                             NUMBER 13-06-00666-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ERASMO GARZA,                                                               Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


   On appeal from the 28th District Court of Nueces County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez

       Appellant, Erasmo Garza, brings this appeal following his conviction for sexual

assault of a child, aggravated sexual assault of a child, and indecency with a child. We

modify the trial court’s judgment and affirm it as modified.

                                     I. BACKGROUND

       Appellant sexually abused his own daughter, C.G., from the time that she was seven
years old until she was fourteen, when she unexpectedly gave birth to his child. At trial,

C.G. testified to numerous instances of sexual abuse, including touching and masturbation,

sexual intercourse, and various incidents of anal intercourse.

        Appellant was indicted on four counts of aggravated sexual assault of a child, one

count of indecency with a child, and one count of sexual assault of a child. A jury found

appellant guilty on each count, assessed life sentences for each of the first four counts of

aggravated sexual assault of a child, and twenty-year sentences for the indecency and

sexual assault counts.1 The trial court ordered that the sentences all run consecutively.

This appeal ensued.

                                            II. EX POST FACTO

        By his first point of error, appellant contends the trial court violated the ex post facto

provisions of the state and federal constitutions.2 Specifically, he argues the trial court

erred by ordering the sentences for counts three, four, and five, to run consecutively to

each other.

        Section 3.03 of the penal code provides that if an accused is found guilty of more



        1
            The counts, offenses, and dates of the offenses appellant was convicted of are as follows:

                  Count   one: Aggravated Sexual Assault of a Child, June 4, 1999;
                  Count   two: Aggravated Sexual Assault of a Child, August 4, 1998;
                  Count   three: Aggravated Sexual Assault of a Child, August 4, 1996;
                  Count   four: Aggravated Sexual Assault of a Child, August 4, 1997;
                  Count   five: Indecency with a child, August 4, 1997; and
                  Count   six: Sexual assault of a Child, Decem ber 1, 1999.

        2
            An unconstitutional ex post facto law (1) punishes as a crim e an act previously com m itted which
was innocent when done, (2) changes the punishm ent and inflicts a greater punishm ent than the law attached
to a crim inal offense when com m itted, or (3) deprives a person charged with a crim e of any defense available
at the tim e the act was com m itted. Johnson v. State, 930 S.W .2d 589, 591 (Tex. Crim . App. 1996) (citing
Collins v. Youngblood, 497 U.S. 37, 42-43 (1990)). The issue in this case focuses on the second definition;
i.e., punishm ent.

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than one offense arising out of the same criminal episode, the sentences may run

consecutively if each sentence is for a conviction of indecency with a child, aggravated

sexual assault, and other enumerated offenses. TEX . PENAL CODE ANN . § 3.03(b)(1)

(Vernon Supp. 2007). However, this particular section became effective September 1,

1997, and only applies to offenses which were committed after this date. See Ponce v.

State, 89 S.W.3d 110, 119 (Tex. App.–Corpus Chrisit 2002, no pet.). Prior to the effective

date of the amendment, section 3.03 provided that if an accused is found guilty of more

than one offense arising out of the same criminal episode, the sentences for each offense

shall run concurrently. Id.

       Here, appellant was found guilty of two counts of aggravated assault and one count

of indecency with a child, all committed prior to September 1, 1997. Thus, because these

three offenses occurred prior to the amendment of section 3.03 of the penal code, the

sentences should not have been ordered to run consecutively. Because the cumulation

of sentences essentially constitutes an increase in punishment, we conclude that “to allow

cumulation of punishment under authority of a statute that did not so provide at the time

of the offense violates the Ex Post Facto Clause.” Id. (quoting Johnson v. State, 930

S.W.2d 589, 593 (Tex. Crim. App. 1996)). Appellant’s first issue is sustained.




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                          III. STATE’S HYPOTHETICAL QUESTION

       By his second issue, appellant complains of a hypothetical question posed by the

State to his defense expert.

       At the punishment stage of trial, appellant called psychologist Dr. William Flynn who

testified that he had conducted a complete psychiatric examination of appellant, and

formed the opinion that appellant “has the lowest risk of re-offending sexually, and has the

lowest risk of re-offending in other violent matters [sic].” The record shows that Dr. Flynn

made extensive use of standardized tests in making this determination. At the hearing, Dr.

