                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-14-00350-CR

ROBERT WAYNE CHAPMAN, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                            From the 18th District Court
                              Johnson County, Texas
                               Trial Court No. F47799


                           MEMORANDUM OPINION

       Raising three issues, Appellant Robert Wayne Chapman, Jr. appeals his

convictions on four counts of aggravated sexual assault of a child and four consecutive

life sentences. We will affirm.

       On November 26, 2012, Melissa, Chapman’s adult half-sister, called 9-1-1 and

reported that Chapman was drunk and was asking her for sexual favors. He had grabbed

her breasts and requested oral sex, and while she was on the call, he came into her

bedroom, dropped his pants, and yelled at her to perform oral sex. In the call, Melissa
further reported that Chapman had been sexually assaulting her since she was a child

and that he had also sexually assaulted his niece Christa and Melissa’s step-daughter

Heather when they were young. Law enforcement came and arrested Chapman for

making a terroristic threat and resisting arrest.

       Two weeks later, Melissa and Christa, who was age 21 at that time, went to the

Johnson County Sheriff’s Office, and Christa gave a statement. Chapman was indicted

for three counts of aggravated sexual assault of a child involving Christa and one count

of aggravated sexual assault of a child involving Heather. The sexual assault of Heather

occurred around Thanksgiving in 2003 or 2004, when Heather was age 12 or 13, and

Chapman came into the room where Heather was sleeping and digitally penetrated her

sexual organ. The sexual assaults of Christa occurred in 2005, when Christa was age 13,

and Chapman sexually assaulted her in several different ways about once a week over

several months.

                              Extraneous-Offense Evidence

       In issue one, Chapman asserts that the trial court erroneously admitted evidence

of four extraneous offenses during guilt-innocence. We review a trial court’s ruling on

the admissibility of extraneous offenses for an abuse of discretion. Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009). As long as the trial court’s ruling is not outside

the “zone of reasonable disagreement,” there is no abuse of discretion. Martinez v. State,

327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see also Newton v. State, 301 S.W.3d 315, 317

(Tex. App.—Waco 2009, pet. ref’d) (citing De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex.

Crim. App. 2009)).

Chapman v. State                                                                     Page 2
       Before trial began, the trial court held an article 38.37 hearing outside the presence

of the jury. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a(2) (West Supp. 2015). In cases

involving certain types of sexual-abuse offenses where the victim is under 17 years of

age, article 38.37 allows, notwithstanding Rules of Evidence 404 and 405, evidence of

other crimes, wrongs, or acts committed by the defendant against a child-victim to be

admitted for its bearing on relevant matters, including the state of mind of the defendant.

Id. art. 38.37, § 1. The extraneous offense, wrong, or act must involve, inter alia, Indecency

with a Child, Sexual Assault of a Child, or Aggravated Sexual Assault of a Child. Id.

Also, the State must give the defendant notice of its intent to introduce the evidence in its

case-in-chief not later than the 30th day before the date of trial, and the trial court must

conduct a hearing outside the presence of the jury to determine whether the evidence

likely to be admitted at trial will be adequate to support a finding by the jury that the

defendant committed the extraneous crime, wrong, or act beyond a reasonable doubt. Id.

art. 38.37, § 2-a.

       In 2013, article 38.37 was amended to provide that, notwithstanding Rules 404 and

405, “evidence that the defendant committed one of the enumerated separate offenses

(such as indecency with a child-contact or exposure, sexual assault of a child, or

aggravated sexual assault of a child) may be admitted … for any bearing [it] has on

relevant matters, including the character of the defendant and acts performed in

conformity with the character of the defendant.” Id. art. 38.37, § 2(b). This amendment

applies to proceedings that commence on or after the effective date of the amendment,



Chapman v. State                                                                        Page 3
which was September 1, 2013. Act of May 17, 2013, 83rd Leg. R.S., ch. 387, §§ 2-3, 2013

Tex. Gen. Laws 1167, 1168.

