Felix-Zazueta v. State

Full title: ANGEL FELIX-ZAZUETA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 30, 2011

No. 05-09-00795-CR (Tex. App. Jun. 30, 2011)

Opinion

No. 05-09-00795-CR

Opinion Filed June 30, 2011. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F08-13216-HJ.

Before Justices MURPHY, MYERS, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

A jury convicted Angel Felix-Zazueta (Zazueta) of continuous sexual abuse of a young child, and the trial court assessed punishment of thirty years' imprisonment and a $5000 fine. In five points of error, Zazueta argues the evidence is insufficient to prove more than one incident of sexual abuse and the trial court erred by giving jury instructions in the charge that failed to limit the conduct elements and included a definition of reasonable doubt, by overruling Zazueta's objection to the testimony of the outcry witness, and by refusing to give the jury a limiting instruction at the time evidence of extraneous bad acts was admitted into evidence. We affirm the trial court's judgment.

Background ¹

1 Zazueta has raised only a limited challenge to the sufficiency of the evidence to support the conviction. Accordingly, we recite only those facts necessary to address Zazueta's arguments on appeal.

Zazueta's older brother was married to C.O.'s grandmother. Zazueta met C.O.'s mother when he traveled to Honduras with his brother to bring C.O.'s grandmother back to the United States. Subsequently, C.O. and her mother came to the United States from Honduras with Zazueta when C.O. was two years old. The family started living together in Arizona in 2000, and Zazueta and C.O.'s mother considered themselves to be married. Although he was not her biological father, C.O. viewed Zazueta as her "dad." Both Zazueta and C.O.'s mother testified their relationship was rocky with frequent separations. Although the evidence was conflicting about whether the family was together the entire time, C.O. evidently moved between California and Arizona at least two times. C.O. testified that when she was either seven or nine years old and living in California, Zazueta first had anal sex with her. C.O. testified Zazueta threw her on the couch, took off her skirt and underwear, and "put his penis in [her] butt." At some point, Zazueta was deported and C.O., her mother, and her sister moved to Arizona and then to North Carolina. After C.O.'s mother and Zazueta reunited, the family moved to Louisiana. C.O. testified the abuse continued to happen after the first incident, but she does not remember all the times it happened. C.O. testified it "didn't happen a lot," but that she thinks "it was lots of times." According to C.O., Zazueta abused her in California, Arizona, and Louisiana, but not in North Carolina. In November 2006, C.O. was nine years old and in the fourth grade when the family moved to Carrollton, Texas. According to C.O., Zazueta continued to abuse her in Texas, but she "doesn't remember those times." She believed it happened "once a month, but not every month." C.O. testified Zazueta made her put her mouth on his penis. She believed this happened during the summer between the fourth and fifth grades. C.O. testified "things happened" when she was in the fifth grade between March and the end of school and responded affirmatively when asked if Zazueta put his penis into her vagina during this time period. The next incident of abuse that C.O. could specifically recall was in June 2008 when she was eleven years old. C.O. testified that the day after Zazueta's birthday, her mom was at work. At approximately 10:00 a.m. in the morning, she and her younger sister were sleeping in C.O.'s bed. The family shared one bedroom, but had different beds. According to C.O., Zazueta took C.O. out of her bed and placed her on his bed. Zazueta removed C.O.'s pajama pants and underwear. C.O. testified she told Zazueta to stop and tried to pull her pants up. C.O. stated she knew what was going to happen because she "had been through it before." C.O. testified that Zazueta had done the same thing before in the same apartment, "but she didn't remember those times." Zazueta then put his penis in C.O.'s "front middle part." C.O. testified there was "lots of pain." According to C.O., Zazueta also sexually abused her on August 6, 2008 while her mom was at work and her sister was taking a bath. C.O. tried to take a bath with her sister, but Zazueta took her into the bedroom. C.O. testified that Zazueta grabbed her pelvis, put her legs around