Flynn described his examination of appellant as consisting of several parts, one of which

included a determination of whether appellant had any previous convictions for “non-

contact” sexual offenses. According to Dr. Flynn, the fact that appellant did not have any

other “deviant interest,” such as, “looking through other people’s windows” or “exposing

himself [to others],” placed appellant in a low-risk category for re-offending.

       On cross-examination, the State asked Dr. Flynn whether he knew how appellant

was apprehended. Dr. Flynn answered that he was unaware of the circumstances

surrounding appellant’s apprehension. The State then asked to approach the bench. The

following bench conference then occurred:

       Q [State]: He was looking into windows when he was caught, finally, a year
       later. And I would like to go into that. I just learned that myself. And he
       mentioned looking into windows quite a bit during his testimony.

       [Defense counsel]: There is no evidence he’s ever looked into windows. We
       haven’t heard any evidence on the record of that. If somebody is telling him
       that in the peanut gallery, its not relevant.

       [State]: That would have made the risk factor higher. He even blurted out
       about looking in windows. So I would like to be able to ask him, in good faith
       as I understand it, he was looking in windows and that is how he finally got
       caught.

                                             4
      [The Court]: That is not in evidence.

      [Defense Counsel]: It’s not in evidence.

      [State]: It is not in evidence but I can ask him about it and then I can bring
      officers–

      [The Court]: You can ask about a hypothetical

      [State]: Okay.

      [The Court]: But I think he already testified to that.

      [Defense counsel]: He already testified to that. Why do we need to go over
      that –

      [State]: Well, then –

      [Defense counsel]: I’m going to object to the hypothetical.


      The bench conference concluded, and the State continued with its cross-

examination:

      [State]: Hypothetically, Doctor, if someone were on the run for a year and
      were caught looking into windows, and that’s how they were finally caught for
      an outstanding warrant, would that change the risk factor for you?

      [Defense counsel]: I’m going to object to the question. There is no evidence
      that anybody was looking in windows. It is irrelevant and it is not in evidence.

      [State]: Your Honor, the Court allowed me to ask a hypothetical question on
      it. I would be happy to blurt out why I feel that it is relevant, but I think we
      need to approach.

      [Defense counsel]: Your Honor, we can go on hypotheticals forever,
      especially with a psychologist. We can ask him a myriad of hypotheticals.
      It is irrelevant. It is not even any part of this case.

      [The Court]: She is allowed to question on hypotheticals. Overruled.

      *****

      Q [State]: Do you think that is something [sic] pretty dangerous when
      someone peeks into windows.

                                              5
       A: I think it is pretty dangerous and increases the risk of re-offending when
       someone is convicted of peeping in windows.

       Q: Okay. So if someone is caught peeking in windows but not convicted of
       it yet, that is –

       A: Counselor, I don’t know how to answer your question. Caught means –

       [Defense counsel]: Your Honor, I’m going to object right now. She is trying
       to insert in the jury’s mind that my client had been going around peeking
       through windows. None of this is in evidence and it is irrelevant. It is
       improper, too.

       [State]: Your Honor, I’m asking in good faith.

       [The Court]: I think he has answered the question. Can we please move on.

       [State]: Pass the witness.

       The above testimony shows that appellant objected on the basis of relevance and

assuming facts not in evidence. To the extent he argues on appeal that the probative

value of the question was substantially outweighed by the danger of unfair prejudice,

appellant’s trial objection did not preserve error for review as to rule 403 of the Texas Rules

of Evidence. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990).

       After reviewing the record, we find that appellant correctly pointed out that the State

did in fact ask Dr. Flynn to assume a fact which was not in evidence because there was

no testimony that appellant had previously been caught looking through windows.

Nevertheless, when a hypothetical question is addressed to an expert witness, the

assumptions on which the hypothetical is based are not necessarily limited to those

assumptions which are supported by the evidence. Pyles v. State, 755 S.W.2d 98, 118

(Tex. Crim. App. 1988). Hypothetical questions may also include assumptions based on

facts that are within the personal knowledge of the witness or that are assumed from

common or judicial knowledge. Id.

