                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00437-CR

DANIEL SCOTT JOHNSON,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                            From the 77th District Court
                             Limestone County, Texas
                              Trial Court No. 12,564-A


                          MEMORANDUM OPINION


      In four issues, appellant, Daniel Scott Johnson, challenges his convictions for

seven counts of sexual assault of a child and three counts of indecency with a child by

contact—both second-degree felonies. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), (d),

22.011(a)(2)(A), (f) (West 2011). We affirm.
                                        I.     BACKGROUND1

        Appellant was charged by indictment with seven counts of sexual assault of a

child and three counts of indecency with a child by contact for conduct perpetrated

against A.G., a child younger than seventeen years of age, from October 2003 to June

2006. Appellant pleaded “not guilty” to the charges, and a jury trial commenced.

        At the conclusion of the trial, the jury found appellant guilty on all counts and

sentenced him to twenty years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice for each count of sexual assault and fifteen years’

confinement for each count of indecency with a child by contact. The trial court ordered

the imposed sentences to run concurrently with the exception of one of the sexual

assault counts, which was ordered to run consecutive with the other imposed sentences.

The trial court certified appellant’s right of appeal, and this appeal followed.

                                 II.     EXCLUSION OF TESTIMONY

        In his first two issues, appellant contends that the trial court erred in excluding

portions of testimony provided by his wife, Rosa Linda Johnson, who is also the older

sister of A.G. Specifically, appellant contends that the trial court denied him: (1) “due

process and due course of law by failing to permit testimony which constituted a denial

of his right to present a complete defense”; and (2) “the right to confront his accusers by

failing to permit testimony which constituted a denial of his right to present a complete

defense.”



        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite
those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

Johnson v. State                                                                              Page 2
A.      Applicable Law

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

discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); McDonald v.

State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion

standard, an appellate court should not disturb the trial court’s decision if the ruling

was within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367

(Tex. Crim. App. 2008).

        Relevant evidence is that which has any tendency to make the existence of any

fact of consequence more or less probable than it would be without the evidence. TEX.

R. EVID. 401. However, evidence may be excluded under Texas Rule of Evidence 403 if

the danger of unfair prejudice substantially outweighs the probative value of the

evidence. TEX. R. EVID. 403. Rule 403 favors admission of relevant evidence and carries

a presumption that relevant evidence will be more probative than prejudicial. Allen v.

State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53

(Tex. Crim. App. 1996). The trial court has broad discretion in conducting a Rule 403

balancing test, and we will not lightly disturb its decision. Allen, 108 S.W.3d at 284. All

testimony and physical evidence are likely to be prejudicial to one party or the other.

Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Jones, 944 S.W.2d at 653. It is

only when there exists a clear disparity between the degree of prejudice of the offered

evidence and its probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806

(citing Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997)).



Johnson v. State                                                                     Page 3
        A proper Rule 403 analysis includes balancing the following factors: (1) the

inherent probative force of the proffered 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—along with (2) the proponent’s need for that evidence against (3) any

tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of

the evidence to confuse or distract the jury from the main issues, (5) any tendency of the

evidence to be given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood that presentation of the evidence

will consume an inordinate amount of time or merely repeat evidence already admitted.

See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Erazo v. State, 144

S.W.3d 487, 489 (Tex. Crim. App. 2004); see also Cressman v. State, No. 10-11-00393-CR,

2012 Tex. App. LEXIS 9849, at **8-10 (Tex. App.—Waco Nov. 29, 2012, no pet.) (mem.

op., not designated for publication).

B.      Discussion

        On appeal, appellant argues that the trial court prevented him from presenting a

complete defense by excluding testimony from Rosa Linda about prior sexual abuse

allegedly perpetrated by Marco, Rosa Linda and A.G.’s father. At trial, appellant made

an offer of proof regarding Rosa Linda’s testimony, wherein she stated that Marco

touched her inappropriately fifteen or twenty times. Rosa Linda also noted that A.G.

told her and her mother that Marco touched A.G. inappropriately as well. Rosa Linda

alleged that Marco consented to her marrying appellant at the age of sixteen because

she threatened to report him for the alleged sexual abuse. Rosa Linda recounted that

Johnson v. State                                                                       Page 4
her relationship with Marco has been virtually non-existent for fifteen years and that

Marco had hit her and was convicted of class C assault. Finally, Rosa Linda stated that

A.G. was very upset that her parents did not allow her to live with Rosa Linda and that

her relationship with A.G. has not been very good since that time.

