      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00082-CR



                                      Roger Reyes, Appellant

                                                   v.

                                    The State of Texas, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-08-830, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Roger Reyes of the offenses of continuous sexual abuse

of a child and sexual performance by a child. See Tex. Penal Code Ann. §§ 21.02, 43.25

(West Supp. 2010). Punishment was assessed at life imprisonment without the possibility of parole

for the continuous-sexual-abuse offense and fifty years’ imprisonment for the sexual-performance-

by-a-child offense, with the sentences to run concurrently. In four points of error, Reyes asserts that

the district court abused its discretion in admitting evidence of an extraneous offense, erred in failing

to give a contemporaneous limiting instruction to the jury regarding that offense, and erred in

allowing the victim of the extraneous offense to give her opinion as to the punishment that she

believed Reyes should receive. We will affirm the judgment.
                                         BACKGROUND

               Reyes was charged with sexually abusing his stepdaughter, E.R., on numerous

occasions beginning when she was ten or eleven years old and continuing until she reported

the abuse when she was thirteen years old. E.R. testified at trial and described the abuse in detail.

One of the incidents E.R. described involved Reyes tying her wrists with rope, stuffing a sock in her

mouth, and penetrating her while she was bound and lying on the floor. E.R. also testified, over

objection by defense counsel, regarding a similar incident in 1996 involving another victim that

Reyes had allegedly described to her. The testimony at issue consisted of the following:


       [Prosecutor]: Did Roger ever talk to you about having tied up anyone else with
                     ropes when he was—

       [Defense]:      Object, Your Honor. Calls for hearsay.

       [Prosecutor]: Calls for hearsay?

       [The Court]: That would be a statement against interest, I believe. Overruled.

       [Prosecutor]: So who else did he tie up with ropes that he told you—

       [Defense]:      Your Honor, I’m going to object under 404(b), those things we talked
                       about earlier.[1]

       [The Court]: We did talk about it earlier, and I believe it is now admissible. And
                    you can request a limiting instruction in the charge or at this time,
                    whichever you like, or both.

       [Defense]:      We’d ask for a limiting instruction.



       1
          Counsel was referring to a Rule 104 hearing held outside the presence of the jury prior to
E.R.’s testimony in which the parties discussed the extraneous offense evidence and the district court
withheld its ruling on the admissibility of the evidence until such time as the testimony pertaining
to the offense was elicited. See Tex. R. Evid. 104.

                                                  2
       [The Court]: Well, I’m going to have to hear the evidence first, but—

       [Defense]:       Okay.

       [The Court]: —I’ll certainly be receptive to one.[2]

       [Defense]:       Did Roger ever tell you about tying up anyone else?

       [E.R.]:          No.

       [Prosecutor]: [E.R.], did he tell you that—about using—tying up a girl?

       [E.R.]:          Yes.

       [Prosecutor]: Okay. What, if anything, do you remember him telling you about
                     having tied up another girl?

       [E.R.]:          He tried tying up a girl, and he was cocaine’d up [sic], and then he
                        told me that—that he was raping her, and then—and then she had said
                        that she was pregnant, and then—[3]

       [Prosecutor]: He was raping her—she was pregnant because she—he raped her? I
                     don’t understand.

       [E.R.]:          She—he was raping her when she was tied up.

       ....

       [Prosecutor]: Where was he living when that happened; did he tell you?

       [E.R.]:          No.

       [Prosecutor]: Okay. But he did tell you that he had done that before to another girl?

       [E.R.]:          Yes.



       2
           A limiting instruction was provided in the jury charge.
       3
          We note that Reyes did not make an objection to E.R.’s testimony regarding what “she”
(presumably the victim of the extraneous offense) had said about becoming pregnant, and it is not
an issue on appeal.

                                                  3
               Additional evidence concerning the above incident was subsequently admitted,

including the testimony of the officer who had investigated the incident and the written statement

of the victim, T.A., who was sixteen years old at the time of the incident. According to T.A.’s

statement, Reyes had grabbed her while she was walking past his apartment, dragged her into

the apartment, tied her up with stereo wire, and stuffed a sock in her mouth. Before Reyes could do

anything else to her, however, T.A. managed to untie herself and escape.

