      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00781-CR



                                Abram Harker Jeffs, Appellant

                                                 v.

                                  The State of Texas, Appellee


  FROM THE DISTRICT COURT OF SCHLEICHER COUNTY, 51ST JUDICIAL DISTRICT
      NO. 1002, THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Abram Harker Jeffs and nine other members of the Fundamentalist Church

of Jesus Christ of Latter Day Saints (FLDS), living at the YFZ (Yearning for Zion) Ranch in

Schleicher County, Texas, were indicted for sexual assault of a child.1 See Tex. Penal Code Ann.

§ 22.011(a)(2)(A) (West 2011). Subsequently, a jury convicted appellant and assessed his

punishment at confinement for 17 years in the Institutional Division of the Texas Department of

Criminal Justice and, in addition, assessed a $10,000 fine.2 See id. §§ 12.32, 22.011(a)(2)(A),

22.011(f) (West 2011). On appeal, appellant raises thirteen points of error. We affirm.

       1
         Some of the other individuals were also indicted for bigamy. Appellant, however, was
charged only with sexual assault of a child.
       2
          After finding him guilty, the jury found the enhancement paragraph to be true, subjecting
appellant to an increased punishment range. See Tex. Penal Code Ann. §§ 12.32, 22.011(f) (West
2011). The enhancement paragraph alleged that the victim was a person whom appellant was
prohibited from marrying, purporting to marry, or living with under the appearance of being married.
See id. §§ 22.011(f), 25.01(e) (West Supp. 2011).
                      FACTUAL AND PROCEDURAL BACKGROUND

                The factual and procedural background of this case is fully discussed in prior opinions

of this Court, most recently in our opinion in Jeffs v. State, No. 03-10-00272-CR, 2012 WL 601846,

at *1-4 (Tex. App.—Austin Feb. 24, 2012, no pet. h.) (mem. op., not designated for publication), and

will not be repeated here. We discuss further background details only as necessary to address the

points of error raised by appellant in this appeal.


                                            DISCUSSION

                             I. SUFFICIENCY OF THE EVIDENCE

                In his first point of error, appellant challenges the sufficiency of the evidence. He first

asserts that the evidence is insufficient to support his conviction for sexual assault of a child because

the State failed to prove the element of penetration. He then contends that the evidence is

insufficient because it fails to demonstrate that the sexual assault occurred in Texas.


                                       Additional Background

                Appellant, a lifelong member of FLDS, moved to the YFZ Ranch in Schleicher

County, Texas, in February 2004 with his family—including multiple “celestial wives” and several

children—and lived with them in a single residence on the ranch. On October 5, 2005, appellant

was “sealed” in a spiritual or celestial marriage to S. Johnson, a female FLDS member born

November 13, 1990, who had moved to the YFZ Ranch in January 2005. The ceremony took place

at the “prophet’s” house on the ranch in Schleicher County when S. Johnson was 14 years old and

appellant was 34. Following the celestial marriage ceremony, appellant and S. Johnson lived



                                                    2
together in the same household, purportedly as husband and wife. On February 7, 2007, when she

was 16 years old, S. Johnson gave birth to a son. DNA testing confirmed that appellant was the

biological father of the child.3

                Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Byrd v. State, 336 S.W.3d 242,

246 (Tex. Crim. App. 2011). When reviewing the sufficiency of the evidence to support a

conviction, we consider all of the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.

2010). The sufficiency of the evidence is measured by reference to the elements of the offense as

defined by a hypothetically correct jury charge for the case. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

                In determining the legal sufficiency of the evidence, we must consider all the evidence

in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the

prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff

v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen v. State, 249 S.W.3d 680, 688-89

(Tex. App.—Austin 2008, no pet.). We review all the evidence in the light most favorable to the


       3
          DNA testing reflected that appellant’s DNA profile matched the child’s DNA profile at all
15 genetic markers analyzed. Statistical analysis of the DNA test results indicated that appellant
could not be excluded as the biological father of the child, while 99.9998% of the male population
was excluded as the child’s father. In addition, the genetic results are 1,294,000 times more likely
if appellant is the child’s biological father than if a randomly selected unrelated male of his race is
the father. Further, the likelihood appellant is the child’s biological father is 99.99992% as
compared to an untested randomly chosen male of his race.

