Opinion
NO. 01-18-00636-CR
04-28-2020
JOHNNY DIAZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1442380
MEMORANDUM OPINION
A jury convicted appellant, Johnny Diaz, of super aggravated sexual assault of a child under the age of six and assessed his punishment at confinement for life. In five issues on appeal, appellant contends that (1) he received inadequate notice of the State's intent to introduce extraneous offenses, (2) the trial court denied him due process by introducing multiple, uncharged acts of sexual abuse, (3) the trial court abused its discretion by allowing the State to introduce multiple, uncharged acts of sexual abuse in violation of Rule 403 of the Texas Rules of Evidence, (4) the trial court abused its discretion in admitting appellant's statement, which appellant contends was taken after he invoked his right to counsel, and (5) the trial court abused its discretion by admitting a statement that appellant made in the course of plea bargain negotiations. We affirm.
The Penal Code does not refer to a "super" aggravated sexual assault offense, but the term refers to the charged offense, which contains a sentencing enhancement because the victim was less than six years old. TEX. PENAL CODE § 22.021(f)(1). The judgment of conviction states that appellant was convicted of "SUPER AGG SEX ASSLT-CHILD <6.
BACKGROUND
Julie and her five-year-old daughter, Amy, lived with Julie's mother and stepfather, appellant, for a short period of time in 2013 so that Julie could work at the Houston Rodeo. During the day while Julie worked, appellant would stay home with Amy. After the rodeo ended, Julie took Amy to Mexico to stay with her father for a few months.
We will use aliases for the minor complainant and her family members. TEX. R. APP. P. 9.10.
When it was time to return to Houston, Julie's friend, Angela Berdeja, drove to Mexico to pick them up. When Berdeja dropped Julie and Amy at appellant's home to collect their belongings, Amy began crying hysterically and screaming that she did not want to go into the apartment. Julie pulled Amy out of the car and made her enter the apartment. Berdeja left for a few minutes and then returned to the apartment to find that Amy was still crying. Berdeja asked why Amy was crying, and Julie said that Amy had told her that appellant, who was not at the apartment at the time, had touched her private parts before. Amy was afraid that appellant was going to return to the apartment while she was there.
Berdeja told Julie to call the police and make a report and then she took Julie and Amy to her apartment. Berdeja, outside of Julie's presence, asked Amy to explain how appellant had touched her. Using dolls, Amy indicated that appellant put lotion, "down there," gesturing to the private parts of the doll. Amy also said that appellant kissed her, touched her, and hurt her private parts. Julie and Amy lived with Berdeja for a while before eventually leaving the state.
Approximately one year after Julie called the police and made a report, the case was assigned to Officer D. Riojas of the Houston Police Department. Riojas learned that a forensic interview of Amy had been conducted at the Children's Assessment Center in Houston, but that Amy had not made an outcry during that interview; she had only stated that she feared appellant.
When Riojas located Julie and Amy in Wisconsin, she contacted Safe Harbor, a facility in Wisconsin, to conduct a second forensic interview of Amy. On June 4, 2014, Amy was interviewed at Safe Harbor and sent for a medical examination. During the second forensic interview, Amy described in detail how, on many occasions, appellant touched her "hoo-ha" with his "nut" while they were under a blanket on the couch watching television. She indicated on a drawing that "hoo-ha" referred to her genitals and "nut" referred to appellant's penis.
After Amy's second forensic interview, Riojas asked appellant if he would participate in a voluntary interview. He agreed and gave a recorded statement at the Children's Assessment Center in Houston. The interview was conducted by two officers, who explained to appellant that he was not under arrest, that the door was unlocked, and that he could leave at any time. Appellant was not handcuffed. At one point during the interview, appellant mentioned getting a lawyer, but the interview continued. When the interview was concluded, appellant was permitted to leave.
At trial, Amy, consistent with her second forensic interview, testified that appellant would lie behind her on the sofa and pull off her underwear. He would then touch her "hoo-ha" and her behind with his "nut," indicating his penis. He would also put cream on her vagina and anus. Amy testified, without objection, that this happened "about every day."
Julie's younger brother and Amy's uncle, Michael, also testified at trial. Michael stated that when he was five or six years old, he was living his mother and appellant. One day, Michael woke up in appellant's bedroom and appellant called him into the bathroom. Appellant told Michael to go get some butter from the refrigerator. When Michael returned with the butter, appellant used it as a lubricant and inserted his penis in Michael's anus. Appellant stopped when Michael started crying.
