Landaverde v. State
| Decision Date | 03 June 2020 |
| Docket Number | No. 05-19-00175-CR,No. 05-19-00176-CR,05-19-00175-CR,05-19-00176-CR |
| Court | Texas Court of Appeals |
| Parties | PASTOR MEDINA LANDAVERDE, Appellant v. THE STATE OF TEXAS, Appellee |
On Appeal from the 86th Judicial District Court Kaufman County, Texas
Trial Court Cause Nos. 17-30626-86-F, 17-30627-86-F
Before Justices Bridges, Molberg, and Carlyle
Opinion by Justice Molberg
A jury convicted appellant of two charges of aggravated sexual assault of a child and sentenced him to life imprisonment on both. In two issues, appellant argues the trial court abused its discretion under rule 403 by allowing complainant and three family members to testify about alleged extraneous acts of sexual abuse by appellant that were not charged here. See TEX. R. EVID. 403. Because we conclude admission of such evidence was within the zone of reasonable disagreement, we affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.
In February 2018, a grand jury returned two indictments charging appellant with aggravated sexual assault of Marcy, who is his niece and second cousin.1 The offenses were both first degree felonies. See TEX. PENAL CODE § 22.021(e).
The original and amended indictments alleged that appellant intentionally or knowingly caused the penetration of Marcy's sexual organ by his finger (17-30626-86-F) and by his sexual organ (17-30627-86-F) when Marcy was a child under fourteen years of age. The amended indictments alleged these events occurred on or about March 31, 2003 and September 1, 2003, respectively.2 Marcy was six years old on those dates. Appellant was nineteen or twenty.
Appellant pleaded not guilty. The cases were tried to a jury in January 2019.
Before trial, the State notified appellant and the trial court of its intent to present evidence of other extraneous acts of sexual abuse by appellant, includingacts towards Marcy and three of her cousins, Jane (a female), M.B. (a female), and R.L. (a male).3
The State's article 38.37 notice4 described the evidence of appellant's other acts towards Marcy as repeated acts of indecency with a child by sexual contact by contacting her breast, buttocks, and genitalia and by causing Marcy to touch appellant's genitals, and repeated acts of aggravated sexual assault of a child by penetrating Marcy's sexual organ with appellant's finger and sexual organ and by causing Marcy's mouth to contact appellant's sexual organ.
The notice described the evidence of appellant's acts towards Marcy's cousins as including, among other things, indecency with a child by sexual contact by appellant's touching of Jane's breast, indecency with a child by sexual contact by appellant's touching of M.B.'s breast and genitals, aggravated sexual assault of a child by appellant's penetration of M.B.'s sexual organ with his finger, indecency with a child by sexual contact by appellant's touching of R.L.'s buttocks and genitals, and aggravated sexual assault of a child by appellant's causing contact with and the penetration of R.L.'s anus with R.L.'s finger. Id.
The notice indicated the events involving Marcy's cousins occurred on or about January 1, 2001 (Jane), on or about June 5, 2002 (M.B.), and on or about October 2010 (R.L.). The acts involving Marcy ranged from roughly 2002 to 2012.5
The relation between the victim's ages, dates of abuse, and the trial date is as follows:
The trial court conducted an article 38.37 hearing outside the presence of the jury before trial began. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a. The court determined the required notice had been provided and, after hearing Jane, M.B., and R.L. testify, the court ruled their evidence would be allowed, finding it adequate to support a jury finding that appellant committed the separate offenses. Id. Appellant made no objections.
The court then held a brief recess, and when the proceedings resumed, the court discussed appellant's motion in limine, and appellant argued the court should exclude evidence of the extraneous acts of abuse involving Marcy that were not charged in the indictments because such evidence was more prejudicial than it was probative. Appellant objected on rule 403 and 404 grounds. See TEX. R. EVID. 403, 404. The court overruled those objections.
Appellant was then arraigned, and he pleaded not guilty to both charges. Following opening statements, the State and appellant presented evidence through various witnesses and exhibits. The exhibits consisted of two hand-drawn floorplans of certain locations, as well as multiple photographs of various witnesses and family members. The State called Marcy, her mother, her brother, and her cousins Jane, M.B. and R.L. as witnesses, and appellant's counsel called appellant's wife, boss, co-worker, brother, and appellant. Several of the witnesses testified about matters not directly impacting this appeal, and there is no need to include that informationhere. Generally, though, appellant's witnesses provided positive testimony about appellant, describing him as a hard worker, a good employee, and an excellent father.
to Extraneous Acts Testimony by Jane, M.B., and R.L.
Jane, M.B., and R.L. testified about appellant's acts of abuse towards them as they had previously described when testifying in the article 38.37 hearing. We describe their testimony in our analysis section below. Although appellant made no objections to such testimony in the article 38.37 hearing, when each of them testified to the jury, appellant sought and obtained a running objection based in part on rule 403. See TEX. R. EVID. 403.
to Extraneous Acts Testimony from Marcy
In contrast, although appellant objected to the admission of Marcy's testimony of extraneous acts of abuse when arguing his motion in limine, he did not object or request a running objection to Marcy's trial testimony. We describe her extraneous acts testimony in our analysis section below.
With regard to the charged offenses, Marcy testified about appellant's digital penetration of her vagina.7 She also testified about his penetration of her vaginawith his penis, stating the first time he did this, he moved his penis "back and forth" then pushed her off of him and he ejaculated onto the floor, but she did not know what that was at the time. She told the jury this was painful and caused her to bleed.
She testified these acts would generally occur in the room where she and her younger brother were sleeping in the same bed. Her brother is five years younger than her, and she is protective of him. She said appellant would come into the room and do these things while her brother was still asleep.
When asked if she wanted to tell someone, she said, "I was afraid." She explained she was afraid her family was "going to split up" and was "just afraid to speak up." She also stated, "He told me if I was to have said something, he was going to do something to my brother." She explained, "Sometimes when I was younger, when I tried pushing him off of me . . . then he would grab me and tell me if I didn't do it, something was going to happen to my brother."
Appellant waived his right not to testify and testified at trial during the guilt-innocence phase. He agreed that certain details were true about what Marcy and her cousins said, including that he lived in the same place as Marcy for a certain time, sometimes slept in the location under the bar as she described, that Jane and M.B.visited the family after arriving from Colorado, and that Marcy and her brother stayed with him and his wife in their trailer after he and his wife moved nearby.
However, appellant denied engaging in any of the abuse that Marcy, Jane, M.B., or R.L. testified about. He testified, "I haven't done anything what they're accusing me of." When asked why he thought they would make up the abuse, he answered, "I couldn't tell you" and "I don't know why." Also, for reasons that became clearer during closing argument, appellant's counsel asked appellant and his wife about certain alleged abnormalities on appellant's genitalia, which appellant described as "knobs" that grew larger over time. He described one such abnormality as being "the size of the ball of the eye," though he acknowledged on cross-examination that this was not how his wife described it and then stated, He agreed the abnormalities were not that big in 2003 but were growing in size.
The court's charge included the following instructions:
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