Nos. 01-09-00250-CR, 01-09-00251-CR
Opinion issued December 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 1176766 1176767.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
JIM SHARP, Justice.
Appellant, Robert Eugene Long, was charged by indictment with two state jail felony offenses of interference with child custody. A jury found appellant guilty of knowingly taking his two children, both under the age of 18, in violation of a custody order issued by the 308th District Court of Harris County, Texas. In each case, the trial court sentenced appellant to two years of confinement in a state jail facility, then suspended the confinement, and placed appellant on community supervision for five years, with the periods of community supervision to run concurrently. In his sole point of error, appellant contends that the trial court erred in admitting irrelevant and unfairly prejudicial evidence. We affirm.
A person commits the offense of interference with child custody if the person takes or retains a child younger than 18 years when the person knows that the taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child's custody. See TEX. PENAL CODE ANN. § 25.03(a)(1) (Vernon Supp. 2010).
BACKGROUND
Appellant and Michelle Long-Oregon were married in 1999 and had two children. The couple divorced in 2003; the divorce decree named both parents as joint managing conservators and granted Long-Oregon the exclusive right to establish the primary residence of the children. The decree also gave appellant the right to possession of the children on "the first, third, and fifth Friday of each month" for the weekend, ordered appellant to return the children to Long-Oregon at the end of each period of possession, and required appellant to pay periodic child support to Long-Oregon. Appellant moved to Dallas after the divorce. At first, appellant and Long-Oregon agreed to meet halfway between Houston and Dallas so that appellant could exercise his visitation rights as specified by the decree. When this arrangement terminated in April 2006, appellant began driving to Houston on weekends to visit the children. In August 2006, appellant began staying at Long-Oregon's residence during his weekend visits to Houston. On September 29, 2006, appellant and Long-Oregon got into an argument, which ended with appellant taking the children to Dallas. Contrary to the requirements set out in the divorce decree, appellant never returned the children to Long-Oregon when the weekend ended. The children stayed with appellant in Dallas from October 1, 2006 until appellant was charged with the two offenses of interference with child custody at the end of January 2007. Both charges were brought on the basis of appellant's violation of the 2003 divorce decree. Police arrested appellant on January 29, 2007, and the children were returned to Long-Oregon on the same day. At trial, appellant raised a mistake of fact defense, testifying that he did not know that he was violating the divorce decree when he brought the children to Dallas. According to appellant, he believed that he and Long-Oregon had reconciled and entered into a common-law marriage in July 2006 because the two had sexual relations during his visits to Houston, shared expenses, held each other out as married, and purchased a home during this time. Appellant also testified that he believed that his common-law marriage to Long-Oregon had voided the 2003 divorce decree and that "there was nothing stopping [him] from taking the children" in September 2006. According to appellant, he and Long-Oregon "had not observed any orders for months." Long-Oregon, however, testified to the contrary. According to Long-Oregon, she never wanted to remarry appellant and never held him out as her husband after their divorce was finalized. On cross-examination, the prosecutor asked appellant when he last paid child support. Although appellant's counsel objected to the question as irrelevant and prejudicial, the trial court allowed the evidence to be introduced because it pertained "to the divorce decree." Appellant answered that he made regular child support payments, as required by the 2003 divorce decree, until April or May 2007. Appellant also testified that he was not making the payments of his own volition — the payments were being automatically deducted from his paycheck. In both cases, the trial court instructed the jury on mistake of fact as a defense, directing it to acquit appellant if it believed, or had a reasonable doubt about whether, at the time appellant took the children, he acted under a reasonable belief that he was in a common-law marriage with Long-Oregon, voiding the divorce decree. The jury returned a verdict, finding appellant guilty of two counts of interference with child custody. This appeal followed. DISCUSSION
In his single point of error, appellant contends that the trial court erred in admitting evidence that appellant continued to pay child support during the time he supposedly believed that he and Long-Oregon were remarried. Appellant contests the evidence for two reasons. Specifically, appellant objects that the evidence was irrelevant, and that, even if it was relevant, the probative value of the evidence was substantially outweighed by its prejudicial effect. Standard of Review
When deciding whether a trial court erred in admitting evidence that was either irrelevant or unfairly prejudicial, we review the trial court's decision for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.-Houston [1st Dist.] 2000, pet ref'd). The test for abuse of discretion is whether the trial court's decision was arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Because the trial court is given broad discretion in admitting evidence, an appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. Relevancy