A jury convicted appellant of super aggravated sexual assault of a child under the age of 6 and assessed his punishment at confinement for life. This appeal followed.
EXTRANEOUS OFFENSES
In three issues, appellant challenges the admission of extraneous offenses that appellant allegedly committed against Amy and her uncle, Michael. Specifically, appellant claims that (1) he received inadequate notice of the State's intent to admit the extraneous offenses, (2) the admission of the extraneous offenses violated his right to due process under the United States and Texas Constitutions, and (3) the probative value of the extraneous offenses was substantially outweighed by the danger of unfair prejudice in violation of Rule 403 of the Texas Rules of Evidence. We address each argument respectively.
A. Standard of Review and Applicable Law
We review a trial court's ruling on the admissibility of extraneous-offense evidence for an abuse of discretion. Wilson v. State, 473 S.W.3d 889, 899 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (citing De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009)). We will not reverse a trial court's ruling on an evidentiary matter unless the decision was "outside the zone of reasonable disagreement." Id. at 899-900 (citing Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007)). We will not disturb the trial court's ruling if it can be justified on any theory of law applicable to the ruling. Id. at 900.
Code of Criminal Procedure article 38.37, section 1, applicable to the prosecution of a defendant for sexual assault of a child, provides:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
TEX. CODE CRIM. PROC. art. 38.37, § 1(b).(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
Article 38.37, section 2, also applicable to sexual assault of a child, provides:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) [including an offense of aggravated sexual assault of a child] may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) 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. 38.37, §2 (b); see also Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—Tyler 2015, no pet.) (noting that section 2(b) allows admission of evidence that defendant has committed certain sexual offenses against nonvictims of charged offense).
Additionally, the State must give the defendant notice of its intent to introduce article 38.37 evidence in its case in chief not later than the thirtieth day before trial. Id. art 38.37, § 3.
B. Notice under Article 38.37, § 3
In issue one, appellant, relying on article 38.37, § 3 and article 37.07 §3(g), appellant argues, not that the State failed to give notice or that the notice given was untimely, but that the notice given was not "proper notice" "[b]ecause the State listed any possible or potential bad act that could exist under the penal code." Appellant points out that the State gave notice of seven and a half pages of bad acts, each describing a different manner of committing a sexual assault against Amy or Michael.
Article 37.07, §3(g) provides:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.
However, to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds, if not apparent from the context, for the desired ruling. TEX. R. APP. P. 33.1(a)(1); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an express or implicit adverse trial-court ruling or object to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013). The complaint made on appeal must comport with the complaint made in the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
Here, appellant moved for a mistrial, which was denied, arguing that Michael's testimony was "harmful" and should not have been permitted. Counsel also acknowledged that he received notice of the extraneous offenses but moved for a continuance, which was also denied, based on "unfair surprise" because he found out only the day before trial that Michael was actually appearing at trial to testify. Other than a single reference to the notice as "vague," which was not made in the context of any objection, appellant made no complaint about the sufficiency of the State's notice regarding any of the extraneous offense evidence. Thus, the issue is waived. TEX. R. APP. P. 33.1(a)(1); Thomas, 505 S.W.3d at 924.
Additionally, appellant did not object when Amy testified that appellant not only assaulted her on the date alleged in the indictment, but that he assaulted her "[a]bout every day." The failure to object to the admission of the extraneous offense evidence when it was offered also waives any complaint about lack of notice of that evidence. See Gone v. State, 54 S.W.3d 27, 35 (Tex. App.—Texarkana 2001, pet. ref'd).
We overrule issue one.
C. Constitutionality of Article 38.37
In issue two, appellant contends that article 38.37 is an unconstitutional deprivation of his due process rights because it "depriv[es] him of the right to an impartial jury, by infringing on the presumption of innocence, and by lowering the State's burden of proof."
This Court and many others have considered and rejected these arguments. See Caston v. State, 549 S.W.3d 601, 607-611 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also, e.g., Buxton v. State, 526 S.W.3d 666, 685-90 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd); Bezerra v. State, 485 S.W.3d 133, 139-40 (Tex. App.—Amarillo 2016, pet. ref'd); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—Austin 2016, pet. ref'd); Harris v. State, 475 S.W.3d 395, 403 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd); Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 2015, no pet.); see also Baez v. State, 486 S.W.3d 592, 599-600 (Tex. App.—San Antonio 2015, pet. ref'd) (holding that section 2(b) does not violate ex post facto provision of United States Constitution); 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 to section 2(b) but noting that all Texas cases "addressing the constitutionality of Article 38.37 have held that it is constitutional").