                                                  3
verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence,

and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). A legal-sufficiency review requires

us to defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their

testimony. Brooks, 323 S.W.3d at 899. When faced with a record of historical facts that supports

conflicting inferences, we must presume that the trier of fact resolved any such conflicts in

favor of the verdict and must defer to that resolution. Jackson, 443 U.S. at 326; Padilla v. State,

326 S.W.3d 195, 200 (Tex. Crim. App. 2010). The jury, as exclusive judge of the facts, is entitled

to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton,

235 S.W.3d at 778; see Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). In assessing the

sufficiency of the evidence, we have a duty to ensure that the evidence presented actually

supports a conclusion that the defendant committed the crime that was charged. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see Winfrey v. State, 323 S.W.3d 875, 882 (Tex.

Crim. App. 2010).


                                      Evidence of Penetration

               Appellant was charged with the offense of sexual assault of a child. See Tex. Penal

Code Ann. § 22.011 (a)(2)(A), (c)(1),(2). The State alleged in the indictment, and had the burden

to prove, that appellant intentionally or knowingly caused the penetration of the female sexual organ

of S. Johnson, a child younger than 17 years of age who was not the spouse of appellant, with

appellant’s sexual organ. Appellant argues that the evidence is insufficient to prove penetration. He

complains that the State’s evidence was largely circumstantial and failed to eliminate the possibility

                                                  4
that S. Johnson could have become pregnant by artificial insemination.4 He points to the lack of

testimony, or other outcry evidence, from S. Johnson as support for this contention.

               The lack of direct evidence is not dispositive of the issue of appellant’s guilt.

The State is not required to present direct evidence to establish guilt. See Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Sanders v. State, 346 S.W.3d 26, 32 (Tex. App.—Fort

Worth 2011, pet. ref’d). Indeed, circumstantial evidence is as probative as direct evidence in

establishing guilt and may alone be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007); Sanders, 346 S.W.3d at 32. The law does not require that each fact “point

directly and independently to the guilt of the appellant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13; see

Guevara, 152 S.W.3d at 49; Sanders, 346 S.W.3d at 32. The standard of review on appeal is the

same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462

(Tex. Crim. App. 2010); Hooper, 214 S.W.3d at 13; Guevara, 152 S.W.3d at 49.




       4
         Specifically, appellant maintains that the record demonstrates only that he was a possible
sperm donor. Relying on the concurring opinion in Griffith v. State, appellant argues that,
given modern science, fatherhood does not indisputably prove sexual intercourse, suggesting
that S. Johnson could have become pregnant by artificial insemination. See Griffith v. State,
976 S.W.2d 241, 253 n.1 (Tex. App.—Amarillo 1998, pet. ref’d) (Quinn, J., concurring). Appellant
did not offer evidence at trial that S. Johnson became pregnant by some act other than sexual
intercourse with him or present his theory of artificial insemination to the jury in any way.
        Moreover, appellant’s reliance on the Griffith concurrence is somewhat misplaced, as Justice
Quinn’s reference to artificial insemination was contained in a footnote to an explicit statement
recognizing that “[o]ne way to prove that [the defendant] had intercourse [with the alleged victim]
was to prove that he was the infant’s father. Indeed, if he was the father then it would be quite
reasonable to deduce that he had intercourse with the mother.” Id.


                                                 5
               Moreover, it is not incumbent upon the State to exclude “every reasonable hypothesis

other than guilt” for the evidence to be considered sufficient.5 Geesa v. State, 820 S.W.2d 154,

157-61 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570,

571 (Tex. Crim. App. 2000); Sanders, 346 S.W.3d at 32; Villarreal Lopez v. State, 267 S.W.3d 85,

97-98 (Tex. App.—Corpus Christi 2008, no pet.) (citing Harris v. State, 133 S.W.3d 760, 763-65

(Tex. App.—Texarkana 2004, pet. ref’d)); see Orona v. State, 836 S.W.2d 319, 322 (Tex.

