                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                               ________________

                              NO. 09-15-00267-CR
                               ________________

                           RAY LEVINE, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 252nd District Court
                       Jefferson County, Texas
                       Trial Cause No. 12-15106
__________________________________________________________________

                         MEMORANDUM OPINION

      A jury convicted appellant Ray Levine of indecency with a child, and the

trial judge assessed punishment at thirty years of confinement. 1 In two appellate

issues, Levine challenges the exclusion of testimony from a witness and the

admissibility of extraneous offenses. We affirm the trial court’s judgment of

conviction.

      1
       In addition to alleging the primary offense of indecency with a child, the
indictment alleged that Levine had been previously convicted of robbery and
murder.
                                        1
                                  THE EVIDENCE

        The victim, T.A., testified that she was eleven years old when the offense

occurred. T.A. explained that she, her brother, and her mother were staying at

Levine’s father’s home, where her mother rented a room. T.A. testified that one

afternoon, she entered the house crying after sustaining a minor injury to her lip

while playing with her brother. According to T.A., Levine asked her what was

wrong then,

        put his hands on my face and he kissed me about three times and the
        third time he . . . sucked on my bottom lip and I could feel his teeth
        and he told me whatever we do stays between us[,] and you can’t tell
        anyone, not even your mom or dad.

T.A. explained that Levine’s behavior made her uncomfortable. T.A. told her

brother what happened, and her brother took her into their room and locked the

door.

        Levine later knocked on the door and asked T.A.’s brother to buy a lottery

ticket at the store. T.A. explained that after her brother left to go to the store,

Levine called her to the sofa to watch television with him. T.A. laid down beside

Levine on the sofa, and Levine rubbed T.A.’s back, wrapped his leg around her,

rubbed T.A.’s shoulders, touched her breasts, and simulated sexual intercourse by

rubbing against T.A. T.A. testified that she believed Levine did these things to

arouse or gratify his sexual desire.
                                          2
      When T.A.’s brother returned, he saw T.A. getting up from the couch, and

she told him what had happened. T.A. also told her mother, V.B., what had

occurred, and V.B. described T.A. as “tearing up and nervous[.]” V.B. then called

the authorities, and T.A. provided a written statement to the police.

      V.B. testified that she grew up with Levine and had been sexually involved

with him in the past. V.B. explained that she was not sexually involved with

Levine while she and her children were living in the house with Levine. V.B.

testified that she and Levine were “just childhood friends[,]” and they had no

issues of heartbreak, jealousy, or retribution. Defense counsel did not question

V.B. regarding her relationship with Levine during cross-examination.

      T.A.’s brother, I.B., also testified at trial. While cross-examining I.B.,

defense counsel stated, “[Y]ou understand that this is extremely serious, don’t you?

. . . You understand that what’s happened in the last two and a half years is that my

client has been sitting in jail. Do you understand that?” Outside the presence of the

jury, the prosecutor argued that defense counsel’s comments had opened the door

to evidence of Levine’s “blue warrant parole hold.” The prosecutor went on to add,

“And if we want to get into that, he just mentioned why he has been in jail. Well, if

you want to talk about why he has been in jail and that he didn’t get a bond is

because he is on a murder parole hold, a blue warrant.” The trial court ruled that

                                          3
defense counsel had not opened the door, but was “very close” to having done so.

The trial judge warned defense counsel, “don’t say anything else about it unless

you expect for it to open that door.”

      Officer Mindy Erickson of the Beaumont Police Department testified that

after learning of T.A.’s outcry to V.B., she spoke with T.A. herself. Officer

Erickson explained that T.A. “was looking at the ground a lot. She had a hard time

making eye contact with me. She seemed kind of withdrawn, . . . she seemed very

uncomfortable. She seemed scared.” Detective Darrell Lebeouf of the Beaumont

Police Department’s special crimes division testified that T.A.’s case was assigned

to him, and he went with T.A. to the Garth House to be interviewed. Lebeouf also

interviewed V.B. Lebeouf testified that he believed Levine committed indecency

with a child. Nancy Blitch, a forensic interviewer at Garth House, testified that she

interviewed T.A., and she explained that T.A. answered all of the questions posed

to her and was “very forthcoming[.]”

      The State rested at the conclusion of Blitch’s testimony, and defense counsel

had Levine state on the record that after hearing the evidence in the case, Levine

and counsel had agreed that Levine should not testify on his own behalf. Defense

counsel then made an offer of proof as to potential witness Lorena Horton. Horton

stated that she met Levine online and they began dating. Horton explained that she

                                         4
met V.B. and was aware that V.B. and Levine previously had a sexual relationship.

Horton stated as follows: “One day I was cooking in the kitchen with Ray’s father

and Ray was sitting on the couch. . . . So, I could hear, but I didn’t see. And

suddenly[,] I heard [V.B.] screaming: Don’t be doing me like that, Ray. I ain’t one

of your bitches.” Horton testified that V.B. also threw something. Horton opined

that her presence had upset V.B., and she explained that V.B. later apologized and

told Horton that she and Levine were merely good friends. Horton testified that her

encounter with V.B. occurred approximately one month prior to the offense against

T.A.

