Joshua Christian Hamilton v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00233-CR

JOSHUA CHRISTIAN HAMILTON,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 54th District Court
McLennan County, Texas
Trial Court No. 2017-1412-C2

MEMORANDUM OPINION

Joshua Christian Hamilton appeals his conviction for indecency with a child by

contact. After finding him guilty, the jury assessed punishment at three years of

confinement in the Texas Department of Criminal Justice—Institutional Division. In two

issues, Hamilton contends the trial court erred in allowing extraneous offense testimony

and in failing to conduct an evidentiary hearing on his motion for new trial. We affirm.
Extraneous Offense Evidence

In his first issue, Hamilton asserts the trial court erred in admitting testimony

presented by S.G. Specifically, he argues that the trial court did not complete a Rule 403

balancing test. He contends the probative value of her testimony was outweighed by a

danger of unfair prejudice. He asserts that the extraneous offenses were remote because

they were allegedly committed more than three years before the offense alleged in the

indictment. He also argues that the extraneous offenses are not relevant because they are

”disproportionally different from the offense alleged in this present case.” He clarified

that the extraneous offenses allege far worse sexual abuse allegations. He also argues

there is no way that a jury could have believed that an alleged offense occurred between

he and S.G.

STANDARD OF REVIEW AND APPLICABLE LAW

We review the trial court's decision to admit contested testimony under an abuse

of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We

will uphold the trial court's decision if it is within the zone of reasonable disagreement.

Id. The trial court's evidentiary ruling must be upheld if it is reasonably supported by

the record and is correct under any applicable theory of law. Johnson v. State, 490 S.W.3d

895, 908 (Tex. Crim. App. 2016).

Because an accused must be tried only for the offense for which he is charged and

may not be tried for a collateral crime or for being a criminal generally, extraneous offense

Hamilton v. State Page 2
evidence is usually not admissible "to prove a person's character in order to show that on

a particular occasion the person acted in accordance with the character." TEX. R. EVID.

404(b)(1); Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). However, in

prosecutions for sexual offenses against children under the age of seventeen Texas Code

of Criminal Procedure article 38.37 permits the admission of evidence concerning certain

extraneous offenses committed by the defendant. See TEX. CODE CRIM. PROC. ANN. art.

38.37. The unique nature of sexual assault crimes justifies admitting extraneous offense

evidence. See Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref'd).

Article 38.37, Section 2(b) provides that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject
to Section 2-a, evidence that the defendant has committed a separate offense
described by Subsection (a)(1) or (2) may be admitted in the trial of an
alleged offense described by Subsection (a)(1) or (2) for any bearing the
evidence has on relevant matters, including the character of the defendant
and acts performed in conformity with the character of the defendant.

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Subsection 2(b) applies to specified

offenses, including indecency with a child. See id. art. 38.37, §§ 1(a)(1)(A), 2(a)(1)(C).

When evidence of a defendant’s commission of one of the offenses listed in article

38.37, section 2(a) is relevant under article 38.37, the trial court must conduct a Rule 403

balancing test upon proper objection or request. West v. State, 554 S.W.3d 234, 239 (Tex.

App.—Houston [14th Dist.] 2018, no pet.). Relevant evidence means evidence having

any tendency 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. TEX.
Hamilton v. State Page 3
R. EVID. 401. Pursuant to Rule of Evidence 403, the trial court must weigh the probative

value of the evidence against the potential for unfair prejudice. TEX. R. EVID. 403. Because

evidence of separate sexual offenses is probative on the issues of intent and a defendant’s

character or propensity to commit sexual assaults on children if sufficient evidence is

provided regarding the extraneous offense, the probative value of sexual offenses

committed against other children is generally not substantially outweighed by the danger

of one or more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, or needlessly presenting cumulative evidence. Id.; Deggs v. State, 646

S.W.3d 916, 925 (Tex. App.--Waco 2022, pet. ref’d).

