Opinion issued March 17, 2016




                                       In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-14-00915-CR
                            ———————————
                         EDWIN ALVAREZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 268th District Court
                           Fort Bend County, Texas
                    Trial Court Case No. 11-DCR-058577A


                                   OPINION

      Edwin Alvarez appeals his conviction of sexual assault of a 14-year old

child,1 Cathy,2 arguing that the trial court erred by allowing the State to proffer


1
      TEX. PENAL CODE ANN. § 21.02(b)(2) (West Supp. 2015).
2
      To protect her privacy, we identify the complainant by a pseudonym.
testimony of two witnesses who alleged that Alvarez had sexually assaulted them

as children. The State offered their testimony under Article 38.37 §2(b) of the

Texas Code of Criminal Procedure. Alvarez contends that Article 38.37 is

unconstitutional. He further contends that, if constitutional, the testimony should

have been excluded under Rule 403 of the Texas Rules of Evidence. We affirm.

                                   Background

      Alvarez was a “close family friend” of Cathy’s aunt. He grew up with the

aunt, and she considered him to be like a brother. Cathy lived with her aunt.

Alvarez lived with his long-term girlfriend and her two minor nieces.

      Alvarez often had Cathy over to his house to socialize with his girlfriend’s

nieces. Even after Alvarez and his girlfriend broke up and Alvarez moved away, he

would arrange for the three girls—none of whom he was related to—to come to his

house for sleepovers.

      According to Cathy’s trial testimony, one night, Alvarez went to Cathy’s

house, woke her up, and took her to his house, telling her that the other two girls

would be there. They were not. Alvarez took Cathy to his room and sexually

assaulted her.

      In August 2013, Alvarez was tried for sexual assault of Cathy, but the trial

resulted in a hung jury. There was a subsequent change in the law when the Texas

Legislature passed Senate Bill 12, now codified as Article 38.37, which became



                                         2
effective September 1, 2013. TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp.

2015); see Tex. S.B. 12, 83rd Leg., R.S. (2013). This law allowed the State, in a

criminal trial for sexual assault of a child, to present evidence that the defendant

had sexually assaulted other children. TEX. CODE CRIM. PROC. ANN. art. 38.37

§2(b). Accordingly, the State filed a pre-trial motion to admit evidence in

Alvarez’s second trial for the sexual assault of Cathy that Alvarez had previously

sexually assaulted his girlfriend’s two nieces.

      At the hearing required by Article 38.37 to determine whether to admit the

nieces’ testimony, Alvarez objected that (1) the testimony was unfairly prejudicial

and thus should be barred by Texas Rule of Evidence 403 and (2) the statute

should not be applied to his case because “it’s an [ex post] facto retroactive

application of the law to offenses that were created or committed before the

effective date of the act . . . .” The trial court requested that the parties brief the

objections Alvarez raised.

      In his pre-trial brief, Alvarez argued that (1) Rule 403 barred the nieces’

testimony and (2) allowing the evidence under Article 38.37 “was prohibited under

the Ex Post Facto Clause” of the U.S. Constitution. The trial court overruled his

objections and held that the evidence of Alvarez’s sexual assaults of the nieces was

admissible.




                                          3
      Before any evidence of Alvarez’s alleged sexual assaults of the nieces was

presented at trial, Alvarez again objected on the grounds that Article 38.37 “is

unconstitutional and violates the ex post facto laws” and the evidence is

inadmissible under Rule 403. The objections were again overruled.

      One of the nieces then testified that Alvarez sexually assaulted her when she

was 11 or 12. She testified that Alvarez “frequently . . . [t]ouched me in

inappropriate places.” He would ask her to go into his room, and when she did,

they would engage in “[s]exual intercourse.” She testified that this occurred on

numerous occasions: “more than I can even count.”

      The second niece testified that Alvarez sexually assaulted her when she was

13. She testified that he “would come into her room at night and began basically

feeling on me while I’m asleep.” He touched her breasts and vagina. She described

in detail that Alvarez had “sexual intercourse” with her.

      The jury found Alvarez guilty of sexual assault of Cathy and sentenced him

to 20 years in jail. Alvarez appeals his conviction.

                               Statutory Background

      Typically, the State cannot provide evidence of prior “crime[s], wrong[s], or

other act[s]” to show that the defendant “acted in accordance with that character”

or had a propensity to commit the crime. TEX. R. EVID. 404(b). In the context of

sexual assault of a child, a different rule applies to recognize that “[t]he special



                                          4
circumstances surrounding the sexual assault of a child victim outweigh normal

concerns associated with evidence of extraneous acts.” Jenkins v. State, 993

S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d). Under Article 38.37, the

State is allowed to provide evidence of other children who the defendant has

sexually assaulted “for any bearing the evidence has on relevant matters, including

the character of the defendant and acts performed in conformity with the character

of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.37 §2(b).

