1 

## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 19

- 00296

- CR

MANUEL ZUBIA , APPELLANT

V. THE STATE OF TEXAS , APPELLEE On Appeal from the 137 th District Court Lubbock County , Texas Trial Court No. 2016

- 410 , 823 ; Honorable John J. McClendon III , Presiding



### March 16 , 202 1 MEMORANDUM OPINION
Before QUINN , C.J. , and PIRTLE and PARKER , JJ. Appellant , Manuel Zubia , was convicted following a jury trial o f indecency , by sexual contact , with a child younger than fourteen years of age , J. G. 1 On appeal , he
asserts that the tr ial court erred in (1) admitting evidence of prior sexual misconduct by

a ppellant involving his niece , C. S. and (2) overruling his objections to the purported allusion b y the State to his failure to testify made during closing argument. We affirm.

1 We identify complainant and her family members by their initials to protect their identit ies

. See T EX

. R. A PP

. P . 9.8 & cmt.2

Background In November 2016 , an indictment was filed alleging that a ppellant intentionally or knowingly engaged in sexual contact with J. G. , a child younger than fourteen years of
age , by touching her genitals. At trial , J. G. testified that a ppellant , h er grandfather , touched her private area beneath her clothes in her backyard while he was teaching her to shoot a BB gun. While a ppellant assisted J. G. to aim the gun , he would sometimes squeeze her private area. Other times , he would rub her legs , then squeeze her private area and tell her “ good job ” after she had fired the BB gun. On the first day of practice , he held her private area or squeezed it twice. He touched her once on the second day and once on the third day for a total of four times. The touching incidents made J. G. feel guilty and she subsequently made an outcry to her grandmother , R. G. R. G. ’ s testimony describing J. G. ’ s outcry was consistent with J. G. ’ s description of abuse. R. G. also testified that when J. G. told her about the incidents , she was very

nervous , embarrassed , and shaky. J. G. told R. G. that when she asked a ppellant why he was touching her , he laugh ed

. C. S. testified that when she was fourteen years old , 2 she visited the residence where a ppellant , his girlfriend , and his girlfriend ’ s son were living . After his girlfriend and her son left the house , C. S. waited for a ppellant to take her home. While she was sitting on the sofa , a ppellant approached and be gan rubbing her legs while laughing and telling her “ nothing ’ s going to happen. ” She attempted to push him away when he tried to get between her legs , but a ppellant persisted twisting between her legs while he knelt. He was touching her all over in his e fforts ; however , she testified that the incident happened so fast , she was unsure whether he touched her on her vagina. Ultimately , she kicked

2 At trial , C. S. was thirty

- seven years old.3

him hard , and he backed off laughing. He then drove her home. She testified that she belatedly came forward be cause she heard of J. G. ’ s outcry and believed that a ppellant ’ s behavior “ ha[d] to stop. ” Patricia Salazar , a S exual A ssault N urse E xaminer , testified that J. G. ’ s description of the abuse was consistent throughout her examination. She also testified that her findings were consistent with J. G. ’ s outcry to R. G. John Werflein , a forensic interviewer with the Children Advocacy Center for the South Plains , also inte rviewed J. G. H e testified that J. G. ’ s description of the abuse was consistent throughout the interview

. Appellant ’ s cross - examination of Salazar and Werflein primarily focused on whether J. G. was credible and the incident was fabricated. At the trial ’ s conclusion , the jury convicted a ppellant of indecency with a child younger than fourteen years of age by sexual contact and assessed punishment of forty years ’ confinement. Issue One

– C. S. ’ s Testimony In his first issue o n appeal , a ppellant assert ed the trial court abused its discretion by permitting C. S. to testify to an incident of abuse that occurred twenty

- three years ago

. Allegedly , his behavior was too remote in time and dissimilar to that involving J. G. He also believed C. S. ’ s tes timony was substantially more prejudicial than probative . We overrule the issue. We review a trial court ’ s decision on admissibility of extraneous

- offense evidence under an abuse of discretion standard. Dabney v. State , 492 S.W.3d 309 , 31 8 (Tex. Crim. Ap p. 2016) ; Powell v. State , 63 S.W.3d 435 , 438 (Tex. Crim. App. 2001)

. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement

. Gonzalez v. State , 544 S.W.3d 363 , 370 (Tex. Crim. App. 2018)

.4

In actions involv ing the offense of indecency with a child , a rticle 38.37 of the Texas Code of Criminal Procedure permits the admission of evidence of other sex crimes committed by the defendant against childre n , other than the complaining witness of the alleged offense , “ 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. ” T EX

. C ODE C RIM

. P ROC

. A NN . art. 38.37 § § 1 (a) (1) (A) , 2(b) (West 2018). Yet , the statute does not preclude an objection based on Texas Rule o f Evidence 403

. T EX

. R. E VID

. 403 (stating that relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice , confusing the issues , misleading the jury , undue delay , or needlessly presenting cumulati ve evidence). A Rule 403 analysis requires consideration of the following: (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 decisio n 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 , a nd (6) the likelihood that presentation of the 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) (these factors may

“ well blend together in practice ” )

. The rule contemplates the exclusion of evidence only when there is a clear disparity between the probative value of the evidence and its degree of prejudice

. Hammer v. State , 296 S.W.3d 555 , 568 (Tex. Crim. App. 2009) ( quoting Con ner v. State , 67 S.W.3d 192 , 202 (Tex. Crim. App. 2001) )

. Here , C. S. ’ s testimony demonstrate d that a ppellant attempted to engage in a sexual act with a child other than J. G. As such , it was relevant to the case at hand. See Caston v. State , 549 S.W.3 d 601 , 612 (Tex. App.

— Houston [1st Dist.] 2017 , no pet.)5

( proof that a defendant sexually abused another child is relevant to whether he sexually abused the child

- complainant in the charged case) ; G aytan v. State , 331 S.W.3d 218 , 228 (Tex. App.

— Austin 2011 , pet. ref ’ d) (evidence that defendant committed extraneous offenses against two other children was “ straightforward and directly relevant to the only issue in the case , namely whether [defendant] abused [complainant] ” ). Indeed , since evidence of prior sexual abuse is especially probative of the accused ’ s propensity to sexually assault children , the Rule 403 balancing test generally disfavors exclusion of the prior sexual assaults

. Caston , 549 S.W.3d at 612 ( quoting Alvarez v. S tate , 491 S.W.3d
362 , 371 ( Tex. App.

— Houston [1st Dist.] 2016 , pet. ref ’ d) ) . Furthermore , even old acts of molestation may be admissible if they involve similar acts against a similar victim. See Yepez v. State , No. 14

- 17

- 00590

- CR , 2019 Tex. App. LEXIS 753 , at *23 (Tex. App.

— Houston [14th Dist. ] 2019 , no pet.) (mem. op. , not designated for pu blication ) ; s ee also West v. State , 554 S.W.3d 234 , 239

– 40 (Tex. App.

— Houston [14th Dist.] 2018 , no pet.) ( stating that while remoteness may lessen the inherent probative value of the evidence , the passage of time will not necessarily requir e exclusion of prior act). The evidence show ed that a ppellant , charged with indecency with an eight

- year old child , also attempted to commit the same offense twenty

- three years earlier to a fourteen

- year - old child. Although he characterized the two offenses a s dissim ilar , we disagree. Like the offense at trial , he 1) a pproached C. S. while she was alone with him ; 2) C. S. was also a member of his extended family ; 3) he initiated contact by rubbing C. S. ’ s legs ; 4) sought access to the victim ’ s vaginal area ; and 5 ) laughed in response to the victim ’ s defensive moves. Furthermore , the State need ed the evidence. For instance , a ppellant implicitly and6

explicitly accused J. G. of fabricating her allegations of abuse , given the absence of physical evidence or other eyewitness testimony supporting J. G. ’ s allegations . The circumstance was very much a “ he said , she said ” situation. See Hammer , 296 S.W.3d
at 568

– 69 (noting that Rule 403 “ should be used sparingly , especially in ‘ he said , she said ’ sexual molestation cases that must be resolved solely on the bases of the testimony of the complainant and the defendant ” ) ; see also Newton v. State , 301 S.W.3d 315 , 320 (Tex. App.

