                            In the
                       Court of Appeals
               Second Appellate District of Texas
                        at Fort Worth
                      ___________________________

                           No. 02-18-00327-CR
                      ___________________________

               EDWARD DEWANE BROCKMAN, Appellant

                                      V.

                           THE STATE OF TEXAS


                   On Appeal from the 297th District Court
                          Tarrant County, Texas
                        Trial Court No. 1550194R


Before Birdwell and Bassel, JJ.; and Lee Ann Dauphinot (Senior Justice, Retired,
                             Sitting by Assignment)
                 Memorandum Opinion by Justice Dauphinot
                              MEMORANDUM OPINION

      A jury convicted Appellant Edward Dewane Brockman of continuous sexual

abuse of a child under fourteen years of age and assessed his punishment at forty-

seven years and six months’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. The trial court sentenced him accordingly. Appellant

brings three points on appeal, challenging the sufficiency of the evidence supporting

his conviction and two evidentiary rulings. Because the evidence is sufficient to

support the jury’s verdict and because the trial court committed no error, we affirm

the trial court’s judgment.

Brief Facts

      Appellant lived with Complainant J.M.1 and his mother on an off-and-on basis

from February 2015 to May 2016. J.M. testified that from the time he was six or seven

years old, Appellant would sexually abuse him every time J.M.’s mother left to run

errands. Eventually, J.M. told his mother what Appellant had done to him. When his

mother confronted Appellant and tried to call the police, Appellant picked her up

from behind the neck and slammed her on the ground.




      1
        To preserve the complainant’s anonymity, we use his initials. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                          2
Sufficiency of the Evidence

      In his first point, Appellant argues that the evidence is insufficient to support

his conviction because J.M.’s testimony was not consistent with the testimony of the

SANE 2 nurse who found no evidence of sexual abuse.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view 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 crime beyond a reasonable doubt. 3 A person commits the offense of continuous

sexual abuse of a young child if, during a period that is thirty days or more in

duration, the person commits two or more acts of sexual abuse against a child

younger than fourteen years of age.4

      An “act of sexual abuse” includes indecency with a child other than by

touching, sexual assault, aggravated sexual assault, and sexual performance with a

child. 5 The testimony of a child sexual abuse victim, alone, can be sufficient to




      2
       Sexual assault nurse examiner.
      3
        Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v.
State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

      See Tex. Penal Code Ann. § 21.02(b); see also Pollock v. State, 405 S.W.3d 396,
      4

401–02 (Tex. App.— Fort Worth 2013, no pet.).
      5
       Tex. Penal Code Ann. § 21.02(c)(2), (3), (4), (6).


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support a conviction for continuous sexual abuse of a child.6 Here, the testimony of

J.M.’s mother, of the forensic interviewer, and of the SANE nurse was consistent with

J.M.’s trial testimony. Although the SANE nurse saw no evidence of injuries to J.M.’s

anus, she testified that she often does not see injuries to a child’s anus after an adult

penis has contacted the child’s anus, because of the way a child’s body reacts to the

trauma. Thus, the SANE nurse’s testimony was not inconsistent with J.M.’s because

many of the instances of sexual abuse described by him would not leave evidence.

       Considering the record as a whole, and applying the appropriate standard of

review, we hold the evidence sufficient to support the jury’s verdict. We overrule

Appellant’s first point.

Rule 403 Issue

       In his second and third points, Appellant argues that the trial court reversibly

erred in violation of evidentiary rule 4037 by admitting evidence through J.M.’s

testimony and through his mother’s testimony that Appellant body-slammed J.M.’s

mother when she tried to report the sexual abuse by Appellant to the police.

       As the State prepared to offer evidence of Appellant’s body-slamming J.M.’s

mother, the State addressed Appellant’s motion in limine:



       See Tex. Code Crim. Proc. Ann. art. 38.07; Garner v. State, 523 S.W.3d 266,
       6

271 (Tex. App.—Dallas 2017, no pet.).

       Tex. R. Evid. 403.
       7




                                           4
      MR. KNIGHT: Judge -- Judge, there was a motion in limine on
      38.37 specifically regarding a body-slamming incident. And, Judge, I
      would like to go into that with [J.M.] at this time.

      THE COURT: For what purpose?

      MR. KNIGHT: Judge, to show the consciousness of guilt of this
      defendant.

      MR. ST. JOHN: Same objection. It’s not relevant. It doesn’t show any
      guilt at all. It’s not relevant to the allegation, period.

      The trial court clarified that the assault on J.M.’s mother occurred at or near the

time of the outcry when she confronted Appellant and before she had reported the

sexual abuse to the police. The trial court announced the testimony of the body slam

would be admitted before the jury and Appellant raised a 4038 objection. The trial

court announced he had performed the requisite balancing tests and, again, that the

evidence would be admitted.

      During J.M.’s testimony about the Appellant’s body slamming J.M.’s mother

while she called the police, Appellant stated he renewed the objection he had

previously made, but he did not explain whether he was renewing his 403 objection or

his 38.37 objection. Nor did he ask for a continuing objection.




      8
       Id.


                                           5
      The State argues Appellant’s violent response to J.M.’s accusation was

admissible as a demonstration of Appellant’s consciousness of guilt, and therefore,

admissible as one of the strongest kinds of evidence of guilt.9

      Under Texas Rule of Evidence 403, the trial court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of unfair

prejudice, confusion of the issues, the jury’s being misled, undue delay, or the needless

presentation of cumulative evidence.10 “The issue is whether the search for truth will

be helped or hindered by the interjection of distracting, confusing, or emotionally

charged evidence.”11 The Texas Court of Criminal Appeals has explained that the

court may not exclude relevant evidence that is merely prejudicial because all evidence

against a defendant is, by its nature, prejudicial against the defendant; only unfairly

prejudicial evidence may be excluded.12

      Appellant’s reaction to J.M.’s mother confronting him and calling the police

was part of the experience J.M. related of a prolonged period of sexual abuse that he

finally revealed to his mother. The outburst simply helps complete the story. The

      9
       Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.) (citing
2 Roy R. Ray, Texas Practice: Law of Evidence § 1538, at 242 (3d ed. 1980)).
      10
          Tex. R. Evid. 403.
      11
        Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006) (quoting
Joseph M. McLaughlin, et al., Weinstein’s Federal Evidence § 403.02[1][a], at 403–
06 (2006 rev.)).
      12
          Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).


                                            6
testimony was relevant, and although it was prejudicial, its probative value is not

substantially outweighed by a danger of unfair prejudice, confusion of the issues, the

jury’s being misled, undue delay, or the needless presentation of cumulative evidence.

      The trial court did not err by admitting the evidence of Appellant’s trying to

prevent J.M.’s mother from reporting the abuse to the police. We therefore overrule

Appellant’s second and third points on appeal.

Conclusion

      Having overruled Appellant’s three points on appeal, we affirm the trial court’s

judgment.




                                                     /s/ Lee Ann Dauphinot
                                                     Lee Ann Dauphinot
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 28, 2019




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