his stomach, put his penis in her "front part," and "went back and forth." Zazueta then cleaned his sweat with a small white towel and told her to use the restroom. C.O. recalled that her mother got home at approximately 5:00 p.m. C.O. testified her mother said she looked different and asked if Zazueta had done something to her. C.O. initially said, "no," but then told her mother that Zazueta had been abusing her. C.O. testified she told her mother that Zazueta had been putting his penis into her "front part" since C.O. was seven years old. C.O. testified she had been afraid to tell her mother about the abuse because she thought she would get into trouble. After going to see a friend, C.O.'s mother took C.O. to the police station and then to the hospital. C.O. testified they did some tests from "under her middle part" at the hospital. At trial, C.O. circled the vaginal region on a picture of a girl and labeled it "front middle part." C.O.'s mother testified that she worked until 5:00 p.m. on August 6, 2008. When she came home, her daughters were alone and she asked what they had done all day. C.O. was acting nervous, so her mother asked if C.O. had given her father a massage. C.O. denied doing so, but C.O.'s sister said that C.O. had given Zazueta a massage. C.O.'s mother asked C.O. what she was hiding, and C.O. started to cry. C.O. told her mother that "my dad violates me." C.O.'s mother asked C.O. if she knew what "violates" means, and C.O. said he touched her in parts that should not be touched. C.O.'s mother asked her how he had touched her. C.O. said sometimes with his hand and sometimes he put his penis in her part. C.O.'s mother took this to mean Zazueta was having sexual relations with C.O. C.O.'s mother asked how often it had happened, and C.O. responded it had "been sometime." C.O. said it happened that day and had happened before, but she could not remember which days. C.O. could not say how many times it had happened, but said it was "not one after another." After arranging for a friend to take C.O. and her sister to eat dinner, C.O.'s mother went to see a friend. She then took C.O. to the police station and to the hospital. C.O. told Patricia Sedge, the sexual assault nurse examiner, that Zazueta had "got his part and put it with my parts. Then he kept doing it." C.O. also said Zazueta used a towel to wipe "his parts" and C.O.'s "parts." C.O. indicated there was "sticky liquidy white stuff." Sedge testified that, during her medical examination of C.O., she found abrasions to the inner aspects of C.O.'s labia minora and a tear on C.O.'s posterior fourchetti. The injuries were acute, meaning they had happened within seventy-hours prior to the examination. The tear was caused by the force of a penetration into the vagina. In Sedge's opinion, the injuries were consistent with the history provided by C.O. DNA tests were performed on four stains on a small towel from C.O.'s apartment. The test results indicated that "[t]o a reasonable degree of scientific certainty, [Zazueta] is the source of the sperm fractions of three of the stains from the towel (item 3b, stains 1-3) (excluding identical twins)." To a reasonable degree of scientific certainty, C.O.'s mother is the source of the major component of the epithelial fraction of stain four from the towel, excluding identical twins. As to stains 2 and 3,

The DNA profiles from the epithelial fraction of the stains from the towel (item 3b, stains 2 and 3) are consistent with a mixture from the victim, [Zazueta], and a third contributor. The victim and [Zazueta] cannot be excluded as contributors to these stains. The probability of selecting an unrelated person at random who could be a contributor to the epithelial fractions of the stains from the towel (item 3b, stains 2 and 3) is approximately 1 in 145.5 million for Caucasians, 1 in 631.7 million for Blacks and 1 in 25.68 million for Hispanics.

The statistics for selecting an unrelated person who could be a contributor to the epithelial fraction of stains 2 and 3 were for the mixture of [C.O.'s] and Zazueta's DNA and could not be separated for each individual person. C.O.'s mother could not be excluded as a contributor to the epithelial fractions from stains 1, 2, and 3. Zazueta denied he had sexually abused C.O. Zazueta testified C.O.'s mother was jealous of other women and of C.O. and repeatedly asked C.O. if Zazueta had touched her. Zazueta believed C.O.'s mother wanted to take his daughters away from him and convinced C.O. to lie about the abuse.

