J. WOODFIN JONES, Chief Justice.
Appellant Raymond Merrill Jessop and nine other members of the Fundamentalist Church of Jesus Christ of Latter Day
The factual and procedural background of this case are fully discussed in prior opinions of this Court, most recently in our opinion in Jeffs v. State, No. 03-10-00272-CR, 2012 WL 601846, at *1-4 (Tex.App.-Austin Feb. 24, 2012, no pet. h.) (mem. op., not designated for publication), and will not be repeated here. We discuss further background details only as necessary to address the points of error raised by appellant in this appeal.
In his first two points of error, appellant challenges the sufficiency of the evidence. First, he asserts that the evidence is insufficient to support his conviction for sexual assault of a child because the State failed to prove the element of penetration. Second, he contends that the evidence is insufficient because it fails to demonstrate that the sexual assault occurred in Texas.
Appellant, a lifelong member of FLDS, moved to the YFZ Ranch in Schleicher County, Texas, in December 2003 with his family — including multiple "celestial wives" and numerous children — and lived with them in a single residence on the ranch. On August 12, 2004, appellant was "sealed" in a spiritual or celestial marriage to J. Jessop, a female FLDS member born September 16, 1988, who had also moved to the YFZ Ranch in December 2003. The ceremony took place at the "prophet's" house on the ranch in Schleicher County when J. Jessop was 15 years old and appellant was 32. Following the celestial marriage ceremony, appellant and J. Jessop lived together in the same household, purportedly as husband and wife. On August 15, 2005, when she was 16 years old, J. Jessop gave birth on the ranch to a daughter. DNA testing confirmed that appellant was the biological father of the child.
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App. 2011). When reviewing the sufficiency of
In determining the legal sufficiency of the evidence, we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex.Crim.App.2004); Allen v. State, 249 S.W.3d 680, 688-89 (Tex.App.-Austin 2008, no pet.). We review all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318, 99 S.Ct. 2781; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.App.2009). A legal-sufficiency review requires us to defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. When faced with a record of historical facts that supports conflicting inferences, we must presume that the trier of fact resolved any such conflicts in favor of the verdict and must defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. 2781; Padilla v. State, 326 S.W.3d 195, 200 (Tex.Crim.App. 2010). The jury, as exclusive judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton, 235 S.W.3d at 778; see Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979). In assessing the legal sufficiency of the evidence, we have a duty to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007); see Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim.App.2010).
Appellant was charged with the offense of sexual assault of a child. See Tex. Penal Code Ann. § 22.011(a)(2)(A), (c)(1),(2). The State alleged in the indictment, and had the burden to prove, that appellant intentionally or knowingly caused the penetration of the female sexual organ of "J. Jeffs Jessop," a child younger than 17 years of age who was not the spouse of appellant, with appellant's sexual organ. In his first point of error, appellant argues that the evidence is insufficient to prove penetration. He complains that the State's evidence was largely circumstantial and failed to eliminate the possibility that J. Jessop could have become pregnant by artificial insemination.
The lack of direct evidence is not dispositive of the issue of appellant's
Moreover, it is not incumbent upon the State to exclude "every reasonable hypothesis other than guilt" for the evidence to be considered sufficient.
In a prosecution for sexual assault of a child, penetration may be proven by circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim. App.1990); Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App.1972); Belt v. State, 227 S.W.3d 339, 342 (Tex.App.-Texarkana 2007, no pet.); Quinton v. State, 56 S.W.3d 633, 641 (Tex.App.-Waco 2001, pet. ref'd). There is no requirement that the child victim testify about penetration. Villalon, 791 S.W.2d at 133; Nilsson, 477 S.W.2d at 596. Evidence of the slightest penetration is sufficient. Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App.1992); see Nilsson, 477 S.W.2d at 595.
At trial, the jury received evidence that both appellant and J. Jessop moved to the YFZ Ranch in Schleicher County, Texas, in December 2003. The evidence showed that appellant was sealed to J. Jessop in a celestial or spiritual marriage for "time and eternity" in August 2004 in a ceremony that was performed on the YFZ Ranch when she was 15 years old.
A fact finder may support its verdict with reasonable inferences drawn from the evidence. Laster, 275 S.W.3d at 523; Hooper, 214 S.W.3d at 14. Jurors are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Obigbo v. State, 6 S.W.3d 299, 306 (Tex.App.-Dallas 1999, no pet.); Jones v. State, 900 S.W.2d 392, 399 (Tex. App.-San Antonio 1995, pet. ref'd); Wawrykow v. State, 866 S.W.2d 87, 88 (Tex. App.-Beaumont 1993, pet. ref'd); see Saenz v. State, 976 S.W.2d 314, 322 (Tex. App.-Corpus Christi 1998, no pet.) ("Jurors are expected to draw upon their own experiences and common knowledge and apply them to the facts at hand.").
In this case, the circumstantial evidence of penetration is compelling. Using common sense and common knowledge, the jurors could rationally conclude that appellant and J. Jessop, as spiritual husband and wife, were involved in a sexually intimate relationship, one including sexual intercourse, that resulted in the conception of their daughter. Accordingly, viewing the evidence in the light most favorable to the verdict and with proper regard for the jury's power to resolve conflicts, evaluate credibility, and weigh the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of J. Jessop's sexual organ with his sexual organ when she was younger than 17. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Clayton, 235 S.W.3d at 778; see also Tex. Penal Code Ann. § 22.011. Therefore, we hold that the evidence of penetration is legally sufficient. We overrule appellant's first point of error.
In his second point of error, appellant contends that the evidence is insufficient to prove territorial jurisdiction. He argues that the evidence is insufficient to demonstrate that appellant's sexual assault of J. Jessop occurred in Texas because the direct evidence fails to show that the sexual act resulting in the conception of the child took place in Texas.
