                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-12-00464-CR


                               LEONEL MORALES, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 147th District Court
                                     Travis County, Texas
            Trial Court No. D-1-DC-11-900388, Honorable Wilford Flowers, Presiding

                                         January 10, 2014

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Leonel Morales, appeals his conviction for the offense of aggravated

sexual assault,1 and resulting sentence of confinement for life in the Institutional

Division of the Texas Department of Criminal Justice (ID-TDCJ). Through one issue,

appellant contends that the trial court committed reversible error in allowing evidence of

an extraneous sexual assault to be presented to the jury. Contained within that issue,

appellant also complains that, if the extraneous offense evidence was admissible, the

      1
          See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i) (West Supp. 2013).
probative value of such evidence was substantially outweighed by the danger of unfair

prejudice to appellant. We will address these issues in turn and affirm the judgment of

the trial court.


                                   Factual and Procedural Background


           Although appellant does not contest the sufficiency of the evidence, we will

discuss those portions of the record required to resolve the issue presented. At the

outset, appellant contends that the record reflects that the issue of consent was not

challenged, and the only defensive theory presented by trial counsel was that appellant

was guilty of only sexual assault and not aggravated sexual assault as charged in the

indictment. The State contends that through the cross-examination of the victim, Amy

Adams,2 and other State’s witnesses, appellant effectively challenged whether the

assault was without Amy’s consent.


           On April 3, 2005, Amy got off work and was walking home along Cameron Road

in Austin. A small gold colored Chevrolet pick-up truck approached her and stopped

next to her. Appellant was the driver of the truck. Appellant got out of the truck, came

to the side where Amy was standing, and forced her into the truck. After going back to

the driver’s side and reentering the truck, appellant drove off rapidly, running red lights

en route to a heavily wooded area where he stopped the pick-up. The location of the

assault was adjacent to Johnny Morris Road between Loyola Lane and U.S. Highway

290 in Austin. After Amy got out of the truck, appellant forced her to have sexual




           2
               ―Amy Adams‖ is a pseudonym used by the victim and we will refer to her as Amy throughout this
opinion.

                                                        2
intercourse with him. Appellant then left the scene and Amy walked to her apartment

where she called 911.


       On the day the assault was reported, Amy visited with several police officers

about the events and submitted to a sexual assault examination by a sexual assault

nurse examiner (SANE). All of those that interviewed Amy that day, later prepared

written reports or had written or recorded interviews with Amy.        These reports and

recordings provided some of the cross-examination material that trial counsel used

during his examination of Amy and will be detailed later in this opinion.


       In addition to the cross-examination of Amy, appellant cross-examined each of

the police officers who prepared incident reports or took written or recorded statements

from Amy about discrepancies between Amy’s trial testimony and the incident reports

and written or recorded statements. The tenor of this cross-examination was to portray

Amy as someone who either did not remember the facts or was skewing the facts to

support her view of the facts.


       After the State had presented its evidence and Amy and several of the State’s

witnesses had been extensively cross-examined, the State requested that the trial court

rule on the issue of whether to permit proof of appellant’s extraneous offenses. The trial

court then allowed the State to proffer, out of the presence of the jury, what the

testimony was they proposed to present on this issue.          Following a proffer and a

discussion of the application of the law of extraneous offenses, the trial court ruled that

it would permit the introduction of evidence of a single extraneous offense that the court

found to be most similar to the offense being tried. Further, in its ruling, the trial court



                                             3
stated that the evidence was allowed to show motive, common plan, or scheme to rebut

the issue of consent, which the trial court found that the questioning of the State’s

witnesses had raised.


       Subsequently, the jury heard evidence regarding the sexual assault of Martha

Level.3 Martha testified that, on the night of May 22, 2005, she was searching for her

husband near the intersection of Manor and Loyola roads in Austin. She noticed a

small brown pick-up truck driving around that area. The truck came by her location on

at least two occasions and eventually stopped next to her.                  A Hispanic male then

pointed a gun at her and told her to get into the truck. He then drove her to a secluded

location in a wooded area on Old Manor Road in Austin, where he sexually assaulted

her.


       At the conclusion of the evidence in the present case, the jury convicted

appellant of aggravated sexual assault and assessed his punishment at confinement in

the ID-TDCJ for life.


       Through a single issue, appellant claims that the admission of the extraneous

offense evidence was reversible error and that, if the evidence was admissible, its

probative value was substantially outweighed by the danger of unfair prejudice to the

appellant. We disagree and will affirm.




       3
           ―Martha Level‖ is a pseudonym used by the victim in the extraneous offense case, and we will
refer to the victim by that name.

                                                  4
                                    Extraneous Offense Evidence


Standard of Review and Applicable Law


       As an appellate court, we review a trial court’s decision to admit or exclude

evidence under an abuse of discretion standard. Davis v. State, 329 S.W.3d 798, 803

(Tex. Crim. App. 2010). A trial court abuses its discretion when its decision is outside

the zone of reasonable disagreement. Id.


