Aguayo v. State
| Decision Date | 17 November 2016 |
| Docket Number | NUMBER 13-14-00650-CR |
| Parties | RAFAEL ADRIAN AGUAYO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 398th District Court of Hidalgo County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Appellant Rafael Adrian Aguayo challenges his conviction for continuous sexual abuse of young children, G.L. and M.L. (Count One).1 See TEX. PENAL CODE ANN. §21.02 (West, Westlaw through 2015 R.S.). The jury assessed punishment at thirty-three years in the Texas Department of Criminal Justice Institutional Division. By three issues, Aguayo contends: (1) the trial court erred in admitting evidence of an extraneous offense; and (2-3) the continuous sexual abuse statute violates the jury unanimity requirements of the United States and Texas Constitutions. We affirm.
By his first issue, Aguayo generally contends that the trial court reversibly erred in admitting certain extraneous-offense evidence. Specifically, Aguayo claims that the evidence is inadmissible because (1) the State failed to give adequate notice before trial of the extraneous offense—an alleged stun gun assault against A.L., and (2) the State failed to establish the relevance of this extraneous offense. Aguayo complains about the following portion of the State's notice:
On March 14, 2013[,] the defendant was arrested for the offense of Aggravated Assault with a deadly weapon. The victim, [A.L.], indicated that the defendant hid in the backseat of her truck and as she entered her vehicle the defendant attempted to use a stun gun to shock her. The defendant caused pain to the victim's left rib area. The defendant fled from the scene and was later located by Edinburg Police Department by a palm tree sitting down with an apparent self[-]inflicted cut to the right side of his neck which was caused by a box cutter that was discovered near the area. The defendant has since been indicted and the case is currently pending in the 398th District Court (CR-1444-13-I).
A. Standard of Review
We review a trial court's decision on the admissibility of evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011); see Hayden v. State, 66 S.W.3d 269, 271 (Tex. Crim. App. 2001) (). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Martinez, 327 S.W.3d at 736.
B. Adequate Notice
Aguayo first complains that the State failed to provide adequate notice about the stun gun incident because the notice set out that it occurred on March 14, 2013, but the evidence established that the incident occurred on March 24, 2013.
Rule 404(b) provides, in relevant part, that evidence of crimes, wrongs, or other acts may be admissible provided that "[o]n timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief." TEX. R. EVID. 404(b). The purpose of the rule 404(b) notice requirement is to prevent surprise and to provide reasonable notice for the defendant to prepare to defend against the extraneous offenses offered by the State. Hernandez v. State, 176 S.W.3d 821, 823 (Tex. Crim. App. 2005) (en banc); Hayden, 66 S.W.3d at 271-72. The notice requirement is a rule of evidence admissibility. Hernandez, 176S.W.3d at 823. When a defendant makes a request for notice of extraneous offenses under rule 404(b), that request should be in writing and timely served on the prosecution. Webb v. State, 36 S.W.3d 164, 177 (Tex. App.—Houston [14th] 2000, pet. ref'd) (). When a defendant relies on a pretrial motion to request notice of the State's intent to introduce extraneous-offense evidence, "it is incumbent upon him to secure a ruling on his motion in order to trigger the notice requirements of that rule." Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998) (en banc) (quoting Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993) (en banc) (per curiam)); see Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998) (en banc) ().
The record in this case contains no evidence that Aguayo timely requested notice of extraneous offenses from the State as required by rule 404(b). See TEX. R. EVID. 404(b); Webb, 36 S.W.3d at 177. Instead, Aguayo sought his notice through a document titled "Motion Requesting Notice of State's Intent to Introduce Extraneous Offenses." He addressed his motion to the trial court. Aguayo's document asked the trial court to order the State to give reasonable notice before trial of its intent to introduce evidence of extraneous offenses as defined in evidentiary rule 404(b). This was a motion seeking the trial court's action; it was not a request for notice. See Mitchell, 982 S.W.2d at 427; Simpson, 991 S.W.2d at 801 (citing Espinosa, 853 S.W.2d at 38-39). And although Aguayo properly filed the motion and provided a copy to the State, the record does notshow that the trial court ruled on the motion. See Mitchell, 982 S.W.2d at 427 (citing Espinosa, 853 S.W.2d at 38).
Because Aguayo did not submit a rule 404(b) request to the State and because he did not obtain a ruling on his motion, the notice requirements were not triggered, and Aguayo is precluded from complaining about the notice he did receive. We conclude that the trial court did not abuse its discretion in this regard when it admitted the complained-of evidence. See Martinez, 327 S.W.3d at 736; Webb, 36 S.W.3d at 179.
Nonetheless, we further conclude that the State gave Aguayo reasonable notice of this extraneous offense. See Hayden, 66 S.W.3d at 272 (). The State's notice provided specific facts. It set out that Aguayo was arrested following the incident and "has since been indicted and the case is currently pending in the 398th District Court (CR-1444-13-I)." Now, on appeal, Aguayo argues that he was surprised by the testimony about this incident. But having reviewed the record of the hearing that the trial court held outside the presence of the jury, we find no indication of surprise on the part of Aguayo as to the State's notice of the stun gun incident. Any surprise that the record reveals involves testimony A.L. provided about Aguayo's statements made to her while he was in jail. The notice was sufficient to avoid surprise to Aguayo regarding the stun gun incident and to enable him to prepare a defense. See Hayden, 66 S.W.3d at 272. We cannot agree that the difference between the date of the incident on the notice and the date revealed by A.L.'s testimony rendered the notice unreasonable.
C. Relevance and Prejudicial Effect
By this issue, Aguayo also contends that the State failed to establish the relevance of the extraneous act. He claims that even if the facts of the alleged stun gun incident were true, this evidence did not prove an element of the State's claim of continuous sexual child abuse.3 Aguayo asserts that evidence of the purported stun gun incident was not relevant beyond the tendency to prove Aguayo's character to show he acted in conformity therewith: it did not prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident regarding the sexual offenses presented. See TEX. R. EVID. 404(b). Aguayo also complains that "this extraneous[-]offense evidence was so harmful, unfairly prejudicial, and misleading to the jury, that it affected the jury's ability to render an impartial verdict based on the evidence as it relates to the indictments for which Mr. Aguayo was charged." See id. at R. 403.
"Extraneous-offense evidence is admissible under both Rules 403 and 404(b) if that evidence satisfies a two-pronged test: (1) whether the extraneous-offense evidence is relevant to a fact of consequence in the case aside from its tendency to show action in conformity with character; and (2) whether the probative value of the evidence is not substantially outweighed by unfair prejudice." Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006). The first prong of this test requires us to determine (a) whether the evidence is relevant at all under rule 401 and (b) whether the evidence is relevant to something other than a showing of character conformity pursuant to rule 404(b). See TEX. R. EVID. 401, 404(b). The second prong requires us to review the rule 403prohibition against the admission of evidence whose probative value is substantially outweighed by the danger of unfair prejudice. Id. at R. 403; Page, 213 S.W.3d at 336.
Rule 401 provides that "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. at R. 401. And rule 404(b) provides that an extraneous offense, crime, or act is not admissible as character evidence to show the accused acted in conformity with his character and committed an offense. See TEX. R. EVID. 404(b); Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992) (en banc); see also Hernandez v. State, No. 13-01-804-CR, 2003 WL 22052570, at *4 (Tex. App.—Corpus Christi Sept. 4, 2003, pet. ref'd) (). Extraneous-offense evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of...
To continue reading
Request your trial