Opinion
01-21-00454-CR
12-20-2022
JAMES CALFEE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1591474.
Panel consists of Chief Justice Radack and Justices Kelly and Farris.
MEMORANDUM OPINION
Peter Kelly, Justice.
James Calfee was convicted by a jury of continuous sexual abuse of a child. See Tex. Penal Code § 21.02. The court sentenced him to 30 years' imprisonment. On appeal, he contends that the trial court erroneously admitted evidence of an extraneous offense. We affirm.
Background
In September 2017, ten-year-old C.P. sent a voicemail to her mother stating that her step-grandfather, James Calfee, had "touched her inappropriately." When they talked the next day, C.P. told her mother that Calfee repeatedly sexually assaulted her from February 2015 to September 2015. At the time of the abuse, C.P., her two sisters, and her mother were living with Calfee and his wife, C.P.'s biological grandmother. C.P. was eight years old at the time of the abuse.
After talking with C.P., her mother called C.P.'s grandmother and had C.P. recount the sexual abuse to her. C.P. and her mother then went to the police station, and C.P. gave a statement detailing the abuse. C.P.'s older sister, A.P., also went to the police station. At the station, A.P. initially denied being abused, but then she admitted that Calfee had sexually abused her when she was seven or eight and again when she was nine. In October 2017, both girls went to the Children's Assessment Center and gave statements detailing the abuse.
Calfee was charged with continuous sexual abuse of a child, based on C.P.'s allegations. He pleaded not guilty, and the case proceeded to a jury trial. At trial, C.P. testified that Calfee first sexually assaulted her when she was eight years old. During the first incident, she was sitting with him in a recliner in the living room. Calfee covered her with a blanket, unbuttoned her jeans, unzipped her zipper, and slid his hand underneath her underwear. C.P. testified that Calfee moved his finger up and down against her vagina. C.P. testified that similar abuse occurred on the recliner more than ten times while she was living with Calfee and her grandmother. C.P. testified that she was covered with a blanket during the abuse, and sometimes while Calfee touched her vagina, her grandmother was in view washing dishes in the kitchen.
C.P. also testified that Calfee sexually assaulted her in his truck on two occasions. The first occurred in a drive through lane at a fast-food restaurant. C.P. rode in the car with Calfee to pick up dinner for the family. While they were waiting for the food, Calfee slid his hand under C.P.'s shorts and underwear and touched her vagina with his right hand. He steered the truck with his left hand. On another occasion, Calfee drove C.P. in his truck to her uncle's jobsite to give him a key. Calfee touched C.P.'s vagina on the drive. After giving the key to her uncle, Calfee drove C.P. to a wooded area and again touched her vagina. C.P. testified that Calfee asked if she wanted to touch his penis, and before she could answer, he placed her hand on his pants. C.P. felt his erect penis before she was able to pull her hand away. C.P. testified that Calfee was frustrated with her resistance, and they drove away.
C.P. testified that she did not tell anyone about the abuse for two years because she did not want anything to happen to Calfee, and she did not want him to stop liking her. When she was ten years old, she heard an advertisement that mentioned sexual abuse and decided that she should say something about what she had experienced. That same day, she sent her mother a voice message stating that Calfee had touched her inappropriately. After disclosing the abuse, she regularly saw a psychiatrist and counselor. She also testified that she no longer likes her grandmother, Calfee's wife, because her grandmother does not believe her.
After a hearing outside the presence of the jury, the trial court denied Calfee's motion to exclude C.P.'s sister, A.P., from testifying. A.P. then testified before the jury that Calfee sexually assaulted her when she was seven or eight years old. When she was sleeping in her grandparents' bed, A.P. woke to find Calfee had placed his hand under her pajamas and underwear and had inserted two of his fingers into her vagina. A.P. did not tell anybody about the abuse because she was shocked and embarrassed and did not understand it.
