Eleventh Court of Appeals

Transcription

1 Opinion filed March 17, 2016 In The Eleventh Court of Appeals No CR JUAN ANTONIO MOLINAR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CR42032 M E M O R A N D U M O P I N I O N The jury found Juan Antonio Molinar guilty of indecency with a child by contact. 1 The jury assessed punishment at confinement for four years with no fine but recommended that the trial court suspend the sentence and place Appellant on 1 TEX. PENAL CODE ANN (a)(1) (West 2011).

2 community supervision. The trial court sentenced Appellant accordingly and placed him on community supervision for ten years. The trial court imposed the regular terms and conditions of community supervision and all conditions applicable to sex offenders, but also imposed, as a condition of community supervision, 180 days in the county jail. Appellant asserts two issues on appeal. We affirm. I. The Charged Offense The grand jury alleged in the indictment that Appellant engaged in sexual contact with D.D., a child younger than seventeen years of age, when Appellant touched a body part of D.D. with Appellant s genitals with the intent to arouse and gratify his sexual desire. See PENAL 21.11(a)(1). An offense of indecency with a child by contact is a felony of the second degree. Id (d). Appellant pleaded not guilty, and the case proceeded to trial. II. Evidence at Trial A. The Incident with D.D. at Midland Freshman High School Jill Rivera, an executive director of professional development at Midland Independent School District (the District), was the principal at Midland Freshman High School (Midland Freshman) when Appellant worked there as a coach and health teacher in May Rivera testified that one day in May 2013, a female student, D.D., reported that Appellant had inappropriately touched D.D. in a classroom. D.D., who was a first-time manager for the freshman football team, which Appellant coached, testified that her seventh period class for the day was health. Appellant taught that class. After class, D.D. dropped her cell phone, and Appellant picked it up; she asked for it back, and he said no. D.D. asked Appellant to tie her shoe, and then Appellant took her shoe from her and tossed it toward the back of the classroom. 2

3 When D.D. went to get her shoe, the door to the classroom was closed, 2 and the curtains were closed. D.D. got her shoe and put it on. D.D. asked Appellant to tie her shoe, and he refused. Appellant told D.D. to change her attitude. As D.D. walked past Appellant, Appellant pushed the front of her body against a desk and pushed her so that she leaned over the desk. Appellant then grabbed her hair, placed his hand against her back, leaned forward, and put his body weight on her. D.D. felt his weight on her; she also felt his genital area, which she described as erect, against her body. She tried to get away from Appellant multiple times, but when she moved, he moved. And he still held her hair. She forcibly pulled her hair out of his hand and left the classroom as fast as she could. D.D. was scared and did not tell anyone during the eighth and final period class, but she spoke to her mom after the class period. A friend of D.D. overheard that conversation, and D.D. texted another friend about the incident. D.D. reported the incident to Rivera the next day. D.D., who was under the age of seventeen, testified that she thought Appellant had sexually touched her because she felt his erect penis on her butt. When questioned by Appellant s counsel, D.D. testified that she had read about erections in textbooks but had never touched a penis. Rivera sent D.D. to the counselor and then asked Appellant to explain what had happened with D.D. Appellant told her that there had been an incident with D.D. s phone and an untied shoe in the classroom. He said that, when Appellant 2 Rivera explained that Appellant taught in the older section of Midland Freshman s main building that has doors that must be manually opened or shut; the newer addition to the building has fire doors that shut on their own. Doors in the building were to remain open during the periods between classes but to be shut when classes began. The classroom also had windows with curtains that could be opened or closed. Rivera explained that the District trained teachers to keep classroom doors open when a teacher meets with a student. The District designed this policy to protect both the teacher and the student. 3

