Opinion issued December 16, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas


                             NO. 01-13-00954-CR


                  RAYMOND BUCHANAN, JR., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee
                  On Appeal from the 300th District Court
                         Brazoria County, Texas
                       Trial Court Cause No. 68872
                        MEMORANDUM OPINION

      A jury found Appellant Raymond Buchanan, Jr. guilty of sexual assault of a

child and sentenced him to 35 years’ confinement.     In two issues, Buchanan

contends that (1) there was insufficient evidence to prove that the complainant

M.K. was under the age of 17 at the time of the offense and (2) the trial court
abused its discretion in admitting extraneous-offense evidence. We affirm.

                                   Background

      M.K. testified that as she left a smoke shop in Houston, a man, later

identified as Buchanan, asked if she wanted to go to his house to watch football.

M.K. agreed and testified that once they arrived, they smoked synthetic marijuana

and watched football.

      M.K. testified that after smoking the synthetic marijuana, she was unable to

control herself and needed help walking up the stairs. She fell asleep in the

upstairs game room, and the next thing that she remembered was waking up in

Buchanan’s bed the next morning with her underwear missing. M.K. testified that

Buchanan told her that he had sexual intercourse with her and that there was a

“surprise inside of her.” When she went to the restroom she found a condom

inside her vagina. M.K. asked Buchanan to take her home, and after he dropped

her off at a gas station, she flagged down Sergeant H. Hunt of the Pearland Police

Department.

      M.K. initially gave police a fake name and birthdate because she was a

runaway and “scared.” But she later admitted that she was under the age of 17 and

that she was actually born on August 11, 1995. The trial court admitted M.K.’s

Texas Identification Card, which corroborated this.




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      Sergeant J. Dandeneau of the Brazoria County Sheriff’s Office also testified.

A week after the assault, M.K. told him that her actual date of birth was August 11,

1995, and that she was 16 years old at the time of the assault. Dandeneau testified

that, during his investigation, he discovered sexually explicit photographs of M.K.

on Buchanan’s cell phone. M.K. told Dandeneau that she did not consent to

Buchanan photographing her, and M.K. also testified that she did not consent to

the photographs.

      Dandeneau also found several plastic bags of synthetic marijuana, or

“Kush,” in Buchanan’s home. Deputy J. Gentry of the Brazoria County Sheriff’s

Department ID Division testified that he took photographs of several bags of Kush

found in Buchanan’s house.

      Tammy Bires, a forensic scientist in the DNA Section of the Department of

Public Safety, also testified. Bires told the jury that Buchanan’s DNA sample

matched the semen taken from M.K.’s body.

      The trial court admitted a video recording of Buchanan’s oral statements

during his custodial interrogation in which Buchanan discussed working with the

Drug Enforcement Agency and using synthetic marijuana.

      During the punishment phase of the trial, the trial court admitted State’s

Exhibit 26A, a sexually explicit video lasting approximately 20 minutes. The

video showed Buchanan engaging in sexual intercourse with an adult woman, A.B.


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      A.B. testified in the punishment phase. She told the jury that State’s Exhibit

26A depicts her repeatedly telling Buchanan to stop having intercourse with her.

A.B. had no recollection of the incident and testified that she was incoherent

during the video. She testified that she had consumed a large quantity of alcohol

and that she did not consent to having sex with Buchanan or to having him record

it. She testified that towards the end of the recording she began “waking up and

realizing what’s going on.” A.B. asked Buchanan to stop more than ten times, and

he did not.

                           Sufficiency of the Evidence

A.    Standard of Review

      We review evidentiary sufficiency challenges under the Jackson v. Virginia

standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove,

beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781 (1979)).    Under this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at


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319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this is the function of the trier of fact.      See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore

resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s

credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625

(Tex. Crim. App. 2006).

B.     Applicable Law

      “A person commits [sexual assault of a child] if the person intentionally or

knowingly causes the penetration of the anus or sexual organ of a child by any

means.” TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011). For purposes of

section 22.011, a child is “a person younger than 17 years of age.”               Id.

§ 22.011(c)(1).

C.    Analysis

      Buchanan challenges the sufficiency of the evidence to prove that M.K. was

under the age of 17 at the time of the assault. According to Buchanan, “the only

evidence admitted to prove the age of [M.K.] was her uncorroborated hearsay


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testimony concerning her date of birth, along with the hearsay testimony of law

enforcement officers which was based solely on hearsay statements made by

[M.K.].”