        Based on our review of the record, we believe that the probative value of Rosa

Linda’s testimony regarding the alleged prior sexual abuse by Marco is outweighed by

the prejudicial effect of the evidence, if any. Specifically, A.G., who was twenty-three at

the time of trial, positively identified appellant, and no one else, as the perpetrator of

the charged offenses. Moreover, when questioned outside the presence of the jury, A.G.

denied any sexual abuse at the hands of Marco. Additionally, A.G.’s mother testified

during an in-camera hearing that A.G. never told her that Marco had touched her

inappropriately. A.G.’s mother also denied that A.G. told Rosa Linda that Marco had

touched her inappropriately.

        Moreover, to the extent that appellant argues that the testimony was necessary to

rebut medical evidence presented by the State, we note that Ann Sims, M.D., testified

that A.G. had a deep notch on her hymen that could be consistent with penetrating

vaginal trauma; however, Dr. Sims emphasized that she could not conclusively state

that the deep notch was caused by sexual abuse because she had not examined A.G.’s

hymen prior to the alleged sexual abuse. Dr. Sims also stated that thinning in the notch

“is really not a very significant finding.”

        Given the above, we conclude that the complained-of testimony would have

confused or distracted the jury from the main issue—whether appellant perpetrated the

Johnson v. State                                                                     Page 5
crimes against A.G.—and would have been more prejudicial than probative.                    See

Gigliobianco, 210 S.W.3d at 641-42.

        Regarding appellant’s argument that he was denied the right to confront and

cross-examine witnesses, we note that the exclusion of a victim’s prior sexual history

has been held not to violate a defendant’s confrontation and cross-examination rights.

See Allen v. State, 700 S.W.2d 924, 930-31 (Tex. Crim. App. 1985) (stating that “[t]here

have been numerous attacks upon the so-called rape shield statutes as violative of the

Sixth Amendment and these generally have been rejected” because “the right to

confront and to cross-examine is not absolute and may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial process” (internal citations

omitted)). Texas Rule of Evidence 412(b) provides that “evidence of specific instances

of an alleged victim’s past sexual behavior” is inadmissible unless the evidence falls

within five categories of evidence and the trial court finds that the probative value of

the evidence outweighs the danger of unfair prejudice. TEX. R. EVID. 412(b).

        Moreover, the Constitution requires only the introduction of otherwise relevant

and admissible evidence. Hale v. State, 140 S.W.3d 381, 396 (Tex. App.—Fort Worth

2004, pet. ref’d) (citing United States v. Nixon, 418 U.S. 683, 711, 94 S. Ct. 3090, 3109, 41 L.

Ed. 2d 1039 (1974)). “Thus, before evidence of an alleged victim’s sexual behavior may

be admitted under rule 412(b)(2)(E), the defendant must first establish the relevancy of

the evidence to a material issue in the case. Id. “If the evidence is not relevant, it is not

admissible.” Id.



Johnson v. State                                                                         Page 6
        Additionally, we note that the trial court retains wide latitude to impose

reasonable limits on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 678,

106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986). The trial court must carefully consider

the probative value of the evidence and weigh it against the risks of admission. See

Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982). These potential

risks include “the possibility of undue prejudice, embarrassment or harassment to

either a witness or a party, the possibility of misleading or confusing the jury, and the

possibility of undue delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222

(Tex. Crim. App. 2000).      Furthermore, “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, or to whatever extent, the defense might wish.” Delaware v. Fensterer,

474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985) (emphasis in original); see

Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort Worth 2009, pet. ref’d).

        As stated earlier, A.G. and A.G.’s mother refuted Rosa Linda’s testimony that

Marco sexually abused A.G.        A.G. identified appellant, and no one else, as the

perpetrator responsible for the sexual assault she suffered. Moreover, Rosa Linda did

not identify the time period in which she believed that Marco sexually abused A.G. to

correspond with the time period alleged in the indictment, nor did she refute A.G.’s

testimony that appellant committed the charged offenses. Therefore, to the extent that

appellant sought to introduce Rosa Linda’s testimony to attack the identity element of

the crime, we conclude that the complained-of testimony was irrelevant to the issue of

whether appellant committed the charged offenses during the time period described in

Johnson v. State                                                                    Page 7
the indictment. See TEX. R. EVID. 401; Nixon, 418 U.S. at 711, 94 S. Ct. at 3109; Hale, 140

S.W.3d at 396. Accordingly, we cannot say that appellant was denied his right to

confront or cross-examine witnesses. See Van Arsdall, 475 U.S. at 678, 106 S. Ct. at 1434-

35; Fensterer, 474 U.S. at 20, 106 S. Ct. at 294; see also Hodge, 631 S.W.2d at 758; Walker, 300

S.W.3d at 844-45.