The circumstantial evidence — viewed in the light most favorable to the verdict and with proper respect for the jury's power to resolve conflicts, evaluate credibility, and weigh the evidence — showed that appellant and J. Jessop lived together in a sexually intimate relationship as spiritual husband and wife on the YFZ Ranch in Schleicher County, Texas, prior to, during, and after the birth of their child. We hold that this is sufficient circumstantial evidence to support a finding by a jury beyond a reasonable doubt that appellant sexually assaulted J. Jessop in Texas.
In his next three points of error, appellant contends that the trial court erred by admitting DNA evidence of his paternity of J. Jessop's child. He first argues that the DNA evidence was not sufficiently reliable scientific evidence. In addition, he asserts that the admission of the DNA evidence violated the presumption of innocence and shifted the burden of proof because one of the statistics used to express the results of the DNA testing used a calculation that employed a 0.5 prior paternity presumption. Appellant also claims that the admission of the testimony about the DNA evidence violated his right to confront witnesses against him.
We review a trial court's ruling on the admissibility of expert testimony for an abuse of discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App.2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). Such rulings will rarely be disturbed by an appellate court. Vela v. State, 209 S.W.3d 128, 136 (Tex. Crim.App.2006); Rodgers v. State, 205 S.W.3d 525, 527-28 n. 9 (Tex.Crim.App. 2006). As with other types of evidentiary rulings, we will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Layton, 280 S.W.3d at 240 (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (op. on reh'g)). If the record supports the trial court's decision on the admission of evidence, there is no abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim.App.2002); Montgomery, 810 S.W.2d
After testifying about her background and experience, Amy Smuts, a DNA forensic analyst from the University of North Texas Health Science Center at Fort Worth, described the basic process of DNA testing: extraction, amplification, detection, and comparison. Smuts explained that the DNA is first extracted from the sample. The analyst then amplifies the original DNA so there is more to work with. Next, the analyst uses an instrument to visualize or detect a pattern or profile that can be compared to different samples. Finally, the analyst compares the genetic profile from an unknown sample to the genetic profile from a known sample for DNA identification or, in a forensic paternity test, compares the genetic profiles of a mother, a child, and an alleged father.
The record reflects that DNA paternity testing differs from DNA identification analysis only as to the final step of how the test results are used — that is, the comparison the analyst makes after generating the DNA profiles. Smuts testified that the scientific principles underlying DNA analysis and the procedures she outlined are accepted in the scientific community as valid. She indicated that the scientific principles underlying DNA paternity testing are the same scientific principles underlying DNA identification analysis. She further testified that the scientific principles underlying DNA paternity testing and the procedures used are accepted as reliable in the scientific community.
During the comparison for DNA paternity testing, the analyst first compares the DNA profiles of the child, mother, and alleged father to determine if the alleged father can be excluded as the biological father. A child inherits two different alleles at each genetic marker — one from the mother and one from the father.
The first statistical value calculated, the "probability of exclusion," considers the genetic profiles of only the mother and child, and is defined as the probability of excluding a random individual from the relevant population given the alleles of the child and mother. The probability of exclusion utilizes an established population database,
The next statistical expression of the DNA test results is the "combined paternity index." An individual paternity index number is a calculated value generated for a single genetic marker or locus and is associated with the statistical strength or weight of that locus in favor of or against paternity given the alleles of the tested participants and the science of inheritance. The paternity index calculations utilize allele frequencies generated from established population databases, such as the FBI database. The paternity index reflects the likelihood that the tested man passed the required allele (at a specific genetic marker) to the child as compared to an untested man of the same race. The individual paternity index values for all examined loci are then multiplied to calculate the combined paternity index. The combined paternity index — the product of multiplying all the individual paternity index numbers of the examined alleles together — is a summary of the genetic evidence of a match between the tested man and the child. The number reflects that the observed genetic results are that many times more likely if the tested man is the true biological father than if an untested randomly selected male of his race was the father. Thus, the combined paternity index is a measure of the strength of the genetic evidence and is an odds ratio, not a probability, that depicts the likelihood of the tested man being the biological father,
Finally, the DNA test results can be expressed as a "probability of paternity." The probability of paternity translates the combined paternity index into a percentage. The probability of paternity is a computation that tests the hypothesis that the alleged father is indeed the biological father of the child.
Law enforcement officers collected buccal swab samples from the mother, J. Jessop, the victim in this case, and her child, Z.J., and a blood sample from appellant. The samples were taken to the University of North Texas Health Science Center at Fort Worth, where DNA tests were performed.
Because appellant was not excluded, the previously described statistics were generated to express the DNA results. The probability of exclusion was 99.99997 percent. In other words, based on the DNA profiles of J. Jessop and her child, 99.99997 percent of the male population could not have contributed the obligate paternal alleles at all 15 loci and are excluded from the possibility of being Z.J.'s biological father. The combined paternity index was 57,040,000. This means that the observed genetic results are 57,040,000 times more likely if appellant is Z.J.'s true biological father than if an untested randomly selected unrelated male of his race is the father.
Pursuant to Rule 702, before admitting expert testimony, the trial court must be satisfied that three conditions are met: (1) that the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) that the subject matter of the testimony is appropriate for expert testimony; and (3) that admitting the expert testimony will actually assist the fact finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App.2006); see also Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim. App.2000). These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Vela, 209 S.W.3d at 131. Reliability focuses on the subject matter of the witness's testimony. The proponent of the expert testimony must demonstrate by clear and convincing evidence that the expert testimony is reliable. Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App.2005).
To be considered sufficiently reliable as to be of help to a jury, scientific evidence must meet three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Vela, 209 S.W.3d at 134; see Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.App.1992). Factors that could affect a trial court's determination of reliability include, but are not limited to: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique
The record in this case demonstrates that the State satisfied the three criteria to establish the reliability of the DNA paternity evidence. DNA evidence has certainly been held admissible in Texas.
