      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00462-CR



                                   Joel David James, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2011-195, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Joel David James guilty of continuous sexual abuse of

his minor daughter and assessed punishment at ninety-nine years in prison. On appeal, appellant

contends that the trial court erred by admitting evidence of an extraneous sexual offense and by

submitting a limiting instruction regarding it, by admitting evidence relating to a condom found

at his house, by prohibiting him from cross-examining his daughter concerning her other sexual

behavior, and by not instructing the jury on the lesser-included offense of indecency with a child.

We will affirm the judgment of conviction.


                                         BACKGROUND

               We will set out the complaining witness’s testimony, reserving discussion of

other evidence as it relates to specific issues on appeal. Appellant’s daughter testified that, between

September 1, 2007, and the summer of 2010 (from when she was nine years old to when she

was twelve years old), her father sexually abused her in a variety of ways when her mother was
out of town. She recounted details of three incidents of sexual abuse spaced over intervals greater

than thirty days and gave general descriptions of other incidents. She said appellant had sexual

intercourse with her as many as five times. She said he also contacted her sexual organ with his

mouth at least twice and caused his sexual organ to contact her mouth on “[m]uch more than

ten times” during that same period. She testified that he penetrated her sexual organ with his fingers

on more than one occasion and caused her to put her hand on his sexual organ at least once

during this period. He sometimes used a condom, was always drunk on whiskey he drank from a

barbecue restaurant mug, and often played pornographic movies during these incidents. He did not

threaten her, but asked her not to tell her mother and took her shopping afterward. He told her this

activity was normal between parents and children, which she believed until she attended an

educational program.

               Appellant’s daughter testified that, even after the program, she did not tell anyone

what had happened because she did not want to add to the tension in her parents’ marriage. One

night, however, her parents had an argument that began over her failure to do the dishes that

progressed into an argument over whether her mother was taking adequate care of her and ended

with her mother going outside to cool off. Appellant’s daughter testified that she decided to tell

her mother some of what appellant had done. Although her mother did not believe her at first, she

soon decided that her daughter would not lie about such activities. Appellant’s daughter was then

interviewed at the children’s advocacy center (“CAC”).

               On cross-examination, appellant’s daughter discussed discrepancies between

her testimony at trial and her interview at the CAC. She conceded that she had only described

two incidents of sexual intercourse when interviewed at the CAC, but said she limited the scope of


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her disclosure to limit the trouble her father would face. She testified that when she spoke at the

CAC, she wanted to get her father in some trouble, but not the degree of trouble she perceived he

would encounter if she told everything that had happened. She conceded that she had not mentioned

in the CAC interview her father using condoms or playing pornographic movies during the abuse.

She also testified that her brothers were the favored children and that she was blamed for things that

went wrong in the family. She did not recall, but did not deny, that she had gotten in trouble for

charging purchases on her cell phone and on the internet with appellant’s debit card shortly

before her outcry. She also did not recall that financial stresses caused her parents to discontinue her

tumbling class, but she did remember no longer taking tumbling. She denied that she was making

false accusations of abuse in retaliation for the termination of her tumbling class.

                Other testimony at the trial came from a police officer who testified about finding

a used condom along with adult videos in appellant’s bedroom, forensic scientists from the

Texas Department of Public Safety’s laboratory who testified about their DNA tests on the condom,

appellant’s wife, and appellant’s neighbors from when he was a teenager who testified that appellant

sexually assaulted a child when he was seventeen years old.


                                           DISCUSSION

                Appellant contends that the trial court erred by admitting evidence of an extraneous

sexual offense he committed, by submitting a limiting instruction that allowed the jury to consider

evidence of that extraneous offense, by admitting into evidence a condom found at his residence

as well as the results of the DNA examination of that condom, by prohibiting him from cross-

examining his daughter concerning her report of an attempted sexual assault by her older brother,



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and by not giving the jury his requested instruction regarding a lesser-included offense of indecency

with a child.


