The following is a summary of selected criminal opinions issued by the Third Court of Appeals from October 2024. The summary is an overview; please review the entire opinions. The subsequent history is current as of March 7, 2024.
JURY SELECTION – LIMITATIONS ON QUESTIONING: Trial court did not abuse its discretion by prohibiting defense counsel’s questions to panel regarding their opinions of the “Me Too” movement.
Garcia v. State, No. 03-22-00725-CR (Tex. App.—Austin Oct. 2, 2024, no pet.) (mem. op., not designated for publication).
Garcia was convicted of indecency with a child. During jury selection, defense counsel showed the panel a photo of Harvey Weinstein, expressed his personal concerns about the “Me Too” movement, and asked the panel about their opinions of the movement. The trial court prohibited the question, believing it to be an improper commitment question. On appeal, Garcia asserted that by prohibiting that question, the trial court prevented him “from asking questions about their opinions and ability to follow the law on the presumption of innocence, burden of proof, and witness credibility that could have resulted in panelists being challenged for cause.” The appellate court disagreed, concluding that the trial court would not have abused its discretion in finding that the question “had the potential to confuse or mislead the jury panel” because it asked the panelists about “their opinions and views regarding outcries of harassment and sexual abuse and assault by individuals in non-legal settings.” Additionally, it appeared that the trial court “was limiting its prohibition to the specific question and not the whole topic,” which it also had discretion to do.
EVIDENCE ADMISSIBILITY AND CHARGE ERROR – SEXUAL OFFENSES INVOLVING CHILD YOUNGER THAN 17: Evidence of extraneous offenses that occurred after victim turned 17 was admissible at trial, and court’s charge did not erroneously authorize defendant’s conviction for conduct that occurred after victim turned 17.
Lozano v. State, ___ S.W.3d ____, No. 03-23-00660-CR (Tex. App.—Austin 2024, no pet.) (designated for publication).
Lozano was convicted of indecency with and sexual assault of his daughter, who was younger than 17 at the time of the offenses but 21 years old when she reported Lozano to law enforcement. There were several issues on appeal, including the admissibility of extraneous offenses committed by Lozano after his daughter turned 17 and the absence of an instruction specifically limiting the period for which the jury could have convicted him to before his daughter’s 17th birthday.
Regarding the admissibility of the evidence, specifically text exchanges between Lozano and his daughter after she turned 17, the court concluded that they were admissible under Article 38.37 of the Code of Criminal Procedure to show “Lozano’s and [his daughter’s] states of mind and to the previous and subsequent relationship between them.” More specifically, “the language used in the messages as well as the photos sent from both parties indicated that an improper sexual relationship continued” after the victim reached the age of majority, which demonstrated the nature and extent of that relationship. The court additionally concluded that the evidence should not have been excluded under Rule 403. The probative value of the evidence was high, as was the state’s need for the evidence, because the messages were relevant to several disputed issues at trial. On the other hand, the time needed to develop the evidence was low, as was the potential to impress the jury in some irrational way. The court could not conclude that the trial court abused its discretion in admitting the evidence.
Regarding the jury instructions, Lozano asserted that the charge improperly allowed the jury to convict him of conduct that occurred after his daughter turned 17 years old because the charge did not have an instruction specifically limiting the period for which he could have committed an offense to before his daughter turned 17. In Lozano’s view, this was an error because “much of the evidence presented at trial concerned conduct that occurred after [his daughter] turned 17 years old.” The court disagreed, noting the “longstanding rule that the State is not required to prove that an offense was committed on the date alleged in the indictment . . . but may prove that the offense was committed on any date prior to the return of the indictment and within the period of limitations.” Thus, there is no error in the charge so long as the instructions provided that the charged offenses can occur “only when the victim is younger than seventeen years old and defined the term ‘[c]hild’ as someone younger than seventeen.” Here, both the abstract and application paragraphs of the charge contained that express limitation. Accordingly, there was no error in the charge.