A.P. also testified that when she about eleven or twelve, her grandmother had surgery and asked A.P. to stay overnight. That night, her grandmother asked A.P. to sleep in bed with her and Calfee. While they were all three in the bed, Calfee started touching A.P.'s back, moving his hand underneath her bra, and licking her ear. Before Calfee could touch A.P.'s breast, she moved away, got out of the bed, and walked into the living room. Both Calfee and A.P.'s grandmother immediately came to the living room and asked why A.P. had left. A.P. said that she was hot, and she slept on the couch.
C.P.'s oldest sister, M.P., testified. She told the jury that Calfee made her uncomfortable while she was living at his house. He constantly asked her to sit on his lap, and when she refused, he would comment that it was because she did not love him. The girls' mother, who testified regarding their disclosure of abuse, also testified that M.P. had told her previously that she did not like the way that Calfee hugged her.
Calfee called several witnesses to testify. His wife, the complainant's grandmother, testified that Calfee had never been alone with her granddaughters. She said they had never slept in bed with Calfee. She also testified that she was on the phone with Calfee while C.P. and Calfee were in the fast-food drive through lane.
C.P.'s uncle testified that Calfee had never brought him a key at his work. C.P.'s great-grandmother told the jury, "[t]hey're bad," with reference to the girls' reputation for honesty. Another witness testified that she saw the girls hugging Calfee in July or August of 2017.
Calfee testified. He denied the allegations made by C.P. and A.P. and stated that the girls were lying. He testified that he was never alone with either girl and that they would not have been allowed to sleep in his bed. He admitted that he was alone with C.P. when they went to the fast-food drive through, but he testified that he had never taken her to her uncle's business. He also testified that A.P. tried to get in bed with them when she was staying over after his wife's surgery, but he did not allow it.
On cross-examination, Calfee admitted that he previously told investigators that he had been alone with C.P. when he drove her to her uncle's business. At trial, he said he was mistaken when he made the statement to investigators. He also admitted that he told investigators that the girls slept in his bed when they were little. He confirmed that he told the investigators that he had rubbed C.P.'s stomach when she was approximately ten years old.
The jury found Calfee guilty, and the trial court sentenced him to 30 years' imprisonment.
Extraneous Offense
Calfee contends that the trial court erred in admitting evidence of an extraneous offense. He argues that A.P.'s testimony was substantially more prejudicial than probative. We disagree.
A. Standard of Review
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.-Houston [1st Dist.] 2009, pet. dism'd). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). When considering a trial court's decision to admit evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Jeansonne v. State, 624 S.W.3d 78, 93 (Tex. App.- Houston [1st Dist.] 2021, pet. denied) (quoting Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996)). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
During the State's presentation of evidence, the trial court admitted A.P.'s testimony that her grandfather inserted two fingers into her vagina when she was seven or eight and that he rubbed her back, licked her ear, and attempted to touch her breast when she was eleven or twelve.
"An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument, and which was shown to have been committed by the accused." Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (internal quotations and citations omitted). Generally, Texas Rule of Evidence 404(b) prohibits the admission of a crime, wrong, or other act to prove a person's character or to show that the person acted in conformity with that character. Tex. R. Evid. 404(b). Although extraneous offenses generally are inadmissible to prove character conformity under Rule 404(b), such evidence is statutorily admissible for such purpose in prosecutions for sexual assault of a child. See Tex. Code Crim. Proc. art. 38.37, § 2.
Before evidence of an extraneous offense can be introduced pursuant to Article 38.37, the State must give notice of its intent to introduce the evidence to the defendant not later than the 30th day before the date of defendant's trial. Tex. Code Crim. Proc. art. 38.37, § 3. Additionally, the trial judge must (1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury beyond a reasonable doubt that the defendant committed the separate offense; and (2) conduct a hearing out of the presence of the jury for that purpose. Tex. Code Crim. Proc. art. 38.37, § 2-a.