— Waco 2009 , pet. ref ’ d) (finding a twenty

- five

- year - old extraneous offense admissible based on the State ’ s need for extraneous

- offense evidence because the State had no physical evidence or eyewitness testimony and the defendant claimed fabrication ). C. S. ’ s testimony also concerned matters readily comprehensible by lay people ,
a nd her testimony was directly relevant to the only issue in the case , whether a ppellant abused J. G. Thus , it presented little risk of confusing the issues. Moreover , in its entirety , it comprised about 22 pages of the reporter ’ s record and took a relati vely short time to present. Given the foregoing circumstances , we find that the trial court ’ s decision to overrule appellant ’ s Rule 403 objection fell within the realm of reasonable disagreement and , therefore , constituted a legitimate exercise of discre tion. Issue Tw

o
– Improper Jury Ar

gu ment Through a ppellant ’ s second issue , he argues that the trial court erred by overruling his objection to the State ’ s improper jury argument. Specifically , he claims the improper argument concerned his Fifth Amendment right not to testify and improperly foisted upon him the obligation to prove his defenses

. We overrule the issue.7

During closing argument s , the State made the following statements: So , what do you do when you have someone that you know , it ’ s a family member , so you know them , identity ’ s is not an issue

. When you have a known person that ’ s molesting a child. “ Well , it wasn ’ t me , ” isn ’ t going to work as a defense , is it? It ’ s you r name , you ’ re a family member , you ’ re known. So , I guess you might be left with , “ Well , it was an accident. ” The touching of her middle , “ I didn ’ t

— my hand slipped , didn ’ t really mean to touch her there. It sure wasn ’ t to arouse or gratify myself. ” We don ’ t really have that either , do we? Appellant subsequently objected , contending that t he State ’ s utterance was a comment on his failure to present a defense and to testify. The trial court overruled the objection but instructed th e jury that the defendant had a right to not testify and pursuing it could not be used against him. The trial court also gave a similar instruction in open court to the jury prior to deliberations and there were written instructions in the jury charge. Thu s , when a ppellant ’ s issue first arose , the trial court immediately instructed the jury in accordance with a ppellant ’ s request. Prior to the jury ’ s deliberations and in the trial court ’ s written instruction s , the trial court emphasized a ppellant ’ s right to remain silen t and that the State always bears the burden of proof. We find the State ’ s comment s on the evidence more in the nature of comments on a lack of evidence establishing a ppellant did not 1) commit the offense , 2) touch J. G. by accident , and 3) if he touched her , he did not intend to arouse or gratify himself . The State also chose to deliver these comments by primarily asking rhetorical questions. Simply sai d , t he prosecuto r ’ s argument was akin to summarizing the evidence presented and what was absent from it. See Jackson v. State , 17 S.W.3d 664 , 674 (Tex. Crim. App. 2000) (stating that proper argument includes “ summation of the evidence presented at trial ” ). It attempted to i llustrat e that there was no contrary or contradictory evide nce refuting the elements of the offense and no defensive theories to justify his conduct , and8

such is a tac k that the State may pursue

. Id. (observing that the S tate “ may comment on the defendant ’ s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify ” ) ; accord Zamarripa v. State , N0. 13

- 19

- 00271

- CR , 2020 Tex. App. LEXIS 9427 , at *17 (Tex. App.

— C orpus Christi Dec

. 3 , 2020 , no pet.) (mem. op. , not designated for publication ) (stating the same). There was no direct reference by the S tate to a ppellant ’ s right against self

incrimination , and an indirect or implied allusion to his silence is not enough. Wea d v. State , 129 S.W.3d 126 , 130 ( Tex. Crim. App. 2004). Rather , the pr osecutor must manifestly intend the comment to be , or the comment must be of such character that a juror would naturally and necessarily take it to be , a comment on defendant ’ s silence. Id. Such was and is not present here. Having overruled appellant ’ s issues , w e affirm the trial court ’ s judgment.

Per Curi a m
Do not publish.