Todd Allen Guedea v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00366-CR

TODD ALLEN GUEDEA,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 413th District Court
Johnson County, Texas
Trial Court No. DC-F202200302

OPINION

Todd Allen Guedea was charged by grand-jury indictment with one count of

continuous sexual abuse of a young child and two counts of failure to register as a sex

offender. Prior to trial, Guedea filed a motion to sever the one count of continuous sexual

abuse of a young child from the two counts of failure to register as a sex offender. The

trial court granted Guedea’s motion, and a jury trial ensued on the continuous-sexual-

abuse-of-a-young-child charge.
Guedea was found guilty, and the jury assessed his punishment at life in the

penitentiary.

In two issues, Guedea contends that the trial court: (1) abused its discretion by

admitting evidence of prior sexual assaults under article 38.37 of the Code of Criminal

Procedure and (2) erred in assessing costs against an indigent defendant without a

hearing. We affirm as modified.

Issue One

In his first issue, Guedea argues that the trial court abused its discretion by

admitting the testimony of V.B., who described being the victim of multiple extraneous

instances of sexual assault perpetrated by Guedea around 1990, when she was between

five and seven years old, and which resulted in Guedea’s conviction for aggravated

sexual assault of a child.

AUTHORITY

At the trial of a defendant accused of continuous sexual abuse of a young child,

evidence of certain extraneous offenses committed by the defendant, including

aggravated sexual assault of a child, is admissible under section 2 of article 38.37 “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; see Fahrni v. State, 473 S.W.3d 486, 492 (Tex. App.—Texarkana

2015, pet. ref’d). Before evidence under article 38.37 is introduced, the trial judge must

Guedea v. State Page 2
conduct a hearing outside the presence of the jury to “determine that the evidence likely

to be admitted at trial will be adequate to support a finding by the jury that the defendant

committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC.

ANN. art. 38.37, § 2-a.

Under article 38.37, evidence of extraneous offenses against other children is

admissible even if such evidence would be otherwise inadmissible under Rule of

Evidence 404 or 405. Id. However, the admission of evidence under article 38.37 “is

limited by Rule 403’s balancing test, which permits admission of evidence as long as its

probative value is not substantially outweighed by its potential for unfair prejudice.”

Bradshaw v. State, 466 S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref’d); see TEX. R.

EVID. 403.

Rule of Evidence 403 allows for the exclusion of relevant evidence if the probative

value of the evidence is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence. TEX. R. EVID. 403.

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.” Valadez v. State, 663 S.W.3d 133, 142 (Tex. Crim. App. 2022) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006)). Relevant evidence is

Guedea v. State Page 3
presumed to be more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169

(Tex. Crim. App. 1997). However, “[e]vidence may be unfairly prejudicial if it prompts

‘the jury’s hostility or sympathy for one side without regard to the logical probative force

of the evidence.’” Valadez, 663 S.W.3d at 142 (quoting Gigliobianco, 210 S.W.3d at 641).

Thus, “a court must balance the probative force of the proffered evidence and the

proponent’s need for it against any tendency of the evidence to suggest a decision on an

improper basis.” Id. at 142.

A trial judge has substantial discretion in balancing probative value and unfair

prejudice. See Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). All testimony

and physical evidence will likely be prejudicial to one party or the other. Webb v. State,

575 S.W.3d 905, 911 (Tex. App.—Waco 2019, pet. ref’d). It is only when there exists a clear

disparity between the degree of prejudice of the offered evidence and its probative value

that Rule 403 is applicable. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).

When conducting a Rule 403 balancing test, courts should consider: (1) the

evidence’s probative force; (2) the proponent’s need for the evidence; (3) the evidence’s

potential to suggest a decision on an improper basis; (4) the evidence’s tendency to

distract the jury from the main issues; (5) any tendency for the jury to give the evidence

undue weight because it has not been fully equipped to evaluate the evidence’s probative

force; and (6) the likelihood that presenting the evidence will consume an inordinate

amount of time. See Gigliobianco, 210 S.W.3d at 641–42.

Guedea v. State Page 4
DISCUSSION

In his brief, Guedea contends that the 1990 sexual offenses described by V.B. and

perpetrated by Guedea were so remote that the prejudicial effect outweighed the

probative value of the evidence. Remoteness can lessen the probative value of

extraneous-offense evidence because the passage of time allows people and things to

change. Gaytan v. State, 331 S.W.3d 218, 226 (Tex. App.—Austin 2011, pet. ref’d).