If the statutory requirements of Article 38.37 are met, the State is authorized to introduce evidence that a defendant has committed a separate sex offense against another child for any relevant purpose, including as proof of the defendant's character and propensity to act in conformity with his character. Tex. Code Crim. Proc. art. 38.37, § 2; Jeansonne, 624 S.W.3d at 95 (stating that article 38.37 is evidentiary rule applicable to cases of sexual assault of a child that supersedes application of Texas Rule of Evidence 404(b) and makes admissible certain extraneous offense evidence that Rule 404(b) does not). Finally, even if evidence is admissible under Article 38.37, it may still be excluded under Texas Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.
B. Analysis
On appeal, Calfee argues that the trial court erred in admitting A.P.'s testimony that he sexually abused her on two occasions. Specifically, he contends that the probative value of the evidence was substantially outweighed by its potential for unfair prejudice. He argues that this error denied him a fair trial. Calfee concedes that the trial court followed the proper procedure for admitting the evidence under Article 38.37, but he argues that the court nevertheless should have excluded the evidence under Rule 403.
1. Calfee's Due Process complaint was not preserved.
Calfee complains that the trial court's admission of the extraneous offense evidence violated his right to Due Process and denied him a fair trial. This issue was not preserved and is waived on appeal.
To preserve error for appellate review, the Texas Rules of Appellate Procedure require that the record show that the objection "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App.P. 33.1(a)(1)(A). The issue on appeal must comport with the objection made at trial. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). "[I]f a party fails to properly object to constitutional errors at trial, these errors can be forfeited." Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). While no "hyper-technical or formalistic use of words or phrases" is required in order for an objection to preserve an error, the objecting party must still "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it." Pena v. State, 285 S.W.3d 459, 461 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). To determine whether a complaint on appeal comports with a complaint made at trial, we look to the context of the objection and the shared understanding of the parties at the time. See Lankston, 827 S.W.2d at 911.
At trial, Calfee objected to the admission of A.P.'s testimony because it did not meet the standard articulated in Texas Rule of Criminal Procedure Rule 38.37 and because its probative value was outweighed by the danger of unfair prejudice. Calfee challenged A.P.'s credibility, stating that she was vague and did not have a specific timeframe for her allegations against Calfee. Calfee did not object to the admission of the evidence on Due Process grounds, and therefore, Calfee's appellate argument that admitting the testimony violated his right to Due Process does not comport with his objections at trial. See Clark, 365 S.W.3d at 339-40 (holding that evidentiary objections did not preserve error relating to alleged Due Process violation where defendant did not object on Due Process grounds and nothing in the record put the court or prosecutor on notice that defendant was complaining about Due Process). Calfee's Due Process argument is not preserved. See Tex. R. App. P. 33.1(a); see also Alvarez v. State, 491 S.W.3d 362, 367-70 (Tex. App.-Houston [1st Dist] 2016, pet. ref d) (holding that defendant failed to preserve Due Process challenge but noting that all Texas cases "addressing the constitutionality of Article 38.37 have held that it is constitutional").
2. The trial court did not err in concluding that evidence was not substantially more prejudicial than probative.
Calfee contends that even if the evidence was admissible under Article 38.37, the trial court erred in not excluding it under Rule 403 because the probative value of the evidence was substantially outweighed by its prejudicial effect.
Texas Rule of Evidence 403 authorizes a trial court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. 403. "Evidence is unfairly prejudicial when it has 'an undue tendency to suggest that a decision be made on an improper basis. '" Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (quoting Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g)). "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389; see also Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (stating that 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") (internal quotations omitted).
We measure the trial court's ruling against the following balancing criteria:
1) the inherent probative force of the evidence along with
2) the State's need for the evidence against
3) any tendency of the evidence to suggest a 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.See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
"Probative value" is the measure of "how strongly [the evidence] serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence." Id. at 641. When the proponent has other compelling evidence to establish the fact or proposition that the challenged evidence goes to prove, the probative value of the contested evidence will weigh far less in the probative versus prejudicial balance. Id. (quoting Montgomery, 810 S.W.2d at 390).
