                                NO. 07-08-00290-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL B

                                   JUNE 16, 2010


                            THOMAS LEWIS, APPELLANT

                                          v.

                         THE STATE OF TEXAS, APPELLEE


             FROM THE 211TH DISTRICT COURT OF DENTON COUNTY;

             NO. F-2006-2346-C; HONORABLE L. DEE SHIPMAN, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      A jury convicted appellant Thomas Lewis of aggravated sexual assault1 and

indecency with a child2 and assessed punishment, enhanced by two prior felony

convictions, at consecutive life sentences.    Through two points of error, appellant

challenges the admission of evidence during the punishment phase of trial concerning




      1
          See Tex. Penal Code Ann. ' 22.021 (Vernon 2007).
      2
          See Tex. Penal Code Ann. ' 21.11 (Vernon 2007).
his positive HIV status. Concluding the trial court did not err by allowing admission of

the evidence, we affirm the trial court=s judgment.


                                       Background


       Appellant was charged by indictment with penetrating, with his finger, the female

sexual organ of a child younger than 14 years of age and not his spouse and, with the

intent to arouse or gratify his sexual desire, exposing his genitals to the same child.

The victim of his offenses was a ten-year-old girl.


       At trial, the victim testified she stopped by her grandfather=s recently vacated

apartment on her way home from school one day to see if items had been left behind.

Appellant walked by and asked if she wanted to go inside her grandfather=s apartment.

She agreed and went with appellant to retrieve the key. Once they were inside the

apartment, appellant told the girl to get into a closet. He threatened to hit her and told

her to pull down her pants. She complied. With the two of them sitting facing each

other, appellant inserted his finger into the victim=s vagina.      While doing so, he

masturbated until he ejaculated. He then allowed the victim to leave.


       The victim went home, visibly upset, and told her mother and stepfather what

happened. The victim later identified appellant as the person who assaulted her. She

told police appellant was wearing purple shorts when he assaulted her. Police later

found purple shorts in appellant=s home. The shorts had a semen stain and a blood

stain on them.



                                             2
      During the punishment phase of the trial, the State introduced testimony

indicating appellant told a police officer he was HIV positive. Appellant objected to this

testimony under Rules 401 and 403 of the Texas Rules of Evidence. The trial court

overruled the objection and allowed the officer to testify that appellant told her Ahe was

HIV positive.@   The State highlighted this fact, along with evidence of appellant=s

extensive criminal history, to the jury during closing punishment argument.


      On appeal, appellant reiterates his Rule 401 and Rule 403 objections to the

officer’s statement. Tex. R. Evid. 401, 403.


Applicable Law


      Texas Code of Criminal Procedure article 37.07, § 3(a), governs the admissibility

of evidence at a trial's punishment phase and grants the trial court broad discretion to

admit evidence that it deems relevant to sentencing. See Tex. Code Crim. Proc. Ann.

art. 37.07, ' 3(a)(1) (Vernon 2007). Under the plain language of the statute, during the

punishment phase the State may offer evidence on any matter the court deems relevant

to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2007). In

ascertaining what is relevant to sentencing, the focus is on what is helpful to a jury in

deciding an appropriate sentence for a defendant. Erazo v. State, 144 S.W.3d 487, 491

(Tex. Crim. App. 2004); Rodriguez v. State, 163 S.W.3d 115, 118 (Tex. App.--San

Antonio 2005), aff’d, 203 S.W.3d 837 (Tex.Crim.App. 2006). The Court of Criminal

Appeals has recognized that "relevance" in the punishment context is different than

"relevance" as defined in Texas Rule of Evidence 401 because sentencing presents


                                               3
different issues than rendering a verdict on guilt or innocence. Rogers v. State, 991

S.W.2d 263, 265 (Tex. Crim. App. 1999) (fact-finder in punishment chooses a sentence

within a punishment range rather than deciding facts to determine whether a defendant

is guilty). Admissibility of evidence at the punishment phase of a non-capital felony

offense is a function of policy rather than relevancy because, by and large, there are no

discrete factual issues at the punishment stage. Id. Some of the policy reasons to be

considered when determining whether to admit punishment evidence include giving

complete information for the jury to tailor an appropriate sentence for the defendant; the

policy of optional completeness; and admitting the truth in sentencing. Id. at 233-34

(citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).


         In accordance with this policy, the Court of Criminal Appeals has stated that at

the punishment phase of a non-capital felony trial, evidence relating to the

Acircumstances of the offense itself or . . . the defendant himself@ before or at the time of

the offense may be admitted. Miller-El v. State, 782 S.W.2d 892, 896 (Tex.Crim.App.