Accordingly, we overrule issue two.
D. Rule 403
In issue three, appellant contends that, even if evidence of his prior sexual offenses against children was admissible under Article 38.37, the trial court erred in not excluding the evidence under Rule 403 because the State had no need for the evidence. Therefore, he maintains the probative value of the evidence was substantially outweighed by its prejudicial effect.
When evidence of a defendant's extraneous acts is relevant under Article 38.37, the trial court is still required to conduct a Rule 403 balancing test upon proper objection or request. See Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. ref'd).
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.
"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." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). 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.
"Unfair prejudice" refers to a "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. "[M]isleading 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.
However, even when the trial court admits extraneous offenses pursuant to article 38.37, an appellant must object at trial that the probative value of the extraneous offense is substantially outweighed by the risk of undue prejudice to preserve a Rule 403 complaint on appeal. See Moose v. State, No. 02-18-00194-CR, 2019 WL 2223585, at *6 (Tex. App.—Fort Worth 2019, no pet.) (holding defendant did not preserve Rule 403 issue because "[the defendant] did not object to [the complainant's extraneous offense evidence] on the basis of rule 403 in the trial court . . . he argued only that her testimony was irrelevant and that there was insufficient evidence to prove the offense of which she complained.").
Before Marcus testified, appellant's counsel objected that his testimony should not be admitted because a reasonable juror could not believe it beyond a reasonable doubt. However, appellant made no objection pursuant to Rule 403. Because appellant made no Rule 403 objection before the trial court, the issue is not preserved for appeal. TEX. R. APP. 33.1.
We overrule issue three.
ADMISSION OF APPELLANT'S RECORDED INTERVIEW
In issue four, appellant contends that the trial court erred in admitting a recorded interview after he requested an attorney during the interview.
A. Standard of Review
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion if its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).
"In reviewing a trial court's ruling on a Miranda-violation claim, an appellate court conducts a bifurcated review." Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012); see also Miranda v. Arizona, 384 U.S. 436 (1966). We afford almost total deference to a trial court's determination of historical facts but review pure questions of law de novo. Alford, 358 S.W.3d at 652. Likewise, we give almost total deference to a trial court's resolution of a mixed question of law and fact if the question turns on the credibility and demeanor of witnesses. Id. However, if credibility and demeanor are not necessary to the resolution of a mixed question of law and fact, we review the question de novo. See id.
"The decision as to whether custodial questioning constitutes 'interrogation' under Miranda is a mixed question of law and fact." Id. at 653. When, as here, the questioning has been videotaped and the underlying events are not in dispute, the trial court's ruling is merely an application of uncontested facts to the law. See Herrera v. State, 194 S.W.3d 656, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. refd); Mayes v. State, 8 S.W.3d 354, 358 (Tex. App.—Amarillo 1999, no pet.). Thus, we review the trial court's ruling de novo.
B. Custodial Interrogation
Miranda requires that the accused be properly admonished of certain constitutional rights for his statements "stemming from custodial interrogation" to be admissible as evidence against him. See Miranda, 384 U.S. at 444; TEX. CODE CRIM. PROC. art. 38.22 §§ 2, 3 (listing required admonishments for written and oral statements of accused). However, if a subject asks for an attorney before his Fifth Amendment right to counsel has attached, the officer is not required to then stop asking questions. See Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990) (citing Miranda for proposition that the Court's intent was not to hamper police investigations with required warning); Russell v. State, 215 S.W.3d 531, 535 (Tex. App.—Waco 2007, pet. ref'd) (requesting an attorney under Miranda only effective during custodial interrogation); Brossette v. State, 99 S.W.3d 277, 282 (Tex. App.—Texarkana 2003, pet. dism'd, untimely filed) (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)); Chiles v. State, 988 S.W.2d 411, 413 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd).
The threshold issue in this case is whether appellant was subject to custodial interrogation at the time he made his statement. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444.
To determine whether an individual is in custody, we first examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994) (internal citations and quotations omitted). This determination of custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Id. at 323. After the circumstances surrounding the interrogation are considered, the court must determine whether, "given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995).
The court of criminal appeals has identified four general situations that may constitute custody:
(1) when the suspect is physically deprived of his freedom of action in any significant way;Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). The first through third situations require that the "restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention." Id. The fourth situation requires the "officers' knowledge of probable cause be manifested to the suspect." Id. This can occur either by the officers relating information substantiating probable cause to the suspect or by the suspect to the officers. Id. Situation four does not automatically establish custody, but rather "custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." Id.
