                                       NO. 12-16-00036-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

RAUL CASTANON SALAZU,                              §    APPEAL FROM THE 86TH
APPELLANT

V.                                                 §    JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §    KAUFMAN COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Raul Castanon Salazu appeals from his conviction for continuous sexual abuse of a child.
In two issues, he challenges the admission of extraneous offense evidence at trial and contends
that the trial court committed cumulative error. We affirm.


                                               BACKGROUND
       The State charged Appellant with continuous sexual abuse of Charlie Jackson, a child
under fourteen years of age.1 Appellant pleaded “not guilty” to the charged offense. At trial,
Charlie testified that Appellant babysat him and cut his hair. During these times, Appellant
sexually abused Charlie. He testified that the abuse began when he was between the ages of four
and six and continued until he was eleven years old. The jury found Appellant guilty of
continuous sexual abuse of a child. The trial court sentenced Appellant to imprisonment for
sixty-five years.




       1
           “Charlie Jackson” is a pseudonym.
                                    EXTRANEOUS OFFENSE EVIDENCE
        In his first issue, Appellant challenges the trial court’s admission of extraneous offense
evidence at trial.2 He complains that Charlie’s brother was allowed to testify to acts of sexual
abuse that Appellant allegedly committed against him. Appellant argues that the evidence was
admitted in violation of Texas Rules of Evidence 403 and 404(b).
Standard of Review and Applicable Law
        We review a trial court’s evidentiary rulings for abuse of discretion. Oprean v. State, 201
S.W.3d 724, 726 (Tex. Crim. App. 2006). We must uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any theory of law applicable to the case.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will not reverse unless the
trial court’s ruling falls outside the “zone of reasonable disagreement.” Oprean, 201 S.W.3d at
726.
        Generally, an extraneous offense is not admissible to prove a person’s character in order
to show that the person acted in accordance with that character. TEX. R. EVID. 404(b). However,
article 38.37 creates an exception to Rule 404(b) for certain cases, including continuous sexual
abuse of a child. TEX. CODE. CRIM. PROC. ANN. art. 38.37 § 2(a)(1)(B), (b) (West Supp. 2016);
Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref’d). Under section 2 of
article 38.37, evidence that the defendant committed a separate offense may be admitted at trial
for any bearing it has on relevant matters, including the defendant’s character and acts performed
in conformity with that character. TEX. CODE. CRIM. PROC. ANN. art. 38.37 § 2(a)(1)(B), (b).
Section 2 of article 38.37 supersedes Rule 404(b). Hitt, 53 S.W.3d at 705.
        Nevertheless, even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403. When
extraneous acts are relevant under article 38.37, the trial court must still “conduct a Rule 403
balancing test upon proper objection or request.” Belcher v. State, 474 S.W.3d 840, 847 (Tex.
App.—Tyler 2015, no pet.); see Hitt, 53 S.W.3d at 706. A Rule 403 balancing test considers (1)
the inherent probative force of the evidence; (2) the proponent’s need for the evidence; (3) any


        2
           The State contends that Appellant failed to preserve this issue for review. However, at a hearing outside
the jury’s presence, defense counsel objected that the evidence was more prejudicial than probative. The trial court
overruled the objection. Thus, the complaint is preserved. See TEX. R. EVID. 103(b); see also Ethington v. State,
819 S.W.2d 854, 858 (Tex. Crim. App. 1991).


                                                         2
tendency of the evidence to suggest a decision on an improper basis, to confuse or distract the
jury from the main issues, or to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence; and (4) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Facts
        At a hearing conducted pursuant to article 38.37, Charlie’s brother, F.G.J., testified that
Appellant cut his hair when he was younger. He testified that Appellant rubbed his head longer
than normal and massaged his shoulders. He further testified that pornographic material was
played in the background. Appellant sometimes offered F.G.J. money or items in exchange for
sexual favors, but F.G.J. refused. One evening, while driving F.G.J. home, Appellant begun
rubbing F.G.J.’s leg and penis. F.G.J. attempted to exit the vehicle, but Appellant prevented him
from doing so and kept asking F.G.J. if he was going to tell anyone. He allowed F.G.J. to exit
the vehicle once he appeared to accept that F.G.J. would not disclose what had happened.
        Defense counsel argued that the evidence is irrelevant, was not proven beyond a
reasonable doubt, and any probative value was outweighed by its prejudicial effect. He further
argued that admission of the evidence would violate article 38.37, due process, Appellant’s right
to a fair trial, equal protection, and ex post facto laws. The State responded that the evidence
was admissible under article 38.37, as well as to show motive and opportunity. The trial court
overruled Appellant’s objections, and held that the “evidence is sufficient, and the jury could
find beyond a reasonable doubt that the defendant did commit that extraneous offense.”
Analysis
        In this case, the extraneous offense evidence was not of a technical or confusing nature.
Nor did the evidence take an inordinate amount of time to present or repeat previously admitted
evidence. See Gigliobianco, 210 S.W.3d at 641-42. F.G.J.’s testimony regarding the abuse by
Appellant comprises less then fifteen pages of the record. The State briefly mentioned the
testimony during its closing arguments, and argued that Appellant directed his attention from
F.G.J. to Charlie. The State also emphasized to the jury that it could consider the evidence only
if it found the evidence to be true beyond a reasonable doubt. In the jury charge, the trial court
instructed the jury as follows:




