Opinion
No. 04-08-00792-CR
Delivered and Filed: March 3, 2010. DO NOT PUBLISH.
Appealed from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CR-5021, Honorable Dick Alcala, Judge Presiding. Affirmed.
Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
A jury convicted appellant Frank G. Saenz of two counts of aggravated sexual assault of a child. In five issues, Saenz argues the trial court erred in denying his pretrial writ of habeas corpus, in overruling his objections to extraneous offense evidence, and in overruling his objections to expert testimony. We overrule Saenz's issues and affirm the judgments of conviction.
The record contains a judgment for each count.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2000, Saenz was indicted for aggravated sexual assault of a child in a six-count indictment. In February 2001, a jury convicted Saenz of three of the counts in the indictment. The conviction was affirmed on appeal. Saenz v. State, 103 S.W.3d 541, 548 (Tex. App.-San Antonio 2003, pet. ref'd). Thereafter, the Court of Criminal Appeals granted Saenz's application for a writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure and set aside the conviction because of ineffective assistance of counsel. See Ex parte Saenz, No. AP-75461, 2006 WL 1687473, at *1 (Tex. Crim. App. 2006) (not designated for publication). In October 2008, Saenz was reprosecuted on an amended three-count indictment. Two counts involved Saenz's adopted daughter, Y.S. One count involved Saenz's biological daughter, S.S. Both Y.S. and S.S. testified at trial. Y.S., who was twenty-eight years old at the time of trial, testified that during her childhood Saenz touched her sexual organs, performed oral sex on her, and engaged in sexual intercourse with her. The touching and oral sex began when Y.S. was about four or five and continued until she was fourteen. The sexual intercourse began when Y.S. was about thirteen and continued until she was fourteen. S.S., who was also an adult at the time of trial, recanted her earlier statements that Saenz had sexually abused her during her childhood, and the trial court granted a directed verdict on the count involving S.S. The jury found Saenz guilty of the two counts involving Y.S. Punishment was assessed at ten years and one day imprisonment for each count. The sentences were ordered to run concurrently.PRETRIAL WRIT OF HABEAS CORPUS
In his first issue, Saenz argues the trial court erred when it denied his pretrial motion for a writ of habeas corpus. In this motion, Saenz argued his reprosecution violated the double jeopardy provisions of the federal and Texas constitutions. The double jeopardy provisions of the federal and Texas constitutions protect a citizen from repeated attempts at prosecution for the same criminal offense. Ex parte Wheeler, 203 S.W.3d 317, 322 (Tex. Crim. App. 2006). However, if a defendant requests a mistrial, double jeopardy normally does not bar reprosecution. Id. Under the federal double jeopardy clause, a retrial is prohibited after the defendant requests and is granted a mistrial only if the prosecution intentionally commits manifestly improper conduct with the intent to provoke that mistrial. Id. (citing Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982)). The same standard applies under the double jeopardy clause in the Texas constitution. Lewis v. State, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). We review the trial court's ruling on a pretrial writ of habeas corpus for an abuse of discretion. Ex parte Wheeler, 203 S.W.3d at 322. In conducting this review, we view the objective facts in the light most favorable to the trial court's ruling. Id. Our disposition of Saenz's first issue is governed by Ex parte Mitchell, 977 S.W.2d 575, 576 (Tex. Crim. App. 1997). Like Saenz, the appellant in Ex parte Mitchell moved for a mistrial, which was denied, but then had his conviction set aside in a post-conviction habeas corpus proceeding. Thereafter, the appellant in Ex parte Mitchell filed a pretrial motion for habeas corpus relief, arguing his reprosecution would violate his rights under the federal and state constitutions. The trial court denied the motion and the appellate court affirmed. In affirming the judgment of the appellate court, the Texas Court of Criminal Appeals stated,The accused's right under the double jeopardy clause to have his trial completed by the first tribunal is clearly protected where, as in the present case, it proceeded to conclusion, i.e., a verdict. Only where the prosecutor's intentional, and deliberate misconduct goads the accused into moving for a mistrial — and that motion is granted — is the accused's right to be tried to verdict by the first tribunal, a right afforded him by the double jeopardy clause of the Fifth Amendment, violated. As there was no mistrial in the present case, we hold applicant's double jeopardy rights under the United States Constitution are not violated by the State's retrial of applicant following reversal of his conviction.Id. at 579-80 (emphasis in original). In the present case, as in Ex parte Mitchell, no mistrial was granted. Because no mistrial was granted, there was no violation of Saenz's double jeopardy rights. Saenz recognizes the holding in Ex parte Mitchell, but argues, however, that he should be entitled to relief regardless of whether he obtained a mistrial in the trial court, a reversal on appeal, or a reversal in a post-conviction proceeding. Thus, according to Saenz, double jeopardy would be implicated in this case if he could show there was prosecutorial misconduct in his first trial. In response to Saenz's arguments, the State points out that the double jeopardy provisions of the federal and Texas constitutions do not preclude a retrial following a successful post-conviction remedy. See Lockhart v. Nelson, 488 U.S. 33, 38 (1988) ("It has long been settled, however, that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction."); United States v. Tateo, 377 U.S. 463, 463-64 (1964) (holding the retrial of a criminal defendant who had a conviction overturned in collateral proceedings did not offend double jeopardy protection). The State further argues that even if Saenz could claim a double jeopardy violation by virtue of having his conviction reversed, the record from the pretrial habeas corpus hearing failed to show (1) the commission of intentional prosecutorial misconduct in the first trial, and (2) the intent to provoke Saenz into moving for a mistrial. In fact, the State points out, Saenz's conviction was not reversed because of prosecutorial misconduct, but instead because of ineffective assistance of counsel. We agree with the State's arguments. We hold Saenz's double jeopardy rights were not violated by his retrial following the reversal of his conviction in a post-conviction proceeding. See Ex parte Mitchell, 977 S.W.2d at 581. Accordingly, the trial court did not abuse its discretion in denying Saenz's pretrial writ of habeas corpus. Saenz's first issue is overruled.