Sufficiency of the Evidence

In his first point of error, Zazueta asserts the evidence is insufficient to prove more than one incident of abuse. The Texas Court of Criminal Appeals has determined that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) (following Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that standard, we determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899. A person commits the offense of continuous sexual abuse of a young child if, during a period of thirty or more days, he commits two or more acts of sexual abuse and the victim of each act is a child younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b) (West 2011). As charged in this case, "acts of sexual abuse" means aggravated sexual assault. See id. §§ 21.02(c)(4), 22.021(a)(1)(B), (a)(2)(B).² Zazueta contends the evidence is insufficient to prove two or more acts of sexual abuse. Specifically, Zazueta argues the evidence was insufficient to prove he sexually assaulted C.O. in June 2008 because C.O.'s testimony about the June 2008 incident was "too vague and uncertain as to time and place" and was unbelievable. Zazueta's argument is premised on the State proving only two incidents of abuse, in June 2008 and on August 6, 2008. However, C.O. also testified that "things happened" when she was in the fifth grade between March and the end of school. She responded affirmatively when asked if Zazueta put his penis into her vagina during this time period. She also testified that before June 2008, Zazueta had done the same thing to her in the same apartment. As to the June 2008 incident, C.O. testified that Zazueta put his penis in her "front middle part" and clarified that "front middle part" referred to her vaginal area. C.O. used the same terminology to describe the incident on August 6, 2008. C.O. was able to describe where the June 2008 assault occurred, that the assault occurred on the day after Zazueta's birthday, what she was wearing at the time of the assault, and what Zazueta did during the assault. We conclude C.O.'s testimony about the June 2008 was not vague or uncertain as to time and place. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of the child and, therefore, for continuous sexual abuse of a young child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd).³ Although C.O. could not provide details about many of the assaults and Zazueta asserts some of C.O.'s testimony was not believable, it was the jury's role to resolve any conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Gear v. State, No. PD-1069-10, 2011 WL 2409267, at *3 (Tex. Crim. App. June 15, 2011). We conclude the jury could have rationally found that Zazueta committed more than one act of sexual abuse against C.O. during a period of thirty days or more. We overrule Zazueta's first point of error.

Charge Error

In his second and third points of error, Zazueta argues the trial court submitted erroneous instructions in the jury charge. Zazueta made no objections in the trial court to the charge submitted to the jury. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743-44. When, as in this case, the error was not objected to, the error must be "fundamental" and requires reversal "only if it was so egregious and created such harm that the defendant `has not had a fair and impartial trial.'" Barrios, 283 S.W.3d at 350 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). Egregious harm is the type and level of harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). In making an egregious harm determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information [revealed] by the record of the trial as a whole." Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171).

Submission of Conduct Elements

In point of error two, Zazueta asserts that continuous sexual abuse of a young child is a nature-of-conduct offense and, as such, the trial court erred by failing to limit the definition of intentionally and knowingly in the jury charge. The trial court instructed the jury that "acts of sexual abuse," as used in the jury charge, meant "intentionally or knowingly committing aggravated sexual assault of a child." The trial court further instructed the jury that:

A person acts intentionally, or with intent, with respect to the nature of his conduct or with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct, or with respect to the circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct, when he is aware that his conduct is reasonably certain to cause the result.