In his third point of error, appellant asserts that the DNA evidence identifying him as Z.J.'s father was not sufficiently reliable.
Appellant also suggests that the DNA evidence produced is unreliable because, according to appellant, the lab failed to use an inbreeding co-efficient in the statistical analysis of the DNA results to account for the insular FLDS population. At the 702 hearing, appellant argued that "the population substructure was improperly applied" and that "there was evidence of a more proper population substructure that they didn't apply."
There was evidence before the trial court of Smuts's qualifications, experience, and skill to perform the DNA paternity test, the existence of literature supporting the underlying scientific theory and technique, the availability of other experts to test and evaluate the technique, and the clarity with which the underlying scientific theory and technique can be explained to
In his fifth point of error, appellant challenges the probability-of-paternity statistic calculated from the DNA test results because, he contends, the use of a 0.5 prior probability in calculating the statistic violates the presumption of innocence and shifts the burden of proof.
Under the Due Process Clause of the Fourteenth Amendment, an accused in state court has the right to the "presumption of innocence" — the right to be free from criminal conviction unless the State can prove guilt beyond a reasonable doubt by probative evidence adduced at trial. Miles v. State, 204 S.W.3d 822, 825 (Tex. Crim.App.2006) (citing Taylor v. Kentucky, 436 U.S. 478, 483 n. 12, 485-86, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978)); Madrid v. State, 595 S.W.2d 106, 110 (Tex. Crim.App.1979). The Texas Legislature has codified the presumption of innocence in the Texas Penal Code and the Code of Criminal Procedure. See Tex. Penal Code Ann. § 2.01 (West 2011); Tex.Code Crim. Proc. Ann. art. 38.03 (West Supp. 2011).
The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials. Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Taylor, 436 U.S. at 485, 98 S.Ct. 1930. The phrase is "an inaccurate, shorthand description of the right of the accused to `remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion.'" Bell, 441 U.S. at 533, 99 S.Ct. 1861 (quoting Taylor, 436 U.S. at 483 n. 12, 98 S.Ct. 1930); see Miles, 204 S.W.3d at 825; see also Black's Law Dictionary 1306 (9th ed. 2009). "The principal inaccuracy is the fact that it is not technically a `presumption' — a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an `assumption' that is indulged in the absence of contrary evidence."
The presumption of innocence has no correlation with actual innocence. Zimmerman v. State, 860 S.W.2d 89, 97 (Tex.Crim.App.1993) ("the presumption of innocence does not carry with it the connotation that a defendant is in fact innocent"); Johnson v. State, 263 S.W.3d 405, 417 (Tex.App.-Waco 2008, pet. ref'd); Miles v. State, 154 S.W.3d 679, 683 (Tex. App.-Houston [14th Dist.] 2004) (Hudson, J., concurring), aff'd, 204 S.W.3d 822 (Tex. Crim.App.2006). Rather, the presumption of innocence is merely an expression regarding the State's evidentiary burden and not a suggestion or intimation of the defendant's
Appellant acknowledges that this same challenge has been previously addressed — and rejected — by the Amarillo Court of Appeals. In Griffith v. State, 976 S.W.2d 241, 246-50 (Tex.App.-Amarillo 1998, pet. ref'd), the appellant had been convicted of sexually assaulting a mentally retarded female patient at the state school.
Id. at 247. We agree with the Griffith court's evaluation of the probability-of-paternity statistic.
The function of Bayes' Theorem, a conditional probability theory, is to show the effect of a new item of evidence on a previously established probability. In this case the new item was the DNA test results. The previously established probability was the probability of appellant's paternity based on the other non-test evidence without the benefit of the scientific tests. Theoretically, Bayes' Theorem permits a mathematical calculation of the probability of a man's paternity of a child based on all the information known about the child and the man. However, in the scientific lab setting, in arriving at the probability percentage, a DNA analyst is restricted to considering the test evidence
Contrary to appellant's contention, the prior probability cannot be zero, as he suggests the presumption of innocence requires. As the Griffith court observed:
Griffith, 976 S.W.2d at 249 (emphasis in original) (footnote omitted); accord Butcher v. Commonwealth, 96 S.W.3d 3, 9 (Ky. 2002) (quoting Griffith, 976 S.W.2d at 249).
Appellant here, like the appellant in Griffith, complains that the 0.5 prior probability destroys the presumption of innocence because it assumes that appellant had intercourse with the victim — a fact that the State must prove.
Like the appellant in Griffith, appellant here relies on several cases from other jurisdictions to support his argument. The courts in State v. Hartman and State v. Skipper held that paternity test results predicated on a prior-probability assumption were inadmissible because such evidence violates the presumption-of-innocence requirement of criminal proceedings. State v. Hartman, 145 Wis.2d 1, 426 N.W.2d 320, 326 (1988); State v. Skipper, 228 Conn. 610, 637 A.2d 1101, 1107-08 (1994). In reviewing these decisions, the Griffith court found that these holdings were flawed, principally because the underlying rationale assumed — based in large part on a single law review article, Robert W. Peterson, A Few Things You Should Know About Paternity Tests (But Were Afraid To Ask), 22 Santa Clara L.Rev. 667 (1982) — that the probability-of-paternity statistic mandated the assumption that the alleged father had sexual intercourse with the mother. Griffith, 976 S.W.2d at 247 (citing Hartman, 426 N.W.2d at 326; Skipper, 637 A.2d at 1106). The author of the law review article, not a statistician or geneticist but an attorney and professor, concluded that the Bayes' Theorem accurately reflects the odds that the accused is the father only if one assumes that the defendant and a random man both had intercourse with the mother. Id. at 248 (citing Hartman, 426 N.W.2d at 326). Among other criticisms of the article, the Griffith court found that the author failed to cite direct authority, either legal or scientific, to support his statement. Id. The court disagreed with the author's basic assumption that the occurrence of intercourse is implicit in the prior-probability value. Id.; accord Spann, 617 A.2d at 253 ("The conclusion [that intercourse was assumed in the calculation of the probability-of-paternity percentage], however, is incorrect."). Like the Griffith court, we disagree with the underlying rationale of these decisions. Just because the value allows for the possibility of intercourse with the alleged father does not mean it mandates the assumption that intercourse occurred. We agree that both Skipper and Hartman were based on a flawed premise. See Butcher, 96 S.W.3d at 8-9; Griffith, 976 S.W.2d at 247-49. Accordingly, we do not find support for appellant's contention in those cases.