App.—Austin 1992, no pet.) (“Geesa rightfully abolished the logically inconsistent requirement in

a circumstantial-evidence case that a legal-sufficiency review, in which the appellate court must view

the evidence in the light most favorable to the prosecution, must also negate the existence of any

alternate reasonable hypothesis inconsistent with the defendant’s guilt.”)

               In a prosecution for sexual assault of a child, penetration may be proven by

circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990);

Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); Belt v. State, 227 S.W.3d 339, 342

(Tex. App.—Texarkana 2007, no pet.); Quinton v. State, 56 S.W.3d 633, 641 (Tex. App.—Waco

2001, pet. ref’d). There is no requirement that the child victim testify about penetration. Villalon,

791 S.W.2d at 133; Nilsson, 477 S.W.2d at 596. Evidence of the slightest penetration is sufficient.

Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); see Nilsson, 477 S.W.2d at 595.




       5
          In Geesa v. State, the Texas Court of Criminal Appeals expressly disavowed the
“reasonable hypothesis analytical construct” for legal-sufficiency reviews. See Geesa v. State,
820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State,
28 S.W.3d 570 (Tex. Crim. App. 2000).

                                                  6
                At trial, the jury received evidence that appellant moved to the YFZ Ranch in

Schleicher County, Texas, in February 2004 and that S. Johnson moved to the ranch in January 2005.

The evidence showed that appellant was sealed to S. Johnson in a celestial or spiritual marriage for

“time and eternity” in October 2005 in a ceremony that was performed on the YFZ Ranch when she

was 14 years old.6 Evidence further showed that after the marriage ceremony, appellant and

S. Johnson lived together in the same household on the ranch, purportedly as husband and wife,

including engaging in a sexually intimate relationship.7 Finally, the evidence showed that after being

sealed in a spiritual marriage with appellant, S. Johnson gave birth to a son when she was 16 years

old. DNA testing established that appellant was the biological father of her child.8

                A fact-finder may support its verdict with reasonable inferences drawn from the

evidence. Laster, 275 S.W.3d at 523; Hooper, 214 S.W.3d at 14. Jurors are free to use their



        6
           Testimony showed that celestial or spiritual marriages in FLDS were religious unions not
recognized as legal marriages by the State of Texas. A certified copy of a Utah marriage certificate
reflected that appellant was already legally married to Elizabeth A. Steed at the time he entered into
this spiritual marriage with S. Johnson.
        7
          Evidence demonstrated that according to FLDS doctrine and teachings, a woman must be
sealed in a celestial marriage with a worthy priesthood man in order to gain eternal salvation. Thus,
a celestial marriage was a significant, if not the most significant, event in the life of a girl in FLDS.
She was placed in such a relationship when the “prophet” deemed her worthy, regardless of her age.
After such a marriage, the girl was placed in the household of her husband, who became her new
“priesthood head.” Throughout their lives, the girls receive continuous training on what FLDS
deems the proper relationship between a wife and her husband. She is to be obedient both spiritually
and physically to her husband—physical submission to him meaning being sexually intimate with
him. According to FLDS doctrine and teachings, a woman’s greatest mission in life is to bring forth
pure and faithful children for her priesthood head.
        8
         Although appellant contested one of the statistical representations of the DNA test results,
he offered no controverting evidence regarding the fact that his DNA profile contained all of the
obligate paternal alleles of the true biological father of the child.