       Relevant evidence of a person’s bad character is generally not admissible for the

purpose of showing that he acted in conformity therewith. Robbins v. State, 88 S.W.3d

256, 259 (Tex. Crim. App. 2002). However, such evidence may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake. TEX. R. EVID. 404(b);4 De La Paz v. State, 279 S.W.3d

336, 342-43 (Tex. Crim. App. 2009). The exceptions listed in Rule 404(b) are not

intended to be mutually exclusive or exhaustive.                 De La Paz, 279 S.W.3d at 343.

Further, Rule 404(b) is not intended as a rule of exclusion but is instead a rule of

inclusion. Id. Evidence that may be admissible under Rule 404(b) may still be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice. Rule

403.


       In a prosecution for a sexual assault, the State must prove that the appellant

engaged in the conduct intentionally or knowingly without the victim’s consent. TEX.

PENAL CODE ANN. § 22.021(a)(1)(A)(i); See Johnson v. State, 932 S.W.2d 296, 302

(Tex. App.—Austin 1996, pet. ref’d). Accordingly, lack of consent is an element of the


       4
           Further reference to the Texas Rules of Evidence will be by reference to ―Rule ____.‖

                                                     5
crime charged. Further, when the defensive theory of consent is raised, a defendant

necessarily disputes his intent to do the act without consent.      Martin v. State, 173

S.W.3d 463, 467 n.1 (Tex. Crim. App. 2005).


Analysis of the Rule 404(b) Challenge


       Appellant argues that the extraneous offense offered by the State proves nothing

but conformity with the allegations of appellant’s bad character. According to appellant,

this is so because trial counsel’s theory of the case went to the issue that the State

could not prove the aggravating factors necessary to elevate the crime at issue from

sexual assault to aggravated sexual assault. Specifically, appellant argues that the

record reflects that trial counsel went to great lengths to explain that he was not

contesting the issue of consent and, therefore, there was no material issue of consent

before the jury. See Robbins, 88 S.W.3d at 261.


       The State counters that, while appellant may have verbalized that he was not

contesting consent as a theory of the defense, the cross-examination of Amy and other

State’s witnesses could easily be viewed as an attack on the issue of whether Amy

consented to the intercourse that is the basis of the indictment.


       An appellant’s plea of not guilty does not, in and of itself, open the door to the

admission of extraneous offenses. See id. at 260. However, when the appellant goes

beyond a simple plea of not guilty, he may through vigorous cross-examination of the

State’s witnesses open the door for the admissibility of such extraneous offenses. See

id. at 261.




                                             6
      Our examination of the record before us leads to our conclusion that appellant

did, in fact, open the door to the admissibility of the extraneous offense in question.

This is demonstrated initially through the cross-examination of Amy. During that cross-

examination, trial counsel highlighted a perceived inconsistency in the report Amy

initially gave to the responding officer that she was waiting on a bus when she first

encountered appellant. She had testified on direct examination that she was walking

home when she initially observed appellant driving in his truck. This was then followed

by extensive cross-examination about whether she talked to appellant before getting

into his vehicle. Later, trial counsel had Amy demonstrate what actions appellant used

to force her into the truck. From reading the cold record, one could deduce that trial

counsel was trying to show how little force, if any, was used to get Amy in the truck.

Trial counsel questioned her extensively about the type of locks the door of the truck

had on it, specifically, whether these were manual locks or electronic locks.       The

testimony revealed that the truck had manual locks that could be opened by simply

pulling up on them. Following this line of questioning, trial counsel inquired about what

appellant did after she was in the truck. Testimony was elicited from Amy that appellant

went around the back of the truck to the driver’s side door instead of taking a shorter

route around the front of the truck. The cross-examination then turned to the drive

toward the secluded spot where the assault took place. Amy was then specifically

asked whether or not, during the time she was in the truck, she tried to get out of the

vehicle or do anything.   This was followed up with a line of questioning regarding

whether Amy had, during the drive to the secluded area, attempted to grab the steering

wheel. Trial counsel asked specifically:



                                           7
       Q. Okay. But, isn’t it true that you told Detective Benningfield that you
       tried to grab the steering wheel?
       A. No.
       Q. You never tried to grab the steering wheel?
       A. No.
       Q. Okay. Could you have told that to Officer Gordon?
       A. No.
       Q. So, you never told anyone that you tried to grab the steering wheel-
       A. –No.
       Q. – to get away? All right.




Trial counsel then elicited testimony from Amy that appellant did not strike her, threaten

her with a gun, or orally threaten her.     Later, cross-examination of Amy produced

testimony that, when appellant got Amy to the spot where the assault took place, she

got out of the truck before appellant got to her side of the vehicle. Amy was also cross-

examined about whether appellant told her to pull her pants down or she did so on her

own.


       In addition to the cross-examination of Amy, trial counsel aggressively cross-

examined all responding officers and the SANE nurse. Much of this cross-examination

went to the issue of Amy’s credibility. Essentially, trial counsel seemed to portray Amy

as someone who could or would not remember the facts.