       Chapman initially complains that application of article 38.37, as amended in 2013,

to offenses that occurred years before 2013 would violate the constitutional prohibition

against ex post facto laws. See U.S. CONST. art. I, § 10 cl. 1. This complaint was not raised

in the trial court, but “the ‘right to be free from ex post facto laws or the ex post

facto application of a law’ is a Marin category-one absolute right” that cannot be forfeited.

Ex parte Heilman, 456 S.W.3d 159, 162-63 (Tex. Crim. App. 2015) (quoting Phillips v. State,

362 S.W.3d 606, 611-12 (Tex. Crim. App. 2011), overruled on other grounds by Heilman, 456

S.W.3d at 163)); Ieppert v. State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995); Marin v. State,

851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947

S.W.2d 262 (Tex. Crim. App. 1997).

       An ex post facto law includes a law that “alters the legal rules of evidence and

requires less or different testimony than the law required at the time of the commission

of the offense to convict the accused.” Dominguez v. State, 467 S.W.3d 521, 526 (Tex.

App.—San Antonio 2015, pet. ref’d). In Dominguez, the court examined an ex post facto

challenge to article 38.37, § 2(b) and held that the amended statute “neither changes the

State's burden of proof to support a conviction for sexual assault of child nor lessens the

amount of evidence required to sustain a conviction.” Id. at 526 (citing McCulloch v. State,

39 S.W.3d 678, 684 (Tex. App.—Beaumont 2001, pet. ref’d)). It thus was not an ex post

facto violation. Id. We agree with the analysis in Dominguez and therefore overrule

Chapman’s ex post facto challenge to article 38.37, § 2(b).

Chapman v. State                                                                        Page 4
       At the article 38.37 hearing, the State called Christa and Melissa. Christa testified

that, while sitting at the kitchen table next to her younger sister J. (who was age nine or

ten at the time), she saw Chapman place his hand on J.’s leg and start moving it closer to

her sister’s vagina. Over defense counsel’s objection, the trial court ruled that the

evidence was admissible under article 38.37. Melissa then testified that, before she turned

17—when she was age five or six—Chapman groped her breast and that he also, at times,

touched her vaginal area. Melissa also testified that Chapman’s groping of her breasts

continued after she became an adult. Again over defense counsel’s objections, the trial

court ruled that the evidence was admissible under article 38.37. Melissa then testified

about the 9-1-1 call that she had made on November 26, 2012. The trial court ruled that

this evidence was also admissible under article 38.37.

       Regarding the four extraneous acts that Chapman complains about in issue one,

we will also address the State’s contention that Chapman did not preserve most of his

complaints for appellate review. The first extraneous act concerns Christa’s testimony

that she saw Chapman place his hand on her younger sister J.’s leg and start moving it

close to her sister’s vagina. Chapman argues on appeal that the evidence is inadequate

to support a jury finding that he committed that separate offense beyond a reasonable

doubt and that the evidence should have been excluded under Rules 404(b) and 403. At

the article 38.37 hearing, however, defense counsel’s only objections were the sufficiency

ground and a Confrontation Clause objection. The complaint on appeal must correspond

or comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273

(Tex. Crim. App. 1999); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana

Chapman v. State                                                                      Page 5
2005, pet. ref’d). “Where a trial objection does not comport with the issue raised on

appeal, the appellant has preserved nothing for review.” Wright, 154 S.W.3d at 241; see

Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that an issue was

not preserved for appellate review because appellant’s trial objection “does not comport

with” the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App.

1999) (same). Because the Rule 404(b) and 403 complaints do not comport with the

objections at trial, they are not preserved for appellate review.

