Affirmed and Opinion Filed August 12, 2019




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00736-CR
                              JUAN MARTIN REYES, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 05-18-00736

                              MEMORANDUM OPINION
                    Before Chief Justice Burns and Justices Myers and Carlyle
                                 Opinion by Chief Justice Burns
       A jury convicted Reyes of indecency with a child, and the trial judge sentenced him to

thirteen years confinement. In two issues, Reyes claims the trial court erred by allowing witnesses

to testify about extraneous offenses. Finding Reyes failed to preserve these complaints, we affirm

the trial court’s judgment.

                                         I. Background

       When she was eleven years old, NG was touched by the husband of the co-pastor at her

family’s church. NG outcried to her mother and told her mother that Reyes had touched her

breasts, vagina, and buttocks. After NG’s mother filed a complaint with the police, Michael

Margolis, a forensic interviewer with the Dallas Children’s Advocacy Center, interviewed NG.




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       At trial, Margolis testified as an outcry witness about the incidents NG shared during her

interview. Margolis’s testimony included NG’s statements that (1) when Reyes asked her to help

move boxes out of the church kitchen and she bent over to pick up a box, Reyes slid his hand in

NG’s leggings and underwear and squeezed her buttocks; (2) an instance in the toddler room at

church, during which Reyes gave NG ice cream and squeezed her breast on top of her clothes; (3)

an instance when Reyes grabbed NG as she walked down a church hallway, pulled back her

leggings and underwear, and touched her vagina; and, (4) when Reyes grabbed NG’s forearm as

she walked out of a church restroom, pulled her close, and touched her vagina over her clothes and

moved his hand while he was touching her.

       The prosecution sought to introduce the testimony of six additional witnesses—two adults

and four children—to testify that Reyes committed similar extraneous offenses against each of

them. As required by article 38.37 § 2(a) of the Texas Code of Criminal Procedure and rule

404(b)(2) of the Texas rules of evidence, the trial court conducted a pretrial hearing to determine

the admissibility of all six witnesses’ testimony.

       Each of the six witnesses testified at the pretrial hearing.    DG, Reyes’s sister-in-law,

testified Reyes often greeted her with a hug and a slap on her buttocks, despite her asking him to

stop. At a family celebration when DG was in her mid-forties, she bent over picking up a coat and

Reyes slid his hand between her legs and up towards her buttocks and vagina. DW, also Reyes’s

sister-in-law, testified Reyes slapped her buttocks during greetings and said she knew the slaps

were sexual in nature because of comments Reyes made. At a family birthday celebration when

DW was in her early forties, Reyes squeezed DW’s right breast. When DW slapped Reyes’s hand

away, Reyes laughed.




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        The State also sought to admit the testimony of four additional children. Reyes was a close

family friend of CG, and Reyes regularly greeted her with a hug and a slap on the buttocks. When

CG was thirteen or fourteen, Reyes grabbed CG by the wrist as she came out of a restroom at

church, pulled her close, and tried to kiss her. AC, who was Reyes’s eleven year-old niece, testified

that during a family celebration Reyes tickled her on her chest and breasts. EC who was nine and

also Reyes’s niece, testified Reyes once touched her vagina over her clothes in a tickling motion,

and on different occasion, put his finger inside her anus through her clothes. Finally, KH, Reyes’s

eight-year old niece, testified that Reyes touched her vagina over her pants during a family

Thanksgiving celebration. KH did not believe it was an accident because Reyes did not seem sorry.

        At the close of the article 38.37 hearing and after each of the six witnesses testified, Reyes

objected only to the testimony of the two adult witnesses. Reyes argued article 38.37 applies only

to extraneous acts committed against children and thus did not permit the adults to testify about

the extraneous acts. Reyes also asserted the adult testimony would also be more prejudicial than

probative in painting him as a criminal in general beyond any evidence that he inappropriately

touched children. The State argued that pursuant to article 38.37 § 2 of the Texas Code Criminal

Procedure and the “doctrine of chances,”1 the evidence was admissible to show modus operandi,

intent, absence of mistake or accident and defendant’s character and acts in conformity with his

character. The State also argued that the adult testimony was so substantially similar to the sexual

contact alleged by NG that it constituted Appellant’s signature and a pattern of behavior among

multiple victims, and was therefore admissible pursuant to rule 404(b). Finally, the State argued

that the testimony of each of the witnesses was more probative than prejudicial.




1
 The “doctrine of chances” provides that “highly unusual events are unlikely to repeat themselves inadvertently or by
happenstance.” De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009).

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         The trial court ruled the testimony of each witness was relevant to the defendant’s

character, including acts performed in conformity with his character, explained her balancing

analysis regarding the probative nature of the evidence and its prejudicial nature pursuant to rule

403, and found the testimony of all six witnesses was admissible. Reyes did not request a running

objection to the testimony of the two adult witnesses.

         Except for one child, KH, at trial each of the witnesses who had testified at the article 38.37

hearing also testified. Reyes did not object, nor re-urge his prior objection to the admission of the

testimony of any of the five.2 Reyes testified that NG’s assertions, and those of the five other

witnesses who testified about his inappropriate touching, were fabricated, misunderstood accidents

or teasing, or unintentional mistakes.

         The jury convicted Reyes of one count of indecency with a child. Reyes complains the

trial court erred by allowing: (1) pursuant to art. 38.37, adult testimony regarding extraneous

offenses; and (2) the testimony of all five extraneous witnesses because the evidence was more

prejudicial than probative. The State alleged Reyes did not properly preserve these complaints.

We agree.

                                                    II. Analysis

         Preserving a complaint for appellate review requires a timely objection that includes the

grounds for the requested ruling. TEX. R. APP. P. RULE 33.1(a)(1)(A). Further, preserving an

objection regarding purportedly inadmissible evidence also requires an objection each time the

evidence is offered, or a running objection. Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim.

App. 2004); Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980) (“We have consistently



2
  NG’s mother also testified about NG’s initial outcry and described the incidents about which Margolis testified. NG
testified about two of the incidents. The jury also heard from the police investigator and an expert for the prosecution
who corroborated the timeline and elements of the outcry witness testimony.

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held that the failure to object waives any error in the admission of evidence tending to show an

extraneous offense.”).

       At trial, Reyes failed to object to admission of any of the five extraneous witnesses’

testimony and did not request a running objection. Accordingly, Reyes failed to preserve any error

regarding admission of the testimony about which he now complains.

       Even if not waived, however, particularly given the State’s reliance on rule 404(b) in

addition to article 38.37 and Reyes’s failure to address admissibility pursuant to rule 404(b) in his

briefing, we would find no error. We accordingly affirm the trial court’s judgment.




                                                     /Robert D. Burns, III/
                                                     ROBERT D. BURNS, III
                                                     CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180736F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 JUAN MARTIN REYES, Appellant                    On Appeal from the 282nd Judicial District
                                                 Court, Dallas County, Texas
                                                 Trial Court Cause No. F-1711390-S.
 No. 05-18-00736-CR       V.
                                                 Opinion delivered by Chief Justice Burns,
                                                 Justices Myers and Carlyle participating.
 THE STATE OF TEXAS, Appellee


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered August 12, 2019.




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