        And finally, to the extent that appellant argues that the trial court’s ruling denied

him due process and the opportunity to present a complete defense, the record reflects

that appellant did not articulate this complaint at trial. To preserve error, there must

have been a timely request, objection, or motion stating the grounds for the ruling with

sufficient specificity to make the trial court aware of the complaint and secure a ruling.

See TEX. R. APP. P. 33.1. Specifically, regarding the exclusion of evidence, a party must

not only tell the judge that the evidence is admissible, but also explain why it is

admissible.        See Reyna v. State, 168 S.W.3d 173, 177-79 (Tex. Crim. App. 2005).

Moreover, the explanation given at trial must match the one urged on appeal. Id. at 179.

Because appellant did not complain in the trial court that the complained-of ruling

denied him due process and the opportunity to present a complete defense, the trial

judge “never had the opportunity to rule upon” this rationale.              Id.   We therefore

conclude that appellant failed to properly preserve this contention. See id.; see also TEX.

R. APP. P. 33.1.

        Based on the foregoing, we cannot say that the trial court abused its discretion by

excluding portions of Rosa Linda’s testimony. See De La Paz, 279 S.W.3d at 343; see also



Johnson v. State                                                                         Page 8
Bigon, 252 S.W.3d at 367. Accordingly, we overrule appellant’s first two issues on

appeal.

                                   III.   DOUBLE JEOPARDY

        In his third and fourth issues, appellant contends that his convictions for

multiple counts of sexual assault with a child and indecency with a child by contact

violated the Double Jeopardy Clause of the United States Constitution. See U.S. CONST.

amend. V.

A.      Facts

        As the following table describes, appellant was convicted of seven counts of

sexual assault of a child and three counts of indecency with a child by contact:

Indictment Charged Offense           Date of Offense                      Punishment
Count
1          Indecency with a child On or about October 2, 2003             15        years
           by contact                                                     concurrent
2          Sexual assault of a child On or about October 2, 2003          20        years
                                                                          concurrent
3               Sexual assault of a child On or about November 2, 2003    20        years
                                                                          concurrent
4               Indecency with a child On or about December 2, 2003       15        years
                by contact                                                concurrent
5               Sexual assault of a child On or about October 2, 2004     20        years
                                                                          concurrent
6               Sexual assault of a child On or about February 2, 2005    20        years
                                                                          consecutive
7               Indecency with a child On or about March 2, 2005          15        years
                by contact                                                concurrent
8               Sexual assault of a child On or about May 2, 2006         20        years
                                                                          concurrent
9               Sexual assault of a child On or about May 2, 2006         20        years
                                                                          concurrent
10              Sexual assault of a child On or about June 2, 2006        20        years
                                                                          concurrent


Johnson v. State                                                                   Page 9
        On appeal, appellant asserts that Counts 1 and 4 are subsumed into the

completed sexual assaults charged in Counts 2 and 3. In addition, appellant argues that

Counts 8, 9, and 10 occurred on the same date at the same location—the Limestone

Inn—and therefore constitute a single offense. We disagree.

B.      Applicable Law

        The Fifth Amendment to the United States Constitution provides that no person

“shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

U.S. CONST. amend. V. In other words, the Fifth Amendment’s prohibition against

double jeopardy protects against: “1) a second prosecution for the same offense after

acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple

punishments for the same offense.” Weinn v. State, 326 S.W.3d 189, 192 (Tex. Crim.

App. 2010) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187

(1977)); Stephens v. State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (en banc).

“Conceptually, the State and Federal double jeopardy provisions are identical.”

Stephens, 806 S.W.2d at 815; see Ex parte Busby, 921 S.W.2d 389, 392 (Tex. App.—Austin

1996, pet. ref’d); see also TEX CONST. art. I, § 14. Here, appellant contends that he is being

punished twice for the same offense.

        “When the same conduct violates different criminal statutes, the two offenses are

the same for double jeopardy purposes if one of the offenses contains all the elements of

the other.” Belt v. State, 227 S.W.3d 339, 344 (Tex. App.—Texarkana 2007, no pet.). For

example, “greater inclusive and lesser included offenses are the same for jeopardy

purposes.” Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). The Texas

Johnson v. State                                                                         Page 10
Court of Criminal Appeals has held that indecency with a child can be a lesser-included

offense of sexual assault of a child if both offenses are predicated on the same conduct.

Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009); Vick v. State, 991 S.W.2d 830,

834 n.2 (Tex. Crim. App. 1999); Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App.

1998).

