Opinion filed July 18, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-17-00206-CR
                                    __________

                              PETE PEREZ, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee

                      On Appeal from the 161st District Court
                               Ector County, Texas
                       Trial Court Cause No. B-16-0213-CR


                      MEMORANDUM OPINION
       In a single indictment, the grand jury indicted Pete Perez on one count of
continuous sexual abuse of a young child and two counts of sexual assault of a child.
In a trial before a jury, Appellant pleaded guilty to the two counts of sexual assault
of a child and not guilty to the charge of continuous sexual abuse of a young child.
The jury found Appellant guilty on all three counts. Appellant elected to have the
trial court assess punishment. The trial court assessed punishment at confinement
for life for the continuous sexual abuse of a young child and at twenty years on each
of the convictions for sexual assault of a child.     The trial court ordered that the
sentences were to run consecutively.
      In two issues on appeal, Appellant argues that the trial court abused its
discretion when it (1) denied Appellant’s motion to sever Count I from Counts II
and III and (2) allowed the admission of DNA evidence. We affirm.
      Because there is no challenge to the sufficiency of the evidence, we will only
briefly discuss the facts that appear in the record. Appellant was A.M.’s father.
A.M. and her family moved to Odessa when A.M. was in the second grade. A.M.
testified that, after they moved to Odessa, Appellant had sexual intercourse with her
when she was eleven or twelve years old. Appellant continued to have sexual
intercourse with A.M. “probably once a week” or every other week.
      A.M. also testified that, when she was a fourteen-year-old freshman,
Appellant withdrew A.M. from school to be homeschooled. However, Appellant
did not homeschool A.M.; instead, Appellant had sexual intercourse with her “about
four or five times a day” while A.M.’s mother was at work. Eventually A.M. became
pregnant with Appellant’s child. The same night that A.M. returned home after she
gave birth, Appellant continued to sexually assault her.
      In his first issue, Appellant contends that the trial court erred when it overruled
his motion to sever the count for continuous sexual abuse of a young child from the
two counts for sexual assault of a child. We review the decision of a trial court to
grant or deny a severance, based upon the statute involved here, for an abuse of
discretion. Salazar v. State, 127 S.W.3d 355, 365 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d).
      Chapter Three of the Texas Penal Code governs the consolidation, joinder,
and severance of multiple offenses tried in a single criminal action. A defendant
may seek a severance when two or more offenses have been consolidated or joined
for trial in a single criminal action. TEX. PENAL CODE ANN. § 3.04 (West 2011). But
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the defendant’s right to severance of the offenses is not absolute. A defendant’s
right to severance is limited by Section 3.04(c) of the Texas Penal Code, which
provides that the right to severance does not apply to a prosecution for offenses
described by Section 3.03(b) “unless the court determines that the defendant or the
state would be unfairly prejudiced by a joinder of offenses, in which event the judge
may order the offenses to be tried separately or may order other relief as justice
requires.” Id. § 3.04(c).
      All three offenses with which Appellant was charged in this case are listed in
Section 3.03(b). Because Appellant was charged with continuous sexual abuse of a
young child and two additional offenses of sexual assault of a child, Appellant did
not have the right to compel a severance.          See id. § 3.03(b) (West Supp.
2018), § 3.04(c).   Appellant could obtain a severance only if the trial court
determined that he or the State would be unfairly prejudiced by a joinder of the
offenses. See id. § 3.04(c).
      “The primary reason for a defendant to sever offenses is to limit the
presentation of evidence of the defendant’s wrongdoing to one offense, rather than
allowing presentation of evidence of multiple offenses.” Thornton v. State, 986
S.W.2d 615, 617 (Tex. Crim. App. 1999). A severance of the three charged offenses
would not have limited the presentation of evidence of Appellant’s wrongdoing to
only one offense because Article 38.37 of the Texas Code of Criminal Procedure
permits the admission of evidence of other acts committed by a defendant against a
child victim in cases involving those offenses charged here. See TEX. CODE CRIM.
PROC. ANN. art. 38.37 (West 2018). We overrule Appellant’s first issue on appeal.
      In his second issue, Appellant argues that the trial court abused its discretion
when it admitted certain DNA evidence because the “DNA evidence presented at
trial concerned the allegations in Counts [II and III] only. No DNA evidence existed
to support Count I.” Because he pleaded guilty to Counts II and III, Appellant argues
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that the DNA evidence had a low probative value to a finding of guilt in Count I and
had a high danger of unfair prejudice. Therefore, Appellant maintains, the DNA
evidence was inadmissible under Rule 403 of the Texas Rules of Evidence.
       Article 38.37, section 1(b) of the Texas Code of Criminal Procedure provides:
             Notwithstanding 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.
CRIM. PROC. art. 38.37, § 1(b).
       The above quoted provision applies to the offense of continuous sexual abuse
of a young child. Id. § 1(a)(1)(A). However, upon proper objection or request, the
trial court must still perform the balancing test provided for in Rule 403 of the Texas
Rules of Evidence. Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet.
ref’d.).
       Under Rule 403, relevant evidence may be excluded if the trial court
determines that the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice, that it causes confusion of the issues, that it misleads
the jury, that the presentation of the evidence causes undue delay, or that the
evidence is a needless presentation of cumulative evidence. TEX. R. EVID. 403;
Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.—San Antonio 2016, pet.
ref’d.). When a trial court overrules a Rule 403 objection, we presume that it
performed a Rule 403 balancing test and determined that the evidence was
admissible. Hitt, 53 S.W.3d at 706.