1990) (en banc); Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Crim.App. 1979), cert.

denied, 449 U.S. 1114, 101 S.Ct. 926, 66 L.Ed.2d 843 (1981). One such circumstance

is the degree of the victim=s injury, including future consequences due to the injury, Aso

long as the fact finder may rationally attribute moral culpability to the accused for that

injury.@ Hunter v. State, 799 S.W.2d 356, 360 (Tex.App.BHouston [14th Dist.] 1990, no

pet.).    Courts have recognized that a defendant=s HIV status is admissible as a




                                             4
Acircumstance of the offense@ in an aggravated assault case.3 See, e.g., Hunter v.

State, 799 S.W.2d 356, 359 (Tex.App.BHouston [14th Dist.] 1990, no pet.). See also

Suarez v. State, No. 14-03-00441-CR, 2004 WL 1660938 (Tex.App.BHouston [14th

Dist.] July 27, 2004, pet. ref=d) (counsel not ineffective for failing to object to testimony

about defendant=s HIV status because it was admissible as a circumstance of the

offense of aggravated sexual assault of a child).


       Even where the trial court deems evidence relevant at the punishment stage, that

evidence, upon objection, must still withstand a Rule 403 analysis to be admissible.

Rodriguez, 163 S.W.3d at 119. Texas Rule of Evidence 403 provides that relevant

evidence "may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice." Tex. R. Evid. 403. The rule carries a presumption that

relevant evidence will be more probative than prejudicial, therefore favoring admission.

Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Unfair prejudice can

       3
         Other courts have characterized this type of evidence as Avictim impact
evidence@ that is relevant to sentencing. Victim impact evidence serves to show the
circumstances of the offense and is relevant to sentencing under article 37.07. See
Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2007); Jones v. State, 963 S.W.2d 177,
183 (Tex.App.BFort Worth 1998, pet. ref=d), quoting Murphy v. State, 777 S.W.2d 44, 63
(Tex.Crim.App. 1988); Brooks v. State, 961 S.W.2d 396, 398-99 (Tex.App.BHouston [1st
Dist.] 1997, no pet.). This type of evidence bears on the defendant=s personal
responsibility and moral guilt and is thus relevant to punishment issues. See Jones,
963 S.W.2d at 182-83, citing Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Crim.App.
1991) and Miller-El, 782 S.W.2d at 897. See also Martinez v. State, No. 05-03-01243-
CR, 2004 WL 2378359 (Tex.App.BDallas Oct. 25, 2004, no pet.) (mem. op., not
designated for publication) (concluding evidence concerning appellant=s HIV status and
awareness was evidence related to the circumstances of the aggravated sexual assault
offense and was admissible as victim impact evidence).


                                             5
outweigh the probative value where the evidence has a tendency to influence a jury's

decision on an improper basis. Rogers v. State, 991 S.W.2d at 266. Rule 403 requires

exclusion of evidence only when there is "clear disparity" between the probative value

and the degree of prejudice of the offered evidence. Jones, 944 S.W.2d at 652. Unfair

prejudice does not include evidence that simply injures the opponent's case. Rogers,

991 S.W.2d at 266 (noting that injuring the opponent's case is the central point of

offering evidence).


      A trial court=s admission or exclusion of evidence is reviewed under an abuse of

discretion standard. See Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999);

Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1991) (op. on reh’g). An

abuse of discretion occurs when the trial court acts arbitrarily, unreasonably, or without

reference to guiding rules or principles. Montgomery, 810 S.W.2d at 380.


Application


      Appellant points to the single statement in the testimony of one police officer that

appellant told her he was AHIV positive.@ Appellant then focuses on part of the State=s

closing argument:


               When you get into punishment, you learn who that man is that
      you=re punishing.That=s kind of what we=ve seen here. Now, there was a
      little bit more about the crime that you learned in punishment that you
      didn=t know in sentencing, [sic] because not only do we have an
      aggravated sexual assault, we have an aggravated sexual assault on a
      ten-year-old girl by a man who knew he was HIV positive when he went
      forward to commit that assault.



                                            6
       Think about that. Think about the risks that he=s willing to place an
       innocent child in for his own pleasure, because that=s the difference we
       see in these crimes and this crime today.

       ***

       A ten-year-old girl should not be facing the decision of having to think
       about the consequences of sexual contact. Her grandmother and mother
       should not have to have a conversation with her or anybody else about
       what does it mean that my child possibly could have HIV? Those are
       questions that this little girl does not deserve to face.