      “[T]he testimony of the complainant as to her age and birth date [is]

sufficient to prove that she was under the age of seventeen at the time of the

offense.” Perez-Del Rio v. State, No. 14-04-00963-CR, 2006 WL 561887, at *3

(Tex. App.—Houston [14th Dist.] Mar. 2, 2006, pet. ref’d) (mem. op., not

designated for publication). Thus, M.K.’s testimony that she was 16 at the time of

the offense was sufficient to prove that she was under 17 at the time. See id.; see

generally Jason v. State, 589 S.W.2d 447, 449 (Tex. Crim. App. 1979) (same); see

also TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014) (providing that

testimony of child under 17 alone is sufficient to convict defendant of sexual

assault of a child). Buchanan challenges M.K.’s testimony about her birthdate as

hearsay because, according to him, it was not based on her personal knowledge,

but instead on what she learned from hearsay statements or looking at hearsay

documents. Whether M.K.’s testimony was hearsay does not change our analysis

because we consider both properly and improperly admitted evidence in a

sufficiency challenge. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.

App. 2013) (reviewing court considers all admitted evidence, regardless of whether




                                        6
properly or improperly admitted, when reviewing sufficiency of evidence); Powell

v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) (same).

      Second, Buchanan contends that the evidence is insufficient because M.K.

was not credible. In support, Buchanan correctly points out that M.K. initially lied

to the police about her name and age. But the credibility of M.K.’s testimony was

a factor for the jury to consider in weighing the evidence, and we defer to the

jury’s resolution of the conflicting evidence. See Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008) (we afford almost complete deference to jury’s

determinations of credibility); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000) (appellate courts resolve any inconsistencies in the evidence in favor of

the verdict).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have found that Buchanan intentionally or knowingly

penetrated M.K.’s sexual organ by Buchanan’s sexual organ, that M.K. was under

17, and that M.K. was not Buchanan’s spouse. Accordingly, we hold that the

evidence was legally sufficient to support the judgment.

      We overrule Buchanan’s first issue.

                 Evidentiary Rulings in Guilt-Innocence Phase

      Buchanan contends that the trial court abused its discretion by admitting four

pieces of evidence: (1) a photograph of a bag of synthetic marijuana, (2) officers’


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testimony   that   they   found    synthetic   marijuana    in   Buchanan’s    home,

(3) Buchanan’s admission during a police interrogation that he used synthetic

marijuana, and (4) Buchanan’s statement during an interrogation that he worked

with the DEA.

A.    Standard of Review and Applicable Law

      We review a trial court’s ruling on admissibility under an abuse of discretion

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

will not reverse a trial court’s ruling on evidentiary matters unless the decision was

outside the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d

787, 790 (Tex. Crim. App. 2007). If the trial court’s ruling can be justified on any

theory of law applicable to that ruling, the ruling will not be disturbed. De La Paz,

279 S.W.3d at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App.

1982) (“When a trial court’s ruling on the admission of evidence is correct,

although giving a wrong or insufficient reason, this Court will not reverse if the

evidence is admissible for any reason.”)).

      Even if a trial court errs by improperly admitting evidence, reversal is

warranted only if the appellant demonstrates that the erroneous admission of this

evidence affected his substantial rights. TEX. R. APP. P. 44.2(b). A substantial

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

on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).


                                          8
We review the record as a whole to determine whether the error had a substantial

influence on the jury’s verdict. Mosley v. State, 983 S.W.2d 249, 260 (Tex. Crim.

App. 1998).

      “‘It is well established that the improper admission of evidence does not

constitute reversible error if the same facts are shown by other evidence which is

not challenged.’” Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)

(quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978)). Thus,

the improper admission of evidence is harmless if the same or similar evidence is

admitted without objection at another point in the trial. See id.

B.    Analysis

      Three of Buchanan’s evidentiary challenges relate to evidence that there was

synthetic marijuana in his house. We conclude that even if it was error to admit

this evidence, the error would not warrant reversal.

      Buchanan did not object when M.K. testified that Buchanan had synthetic

marijuana in his house and that they smoked it together. Buchanan did object

when the State later offered a photograph of the synthetic marijuana found in

Buchanan’s house, two officers’ testimony about finding synthetic marijuana in

Buchanan’s home, and a video in which Buchanan admits smoking synthetic

marijuana. We conclude that the import of the challenged evidence was that it

showed that Buchanan smoked synthetic marijuana.             Because M.K.’s earlier


                                          9
unobjected-to testimony that she and Buchanan smoked synthetic marijuana

together at his home was sufficiently similar to the challenged evidence, any error

in admitting the challenged evidence was harmless. See Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc) (improper admission of

evidence does not constitute reversible error and is properly deemed harmless if

same or similar facts are proved by other properly admitted evidence); Anderson v.