There are three "conduct elements" that can be involved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. Tex. Penal Code Ann. § 6.03 (West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). An offense may contain one or more of these "conduct elements," which alone or in combination form the overall behavior that the legislature intended to criminalize, and it is those "conduct elements" to which a culpable mental state may apply. McQueen, 781 S.W.2d at 603. A trial court errs by failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply. Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995); Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Ash v. State, 930 S.W.2d 192, 194 (Tex. App.-Dallas 1996, no pet.). Aggravated sexual assault is a nature-of-conduct offense. Gonzales v. State, 304 S.W.3d 838, 847 (Tex. Crim. App. 2010). Accordingly, the trial court erred by failing to limit the statutory definitions of knowingly and intentionally to the nature of Zazueta's conduct, rather than the result of his conduct. Zazueta argues he was egregiously harmed by the error because "a jury reading the full charge could have been confused to a degree that they either ignored the confusing aspects of the charge or they misapplied the conduct elements to the culpable mental states in reaching a verdict." Looking at the charge as a whole and after reviewing the record, we fail to see how the jury could have been confused. Before it could find Zazueta guilty of continuous sexual abuse of a young child, the charge required the jury to find, beyond a reasonable doubt, that Zazueta committed two or more acts of sexual abuse against C.O. during a period of thirty days or more by "the contact or penetration of [C.O.'s] female sexual organ by the defendant's sexual organ." The charge correctly instructed the jury on the substantive law for continuous sexual abuse of a young child and informed the jury of what the State was required to prove. See Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.-Fort Worth 2010, pet. ref'd). The charge also correctly addressed the presumption of innocence, the State's burden of proof, and extraneous offense evidence. Within the context of the charge as a whole, the error does not appear to be harmful. See id. As to the state of the evidence, Zazueta's intent could be inferred from his conduct and the surrounding circumstances-specifically from C.O.'s testimony about the instances of abuse. See id. at 37; Rodriguez v. State, 24 S.W.3d 499, 503 (Tex. App.-Corpus Christi 2000, pet. ref'd). Further, intent was not a contested issue at trial; rather, Zazueta's defense was that C.O.'s mother influenced C.O. to lie and that Zazueta never abused C.O. There was no evidence that Zazueta acted without the requisite intent other than his testimony that he did not commit the offense. The parties did not argue about Zazueta's intent in closing argument, instead focusing on the credibility of the witnesses, the medical evidence, and the DNA test results. See Bazanes, 310 S.W.3d at 37. Based on the entire record, we conclude Zazueta did not suffer egregious harm from the complained-of error in the jury charge. See Bazanes, 310 S.W.3d at 38; Rodriguez, 24 S.W.3d at 503. We overrule Zazueta's second point of error.

Definition of Reasonable Doubt

In point of error number three, Zazueta asserts the trial court erred by including a definition of reasonable doubt in the charge. The trial court instructed the jury that the State had the burden of proving Zazueta guilty of the offense beyond a reasonable doubt. The charge included the instruction, "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." Zazueta contends this instruction improperly defines "reasonable doubt." See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). However, the court of criminal appeals has concluded a trial court does not abuse its discretion by giving the complained-about instruction. See Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 1606 (2011); see also O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd) (complained-about instruction "simply states the legally correct proposition that the prosecution's burden is to establish proof beyond a reasonable doubt and not all possible doubt" and does not define reasonable doubt (emphasis in original)). We overrule Zazueta's third point of error.

