                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00364-CR
                             NO. 02-11-00365-CR


VICENTE ARELLANO-                                                APPELLANT
SANCHEZ

                                         V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

      In a single point, Appellant Vicente Arellano-Sanchez appeals his sexual

assault and prohibited sexual conduct convictions. We affirm.




      1
      See Tex. R. App. P. 47.4.
                           II. Procedural Background

      A jury convicted Arellano-Sanchez in trial court cause number F-2010-

2315-E (appellate cause number 02-11-00364-CR) of two counts of sexual

assault of his biological daughter Y.A. and three counts of prohibited sexual

conduct with Y.A. and assessed twenty years’ confinement for each count as

punishment. See Tex. Penal Code Ann. §§ 22.011, 25.02 (West 2011). In trial

court cause number F-2010-2316-E (appellate cause number 02-11-00365-CR),

the jury convicted him of four counts of sexual assault of his biological daughter

L.A. and three counts of prohibited sexual conduct with L.A. and assessed twenty

years’ confinement on each count as punishment. See id. §§ 22.011, 25.02.

The trial court entered judgment accordingly and set Arellano-Sanchez’s

sentences for each count in each case to run consecutively with each other and

for the sentences in F-2010-2315-E to run consecutively to the sentences in

number F-2010-2316-E.

                                 III. Discussion

      In his sole point, Arellano-Sanchez complains that the trial court abused its

discretion by admitting evidence that he spanked L.A. and Y.A. with a cable cord

because ―it constituted character assassination‖ and was ―overly prejudicial,

irrelevant[,] and immaterial‖ under rules of evidence 403 and 404(b).         See

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

(setting out abuse of discretion standard).



                                         2
      The record reflects that the testimony at issue occurred immediately after

L.A. testified that to punish Y.A. for breaking one of his rules, Arellano-Sanchez

shaved Y.A.’s head.

      Q. Did you ever get spankings from your dad?

      [Defense counsel]: Objection, Your Honor, as to relevance.

      THE COURT: I didn’t hear your objection.

      [Defense counsel]: Not relevant.

      THE COURT: Tell me the relevance.

      [Prosecutor]: Your Honor, when she talks about these spankings,
      it’s also going to go further to set the framework of how they were
      inappropriate, and it will also go as to why there’s a delay in the
      outcry, why she didn’t tell what was going on.

      THE COURT: I’ll overrule the objection.
      You can answer the question.

            Q. Did your dad ever give you spankings?

            A. Yes, he did.

            Q. Tell us about that.

             A. He was—if it was a minor offense, he would spank us with
      his sandal, but if it was—because if we broke a—one of the rules he
      had, like not talking to boys, he spanked us with a—a cable like—
      like the cable that you connect to the TV.

            Q. Did they ever leave any marks?

            A. Yes. The—they left—the cable leaves red marks that later
      swell a little.

            Q. What were some of the rule violations or offenses or
      whatever you want to call them that would lead to a spanking with
      the cable?



                                         3
             A. If—if he ever found out that my sister had a boyfriend or
      that I—I was thinking or liking some—or a guy.

             Q. Did both of you get spankings with the cable?

             A. Yes, I—I got spanked once, my sister twice.

[Emphasis added.]

      The State points out that Arellano-Sanchez failed to preserve his rule 403

and 404(b) objections in the trial court and that in light of the record, evidence of

three spankings with a cable would have had little impact on Arellano-Sanchez’s

case.2 We agree. See Tex. R. App. P. 33.1(a)(1), 44.2(b); Clark v. State, 365

S.W.3d 333, 339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765

(Tex. App.—Fort Worth 2012, no pet.).

      Generally, the erroneous admission of evidence is nonconstitutional error

governed by rule 44.2(b) if the trial court’s ruling merely offends the rules of

evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). A

substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

      2
       Further, Y.A. testified, without objection, that Arellano-Sanchez would hit
her ―real hard sometimes [and] that [she] would get bruises and marks on [her].‖
See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting
that improper admission of evidence is harmless when other such evidence is
admitted without objection), cert. denied, 131 S. Ct. 905 (2011). And the State
contends that the evidence was relevant and admissible under code of criminal
procedure article 38.37 to explain why Arellano-Sanchez’s daughters feared him
and tolerated his abuse for so long before making an outcry. See Tex. Code
Crim. Proc. Ann. art. 38.37, §§ 1–2 (West 2005 & Supp. 2012).

