                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00064-CR

RONALD ANTONIO BONILLA,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 09-01591-CRF-85


                         MEMORANDUM OPINION


      Ronald Antonio Bonilla was convicted of four counts of indecency with a child.

TEX. PENAL CODE ANN. § 21.11(a) (West 2011). Counts one and two involved one victim,

M., and counts three and four involved another victim, D. Bonilla was sentenced to 14

years in prison for each count. Counts one and two were ordered to run concurrently

as were counts three and four. Counts three and four were then ordered stacked onto

counts one and two. Bonilla appealed. Because the evidence is sufficient to support

each count and because the trial court did not err in admitting extraneous evidence or
in stacking the sentences, the trial court’s judgment is affirmed.

BACKGROUND

        Bonilla emigrated from El Salvador and lived with various family members. He

settled with his brother for a while and helped his brother with his carpet cleaning

business. Bonilla eventually moved out on his own and bought a 4-plex. He still

helped his brother with the carpet cleaning business. In 2005, allegations surfaced that

he had in some manner sexually abused M. and D. M. and D. initially denied any

abuse, and the case was closed. Bonilla then abruptly moved to Houston. In 2008, M.

and D. finally made outcries that Bonilla had touched their penises and made them

touch his penis many times over several years.

SUFFICIENCY OF THE EVIDENCE

        Bonilla first argues that the evidence was insufficient to support the jury’s verdict

as to each of the four counts alleged, two involving M. and two involving D., in the

indictment against Bonilla.

        In reviewing the sufficiency of the evidence to support a conviction, we use the

familiar Jackson v. Virginia standard by viewing all the evidence in a light most favorable

to the prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex.

Crim. App. 2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality



Bonilla v. State                                                                        Page 2
op.). If the record supports conflicting inferences, we must presume that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination. Jackson, 443 U.S. at 326. The factfinder is entitled to judge the credibility

of witnesses and can choose to believe all, some, or none of the testimony presented by

the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). A factfinder

is permitted to draw reasonable inferences from the facts as long as they are supported

by the evidence presented at trial. Merritt, 368 S.W.3d at 525.

        Bonilla contends that no “rational” finder of fact could have found the essential

elements of the crimes beyond a reasonable doubt because some of M.’s and D.’s

testimony was contradicted. For example, Bonilla presented evidence that contradicted

M.’s statement that he worked with Bonilla raking carpets;1 M.’s and D.’s statements

that Bonilla had the Playboy channel; D.’s statement that Bonilla supplied D. with

marijuana; and D.’s statement that the acts of indecency occurred at his house as well as

at Bonilla’s apartments and at job sites. Bonilla’s theory at trial and on appeal is that if

M. and D. “lied” about these facts, they lied about Bonilla touching them and making

them touch him. Thus, the argument continues, their testimony was so unbelievable no

rational jury could have found Bonilla guilty. The contradictions, however, were not as

to any of the essential elements of the crime. Further, it was within the province of the

jury to believe M. and D. as to the essential elements while either believing or



1Some of the acts of indecency were alleged to have been committed while M. and Bonilla were cleaning
carpets.

Bonilla v. State                                                                              Page 3
disbelieving their other statements.

        After reviewing the entire record in the light most favorable to the prosecution,

we find the evidence was sufficient to support the jury’s verdict as to each offense

involving M. and each offense involving D. Bonilla’s first four issues are overruled.

PROBATIVE VALUE VS DANGER OF UNFAIR PREJUDICE

        Bonilla next argues that the trial court erred in allowing extraneous evidence of

drugs and drug use, over objection, in the guilt-innocence phase of the trial because the

probative value of the evidence was “so substantially outweighed by unfair prejudice.”

See TEX. R. EVID. 403. Prior to D.’s testimony, Bonilla objected to any testimony by D. or

another State’s witness, Ryan Farrell, about any type of drug use in connection with the

offenses, arguing that the evidence was irrelevant and if relevant, the danger of unfair

prejudice “far outweigh[ed] the probative value.”

        Evidence may be excluded under Rule 403 if the danger of unfair prejudice

substantially outweighs the probative value of the evidence. TEX. R. EVID. 403. Rule 403

favors admission of relevant evidence and carries a presumption that relevant evidence

will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim.

App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court

has broad discretion in conducting a Rule 403 balancing test, and we will not lightly

disturb its decision. Allen, 108 S.W.3d at 284. All testimony and physical evidence are

likely to be prejudicial to one party or the other. Davis v. State, 329 S.W.3d 798, 806 (Tex.



Bonilla v. State                                                                       Page 4
Crim. App. 2010); Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity

between the degree of prejudice of the offered evidence and its probative value that

Rule 403 is applicable. Id.

        A trial court's Rule 403 decisions are reviewed for an abuse of discretion. State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005); Moreno v. State, 858 S.W.2d 453, 463

(Tex. Crim. App. 1993). A reversal will occur only if the trial court's decision is outside

the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 150 (Tex. Crim.

App. 2001). A proper Rule 403 analysis by either the trial court or a reviewing court

includes balancing the following factors: (1) the inherent probative force of the

proffered 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—along with (2) the

proponent's need for that evidence against (3) any tendency of the evidence to suggest a

decision on an improper basis, (4) any tendency of the evidence to confuse or distract

the jury from the main issues, (5) any tendency of the evidence to be given undue

weight by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v.

State, 210 S.W.3d 637, 641-642 (Tex. Crim. App. 2006); Erazo v. State, 144 S.W.3d 487, 489

(Tex. Crim. App. 2004). See Cressman v. State, No. 10-11-00393-CR, 2012 Tex. App.