Outcry Witness

In his fourth point of error, Zazueta contends the trial court erred by overruling his hearsay objection to the testimony of C.O.'s mother about C.O.'s outcry because the testimony went beyond the information provided by the State in its written notice of the content and scope of the outcry testimony. We review the trial court's decision to admit testimony from an outcry witness for an abuse of discretion. Tear v. State, 74 S.W.3d 555, 558 (Tex. Crim. App. 2002). We will not reverse the trial court's ruling if it is within the zone of reasonable disagreement. Id. The out-of-court statement of a child sexual assault victim is hearsay when it is offered for the truth of the matter asserted unless it is permitted by an exception to the hearsay rule. See Tex. R. Evid. 802, 803; Tear, 74 S.W.3d at 558-59; Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). Article 38.072 of the code of criminal procedure creates a statutory exception to the hearsay rule that allows the State to introduce statements made by a child victim of certain offenses, including the one at issue in the present case. Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2010).⁴ It permits the out-of-court statements of a child victim describing the alleged offense to be admitted through an "outcry witness," i.e., the first adult to whom the child made a statement about the alleged offense. Id. at art. 38.072, § 2(a). In order to invoke the statutory exception, the State must notify the defendant of its intent, provide the name of the outcry witness, and provide a summary of the statement. See id. art. 38.072 § 2(b)(1). The purpose of these requirements is to avoid surprising the defendant with the introduction of outcry hearsay testimony. See Gay v. State, 981 S.W.2d 864, 866 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). To achieve this purpose, the written summary must give the defendant adequate notice of the content and scope of the outcry testimony. Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.-Texarkana 2002, pet. ref'd). The notice is sufficient if it reasonably informs the defendant of the essential facts related in the outcry statement. Id. Here, the State's "Notice of Outcry Statement" stated that C.O.'s mother was the outcry witness under article 38.072 and summarized C.O.'s outcry as follows:

"My step-dad (defendant) rapes me [(C.O.)]." When asked what she meant by "rape," [C.O.] stated, "He (defendant) touches my private parts (female sexual organ) with his hands. He also touches his `private part' (defendant's sexual organ) to my `private parts' (female sexual organ)."

Zazueta asserts the written statement limited his conduct to contact, while C.O.'s mother also testified C.O. told her that Zazueta penetrated her vagina. The outcry statement notified Zazueta that C.O. told her mother that Zazueta had raped her. C.O. indicated "rape" included Zazueta touching his penis to C.O.'s vagina. We conclude the summary adequately notified Zazueta that C.O.'s mother would testify that C.O.'s statement included the penetration of her sexual organ and, therefore provided Zazueta with proper notice of the essential facts of the outcry testimony. See Klein v. State, 191 S.W.3d 766, 781 (Tex. App.-Fort Worth 2006), rev'd on other grounds, 273 S.W.3d 297 (Tex. Crim. App. 2008). Further, even if the trial court erred by admitting C.O.'s mother's testimony that C.O.'s outcry included penetration, Zazueta was not harmed by the testimony. Rule of appellate procedure 44.2(b) provides that any error, other than constitutional error, that does not affect the defendant's substantial rights must be disregarded. Tex. R. App. P. 44.2(b); Dorado, 843 S.W.2d at 38 (requiring a non-constitutional harm analysis for hearsay statements incorrectly admitted as exceptions under article 38.072); Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd). An error affects a substantial right "when the error [has] a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In assessing harm, we examine the entire record and "calculate, as much as possible, the probable impact of the error upon the rest of the evidence." Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), cert. denied, (U.S. Jun. 20, 2011) (No. 10-1271). We consider, among other relevant factors, "any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see also Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). The weight of the evidence of the defendant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla, 78 S.W.3d at 357. If the same or similar evidence is admitted without objection at another point in the trial, the error is harmless. Coble, 330 S.W.3d at 282 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); Shaw, 329 S.W.3d at 653. Here, C.O.'s mother's testimony that C.O.'s outcry included penetration is neither substantial nor injurious when the record is considered as a whole. C.O. specifically testified that Zazueta penetrated her "front middle part" with his "part" on August 6, 2008 and on the day after Zazueta's birthday in June 2008. She testified Zazueta had previously done the same thing to her in the same apartment, but that she could not provide specific details about those incidents. She also testified that "things happened" between March and the end of school of 2008 and answered affirmatively when asked if Zazueta put his penis into her vagina during that time period. According to C.O., she told her mother that Zazueta had been putting his penis into her "front part" since C.O. was seven years old. C.O.'s medical examination on August 6, 2008 showed injuries consistent with the penetration of C.O.'s vagina. Further, the DNA test results showed that within a reasonable degree of scientific certainty, Zazueta was the source of the sperm fractions of stains 2 and 3 from the towel found in C.O.'s apartment and that Zazueta and C.O. could not be excluded as contributors to the epithelial fraction of the two stains. The probability of selecting an unrelated person at random who could be a contributor to the epithelial fractions of stains two and three from the towel is approximately 1 in 145.5 million for Caucasians, 1 in 631.7 million for Blacks and 1 in 25.68 million for Hispanics. Based on the record, we cannot conclude the admission of C.O.'s mother's testimony that C.O.'s outcry included penetration had a substantial or injurious effect on the outcome of the proceeding. Accordingly, Zazueta was not harmed by any error by the trial court in admitting the testimony. We overrule Zazueta's fourth point of error.