The record contains testimony from Smuts addressing the reliability of the probability-of-paternity statistic. At the 702 hearing, after testifying about her credentials and expertise in the field of molecular biology as applied to genetic testing, she testified that the methodologies employed in the DNA paternity testing were
Smuts testified before the jury, based on the neutral 0.5 prior probability, that appellant's probability of paternity was 99.999998 percent. She also testified before the jury that even if the prior probability in the calculation were reduced to 0.1(10%), reflecting a lower assumption that appellant was the father, the probability of paternity would be 99.99998 percent. She further testified that if the prior probability in the calculation were increased to 0.7(70%), reflecting a higher assumption that appellant was the father, the probability of paternity of would be 99.9999992 percent.
We agree that "`[t]he 50 percent prior chance assumption does not require shifting the burden of proof to the defendant and is not an impermissible assumption; rather, it is part of a scientific theory and the jury should be so told.'" Griffith, 976 S.W.2d at 242 (quoting Hartman, 426 N.W.2d at 327 (Steinmertz J., dissenting)). We find no violation of presumption-of-innocence principles in the use of a prior probability to deduce the likelihood of paternity based on DNA test results. See Griffith, 976 S.W.2d at 242; Butcher, 96
Although we conclude that the statistical evidence of probability of paternity was properly admitted, assuming arguendo that the statistic was improperly admitted, we conclude that such error was harmless.
The erroneous admission of expert testimony is non-constitutional error. See Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App.2010). Accordingly, any error must be disregarded unless it affected appellant's substantial rights. See Tex. R.App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Coble, 330 S.W.3d at 280 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). If the improperly admitted evidence did not influence the jury or had but a slight effect on its deliberations, such error is harmless. Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998)); Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003). In conducting a harm analysis, we examine the entire trial record and calculate, to the extent possible, the probable impact of the error on the rest of the evidence. Coble, 330 S.W.3d at 280 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.App.2000)). Important factors in considering non-constitutional error are "`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.'" Bagheri, 119 S.W.3d at 763 (quoting Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002)). In analyzing the erroneous admission of expert testimony, we may consider, among other things: (1) the strength of the evidence of the appellant's guilt;
In this case, appellant had ample opportunity to cross-examine Smuts on the use of the prior probability. During cross-examination, the defense pointed out to the jury the nature of the probability-of-paternity statistic and how it could perhaps be misleading. The record demonstrated that changing the prior probability affected the probability-of-paternity percentage.
Moreover, the application or use of Bayes' Theorem relates to only one portion of the DNA evidence. Bayes' Theorem has no effect on the DNA testing itself — that is, developing the genetic profiles from the samples. Nor does Bayes' Theorem affect two of the three statistical representations of the DNA test results: the probability of exclusion and combined paternity index. These other two statistics provide similar and equally compelling information about appellant's paternity of Z.J.
Appellant complains in his fourth point of error that the admission of the DNA testimony violated his right to confrontation because Smuts was unable, according to appellant, to sufficiently explain the reasoning and science behind the mathematical formula for calculating the probability-of-paternity statistic used to express the DNA results.
The Confrontation Clause of the Sixth Amendment provides a right in both federal and state prosecutions to confront and cross-examine adverse witnesses. U.S. Const. amends. VI, XIV; Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Woodall v. State, 336 S.W.3d 634, 641 (Tex.Crim.App.2011). The principal concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the
To implicate the Confrontation Clause, an out-of-court statement must (1) have been made by a witness absent from trial and (2) be testimonial in nature. Crawford v. Washington, 541 U.S. 36, 50-52, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Woodall, 336 S.W.3d at 641-42; King v. State, 189 S.W.3d 347, 358 (Tex. App.-Fort Worth 2006, no pet.). It is the "literal right to `confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause." California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Thus, Crawford's holding applies only when the extrajudicial testimonial statements of a witness who does not testify at trial are sought to be admitted. See Crawford, 541 U.S. at 59, 124 S.Ct. 1354 (emphasis added). When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of prior testimonial statements. Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354; Green, 399 U.S. at 162, 90 S.Ct. 1930; Woodall, 336 S.W.3d at 641-42; see, e.g., Eustis v. State, 191 S.W.3d 879, 886 (Tex.App.-Houston [14 Dist.] 2006, pet. ref'd); Hanson v. State, 180 S.W.3d 726, 731 (Tex.App.-Waco 2005, no pet.); Crawford v. State, 139 S.W.3d 462, 465 (Tex.App.-Dallas 2004, pet. ref'd).
Moreover, "`the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Woodall, 336 S.W.3d at 643 (quoting Delaware v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)) (emphasis in original). The "`Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'" Id. (quoting Fensterer, 474 U.S. at 21-22, 106 S.Ct. 292); see United States v. Kappell, 418 F.3d 550, 555-56 (6th Cir.2005) (though two young children were unresponsive or inarticulate at some points during trial testimony, they were subject to cross-examination, and Confrontation Clause guarantees only opportunity for cross-examination).