Did the trial court err by admitting the extraneous-offense evidence?

                During the guilt-innocence phase, the State offered testimony about a 1983 incident

in which appellant, then seventeen years old, made his sister’s seven- or eight-year-old friend undress

and then put his penis in her mouth and her hand. That victim and her mother both testified in this

trial. The trial court overruled appellant’s objections that the probative value of this evidence was

outweighed substantially by its prejudicial effect and that it concerned an extraneous offense offered

for character conformity and not for any permissible purpose. See Tex. R. Evid. 403, 404(b).

                We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion, and will uphold the ruling as long as it is within the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). This Court has affirmed a

trial court’s admission of evidence relating to previous offenses to rebut the defensive theory

of fabrication. Gaytan v. State, 331 S.W.3d 218, 224-26 (Tex. App.—Austin 2011, pet. ref’d). In

Gaytan, the defense suggested in opening argument that the victim might have fabricated her story,

so the trial court admitted testimony that the defendant had sexually assaulted other children almost

thirty years before. Id. at 224.

                Here, appellant questioned his daughter on whether she made the allegations against

him in retaliation for various disciplinary actions. We cannot say that the trial court abused its

discretion by deciding that this defensive strategy made the evidence of the previous incident

admissible under Gaytan to help prove that she did not fabricate her allegations. See id. at 225-26.

Nor can we say that the trial court abused its discretion by concluding that the danger of unfair

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prejudice, confusion of issues, or misleading the jury did not substantially outweigh the probative

value of the evidence. See id.; see also Tex. R. Evid. 403. Because of the similarity of the issues,

the analysis of this issue in Gaytan is instructive. As that court concluded, (1) the probative value

of evidence of similar events is reduced by remoteness in time, but is bolstered by the similarity

of conduct; (2) the evidence added some weight to the accusations in a he-said/she-said case;

(3) the limiting instruction should have blunted the possibility that the evidence suggested a verdict

on an improper basis of inflammatory testimony; (4) the testimony about the previous offense was

straightforward and should not have confused anyone, about either its content or its relation to the

instant case; (5) the additional testimony did not carry with it undue added weight like expert

testimony, despite its emotional freight; and (6) the additional testimony did not take up too much

time. Gaytan, 331 S.W.3d at 227-28. We conclude that the trial court did not abuse its discretion

by admitting the evidence of the extraneous offense.


Did the trial court err by instructing the jury that it could consider the extraneous-offense
evidence for a limited purpose?

               The trial court instructed the jury regarding extraneous offenses as follows:


       [I]f you find the State has proven beyond a reasonable doubt the defendant’s
       involvement in these other acts, if any, you may only consider this testimony as it
       may aid you, if it does, in determining the defendant’s intent, motive, opportunity,
       preparation, knowledge, absence of mistake or accident, or in rebuttal of a defensive
       theory of the defendant in relation to the offense on trial and you may not consider
       those other acts for any other purpose.


Appellant contends on appeal that this instruction permitted the jury to consider the evidence for

theories that were not put forward.



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                We review a claim of jury-charge error using the procedure set out in Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). We first determine whether

there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The

trial court must provide the jury with “a written charge distinctly setting forth the law applicable to

the case.” Tex. Code Crim. Proc. art. 36.14. If the court erred in giving its charge and appellant

objected to the error at trial, reversal is required if the error causes some harm to appellant’s rights.

See Almanza, 686 S.W.2d at 171.

                This instruction conforms with the language of Texas Rule of Evidence 404(b),

although the instruction excluded the ground of identity from the jury’s consideration. The rule

permits the jury to consider the extraneous-offense evidence for the listed purposes. As discussed

above, appellant indicated through cross-examination that his daughter fabricated the allegations,

and the rule and the instruction permit the jury to consider the extraneous offense to rebut that

theory. We find no abuse in the trial court’s choice to give this instruction that complies with the

rule of evidence.


Did the trial court err by admitting the condom and DNA analysis on it?