                                                   7
common sense and apply common knowledge, observation, and experience gained in the

ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from

the evidence. Obigbo v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.); Jones v. State,

900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, pet. ref’d); Wawrykow v. State,

866 S.W.2d 87, 88 (Tex. App.—Beaumont 1993, pet. ref’d); see Saenz v. State, 976 S.W.2d 314,

322 (Tex. App.—Corpus Christi 1998, no pet.) (“Jurors are expected to draw upon their own

experiences and common knowledge and apply them to the facts at hand.”).

               In this case, the circumstantial evidence of penetration is compelling. Using common

sense and common knowledge, the jurors could rationally conclude that appellant and S. Johnson,

as spiritual husband and wife, were involved in a sexually intimate relationship, one including sexual

intercourse, that resulted in the conception of their son. Accordingly, viewing the evidence in the

light most favorable to the verdict and with proper regard for the jury’s power to resolve conflicts,

evaluate credibility, and weigh the evidence, a rational trier of fact could have found beyond

a reasonable doubt that appellant intentionally or knowingly caused the penetration of

S. Johnson’s sexual organ with his sexual organ when she was younger than 17. See Jessop v. State,

No. 03-10-00078-CR, 2012 WL 1402117, at *2-4 (Tex. App.—Austin Apr. 19, 2012, no pet. h.);

see also Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. Therefore, we hold that the evidence

of penetration is legally sufficient. We overrule appellant’s first point of error.


                                      Territorial Jurisdiction

               Also in his first point of error, appellant contends that the evidence is insufficient to

prove territorial jurisdiction. He argues that the evidence is insufficient to demonstrate that

                                                  8
appellant’s sexual assault of S. Johnson occurred in Texas because the direct evidence fails to show

that the sexual act resulting in the conception of the child took place in Texas.

               Texas has jurisdiction over an offense if the conduct constituting the offense occurs

inside this state. See Tex. Penal Code Ann. § 1.04(a)(1) (West 2005). Jurisdiction can be

established by circumstantial evidence. Vaughn v. State, 607 S.W. 2d 914, 920 (Tex. Crim. App.

1980); Gunter v. State, 327 S.W.3d 797, 799-800 (Tex. App.—Fort Worth 2010, no pet.); see, e.g.,

Walker v. State, 195 S.W.3d 250, 257-58 (Tex. App.—San Antonio 2006, no pet.); James v. State,

89 S.W.3d 86, 89 (Tex. App.—Corpus Christi 2002, no pet.). It is unclear whether the State must

prove territorial jurisdiction beyond a reasonable doubt or by a preponderance of the evidence. See

Torres v. State, 141 S.W.3d 645, 654 (Tex. App.—El Paso 2004, pet. ref’d). Regardless of which

standard is applied, we conclude that the evidence is legally sufficient to establish territorial

jurisdiction in Texas.

               The circumstantial evidence—viewed in the light most favorable to the verdict and

with proper respect for the jury’s power to resolve conflicts, evaluate credibility, and weigh the

evidence—showed that appellant and S. Johnson lived together in a sexually intimate relationship

as spiritual husband and wife on the YFZ Ranch in Schleicher County, Texas, prior to, during, and

after the birth of their child. We hold that this is sufficient circumstantial evidence to support a

finding by a jury beyond a reasonable doubt that appellant sexually assaulted S. Johnson in Texas.9


       9
          Appellant suggests that the State’s proof failed because the circumstantial evidence placing
appellant in Texas around the date of the child’s conception was “far too tenuous.” However, the
jury, as exclusive judge of the facts, is entitled to weigh the evidence and draw reasonable inferences
therefrom. See Jackson v. Virginia, 443 U.S. 307, 313 (1979); Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009).

                                                  9
See Jessop, 2012 WL 1402117, at *4; see also Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at

778; Geesa, 820 S.W.2d at 155, 161. Therefore, the evidence is sufficient to prove that Texas has

territorial jurisdiction.10 We overrule appellant’s second point of error.