      Before such evidence is admitted, however, the defendant is protected by

“numerous procedural safeguards.” Harris v. State, 475 S.W.3d 395, 402 (Tex.

App.—Houston [14th Dist.] 2015, pet. ref’d). First, the State must give the

defendant 30 days’ notice of its intent to introduce the evidence. TEX. CODE CRIM.

PROC. ANN. art. 38.37 § 3 (West Supp. 2015). Second, the trial court must

“conduct a hearing out of the jury’s presence to determine that the evidence likely

to be admitted will support a jury finding that the defendant committed the separate

offense beyond a reasonable doubt.” Belcher v. State, 474 S.W.3d 840, 847 (Tex.

App.—Tyler 2015, no pet.). These procedural safeguards were satisfied here.

      On appeal, Alvarez contends that Article 38.37 violates his constitutional

right to due process. He argues that it causes him to be tried for actions other than

for the offense charged, thereby infringing on his “presumption of innocence and

lessens the State’s burden of proof.”



                                         5
                   Preservation of Error on Due-Process Claim

      The State argues that Alvarez did not preserve his due process claims. “In

briefing his first point of error, [Alvarez] provides no citation to the record to show

that the arguments he makes on appeal were presented to the trial court.”

      For a party to preserve an issue for appeal, it must make a timely, specific

objection on the alleged error and obtain a ruling. See TEX. R. APP. P. 33.1(a). Even

a potential constitutional violation can be waived if the party fails to object at trial.

Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

      Preserving error is not a technical exercise that requires the party to meet a

certain formula; instead, “[s]traightforward communication in plain English will

always suffice.” Lankston v. State, 827 S.W.2d 907, 908–09 (Tex. Crim. App.

1992). The party’s communication must (1) tell the trial judge what the party

wants, (2) inform the judge why the party is entitled to that relief, and (3) be clear

enough so that the judge understands the party’s position in time for the judge to

correct the error. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005);

Lankston, 827 S.W.2d at 909. To meet these requirements, the party must “state[]

the grounds for the ruling that the complaining party sought from the trial court

with sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A).




                                           6
      Constitutional challenges to statutes, including facial challenges, must be

preserved in the trial court and cannot be raised for the first time on appeal.

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Sutton v. State,

469 S.W.3d 607, 614–15 (Tex. App.—Beaumont 2015, pet. granted). To preserve

a constitutional issue, the party challenging the constitutionality of the statute must

identify the provision of the constitution that the statute violates. See Lovill v.

State, 319 S.W.3d 687, 692–93 (Tex. Crim. App. 2009).

      For example, in Lovill, the defendant failed to preserve her equal–protection

argument that the district attorney would not have moved to revoke her community

supervision if she had not been pregnant. Id. at 692. The defendant never

mentioned that her right to equal protection was violated or cited the Equal

Protection Clause. Id. Thus, she did not preserve her constitutional issue for

appeal. Id. at 693.

      Likewise, in Green v. State, the defendant failed to preserve his

constitutional challenge to Texas’s death penalty schemes. 912 S.W.2d 189, 194

(Tex. Crim. App. 1995). At trial, the defendant argued that the schemes were

unconstitutional because they do “not properly narrow the class of persons eligible

for the ultimate punishment.” Id. On appeal, the defendant again challenged the

constitutionality of the death penalty scheme but changed his unconstitutionality

argument to assert that “it fails to direct the sentencer’s discretion to include



                                          7
consideration of circumstances of the offense in any meaningful manner.” Id. The

Court of Criminal Appeals held that the defendant was precluded from making

those new arguments on appeal. Id. at 195.

      These general principles were applied by the Waco court of appeals in

concluding that a defendant did not preserve his constitutional challenge to Article

38.37. Brinegar v. State, No. 10-14-00195-CR, 2015 WL 6777445, at *3 (Tex.

App.—Waco Nov. 5, 2015, no pet.) (mem. op., not designated for publication). In

Brinegar, the defendant objected to the relevant testimony by telling the trial judge

that the testimony “violates the Defendant’s constitutional rights, and I would ask

that the Court exclude the statement.” Id. This statement was “plainly not specific”

because, generally speaking, “the complaining party should invoke the controlling

federal and state constitutional provisions or use key legal phrases to ensure that

the trial judge is informed of the particular complaint.” Id. If a party, like the

defendant in Brinegar, challenges the constitutionality of a statute, the party should

“specify what laws or constitutional provisions are implicated.” Id.