4 was doing something with her shoe, he may have inadvertently brushed against her and put his hand on her shoulder. Rivera reported the incident to law enforcement. Rivera said that Appellant, who had a calm demeanor, was not animated during their conversation. She did not recall if Appellant told her that D.D. had an attitude. B. Police Investigation of D.D. s Allegations Kevin Brunner is a police lieutenant who works for the District. Lieutenant Brunner received a call to respond to Midland Freshman to investigate an allegation of inappropriate behavior between a teacher and a student. Lieutenant Brunner called the Midland Police Department and requested that a detective meet him at the school. The Midland Police Department dispatched Detective Gregory Kent Spencer to assist in the investigation. Detective Spencer worked in the crimes-against-persons section; he arrived at the school and spoke first with Rivera and Lieutenant Brunner. Detective Spencer then completed an interview of D.D. in Rivera s office and took D.D. s recorded statement. Detective Spencer next spoke to Appellant at the Midland Police Department. Appellant had been detained, but he was not under arrest. Detective Spencer testified that Appellant appeared to know why the police wanted to speak with him. Detective Spencer read Appellant his Miranda 3 rights. Appellant waived his rights and chose to speak with Detective Spencer, who taped the interview. Appellant told Detective Spencer that the incident began when D.D. charged her cell phone in the classroom. After class, D.D. s shoe was untied, and Appellant picked it up and playful[ly] tossed the shoe toward the back of the classroom. D.D. retrieved the 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4

5 shoe. Appellant said that he told her to change her attitude and that he touched her back and shoulder, but he denied that he touched her below the waist. Appellant conceded that he may have touched her hair. Three times during the interview, Appellant described and demonstrated what happened, but he was inconsistent with each description and demonstration. During the third demonstration, as Appellant leaned over the detective, who was seated in a chair, Appellant s body and groin touched Detective Spencer s body. C. The Incident with A.B. at Goddard Junior High School 4 The State called A.B., who testified that she was a manager for the boys football and basketball teams at Goddard Junior High in seventh and eighth grade when Appellant was a coach there. A.B. testified that Appellant would hug the managers and sometimes kiss them on the head. On the last day of school, when A.B. was in eighth grade, A.B. went to say goodbye and give Appellant a hug. A.B. went to Appellant s classroom and the door was open; the janitor was in the room, but left and closed the door. A.B. wrote her name on the chalkboard, erased it, then gave Appellant a hug, and walked toward her bookbag. Appellant then approached from behind and wrapped his arms and hands around her. Appellant then pushed her up against a desk; leaned against her; put his weight against her; and touched her with his whole body, including his erect penis, which was positioned up and down and was hard like... plastic. She said that his penis touched her butt. A.B. testified that she had seen an erect penis before. A.B. pulled away and left the room. A.B. did not tell anyone because it was the last day of school, and she thought that no one would believe her story. 4 Goddard Junior High School is located in Midland. 5

6 D. Appellant s Testimony Appellant denied that he took D.D. s cell phone away from her; he testified that he told her to put it away and tie her shoe. D.D. demanded that he tie her shoe, so he took her shoe from her in a playful manner. Appellant tossed her shoe to the back of the classroom, but he did so in a kidding manner. Appellant then told her to tie her own shoe. He thought D.D. had a bad attitude and would lash out at students. He told her to change her attitude, and he had his hand on her back and upper right shoulder as he told her to get an attitude adjustment. Appellant said that he had his hand on her shoulder, as a coach would do with a quarterback on the sidelines. 5 He admitted that he may have touched her hair. He said that the classroom door was open, and he asked D.D. if she was okay. D.D. brushed him off with her arm and walked past him, but he denied that any contact occurred between his groin area and her body. Appellant denied that he touched D.D. with his erect penis on her buttocks. Appellant said that, when he has an erection in full clothing, his penis will go [t]o the side. Appellant also denied that he did anything to A.B. Appellant testified that A.B. had written I love Coach Mo on the chalkboard; he responded that she was going to get him into some crap for that. When she tried to hug and kiss him, he told her to leave the classroom. Several students had written things about having affection for him, but Appellant said that there was never anything inappropriate. Appellant never mentioned the incident with A.B. to anyone except his wife, but he conceded that it was inappropriate conduct on the part of A.B. to try to kiss him. Appellant was aware that A.B. had affection for him, but he claimed that he did not do anything to encourage it. Appellant admitted that he bought charms for each of 5 Appellant said that he hugged students side to side or face to face, but never from behind. 6

