      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00712-CR
                                       NO. 03-11-00713-CR
                                       NO. 03-11-00714-CR



                                      Joe Chavez, Appellant

                                                  v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
                         NOS. 14,071, 14,072 & 14,073
       HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Joe Chavez was indicted for four offenses related to his sexual relationship with a

sixteen-year-old girl. Before trial, he pleaded guilty to online solicitation of a minor, one count of

sexual assault of a child, and one count of official oppression. The jury found him not guilty of the

remaining count of sexual assault of a child, but assessed the maximum punishments authorized

for the offenses to which he pleaded guilty: ten years in prison and a $10,000 fine for solicitation,

twenty years in prison and a $10,000 fine for sexual assault, and one year in jail and a $4,000 fine

for oppression. The court set the sentences to run concurrently. On appeal, Chavez contends that

the trial court erred by allowing the State to ask him whether he offered to pay for an abortion

for another teenager with whom he had sex. He contends this evidence was highly inflammatory
and that the State failed to give proper notice of its intention to ask these questions. We will affirm

the judgment.


                                         BACKGROUND

                Chavez was a law enforcement agent at the Texas Alcoholic Beverage Commission.

He recruited minors who would try to purchase alcoholic beverages as part of a sting operation.

One was “Bailey Walker,”1 the sixteen-year-old daughter of a law enforcement office employee.

Chavez and Walker exchanged telephone calls and texts that were professional at first, but became

increasingly personal. They eventually discussed the possibility of having sex with each other

and included increasingly revealing photos, including one of Chavez’s genitals. After the sting

operation, Chavez drove Walker to a back road where they had sex, then he dropped her off at home,

telling her to keep their encounter a secret.

                Because of Chavez’s guilty pleas, the only contested guilt-innocence issue was

whether Chavez penetrated Walker’s sexual organ with his fingers. The jury found that he did not.

                At the punishment phase, the State introduced evidence from several women

regarding their sexual interactions with Chavez. Three were women he came into contact with in

his work—a coworker, a bartender, and a liquor-store owner. All three testified that Chavez

made sexual comments and advances toward them, and the store owner testified that she had sex

with Chavez. Two witnesses were recent participants in TABC stings while they were high-school

students and told about the suggestive comments that Chavez made repeatedly to them. Others knew


       1
          Bailey Walker is a pseudonym used for the child in court documents beginning with
the indictments.

                                                  2
Chavez from their high-school days in the mid-1990s when he worked as a police officer in Cuero,

Texas during his late twenties. Three of the women claimed he had sex with them, one of whom was

younger than seventeen at the time. One of the women, C.B., became pregnant and thought that

Chavez might be the father. Paternity testing showed he was not.

                There was also evidence of a car accident that ended Chavez’s job with the Cuero

police department. At a charity softball game, Chavez consumed alcoholic beverages—one witness

testified that he was intoxicated—and his car collided with a parked van. The State’s witness

testified that she saw Chavez get out of the driver’s side of the car, announce that he was a

police officer, minimize the damage, act “very cocky, belligerent” toward the other driver, and fail to

call the incident in to an on-duty officer. Chavez testified that he did not believe he was intoxicated,

that a crowd gathered and became ugly, and that he did call an on-duty officer.

                The defense presented witnesses who testified regarding Chavez’s good character

at work and during his service with the naval reserve (including helping a former colleague in

need after returning from deployment). His priest testified regarding his conduct after his arrest. His

current wife testified regarding their marriage.

                Chavez testified. He talked about the importance and strength of his family, his

nine children—two from his second marriage, two from his third marriage, his third wife’s child

from a previous marriage, and four children he and his third wife adopted so that the children could

stay together. He testified that his infidelity caused him to feel guilt, shame, and embarrassment, that

he realized it was his fault, and that he accepted responsibility for his actions. He also rebutted the

testimony of the women from Cuero. He denied having sex with two of the women, denied having



                                                   3
any sort of relationship with a third, and admitted having sex with the fourth woman. The State’s

cross-examination of him relating to his testimony about the fourth woman forms the basis of

his appeal.


                                           DISCUSSION

               Chavez asserts that the trial court erred by admitting “highly inflammatory

punishment testimony” in violation of the rules of evidence and a statute. See Tex. R. Evid. 401 &

403; see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 2012). He also asserts

that the court erred by failing to require statutorily mandated notice of intent to offer the evidence.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (West Supp. 2012). We review the admission of

evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on reh’g). A trial court abuses its discretion when its decision lies outside the zone

of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

               We will address the notice issue first. The statute requires that, “[o]n timely request

of the defendant, notice of intent to introduce evidence under this article shall be given in the same

manner required by Rule 404(b), Texas Rules of Evidence.” Tex. Code Crim. Proc. Ann. art. 37.07,

§ 3(g). The rule of evidence permits certain uses of evidence of other crimes, wrongs, or acts so

long as “reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-

chief such evidence other than that arising in the same transaction.” Tex. R. Evid. 404(b) (emphasis

added). The court of criminal appeals applied this straightforward reading of the plain language of

the statute and rule in opining that evidence of other offenses or bad acts can be introduced in

rebuttal to mitigation evidence without notice on cross-examination. Jaubert v. State, 74 S.W.3d


                                                  4
1, 3-4 (Tex. Crim. App. 2002) (holding defense counsel was not ineffective for failing to request

notice of extraneous offense evidence admitted at trial because such evidence was introduced

on cross-examination and, therefore, notice requirement did not apply). The challenged evidence

was adduced on cross-examination in rebuttal to mitigation evidence and, therefore, was not

subject to the notice requirement. The trial court did not abuse its discretion by admitting the

challenged evidence without notice.

               Chavez contends that evidence was admitted in violation of rules of evidence

and statutory law. 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 or less probable.2 Tex. R. Evid. 401.