      Similarly, Alvarez’s only constitutional objection to the nieces’ testimony

was that the statute allowing their testimony “is unconstitutional and violates the

ex post facto laws.”3 The objection is “plainly not specific” as to any due–process


3
      The ex post facto clause of both the United States and Texas Constitutions
      prevents the Legislature from passing “laws, after a fact done by a subject, or
      citizen, which shall have relation to such fact, and shall punish him for having

                                          8
challenge. See id. He made this general “unconstitutional” and “ex post facto”

argument at the statutorily-required hearing and in his brief to the trial court after

that hearing. He made a similar, general “unconstitutional” and “ex post facto”

objection at trial. An objection that the law is “unconstitutional” does not allow the

judge to understand the party’s legal argument and thus avoid any error. See

Reyna, 168 S.W.3d at 179; Lankston, 827 S.W.2d at 909.

      On appeal, Alvarez makes a new argument. He argues that Article 38.37

violates his “right to due process” by “causing him to be tried not only for the

offense charged[,] infringes on [his] presumption of innocence, and lessens the

State’s burden of proof.” He continues that “the statute permits the jury to assume

the defendant is guilty of the charged offense simply because he allegedly

committed other similar acts . . . .” Alvarez made none of these arguments or

similar arguments at trial. Nor did he mention the due process clause or the right to

due process. Even if he did not specifically invoke the right to due process,



      done it.” Ex parte Heilman, 456 S.W.3d 159, 163 (Tex. Crim. App. 2015) (quoting
      Calder v. Bull, 3 U.S. 386, 390 (1798)). Alvarez argued in the trial court that,
      because Article 38.37 was enacted after he committed the alleged crimes, applying
      that evidentiary rule violated the ex post facto clause. But “[h]ere, the question is
      the admissibility of the evidence . . . [t]he statute does not lower the quantum of
      proof required for conviction. . . . [It] enlarges the scope of the child’s admissible
      testimony, but leaves untouched the amount or degree of proof required for
      conviction.” McCulloch v. State, 39 S.W.3d 678, 684 (Tex. App.—Beaumont
      2001, pet. ref’d). Thus, applying Article 38.37 does not implicate ex post facto
      concerns. Id.


                                            9
Alvarez should have, at a minimum, informed the trial court that he was making

these types of arguments against Article 38.37. See Lovill, 319 S.W.3d at 693.

      There is one exception to the requirement that a party raise his constitutional

challenge at trial. “An unconstitutional statute is void from its inception” and thus

“when a statute is adjudged to be unconstitutional, it is as if it had never been . . . .

[S]uch an unconstitutional statute is stillborn.” Smith v. State, 463 S.W.3d 890, 895

(Tex. Crim. App. 2015). This rule allows a defendant to raise a constitutional

challenge to a statute for the first time on appeal if that statute “has already been

held void.” Id. at 896; see Schuster v. State, 435 S.W.3d 362, 367 (Tex. App.—

Houston [1st Dist.] 2014, no pet.) (holding defendant did not need to object to due–

process violation at trial because statute he was convicted under had been declared

unconstitutional before appeal). But if the statute “had not yet been declared void”

by an appellate court before a determination of the defendant’s appeal, an appellate

court will not review the case unless the defendant first objected at trial. Smith, 463

S.W.3d at 895 (citing Karanev, 281 S.W.3d at 434); Lebo v. State, 474 S.W.3d

402, 403 (Tex. App.—San Antonio 2015, pet. ref’d) (noting that Smith only applies

when statute has been declared unconstitutional during pendency of appeal on

different issue in court of appeals).

      This exception does not apply here. First, Alvarez does not challenge the

constitutionality of the statute under which he was convicted—only an evidentiary



                                           10
rule that he argues contributed to his conviction. Thus, this challenge does not fall

within the Smith exception. Second, even if we were to expand the scope of Smith

to extend to evidentiary rules that allowed evidence to be admitted at trial, we have

not previously held that Article 38.37 is unconstitutional. Nor does Alvarez cite to

any authority holding that statute unconstitutional. Instead, the only cases that the

parties have pointed to, and that we have found through our own research,

addressing the constitutionality of Article 38.37 have held that it is constitutional.

See Harris, 475 S.W.3d at 402 (holding Article 38.37 is constitutional because

defendant’s rights are “protected by the numerous procedural safeguards provided

in the statute”); Belcher, 474 S.W.3d at 847 (following federal cases holding

comparable federal rules do not violate due process to hold that Article 38.37 is

“more narrowly drawn” than federal rules and adequately protects defendant’s

constitutional rights).

      Because Alvarez did not preserve this issue and the Smith exception does not

apply to his arguments, we conclude that he waived any due-process challenge to

Article 38.37.