When a trial court conducts a Rule 403 balancing test, it must balance (1) the

inherent probative force of the proffered item of evidence along with (2) the proponent’s

need for that evidence against (3) any tendency of the evidence to suggest a decision on

an improper basis, (4) any tendency of the evidence to confuse or distract the jury from

the main issues, (5) any tendency of the evidence to be given undue weight by a jury that

has not been equipped to evaluate the probative force of the evidence, and (6) the

likelihood that presentation of the evidence will consume an inordinate amount of time

or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42

(Tex. Crim. App. 2006).

Hamilton v. State Page 4
Discussion

S.G., a close friend of A.T., the complainant in this case, testified regarding her

experiences with Hamilton. S.G.’s brother was friends with Hamilton, and Hamilton,

who is three years older than S.G., spent the night at their house about twice a month.

One night, Hamilton led ten-year-old S.G. to a computer and showed her porn. Later

that night, after her brother was asleep, Hamilton pulled down his pants and asked S.G.

to kiss his penis. She testified that she gave him a “blow job.” A white, clear liquid that

tasted like bleach came out of his penis. S.G. also cryptically referenced another time

when she was ten and Hamilton touched her on her body, he was rough, and it hurt.

In another incident, when S.G. was eleven, she and her brother spent the night at

Hamilton’s mother’s house. S.G. was on the couch and Hamilton sat next to her. He tried

to touch her, but she said no. He then grabbed her hand and made her stroke his penis.

Hamilton asserts that S.G.’s testimony was not relevant because those alleged

offenses are different from, that is, “far worse” than the offense alleged against him in the

present case. We disagree. The offenses described by S.G. were of a sexual nature and

her age at the time of those offenses was similar to A.T.’s age at the time of the offense

alleged here. Where the offenses may land on a scale measuring atrocious misbehavior

is not germane. S.G.’s testimony was relevant.

Hamilton further argues that the jury could not have believed S.G. The trial court

held a hearing to make the initial admissibility determination. See TEX. CODE CRIM. PROC.

Hamilton v. State Page 5
ANN. art. 38.37, § 2-a. In that hearing, the trial court is the sole arbiter of the credibility

of the witness and the weight given to her testimony. Deggs, 646 S.W.3d at 924. The trial

court can resolve conflicts in the testimony, weigh the evidence, and draw reasonable

inferences therefrom. Id. We presume the trial court found S.G.’s testimony to be credible

and gave weight to her testimony. Id. Accordingly, we find the trial court did not abuse

its discretion following the hearing by finding that S.G.’s testimony would be adequate

to support a finding by the jury that Hamilton committed the extraneous offense beyond

a reasonable doubt under article 38.37, section 2-a(1).

We turn now to the Rule 403 balancing test. As to the first factor, Hamilton argues

that the extraneous offenses were remote. We are not persuaded that the three-year gap

rendered the evidence inadmissible. The evidence is probative of Hamilton’s character

or propensity to commit indecent acts with children around A.T.’s age. Here, Hamilton

was charged with indecency with a child who was thirteen at the time of the offense. See

Deggs, 646 S.W.3d at 926; see also West, 554 S.W.3d at 239-40 (In affirming the conviction,

the court explained that evidence showing appellant committed lewd or lascivious acts

on girls twenty-nine to thirty years before trial is a factor to consider.).

The second factor, the State’s need for the evidence, weighs in favor of admission.

There was no biological evidence and no third-party eyewitnesses. Furthermore, article

38.37 recognizes the need for such evidence “for any bearing the evidence has on relevant

Hamilton v. State Page 6
matters.” See TEX. CODE CRIM. PROC. art. 38.37, § 2(b). This factor weighs in favor of

admission.

With respect to the third factor, we recognize the inherently inflammatory and

prejudicial nature of the evidence of Hamilton’s extraneous sexual offenses against

another child does tend to suggest a verdict on an improper basis. See Deggs, 646 S.W.3d

at 926.