In this case, Smuts, the DNA forensic analyst, testified at trial and was subject to cross-examination regarding the DNA evidence about which appellant complains. Simply because she did not provide the answers to appellant's satisfaction does not mean appellant was denied the right to confront her. Discerning no violation of appellant's confrontation rights, we overrule appellant's fourth point of error.
In points of error six through nine, appellant argues that the trial judge erred in admitting documentary evidence seized from the vaults of the temple and temple annex of the YFZ Ranch. Appellant asserts the trial court abused its discretion by admitting this documentary evidence because the evidence was not properly authenticated under Rule 901 of the Texas Rules of Evidence and, further, because such evidence constituted inadmissible hearsay. In addition, he complains that the evidence was irrelevant and inadmissible under Rules 401 and 402 of the Texas Rules of Evidence, inadmissible character conformity evidence under Rule 404(b), and substantially more prejudicial than probative under Rule 403. Appellant further argues that the admission of this documentary
Initially, we note that there are multiple preservation issues in connection with appellant's evidentiary complaints. Preservation of error is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App.2009); Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim.App.2005). A reviewing court should not address the merits of an issue that has not been preserved for appeal.
First, appellant offers no argument or authority with respect to his complaints that the evidence was irrelevant and inadmissible under Rules 401 and 402, impermissible character conformity evidence under Rule 404(b), or substantially more prejudicial than probative under Rule 403. Nor does he present any argument or authority concerning his contention that the admission of this documentary evidence violated his right to due process under the United States Constitution and his right to due course of law under the Texas Constitution. Accordingly, we consider these complaints inadequately briefed and as presenting nothing for our review. See Tex.R.App. P. 38.1(i); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim.App.2004) (failure to adequately brief issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal); Aldrich v. State, 928 S.W.2d 558, 559 n. 1 (Tex.Crim.App.1996); see also Leza v. State, 351 S.W.3d 344, 358 (Tex.Crim.App.2011).
Second, in his argument concerning the violation of his right to confront and cross-examine witnesses, appellant provides authority only regarding the United States Constitution. Because appellant does not provide separate authority or argument for his state constitutional claim, we do not address it. See Berry v. State, 233 S.W.3d 847, 855 n. 3 (Tex.Crim.App.2007); Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App.1991). In addition, because appellant does not argue that the Texas Constitution provides more protection than the United States Constitution, nor explain how it would, we properly resolve this claim under only the United States Constitution. See Flores v. State, 319 S.W.3d 697, 702 n. 8 (Tex.Crim.App.2010); Muniz v. State, 851 S.W.2d 238, 251 (Tex.Crim. App.1993).
Finally, appellant complains globally about the admission of a "large amount of documents," referring to the documents with group labels, but fails to identify any specific exhibit in the record.
A trial judge has great discretion in the admission of evidence at trial. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim.App.2007); Montgomery, 810 S.W.2d at 378-79. We review the trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim.App.2010); Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010). Under an abuse-of-discretion standard, we do not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. Davis, 329 S.W.3d at 803; Bigon v. State, 252 S.W.3d 360, 367 (Tex.Crim.App.2008); see Montgomery, 810 S.W.2d at 378-79.
Within his seventh point of error, appellant complains that the trial judge abused
Appellant also asserts in his seventh point of error that the complained-of documents are hearsay and do not fall within one of the hearsay exceptions. Whether hearsay is admissible at a criminal trial is determined by the Texas Rules of Evidence and the Sixth Amendment to the federal Constitution. Sanchez v. State, 354 S.W.3d 476, 484 (Tex.Crim.App.2011).
Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." Tex.R. Evid. 801(d). Generally, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay rule. Pena, 353 S.W.3d at 814; see Tex.R. Evid. 802. Two recognized exceptions, applicable regardless of whether the declarant is available to testify, are records of religious organizations and family records. Texas Rule of Evidence 803(11) excludes from the hearsay rule "[s]tatements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization." Tex.R. Evid. 803(11). Similarly, Texas Rule of Evidence 803(13) excludes "[s]tatements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like." Tex.R. Evid. 803(13). The State offered the complained-of documents under these exceptions to the hearsay rule.
In his primary argument against admissibility, appellant maintains that the proffered records were not business records because there was no "regularly conducted business for which the records were created or maintained." He argues that Rebecca Musser
Appellant also argues against admissibility because the exception for records of a religious organization was not meant to include "the writings of an evangelist"
Where a trial court's decision to admit evidence is within the zone of reasonable disagreement and is correct under any theory of law applicable to the case, the admission will be upheld. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007). Because the documents about which appellant complains are excepted from the hearsay rule either as records of a religious organization or as family records, or both, the trial court did not abuse its discretion by admitting these documents. We overrule appellant's seventh point of error as it relates to hearsay.
In his sixth point of error, appellant contends that the admission of the complained-of documents violated his constitutional right to confront and cross-examine witnesses under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
In his eighth and ninth points of error, appellant asserts that the admission of the complained-of documents violated, generally,
Nevertheless, as discussed above, we have determined that the trial court did not err in admitting the complained-of documentary evidence. Thus, there is no evidentiary error that denied appellant a fundamentally fair trial. We conclude that no violation of due process or due course of law is shown. Appellant's eighth and ninth points of error are overruled.
In points of error ten through thirteen, appellant challenges the trial court's denial of his motion to quash the indictment, which complained of impermissible grand jury procedures in Schleicher County. These four points of error and the arguments made are identical to those raised and addressed in Jeffs v. State, 2012 WL 601846, at *11-18. There, we concluded that the trial court did not abuse its discretion in denying the defendants' joint motion to quash the indictment. See id. We do not repeat that discussion here. For the reasons stated in our opinion in Jeffs, we overrule appellant's points of error ten through thirteen.