                                      Rule 403

      Alvarez next argues that “[e]ven if extraneous evidence is admissible under

Article 38.37, such admission must yield to Texas Rule of Evidence 403. . . . The

trial court erred in admitting the testimony of [the nieces] because its probative



                                         11
value was substantially outweighed by danger of unfair prejudice.” The evidence

was unfairly prejudicial, he argues, because it “provided an avenue for the jury to

conclude that [Alvarez] committed the charged offense in conformity with his

character.”

      A court of appeals reviews a trial court’s decision to admit or not admit

evidence for an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790

(Tex. Crim. App. 2007). “In other words, as long as the trial court’s decision was

within the zone of reasonable disagreement and was correct under any theory of

law applicable to the case, it must be upheld.” Id. We apply this deferential

standard “because trial courts are usually in the best position to make the call on

whether certain evidence should be admitted or excluded.” Id. (internal quotation

marks and ellipses omitted).

      Texas Rule of Evidence 403 provides that otherwise relevant and admissible

evidence may be excluded “if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

TEX. R. EVID. 403. Article 38.37 neither explicitly requires that the Rule 403

balancing test be applied or prohibits the trial court from applying that test. The

State does not argue that the Rule 403 balancing test does not apply to evidence




                                        12
admissible under Article 38.37, therefore, we will assume (without deciding) that it

does.

        Applying the Rule 403 balancing test does not permit “a trial court to

exclude otherwise relevant evidence when that evidence is merely prejudicial.”

Bradshaw v. State, 466 S.W.3d 875, 481 (Tex. App.—Texarkana 2015, pet. ref’d)

(quoting Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013)). The rule

“should be used sparingly,” only when the prejudicial effects substantially

outweigh the probative nature of the evidence. Id. (quoting Hammer v. State, 296

S.W.3d 555, 562 (Tex. Crim. App. 2009)). In determining whether the prejudicial

effects substantially outweigh the probative nature of the evidence, the trial court

must consider four factors: (1) “how compellingly the extraneous offense evidence

serves to make a fact of consequence more or less probable”; (2) the potential of

the evidence “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

. . . . ” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). Alvarez

argues that the nieces’ testimony fails all four prongs.

        Belcher v. State dealt with testimony admitted under Article 38.37. 475

S.W.3d 840. In that case, the defendant argued that the evidence of his prior sexual



                                          13
abuse of other children was highly prejudicial. Id. at 848. Like in this case, the only

evidence in Belcher directly showing that the defendant sexually assaulted the

child was the child’s testimony. Id. Because the evidence of prior sexual abuse of

children “was especially probative of Appellant’s propensity to sexually assault

children,” the Rule 403 balancing test normally will not favor the exclusion of

evidence of the defendant’s prior sexual assaults of children. Id. Alvarez does not

present any counter-authority that evidence of past sexual abuse proffered to show

that a defendant committed the charged offense in conformity with his character

fails the Rule 403 balancing test.

      Alvarez argues that the testimony offered against him “is unfairly prejudicial

for the very reason the statute—and the documented legislative history—allows for

its admissibility,” namely that sexual assault of a child is a highly offensive crime.

Bradshaw, 466 S.W.3d at 884. The statute itself recognizes that evidence of

children whom the defendant has previously sexually assaulted is “by definition,

propensity, or character evidence.” Id.

      The reason for the particular rules excluding character evidence is not that

such evidence is irrelevant because it is not probative of a fact of consequence (the

first Mozon factor). It is often relevant and therefore otherwise admissible. Nor is it

that character evidence is an “irrational” basis for determining a person’s conduct.

Character evidence “offered to prove conduct or a state of mind conforming to that



                                          14
character is logically relevant. . . . [A] person’s conduct on one occasion would be

thought by most persons to be presumptively probative on the issue of her disputed

behavior on another.” 1 GOODE, WELLBORN            AND   SHARLOT, TEXAS PRACTICE

SERIES: GUIDE TO THE TEXAS RULES OF EVIDENCE § 404.2 (3d ed. 2002).

      This is true here. Without the evidence of the other children that Alvarez

abused, “this becomes a ‘he said, she said’ case.” Bradshaw, 466 S.W.3d at 884.

The State had only the victim’s testimony. It appears that Alvarez’s trial strategy

was to turn this case into a “he said, she said” case and impeach Cathy by accusing

her of “some lies.” Alvarez’s other sexual assaults were relevant to Cathy’s

credibility and therefore were prejudicial to Alvarez.

      But they were not unfairly prejudicial. Alvarez does not identify any

particular facts about the two other sexual assaults that make them uniquely or

unfairly prejudicial. Following the reasoning of Belcher and Bradshaw and the text

of Rule 403, we hold that Alvarez has not demonstrated that the trial court abused

its discretion in overruling Alvarez’s objection to his girlfriend’s nieces’ testimony.

We, therefore, overrule Alvarez’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                          15
                                            Harvey Brown
                                            Justice

Panel consists of Justices Radack, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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