appellant had sexually assaulted her by

rubbing her vaginal area and penetrating her vagina with two of his fingers. Jane4 Doe E described how Appellant had abused her by rubbing her genital area

thr ough her underwear and testified that she was eight years old when the abuse

occurred. Jane Doe A testified that Appellant had touched her in her vaginal

area a number of times

, both under and over her clothes. Jane Doe B testified

that Appellant touched her vaginal area under her clothes.

Midtrial, the trial court conducted an article 38.072 outcry hearing during

which the State offered T.P. as an outcry witness for Jane Does A and B. T.P.

testified that she was the mother of Jane Does A and B and that she had spent a

lot of time at Appellant’s house doing drugs with him during the period of the

abuse. She remembered Jane Doe A’s outcry but was generally fuzzy on other

events in the past. T.P. testified that Jane Doe A had told her that Appellant had

b oth touched and penetrated her genitals with his fingers. T.P. immediately took

her two daughters to the police department and lodged a criminal report. She

also took them to the advoc acy center to be interviewed. It was uncontested that

Appellant recei ved proper notice of the State’s intent to call T.P. as an outcry

witness. The trial court found the outcry testimony reliable as to Jane Doe A but

not as to Jane Doe B. Again, all four Jane Does named in the indictments

testified at trial.

Admissibility of Outcry

In his first issue, Appellant argues that the trial court abused its discretion

in admitting T.P.’s testimony regarding Jane Doe A’s outcry because T.P.

admitted that her memory of the event was fuzzy as a result of her drug use.5 Consequently, he argues, the statement did not possess sufficient indicia of

reliability at the time of the trial court’s ruling. Additionally, he argues, T.P.’s

testimony satisfied few

, if any

, of the nonexclusive factors the trial court

considers in determining the r eliability of an outcry.

A trial court’s decision to admit evidence will not be disturbed on appeal

absent a clear abuse of discretion. 1 A trial court has only abused its discretion if

its decision falls outside the zone of reasonable disagreement. 2 Arti cle 38.072 of

the code of criminal procedure provides a mechanism that requires the trial court

to determine on a case

- by

- case basis if outcry testimony reaches the level of

reliability required to be admissible as an exception to the hearsay rule. 3

Indici a of reliability that the trial court may consider [ under article

38.072 ] include (1) whether the child victim testifies at trial and

admits making the out

- of

- court statement, (2) whether the child

understands the need to tell the truth and has the ability to observe,

recollect, and narrate, (3) whether other evidence corroborates the

statement, (4) whether the child made the statement spontaneously

in his own terminology or whether evidence exists of prior prompting

or manipulation by adults, (5) whether t he child’s statement is clear

and unambiguous and rises to the needed level of certainty,

(6) whether the statement is consistent with other evidence, (7)

whether the statement describes an event that a child of the victim’s

age could not be expected to fa bricate, (8) whether the child

behaves abnormally after the contact, (9) whether the child has a

1 Garcia v. State

, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).

2 Mont gomery v. State

, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.

on reh ’ g).

3 Tex. Code Crim. Proc. Ann

. art. 38.072 (West Supp. 20 14 ); Norris v.

State

, 788 S.W.2d 65, 7 1 (Tex. App.

— Dallas 1990, pet. ref ’ d).6 motive to fabricate the statement, (10) whether the child expects

punishment because of reporting the conduct, and (11) whether the

accused had the opportunity to commit the offense. 4

Appellant argues that the outcry lacks reliability specifically because of

T.P.’s drug use and generally because it was short, undetailed, and

uncorroborated. Appellant is correct that the statement was very short. But it

was als o very clear, specific

, and unequivocal

— Jane Doe A told T.P. that

Appellant had both touched and penetrated her genitals with his fingers. We

cannot say that the trial court abused its discretion in allowing T.P. to testify.