               Other evidence considered by the jury included the testimony of Lisa Reyes,

E.R.’s mother and Reyes’s wife; the police officers who had investigated the case; Noella Hill, the

Sexual Assault Nurse Examiner who had examined and interviewed E.R.; Angela Tanzillo-Swarts,

an analyst with the Department of Public Safety who had analyzed DNA that had been recovered

from a towel and a vibrator that had allegedly been used during some of the incidents and who

testified that E.R. and Reyes could not be excluded as contributors to the DNA profiles that had been

found on the items; and Brandon Winkenwelder, a computer forensics specialist with the San Marcos

Police Department who testified that pornographic images and videos that depicted adult and

underage females engaging in sexual acts had been recovered from Reyes’s computer.

               Reyes testified in his defense and denied all of the allegations against him. On cross-

examination, Reyes admitted that he had pleaded guilty to the offense in 1996 involving T.A. and

that, as part of a plea bargain with the State, he had received a sentence of eight years’ imprisonment

for that offense. Reyes further testified that he had been released on parole in 2000 after having

served approximately three years in prison.

               The jury found Reyes guilty as charged, and the case proceeded to punishment. One

of the witnesses during punishment was T.A., now an adult, who described the circumstances

                                                  4
surrounding the incident with Reyes in 1996 and claimed that she had continued to be traumatized

by the experience. During T.A.’s testimony, the State asked her, over objection by defense counsel,

“What do you think needs to happen to [Reyes] with regard to punishment? Do you have any

opinion about where he needs to go?” T.A. answered, “I don’t think he should ever get out. I think

he should be put away so that he doesn’t do this to anybody anymore. He doesn’t hurt anybody like

he’s hurt me.”

                 The jury returned its verdict on punishment as noted above and the district court

sentenced Reyes accordingly. This appeal followed.


                                             ANALYSIS

Admissibility of extraneous offense evidence

                 In his first point of error, Reyes asserts that E.R.’s testimony regarding what

Reyes had told her concerning the 1996 offense constitutes inadmissible hearsay. In his second

point of error, Reyes also claims that the admission of evidence pertaining to the 1996 offense

violates rule of evidence 404(b).

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

of discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). A trial court

abuses its discretion when its decision “is so clearly wrong as to lie outside that zone within

which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh’g)). “Furthermore, if the trial court’s evidentiary ruling is correct on any theory of law applicable




                                                   5
to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right

ruling.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

               When Reyes objected to E.R.’s testimony on the basis of hearsay, the district court

overruled the objection, characterizing the testimony as a “statement against interest.” See Tex. R.

Evid. 803(24). To fall under this exception to the hearsay rule, two requirements must be satisfied.

First, the trial court must determine whether the statement, considering all the circumstances,

subjects the declarant to criminal liability and whether the declarant realized this when he made that

statement. Walter v. State, 267 S.W.3d 883, 890-91 (Tex. Crim. App. 2008). Second, the trial court

must determine whether there are sufficient corroborating circumstances that clearly indicate

the trustworthiness of the statement. Id. at 891. Reyes argues that the first requirement cannot be

satisfied because at the time Reyes made the statement to E.R., he had already been convicted of and

served his sentence for the 1996 offense.

               However, Reyes overlooks another theory under which the district court could

have admitted the evidence—as an admission by a party opponent. See Tex. R. Evid. 801(e)(2)(A).

This rule “plainly and unequivocally states that a criminal defendant’s own statements, when

being offered against him, are not hearsay.” Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim.

App. 1999). Such statements “are admissible on the logic that a party is estopped from challenging

the fundamental reliability or trustworthiness of his own statements.” Id. Moreover, “party

admissions, unlike statements against interest, need not be against the interests of the party when

made; in order to be admissible, the admission need only be offered as evidence against the party.”

Id. Thus, regardless of whether E.R.’s testimony qualifies as a statement against interest, the

district court would not have abused its discretion in admitting the evidence as an admission by a

                                                  6
party opponent. See id.; Ballard v. State, 110 S.W.3d 538, 542 (Tex. App.—Eastland 2003,

pet. dism’d); see also Bingham v. State, 987 S.W.2d 54, 56-57 (Tex. Crim. App. 1999) (“While

statements against interest are admissible due to their reliability, admissions by party-opponents are

admissible precisely because they are being admitted against the party alleged to have made those

statements. Thus, that party cannot complain of an inability to cross-examine him/herself, and since

s/he is their author, s/he is estopped from complaining of their untrustworthiness.”).