                                    II. CHURCH RECORDS

               In his second and third points of error, appellant argues that the trial judge erred in

admitting documentary evidence seized from the vaults of the temple and temple annex of the YFZ

Ranch. These two points of error and the arguments made are identical to those raised and

addressed in Jessop v. State, 2012 WL 1402117, at *16-20, and Keate v. State, No. 03-10-00077-CR,

2012 WL 896200, at *5-10 (Tex. App.—Austin Mar. 16, 2012, no pet. h.) (mem. op., not designated

for publication). In those opinions, we concluded that the trial court did not abuse its discretion

in admitting the complained-of documents. See Jessop, 2012 WL 1402117, at *16-20; Keate,

2012 WL 896200, at *5-10. We do not repeat that discussion here. For the reasons stated in our

opinions in Jessop and Keate, we overrule appellant’s second and third points of error.


                       III. MOTION TO QUASH THE INDICTMENT

               In his fourth point of error, appellant challenges the trial court’s denial of his motion

to quash the indictment, which complained of impermissible grand jury procedures in Schleicher

County. This point of error and the arguments made are identical to those raised and addressed in

Jeffs v. State, 2012 WL 601846, at *11-18. There, we concluded that the trial court did not abuse


       10
           Because we find the evidence legally sufficient under the more stringent beyond-
a-reasonable-doubt standard, it would also be sufficient under the preponderance-of-the-
evidence standard.

                                                  10
its discretion in denying the defendants’ joint motion to quash the indictment. See id. We do not

repeat that discussion here. For the reasons stated in our opinion in Jeffs, we overrule appellant’s

fourth point of error.


                                   IV. PUNISHMENT EVIDENCE

                  In two points of error, appellant contends that the trial court erroneously admitted the

testimony of two witnesses—Dr. Lawrence Beall and Jonathan Broadway—during the punishment

phase of trial.


                                           Dr. Lawrence Beall

                  In his fifth point of error, appellant complains that the trial judge erred in admitting

the testimony of Dr. Lawrence Beall, a clinical psychologist, during the punishment phase of trial.

This point of error and the arguments made are identical to those raised and addressed in Jessop

v. State, 2012 WL 1402117, at *22-29, and Keate v. State, 2012 WL 896200, at *12-18. In those

opinions, we concluded that the trial court did not abuse its discretion in admitting the complained-of

testimony. See Jessop, 2012 WL 1402117, at *22-29; Keate, 2012 WL 896200, at *12-18. We do

not repeat that discussion here. For the reasons stated in our opinions in Jessop and Keate, we

overrule appellant’s fifth point of error.


                                       Agent Jonathan Broadway

                  During the punishment phase of trial, FBI Agent Jonathan Broadway testified that

Warren Jeffs, the “prophet” of FLDS and appellant’s half brother, was a “fugitive from justice” from




                                                    11
June 2005 until his capture at the end of August 2006.11 The agent further testified that Warren Jeffs

was placed on the FBI’s Ten Most Wanted list—a list the FBI uses to garner publicity for fugitives

deemed a menace to society to seek the public’s assistance in capturing the fugitive—in May 2006

and remained on the list until his arrest. Agent Broadway stated that Warren Jeffs’s fugitive status

was widely publicized in the media, locally in the Eldorado/San Angelo area as well as nationally.

He also testified that during the time his brother was a wanted fugitive, appellant had multiple

encounters with law enforcement officers.

               In his sixth point of error, appellant maintains that the trial court erred in allowing

Agent Broadway’s testimony. He asserted at trial, and argues on appeal, that the agent’s testimony

about the fugitive status of Warren Jeffs was irrelevant under Article 37.07 of the Texas Code of

Criminal Procedure and was more prejudicial than probative under Rule 403 of the Texas Rules of

Evidence. The State maintained that the agent’s testimony demonstrated appellant’s capacity to

conceal matters from law enforcement (not revealing the whereabouts of Warren Jeffs) and his

willingness to maintain personal contact with a publicly known fugitive. The State asserted that both

of these matters were relevant to the issue of whether appellant was a suitable candidate for

community supervision.12




       11
         The evidence in the record reflected that appellant and Warren Jeffs were the sons of the
former “prophet,” Rulon Jeffs, but had different mothers.
       12
          The evidence in the record demonstrated, and the State acknowledged, that appellant had
never before been convicted of a felony offense and thus was eligible for community supervision.
See Tex. Code. Crim. Proc. Ann. art. 42.12, § 4 (West Supp. 2011).