But even if we were to conclud e that the trial court abused its discretion in

admitting the testimony, such error would not rise to the level of constitutional

error. 5 Rather, it would be evaluated under rule of appellate procedure 44.2(b), 6

and reversal would be required only if the error affected Appellant’s substantial

rights. 7 In examining the record, we note that Jane Doe A testified at trial, and

her testimony both corroborated T.P.’s testimony regarding the outcry and

provided greater detail. Even if we had held that the trial court abused its

4 Norris

, 788 S.W.2d at 7 1 ; see also Pair v. State

, Nos. 02

- 13

- 00406

- CR,

02

- 13

- 00407

- CR, 2014 WL 5878116, at *2 (Tex. App.

— Fort Worth Nov. 13,

2014, pet. ref’d) (mem. op., not designated for publication).

5 See Patterson v. State , Nos. 02

- 10

- 00350

- CR, 02

- 10

- 00351

- CR, 2012

WL 171115, at *7 (Tex. App.

— Fort W orth Jan. 19, 2012, no pet.) (mem. op., not

designated for publication).

6 See id.

7 See id. ; s ee also Tex. R. App. P. 44.2(b).7 discretion by admitting the outcry testimony, we would hold such error harmless.

We overrule Appellant’s first issue.

Extradition Testimony

In his second issue, Appellant argues that the trial court reversibly erred by

admitting the Stat e’s evidence that he did not agree to extradition because the

testimony violated his rights to due process and due course of law. At trial,

Appellant objected only that the evidence was not relevant. Generally, error

must be preserved at trial by a timel y and specific objection, and any objection at

trial that differs from the complaint on appeal preserves nothing for review. 8

Because Appellant’s complaint on appeal does not comport with his trial

objection, he has not preserved the issue for appellate r eview. We overrule

Appellant’s second issue.

Extraneous Offense Evidence

In his third issue, Appellant argues that evidence of his alleged extraneous

sexual offenses against T.H. was inadequate to support a jury finding beyond a

reasonable doubt that he c ommitted the extraneous offenses. Although the

general rule is that a person may not be convicted based on a claim of character

8 Sterling v. State

, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), cert.

denied

, 501 U.S. 1213 (1991); see also Judd v. State

, 923 S. W.2d 135, 138 (Tex.

App.

— Fort Worth 1996, pet. ref ’ d).8 conformity, 9 the legislature has changed the rules when there is an allegation of a

sexual offense against a child. Article 38 .37 allows the admission of,

[n]otwithstanding 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)[, such as the sexual abuse testified t o by T.H.]

. . . 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. 10

Section 2

- a of the statute requires that before any trial court admits the

evidence of an extraneous offense, the trial court must “determine that the

evidence likely to be admitted at trial will be adequate to support a finding by the

jury that the defend ant committed the separate offense beyond a reasonable

doubt.” 11 The law is well

- established that the “testimony of a child victim alone is

sufficient to support a conviction for aggravated sexual assault of a child.” 12

At the article 38.37 hearing, T.H. te stified that in 2005

, when she was seven

years old, her father traded her to Appellant in exchange for drugs on more than

one occasion. She stated that her father would take her to Appellant’s house,

9 Tex. R. Evid. 404(b); Alba v. State , 905 S.W.2d 581, 585 (Tex. Crim. App.

1995), cert. denied , 516 U.S. 1077 (1996).

10 Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b) (West Supp. 2014).

11 Id. § 2

- a.

12 Isla sMartinez v. State

, 452 S.W.3d 874, 880 (Tex. App.

— Dallas 2014

, pet.

ref’d )

.9 that she sometimes spent the night there, that she had been alone with Appellant

in his bedroom, and that he touched her vaginal area, penetrated her vaginally,

and forc ed her to touch his genitals. Even though she could not identify

Appellant’s house with certainty from a photograph, T.H. also testified that she

knew Jane Doe A and that she had seen Ja ne Doe A at Appellant’s house.

Thus, T.H. testified to all the elements of the extraneous offense s of aggravated

sexual assault of a child and indecency with a child by contact. We therefore hold

that the tria l court did not abuse its discretion by deciding that the evidence was

adequate to support a jury finding that beyond a reasonable doubt, Appellant had

committed those offenses against T.H. 13 We overrule Appellant’s third issue.

