Bezerra v. State
2016 Tex. App. LEXIS 467
| Tex. App. | 2016Background
- Appellant Sergio David Bezerra, a third-grade Spanish teacher, was convicted on four counts of indecency with a child by contact for allegedly touching two students in class and having them touch his genitals.
- The State admitted testimony from appellant’s adopted daughter that he had sexually assaulted her when she was a minor, and testimony from her licensed professional counselor about treatment.
- The State also introduced videotaped interviews of the child complainants after defense counsel questioned an officer about those interviews, and a former student testified she was once propositioned by appellant in high school.
- Appellant testified he never had sexual contact with the complainants or his daughter, denied the propositioning, and said he has had no sexual desire or erections since 1993 due to medication.
- A jury convicted on all counts and assessed 20-year sentences on each count, which the trial court ordered to run consecutively. Appellant appealed raising six evidentiary issues.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bezerra) | Held |
|---|---|---|---|
| 1. Admissibility of extraneous-offense evidence (daughter) under art. 38.37 §2(b) | Evidence of prior sexual assaults on the adopted daughter is admissible under art. 38.37 §2(b) and probative of intent/propensity | §2(b) inapplicable to pre‑effective-date conduct; §2(b) unconstitutional (due process); evidence unfairly prejudicial under Tex. R. Evid. 403 | Court upheld admission: §2(b) applies because trial occurred after effective date; statute constitutional; Rule 403 balancing did not require exclusion (evidence probative and sufficiently similar) |
| 2. Testimony of licensed professional counselor (Dr. Capps) | Counselor testimony was relevant to prove the extraneous offense (daughter) beyond a reasonable doubt, not mere bolstering | Counselor testimony impermissibly bolstered daughter and mentioned assailant identity not needed for treatment | Court upheld admission: counselor testimony relevant to whether the extraneous offense occurred and not solely bolstering; identity of assailant was pertinent to treatment here |
| 3. Admission of videotaped interviews of complainants | Videotapes admissible under rule of optional completeness (Rule 107) because defense opened subject via officer testimony | Videotapes hearsay and inadmissible | Court upheld admission under Rule 107: videotapes were necessary to fully and fairly explain matters opened by defense questioning |
| 4. Testimony of former high‑school student (propositioning) | Admissible to rebut defensive theory that touching was innocent/misinterpreted | Testimony too dissimilar and prejudicial to be admitted | Court found admission erroneous (too dissimilar) but error harmless: overwhelming other evidence and limiting instruction; no reversible error |
| 5. Cumulative error | Errors together require reversal | Errors are harmless individually so cumulative effect insufficient | Court rejected cumulative‑error claim because only harmless errors were found |
| 6. Victim‑impact testimony (family’s sentencing wishes) | Brief victim‑impact testimony offered to show effect on family | Testimony impermissibly expressed victims’ family sentencing wishes and was inadmissible | Court found error (such testimony not admissible) but harmless under Rule 44.2(b): limited, not emphasized, and did not affect substantial rights |
Key Cases Cited
- Oprean v. State, 201 S.W.3d 724 (Tex.Crim.App. 2006) (abuse‑of‑discretion standard for evidentiary rulings)
- Devoe v. State, 354 S.W.3d 457 (Tex.Crim.App. 2011) (extraneous‑offense evidentiary review)
- Prible v. State, 175 S.W.3d 724 (Tex.Crim.App. 2005) (factors for Rule 403 balancing)
- Osbourn v. State, 92 S.W.3d 531 (Tex.Crim.App. 2002) (any legal theory supporting admission bars abuse)
- Howland v. State, 990 S.W.2d 274 (Tex.Crim.App. 1999) (statute applies to proceedings occurring after effective date)
- Harris v. State, 475 S.W.3d 395 (Tex.App.—Houston [14th Dist.] 2015) (upholding constitutionality of art. 38.37 §2(b))
- Rivas v. State, 275 S.W.3d 880 (Tex.Crim.App. 2009) (definition of bolstering)
- Taylor v. State, 268 S.W.3d 571 (Tex.Crim.App. 2008) (limits on expert testimony identifying assailant when identity irrelevant to treatment)
- Walters v. State, 247 S.W.3d 204 (Tex.Crim.App. 2007) (Rule 107 optional completeness analysis)
- Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002) (harmless‑error review for nonconstitutional errors)
- Simpson v. State, 119 S.W.3d 262 (Tex.Crim.App. 2003) (victim‑family sentencing wishes not admissible victim‑impact evidence)