State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (en banc) (same).

      Buchanan also complains the trial court admitted the portion of his recorded

statement in which he mentioned working with the DEA. He contends that it

improperly left the jury with the impression that he was involved in narcotics

activity. To the extent that the trial court’s admission of this statement created

such an impression with the jury, we conclude it too was harmless in light of

M.K.’s unobjected-to testimony that she and Buchanan smoked synthetic

marijuana together. See Brooks, 990 S.W.2d at 287.

                            Punishment Phase Video

      During the punishment phase of trial, evidence may be offered of any matter

the court deems relevant to sentencing, including the prior criminal record of the

defendant and any extraneous crime or bad act regardless of whether he has

previously been charged with or finally convicted of the crime or act,

notwithstanding Rules 404 and 405 of the Texas Rules of Evidence. See TEX.


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CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014); see also Erazo v.

State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). “[R]elevance during the

punishment phase of a non-capital trial is determined by what is helpful to the

jury.” Erazo, 144 S.W.3d at 491 (emphasis in original).

      Extraneous offense evidence is offered during the punishment phase to assist

the jury in determining punishment. See Ellison v. State, 201 S.W.3d 714, 719

(Tex. Crim. App. 2006). But evidence may still be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403;

see Rogers v. State, 991 S.W.2d 263, 266–67 (Tex. Crim. App. 1999) (en banc)

(even if punishment evidence is otherwise admissible under article 37.07, it may be

excludable under Rule 403).       We review a trial court’s decision to admit

punishment evidence under an abuse-of-discretion standard. Davis v. State, 329

S.W.3d 798, 803 (Tex. Crim. App. 2010).

      Buchanan argues that the trial court abused its discretion by admitting a

video 1 of him having sexual intercourse with A.B. He contends that the video was

not relevant and that it was admitted in violation of Rules 403 and 404(b).




1
      Buchanan complains about the trial court’s admission of Exhibit 26. Exhibit 26
      contained a video clip of A.B. and a clip of another unidentified woman. Because
      the trial court admitted only the video clip of A.B. and Buchanan engaging in
      sexual intercourse, as Exhibit 26A, we construe Buchanan’s argument regarding
      Exhibit 26 as a challenge to the admission of the video of A.B.
                                         11
      We conclude that the video’s admission was not an abuse of discretion.

First, the video was relevant in that it informed the jury of Buchanan’s character

and provided helpful information for the jury to assess an appropriate sentence.

See Erazo, 144 S.W.3d at 491 (relevance during the punishment phase is

determined by what is helpful to the jury).        The fact that the video depicts

Buchanan having sex with A.B. without her consent and while she was

incognizant—circumstances similar to those of the charged offense—makes it

relevant because it is probative of Buchanan’s character and established a pattern

of conduct that may have informed the jury’s decision. See Sanders v. State, 422

S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d) (evidence relating to

sexual offense with child relevant because helped define appellant’s character,

showed another example of criminal act, and helped establish pattern of criminal

conduct that may have informed jury’s decision).

      The video was also admissible despite Buchanan’s Rule 403 objection. See

Gigliobianco v. State, 210 S.W.3d 637, 641–42, n.8 (Tex. Crim. App. 2006)

(describing 4-factor balancing test).   Here, the video was highly probative of

Buchanan’s character and thus helpful to the jury’s task of tailoring an appropriate

sentence. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1); Erazo, 144

S.W.3d at 491. The fact that the video would likely raise emotional responses in

the jury does not in itself demonstrate that it would impress the jury in some


                                        12
irrational way, and Buchanan fails to argue how it may have done so. The time

needed to develop the evidence was not significant: the jury viewed the 20-minute

video once during the five-day trial. We thus conclude that the video’s probative

value was not substantially outweighed by the danger of unfair prejudice. See TEX.

R. EVID. 403. Accordingly, we hold that the trial court did not abuse its discretion

in admitting the video. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (providing for

admission of any matter trial court deems relevant to sentencing); Casey v. State,

215 S.W.3d 870, 884 (Tex. Crim. App. 2007) (no abuse of discretion in admitting

photographs of unconscious women having sexual act performed on them in case

where complainant was drugged and unconscious during sexual assault).

      We overrule Buchanan’s second issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                                Rebeca Huddle
                                                Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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