Regarding the fourth factor, we consider whether there was a tendency of the

evidence to confuse or distract the jury from the main issue in this case, that is, whether

Hamilton committed the offense of indecency with a child younger than seventeen years

of age by engaging in sexual contact. The trial court mitigated the tendency of the

extraneous offense evidence to confuse or distract the jury by instructing them that they

cannot consider the extraneous offense testimony for any purpose unless they find

beyond a reasonable doubt that Hamilton committed those offenses, then they could

consider the evidence only for relevant matters. Then, the trial court identified the

elements the State was required to prove by its indictment, thereby redirecting the jury

to the main issues in the case. We find the fourth factor weighed in favor of admission.

The fifth factor refers to evidence such as highly technical or scientific evidence

that might mislead the jury because it is not equipped to weigh the probative force of the

evidence. See Gigliobianco, 210 S.W.3d at 641. Here, the evidence in question was neither

scientific nor technical. We find the fifth factor weighed in favor of admission.

Hamilton v. State Page 7
As to the sixth factor, the extraneous-offense direct testimony comprised thirteen

pages of transcript. The State presented testimony of six additional witnesses. We find

the presentation of the extraneous offense evidence did not consume an inordinate

amount of time. The last factor favored admission.

We find that the trial court, after balancing the Rule 403 factors, could have

reasonably concluded the probative value of the extraneous offense evidence was not

substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; Deggs,

646 S.W.3d at 927. We find that the trial court did not abuse its discretion in admitting

the extraneous offense evidence. Therefore, we overrule Hamilton’s first issue.

Failure to Conduct Motion for New Trial Hearing

In his second issue, Hamilton asserts the trial court erred in failing to conduct an

evidentiary hearing on his motion for new trial. He contends that a hearing was required

to develop the issues raised, including juror misconduct, because those matters could not

be determined from the record.

The defendant may file a motion for new trial before, but no later than thirty days

after, the date when the trial court imposes sentence in open court. TEX. R. APP. P. 21.4(a).

Within thirty days after the date the trial court imposes sentence in open court, but before

the court overrules any preceding motion for new trial, a defendant may, without leave

of court, file an amended motion for new trial. Id. R. 21.4(b). A defendant may not file

an amended motion for new trial after the thirty-day time limit, even with leave of court.

Hamilton v. State Page 8
State v. Moore, 225 S.W.3d 556, 558 (Tex. Crim. App. 2007). Additionally, the rules require

the defendant to present the motion for new trial to the trial court within ten days of filing

it. TEX. R. APP. P. 21.6. Merely filing the motion is insufficient to constitute presentment.

Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App. 2009).

Although not required by the rules of appellate procedure, caselaw mandates that,

when the motion is grounded in matters that are not already a part of the case record, the

motion must be sworn to by someone having personal knowledge of the facts contained

therein for the defendant to be entitled to a hearing. Bahm v. State, 219 S.W.3d 391, 395

(Tex. Crim. App. 2007); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). If

affidavits are not attached to the motion for new trial, there is no abuse of discretion in

denying the defendant an evidentiary hearing. Martin v. State, 97 S.W.3d 718, 720 (Tex.

App.—Waco 2003, pet. ref’d).

Hamilton was sentenced on April 27, 2023. He timely filed an unsworn motion

for new trial on May 26, 2023. The record shows that his original motion for new trial

was properly presented to the trial court, and he requested a hearing. See TEX. R. APP. P.

21.6. But his original motion for new trial was not supported by an affidavit. Therefore,

the trial court was not required to have a hearing on the original motion. See Martin, 97

S.W.3d at 720. Hamilton filed an amended motion for new trial on May 30, 2023. While

it was accompanied by a sworn affidavit of a juror, it was not timely. See Moore, 225

S.W.3d at 558. Furthermore, there is nothing in the record to indicate the amended

Hamilton v. State Page 9
motion was ever presented to the trial court. Therefore, the trial court did not err in

failing to have a hearing on the amended motion. See Stokes, 277 S.W.3d at 24; Martin, 97

S.W.3d at 720. We overrule Hamilton’s second issue.

Conclusion

Finding no merit in Hamilton’s issues on appeal, we affirm the trial court’s

judgment.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Smith, and
Justice Wright1
Affirmed
Opinion delivered and filed August 22, 2024
Do not publish
[CR25]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002,
75.003.
Hamilton v. State Page 10