In points of error fourteen through thirty-four, appellant challenges the trial court's denial of his motion to suppress. These twenty-one points of error and the arguments made are identical to those raised and addressed in Emack v. State, 354 S.W.3d 828, 833-40 (Tex.App.-Austin 2011, no pet.), and Jeffs v. State, 2012 WL 601846, at *4-11. In those opinions, we concluded that the trial court did not abuse its discretion in denying the defendants' joint motion to suppress. See Emack, 354 S.W.3d at 833-40; Jeffs, 2012 WL 601846, at *4-11. We do not repeat that discussion here. For the reasons stated in our previous opinions in Emack and Jeffs, we overrule appellant's points of error fourteen through thirty-four.
In his final point of error, appellant contends that the trial court erroneously admitted the testimony of three witnesses — Carolyn Jessop, Rebecca Musser, and Dr. Lawrence Beall — during the punishment phase of trial. He argues that the court erred in allowing "irrelevant and prejudicial expert witnesses to testify to victim impact ... in violation of Rule 702 and Daubert."
We review a trial court's decision to admit punishment evidence under an abuse-of-discretion standard. Davis, 329 S.W.3d at 802; Walters, 247 S.W.3d at 217. We may not disturb a trial court's evidentiary ruling absent an abuse of discretion. McGee v. State, 233 S.W.3d 315, 318 (Tex.Crim.App.2007). The trial court abuses its discretion only when its decision lies "outside the zone of reasonable disagreement." Davis, 329 S.W.3d at 802; Walters, 247 S.W.3d at 217. Moreover, a trial court's evidentiary ruling must be upheld if it is correct under any theory of law that is reasonably supported by the record, even if the trial judge gave the wrong reason for the ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App. 2009); see Gonzalez v. State, 195 S.W.3d 114, 125-26 (Tex.Crim.App.2006) (citing McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim.App.1997); Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990)).
Carolyn Jessop, a former FLDS member who was one of the spiritual wives of appellant's father, testified during the punishment phase of trial about her experiences with appellant, her knowledge of appellant, and his membership in FLDS. She also testified briefly about the organization's polygamous practices — describing plural marriages and the structure of communal living within the polygamous families — and appellant's polygamous relationships. Her testimony was based on her personal acquaintance with appellant as one of his mothers as well as her observations and personal experiences in her 35 years in the FLDS church.
Appellant objected to Carolyn Jessop's testimony on the grounds that the evidence was not directly related to him and was therefore irrelevant under Article 37.07(3)(a)(1) and was substantially more prejudicial than probative under Rule 403. He did not object to her qualifications as an expert or to the reliability of her opinions.
Rebecca Musser, another former FLDS member, also testified during the punishment
Appellant objected to Musser's testimony on the grounds that the evidence was not directly related to him and was therefore irrelevant under Article 37.07(3)(a)(1) and was substantially more prejudicial than probative under Rule 403. He did not object to Musser's qualifications as an expert or to the reliability of her opinions. Because appellant did not object to her testimony on these grounds, his complaints are not preserved for appellate review. See Tex.R.App. P. 33.1(a); Pena, 353 S.W.3d at 807; Garza, 126 S.W.3d at 81-82; Peavey, 248 S.W.3d at 470. The only complaints preserved for our review concerning Musser's testimony are appellant's contentions that her testimony was inadmissible under Article 37.07 and Rule 403. For the reasons stated in our discussions on relevance and prejudice that follow, we overrule appellant's thirty-fifth point of error as it relates to the testimony of Rebecca Musser.
During the punishment phase of trial, Lawrence Beall, a clinical psychologist specializing in trauma awareness and treatment, testified about the traumatic effects of sexual assault on children. At the time of trial, Dr. Beall had been a practicing clinical psychologist for 21 years and had been the director for a trauma center in Salt Lake City, Utah, since 1994.
Dr. Beall testified about several areas of concern related to the sexual assault of children: trauma caused to girls generally by underage sexual assault; how adolescent psychological development is affected by underage sexual assault and placement in underage marriages; how adolescent psychological development affects the ability to give consent in connection with underage marriage and underage sexual activity; conditioning or grooming practices associated with the sexual assault of children; and the impact on girls and women of living in a polygamous community. His testimony included an explanation of how the indoctrination of children within FLDS allowed for the perpetration of crimes against children. Basically, he indicated that the indoctrination practices, based on the doctrines and teachings of FLDS, allowed members to become compliant with and complicit in underage marriages, sexual activity with underage children, and polygamous marriages.
Just before Dr. Beall testified, appellant filed written objections to his testimony.
Before admitting expert testimony under evidence rule 702, the trial court should determine that the expert is qualified, the opinion is reliable, and the evidence is relevant. See Tex.R. Evid. 702; Vela, 209 S.W.3d at 131; see also Jackson, 17 S.W.3d at 670. These three requirements — qualification, reliability, and relevance — raise distinct questions and issues. Shaw v. State, 329 S.W.3d 645, 655 (Tex.
We review a trial court's ruling on the admissibility of expert testimony for an abuse of discretion. Layton, 280 S.W.3d at 240; Weatherred, 15 S.W.3d at 542. As with other types of evidentiary rulings, we will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Layton, 280 S.W.3d at 240 (citing Montgomery, 810 S.W.2d at 380). Such rulings will rarely be disturbed by an appellate court. Vela, 209 S.W.3d at 136; Rodgers, 205 S.W.3d at 528-29 n. 9. Before reversing the trial court's decision, we must find the trial court's ruling was so clearly wrong as to lie outside the realm within which reasonable people might disagree. Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App.2008); Green v. State, 191 S.W.3d 888, 895 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). Absent a clear abuse of that discretion, the trial court's decision to admit or exclude expert testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000).
