Affirmed and Memorandum Opinion filed August 12, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00544-CR

                    LENIN ANTONIO LIRIANO, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1301148

                  MEMORANDUM OPINION


      A jury convicted appellant Lenin Antonio Liriano of aggravated sexual
assault of a child under the age of fourteen, and the trial court sentenced him to
sixteen years’ confinement. Appellant challenges his conviction in a single issue,
arguing that the trial court erred by excluding evidence that appellant had hepatitis
B and the complainant did not. Because the trial court did not abuse its discretion
by excluding appellant’s proffered evidence, we affirm the trial court’s judgment.
                          BACKGROUND AND ARGUMENTS

      The complainant testified that appellant, her former stepfather, raped her on
two occasions during the summer of 2010 when she was thirteen years old. She
testified that he penetrated her vagina with his penis both times. On the first
occasion, he ejaculated after having intercourse with her, and his ejaculate got on
his clothes. She did not think he ejaculated when he raped her the second time.
She did not recall if he wore a condom but testified, “I guess he wasn’t.”

      At trial, appellant sought to introduce testimony from the complainant’s
mother that appellant had told her before they married in 2003 he had contracted
hepatitis B, a disease that could be transmitted by having unprotected sex.
Appellant also sought to introduce testimony from the complainant and the
complainant’s mother that the complainant had been tested for hepatitis B but had
not been diagnosed with the disease. The State objected based on relevancy, and
the trial court sustained the State’s objection.

      In his sole issue on appeal, appellant contends that evidence of his having
hepatitis B and the complainant not having hepatitis B was relevant under Rule 401
of the Texas Rules of Evidence.         The State responds that the evidence was
irrelevant because appellant did not adduce medical expert testimony that he
actually carried the disease or testimony about the transmission and incubation
period of the disease.     We hold that the trial court acted within the zone of
reasonable disagreement by excluding the evidence as irrelevant.

                               RULE 401: RELEVANCY

      We review a trial court’s ruling to exclude evidence under an abuse of
discretion standard. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App.



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2003). We will not reverse the trial court’s ruling unless it falls outsize the zone of
reasonable disagreement. Id.

       “Generally, all relevant evidence is admissible.”              Layton v. State, 280
S.W.3d 235, 240 (Tex. Crim. App. 2009) (citing Tex. R. Evid. 402). Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.”             Tex. R. Evid. 401.         This definition is
“necessarily a broad one.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1990) (op. on reh’g).          Even “marginally probative” evidence should be
admitted if “it has any tendency at all, even potentially, to make a fact of
consequence more or less likely.” Fuller v. State, 829 S.W.2d 191, 198 (Tex.
Crim. App. 1992). “Evidence need not by itself prove or disprove a particular fact
to be relevant; it is sufficient if the evidence provides a small nudge toward
proving or disproving some fact of consequence.” Kirsch v. State, 306 S.W.3d
738, 743 (Tex. Crim. App. 2010) (quotation omitted).

       Evidence concerning STDs may be relevant in a sex offense case. See 65
Am. Jur. 2d Rape § 49 (2d ed. 2014) (discussing the admissibility of evidence of
sexually transmitted diseases in sex offense cases); 3 Jones on Evidence § 19:24
(7th ed. 2013) (same); see also Green v. State, 532 S.E.2d 111, 113–14 (Ga. Ct.
App. 2000) (observing that “proof that either the victim or the aggressor in a sexual
assault had (or did not have) a sexually transmitted disease certainly can be
relevant”). 1

       1
           Courts frequently determine STD evidence is relevant in sex offenses. Sometimes the
state relies upon evidence that both the victim and the defendant had the same STD as evidence
of guilt in sex offense cases. See, e.g., Steadman v. State, 280 S.W.3d 242 (Tex. Crim. App.
2009) (evidence that the defendant and the child victim both had gonorrhea was probative of
appellant’s guilt for aggravated sexual assault); Rice v. State, 180 S.W.2d 342, 343 (Tex. Crim.
App. 1944) (evidence that the child and defendant both had the same venereal disease was
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       However, to determine whether evidence is relevant in a particular case,
courts must “examine the purpose for which the evidence is being introduced.”
Layton, 280 S.W.3d at 240. There must be a “direct or logical connection between
the actual evidence and the proposition sought to be proved.” Id. And if a lay
juror is not in a position to determine or infer that particular evidence would make
a fact of consequence more or less likely, then expert testimony may be required to
explain the significance of the evidence; and without such testimony, the evidence
should be excluded as irrelevant. See id. at 241–42. Thus, it is the trial judge