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      In Gigliobianco, the court wrote that “‘probative value’ refers to the inherent
probative force of an item of evidence—that is, how strongly it serves to make more
or less probable the existence of a fact of consequence to the litigation—coupled
with the proponent’s need for that item of evidence.” Gigliobianco v. State, 210
S.W.3d 637, 641 (Tex. Crim. App. 2006). The need for the evidence might not be so
great if there is other evidence to establish the proposition for which the evidence is
offered. Id. (citing Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App.
1991) (op. on reh’g)).
      The court in Gigliobianco also said that the term “‘unfair prejudice[]’ refers
to a tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Id. The court also wrote: “Evidence might be
unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for
one side without regard to the logical probative force of the evidence.” Id. (citing
K. Broun et al., MCCORMICK ON EVIDENCE § 185 at 737 (6th ed. 2006)).
      Appellant’s objection in the trial court necessitates that we address two more
terms: “confusion of the issues” and “misleading the jury.” In Gigliobianco, the
court said that “confusion of the issues” referred to that evidence that would tend to
confuse or distract the jury from the main issues in the case. Id. The term
“misleading the jury” referred to the possibility that a jury would give more weight
to a piece of evidence for reasons other than emotional ones. Id.
      We hold that the trial court did not abuse its discretion when it admitted the
DNA evidence. We have examined the record, and we fail to see how the evidence
could confuse or mislead the jury. To the contrary, the DNA evidence went to the
very heart of the issue in this case.
      As far as the prejudicial effect of the evidence is concerned, A.M. was the
only eyewitness to the continuous sexual abuse inflicted upon her by her father. As


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happens quite often in these types of cases, there was no other physical evidence to
confirm A.M.’s testimony. Therefore, the DNA evidence was important to the State.
        There is no denying the fact that the testimony was highly prejudicial because
it was probative of Appellant’s propensity to repeatedly sexually assault his young
daughter, sometimes multiple times each day. See Belcher v. State, 474 S.W.3d 840,
848 (Tex. App.—Tyler 2015, no pet.) (evidence highly prejudicial but admissible
because probative of propensity to sexually assault daughter). Although the DNA
testimony was prejudicial, it was not unfairly so. We overrule Appellant’s second
issue on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


July 18, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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