               We similarly cannot conclude that the district court abused its discretion in overruling

Reyes’s Rule 404(b) objection. Rule 404(b) provides that evidence of other crimes, wrongs or acts

is not admissible to prove the character of a person in order to show action in conformity therewith.

Tex. R. Evid. 404(b). However, the general prohibition against the admission of extraneous offenses

is subject to numerous exceptions, one of which is to show proof of the defendant’s “plan.” See id.

This exception “allows admission of evidence to show steps taken by the defendant in preparation

for the charged offense.” Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005). Reyes

limits his argument to this particular exception. He contends that the evidence was not admissible

to show a “common scheme or plan” because “the evidence showed that the two incidents were

totally unrelated and separated by a number of years.” See id. at 452-53 (explaining that “[r]epetition

of the same act or same crime does not equal a ‘plan’” and that even when “two offenses

share numerous characteristics, ‘[a] series of similar acts are not enough to show a common

plan or design’”).

               However, even assuming that Reyes is correct, there are other exceptions under which

the district court could have admitted the evidence. For example, rebuttal of a defensive theory is

one of the permissible and perhaps most common purposes for which extraneous-offense evidence

                                                  7
may be admitted. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Albrecht

v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972). In this case, the defensive theory throughout

trial was that E.R.’s outcry had been fabricated by E.R. in an attempt to punish Reyes for disciplining

her and to separate Reyes from E.R.’s mother. The defense began developing this theory in its

opening statement, when counsel argued that E.R. “gets attention by telling stories” and that, as the

investigation progressed, her “story just continues to grow and to grow and to grow.” E.R.’s outcry

included an allegation that on one occasion, Reyes had assaulted her after tying her wrists with rope.

Thus, evidence that Reyes had similarly tied up another girl would have a tendency to rebut the

defensive theory that E.R.’s outcry was fabricated, and the district court would not have abused

its discretion in admitting the evidence on that basis. See Bass v. State, 270 S.W.3d 557, 563

(Tex. Crim. App. 2008) (explaining that “a defense opening statement, like that made in this case,

opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to

rebut the defensive theory presented in the defense opening statement,” and holding that trial court

does not abuse its discretion in admitting such evidence when “it is at least subject to

reasonable disagreement whether the extraneous-offense evidence was admissible for the

noncharacter-conformity purpose of rebutting appellant’s defensive theory that the complainant

fabricated her allegations against him”).

               We overrule Reyes’s first and second points of error.


Limiting instruction

               In his third point of error, Reyes claims that the district court erred by not providing

an oral instruction limiting the purpose for which the jury could consider the above extraneous-


                                                  8
offense evidence. See Tex. R. Evid. 105(a) (providing that when evidence admissible for one

purpose but inadmissible for another purpose is admitted, “the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly”); Rankin v. State, 974 S.W.2d 707,

713 (Tex. Crim. App. 1996) (holding that limiting instruction should be given in jury charge and also

at time evidence is admitted). The State responds that Reyes failed to preserve error on this point.

                We agree with the State. “To preserve error for appellate review, a party must make

a timely and specific objection or motion at trial, and there must be an adverse ruling by

the trial court.” Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see Tex. R. App.

P. 33.1(a). In this case, when Reyes requested a limiting instruction, the district court replied, “Well,

I’m going to have to hear the evidence first, but I’ll certainly be receptive to one.” The State then

proceeded to elicit testimony from E.R. regarding the extraneous-offense evidence. Reyes did not

renew his request for a limiting instruction at that time, nor did he later request a limiting instruction

when additional evidence concerning the extraneous offense was subsequently admitted. We cannot

conclude that the district court’s comment that it would “certainly be receptive” to a limiting

instruction constitutes an adverse ruling to Reyes’s request. See Wilson v. State, 7 S.W.3d 136, 144

(Tex. Crim. App. 1999) (defendant requested limiting instruction prior to admission of evidence;

trial court’s reply of “okay” constituted either no ruling or favorable ruling).

                Nor can we conclude that Reyes’s request for a limiting instruction was sufficiently

specific as to put the district court on notice that Reyes wanted a limiting instruction at the time the

evidence was admitted. See id. (finding that defendant further failed to preserve error because he

“did not express a clear desire for an instruction to be given contemporaneously with the admission

of the evidence”). When the district court overruled Reyes’s objection to the evidence, it informed

                                                    9
him that he could “request a limiting instruction in the charge or at this time, whichever you like, or

both.” Reyes responded, “We’d ask for a limiting instruction,” without specifying when he wanted

the limiting instruction to be given. We observe that the district court did provide a limiting

instruction in the jury charge, “which is one appropriate time for the instruction.” Id. Without a

specific request for a contemporaneous limiting instruction at the time the evidence was admitted,

and without the district court’s denial of such a request, there is nothing for us to review.