admissible as a corroborating circumstance of guilt). Such evidence may be relevant where it
makes it more probable that the defendant had sexual contact with the victim. See Franklin v.
State, 986 S.W.2d 349, 356–57 (Tex. App.—Texarkana 1999) (non-expert CPS worker’s
testimony that the defendant and complainant both had HIV was relevant because “[e]vidence
that [the defendant] is infected with a disease commonly spread by sexual contact and that the
victim is infected with the same disease makes it more likely that he had sexual contact with
her”), rev’d on other grounds, 12 S.W.3d 473 (Tex. Crim. App. 2000).
        Sometimes the accused relies upon evidence that the defendant or victim had an STD and
the other person did not at the time of the alleged sexual contact as evidence that defendant had
no sexual contact with the victim. See State v. Ford, 410 S.W.3d 341, 346–47 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) (assuming without deciding that the defendant suffered
substantial prejudice from a pre-indictment delay in prosecution, consistent with the trial court’s
findings, because now-destroyed test results showing that the defendant did not have syphilis
while the victim did have syphilis would have “exculpated” the defendant); Anderson v. State, 8
S.W.3d 387, 393 (Tex. App.—Amarillo 1999, pet. ref’d) (holding that the evidence was factually
sufficient when there was evidence the victim was infected with chlamydia but the defendant and
his wife were not, but “[g]iven this evidence, a question of fact arose regarding appellant’s
identity as the assailant”); Kimberlin v. State, 877 S.W.2d 828, 832 (Tex. App.—Fort Worth
1994, pet. ref’d) (holding the evidence was legally insufficient to support the charged offense of
contacting the child’s sexual organ with the defendant’s mouth although there was evidence that
the defendant had chlamydia a year before the alleged assault, the victim had chlamydia, and
chlamydia can be transferred by oral contact; “While the State did show that the victim had a
sexually transmitted disease, it did not link this evidence to the defendants by showing that either
had the same disease at the time of the offense.”); Redwine v. State, No. 09-03-556-CR, 2005
WL 550660, at *3 (Tex. App.—Beaumont Mar. 9, 2005, no pet.) (mem. op., not designated for
publication) (holding that trial counsel did not perform deficiently by failing to object to
evidence that the defendant attempted sexual intercourse with the victim, when there was also
evidence that the defendant had a venereal disease and did not use a prophylactic device, because
“counsel depended heavily on the fact that the child presented normal findings on gynecological
examination and was free of disease despite her claim of years of sexual contact to undermine
the victim’s testimony and to support the defensive theory that no sexual contact ever occurred”).

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making the relevancy ruling who determines whether a lay juror is in such a
position, and we may reverse that ruling only when there is no room for
disagreement that “in common experience a particular inference is available.”
Montgomery, 810 S.W.2d at 391.

       Here, appellant sought to prove that he had hepatitis B at the time of the
assault, and the complainant did not contract hepatitis B, so it was less likely he
had sexual intercourse with her. Appellant did not, however, offer direct evidence
that he had hepatitis B at the time of the assault. Instead, the actual evidence of his
hepatitis B infection was his statement to the complainant’s mother sometime
around 2003, about seven years beforehand, that he was infected with hepatitis B.
There was no evidence, expert or otherwise, that appellant continued to carry the
hepatitis B virus in 2010.         There was no evidence, expert or otherwise, that
appellant would in all probability have been infectious in June or July 2010 when
the alleged assault occurred.2 There was no evidence, expert or otherwise, that
hepatitis B is or is not curable.

       We need not, therefore, resolve whether the trial court would have erred in
excluding evidence that appellant had hepatitis B at the time of the alleged assault
and the complaint did not have hepatitis B following the alleged assault. Instead,
we need only resolve whether the trial court erred in its exclusion of evidence that
appellant had hepatitis B seven years prior to the alleged assault. Where, as here,
there is no other evidence about hepatitis B as an STD, such a relevancy ruling
necessarily includes consideration of whether the common experience of jurors
would permit the inference that appellant continued to have hepatitis B in 2010.
We hold that it was within the zone of reasonable disagreement for the trial court
       2
         Although the complainant testified directly that appellant had hepatitis B, she clarified
that she only knew this information because her mother told her about it, and she did not know
whether appellant was infected with hepatitis B in 2010.

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to conclude that such an inference could not be drawn. See Smith v. State, 737
S.W.2d 910, 914–15 (Tex. App.—Fort Worth 1987, pet. ref’d) (holding that
evidence the victim had gonorrhea was not material to a fact at issue in the case in
part because the only evidence the defendant adduced to attempt to show he was
not suffering from the disease was the testimony of a nurse at the jail that the
defendant had not requested treatment for gonorrhea and no tests had been
requested or performed to determine whether he had the disease); see also Johnson
v. State, 651 S.W.2d 434, 436–37 (Tex. App.—Dallas 1983, no pet.) (holding that
the trial court did not abuse its discretion by excluding evidence, under the rape
shield law, of the victim’s STD when the defendant failed “to show that he was in
fact clear of the disease”); cf. Layton, 280 S.W.3d at 241–42 (when the State
charged the defendant with driving while intoxicated and limited the method of
intoxication “by reason of the introduction of alcohol into the body,” evidence that
the defendant took prescription medications more than twelve hours before driving
was irrelevant without expert testimony explaining that the medications would
have had an effect on the defendant’s alcohol intoxication; “a lay juror is not in a
position to determine whether Xanax and Valium, taken more than 12 hours before
arrest, would have any effect on Appellant’s intoxication”).

      The trial court could have concluded that a particular inference appellant
sought to establish was not available in common experience. We agree that a lay
juror is not in a position to determine whether appellant’s hepatitis B infection in
2003 would mean he was also infectious in 2010. And without the inference
appellant sought to establish regarding his infectiousness in 2010, the
complainant’s not being diagnosed with hepatitis B does not have any tendency to
make it less likely that appellant sexually assaulted her. We uphold the trial
court’s exercise of its discretion. Appellant’s sole issue on appeal is overruled.


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                                     CONCLUSION

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgment.


                               /s/           Sharon McCally
                                             Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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