However, remoteness alone is not sufficient to render an extraneous offense excludable

under Rule 403. Id. Evidence of an extraneous sexual offense against a child admitted

under article 38.37, section 2(b) is probative of the defendant’s character or propensity to

commit sexual assaults on children. See Bradshaw, 466 S.W.3d at 883. We do not believe

that the “remoteness of the extraneous offenses rendered the probative value of this

evidence so weak as to render this evidence inadmissible under Rule 403.” Harty v. State,

552 S.W.3d 928, 935 (Tex. App.—Texarkana 2018, no pet.); see Gaytan, 331 S.W.3d at 226.

We conclude that the evidence relating to the extraneous offenses offered by the State

were probative of Guedea’s character or propensity to sexually abuse young female

children. As a result, we conclude that this factor weighs strongly in favor of admission.

The second factor, the proponent’s need for the evidence, weighs strongly in favor

of admission. Without V.B.’s testimony, the State’s case would come down to Guedea’s

word against the word of the child victim, who was twelve years old at the time of trial.

See Hammer, 296 S.W.3d at 568 (“Rule 403 . . . should be used sparingly, especially in ‘he

Guedea v. State Page 5
said, she said’ sexual-molestation cases that must be resolved solely on the basis of the

testimony of the complainant and the defendant.”).

Guedea also argues that the extraneous sexual conduct coupled with the trial

court’s refusal to give a limiting instruction may lead the jury to convict on an improper

basis. The extraneous offenses could suggest a verdict on an improper basis, due to the

“inherently inflammatory and prejudicial nature of crimes of a sexual nature committed

against children.” Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d).

However, the trial court instructed the jury that it could only consider V.B.’s testimony

for proper purposes:

The Defendant is on trial solely on the charges contained in the
indictment. Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in conformity
therewith. However, such evidence may be admissible for other purposes,
such as intent, motive, plan, purpose, scheme, design, preparation, absence
of mistake or rebuttal of a defensive theory.

You are instructed that if there is any evidence before you in this case
regarding the Defendant committing other crimes, wrongs, or acts against
another child who is an alleged victim of a sexual offense(s) not contained
in the indictment in this case, you cannot consider such evidence for any
purpose unless you find and believe beyond a reasonable doubt that the
defendant committed such other crimes, wrongs, or acts against the other
child, if any, and even then you may only consider the same in determining
its bearing on relevant matters, including: (1) the character of the defendant
and (2) acts performed in conformity with the character of the defendant.

You are further instructed that if there is any evidence before you in
this case regarding the Defendant committing other crimes, wrongs, or acts
against the child who is the victim of the alleged offense in the indictment
in this case, you cannot consider such evidence for any purpose unless you
find and believe beyond a reasonable doubt that the defendant committed
Guedea v. State Page 6
such other crimes, wrongs, or acts against the child, if any, and even then
you may only consider the same in determining 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, and for no other purpose.

The State has introduced evidence of extraneous matters other than
those charged in the indictment in this case. You are instructed that said
evidence was admitted only for the purpose of showing intent, motive,
plan, purpose, scheme, design, preparation, absence of mistake or rebuttal
of a defensive theory, if it does. You are further charged that if there is any
evidence before you in this case tending to show that the Defendant
committed the extraneous transaction, you cannot consider said evidence
for any purpose unless you first find and believe beyond a reasonable
doubt, that the Defendant committed said extraneous transaction. If you
find and believe beyond a reasonable doubt, from such testimony that the
Defendant committed the extraneous transaction, you may consider the
same for the purpose for which it was introduced, namely as evidence of
intent, motive, plan, purpose, scheme, design, preparation, absence of
mistake or rebuttal of a defensive theory, if any, and for no other purpose.

We presume that the jury obeyed the court’s instructions. See Resendiz v. State, 112 S.W.3d

541, 546 (Tex. Crim. App. 2003). Because the trial court’s instruction in the charge

attempted to mitigate the improper influence of this evidence, the third factor only

somewhat favors exclusion. See Banks v. State, 494 S.W.3d 883, 894 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d); see also Webb, 575 S.W.3d at 912.

Guedea does not address any of the remaining Gigliobianco factors on appeal.

