                                   NO. 07-06-0124-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JUNE 12, 2007
                          ______________________________

                          GUADALUPE VALDEZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

              NO. 50,139-C; HONORABLE PATRICK A. PIRTLE, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant, Guadalupe Valdez, was charged by indictment with the offense of

aggravated sexual assault of a child, enhanced by two prior felony convictions. The jury

convicted appellant of the charge and found both enhancement allegations were true. The

trial court sentenced appellant to life in the Texas Department of Criminal Justice-

Institutional Division. It is from this sentence that appellant appeals.
       Through two issues appellant alleges that the trial court committed reversible error

during the guilt/innocence phase in: (1) admitting evidence of extraneous offenses, and (2)

admitting evidence that appellant had previously been in prison. We affirm.


                                   Factual Background


       Appellant is alleged to have committed a sexual assault against a child, M.A.F., who

was 13 years of age at the time of the assault. On the day before the initial sexual contact

with appellant, M.A.F. had been walking home when he first met appellant. Through a

discussion that followed, appellant learned that M.A.F. had broken his skateboard.

Appellant offered to buy M.A.F. a new skateboard.          The next day, M.A.F. went to

appellant’s house and smoked a joint of marijuana and then went with appellant to another

location where appellant met some people and sold them marijuana. That same day

appellant bought a skateboard for M.A.F.         That afternoon M.A.F. skateboarded to

appellant’s house. While M.A.F. was there, appellant suggested that instead of paying for

the skateboard M.A.F. should allow appellant to give him oral sex, which in fact did occur.

The relationship between M.A.F. and appellant continued from mid-March 2004 until

M.A.F. was locked up in the county detention center on May 21, 2004. It was during his

detention that M.A.F. first made an outcry about the sexual assaults by appellant.


       M.A.F. advised detention center staff member, LaShonda Nevels, about the

incidents on October 27, 2004. Later on the same day and again on the 28th of October,

2004, M.A.F. gave statements to a detective about the assaults.




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         Appellant was arrested on the charges on October 28, 2004. After his arrest, and

while in custody, appellant waived his “Miranda” rights and gave a voluntary statement

admitting the sexual assaults. The voluntariness of the statement is not challenged on

appeal.


         By two issues, appellant challenges the trial court’s admission of certain evidence.

Appellant contends that the admission of the referenced evidence was reversible error.


                                       Standard of Review


         A trial court’s decision to admit evidence is reviewed under an abuse of discretion

standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim,App.1996). An appellate

court will not reverse a trial court’s decision whose ruling is within the zone of reasonable

disagreement. Id. at 102. See also Guzman v. State, 955 S.W.d 85, 89 (Tex.Crim.App.

1997).


                                 Extraneous Offense-Marijuana


         Appellant’s contention is that the evidence regarding the use and sale of marijuana

by appellant prior to the first sexual encounter with M.A.F. was not relevant under Texas

Rule of Evidence 402.1 Further, if the evidence was relevant it was inadmissible under

Rule 404(b). Rule 404(b) states that:




         1
             Further citation to Texas Rule of Evidence will be by “Rule ___”.

                                                3
       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show the person acted in conformity
       therewith . . . .


Appellant posits that the evidence regarding the use and sale of marijuana served no other

purpose than to show that appellant was a bad person. Accordingly, it was not admissible

and the admission was harmful.


       However, appellant’s discussion of this evidentiary issue does not include the

admissibility of this evidence pursuant to article 38.37 of the Texas Code of Criminal

Procedure. This statute applies to prosecutions for sexual offenses committed against

children under 17 years of age. See TEX . CODE CRIM . PROC . ANN . art. 38.37 § 1 (Vernon

Supp. 2006). The statute also provides that,


       Not withstanding Rules 404 and 405, Texas Rules of Evidence, evidence of
       other crimes, wrongs, or acts committed by the defendant against the child
       who is the victim of the alleged offense 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.


TEX . CODE CRIM . PROC . ANN . art 38.37 § 2 (Vernon Supp. 2006).