                Appellant contends that the “substandard collection methods” of the police officers

who searched his house increased the probability of contamination of the evidence—a condom

and DNA analysis of it—that prejudiced him. See Tex. R. Evid. 403, 901. Appellant’s now ex-wife

testified that several people helped her move out of their family house before the search occurred,

that her older son found a condom in the master bedroom, and that she alerted the police. She

considered the condom significant because she had a tubal ligation in 1999, and appellant did not

use a condom with her afterwards. Although the officers wore gloves when searching appellant’s

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house, they did not change their gloves every time they picked up an item. They found the condom

between the bed and the wall in the master bedroom amidst debris like drink cans. Appellant

contends that the moving of items and the officers’ failure to change gloves raise a risk of cross-

contamination of the DNA on the condom that undermines the authenticity of the evidence.

               Appellant challenges the reliability of evidence from Department of Public Safety

forensic scientist Heather Dragma, who testified that she compared DNA found inside and outside

of the condom to DNA from appellant and possibly his family. She said that the sample from the

outside of the condom was a mixture that included appellant’s DNA (the likelihood of selecting

an unrelated person at random to be the contributor other than appellant was at minimum 1 in

120.6 quadrillion) and an unknown other. She concluded that appellant was the major contributor

of DNA on the outside of the condom, but only that he could not be excluded as the contributor of

DNA of the mix from the inside of the condom. She testified that evidence gatherers should change

gloves when handling multiple items to avoid DNA from one item getting onto another item.

Another DPS forensic scientist, Emma Becker, testified that she did further testing on the inside of

the condom. She, too, found that appellant could not be excluded as a contributor. She also found

that appellant’s ex-wife could be excluded as a contributor, and that neither the victim nor her older

brother could be excluded.

               An exhibit must be supported by proof that the item offered is what its

proponent claims. See Tex. R. Evid. 901(a); see also Avila v. State, 18 S.W.3d 736, 740

(Tex. App.—San Antonio 2000, no pet.). Appellant does not dispute that a condom was found

in his master bedroom or allege mishandling of the condom in the DNA lab. There is no evidence

of deliberate tampering with evidence before, during, or after its collection, only speculation


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that appellant’s DNA might have made its way onto or into the condom by some means of

contamination. Such a question regarding the means by which the DNA was deposited is not a

challenge to the chain of custody, the authenticity, or identification of the evidence, but concerns

the meaning and weight given to the evidence. Cf. Dossett v. State, 216 S.W.3d 7, 21 (Tex. Crim.

App. 2006) (apparent gaps in chain of custody of evidence go to weight, not admissibility). We

cannot say that the trial court abused its discretion by finding the evidence sufficiently authenticated

and identified to satisfy Rule 901.

                Relevant evidence may be excluded when its probative value is substantially

outweighed by the potential of unfair prejudice, confusion of the issues, or misleading the jury.

Tex. R. Evid. 403. Appellant contends that the possibility of alternate means by which his DNA

might have landed on the condom diminishes its probative value and introduces a risk of unfair

prejudice. But appellant’s ex-wife’s testimony that they had not used condoms with each other for

almost eleven years, coupled with appellant’s daughter’s testimony that he used condoms with her,

lends probative value to the presence of the condom in the master bedroom and the presence of

his DNA on it. The predominance of appellant’s DNA on the condom gave the link to appellant

more heft. To be sure, a jury’s possible conclusion that appellant used the condom does not by itself

substantiate the charges against him. However, given that the rule permits exclusion of evidence

only if the probative value is substantially outweighed by unfair prejudice and that the standard of

review permits us to find error only for an abuse of discretion, we cannot say that the trial court erred

by overruling the Rule 403 objection to evidence regarding the condom found in appellant’s

bedroom and the DNA taken from it.




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Did the trial court err by prohibiting appellant from cross-examining his daughter about her
alleged sexual conduct with her brother?