                                                 3
       You are further instructed that if there is evidence before you concerning alleged offenses against
       a child under seventeen years of age other than the complainant alleged in the indictment, such
       offense or offenses, if any, may only be considered if you believe beyond a reasonable doubt that
       the defendant committed such other offense or offenses, if any, and then you may consider said
       evidence for any bearing the evidence has on relevant matters.


       Additionally, 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[.]” Id. at 641. In this case, the challenged evidence was relevant to whether
Appellant abused Charlie. See Bezerra v. State, 485 S.W.3d 133, 141 (Tex. App.—Amarillo
2016, pet. ref’d) (finding evidence of previous sexual assaults against another child probative of
fact that defendant’s actions toward the complainants were not innocent); see also Robisheaux v.
State, 483 S.W.3d 205, 221 (Tex. App.—Austin 2016, pet. ref’d) (evidence of extraneous
offense relevant to whether defendant abused complainant); Belcher, 474 S.W.3d at 847
(extraneous offense probative of defendant’s propensity to sexually assault children); TEX. R.
EVID. 401 (relevant evidence is that which “has any tendency to make a fact more or less
probable than it would be without the evidence . . . and the fact is of consequence in determining
the action”). Although Charlie’s testimony alone supports the jury’s verdict, the trial court could
reasonably conclude that the State needed the extraneous offense evidence in the absence of
eyewitnesses and physical evidence. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—
Waco 2009, pet. ref’d) (trial court could conclude need for extraneous offense was
“considerable” because State had no eyewitnesses or physical evidence to corroborate child
complainant’s testimony). This is particularly true given Appellant’s arguments to the jury
regarding inconsistencies in Charlie’s testimony. See Belcher, 474 S.W.3d at 847.
       Because of the inherently inflammatory and prejudicial nature of sexual offenses against
children, extraneous offense evidence has a tendency to suggest a verdict on an improper basis.
Newton, 301 S.W.3d at 320. Nevertheless, the trial court’s limiting instruction in the jury charge
somewhat counterbalances the danger of unfair prejudice. See id. We presume that the jury
followed the trial court’s instructions. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim.
App. 2003). Moreover, F.G.J.’s allegations were no more serious than those on which the
indictment was based. See Robisheaux, 483 S.W.3d at 220. Accordingly, we cannot say that the
evidence had a tendency to distract the jury or be given undue weight. See id. at 220-21.




                                                       4
         Under these circumstances, we conclude that there is not such a clear disparity between
the degree of prejudice of the challenged evidence and its probative value as to warrant exclusion
under Rule 403.         See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
Accordingly, the trial court did not abuse its discretion by admitting the complained-of evidence.
See Oprean, 201 S.W.3d at 726; see also Willover, 70 S.W.3d at 845. We overrule Appellant’s
first issue.


                                             CUMULATIVE ERROR
         In his second issue, Appellant maintains that the trial court committed cumulative error.
He argues that the admission of F.G.J.’s testimony “involved matters of constitutional law and
state law which so infected the entire trial that Appellant’s conviction violates due process and a
fair jury trial in violation of the 14th Amendment.”
Analysis
         “The cumulative error doctrine provides relief only when constitutional errors so ‘fatally
infect the trial’ that they violated the trial’s ‘fundamental fairness.’” United States v. Bell, 367
F.3d 452, 471 (5th Cir. 2004) (quoting Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir.1992));
see Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). However, cumulative error
is not caused by non-errors. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App.
1999). In light of our disposition of Appellant’s first issue, we conclude that there is no
cumulative error in this case. See id.; see also Ryser v. State, 453 S.W.3d 17, 43 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d) (“Because we have concluded that there was no error, there
can be no cumulative error or harm.”). We overrule Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered August 31, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

                                             (DO NOT PUBLISH)




                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 31, 2016


                                          NO. 12-16-00036-CR


                                   RAUL CASTANON SALAZU,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 86th District Court
                      of Kaufman County, Texas (Tr.Ct.No. 14-50562-86-F)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        Greg Neeley, Justice.
                        Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