         Although a person “who commits more than one discrete sexual assault against

the same complainant may be convicted and punished for each separate act, even if the

acts were committed in close temporal proximity,” the penal statutes do not allow

“stop-action” prosecutions. Barnes v. State, 165 S.W.3d 75, 87 (Tex. App.—Austin 2005,

no pet.). In other words, “a conviction for a completed sexual assault bars conviction

for conduct that is demonstrably part of the commission of that offense.” Id. For

example, “penile contact with [the] mouth, genitals or anus in the course of penile

penetration will be subsumed.” Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App.

2004).

         The Texas Court of Criminal Appeals has explained:

         It is clear that sexual exploitation of children is of great concern to the
         legislature. The offenses enumerated by the legislature cover a range of
         deviant sexual conduct, beginning with exposure and continuing through
         sexual contact to penetration and including incest and child prostitution.
         The scheme encompasses escalation of abuse; no matter where in the
         range the perpetrator stops, the offense is complete at that point. That is
         not to say that every offense in the range can in all cases be prosecuted as
         a separate offense. While it is clear from the plain language of the various
         statutes that the legislature intended harsh penalties for sexual abuse of
         children, there is nothing in the language to suggest that it intended to
         authorize “stop-action” prosecution. Just as a conviction for a completed
         offense bars prosecution for an attempt to commit the same offense, a
         conviction for an offense set out in § 3.03 [of the Texas Penal Code] bars

Johnson v. State                                                                        Page 11
        conviction for conduct that, on the facts of the case, is demonstrably part
        of the commission of the greater offense. For example, indecency by
        genital exposure of oneself in the course of manual penetration of another
        are separate offenses, while penile contact with mouth, genitals, or anus in
        the course of penile penetration will be subsumed.

Id. at 91-92.

C.      Discussion

        In the present case, each count alleged in the indictment referenced a separate

and discrete act that was not subsumed within another offense.                     As stated above,

appellant complains about Counts 1, 2, 3, 4, 8, 9, and 10. Count 1 alleged that appellant

touched the breast of A.G. on the same day as he penetrated A.G.’s sexual organ, as

alleged in Count 2. Likewise, Count 4 alleged that appellant touched the breast of A.G.

on the same day as he penetrated A.G.’s sexual organ, which was alleged in Count 3.

Count 8 alleged that appellant caused A.G. to contact his sexual organ with her mouth,

and Count 9 alleged that appellant caused A.G.’s sexual organ to be contacted or

penetrated by appellant’s sexual organ. Count 10, which was alleged to have transpired

a month after Counts 8 and 9, asserted that appellant contacted or penetrated A.G.’s

sexual organ with his mouth. None of these counts allege the same conduct, and all are

separate and discrete offenses. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011(a)(2)(A);

see also Barnes, 165 S.W.3d at 87.           And unlike Belt, the facts in this case do not

demonstrate that the sexual assaults were based on the same conduct as the alleged

indecency with a child by contact counts.2 See 227 S.W.3d at 340-44. Accordingly, we



        2In Belt, the defendant was convicted of indecency with a child for contacting the complainant’s
anus with his penis and for penetrating the complainant’s anus with his penis. 227 S.W.3d 339, 340-42

Johnson v. State                                                                                Page 12
cannot conclude that a Double-Jeopardy violation occurred in this case. See U.S. CONST.

amend. V; see also Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (“In this

case[,] the second indictment alleged that appellee caused the child’s sexual organ to

contact his mouth. That conduct constituted a separate and distinct statutory offense

from the alleged penetration of the child’s sexual organ by appellee’s sexual organ,

despite the fact both are violations of a single statute.”); Barnes, 165 S.W.3d at 87 (“A

person who commits more than one discrete sexual assault against the same

complainant may be convicted and punished for each separate act, even if the acts were

committed in close temporal proximity.”). We overrule appellant’s third and fourth

issues.

                                            IV.     CONCLUSION

          Having overruled all of appellant’s issues on appeal, we affirm the judgments of

the trial court.




(Tex. App.—Texarkana 2007, no pet.). In modifying Belt’s convictions, the Texarkana Court of Appeals
noted the following:

          Although the charge in our case did not require the jury to find a particular kind of
          contact with J.Y.’s anus to convict Belt on the indecency by contact count, there is no
          evidence that Belt touched part of J.Y.’s anus except by his penis. Thus, the offense of
          indecency with a child by touching J.Y.’s anus, of which the jury convicted Belt, was
          subsumed by the aggravated sexual assault by penile penetration conviction.

Id. at 344.

Johnson v. State                                                                                     Page 13
                                               AL SCOGGINS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 6, 2014
Do not publish
[CRPM]




Johnson v. State                                             Page 14