"Unfair prejudice" refers to the "relevant evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged." State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). "Evidence might be unfairly prejudicial if, for example, it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence." Gigliobianco, 210 S.W.3d at 641. "[C]onfusion of the issues" refers to "a tendency to confuse or distract the jury from the main issues in the case." Id. "[Misleading the jury" refers to "a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds." Id.
Despite the inflammatory nature of A.P.'s testimony, the trial court could have reasonably found that the value of the evidence was not substantially outweighed by its prejudice. First, the probative value of the evidence and the State's need for it were high. Id. at 641-42 (listing factors to balance in Rule 403 analysis). Evidence that a defendant has sexually abused another child is relevant to whether the defendant sexually abused the child-complainant in the charged case. Caston v. State, 549 S.W.3d 601, 612 (Tex. App.-Houston [1st Dist] 2017, no pet.). The State's need for the evidence was high because there were no third- party witnesses to Calfee's sexual abuse of C.P., and there was no physical evidence corroborating the abuse. C.P.'s credibility "was clearly the focal issue in the case." Belcher v. State, 474 S.W.3d, 840, 848 (Tex. App.-Tyler 2015, no pet.) (noting, in holding that admission of extraneous offense evidence did not violate Rule 403, that child-complainant was only eyewitness to offense, no physical evidence supported her allegations, and child's mother initially doubted allegations). Without A.P.'s testimony concerning similar acts that Calfee committed against her in similar circumstances, "the State's case would have basically come down to" the complainant's word against appellant's. See Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.-Austin 2016, pet. ref'd). We conclude that A.P.'s testimony was relevant, the testimony had considerable probative force, and the State had need of the evidence.
Second, evidence that Calfee sexually abused another child was not unfairly prejudicial. See Pawlak, 420 S.W.3d at 811 (stating that sexually related bad acts and misconduct involving children is inherently inflammatory, but Rule 403 does not allow trial court to exclude otherwise relevant evidence "when that evidence is merely prejudicial"); Caston, 549 S.W.3d at 613-14 (stating that extraneous offense testimony regarding child sexual assault was "clearly prejudicial" but not unfairly so under Rule 403). A.P.'s testimony "discussed actions that were no more serious than the allegations forming the basis for the indictment." Robisheaux, 483 S.W.3d at 221 (stating inflammatory potential of extraneous sexual assault of minor was ameliorated somewhat by fact that the allegations were no more serious than the indicted allegation). Calfee has not identified any particular facts about A.P.'s testimony that make it "uniquely or unfairly prejudicial." See Alvarez, 491 S.W.3d at 371. Though the testimony was prejudicial to Calfee, he has not demonstrated that it was unfairly prejudicial. Id.
A.P.'s testimony also was not confusing or technical. It was relevant to whether appellant sexually abused C.P., which was the central issue in the case. Caston, 549 S.W.3d at 613 (holding testimony did not have tendency to suggest decision on improper basis or to confuse or distract the jury). Additionally, the trial court gave the jury a limiting instruction regarding A.P.'s testimony that reminded the jury that Calfee was on trial solely on the charge contained in the indictment and that it could not consider evidence of similar extraneous acts unless it found beyond a reasonable doubt that Calfee committed those extraneous acts. Finally, the State did not spend an inordinate amount of time eliciting A.P.'s testimony. It consists of only 28 pages out of more than 400 pages of record from trial We conclude that A.P.'s testimony did not tend to distract the jury from the main issue in the case or to be given undue weight by the jury, nor did it consume inordinate time or repeat evidence already admitted.
Considering all the relevant factors, we conclude that the trial court reasonably could have determined that the probative value of A.P.'s testimony was not substantially outweighed by the danger of unfair prejudice. We hold that the trial court did not abuse its discretion in admitting A.P.'s testimony concerning the extraneous acts of sexual abuse that Calfee committed against her.
We overrule Calfee's sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.