       As for Chapman’s sufficiency argument about the touching of J.’s leg, to prove

Attempted Indecency with Child-Contact, the evidence must show beyond a reasonable

doubt that Chapman had the specific intent to arouse or gratify his sexual desire by

touching through clothing the genitals of J., who was younger than age 17 at the time and

not Chapman’s spouse, and that he did an act amounting to more than mere preparation

that tended, but failed, to effect the commission of the offense intended. See TEX. PENAL

CODE ANN. §§ 15.01(a), 21.11(a)(1), 21.11(b-1), 21.11(c)(1) (West 2011).

       Melissa testified that she thought that Chapman’s touching of J.’s leg was not

sexual; they were playing a game at a table and J. was not paying attention when

Chapman touched her. But Christa testified, more specifically, that when J. was age nine

or ten, there was an incident at the dining-room table where Christa, after being kicked

and hit by J., observed Chapman’s hand on J.’s thigh, moving up toward her vagina.

Christa further testified that Chapman removed his hand only after she screamed at him

to stop. The State asserts that J.’s effort to get the attention of her sister (by hitting and

kicking her) indicates that J., like Christa, believed that Chapman was attempting to

Chapman v. State                                                                        Page 6
commit a sexual assault. Melissa admitted that Christa “freaked out and yelled” at

Chapman.

       Based on the above, we conclude that the trial court did not abuse its discretion in

the article 38.37 hearing by ruling that the evidence likely to be admitted at trial would

be adequate to support a jury finding that Chapman attempted to commit the offense of

Indecency with Child-Contact beyond a reasonable doubt. This ruling is not outside the

“zone of reasonable disagreement.”

       Chapman’s complaints on appeal about the second extraneous act—Chapman’s

touching of Melissa when they were both pre-teen minors living in Indiana—are (1) that

Chapman was a child himself at the time and article 38.37 does not apply to offenses by

juveniles; (2) that the alleged offenses occurred outside of Texas and may not have been

a crime in Indiana; (3) that the evidence is inadequate to support a jury finding that he

committed the separate offenses beyond a reasonable doubt; and (4) that the evidence

should have been excluded under Rules 404(b) and 403. Chapman’s objections at the

article 38.37 hearing were that the evidence is insufficient and that the State’s notice was

inadequate because it lacked sufficient detail and did not include that it happened in

Indiana. Before Melissa testified at trial, the trial court gave Chapman a running Rule

403 objection. Accordingly, the only complaints preserved for appellate review are the

sufficiency complaint and the Rule 403 objection.

       Melissa testified that when they were young, Chapman touched her on her breasts

and genital area when she was under age 17, starting when she was around age 5. These

acts were mentioned in her 9-1-1 call, which also was admitted into evidence and played

Chapman v. State                                                                      Page 7
for the jury. Melissa admitted that she had made previous contradictory statements that

Chapman had never sexually touched her, but she explained that those statements were

not true and that she made them because she did not want Chapman to get in trouble.

We conclude that the trial court did not abuse its discretion in the article 38.37 hearing by

ruling that the evidence likely to be admitted at trial would be adequate to support a jury

finding that Chapman committed the offense of Indecency with Child-Contact beyond a

reasonable doubt; this ruling is not outside the “zone of reasonable disagreement.” We

will address below the Rule 403 objection in conjunction with the Rule 403 objection to

the third instance.

       The third instance of extraneous acts that Chapman complains about is Melissa’s

testimony that Chapman groped her and tried to kiss her many times in their adult years.

At the article 38.37 hearing, Chapman’s only objection was that the evidence is

inadequate to support a jury finding that he committed the separate offenses beyond a

reasonable doubt. As noted above, the trial court gave Chapman a running Rule 403

objection to Melissa’s testimony. On appeal, Chapman asserts that article 38.37 does not

apply to offenses committed against adults, and he again asserts that the evidence should

have been excluded under Rules 404(b) and 403. Accordingly, the only complaint

preserved for appellate review is the Rule 403 objection, which we will next address along

with the Rule 403 objection to the second instance.

