                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00077-CR


LUIS CESAR GUTIERREZ                                             APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1433731D

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                       MEMORANDUM OPINION1

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     Appellant Luis Cesar Gutierrez appeals from his conviction for continuous

sexual abuse of a child younger than fourteen (CSA) and twenty-eight year

sentence. In three points, Gutierrez complains of the admission of extraneous

bad-act evidence and the imposition of two statutorily mandated court costs.




     1
      See Tex. R. App. P. 47.4.
Because we conclude his points raise no reversible error, we affirm the trial

court’s judgment.

                               I. BACKGROUND

      Gutierrez was indicted with the CSA of his ten-year-old stepdaughter,

Nina.2 See Tex. Penal Code Ann. § 21.02 (West Supp. 2016). At trial, Nina

testified that when her mother was not at home, Gutierrez would put his hands

inside her underwear, touch her female sexual organ with his hand, and digitally

penetrate her vagina.     These incidents—numbering approximately forty-five

times—began when Nina was ten and continued until she was thirteen. Nina

stated that Gutierrez also physically hit her on several occasions, which she

would occasionally, yet fruitlessly, report to her mother or grandparents. Nina did

not disclose the sexual abuse until the summer after she graduated from high

school, spurred by her discovery that her brother had been caught putting his

hands down his cousin’s pants.

      Ann, a former teenaged neighbor of Gutierrez’s, testified at the guilt-

innocence phase of trial that when she was thirteen or fourteen, she went to

Gutierrez’s house to get her sister. Gutierrez asked her what “turned [her] on”

and tried to kiss her. When Ann pushed him away and began to leave with her

sister, Gutierrez hugged Ann and said that “he was sorry if [Ann] felt something

poking [her],” which Ann took to mean that Gutierrez had an erection.

      To protect the involved minors’ identities, we refer to them by aliases.
      2

See Tex. R. App. P. 9.10(a)(3); 2d Tex. App. (Fort Worth) Loc. R. 7.


                                        2
      The jury found Gutierrez guilty of the CSA of Nina and after a punishment

hearing, assessed his punishment at twenty-eight years’ confinement. In the

resulting judgment imposing the sentence assessed by the jury, the trial court

imposed court costs of $679 against Gutierrez. The district clerk’s itemized bill of

costs, which was not incorporated into the judgment, reflected that $100 of the

costs was for “Child Abuse Prv” and that $133 was for “CCC-Felony.”

                     II. ADMISSION OF ANN’S TESTIMONY

      Gutierrez initially argues that the trial court abused its discretion by

admitting “evidence of an extraneous assault purportedly committed by

[Gutierrez]”—Ann’s testimony. Gutierrez asserts that even though admissible

under article 38.37, the evidence was substantially more prejudicial than

probative and should have been excluded. See Tex. Code Crim. Proc. Ann. art.

38.37, § 2(b) (West Supp. 2016).

                   A. PRESERVATION OF APPELLATE COMPLAINT

      The State asserts that Gutierrez’s overruled objection to Ann’s testimony—

“[Ann’s testimony is] inadmissible under 401, 402, and also prejudicial in this

case”—did not preserve his appellate complaint under rule 403 for our review

because he failed to refer to rule 403 or specifically state that the probative value

was outweighed by its prejudicial effect.       See Tex. R. Evid. 401–03.        We

disagree.

      By referring to rules 401 and 402—governing the admissibility of relevant

evidence—and then immediately stating that Ann’s testimony was “also


                                         3
prejudicial”—a ground to exclude otherwise admissible, relevant evidence under

rule 403—Gutierrez sufficiently alerted the trial court to the specifics of his

objection founded on the alleged unduly prejudicial nature of the testimony under

rule 403. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); see, e.g.,

Goswick v. State, No. 11-16-00164-CR, 2017 WL 2986841, at *4 (Tex. App.—

Eastland July 13, 2017, no pet.) (mem. op., not designated for publication);

Malone v. State, 405 S.W.3d 917, 925–26 (Tex. App.—Beaumont 2013, pet.

ref’d); Blackburn v. State, 820 S.W.2d 824, 827 (Tex. App.—Waco 1991, pet.

ref’d); cf. Lewis v. State, No. 02-16-00179-CR, 2017 WL 2686325, at *9 (Tex.