                                         4
S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have ―fair assurance that the error did not influence the jury, or had but

a slight effect.‖ Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998). In making this determination, we review the record

as a whole, including any testimony or physical evidence admitted for the jury’s

consideration, the nature of the evidence supporting the verdict, and the

character of the alleged error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002).

      At the time of the trial, twenty-two-year-old L.A., who was studying to be a

medical doctor, testified that her father began touching her sexually when she

was ten years old and that the sexual abuse—which escalated from Arellano-

Sanchez groping her breasts to his having oral, anal, and vaginal intercourse

with her—did not stop until she was twenty-one. Y.A., who was twenty years old

at the time of the trial, stated that Arellano-Sanchez began touching her sexually

when she was twelve years old and that he had oral, anal, and vaginal

intercourse with her, which eventually resulted in the birth of their son when she

was eighteen years old; the sexual abuse continued after their child’s birth.3



      3
       A paternity test reflected that the probability of Arellano-Sanchez being
Y.A.’s child’s father was 99.99993%, and Arellano-Sanchez admitted that he was
the child’s father during his trial testimony but claimed that the child was his
through artificial insemination.

                                          5
      L.A. and Y.A. both testified that when they were growing up, Arrellano-

Sanchez would punish them for disobeying his rules. For violating his rule that

they could not talk to boys, he made them wear boys’ clothes to school and told

them that they could never marry ―because [they] would always be his.‖ He also

made them sleep on the floor of the master bedroom so that he could keep watch

over them. L.A. testified that she was afraid of her father, so she followed his

rules to avoid punishment; Arellano-Sanchez told her that he got Y.A. pregnant

because Y.A. broke the rules more and ―the only way he could make her settle

down and just be responsible and focus on school was by getting her pregnant

so that she would have a responsibility.‖

      Y.A. testified that Arellano-Sanchez controlled the way she dressed and

would not allow her to shave her legs, pluck her eyebrows, wear makeup, or

paint her nails. When she broke the no-leg-shaving rule in seventh grade, he

shaved her head. When she was seventeen, she plucked her eyebrows and got

her ear pierced, and he shaved off her eyebrows in retribution.      When Y.A.

started seeing a boy, Arellano-Sanchez tied her up in the garage for half a day.4

Y.A. stated that she was afraid of her father because he would hit her if she

disobeyed his rules. When Arellano-Sanchez carved his name on Y.A.’s right


      4
       Arellano-Sanchez admitted to tying up Y.A. in the garage but said that he
did not remember what rule she had broken. He admitted to shaving Y.A.’s head
but said that it was because Y.A. had a scalp condition. And he admitted to
making L.A. and Y.A. wear boys’ clothing to school as a punishment. He
otherwise testified that L.A. and Y.A. were liars.

                                            6
breast using a needle, she did not object ―because [she] knew that he was going

to get all mad,‖ and she described his attitude as ―You’re mine.           I can do

whatever I want, basically.‖

      L.A. testified that Arellano-Sanchez had her demonstrate to Y.A. how to

perform oral sex on him. When L.A. was seventeen and Y.A. was sixteen, he

had sexual intercourse with both of them at the same time. L.A. said that they

could not refuse because he would get angry and punish them. L.A. testified that

she did not tell her mother because she was scared and because Arellano-

Sanchez told her that ―if [she] ever told that [their] whole family would fall apart,

and he would just leave [their] mom and [their] brothers behind, but he would

take—he would take [her and Y.A.].‖ Arellano-Sanchez told L.A. that if she told

anyone, ―there goes [her] education, there goes the family, no structure anymore,

[they] would have to leave with him.‖ L.A. said that she suffered ―many years of

fear.‖ Y.A. remained silent because her father told her that if she told the truth

about their son, he would go to jail and the family would be ruined.

      In light of the evidence above regarding Arellano-Sanchez’s decade-long

atrocities that he committed against his two daughters,5 even if L.A.’s testimony

that he had spanked her and Y.A. with a cable cord did not fall under article

38.37, the error in admitting this testimony, if any, would have been harmless.


      5
      The record contains additional evidence, but we believe that the recitation
above is more than sufficient to show that Arellano-Sanchez’s substantial rights
were not affected by the admission of L.A.’s testimony about three spankings.

                                         7
Assuming, without deciding, that the spanking evidence was not relevant, based

on the record before us, we conclude that its admission did not affect Arellano-

Sanchez’s substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Therefore, we overrule Arellano-Sanchez’s sole point and affirm

the trial court’s judgments.




                                                 BOB MCCOY
                                                 JUSTICE


PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: May 2, 2013




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