       Chapman argues that the trial court erred in finding that the probative value of

the second and third instances—Chapman’s sexual touching and groping of Melissa



Chapman v. State                                                                       Page 8
when she was both a young child and an adult—was not substantially outweighed by

the danger of unfair prejudice. See TEX. R. EVID. 403.

       In its seminal decision in Montgomery v. State, the Court of Criminal Appeals
       identified four non-exclusive factors to be considered in determining
       whether evidence should be excluded under Rule 403. Those factors were:
       (1) the probative value of the evidence; (2) the potential to impress the jury
       in some irrational, yet indelible, way; (3) the time needed to develop the
       evidence; and, (4) the proponent’s need for the evidence.

       More recently, the Court has looked to the language of Rule 403 and
       restated the pertinent factors.

          [A] trial court, when undertaking a Rule 403 analysis, must balance
          (1) the inherent probative force of the proffered item of evidence along
          with (2) the proponent’s need for that evidence against (3) any
          tendency of the evidence to suggest 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. Of course, these factors may well blend
          together in practice.

       Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
       (footnotes omitted).

Newton, 301 S.W.3d at 319 (footnote and citations omitted).

       Rule 403 “envisions exclusion of evidence only when there is a ‘clear disparity

between the degree of prejudice of the offered evidence and its probative value.’” Id. at

322-23 (quoting Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)). We review

the trial court’s determination under Rule 403 for an abuse of discretion. Mozon v. State,

991 S.W.2d 841, 847 (Tex. Crim. App. 1999). As long as the trial court’s ruling is within




Chapman v. State                                                                        Page 9
the “zone of reasonable disagreement,” there is no abuse of discretion. See Newton, 301

S.W.3d at 317 (citing De La Paz, 279 S.W.3d at 343-44).

       Chapman was charged with sexually assaulting two relatives when they lived in

the residence where he also lived. There was evidence that he had been raised in a

sexually dysfunctional family environment and, despite Melissa’s protests to their

mother (who had been sexually molested by her older brother), Chapman was essentially

allowed to sexually abuse Melissa from the time that she was a child until she was in her

thirties. Their mother did nothing to stop Chapman’s behavior. Thus, the State argues,

Chapman never learned the wrongfulness of his perversion toward family members, and

his conduct toward Melissa was relevant to an elemental fact—Chapman’s state of mind.

Although the evidence did have a tendency to impress the jury in an indelible way and

required some time to develop, this was greatly offset by the State’s need for the evidence.

There were no eyewitnesses to the charged offenses other than the victims, and therefore

the complained-of evidence corroborated their allegations.

       Considering the above factors, we cannot say that there is a “clear disparity”

between the danger of unfair prejudice posed by Melissa’s testimony and its probative

value. Thus, the trial court did not abuse its discretion by overruling Chapman’s Rule

403 objections.

       The fourth instance of extraneous offenses at issue are the several extraneous acts

mentioned by Melissa in her 9-1-1 call, the recording of which was admitted, and the

circumstances surrounding the 9-1-1 call.      After defense counsel gave his opening

statement, the State asserted that Chapman had opened the door to the admission of the

Chapman v. State                                                                     Page 10
9-1-1 call and the circumstances surrounding it. The trial court agreed, and when the

recording was offered, Chapman made a Rule 403 objection. The State again asserted

that the door had been opened by the defense opening statement, and the trial court again

agreed.

       Defense counsel’s opening statement began with the assertion that Chapman and

Melissa were having a “family feud.” Counsel then began a detailed description of the

events that occurred on the day of Melissa’s 9-1-1 call and then included specific details

from Melissa’s call.

              You’re going to hear that on that day, November 26th, 2012, that
       while she’s on the phone telling the authorities, You need to come arrest my
       brother, he’s drunk, he’s obnoxious, that while she’s on that phone she says,
       by the way, he’s a pedophile. He's a pedophile. You need to investigate
       him.