We first determine whether the evidence was relevant. To be relevant, evidence must tend to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See TEX. R. EVID. 401. A trial court may not admit irrelevant evidence. See King v. State, 17 S.W.3d 7, 20 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). "Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence." Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). Appellant contends that the child support payments are not relevant to whether he reasonably believed that he and Long-Oregon had remarried. Even if appellant is correct in arguing that the payments are irrelevant with regard to the common-law marriage issue, they are nonetheless relevant with regard to whether appellant reasonably believed that the 2003 divorce decree was void. Whether appellant reasonably believed the 2003 divorce decree was void when he took the children is a fact of consequence because it forms the central basis for his mistake of fact defense. Evidence that tends to rebut a defensive theory is relevant. See Hudson v. State, 112 S.W.3d 794, 803 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (concluding that extraneous evidence that served to rebut defensive theory was relevant); see also Hajjar v. State, 176 S.W.3d 554, 560 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (concluding that photograph that tended to rebut self-defense claim was relevant). Accordingly, evidence that appellant continued to make payments in accordance with the terms of the decree is relevant because it makes it more probable that appellant knowingly violated the 2003 divorce decree and it tends to rebut appellant's mistake of fact defense. As such, we cannot say that the trial court abused its discretion when it overruled appellant counsel's objection on relevancy grounds. Unfair Prejudice
Having determined that the evidence of appellant's continued child support payments was relevant, we must now determine whether the evidence should nonetheless have been excluded because its probative value was substantially outweighed by its prejudicial effect, as appellant contends. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." TEX. R. EVID. 403. Texas Rule of Evidence 403 favors the admission of relevant evidence, and it presumes that relevant evidence will be more probative than prejudicial. See Goldberg v. State, 95 S.W.3d 345, 366-67 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). In determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, trial courts must balance several factors, including: (1) the probative force of the evidence; (2) the proponent's need for the evidence; and (3) the potential to impress the jury in some irrational yet indelible way. See Mechler, 153 S.W.3d at 440 (citing Montgomery, 810 S.W.2d at 389-90). Appellant contends that the evidence of continued child support payments was neither probative nor needed by the State to rebut his mistake of fact defense. Appellant also asserts that this evidence had the potential to improperly impress the jury by confusing, misleading, and distracting it from the main issue — whether he believed that he and Long-Oregon had entered a common-law marriage. The trial court could have reasonably found the relevant evidence to be more probative and needed by the State than unfairly prejudicial to appellant. The State introduced the evidence to rebut appellant's mistake of fact defense to make it more probable that appellant knowingly violated the 2003 divorce decree. Evidence that tends to rebut a defensive theory is strongly probative. Hajjar, 176 S.W.3d at 561. In addition, the State needed the evidence because it had no other way of showing that appellant continued to comply with the divorce decree, even though he allegedly believed that the decree was void. See Mechler, 153 S.W.3d at 441 (stating that proponent's need for particular evidence depends upon whether proponent has other evidence establishing same fact). Only "unfair" prejudice provides the basis for exclusion of relevant evidence. Montgomery, 810 S.W. at 389. Unfair prejudice refers to the relevant evidence's tendency to tempt the jury into reaching a verdict on a basis apart from proof of the offense charged, commonly, though not necessarily, an emotional one. See id.; see also Mechler, 153 S.W.3d at 440. Although appellant contends that the relevant evidence tended to confuse, mislead, and distract the jury from deliberating whether appellant believed that he and Long-Oregon had entered a common-law marriage, this belief is not the most pertinent issue raised by appellant's mistake of fact defense. The more pertinent issue is whether appellant reasonably believed that the divorce decree was void. Only if appellant reasonably believed the divorce decree was void, could his mistake of fact negate the necessary mental state (knowingly) of the offense of interference with child custody. Thus, the relevant evidence tended to rebut appellant's defensive theory rather than mislead the jury. In light of the record in this case, we cannot conclude that the trial court abused its discretion in admitting the evidence of appellant's continued child support payments to Long-Oregon. We overrule appellant's sole point of error. CONCLUSION
We affirm the judgment of the trial court.