7 the four girl managers as a token of appreciation for their help with the football team. Appellant said that there was nothing illegal or inappropriate about his interaction with A.B. Appellant said that D.D. was a good kid. Appellant admitted that he told several different versions of the incident to police and admitted his hip may have touched D.D. s side, but he denied that the incident occurred as D.D. described. Appellant said that D.D. was one of his closest students, that he played around with D.D., but that she misinterpreted the incident. He said that he never had an erection in her presence or in A.B. s presence. Appellant said that there was nothing illegal or inappropriate about his interaction with A.B. and that essentially there was no illegal contact with D.D. E. Character Testimony Several character witnesses testified on behalf of Appellant. All of the witnesses knew Appellant as a teacher or a coach, either at Goddard Junior High or at Midland Freshman. The witnesses thought that Appellant was a professional teacher who had a good rapport with students. They testified that they never heard or saw anything about Appellant s behavior that was a cause for concern and were not aware of any negative information or acts of misconduct. Prior to D.D., no one had reported having any problems with him. III. Discussion and Analysis Appellant argues, in two issues, that the evidence was insufficient to convict him of indecency with a child by contact and that the trial court abused its discretion when it admitted A.B. s testimony under Article of the Texas Code of Criminal Procedure. We will address Appellant s sufficiency issue first, followed by his evidentiary issue. 7

8 A. Issue One: Sufficiency of the Evidence Appellant asserts that there was insufficient evidence to convict him of the charged offense. We review a sufficiency of the evidence issue under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, (Tex. App. Eastland 2010, pet. ref d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years of age, the person engages in sexual contact with the child or causes the child to engage in sexual contact. PENAL 21.11(a)(1). With respect to this offense, sexual contact means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. Id (c). A person acts intentionally with respect to the nature of the conduct or a result of the conduct when it is the person s conscious objective or desire to engage in the conduct or cause the result. Id. 6.03(a). The offense of indecency with a child by contact requires proof of the accused s intent to engage in the proscribed contact, rather than intent to bring about a particular result. Scott v. State, 202 S.W.3d 405, 407 (Tex. App. Texarkana 2006, pet. ref d); Rodriguez v. State, 8

9 24 S.W.3d 499, 502 (Tex. App. Corpus Christi 2000, pet. ref d). A jury may infer the defendant s intent from his remarks and conduct as well as all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). A jury may infer, from conduct alone, a defendant s intent to arouse or gratify one s sexual desire. Scott, 202 S.W.3d at 408 (citing McKenzie, 617 S.W.2d at 216). As detailed above, D.D. testified that Appellant approached her from behind, placed his hand on her shoulder, and pushed her so that she leaned over a desk. D.D. felt his weight on her, and she felt his genital area against her buttocks. She described Appellant s penis as erect. Detective Spencer testified that Appellant had told him three different versions of what happened and that, during Appellant s third demonstration, Appellant leaned over Detective Spencer and his groin touched Detective Spencer s body. At trial, Appellant admitted that he told several different versions of the incident to police and admitted that his hip may have touched D.D. s side, but he denied that the incident occurred as D.D. described. Appellant said that D.D. misinterpreted the incident, and he denied having an erection in her presence or in A.B. s presence. The jury chose to believe D.D. s testimony regarding Appellant s conduct and chose not to believe Appellant. After a review of the record, we hold that a rational jury could have found beyond a reasonable doubt that Appellant committed the offense of indecency with a child by contact as charged in this case. We overrule Appellant s first issue. B. Issue Two: Admission of Extraneous Offense Evidence Appellant asserts in his second issue that the trial court abused its discretion when it admitted A.B. s testimony about an incident with Appellant at Goddard 9

10 Junior High. The trial court admitted the testimony in accordance with Article of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art (West Supp. 2015). A.B. first testified in a hearing outside the presence of the jury. A.B. then testified before the jury, after the trial court ruled that her testimony was admissible. Appellant contends that the State failed to offer any evidence that would show beyond a reasonable doubt that Appellant intended to arouse or gratify himself during the incident described by A.B. Article provides for the admission of evidence of other sex crimes committed by the defendant against children other than the victim of the alleged offense for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Id. art , 2(b). Under Section 2 a, the trial court must hold a hearing and determine that the evidence likely to be admitted will support a jury finding that the defendant committed the separate offense beyond a reasonable doubt. Id , 2 a. At the hearing, A.B. testified that, when she was in eighth grade, she went to say goodbye and give Appellant a hug. A.B. went to Appellant s classroom and gave Appellant a hug. A.B. said that, as she walked away, Appellant approached her from behind and wrapped his arms and hands around her. Appellant then pushed her up against a desk and leaned against her with his whole body, which included his erect penis. A.B. said his penis touched her butt. The testimony of A.B. was admissible under Article because the State adduced evidence from A.B. about Appellant s conduct from which a jury could find beyond a reasonable doubt that Appellant had committed the offense of indecency with a child by contact against A.B. 10