       While not ever challenging Amy directly regarding whether the sexual intercourse

between her and appellant was consensual, the overall tenor and import of the cross-

examination can, in fact, be understood to imply that she consented to the sexual


                                            8
intercourse. That a jury might have understood this was the import of the questioning is

certainly not outside the zone of reasonable disagreement. See Davis, 329 S.W.3d at

803. With this in mind, we are reminded that the trial court ―has the best vantage from

which to decide‖ questions of admissibility. See Gorman v. State, No. 03-07-00416-CR,

2008 Tex. App. LEXIS 5344, at *13 (Tex. App.—Austin July 17, 2008, no pet.) (mem.

op., not designated for publication) (quoting Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1991) (op. on reh’g)).      In fact, such is the reasoning behind the

deference appellate court’s pay to the trial court’s rulings on admissibility of evidence.

See Robbins, 88 S.W.3d at 259-60. Accordingly, we overrule appellant’s issue to the

contrary.


Analysis of the Rule 403 Challenge


       A second part of appellant’s issue contends that, even if the evidence was

admissible, the probative value of such evidence was substantially outweighed by the

danger of unfair prejudice. Rule 403.


       When we review a trial court’s ruling regarding a Rule 403 objection, we again

apply an abuse of discretion standard of review. See Davis, 329 S.W.3d at 803. Rule

403 requires the trial court to perform a balancing test of the factors listed in the rule.

See De La Paz, 279 S.W.3d at 348-49. According to De La Paz, the factors we are to

consider are:


   1) How compellingly the extraneous offense evidence serves to make a fact
      of consequence more or less probable--a factor which is related to the
      strength of the evidence presented by the proponent to show the
      defendant in fact committed the extraneous offense;



                                             9
   2) The potential the other offense evidence has to impress the jury ―in some
      irrational but nevertheless indelible way‖;

   3) The time the proponent will need to develop the evidence, during which
      the jury will be distracted from consideration of the indicted offense; and

   4) The force of the proponent’s need for this evidence to prove a fact of
      consequence, i.e., does the proponent have other probative evidence
      available to him to help establish this fact, and is this fact related to an
      issue in dispute.
Id. (quoting Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)).


       A review of appellant’s issue regarding the trial court’s ruling attacks the potential

to impress the jury in an irrational but nevertheless indelible way, factor two, and the

State’s need for the evidence, factor four. In an effort to be complete, we will review

each of the factors in the trial court’s balancing test.


       Turning to the first of the factors in the balancing test, the evidence of the sexual

assault of Martha was very compelling regarding the issue of consent. A review of the

record reveals that the assault on Martha was carried out in much the same manner as

that on Amy. The victims were in similar situations, alone on the streets late at night.

Both were forced into a small pick-up truck that was described in much the same

manner. Both were transported to a secluded wooded area in the same part of Austin.

Appellant drove straight to the area where the assaults occurred. DNA evidence in both

attacks identified appellant as the attacker. The assaults occurred within a month and a

half of each other. Thus, the two assaults are very similar to each other, and this

similarity makes the extraneous offense more compelling and gravitates toward support

of the trial court’s ruling. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.

Crim. App. 2006).



                                              10
        Turning to the second factor, appellant contends that the extraneous offense

evidence must have impressed the jury in some irrational but nevertheless indelible

manner. Initially, we observe that the trial court gave a limiting instruction to the jury

that limited the use of the extraneous offense evidence to show lack of consent, the

issue for which the evidence was admitted. Further, the extraneous offense evidence

was no more heinous a crime than the crime for which appellant was indicted, and

therefore the evidence of the extraneous offense was not so inflammatory as to prevent

the jury from considering it for its proper purpose. See Taylor v. State, 920 S.W.2d 319,

323 (Tex. Crim. App. 1996). Thus, the second factor of the balancing test supports the

trial court’s ruling.


        The third factor of the balancing test, the time required presenting the evidence

and whether this would distract the jury from its primary purpose, is not contested by

appellant. The record reflects that the presentation of the extraneous offense evidence

took less than a complete day in a trial that took five days total, three of which were

spent on the guilt/innocence portion of the trial. We do not find that the presentation of

the evidence was so time consuming as to warrant this Court overturning the ruling of

the trial court.


        The fourth factor of the balancing test, the need of the State for this evidence, is

attacked by appellant under the theory that the State’s evidence on the issue of lack of

consent was strong.      Such a postulation does not withstand the record before us.

Appellant spent a significant amount of time on cross-examination trying to prove that

Amy was not a credible person and should not be believed. As noted in the Rule 404(b)

portion of this opinion, this cross-examination clearly attacked the element of consent.

                                             11
Accordingly, the State needed the evidence to show that the sexual assault against

Amy was without her consent.


      After reviewing the record, the trial court’s ruling, and the limiting instruction given

to the jury, we find that the trial court was correct in overruling appellant’s Rule 403

objection, and no abuse of discretion has been demonstrated. See Davis, 329 S.W.3d

at 803. Therefore, the second portion of appellant’s issue is overruled.


                                        Conclusion


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




                                                  Mackey K. Hancock
                                                      Justice


Do not publish.




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