Therefore, we cannot say that the complained-of evidence tended to distract the jury from

the main issue of whether Guedea abused the victim as alleged in the indictment; that the

jury gave the evidence undue weight because it had not been fully equipped to evaluate

the evidence’s probative force, Gaytan, 331 S.W.3d at 228 (noting that matters easily
Guedea v. State Page 7
comprehensible to laypeople, like evidence of extraneous sexual conduct, are not prone

to the tendency to mislead); or that the evidence consumed an inordinate amount of

time. 1 See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (noting that

extraneous-offense evidence was not too time consuming where testimony amounted to

“less than one-fifth” of trial testimony).

Based on the foregoing, we cannot say that there is a “clear disparity” between the

danger of unfair prejudice posed by the complained-of evidence and its probative value.

See Hammer, 296 S.W.3d at 555. Thus, we cannot conclude that the trial court abused its

discretion by admitting the complained-of evidence. See TEX. CODE CRIM. PROC. ANN. art.

38.37, § 2(b); TEX. R. EVID. 403; Gigliobianco, 210 S.W.3d at 642–43.

In addition, Guedea also complains that the trial court did not conduct an

appropriate balancing test under Rule 403 and that the testimony provided by V.B. before

the jury contained additional facts not ruled on by the trial court during the article 38.37

hearing. The trial court stated on the record that it did a Rule 403 balancing test on the

complained-of evidence. See Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999). A

trial court is not required to place the results of its balancing test on the record. Walker v.

State, 4 S.W.3d 98, 103 (Tex. App.—Waco 1999, pet. ref’d) (citing Rojas v. State, 986 S.W.2d

241, 250 (Tex. Crim. App. 1998)). And a trial court is presumed to engage in the required

V.B.’s testimony took up approximately thirteen pages out of the approximately 124 pages of the
1

State’s case-in-chief.

Guedea v. State Page 8
balancing test once a party objects on the ground of Rule 403 and the trial court rules on

the objection unless the record indicates otherwise. Id.

Furthermore, Guedea did not object in the trial court when V.B. testified during

the State’s case-in-chief to additional facts not mentioned during the article 38.37 hearing.

Thus, Guedea failed to preserve his complaint for appellate review. See TEX. R. APP. P.

33.1(a). We overrule Guedea’s first issue on appeal.

Issue Two

In his second issue, Guedea argues that the trial court improperly assessed fines,

costs, and other fees without conducting a hearing on his indigence. Specifically, Guedea

asserts that the child-abuse-prevention fine, court costs for the preparation of the clerk’s

record, and reimbursement for court-appointed attorney’s fees should be deleted from

the judgment and the corresponding bill of costs.

Here, the November 2, 2022 certified bill of costs indicates that a $100 child-abuse-

prevention fee was assessed and that Guedea owed an amount “TBD” with regard to

reimbursement for court-appointed attorney’s fees. Additionally, the February 28, 2023

certified bill of costs indicates that Guedea owes $105 for the preparation of the clerk’s

record.

Guedea had appointed counsel in the trial court because of his indigence, and he

has appointed counsel in this appeal. The State concedes that Guedea is indigent and

that the fees complained about in this issue should be deleted.

Guedea v. State Page 9
Because Guedea was indigent and is presumed to be indigent absent record proof

of a material change in his circumstances, the judgment and corresponding November 2,

2022 and February 28, 2023 bills of costs incorrectly assessed the $100 child-abuse-

prevention fee, reimbursement for court-appointed attorney’s fees, and the $105 fee for

the preparation of the clerk’s record as court costs. See TEX. CODE CRIM. PROC. ANN. arts.

26.04(p), 26.05(g); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Watkins v.

State, 333 S.W.3d 771, 781–82 (Tex. App.—Waco 2010, pet. ref’d). Accordingly, we sustain

Guedea’s second issue and modify the judgment and corresponding November 2, 2022

and February 28, 2023 bills of costs to delete the $100 child-abuse-prevention fee,

reimbursement for court-appointed attorney’s fees, and the $105 fee for the preparation

of the clerk’s record.

Conclusion

We affirm the trial court’s judgment as modified.

MATT JOHNSON
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissenting)
Affirmed as modified
Opinion delivered and filed December 14, 2023
Publish
[CRPM]
Guedea v. State Page 10