App.—Fort Worth June 22, 2017, no pet. h.) (mem. op., not designated for

publication) (concluding objection only stating that evidence was “prejudicial” did

not preserve appellate argument under rule 403); Checo v. State, 402 S.W.3d

440, 451 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding trial objection

“on the basis of Rule 403” did not preserve error for appeal because such an

objection “fails to identify . . . which of the five distinct grounds for excluding

evidence listed in the rule is being argued as a basis for exclusion”). Gutierrez’s

trial objection was sufficient to preserve his appellate argument under rule 403

for our review.3 See generally Bekendam v. State, 441 S.W.3d 295, 299–300


      3
        We note that although the State gave Gutierrez notice that it intended to
offer Ann’s testimony at trial, the trial court did not hold a hearing regarding the
admissibility of Ann’s testimony as required by article 38.37. Tex. Code Crim.
Proc. Ann. art. 38.37, §§ 2-a, 3. But Gutierrez did not object to the lack of an
article 38.37 hearing in the trial court and does not raise that argument on
appeal. See Stephens v. State, Nos. 02-15-00046-CR, 02-15-00047-CR,

                                         4
(Tex. Crim. App. 2014) (eschewing “hyper-technical” application of preservation

requirements if complaining party clearly and timely alerts trial court to bases for

objection and raises those same bases on appeal).

         B. PROBATIVE VALUE BALANCED AGAINST PREJUDICIAL EFFECT

      Otherwise relevant and admissible evidence may be excluded if its

probative value is substantially outweighed by its unfairly prejudicial effect. See

Tex. R. Evid. 403.    And even when extraneous bad-act evidence is relevant

under article 38.37, such evidence must meet the dictates of rule 403 if that issue

is raised in the trial court. See Belcher v. State, 474 S.W.3d 840, 847 (Tex.

App.—Tyler 2015, no pet.); Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—

Fort Worth 2008, pet. ref’d). We review a trial court’s determination under rule

403 for a clear abuse of discretion. See Mozon v. State, 991 S.W.2d 841, 846–

47 (Tex. Crim. App. 1999). In this review and recognizing that the trial court was

in a superior position to gauge the impact of the evidence, we measure the trial

court’s ruling against the rule 403 balancing criteria: (1) the inherent probative

force of the evidence along with (2) the State’s need for the 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


2016 WL 2586639, at *7 (Tex. App.—Fort Worth May 5, 2016, pet. ref’d) (mem.
op., not designated for publication). A formal hearing under rule 403 is not
required. See Cruz v. State, 122 S.W.3d 309, 313 (Tex. App.—Houston [1st
Dist.] 2003, no pet.); Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001,
pet. ref’d).


                                         5
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); Mozon, 991 S.W.2d at

847. At the outset, however, we recognize that rule 403 favors the admission of

relevant evidence and carries a presumption that relevant evidence will generally

be more probative than prejudicial. See Shuffield v. State, 189 S.W.3d 782, 787

(Tex. Crim. App. 2006). It is Gutierrez’s burden to overcome this presumption

and demonstrate that the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice. Sanders, 255 S.W.3d at 760.

      We conclude that Gutierrez failed to overcome this presumption. Nina’s

credibility was integral to the State’s case. Because of Nina’s five-year delay in

reporting the CSA, there was no physical evidence linking Gutierrez to the

charged offense. Gutierrez attacked Nina’s credibility at trial, asserting that she

had fabricated the sexual-abuse allegations because she did not get along with

him, because he had slapped her shortly before she reported the sexual abuse,

and because she had been in trouble with her mother for her behavior at the time

she made the report. Gutierrez’s opening statement to the jury showed that

Nina’s credibility was a large part of his defensive case:

      [Nina], she hates [Gutierrez]. . . . Hates, hates, hates. She hated
      the way he disciplined her. She hated the way that her mother
      would take his side over things. She hated the way that he wouldn’t


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       let her go on dates without taking the little sister . . . . [S]he hated
       the way that . . . he would record conversations where she’s calling
       him a stupid asshole to her friends and he records it to show her
       mom. She hated the way that he would follow her around to make
       sure that she wasn’t going off and doing things she wasn’t supposed
       to do.

              ....

              . . . [I]s there scientific or medical testimony? Is there any kind
       of evidence? No. The sex abuse nurse that examined her . . . took
       [Nina’s] word for it. Didn’t even examine her. . . .

              ....

              Do we have collateral issues, divorce, custody? Yes. . . . So
       when I tell you you are going to have a mess judging the credibility
       on this case, it is a burden.

And the State’s presentation of Ann’s testimony took up only 17 of the 214 pages

in the reporter’s record representing the evidentiary portion of the guilt-innocence

phase of trial. Factors one, two, and six weigh in favor of admission. See, e.g.,

Lambeth v. State, 523 S.W.3d 244, 249–50 (Tex. App.—Beaumont 2017, no

pet.); Coleman v. State, No. 06-16-00002-CR, 2017 WL 382419, at *3 (Tex.

App.—Texarkana Jan. 27, 2017, pet. ref’d) (mem. op., not designated for

publication); Alvarez v. State, 491 S.W.3d 362, 370–71 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d).