Rule 702 of the Texas Rules of Evidence allows a witness qualified by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding or determining a fact issue. Tex.R. Evid. 702. A person's specialized education, practical experience, study of technical works, or some combination thereof may provide him with the specialized knowledge that qualifies him to testify as an expert. Wyatt, 23 S.W.3d at 27; Turner v. State, 252 S.W.3d 571, 585 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). The qualifications of an expert witness are distinct from the reliability and relevance of the opinion testimony and, therefore, should be evaluated independently. Vela, 209 S.W.3d at 131; Bryant v. State, 340 S.W.3d 1, 7 (Tex.App.-Houston [1st Dist.] 2010, pet. ref'd); see Escamilla v. State, 334 S.W.3d 263, 268 (Tex.App.-San Antonio 2010, pet. ref'd).
The evaluation of an expert's qualifications entails a two-step inquiry: first, whether the witness possesses sufficient background in a particular field, and second, whether that background goes to the matter on which the witness is to give an opinion. Davis, 329 S.W.3d at 813; Vela, 209 S.W.3d at 131 (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)). The focus is on the fit between the subject matter at issue and the expert's familiarity with it. Davis, 329 S.W.3d at 813; Vela, 209 S.W.3d at 133. Because the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case. Davis, 329 S.W.3d at 813; Vela, 209 S.W.3d at 136. To be qualified to give expert opinion testimony, the witness "must possess some additional knowledge or expertise beyond that possessed by the average person, but
Dr. Beall, the director of a trauma center in Salt Lake City, Utah, was trained as a clinical psychologist with specialization in psychological trauma, which included sexual assault, domestic violence, war trauma, refugee trauma, gang violence, and cult abuse. He obtained a Ph.D. from Brigham Young University and spent 21 years treating the victims of trauma — approximately 5,500 patients, including adults and children within the FLDS community and other polygamous communities. In preparation for his testimony, he reviewed numerous documents removed from the YFZ Ranch and interviewed several FLDS members. Dr. Beall testified that throughout his career he has read information about cults and polygamous groups. In addition, he demonstrated a familiarity with the theology and practices of FLDS, along with the mainstream Mormon church.
Dr. Beall has a degree in a field of study involving human behavior and specialized experience in behaviors associated with the victimization of children by sexual abuse, underage marriage, and plural marriage. The record shows that Dr. Beall was qualified by education, training, and experience in the field of psychology and psychological trauma. His opinions were based on general psychological principles as well as his specialized experience. He was qualified to opine about the impact of sexual assault, underage marriage, and polygamy on children. We hold that the trial court did not abuse its discretion in overruling appellant's objection to Dr. Beall's qualifications as an expert. Appellant's thirty-fifth point of error is overruled as it relates to the violation of Rule 702.
While qualification deals with the witness's background and experience, reliability focuses on the subject matter of the witness's testimony. Vela, 209 S.W.3d at 131. The proponent of the expert testimony must demonstrate by clear and convincing evidence that the expert testimony is reliable. Russeau, 171 S.W.3d at 881. The focus of the reliability analysis is to determine whether the evidence has its basis in sound scientific methodology such that testimony about "junk science" is weeded out. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011); Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App. 1996). When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily on experience and training as opposed to the scientific method, the requirement of reliability still applies, but with less rigor than to the hard sciences. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App.1999); Perez v. State, 113 S.W.3d 819, 833 (Tex.App.-Austin 2003, pet. ref'd), overruled on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex.Crim. App.2008).
Expert testimony in the field of psychology is a "soft science." See Tillman, 354 S.W.3d at 435; Perez, 113 S.W.3d at 833-34. Consequently, to establish its reliability, the proponent must establish that: (1) the field of expertise involved is a legitimate one, (2) the subject
Psychology is a legitimate field of study. See Tillman, 354 S.W.3d at 436; Perez, 113 S.W.3d at 833-34. We believe adolescent psychological development — including how it affects the ability to give consent and how sexual abuse impacts it — is a legitimate subject within the field of psychology. We further believe that the concept of indoctrination, including its affect on adolescent psychological development, is a legitimate subject within the field of psychology. In addition, the impact of sexual abuse is a legitimate subject well established in the field of psychology.
All of the opinions offered by Dr. Beall were within the scope of the field of psychology. As we noted previously, his opinions were founded on general psychological principles and his specialized experience. Due to Dr. Beall's superior knowledge and experience concerning adolescent psychological development, child sexual abuse, psychological trauma, and polygamous communities, the opinions he offered were within the scope of his expertise. Appellant fails to identify "principles involved in the field" of psychology that Dr. Beall's testimony failed to rely on or utilize. From his testimony, it is clear that Dr. Beall was applying the general principles of psychology, including those related to adolescent psychological development and the effects of trauma and abuse, to the
Thus, the evidence shows that Dr. Beall's expert testimony was reliable under Nenno. Accordingly, the trial court did not abuse its discretion in admitting Dr. Beall's expert testimony over appellant's reliability objection. Appellant's thirty-fifth point of error is overruled as it relates to the violation of Rule 705.
Appellant characterizes the testimony of Carolyn Jessop, Rebecca Musser, and Dr. Beall as inadmissible "victim impact" evidence.
Section 3(a) of article 37.07 of the Texas Code of Criminal Procedure governs the admissibility of evidence at the punishment phase of a non-capital criminal trial and grants the trial court broad discretion to admit evidence that the court deems relevant to sentencing. See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2011); Sims v. State, 273 S.W.3d 291, 295 (Tex.Crim.App.2008). Admissibility of evidence at the punishment phase of a trial of a non-capital felony offense is a function of policy rather than relevancy. Hayden v. State, 296 S.W.3d 549, 552 (Tex.Crim.App.2009); Come v. State, 82 S.W.3d 486, 491 (Tex. App.-Austin 2002, no pet.). In ascertaining what is relevant to sentencing, the focus is on what is helpful to a jury in deciding an appropriate sentence for a defendant. Sims, 273 S.W.3d at 295; McGee, 233 S.W.3d at 318; Come, 82 S.W.3d at 491. Giving complete information about the defendant so the jury can tailor an appropriate sentence is one of the policy reasons to be considered when determining whether to admit punishment evidence. Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App.2004) (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim. App.2000)).