In his fourth issue, Appell ant argues that the trial court abused its discretion

by admitting evidence of the extraneous offenses described by T.H. because the

probative value of that evidence was substantially outweighed by the danger of

unfair prejudice under rule 403 of the Texas Rule s of Evidence

. 14 A trial court’s

r ule 403 decision to admit extraneous offense evidence is reviewed for an abuse of

discretion. 15 A reviewing court will “reverse the trial court’s judgment [based on the

13 See Tex. Code Crim. Proc. Ann. art. 38.37, § 2

- a ; Boydston v. State , No.

10

- 14

- 00310

- CR, 2015 WL 4710260, at *2 (Tex. App.

— Waco Aug. 6, 2015, no

pet. h.) (mem. op.; not designate d for publication).

14 Tex. R. Evid. 403.

15 Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Freeman

v. State

, 230 S.W.3d 392, 404

– 05 (Tex. App.

— Eastland 2007

, pet. ref ’ d).10 trial court’s rule 403 analysis] rarely

. . . be cause the trial court is in a superior

position to gauge the impact of the relevant evidence.” 16

When extraneous offense evidence is offered, the trial court must conduct

a r ule 403 analysis that includes the following nonexclusive factors: (1) the

probati ve value of the evidence, (2) the potential to impress the jury in some

irrational, yet indelible

, way, (3) the time needed to develop the evidence, and

(4) the proponent’s need for the evidence. 17 The State argues that T.H.’s

testimony was critical to sup port the testimony of Jane Does A, B, C, and E

because of the lack of corroboration and that Appellant’s case depended on

challenging their credibility. The State directs us to Thompson v. State

, 18 an

unpublished opinion from our sister court in Corpus Chr isti in which the court

recognized that, in a child sexual abuse case, the proponent’s need for the

extraneous offense evidence to combat the defendant’s challenge to the

complainant’s credibility is considered in determining admissibility. 19 This

16 Freeman

, 230 S.W.3d at 404

– 05 ( citation and internal quotation marks

omitt ed)

.

17 Prible v. State

, 175 S.W.3d 724, 733 (Tex. Crim. App.)

, cert. denied

, 546

U.S. 962 (2005).

18 No. 13

- 13

- 00558

- CR, 2014 WL 4049892 (Tex. App.

— Corpus Christi

Aug. 14, 2014, no pet.) (mem. op., not designated for publication).

19 Id. at *6.11 language echoes the Montgomery test for admissibility of extraneous acts of

misconduct offered in the guilt phase of a trial. 20

Reviewing the record in its entirety, we note the care with which the trial

court considered its evidentiary rulings throughout the entir e trial. The testimony

of Jane Does A, B, C, and E, as well as the outcry testimony, showed the

combination of drug activity and Appellant’s abuse of the children in his home

.

The State’s theory of the case was that Appellant supplied drugs to the

compla inants’ parents to gain access to the complainants. Appellant left Texas

soon after the complainants made outcries. He was not extradited until several

years had passed

. Thus, several years also passed between the events and the

witnesses’ testimony abo ut those events. The complainants were testifying to

memories from childhood. At least one other witness was testifying about events

that occurred during a period of drug abuse. The defense, naturally, attacked the

witnesses’ credibility and ability to recollect. T.H.’s testimony, although wobbly in

areas, corroborated the circumstances, location, and actions of Appellant that the

other witnesses testified to. Her testimony was probative but did not have the

potential to impress the jury in some irrati onal, yet indelible, way. We hold that

20 See 810 S.W.2d at 390 (“[H]ow great is the proponent’s ‘need’ for the

extraneous transaction? This . . . inquiry breaks down into three subparts: Does

the proponent have other available evidence to establish the fact of consequence

that the extraneous misconduct is rel evant to show? If so, how strong is that

other evidence? And is the fact of consequence related to an issue that is in

dispute?”).12 the conscientious visiting trial judge did not abuse his discretion by admitting

T.H.’s testimony under the law as it now stands. We overrule Appellant’s fourth

issue.

Conclusion

Having overruled Appellant’s four is sues on appeal, we affirm the trial

court’s judgments.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: September 24 , 2015