       The remaining factors do not show that the probative value of Ann’s

testimony was substantially outweighed by its prejudicial effect. Of course Ann’s

testimony was prejudicial, but not unfairly so. Indeed, its prejudicial nature arises

from the fact that it was especially probative of Gutierrez’s propensity to prey on



                                           7
young girls. See Belcher, 474 S.W.3d at 848; Bradshaw v. State, 466 S.W.3d

875, 883–84 (Tex. App.—Texarkana 2015, pet. ref’d).          Gutierrez argues that

because the incident with Ann was not a sexual offense and resulted only in a

complaint against Gutierrez for assault by offensive contact, it was “not related in

any way to the tale proffered by [Nina].” But merely because Ann’s testimony did

not establish a sexual offense against Ann does not mean that it was unfairly

prejudicial such that its exclusion under rule 403 was mandated. We see no

indication that Ann’s brief testimony distracted the jury from the main issues in

the case, suggested a decision on an improper basis, or was given undue weight

because the jury was ill equipped to evaluate its probative force. See Lambeth,

523 S.W.3d at 249–50; Gonzales v. State, 477 S.W.3d 475, 481–82 (Tex. App.—

Fort Worth 2015, pet. ref’d). The trial court’s admission of Ann’s testimony was

not a clear abuse of its broad discretion. We overrule point one.

                               III. COURT COSTS

                        A. CHILD-ABUSE-PREVENTION FEE

      In his second point, Gutierrez argues that the statute authorizing a $100

fee for child-abuse prevention upon conviction for a sexual offense against a

child, including CSA, is facially unconstitutional because it violates separation of

powers by turning the judicial branch into a tax collector. See Tex. Code Crim.

Proc. Ann. art. 102.0186(a) (West Supp. 2016). But we have held that this cost

is related to the administration of the criminal justice system such that the statute

authorizing collection of this cost is not facially unconstitutional. See Horton v.


                                         8
State, No. 02-16-00229-CR, 2017 WL 1953333, at *6 (Tex. App.—Fort Worth

May 11, 2017, pet. filed) (en banc) (relying on Ingram v. State, 503 S.W.3d 745,

749 (Tex. App.—Fort Worth 2016, pet. ref’d)).4 We overrule point two.

                               B. CONSOLIDATED FEE

      In point three, Gutierrez contends that section 133.102(a)(1) of the local

government code, authorizing a consolidated fee assessed upon conviction of a

felony, is facially unconstitutional. Specifically, he attacks the amounts statutorily

distributed to funds for comprehensive rehabilitation and abused children’s

counseling, which comprised 9.8306% of the $133 collected. Act of May 29,

2011, 82d Leg., R.S., ch. 1249, § 13(b), sec. 133.102(e), 2011 Tex. Sess. Law

Serv. 3348, 3352 (West) (amended 2017) (current version at Tex. Loc. Gov’t

Code Ann. § 133.102(e) (West Supp. 2016)).5

      Indeed, the court of criminal appeals held these two portions of the

consolidated fee to be facially unconstitutional because they were not distributed

for legitimate, criminal-justice purposes. See Salinas v. State, 523 S.W.3d 103,

109–10 (Tex. Crim. App. 2017). The State recognizes this precedent but argues

      4
       Gutierrez’s appellate counsel recognized this precedent and stated that
the issue was raised solely “to preserve it for further review.”
      5
        Effective June 15, 2017, the Texas Legislature amended the
consolidated-fee statute to delete the distributions for comprehensive
rehabilitation and abused children’s counseling and to readjust the percentage
allocations accordingly. Act of May 18, 2017, 85th Leg., R.S., ch. 966, §1, sec.
133.102(e) (West, Westlaw through 2017 1st C. Sess.) (current version at Tex.
Loc. Gov’t Code Ann. § 133.102(e)). No party argues that this amended statute
applies to the consolidated fee assessed against Gutierrez.


                                          9
that because the consolidated fee does not implicate Gutierrez’s personal rights

and because application of the Salinas holding is subject to a limited retroactive

approach, Gutierrez is not entitled to relief from these portions of the assessed

fee. Gutierrez contends that because the court of criminal appeals “does not

have a monopoly on protecting the people of Texas from unconstitutional

statutes” and because Salinas does not “explicitly prohibit this Court from”

granting him relief, this court must delete these portions of the unconstitutional

consolidated fee assessed against him.

      The court in Salinas expressly stated that its holding would apply

retroactively only (1) if the defendant challenging the fee had a pending petition

for discretionary review raising this constitutionality issue on the date of its

Salinas opinion—May 11, 2017—or (2) if the defendant’s trial ended after the

Salinas mandate issued—June 30, 2017. Id. at 113. Gutierrez meets neither of

these exceptions; therefore, he is not entitled to relief. See Horton, 2017 WL

1953333, at *5–6. We overrule point three.

                               IV. CONCLUSION

      Because the trial court did not clearly abuse its broad discretion by

admitting Ann’s testimony and because Gutierrez is not entitled to relief from the

imposition of court costs in the trial court’s judgment, we affirm. See Tex. R.

App. P. 43.2(a).




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                                         /s/ Lee Gabriel

                                         LEE GABRIEL
                                         JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 28, 2017




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