11 We now turn to Appellant s argument that the evidence was inadmissible under Rule 403 of the Texas Rules of Evidence. The trial court must utilize a balancing test under Rule 403. See TEX. R. EVID We review a trial court s ruling on the admission of extraneous offense evidence under an abuse of discretion standard. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). There is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The trial court may exclude the evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID Unfair prejudice may occur when a jury is tempted to find guilt on grounds apart from proof of the offense charged. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence may be unfairly prejudicial when such evidence inflames the jury s hostility or sympathy for one side without regard to the logical probative force of the evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). [C]onfusion of the issues may arise where the evidence confuses or distracts the jury from the main issues in the case. Id. [M]isleading the jury means an item of evidence is given undue weight by the jury on other than emotional grounds. Id. When a trial court conducts a Rule 403 analysis, it should consider four factors: (1) the strength of the extraneous offense evidence to make a fact of consequence more or less probable; (2) the potential of the extraneous offense to impress the jury in some irrational but indelible way; (3) the time during trial that the State requires to develop evidence of the extraneous misconduct; and (4) the need by the State for the extraneous evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). 11

12 In Bradshaw v. State, our sister court held that evidence of extraneous offenses committed by the defendant against two other victims was prejudicial but that the probative value of the evidence was not substantially outweighed by the prejudicial effect; thus, the evidence was admissible under Rule 403. Bradshaw v. State, 466 S.W.3d 875, (Tex. App. Texarkana 2015, pet. ref d). The two young girls, A.G. and K.M., described encounters with the defendant in his home. Id. at 883. Bradshaw was charged with continuous sexual assault of S.S. when she was thirteen years old. Id. The assaults against S.S. took place in the defendant s home where he lived with his wife, who is S.S. and A.G. s mother. Id. The court determined that the evidence of other extraneous offenses committed against two victims, A.G. and K.M., provided valuable context in which S.S. s claims could be evaluated by the jury. Id. at 884. Appellant claimed that D.D. had misinterpreted and misrepresented their interaction and that he had no erection and no intention to gratify himself with D.D. or A.B. His defense theory was that both girls had fabricated their testimony. Both girls had described how Appellant, in a classroom with a closed door, had come up behind them, pressed his body against them, and rubbed his erect penis against their buttocks. Both girls testified that Appellant was their teacher and coach and that there were no witnesses to the two offenses. Both girls had been managers on teams coached by Appellant. In looking at the four factors, A.B. s testimony made the offense alleged by D.D. more probable because of similar facts and circumstances and less likely to have irrationally swayed the jury. See Wheeler, 67 S.W.3d at The State had a need for the evidence to rebut Appellant s defense theories, and the testimony did not take up an inordinate amount of time at trial. The evidence was most certainly prejudicial, but it did not arouse hostility in the jury without 12

13 regard to the logical probative force of the evidence; the State s aim with the evidence was to reinforce the validity of D.D. s allegations. In addition, the evidence did not confuse, distract, or mislead the jury; instead, A.B. s testimony called attention to similar details of Appellant s conduct in both instances. Appellant claims that the evidence is unfairly prejudicial because it is nothing more than character evidence. But A.B. s testimony tended to reinforce the inference that Appellant, not D.D., was being untruthful because A.B. had nothing to gain by her testimony while Appellant did. Finally, A.B. s testimony was not cumulative because it described a different instance of conduct by Appellant, but the incident included several factual details similar to his conduct with D.D. After a review of the record, we cannot say that the trial court abused its discretion when it allowed A.B. s testimony about Appellant s conduct with her at Goddard Junior High. We overrule Appellant s second issue. IV. This Court s Ruling We affirm the judgment of the trial court. MIKE WILLSON JUSTICE March 17, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J. 13