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       Here, to determine appellant’s future dangerousness, Dr. Flynn administered a

Static 99 exam, which he deemed as “both reliable and valid.” According to Dr. Flynn, the

exam has a 75% prediction rate, and added “if I say somebody is going to be low risk, I’m

going to be right a lot.” The exam itself uses ten factors to correlate with sexual offense

recidivism; among the factors to consider is whether a person has previous convictions for

“non-contact sex offenses.” Dr. Flynn repeatedly emphasized that because appellant does

not have any previous sexual offense convictions, he “has the lowest risk of re-offending

sexually.”

       Once Dr. Flynn testified to these conclusions, the State was entitled to inquire into

the circumstances of his research and investigation, the manner in which he conducted his

inquiry, and the materials upon which he relied. See Wheeler v. State, 67 S.W.3d 879,

883 (Tex. Crim. App. 2002). Here, the State’s hypothetical went directly to the validity of

conclusions based on the Static 99 test, and was factually premised on Dr. Flynn’s own

expert testimony, i.e., that a person who has exhibited deviant sexual behavior, such as

looking through windows, is more inclined to re-offend. In other words, Dr. Flynn was

merely asked to factually assume what he already knew, and his answer to the State’s

hypothetical was merely a repeat of what he had previously attested to. We find no error.

See Barefoot v. State, 596 S.W.2d 875, 887-88 (Tex. Crim. App. 1980) (an opponent may,

on cross-examination, secure the expert’s opinion upon a different set of facts, including

facts assumed by the opponent in accordance with his own theory of the case); Ex parte

Woods, 745 S.W.2d 21, 26 n.4 (Tex. Crim. App. 1988) (citing the Supreme Court’s ruling

in Barefoot v. Estelle, 463 U.S. 880 (1983), for the proposition that expert testimony, when

based on a hypothetical, “is commonly admitted as evidence where it might help the fact-


                                             7
finder to do its assigned job”); Held v. State, 948 S.W.2d 45, 53 (Tex. App–Houston [14th

Dist.] 1997, pet. ref’d) (finding hypothetical question proper where assumed facts derived

from expert’s own testimony).

         Furthermore, the confines of “relevancy” are not so strict in cross-examination as

in direct examination. See Carroll v. State, 916 S.W.2d 494, 497-98 (Tex. Crim. App.

1996).    And, during the punishment phase of trial for a non-capital felony offense,

determining what evidence should be admitted is a function of policy rather than a question

of logical relevance. See Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 1999);

Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). A trial court’s decision to

admit or exclude evidence is reviewed under an abuse of discretion standard. See

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Green v. State, 934

S.W.2d 92, 101-02 (Tex. Crim. App. 1996). When the standard of review is abuse of

discretion, a reviewing court should not reverse a trial judge’s decision whose ruling was

within the zone of disagreement. Weatherred, 15 S.W.3d at 542.

         The trial court’s ruling was, at a minimum, within the zone of reasonable

disagreement, and was not an abuse of discretion. Appellant’s second issue is overruled.

                              IV. PROSECUTORIAL MISCONDUCT

         By his third issue, appellant asserts the State engaged in prosecutorial misconduct.

Specifically, appellant contends that “the prosecutor’s announcement that she would be

‘happy to blurt out’ why she felt the hypothetical was relevant was a cynical histrionic

attempt to prejudice the jury.”

         In order to preserve error in cases of prosecutorial misconduct, the defendant must

(1) make a timely and specific objection; (2) request an instruction that the jury disregard


                                              8
the matter improperly placed before the jury; and (3) move for a mistrial. See Penry v.

State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Montoya v. State, 43 S.W.3d 568, 572

(Tex. App.–Waco 2001, no pet.). Regarding specificity, a party should “let the trial judge

know what he wants, why he thinks himself entitled to it, and to do so clearly enough for

the judge to understand him at a time when the court is in proper position to do something

about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

       Appellant did not object in the trial court on the grounds of prosecutorial misconduct,

nor did he receive an adverse ruling on such an objection. Appellant did not seek an

instruction that the jury disregard any false testimony that may have been admitted, nor did

appellant seek a mistrial based on any alleged prosecutorial misconduct. Thus, appellant

failed to preserve any error for appeal. See TEX . R. APP. P. 33.1; Penry, 903 S.W.2d at

764.

       Appellant’s third issue is overruled.

                                      V. CONCLUSION

       Accordingly, we modify the trial court’s judgment by deleting the cumulation order

for counts three, four, and five, and affirm the judgment as modified.




                                   ROGELIO VALDEZ
                                   Chief Justice



Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 20th day of March, 2008.

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