Relevance at the punishment stage of non-capital trials is somewhat less well-defined because there

is generally no particular fact that must be found. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim.

App. 2004). Defining relevance at punishment “cannot be determined by a deductive process but

rather is a function of policy.” Id. The court of criminal appeals wrote further:


       The policies that operate during the punishment phase of a non-capital trial include
       (1) giving complete information to the jury to allow it to tailor an appropriate
       sentence for the defendant; (2) the rule of optional completeness; and (3) whether


       2
          The State argues that Chavez waived a challenge that the evidence should have been
excluded as irrelevant. While Chavez discusses relevance compared to unfair prejudice in the
context of his Rule 403 challenge, it is not clear that he contends that the trial court erred by not
excluding the evidence for its sheer irrelevance. It is clear, however, that he did not object at trial
on relevance grounds to the line of questions posed to him. He objected that the line of questions
the State posed to him would be inflammatory, improper impeachment, and substantially
more prejudicial than probative, but not that the evidence would be irrelevant. For the sake of
thoroughness, we conclude that, to the extent that Chavez raises a challenge to the admission of the
evidence on pure relevance grounds under either Texas Rule of Evidence 401 or Texas Code of
Criminal Procedure article 37.07, section 3(a)(1), that challenge was not preserved, is waived, and
is overruled. See Tex. R. App. P. 33.1.

                                                  5
       the appellant admits the truth during the sentencing phase. As a result, we have
       explained that relevance during the punishment phase of a non-capital trial is
       determined by what is helpful to the jury.


Id. (footnotes and citations omitted). Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex. R. Evid. 403. The legislature has described the type of evidence permissible at the punishment

hearing:


       Regardless of the plea and whether the punishment be assessed by the judge or the
       jury, evidence may be offered by the state and the defendant as to any matter the
       court deems relevant to sentencing, including but not limited to the prior criminal
       record of the defendant, his general reputation, his character, an opinion regarding
       his character, the circumstances of the offense for which he is being tried, and,
       notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of
       an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence
       to have been committed by the defendant or for which he could be held criminally
       responsible, regardless of whether he has previously been charged with or finally
       convicted of the crime or act.


Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).

               The following includes the challenged exchange between the prosecutor and Chavez:


       Q. Mr. Chavez, you had sex with [C.B.]?

       A. That’s correct.

       Q. And you heard the testimony that she testified that she became pregnant—

       A. Right.

       Q. —around the time that you had sex with her.


                                                6
A. That’s what I heard, yes.

Q. Did you have a conversation with her about that pregnancy?

A. I never did, ma’am.

Q. She never talked to you about you possibly being the father?

A. No, ma’am.

Q. And, in fact, that conversation—she had a conversation with you and in that
   conversation she told you, you might be the father, and you told her she should
   get an abortion.

A. No ma’am. I never had a conversation with her. I had it through another party.

Q. Through that other party you offered to pay for an abortion?

A. No, ma’am.

Q. So [C.B.] was lying when she said she talked to you about the paternity of the
   child?

A. Was she lying—I’m sorry, I got distracted.

Q. Was she lying when she told this jury that she had a conversation with you about
   you possibly being the child—

A. I never had a conversation with her personally about her being pregnant. Like I
   said, I heard it through a second party.

Q. Did you talk to her directly or through a third party about the fact that you were—

A. Not direct and not through a second party. I heard it through a second party that
   rumors were going around that she was pregnant.

Q. Okay. So I guess my question is, I’m not talking about rumors. Did you have
   communications with her, [C.B.], about the fact that you might be the father of
   her child?

A. No, not directly.



                                          7
        Q. So you’re telling this jury she lied about that?

        A. I’m telling you, no, I didn’t.


Chavez argues that the abortion-related testimony was not relevant as impeachment because C.B.

had not been allowed to testify on that topic and nobody else had raised it before the jury. Chavez

also argues that this topic did not provide the jury any information needed to tailor an appropriate

sentence for him—particularly since Chavez denied any post-pregnancy conversation with

C.B. occurred, much less one on this topic. He contends that this lack of relevance is substantially

outweighed by the danger of creating unfair prejudice in the minds of jurors who oppose abortion.

                We conclude that the record does not establish the requisite level of danger of unfair

prejudice. The challenged evidence is Chavez’s denial that he offered to pay for an abortion for

someone in another town in the mid-1990s. In order for unfair prejudice to arise, a juror would have

to (1) disbelieve Chavez’s claim that he did not speak with C.B., (2) disbelieve his assertion that he

did not offer to pay for an abortion, and (3) believe that Chavez offering to pay for an abortion was

wrong. In order to reverse the punishment on Rule 403 grounds, we would have to conclude further

(1) that this hypothetical juror’s determination and conviction constituted an unfair prejudice, would

confuse the issues, or mislead the jury, (2) that the danger of this hypothetical juror’s decision-tree

coming to such negative fruition for Chavez substantially outweighs any probative value of the

evidence, and (3) that the trial court’s failure to reach this conclusion about the evidence was outside

the zone of reasonable disagreement. The record does not adequately support that entire sequence

of decisions. Based on the record, the trial court could have found the evidence to be helpful in

creating a fuller picture of Chavez for the jurors, much like the evidence of Chavez’s good works


                                                   8
and family ties. The trial court reasonably could have theorized that the jurors could deviate from

the decision tree at any branch short of reaching a prejudice that was unfair to Chavez, that the

evidence was not confusing or misleading, or that—whatever the juror believed—the danger of the

perils listed in Rule 403 did not substantially outweigh the relevance of the evidence. We find no

abuse of discretion in the admission of the challenged evidence.

               Finding no reversible error presented, we affirm the judgment.




                                             Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: August 24, 2012

Do Not Publish




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