               We overrule Reyes’s third point of error.


Punishment

               In his fourth point of error, Reyes argues that the district court erred by allowing the

victim of the extraneous offense to testify to her opinion that she did not think Reyes “should ever

get out” of prison and that “he should be put away so that he doesn’t do this to anybody anymore.”

The State asserts in response that there was no error in the admission of this evidence or, in the

alternative, that any error was harmless.

               It is has long been the rule in Texas that an expert witness may not recommend a

particular punishment to the jury. See Sattiewhite v. State, 786 S.W.2d 271, 290-91 (Tex. Crim.

App. 1989); Fuller v. State, 819 S.W.2d 254, 258 (Tex. App.—Austin 1991, pet. ref’d). Several

intermediate courts of appeals have extended this rule to the opinions of non-experts regarding

punishment, including victims. See, e.g., Johnson v. State, 987 S.W.2d 79, 87 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref’d); Wright v. State, 962 S.W.2d 661, 663 (Tex. App.—Fort Worth 1998,

no pet.); Mayo v. State, 861 S.W.2d 953, 955 n.2 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d);

Hughes v. State, 787 S.W.2d 193, 196 (Tex. App.—Corpus Christi 1990, pet. ref’d); Gross v. State,


                                                  10
730 S.W.2d 104, 105-06 (Tex. App.—Texarkana 1987, no pet.). The rationale for excluding such

testimony is that it does not assist but instead tends to confuse the jury. See Sattiewhite, 786 S.W.2d

at 291. As one appeals court has explained, “the witnesses are in no better position to form an

opinion [as to punishment] than the jury itself, and the allowance of such opinions in evidence would

constitute merely an appeal to sympathy or prejudice, and would tend to suggest that the jurors may

shift their responsibility to the witnesses.” Gross, 730 S.W.2d at 105.4

               Assuming without deciding that the witness’s punishment recommendation

should not have been admitted, we cannot conclude on this record that Reyes was harmed by its

admission. A trial court’s error in admitting evidence should be disregarded unless the error affected

appellant’s substantial rights. See Tex. R. App. P. 44.2(b). “[S]ubstantial rights are not affected by

the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole,

has fair assurance that the error did not influence the jury, or had but a slight effect.’” Solomon

v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998)).

               This was a case in which the defendant was convicted of sexually abusing his pre-

adolescent stepdaughter on a continuous basis over a period of years. Most of the evidence admitted

at trial concerned that abuse. E.R.’s testimony concerning what Reyes did to her was detailed and


       4
          However, more recent decisions by the court of criminal appeals suggest that such opinion
testimony from victims may be admissible. See Taylor v. State, 109 S.W.3d 443, 454 (Tex. Crim.
App. 2003) (“A punishment recommendation from a non-victim—especially an expert—entails a
situation significantly different from a recommendation from the victim, who, at least arguably, was
in a position to give an opinion based rationally upon his observations of the crime itself and who
is the one who suffered from the crime in the first place.”); Fryer v. State, 68 S.W.3d 628, 630-31
(Tex. Crim. App. 2002) (permitting trial court to consider victim’s punishment recommendation
contained in PSI).

                                                  11
supported by considerable other evidence in the record, including DNA analysis. While we do not

minimize the seriousness of the extraneous offense involving the now-adult T.A. and the traumatic

effect it had on her, Reyes did not sexually assault T.A. On the other hand, Reyes sexually assaulted

E.R., who was still a minor at the time of trial, on numerous occasions. In such a context, T.A.’s

punishment recommendation likely had only a slight effect, if any, on the jury’s punishment

decision. Moreover, the record reveals that T.A.’s testimony concerning punishment was brief. The

State, during its closing argument, did not emphasize the challenged testimony. On this record, we

have fair assurance that T.A.’s punishment recommendation did not influence the jury or had but a

slight effect.

                 We overrule Reyes’s fourth point of error.


                                          CONCLUSION

                 We affirm the judgment of the district court.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: June 24, 2011

Do Not Publish




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