(2) when a law enforcement officer tells the suspect that he cannot leave;
(3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and
(4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.
Additional circumstances to consider in determining whether an interrogation is custodial include whether the criminal defendant arrived at the interrogation place voluntarily, the length of the interrogation, any request by the defendant to see relatives or friends, and the degree of control exercised over him. Gardner v. State, 433 S.W.3d 93, 98 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). We may also examine such things as "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the [defendant] at the end of the questioning." Howes v. Fields, 565 U.S. 499, 509 (2012) (internal citations omitted).
C. Analysis
Here, Officer Riojas testified that, once she was assigned the case, she spoke with appellant, he consented to give her a voluntary interview, and she scheduled the interview with appellant at the Children's Assessment Center. Riojas testified that she used a room with a video camera and microphone so that she could record the interview. She indicated that the room was the same type room used to interview any witnesses, not just suspects. Riojas testified that she explained to appellant that this was a voluntary statement and that he was free to leave at any time. She did not Mirandize him, explaining that "[h]e was free to leave whenever he wanted to." Two officers participated in the interview and appellant was not handcuffed at any point. Riojas showed appellant that the door was unlocked during the interview. At some point during the interview, appellant said either "I think I want a lawyer" or "I want a lawyer." An officer then asked, "So what you're saying is you don't want to speak to us anymore?" Appellant then told the officers that he was confused and stated, "I did nothing wrong, I just want to clear my name." The officers again indicated to appellant that the door was unlocked, and he could leave anytime, and the interview continued. The interview ended when appellant indicated that he wished to speak to his wife, got up, and left the room. He was not arrested and was allowed to return home.
The audio is unclear as acknowledged by appellant's counsel, who stated, "It's my contention that despite the fact that it was not clear on the audio, I think the conversations after that between Mr. Diaz and the police officer makes it clear that he did unequivocally as for a lawyer, so I object for the entire tape to be played from about 47-47 minutes, 40 second; 47 minutes, 50 seconds to the end."
We do not believe that these circumstances fall into one of the four situations described in Dowthitt. Appellant was not deprived of his freedom of action. He was not interviewed at the police station, but at the neutral setting of the Children's Assessment Center. He was not told that he could not leave. Instead, he was told specifically that he could leave, and officers showed him that the door was unlocked. The officers did not create a situation that would leave a reasonable person to believe that his freedom of movement was restricted. Appellant was never handcuffed and there was no display of force by the officers. And, the officers never indicated to appellant, nor he to them, that there was probable cause to arrest him. In fact, not only did the officers tell appellant that his statement was voluntary, and that he was free to leave, they, in fact, permitted him to leave once he indicated that he wished to speak with his wife.
Having examined the totality of the circumstances, we conclude that there is nothing in the record to suggest a restraint of appellant's freedom of movement of the degree associated with a formal arrest. Because he was not subjected to custodial interrogation, Miranda and appellant's right to counsel were not implicated.
We overrule issue four.
ADMISSION OF DEFENDANT'S STATEMENT MADE DURING
PRESENTENCE INVESTIGATION
A. Background
Appellant initially pleaded guilty in this case and asked that a presentence investigation [PSI] be conducted. Immediately after appellant's plea, Pablo Villa, the court liaison officer handed appellant a packet of information to be filled out and included within the PSI. Appellant completed the packet and returned it to Villa. On a page entitled "Defendant's statement/version of the offense," appellant had written, "When She Showerd [sic] I Put Lotion on her, and She assumed [sic] I touched The wrong way." When the PSI was completed, but did not contain a recommendation for probation, appellant requested, and was granted permission to withdraw his guilty plea. Subsequently, at trial, the State introduced into evidence the page from the PSI with appellant's statement about the offense. The exhibit in no way conveyed to the jury that it was made as part of a guilty plea.
B. Applicable Law
In his fifth issue on appeal, appellant contends that the trial court erred in admitting this evidence because it was a violation of Texas Rule of Evidence 410(b), which provides:
(b) In a criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
TEX. R. EVID. 410(b).(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea that was later withdrawn;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure, or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty or nolo contendere plea or they resulted in a later-withdrawn guilty or nolo contendere plea.
Appellant relies on Bowie v. State, 135 S.W.3d 55, 59-61 (Tex. Crim. App. 2004). In Bowie, the trial court utilized a "timely pass for plea" procedure, in which the State consents to a defendant's waiver of a jury trial and the defendant enters a guilty plea. Id. at 57. Both the defendant and the State understand that the court will allow the defendant to withdraw his plea if the punishment assessed by the court exceeds that to which the defendant would agree. Id. After evidence supporting the plea is presented, the trial court hears evidence on punishment and announces its punishment decision. Id. The trial court then gives the defendant the option of accepting that sentence or withdrawing his plea and receiving a jury trial. Id.