               Appellant sought to question his daughter about her report to a forensic investigator

that her brother tried to have “sexual relations” with her on the same day that she said that

appellant did the last time in 2010. The trial court sustained the State’s objection based on the

evidentiary rule providing that, in a prosecution for sexual assault, reputation or opinion evidence

regarding a victim’s other sexual behavior is not admissible. Tex. R. Evid. 412. Appellant’s

daughter undisputedly did not include an allegation about her brother when making her initial

outcry about her father’s conduct, and seemed to back away from such an allegation during her

trial testimony. Appellant contends that, by making an outcry about him but not about her brother,

the victim showed bias against him about which he should have been allowed to cross-examine her.

See Tex. R. Evid. 412(b)(1)(C). He also contends that he should be permitted to confront the

victim on this basis to show ill-feeling, bias, or motive. See U.S. Const. amend. VI. Appellant later

contended that the evidence of her failure to outcry about her brother would have rebutted or

explained the DNA evidence.

               Appellant relies on Hammer v. State, in which the court of criminal appeals held that

the trial court erred by prohibiting the defendant from asking questions regarding her sexual history

that might have shown bias. See 296 S.W.3d 555, 562-63 (Tex. Crim. App. 2009). In that case, a

teenager accused her father of sexually assaulting her. Id. at 558. The defendant sought to introduce

evidence that his daughter resented his taking her to the hospital for a sexual-assault examination

concerning a two-day period during which she had run away from home. Id. at 559. The daughter

told the reporting nurse that her father wanted the examination to prove that she had sex with one

of the guys she ran away with. The report stated that the daughter was angry with her father. The

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daughter reported to the nurse that she engaged in sexual activity with one of her fellow runaways,

an encounter that she said began as consensual but then went too far. She also reported previous

sexual abuse by her uncle of a type that tracked the allegations underlying her accusations against

her father. Id. The defendant also wanted to introduce testimony from another witness whom the

daughter allegedly told that, when she ran away, she had consensual sex with someone other than the

person she reported to the nurse examiner. Id. The trial court excluded the evidence and the court

of appeals affirmed that decision, finding that the excluded testimony was a general attack on

the daughter’s credibility, did not establish that her prior accusations were false, and did not show

that the prior accusations were similar to those in the case being tried. Id. at 560 (citing Hammer

v. State, 256 S.W.3d 391, 395-96 (Tex. App.—San Antonio 2008), rev’d, 296 S.W.3d 555

(Tex. Crim. App. 2009)). The court of criminal appeals reversed, concluding that the trial court

erred by excluding the evidence because it provided strong support for the defendant’s theory that

his daughter was angry, motivated to falsely accuse him, and had shown herself capable of changing

a story about a sexual encounter. Id. at 567.

               The Hammer opinion does not control this case because of crucial factual distinctions.

Where the excluded evidence in Hammer plainly showed the accuser’s bias and anger toward her

father and a willingness to change stories for strategic reasons, see id., the victim’s failure in this

case to fully document in her outcry all sexual assaults against her does not show similar bias. It

shows only that, when she first reported being sexually assaulted to her mother, she limited the scope

of her disclosure to information concerning the person she said had been assaulting her for four

years. The trial court did not abuse its discretion by concluding that appellant did not demonstrate

how the excluded evidence would have shown the victim’s bias against him.


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               Appellant did not show that excluding this topic deprived him of his right to confront

a witness regarding her ill-feeling or bias against him, about her motive to report his abuse, or

about the DNA evidence. Appellant confronted his daughter regarding potential bias arising from

unauthorized spending or deprivation of extra-curricular activities. But there is no showing that

confronting her about her failure to outcry about her brother’s alleged assault would show anything

about her attitude toward appellant. There is no evidence or indication that her brother was her

assailant instead of appellant, only that he was possibly an additional assailant. Appellant also has

not explained how evidence of her failure to report her brother’s assault would bear on the DNA

evidence in any way that would exculpate appellant. The only identified DNA on the condom

was appellant’s. The uncertainty regarding secondary contributors to the mixture inside the condom

was inconclusive because, according to DPS’s Becker, the similarity of their DNA to each other

and to appellant made drawing definitive conclusions regarding who contributed the DNA difficult.