                                                 12
                                        Standard of Review

               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, 802 (Tex. Crim. App. 2010); Walters

v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We may not disturb a trial court’s

evidentiary ruling absent an abuse of discretion. McGhee v. State, 233 S.W.3d 315, 318 (Tex. Crim.

App. 2007). The trial court abuses its discretion only when its decision lies “outside the zone of

reasonable disagreement.” Davis, 329 S.W.3d at 802; Walters, 247 S.W.3d at 217.


                            Relevance of Testimony and Article 37.07

               Section 3(a) of article 37.07 of the Texas Code of Criminal Procedure governs the

admissibility of evidence at the punishment phase of a non-capital criminal trial and grants the trial

court broad discretion to admit evidence that the court deems relevant to sentencing. See Tex. Code

Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2011); Sims v. State, 273 S.W.3d 291, 295 (Tex.

Crim. App. 2008). Admissibility of evidence at the punishment phase of a trial of a non-capital

felony offense is a function of policy rather than relevancy. Hayden v. State, 296 S.W.3d 549, 552

(Tex. Crim. App. 2009); Come v. State, 82 S.W.3d 486, 491 (Tex. App.—Austin 2002, no pet.). 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. Sims, 273 S.W.3d at 295; McGhee, 233 S.W.3d at 318; Come,

82 S.W.3d at 491. Giving complete information about the defendant so the jury can tailor an

appropriate sentence is one of the policy reasons to be considered when determining whether to

admit punishment evidence. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004) (citing

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


                                                 13
                 Appellant argues against the relevance of the evidence of his brother’s fugitive status

because he claims it was unreasonable for the State to assert that he should have turned Warren Jeffs

in to authorities. He maintains that the State only speculated that he knew that Warren Jeffs was a

fugitive or that he knew the whereabouts of Warren Jeffs. However, the relevance was not simply

the State’s contention that appellant failed to turn Warren Jeffs in to the authorities when he should

have. The State also maintained that the evidence was relevant because it showed that appellant had

repeated personal contact with a known fugitive.

                 The record contains evidence reflecting that the fugitive status of Warren Jeffs was

widely publicized locally in the Eldorado and San Angelo community as well as nationally. In

addition, the record contains letters that appellant wrote to Warren Jeffs throughout March 2006,

during the time Warren Jeffs was a fugitive from justice. The record contains further evidence

demonstrating that appellant had direct contact with Warren Jeffs when the prophet officiated over

appellant’s celestial marriage to his fifth wife on July 25, 2006, at a time when Warren Jeffs was on

the FBI’s Ten Most Wanted list. The trial court could have reasonably concluded that this evidence

reflected an ongoing relationship, or appellant’s willingness to maintain an ongoing relationship,

with a known fugitive and was probative of appellant’s character and suitability for community

supervision—relevant issues in the punishment phase of this trial. Thus, we cannot say the trial

court abused its discretion in admitting Agent Broadway’s testimony over appellant’s relevancy

objection. Appellant’s sixth point of error is overruled as it relates to relevance and the violation of

Article 37.07.




                                                   14
                                     Prejudice and Rule 403

               Having determined that Agent Broadway’s testimony was relevant, we must next

weigh its probative value against its prejudicial effect. Rule 403 allows for the exclusion of

otherwise relevant evidence when its probative value is substantially outweighed by the danger of

unfair prejudice. Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries

a presumption that relevant evidence will be more probative than prejudicial. Davis, 329 S.W.3d

at 806; Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009). Further, Rule 403 does not

require exclusion of evidence simply because it creates prejudice; the prejudice must be “unfair.”

Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 2966 (2011);

State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). The rule envisions exclusion of

evidence only when there is a clear disparity between the degree of prejudice of the offered evidence

and its probative value. Gayton v. State, 331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d)

(citing Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)).

               “The term ‘probative value’ refers to the inherent probative force of an item of

evidence—that is, how strongly it serves to make more or less probable the existence of a fact of

consequence to the litigation—coupled with the proponent’s need for that item of evidence.” Davis,

329 S.W.3d at 806 (citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). “‘Unfair

prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Id. All testimony and physical evidence are likely to be prejudicial

to one party or the other. Davis, 329 S.W.3d at 806; Jones, 944 S.W.2d at 653. It is only when there




                                                 15
exists a clear disparity between the degree of prejudice produced by the offered evidence and its

probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806; Hammer, 296 S.W.3d at 568.

                Evidence of appellant’s personal association with a known fugitive from justice was

obviously unfavorable to appellant, but we conclude it was not unfairly prejudicial—or at least that

any unfair prejudice created by the evidence did not substantially outweigh its probative value. It

came as part of a larger examination of appellant’s character, behavior, and beliefs. In this case, the

jury received evidence that appellant personally engaged in the practice of plural marriages and

underage marriage as well as the reassignment of wives and children—his fifth wife, mother of his

twin children, was his former stepmother. Warren Jeffs sealed appellant to this woman in a celestial

marriage while he was a fugitive on the FBI’s Ten Most Wanted list. The evidence of an ongoing

relationship, or at least repeated contact, with a wanted fugitive was but one of the factors that

allowed the jury to determine the appropriate punishment for appellant. This evidence was not so

unfairly prejudicial that there was a clear disparity between the degree of the prejudice and its

probative value. Accordingly, the trial court did not abuse its discretion in admitting this evidence

over appellant’s 403 objection. Appellant’s sixth point of error is overruled as it relates to the

violation of Rule 403.


                                        V. DNA EVIDENCE

                In his seventh point of error, appellant maintains that the trial judge erred in admitting

evidence of the probability-of-paternity statistic of the DNA test results because the use of a 0.5 prior

probability in calculating the statistic violates the presumption of innocence and shifts the burden

of proof. This point of error and the arguments made are identical to those raised and addressed in

                                                   16
Jessop v. State, 2012 WL 1402117, at *5-16. There, we concluded that the trial court did not abuse

its discretion in admitting the complained-of DNA evidence. See id. We do not repeat that

discussion here. For the reasons stated in our opinion in Jessop, we overrule appellant’s seventh

point of error.


                             VI. MOTION TO SUPPRESS EVIDENCE

                  In points of error eight through 13, appellant challenges the trial court’s denial of his

motion to suppress. These six points of error and the arguments made are identical to those raised

and addressed in Emack v. State, 354 S.W.3d 828, 833-40 (Tex. App.—Austin 2011, no pet.), and

Jeffs v. State, 2012 WL 601846, at *4-11. In those opinions, we concluded that the trial court did

not abuse its discretion in denying the defendants’ joint motion to suppress. See Emack, 354 S.W.3d

at 833-40; Jeffs, 2012 WL 601846, at *4-11. We do not repeat that discussion here. For the reasons

stated in our opinions in Emack and Jeffs, we overrule appellant’s points of error eight through 13.


                                             CONCLUSION

                  Having found that the evidence is sufficient to prove both penetration and territorial

jurisdiction, we hold the evidence is sufficient to support appellant’s conviction for sexual assault

of a child. In addition, we hold that the trial court did not abuse its discretion in admitting the church

and family records recovered from the YFZ Ranch, the probability-of-paternity statistic of the DNA

evidence, or the testimony of Dr. Lawrence Beall and Agent Jonathan Broadway during the

punishment phase of trial. We further hold that the trial court did not abuse its discretion in denying

appellant’s motion to quash the indictment and motion to suppress evidence.



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              The judgment of conviction is affirmed.



                                           __________________________________________
                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: May 10, 2012

Do Not Publish




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