LEXIS 9849, *8-10 (Tex. App.—Waco Nov. 29, 2012, no pet.) (not designated for



Bonilla v. State                                                                      Page 5
publication).

        D. testified that Bonilla provided D. with marijuana which he and his friends

smoked at D.’s apartment. On cross-examination, D. again testified about the marijuana

Bonilla provided and that Bonilla had also provided him with an “eight-ball” of crack

cocaine which D. sold rather than used.          Ryan testified that he and D. smoked

marijuana at Bonilla’s apartment but it was not supplied by Bonilla.

        The marijuana evidence was only a small part of the evidence used by the State

to show that Bonilla had been grooming D. to accept Bonilla’s advances. Because

Bonilla spent a great deal of time trying to discredit both D.’s and M.’s claims of sexual

abuse, the State needed evidence of grooming. It did not take long to develop and was

not repetitive of any other evidence. The jury was provided with a limiting instruction

in the trial court’s charge, and compared to the amount of testimony regarding other

extraneous conduct, that Bonilla provided both M. and D. with various forms of

pornography, the jury was not likely to be confused or distracted by the marijuana

evidence nor would the evidence suggest a decision by the jury on an improper basis.

        After reviewing the evidence in light of the factors, we find the trial court did not

abuse its discretion in overruling Bonilla’s Rule 403 objection.          His fifth issue is

overruled.

STACKING SENTENCES

        Lastly, Bonilla contends that the trial court erred when it ordered the sentences in



Bonilla v. State                                                                       Page 6
counts three and four (the offenses involving D.) to be served consecutively only after

the sentences in counts one and two (the offenses involving M.) had ceased to operate.

Essentially, the sentences for counts three and four were “stacked” on the sentences of

counts one and two.

        Texas Penal Code section 3.03 addresses when sentences for offenses arising out

of the same criminal episode are to run concurrently or consecutively. TEX. PENAL CODE

ANN. § 3.03 (West Supp. 2012). Generally, when a defendant is convicted of multiple

offenses that have been properly joined and prosecuted in a single trial, such sentences

must run concurrently. Id. (a). In 1997, the legislature carved out several exceptions to

this general rule. Id. (b). The exception applicable to this case permits a trial court to

impose consecutive sentences for a defendant found guilty of more than one offense

arising out of the same criminal episode when each sentence is for a conviction of

indecency with a child. Id. (b)(2)(A). This exception applies only to offenses committed

on or after September 1, 1997:

              (a) The change in law made by this Act applies only to an offense
        committed on or after the effective date [September 1, 1997] of this Act.
        For purposes of this section, an offense is committed before the effective
        date of this Act if any element of the offense occurs before the effective
        date.
              (b) An offense committed before the effective date of this Act is
        covered by the law in effect when the offense was committed, and the
        former law is continued in effect for that purpose.

Act of June 13, 1997, 75th Leg., R.S., ch.667, § 7.

        Bonilla asserts that the pre-September 1, 1997 offense date recited in the


Bonilla v. State                                                                     Page 7
judgments for counts three and four bars stacking of the two sentences on the sentences

in counts one and two. Both judgments recite an offense date of January 1, 1995.

        The offense dates recited in the judgments do not necessarily render the trial

court’s order stacking the sentences invalid. Hendrix v. State, 150 S.W.3d 839, 853 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d). The trial court had the discretion to stack

the sentences for counts three and four with the sentences in counts one and two under

section 3.03(b), as long as there was some evidence that the offenses for counts three

and four occurred after September 1, 1997. Id.; see Owens v. State, 96 S.W.3d 668, 671-72

(Tex. App.—Austin 2003, no pet.) (holding trial court has discretion to cumulate

sentences under section 3.03(b) when there is some evidence that the offenses occurred

after September 1, 1997). Because the State used the phrase "on or about" in the

indictment, it was free to prove that these offenses occurred on any date prior to the

presentment of the indictment and within the statutory limitations period, which had

not expired. See Glenn v. State, 436 S.W.2d 344, 345-46 (Tex. Crim. App. 1969); Owens, 96

S.W.3d at 671-72. Further, Bonilla did not ask the State to elect as to which act, out of

multiple acts, it would rely upon to secure a conviction. See also Crawford v. State, 696

S.W.2d 903, 906 (Tex. Crim. App. 1985) (election by State). Thus, as long as there was

some evidence that the offenses for counts three and four occurred after September 1,

1997, the trial court’s order was not erroneous.

        D. testified that the first time he recalled Bonilla touching D.’s genitals was



Bonilla v. State                                                                   Page 8
before 1996 when he lived in Bryan. D. then described many instances that occurred in

the family’s home when they moved to College Station, at job sites, and in Bonilla’s

various apartments where Bonilla touched D.’s penis or made D. touch Bonilla’s penis.

These incidents began occurring when D. was ten years old and continued until 2002

when D. was in the eighth grade. D. was 23 years old at the time of trial in 2011. He

would have been ten years old in 1998, well beyond the effective date of the change in

the statue.

        Thus, there is some evidence that an offense alleged in count three and an offense

alleged in count four occurred after September 1, 1997 and the trial court did not err in

stacking the sentences. Bonilla’s sixth issue is overruled.

CONCLUSION

        Having overruled each of Bonilla’s issues on appeal, we affirm the trial court’s

judgment of conviction.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 11, 2013
Do not publish
[CR25]




Bonilla v. State                                                                    Page 9
