Yzaguirre v. State

• Decision Date: 16 December 1996
• Docket Number: No. 07-96-0058-CR,07-96-0058-CR
• Citation: Yzaguirre v. State, 938 S.W.2d 129 (Tex. App. 1996)
• Parties: Marcelo YZAGUIRRE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 129

938 S.W.2d 129

Marcelo YZAGUIRRE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 07-96-0058-CR.

Court of Appeals of Texas Amarillo.

Dec. 16, 1996.

Chappell & Lanehart, Chuck Lanehart, Lubbock, for appellant.

Richard Clark, Criminal District Attorney, Plains, for appellee.

Before BOYD, C.J., QUINN, J., and REYNOLDS, Senior Justice (Assigned). ^*

CHARLES L. REYNOLDS, Senior Justice (Assigned).

Appellant Marcelo Yzaguirre, Jr. was separately indicted under trial court causes number 1727 and 1728, respectively, for the offense of aggravated sexual assault of twelve-year-old J. V., III (the victim) by fellatio, and for the offense of aggravated sexual assault of the victim by anal intercourse, each of which was alleged to have occurred on or about 23 April 1995. By agreement, the two offenses were consolidated for trial before a jury.

Upon trial of the consolidated causes, a jury found appellant guilty of both offenses and assessed respective punishments of confinement for 10 years and a $10,000 fine, probated for 10 years, and of confinement for 10 years. Appealing, appellant has presented a single brief containing a six-point attack against the judgments. Only those points necessary for a final resolution of the appeals are addressed in this opinion, issued on the appeal from the judgment in trial court number 1728 under our cause number 07-96-0058-CR, and in our separate opinion issued this day on the appeal from the judgment in trial court number 1727 under our cause number 07-96-0057-CR.

Challenging, with his second point of error, the sufficiency of the evidence to support his conviction under cause number 1728 for the aggravated sexual assault of the victim by anal intercourse, for which he was assessed punishment of confinement for 10 years, appellant also contends, with his third and fourth points, that his trial attorney rendered ineffective assistance of counsel. Agreeing that the performance of appellant's trial counsel was deficient, which prejudiced the defense, we will reverse and remand.

Prior to trial, the State, as required by Rule 404(b) of the Texas Rules of Criminal Evidence, provided written notice of its intent to employ evidence of crimes, wrongs or acts of misconduct by appellant other than those arising from the events of 23 April 1995. After a pretrial hearing, the trial court, expressing that the only limitation on the admission of such evidence is that it has to have some bearing of relevance on the state of mind, and the previous and subsequent relationship, of appellant and the child granted appellant's motion in limine to preclude the State's noticed use of the victim's statements concerning encounters with appellant in January, February, May, and November of 1994 as extraneous events. The court explained that it was not ruling on the admissibility of the events at that time, but that its ruling would prohibit the State from bringing up the events until the court had ruled on their admissibility.

Nevertheless, before the selection of the jury on the day of trial, the trial court announced:

Okay. At this time, the Court has previously ruled on a Motion in Limine filed by the Defendant, and at this time, I am changing the ruling to a certain extent. Under Article 38.37 in the Code of Criminal Procedure [Annotated (Vernon Supp.1996) ], it's my opinion that evidence of prior sexual conduct or subsequent sexual conduct between the Defendant and the alleged victim of the offense would be admissible. I'm not ruling on the admissibility at this point, however, I am going to change the Motion in Limine (sic) because I don't think it would be fair to prohibit the Prosecution from voir diring the jury concerning that matter. ¹

Parenthetically, we observe that article 38.37 is not applicable to this proceeding, which commenced with the return of the indictments on 19 May 1995. The article--which provides that notwithstanding Texas Rules of Criminal Evidence 404 and 405, evidence of other crimes, wrongs, or acts committed by the defendant against the child victim shall be admitted for its bearing on relevant matters, including (1) the state of mind of the defendant and the child, and (2) the previous and subsequent relationship between the defendant and the child--only applies to any criminal proceeding which commences on or after its effective date of September 1, 1995. Act of June 5, 1995, 74th Leg., R.S., ch. 318, § 48(b), 2749.

During the course of the trial, the State did not present any evidence that appellant subjected the victim to anal intercourse on or near 23 April 1995, the "on or about" date alleged in the indictment; indeed, the State conceded as much in its closing argument when the prosecutor stated to the jury, "We've told you from the get-go, we can't prove anal intercourse from that day." However, following the victim's recollection of the 23 April 1995 events in response to the prosecutor's questioning, the prosecutor elicited the victim's unlimited testimony that around the Thanksgiving holidays, "[appellant] put his penis in my rear," and his affirmation that he remembered "other times last year when something like this happened." A medical doctor expressed the opinion, based upon a history taken and an examination performed on the victim two days after the alleged sexual assault, that there was an anal sexual assault upon the victim probably not recently, but more likely some time in the past. Appellant's trial attorney neither objected to the testimony nor requested a limiting instruction.

The State adopts the evidence of anal intercourse at times other than on or about 23 April 1995 as the evidence upon which it relies to support the conviction. The State, noting that appellant neither objected to the evidence nor requested a limiting instruction, represents that the evidence was admissible under Texas Rules of Criminal Evidence 404(b) as evidence of opportunity, intent, preparation or plan, and was also admissible to rebut appellant's alibi evidence of being in Abilene, Texas, for Thanksgiving 1994. ² Accordingly, the State submits that, as the jury was charged, it is not bound by the date alleged in the indictment so long as the proof at trial shows that the offense occurred within the applicable limitations period, Lemell v. State, 915 S.W.2d 486, 489 (Tex.Cr.App.1995), i.e., within the ten-year period prior to the return of the indictment for aggravated sexual assault. Tex.Code Crim.Proc.Ann. art. 12.01(2)(D) (Vernon Supp.1996).

Appellant acknowledges that the court's charge was a correct statement of the law; yet, he argues there was substantial evidence that the past conduct evidence was admitted for the limited purpose of establishing a fraudulent scheme, and that evidence admitted for a limited purpose cannot support a conviction. Williams v. State, 565 S.W.2d 63, 65 (Tex.Cr.App.1978). The difficulty with appellant's argument is that its major premise is defective, for the past conduct evidence was neither offered nor admitted for a limited purpose. Had the evidence been so offered and admitted, appellant's trial attorney still had the burden of requesting a correct limiting instruction. Dowthitt v. State, 931 S.W.2d 244, 265 (Tex.Cr.App.1996). Since trial counsel neither objected to the testimony nor requested a limiting instruction, the evidence properly could be considered for all purposes. Hefner v. State, 735 S.W.2d 608, 619 (Tex.App.--Dallas 1987, pet'n ref'd). As a result, the unobjected to and unlimited evidence was legally and factually sufficient to support appellant's conviction for aggravated sexual assault of the child by anal intercourse occurring within the limitation period before the return of the indictment. Lemell v. State, 915 S.W.2d at 489. The second point of error is overruled.

Appellant's third- and fourth-point contentions of ineffective assistance by his trial attorney are predicated on the attorney's omissions to act in two instances. Appellant asserts that his trial attorney failed, first, to object to the admission of the evidence of prior sexual conduct between him and the victim, and, second, to request an instruction limiting the consideration of such past conduct to the purposes for which it was admissible.

In developing his points, appellant argues that the evidence of prior sexual conduct was not admissible under article 38.37, supra, the authority under which the trial court opined that the evidence was admissible, and his trial attorney should have objected to the admission of the evidence. Continuing, appellant, tacitly...