       Given the statutory language, the evidence of the use and sale of marijuana was

relevant and admissible to demonstrate the attempt by appellant to cultivate a relationship

with the minor. As such, this evidence goes directly to the state of mind of appellant and

the minor. See O’Canas v. State, 140 S.W.3d 695, 698 (Tex.App.–Dallas 2003, pet.

ref’d.); McCoy v. State, 10 S.W.3d 50, 54 (Tex.App.–Amarillo 1999, no pet.).

                                            4
        However, the appellant further alleges that, even if the evidence is relevant and

admissible, the trial court committed further error by allowing the jury to hear the testimony

in the face of a Rule 403 objection about the prejudicial effect of that evidence. Under

appellant’s theory, the admission of the evidence was harmful because the sole result of

the admission was to make him out as a drug dealer without adding anything probative to

the trial.


        For purposes of appellant’s contention, the applicable portion of Rule 403 provides

that relevant evidence may still be excluded if the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice.         In making a Rule 403

determination of probative value and unfair prejudice, there are four areas of inquiry: (1)

how compelling the extraneous offense evidence serves to make a fact of consequence

more or less probable – a factor which is related to the strength of the evidence presented

by the proponent to show the defendant in fact committed the extraneous offense; (2) the

potential the other offense evidence has to impress the jury “in some irrational but

nevertheless indelible way”; (3) the time the proponent will need to develop the evidence,

during which the jury will be distracted from consideration of the indicted offense; and (4)

the force of the proponent’s need for this evidence to prove a fact of consequence, that is,

does the proponent have other evidence available to him to help establish this fact, and

is this fact related to an issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App.

2000). After this determination, a reviewing court should only reverse in cases of a clear

abuse of discretion. Id.




                                              5
       The evidence complained of went to show the relationship that existed between

M.A.F. and appellant prior to the sexual assault. It tended to demonstrate the attempts of

appellant to “groom” M.A.F. for the assault. See generally Hernandez v. State, 973 S.W.2d

787, 790 (Tex.App.–Austin 1998, pet. ref’d). The proof of the extraneous offense, through

the testimony of M.A.F., was relatively clear and definitive about the facts of the offense.

It took only a few moments of M.A.F.’s testimony to present the evidence and it was in fact

presented as part of the chronological order of events. Accordingly, there was little chance

that this evidence distracted the jury from the consideration of the indicted offense. It is

true that possession and distribution of marijuana carry with it some emotional baggage;

however, it is not such as will impress the jury in some irrational manner, more so when the

manner of presentation of the evidence is considered. The State’s need for the evidence

might be considered slight, especially in light of appellant’s confession, however, the State

is entitled to present the surrounding facts and circumstances of the indicted offense. This

was the only evidence at the State’s disposal to show the previous relationship between

the victim and appellant or to shed light on the state of mind of appellant. See TEX . CODE

CRIM . PROC . ANN . art. 38.37 § 1 (Vernon Supp. 2006). Accordingly, we hold that the

admission of the extraneous offense evidence was not a clear abuse of discretion and

appellant’s contention is overruled.2




       2
        We note that even if the court erred in admitting this evidence, the error was not
one that, in light of the entire record, had a substantial and injurious effect or influence in
determining the jury’s verdict. TEX . R. APP. P. 44.2(b); King v. State, 953 S.W.2d 266, 271
(Tex.Crim.App. 1997).

                                              6
                                  Previous Imprisonment


       Appellant next contends that the trial court erred when it allowed his statement to

be published to the jury without redacting the following phrase, “since I got out of prison.”

Appellant’s trial objection was pursuant to Rule 403. However, appellant’s brief only refers

to Rule 403 in stating what the trial objection was. There are no citations to authority and

no analysis upon which we are to base our decision on this matter, save a very conclusory

statement. Appellant has failed to brief this issue in conformity with the rules of appellate

procedure. TEX . R. APP. P. 38.1(h). Accordingly, he has failed to present anything for

review. See Tufele v. State, 130 S.W.3d 267, 271 (Tex.App.–Houston [14th Dist.] 2004,

no pet. h.).


                                        Conclusion


       Having overruled appellant’s contentions, we affirm the judgment of the trial court.




                                          Mackey K. Hancock
                                              Justice




Do not publish.




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