       And those are the questions. Her life, her future, her relationships, all are
       at risk because this man decided that for his own personal benefit, his
       moment of enjoyment, her entire life was worth risking. That is what you
       are deciding on today.

       Appellant contends evidence of his HIV-positive status was irrelevant absent an

indication the victim actually was exposed to the virus or could have contracted it based

on appellant=s actions. He points out no other evidence concerning HIV was introduced.

There was no medical testimony presented and no medical records were introduced

showing appellant had the disease.4 No evidence explained that the contact between

appellant and the victim exposed her to a risk of HIV infection.


       Without such evidence, appellant argues, evidence of his mere volunteered

statement that he is “HIV-positive” was irrelevant.      In contrast to the lack of such

evidence here, appellant points to the evidence in Hunter, 799 S.W.2d at 360, which


       4
         The record reflects appellant=s counsel conceded during closing argument at
the punishment phase that appellant is AHIV positive, so he=s going to be dying, maybe
sooner than his normal life span would be...he=s got to be dealing with HIV, AIDS, while
he=s serving the sentence.@

                                            7
included transfer of ejaculate into the victim’s mouth and genital area, and partial

penetration of the child’s vagina causing lacerations that bled. Additionally, testimony

explained how those events could infect the victim. Id. at 359-60. Only the presence of

such evidence, appellant argues, makes a defendant’s HIV status a circumstance of the

offense of viable concern at the punishment stage for aggravated sexual assault.


        We agree with the State that the evidence was properly admitted. Even without

medical evidence to verify it, appellant’s volunteered statement has probative value to

show he was infected by the HIV virus when he sexually assaulted the child, and knew

it.   Such evidence is relevant as a circumstance of the offense that the jury could

consider in assessing punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1)

(listing circumstances surrounding the convicted offense as a type of evidence

admissible at punishment); Hunter, 799 S.W.2d at 360 (whether defendant was infected

with AIDS virus was admissible as a Acircumstance of the offense@ at punishment stage

for aggravated sexual assault).


        The court in Atkins v. State, No. 05-07-00586-CR, 2008 Tex.App. LEXIS 5407

(Tex.App.BDallas July 23, 2008, pet. ref=d) (mem. op., not designated for publication)

found evidence of the defendant’s HIV status relevant to sentencing as a circumstance

of the offense of attempted sexual performance of a child, despite the lack of evidence

of any actual sexual contact.     Atkins supports the State’s argument the jury may

consider, as a circumstance of the offense, that appellant’s recognized HIV-positive



                                           8
status placed the victim of his sexual assault at risk of infection, whether or not the

evidence shows any actual transmission of body fluids in a manner likely to infect.


        Moreover, the record here is not devoid of evidence that appellant’s assault

carried an actual risk of transmission of infection. Appellant placed his finger inside the

victim=s vagina and testimony from the nurse who conducted the sexual assault

examination indicated the victim’s vaginal opening and hymen were red and irritated

consistent with such contact. Appellant also ejaculated near the victim and had a blood

stain and a semen stain on the shorts he was wearing. No such stains were found on

the victim=s clothing but the nurse did indicate Aa light brown discharge from [the

victim=s] vaginal area.@ While appellant contends on appeal there is no evidence the

victim bled, the jury could have inferred from this evidence that she did bleed at least to

a slight degree. This evidence is closer to that found in Hunter than appellant argues.


        Further, as have other courts, we find the probative value of evidence of

appellant’s HIV status is not substantially outweighed by the danger of unfair prejudice

or distraction of the jury from its task of fashioning an appropriate sentence.       See

Hunter, 799 S.W.2d at 360; Atkins, No. 05-07-00586-CR, 2008 Tex.App. LEXIS 5407 at

* 19.


        We note also the jury had before it evidence of appellant=s prior six criminal

convictions, committed over a twenty-eight year period, and evidence of the years

appellant spent in prison for each of these offenses.         The State highlighted the


                                            9
convictions in its closing argument. The jury also had before it evidence that at the time

of the present offense, appellant had an outstanding parole violation warrant.


       We find the trial court did not abuse its discretion in allowing the police officer to

testify about appellant=s statement to her concerning his HIV status.5 We overrule each

of appellant=s two issues and affirm the judgment of the trial court.




                                                         James T. Campbell
                                                              Justice




Do not publish.




       5
        Given our disposition herein, we do not reach appellant=s contentions that he
was harmed by the trial court=s admission of the testimony. Tex. R. App. P. 47.1.

                                                10