               So they make -- they remove him from the house and that’s what
       starts this whole procedure with regards to the sexual assault. Keep in
       mind we are dealing with allegations from 2002 and 2005. And based on
       his sister’s phone call with him being intoxicated and wanting him out of
       the house, that got the ball rolling. That’s what starts this whole case. It’s
       all due to that phone call that Melissa … makes.

       We conclude that the trial court did not abuse its discretion in finding that defense

counsel opened the door to the 9-1-1 call and its circumstances.

       For all of the above reasons, we overrule Chapman’s first issue.

                                         Hearsay

       In his second issue, Chapman contends that the trial court abused its discretion in

admitting Brittany Carroll’s testimony in guilt/innocence about nondescriptive

allegations of sexual abuse by Chapman against Christa, who had already testified that,


Chapman v. State                                                                        Page 11
when she was in the eighth grade, she had confided to Brittany that Chapman had

sexually abused her but only gave Brittany “bits and pieces” of the details. Brittany

testified that she had met Christa in the eighth grade, that they became best friends, and

(over defense counsel’s hearsay objection) that Christa had made an “outcry” of sexual

abuse to her during that school year.

       Chapman argues on appeal that it was error to admit Brittany’s testimony because

(1) she was not listed as an outcry witness in the article 38.072 notice, (2) her testimony

constituted improper bolstering, and (3) the testimony was impermissible hearsay.

Because the only objection made at trial was to hearsay, the other two complaints were

not preserved for appellate review. The State further contends that Brittany gave further

testimony about Christa’s outcry and Chapman did not continue to object or get a

running objection. “The admission of inadmissible evidence can be rendered harmless if

the same or similar evidence is introduced without objection elsewhere during trial.”

Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989), overruled on other grounds by

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see Lane v. State, 151 S.W.3d 188,

193 (Tex. Crim. App. 2004) (“error [if any] in the admission of evidence is cured where

the same evidence comes in elsewhere without objection”); Etheridge v. State, 903 S.W.2d

1, 14 (Tex. Crim. App. 1994).

       Q. Now, when she made her outcry of sexual abuse to you, did she give
       you any details?

       A. No, not really. She was really scared.

       Q. So even back then she appeared scared to talk about it?


Chapman v. State                                                                        Page 12
       A. Yes.

       Q. And you tried to get her to tell you more details, right?

       A. Yes, sir.

       Q. And she just wouldn't -- couldn't do it?

       A. Yeah. She said she couldn't do it, that it was so bad.

       Because the same or similar allegedly hearsay testimony was admitted elsewhere,

without objection, any error in admitting Brittany’s initial testimony about the outcry

would be harmless. Accordingly, we overrule issue two.

                       Excessive and Disproportionate Sentences

       In issue three, Chapman asserts that his four consecutive life sentences are

excessive and disproportionate and thus constitute cruel and unusual punishment under

the U.S. and Texas constitutions. At trial, Chapman’s only objection at sentencing was to

the trial court’s cumulation order, and he requested that the sentences run concurrently.

A defendant must complain or object in the trial court about an allegedly

disproportionate sentence to preserve his complaint for appeal. Ham v. State, 355 S.W.3d

819, 825 (Tex. App.—Amarillo 2011, pet. ref’d); Gertz v. State, No. 10-11-00008-CR, 2012

WL 3799146, at *2 (Tex. App.—Waco Aug. 30, 2012, no pet.) (mem. op., not designated

for publication) (citing Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.]

2006, no pet.); and Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d)). Because Chapman did not raise in the trial court his complaint that his four

life sentences were excessive and disproportionate and thus unconstitutional cruel and



Chapman v. State                                                                     Page 13
unusual punishment, issue three is not preserved and is thus overruled. TEX. R. APP. P.

33.1.

        Having overruled all three issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2016
Do not publish
[CRPM]




Chapman v. State                                                                   Page 14