Limiting Instruction

In his fifth point of error, Zazueta argues the trial court erred by refusing to give the jury a limiting instruction at the time evidence of extraneous bad acts was admitted into evidence. The State concedes the trial court erred by not granting Zazueta's request for a limiting instruction, but contends the error was harmless. See Rankin v. State, 974 S.W.2d 707, 712, 713 (Tex. Crim. App. 1996) (upon proper request, trial court required to give limiting instruction at time evidence admitted for limited purpose); see also Hammock v. State, 46 S.W.3d 889, 893-94 (Tex. Crim. App. 2001). The State provided Zazueta with notice that it intended to offer evidence of extraneous bad acts involving Zazueta's conduct with C.O. Zazueta requested the trial court give the jury a limiting instruction when evidence of the extraneous bad acts was admitted. The trial court denied Zazueta's request, but stated it would include a limiting instruction in the jury charge. During trial, C.O. testified that Zazueta had anal sex with her in California and that "things happened" in Arizona, California, and Louisiana. C.O. also testified that Zazueta touched outside her "front middle part" with his hands in California. According to C.O., Zazueta touched her "butt" with his penis and his hands and, one time, made her touch his penis. C.O. did not specify the locations where these events occurred. Finally, C.O. testified that, in Texas, Zazueta made her put his penis in her mouth one time. In the charge, the trial court instructed the jury that:

if there is any testimony before you in this case regarding other crimes, wrongs, or acts committed by the defendant against [C.O.], you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs or acts against [C.O.], and then you may only consider said testimony for the purpose of its bearing, if any, on the state of mind of the defendant and [C.O.] and the previous and subsequent relationship between the defendant and [C.O.].

We review the trial court's failure to timely give a properly requested limiting instruction for harmless error. Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996); Lemmons v. State, 75 S.W.3d 513, 524-25 (Tex. App.-San Antonio 2002, pet. ref'd). As set out above, in performing a harmless error analysis, we disregard any error that does not affect the defendant's substantial rights. Tex. R. App. P. 44.2(b). We review the entire record in determining whether an error had "a substantial and injurious effect or influence in determining the jury's verdict." Coble, 330 S.W.3d at 280; see also King, 953 S.W.2d at 271. Here, C.O. testified to a number of extraneous bad acts by Zazueta in Texas and in other states. However, the testimony was limited in duration, and the evidence that Zazueta sexually assaulted C.O. in Texas was compelling. Further, the jury was instructed in the charge that it could consider evidence of an extraneous bad act only if it found beyond a reasonable doubt that Zazueta committed the extraneous act and that it could consider the evidence only for the limited purpose of Zazueta's or C.O.'s state of mind and the relationship between Zazueta and C.O. Because there is no evidence the jury did not do so, we assume it followed the trial court's instruction. See Miles v. State, 204 S.W.3d 822, 827-28 (Tex. Crim. App. 2006). After reviewing the entire record, we cannot conclude that Zazueta's substantial rights were harmed by the trial court's failure to give a limiting instruction to the jury at the time C.O. testified about the extraneous bad acts. See Lemmons, 75 S.W.3d at 525. We overrule Zazueta's fifth point of error. We affirm the trial court's judgment.