In two subsequent trials, one for murder and one for perjury, the State sought to introduce evidence that the defendant had presented at the punishment hearing before withdrawing his plea. Id. at 58-59. The judge in the murder trial refused to permit the evidence, and the judge in the perjury trial allowed it. Id. The Texas Court of Criminal Appeals granted petition in both cases to resolve the conflict. Id. The Court of Criminal Appeals held that, even though the "timely pass for plea" procedure was not exactly like any of the plea procedures set up in Federal Rule of Criminal Procedure 11, it was a "comparable state procedure," thus, the statements made by the defendant at that hearing were not admissible. Id. at 63.
Neither appellant nor the State cite any cases that discuss whether a statement made by a defendant in a PSI is either (1) a statement made during a proceeding on a withdrawn guilty plea under a comparable state procedure to Federal Rule 11 or a statement made during plea discussions with an attorney for the prosecuting authority if the discussions resulted in a withdrawn guilty plea. See TEX. R. EVID. 410(b)(3) & (4). Neither is there any discussion by either party about whether the holding in Bowie should be applied under these circumstances.
C. Harmless Error
Nevertheless, we need not reach the issue in this case because we conclude that the error is harmless. See TEX. R. APP. 44.2(b). Because the error is not constitutional, we apply Rule 44.2(b). TEX. R. APP. P. 44.2(b). That Rule requires us to disregard any nonconstitutional error that does not affect an appellant's substantial rights. Id. An error that has a "substantial and injurious effect or influence in determining the jury's verdict" affects a substantial right. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Conversely, an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (citation and internal quotation marks omitted). In determining the likelihood that a nonconstitutional error adversely affected the jury's decision, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State's theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire, if applicable. Haley, 173 S.W.3d at 518-19; Motilla, 78 S.W.3d at 355-56. When an error that occurs in the guilt-innocence phase of a trial does not likely move the jury from a state of nonpersuasion to a state of persuasion concerning the defendant's guilt, the error is harmless. Murkledove v. State, 437 S.W.3d 17, 29 (Tex. App.—Fort Worth 2014, pet. ref'd).
Here, State's exhibit 30 was a written statement by appellant that stated: "When she Showerd [sic] I Put Lotion on her, and She assumed [sic] I touched her The wrong way." The statement was signed by appellant and was made in response to a question asking him to describe his involvement in the offense with which he was charged. The question admonished appellant to "[k]eep in mind that this statement will be provided to the Judge exactly as it appears herein." The statement was not a confession but was appellant's attempt at explaining why Amy might have leveled accusations against him. Appellant intended for the statement to be exculpatory.
The statement was admitted through the testimony of the court liaison officer, Pablo Villa, who testified only that he gave appellant a packet of information to fill out in the courtroom, and appellant returned the packet to him with this statement therein. Villa read the statement to the jury, and, on cross-examination, he acknowledged that appellant had since recanted the statement.
The State mentioned the statement once during its closing argument to point out that, at various times, appellant had both denied and admitted using lotion on Amy at any time.
However, the great majority of the evidence, and the argument by the State at trial, focused on the evidence related directly to Amy and her testimony. There were two outcry witnesses in this case, Angela Berdeja, the neighbor, and Charlie Larson, the forensic interviewer at Safe Harbor. Both testified that Amy told them that appellant touched her private areas inappropriately. In fact, the jury was able to see Amy's interview with Charlie, in which she described in detail appellant touching her "hoo-ha" with his "nut." Most importantly, the jury heard Amy's own testimony at trial, during which she said that appellant "would rape her," and described the offenses as occurring "about every day." Amy testified before the jury in detail about the offense and was subject to cross-examination. And finally, there was evidence from Amy's uncle about a similar offense that appellant committed against him.
After examining the record as a whole, we conclude that, even if erroneous, the trial court's admission of the statement in the PSI did not likely move the jury from a state of nonpersuation to a state of persuasion. See Murkledove, 437 S.W.3d at 29. Thus, its admission did not have a substantial and injurious effect or influence in determining the jury's verdict. Petriciolet v. State, 442 S.W.3d643, 653 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
We overrule issue five.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Kelly and Goodman. Do not publish. Tex. R. App. P. 47.2(b)