EXTRANEOUS OFFENSE EVIDENCE
In his second issue, Saenz argues the trial court erred by admitting evidence of extraneous offenses against Y.S. because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. We review the admission of evidence under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Under this standard, we overrule complaints about the admission of evidence, as long as the trial court's ruling was within the zone of reasonable disagreement. Id. Here, the indictment alleged Saenz sexually assaulted Y.S. on or about June 1, 1991, and on or about June 1, 1992, when Y.S. was twelve and thirteen years old, respectively. Y.S. testified the June 1, 1991, incident involved Saenz causing his penis to contact her vagina, and the June 1, 1992, incident involved Saenz causing his penis to penetrate her vagina. Saenz contends Y.S.'s testimony should have been limited to evidence of the two offenses charged in the indictment. Saenz argues the trial court abused its discretion by allowing Y.S. to testify about the history of her relationship with Saenz, which included references to extraneous offenses that occurred over the course of approximately nine years. Over Saenz's Rule 403 objections, Y.S. testified about Saenz touching her vagina in the bathtub when she was about four or five, performing oral sex on her when she was in elementary school, telling her "that's what daddies do," touching her vagina on other occasions when she was between the ages of five and fourteen, taking inappropriate Polaroid photos of her, having sexual intercourse with her "[m]ore than 50, maybe more than 100" times, and giving her wine coolers and beers to get her to relax during sexual intercourse. Texas Code of Criminal Procedure 38.37 provides, in pertinent part: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:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2 (Vernon 2005). Upon a proper objection, the trial court may exclude relevant evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. The Court of Criminal Appeals has listed several factors that a trial court should consider in conducting a Rule 403 balancing test: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (op. on reh'g). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997). To sustain this issue, we must conclude the probative value of the evidence was so substantially outweighed by the danger of unfair prejudice that the decision to admit the evidence was not even within the zone of reasonable disagreement. See TEX. R. EVID. 403; Moses, 105 S.W.3d at 627. Here, Saenz does not challenge the probative value of the evidence presented in this case. To the contrary, Saenz acknowledges the evidence in question was probative. Instead, Saenz emphasizes the prejudicial nature of the extraneous offense evidence, contending Y.S.'s testimony "could not have failed to impress the jury in a way that was both irrational and unforgettable." Saenz also complains about the time it took to develop the evidence, asserting it took two-thirds of a day for Y.S. to testify about these events. In light of Saenz's arguments, we consider the factors pertinent to the Rule 403 balancing test. First, the evidence in question was highly probative because it demonstrated the history and progression of the relationship between Y.S. and Saenz, and provided insight into both of their states of mind. This factor weighs in favor of the admission of the evidence. Second, the potential to impress the jury in some irrational and indelible way was also high. As even the State acknowledges, evidence of repeated sexual assaults by a father on his daughter beginning at the age of four or five and occurring until the age of fourteen undoubtedly had a strong emotional effect on the jury. This factor weighs against the admission of the evidence. Third, although the evidence took some time develop, we cannot say it diverted the jury's attention from the crucial issues in this case. The primary issue at trial was whether Saenz sexually assaulted Y.S. Another important issue was Y.S.'s state of mind and her delay in disclosing the assaults. The evidence in question was closely related to these issues. Thus, this factor is neutral. Finally, the State's need for the extraneous offense evidence was also high. This factor involves considering whether the State needed the evidence in question to establish a fact of consequence and whether that fact of consequence was in dispute. Montgomery, 810 S.W.2d at 390. Here, the only direct evidence of the charged offenses was from Y.S., who did not disclose the sexual abuse until she was an adult. The defense attacked Y.S.'s credibility and her delay in disclosing the charged offenses. The evidence in question was necessary to help the jury understand why Y.S. might have delayed in disclosing the offenses charged in the indictment. This factor weighs in favor of the admission of the evidence. After weighing the required factors, we conclude the trial court could have reasonably concluded the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The trial court's decision to admit the extraneous offense evidence was within the zone of reasonable disagreement, and therefore, was not an abuse of discretion. Saenz's second issue is overruled. In his third issue, Saenz argues the trial court erred by admitting evidence of extraneous offenses against S.S. because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. The record does not show Saenz objected to this evidence at the time of its admission. See TEX. R. EVID. 103(a)(1) (stating error may not be predicated upon a ruling which admits evidence unless a timely objection appears of record). Saenz acknowledges this fact, but contends he preserved this issue because he obtained a ruling on this evidence by way of a motion in limine order. We disagree. Notwithstanding a motion in limine order, a defendant remains obligated to make a timely and specific objection when evidence is offered at trial. See Gilchrest v. State, 904 S.W.2d 935, 938 (Tex. App.-Amarillo 1995, no pet.) (holding complaints about the admission of extraneous offense evidence were waived by the defendant's failure to object during trial); Rawlings v. State, 874 S.W.2d 740, 742-43 (Tex. App.-Fort Worth 1994, no pet.) ("The granting or denying of a motion in limine, without more, preserves nothing for appellate review."). Saenz's third issue is overruled.