       Defense counsel argued that Horton’s testimony was admissible to show that

V.B. had a motivation to have T.A. fabricate the charge against Levine, but the

trial court declined to allow Horton to testify. Defense counsel then argued, “[m]y

thought process is it seems to me I am now put in a position where I . . . at least

have an inclination for changing my mind about whether or not to put my client on

the stand. I think that puts me in a bad position.” The trial judge responded that she

would be inclined not to admit evidence of the robbery, but “the murder conviction

would probably become admissible if [Levine] were to take the stand.” Defense

counsel stated, “just so the Court is clear, my key objection to that is that we filed

in November of 2013 a request for notice under 404(b), 609(f), . . . and the notice

                                          5
came within 15 minutes of picking a jury or within an hour of picking a jury.” 2 The

trial judge noted that the charging instrument itself listed the murder conviction

and ruled that Levine had received reasonable notice. The defense then rested.

                                    ISSUE ONE

      In his first appellate issue, Levine argues that the trial court erred by

excluding from evidence the testimony of Lorena Horton. Specifically, Levine

asserts that Horton’s testimony did not constitute hearsay because it was not

offered to prove the truth of the matter asserted and because it was offered as

evidence of V.B.’s feelings toward Levine and “her motive to fabricate the story.”

      We review a trial court’s ruling to admit or exclude evidence under an abuse

of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.

2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Absent a

clear abuse of discretion, we will not disturb the trial court’s decision to admit or

exclude testimony. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). A

trial court abuses its discretion when its decision was so clearly wrong as to lie

outside the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542. Error

may not be predicated upon a ruling that admits or excludes evidence unless a
      2
       The notice to which defense counsel was referring was apparently the
State’s notice of its intent to use Levine’s prior convictions for enhancement at
punishment and notice of intent under Rules 404b, 609f, and article 37.07, which
was filed during the trial.
                                         6
substantial right of the party is affected. Tex. R. Evid. 103(a); Tex. R. App. P.

44.2(b). “A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). Reversal is not appropriate if, after

examining the record as a whole, we have fair assurance that the error did not

influence the jury, or influenced the jury only slightly. Schutz v. State, 63 S.W.3d

442, 444 (Tex. Crim. App. 2001).

      During his opening statement, defense counsel argued, “do the witnesses

have a reason for telling the story that they are telling? What’s really going on

here?” As discussed above, the State elicited testimony from V.B. concerning her

relationship with Levine during direct examination. However, defense counsel did

not question V.B. at all about the relationship during cross-examination. Defense

counsel again asserted during closing argument that V.B. might have fabricated the

story. During the offer of proof, Horton indicated that the substance of her

testimony would have amounted to an account of hearing words exchanged

between Levine and V.B., as well as Horton’s inference that V.B. was upset at

Horton’s presence. Viewing the record as a whole, we cannot say that the trial

court erred by refusing to admit testimony from Horton. See Weatherred, 15

S.W.3d at 542. In addition, after examining the record as a whole, we have fair

                                         7
assurance that the exclusion of Horton’s testimony either did not influence the jury

or influenced the jury only slightly. See Schutz, 63 S.W.3d at 444; see also Tex. R.

Evid. 103(a); Tex. R. App. P. 44.2(b). We overrule issue one.

                                   ISSUE TWO

      In his second issue, Levine complains of the trial court’s ruling that his

murder conviction would become admissible if he had decided to testify. As

explained above, no extraneous offense evidence was actually admitted, and the

essence of Levine’s complaint on appeal is (1) he did not receive adequate notice

of the State’s intent to use the extraneous offenses and (2) the trial court’s ruling

that the extraneous murder offense evidence would be admissible prevented him

from testifying. With respect to Levine’s complaint regarding notice, we note that

the State need not provide notice of extraneous offense evidence not presented

during its case in chief. See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App.

2002).

      We now turn to Levine’s argument that the trial court’s ruling regarding the

admissibility of extraneous offense evidence prejudiced his defense and

“effectively prevented Levine from testifying in his own defense[.]” When a

defendant elects not to testify, a reviewing court has no way to know whether the

State would have sought to impeach him with inadmissible extraneous offense

                                         8
evidence. Ramirez v. State, 336 S.W.3d 846, 849 (Tex. App.—Amarillo 2011, pet.

ref’d) (citing Luce v. United States, 469 U.S. 38, 42 (1984)). “‘The preferred

method for raising claims such as [appellant’s] would be for the defendant to take

the stand and appeal a subsequent conviction. . . . Only in this way may the claim

be presented to a reviewing court in a concrete factual context.’” Luce, 469 U.S. at

43 (quoting New Jersey v. Portash, 440 U.S. 450, 462 (1979)). The record reflects

that Levine made the decision not to testify after conferring with counsel. In this

case, as in Luce and Ramirez, we conclude that because Levine did not testify, he

failed to preserve his claim of improper admission of extraneous offense evidence

as impeachment. See id.; Ramirez, 336 S.W.3d at 850. Accordingly, we overrule

issue two and affirm the trial court’s judgment of conviction.

      AFFIRMED.



                                       ________________________________
                                              STEVE McKEITHEN
                                                  Chief Justice

Submitted on April 6, 2016
Opinion Delivered June 1, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.



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