Evidence concerning one's beliefs and associations may be admissible if shown to be relevant. Davis, 329 S.W.3d at 805; Mason v. State, 905 S.W.2d 570, 576 (Tex.Crim.App.1995) (citing Dawson v. Delaware, 503 U.S. 159, 161, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)); Shelton v. State, 41 S.W.3d 208, 214 (Tex.App.-Austin 2001, pet. ref'd). The court of criminal appeals has recognized that when the defendant is charged with an act of violence, membership in an organization with a reputation for violent activities is relevant evidence because it relates to his character.
We believe the principles allowing for the admission of evidence of gang membership are, in general, applicable here. If the defendant's membership in an organization and the organization's nature and activities give the jury valuable information regarding the character of the defendant, such information should be allowed into evidence. See Thompson v. State, 33 S.W.3d 847, 853 (Tex.App.-Tyler 2000, no pet.) (holding that trial court did not abuse its discretion in admitting evidence of appellant's membership in Republic of Texas and reputation of that organization). The jury is concerned at the punishment phase with evaluating a defendant's background and character. A person's beliefs and associations reflect his background and character. Thus, evidence of a defendant's membership in an organization and that organization's activities is admissible because it is relevant to the issue of the defendant's character. As Judge Mansfield noted in his concurring opinion in Anderson, "evidence of an individual's membership in the Boy Scouts, Rotary Club, or the Shriners is admissible at the punishment stage as evidence of good character. A plain reading of Article 37.07 leads to the conclusion that membership in organizations dedicated primarily to illegal aims ... is admissible at punishment as evidence of bad character." Anderson, 901 S.W.2d at 952 (Mansfield, J., concurring). Here, where appellant was charged with a sexual crime against a child, membership in an organization that routinely engages in activities that result in sexual crimes against children is relevant evidence because it relates to appellant's character.
In order to prove the relevance of a defendant's membership in an organization or group, the State must show proof of (1) the group's violent and illegal activities and (2) the defendant's membership in the organization. Davis, 329 S.W.3d at 805; Mason, 905 S.W.2d at 577; Shelton, 41 S.W.3d at 214. Once evidence of group membership is established, the prosecution must then present to the jury evidence of the activities of the group generally. See Beasley, 902 S.W.2d at 456; Anderson, 901 S.W.2d at 950 ("Although relevant, gang membership alone would be meaningless to a jury which has no knowledge of the gang's purpose or activities."). "It is essential for the jury to know the types of activities the [group] generally engages in so that they can determine if [the defendant's group] membership is a positive or negative aspect of his character, and subsequently his character as a whole." Beasley, 902 S.W.2d at 456. It is not necessary to link the accused to the bad acts or misconduct generally engaged in by group members, so long as the jury is (1) provided with evidence of the defendant's group membership, (2) provided with evidence of the character and reputation of the group, (3) not required to determine if the defendant committed the bad acts or misconduct, and (4) only asked to consider reputation or character of the accused. See id. at 457.
In the instant case, the State presented evidence of both group membership and
We conclude that appellant's membership in an organization that promotes and practices polygamy and underage marriages that result in the sexual assault of children is relevant to the question of appellant's character for purposes of punishment. Accordingly, the trial court did not abuse its discretion in allowing Rebecca Musser, Carolyn Jessop, and Dr. Beall to testify during the punishment phase. Appellant's thirty-fifth point of error is overruled as it relates to relevance and the violation of Article 37.07.
Having determined that evidence of the appellant's membership in FLDS was relevant, we must next weigh its probative value against its prejudicial effect. Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Davis, 329 S.W.3d at 806; Williams v. State, 958 S.W.2d 186, 196 (Tex.Crim.App.1997). "The term `probative value' refers to the inherent probative force of an item of evidence — that is, how strongly it 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." Davis, 329 S.W.3d at 806 (citing Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App.2007)). "`Unfair prejudice' refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. All testimony and physical evidence are likely to be prejudicial to one party or the other. Davis, 329 S.W.3d at 806; Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity between the degree of prejudice produced by the offered evidence and its probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806; Williams, 958 S.W.2d at 196.
Evidence of appellant's FLDS membership was obviously unfavorable to appellant, but we conclude it was not unfairly prejudicial. It came as part of a larger examination of his character, behavior, and beliefs — which included the endorsement of and participation in the FLDS practice of underage marriage that subjected children to sexual assault. In this case, the jury received evidence that appellant personally engaged in the practice of plural marriages and underage marriage — two of his nine wives were underage — as well as the reassignment of wives and children.
All of this evidence, taken together, revealed a man whose life was centered around a belief system that, in practice, regularly and routinely involved activities that resulted in crimes against children. The evidence of appellant's FLDS membership was but one of the factors that allowed the jury to rationally gauge the probability that appellant would commit a similar sexual assault or be complicit in the sexual assault of other children. This evidence was not so unfairly prejudicial that there was a clear disparity between the degree of the prejudice and its probative value. The trial court therefore did not abuse its discretion in admitting this evidence. Appellant's thirty-fifth point of error is overruled as it relates to the violation of Rule 403.
Having found that the evidence is sufficient to prove both penetration and territorial jurisdiction, we hold the evidence is sufficient to support appellant's conviction for sexual assault of a child. In addition, we hold that the trial court did not abuse its discretion in admitting the DNA paternity evidence, the church and family records recovered from the YFZ Ranch, or the testimony of Carolyn Jessop, Rebecca Musser, and Dr. Lawrence Beall during the punishment phase of trial. We further hold that the trial court did not abuse its discretion in denying appellant's motion to quash the indictment and motion to suppress evidence.
The judgment of conviction is affirmed.
Id.