The dispositive issue is the absence of any connection made between her failure to report her

brother’s alleged assault to any issue relevant to the allegations against appellant. We find no abuse

of discretion or deprivation of the right to confrontation in the trial court’s decision to prohibit

appellant from interrogating his daughter about her failure to report her brother’s alleged assault.


Did the trial court err by refusing to instruct the jury on the lesser-included offense of
indecency with a child?

               Appellant contends that the trial court erred by refusing his request for an instruction

on indecency with a child, which he contends is a lesser-included offense of continuous sexual

assault of a child. The State argues that we need not reverse because (1) the record does not support




                                                 11
giving the instruction, and (2) appellant was not harmed by any error in failing to give the

instruction.

                Determining whether a defendant is entitled to a lesser-included-offense instruction

requires a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Hall

v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). As the court of criminal appeals explained:


        An offense is a lesser-included offense of another offense . . . if the indictment for the
        greater-inclusive offense either: 1) alleges all of the elements of the lesser-included
        offense or 2) alleges elements plus facts (including descriptive averments, such as
        non-statutory manner and means, that are alleged for purposes of providing notice)
        from which all of the elements of the lesser-included offense may be deduced.


Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) (quoting Ex parte Watson, 306 S.W.3d

259, 273 (Tex. Crim. App. 2009)); see also Tex. Code Crim. Proc. art. 37.09. If we determine

that the offense contained in the requested instruction is a lesser-included offense of the charged

offense, then we must decide whether the admitted evidence at trial supports the instruction. Rice,

333 S.W.3d at 144; Hall, 225 S.W.3d at 535. The trial court must instruct the jury on the lesser-

included offense if some evidence exists in the record that would permit a jury rationally to find that

if the defendant is guilty, he is guilty only of the lesser offense. Bignall v. State, 887 S.W.2d 21, 24

(Tex. Crim. App. 1994).

                The State correctly concedes that indecency with a child is, for the most part, a lesser-

included offense of continuous sexual abuse of a child. The offense of continuous sexual assault

occurs when a person commits any of several enumerated penal code violations two or more

times over thirty or more days. Tex. Penal Code § 21.02. Indecency with a child is listed as one

of the offenses that can support a continuous-sexual abuse charge, but the statute expressly excludes


                                                   12
indecency by touching the child’s breast as one of the constituent offenses. See id. § 21.02(c)(2).

Accordingly, the trial court did not err by refusing to give a lesser-included instruction

regarding indecency by touching the child’s breast, and we must determine whether the record

supported giving the instruction regarding indecency by contact with the child’s anus or genitals.

See Tex. Penal Code §§ 21.01(2) (defining sexual contact), .11(a) (defining indecency with a

child by contact).

                Appellant points to evidence of hand-genital contact from which the jury could have

found him guilty of indecency with a child. The jury could have found him guilty only of indecency

by contact if it believed one of his daughter’s accusations but not the others. While the jury can

selectively believe all or part of the testimony proffered and introduced by either side, Jones v. State,

984 S.W.2d 254, 257 (Tex. Crim. App. 1998), that principle does not mandate giving a lesser-

included offense instruction. As the court of criminal appeals has written, “it is not enough that the

jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence

directly germane to a lesser included offense for the factfinder to consider before an instruction

on a lesser included offense is warranted.” Bignall, 887 S.W.2d at 24. Because we find no evidence

in the record that appellant, if guilty, is guilty only of indecency with a child by contact, we conclude

that the trial court did not err by refusing to instruct the jury on the lesser-included offense of

indecency with a child. See id.


                                           CONCLUSION

                We affirm the judgment of conviction.




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                                           Jeff Rose, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: June 27, 2014

Do Not Publish




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