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Date: 12-30-2020

Case Style:

Stacy Davidson v. The State of Texas

Case Number: 05-19-01162-CR

Judge: Bill Whitehill

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: Greg Willis
John R. Rolater Jr.

Defendant's Attorney:

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Dallas, TX - Criminal defense lawyer Continuous Sexual Abuse of Young Child or Children

Appellant and AE�s family were neighbors for many years. From the summer
of 2014, when AE was five years old, and into 2015, appellant and his wife babysat
AE and her brother on several occasions when AE�s mother was out of town and her
father worked an evening job. At the time, appellant worked from home while his
wife worked outside the home.
AE�s father testified he usually dropped the children off around 3:45-4 pm on
Fridays and typically, only appellant was home.
AE testified that she didn�t take naps at home, but appellant told her to take a
nap on the couch whenever he babysat. AE�s brother testified only AE was told to
take a nap, and that he and appellant�s child were told to play upstairs during AE�s
naptime. AE�s mother said she told appellant that AE didn�t need to have a nap.
During the times AE was told to take a nap, appellant would have her lay
down on the couch, close the blinds, pull down her shorts, put up her knees, spread
them apart and start touching or poking her on her private part with his finger. This
happened at least three different times. When he touched her his hands �felt like
something wet but not like if you squeeze�like, it felt like if you squeezed the
finger, like water would come out of it.� The prosecutor asked AE if it felt
completely wet or something different. AE testified it �Felt like something
different.� Appellant would wash his hands before his wife arrived at the house.
State�s Exhibit 23, a picture of K-Y Jelly that AE testified was something she
saw in appellant�s house, was admitted into evidence without objection. AE wasn�t
sure what it was, but she saw it in appellant�s house, specifically in the downstairs
guest bathroom drawer or on the counter.
Appellant�s ex-wife was asked about her sex life with Appellant. Appellant
objected and the trial court excused the jury to hear the parties� arguments.
The arguments concerned evidence of sex toys, K-Y Jelly, and appellant�s sex
life with his ex-wife. Appellant objected under rule 404, 404(b), 403, and 402. The
trial court sustained the objection to the sex toys but overruled appellant�s objections
to the K-Y Jelly and his sex life with his ex-wife. In so ruling, the trial judge said,
�I think the K-Y Jelly is certainly relevant, as is the question of their sexual habits
in terms of use of the K-Y Jelly and the frequency. I will certainly find that that is
not outweighed by the prejudicial effect that it might have.�
A. Was the complained-of evidence erroneously admitted?
No. Because the subject evidence was relevant to corroborate AE�s testimony
and rebut a fabrication inference and the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, the trial court did not
abuse its discretion in admitting it.
B. Standard of Review and Applicable Law
We review the trial court�s decision to admit or exclude evidence, as well as
its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion standard.
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).
Under Rule 403, a trial court may exclude relevant evidence if its probative
value is substantially outweighed by the danger of �unfair prejudice, confusing the
issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.� TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim.
App. 2009).
�Rule 403 favors admission of relevant evidence and carries a presumption
that relevant evidence will be more probative than prejudicial.� Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002).
Evidence is unfairly prejudicial when it has an undue tendency to suggest an
improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex.
Crim. App. 2000).
When conducting a Rule 403 analysis, the trial court must balance:
(i) the inherent probative force of the proffered item of evidence along with
(ii) the proponent�s need for that evidence against
(iii) any tendency of the evidence to suggest [a] decision on an improper basis,
(iv) any tendency of the evidence to confuse or distract the jury from the main
(v) any tendency of the evidence to be given undue weight by a jury that has
not been equipped to evaluate the evidence�s probative force, and
(vi) the likelihood that presenting 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). These factors may well blend
together in practice. Id.
Evidence is relevant if it has any tendency to make the existence of any
consequential fact more or less probable than it would be without the evidence. See
TEX. R. EVID. 401; Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991).
To be relevant, evidence must be both material�that is, it must be offered for
a proposition that is of consequence to determining the case�and probative, such
that it makes the fact�s existence fact more or less probable than it would otherwise
be without the evidence. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016).
That is, to be relevant proffered evidence must �have influence over a
consequential fact.� Mayes, 816 S.W.2d at 84. Relevant evidence need not, by itself,
prove or disprove a particular fact as long as it provides at least a �small nudge�
toward proving or disproving a material fact. See Stewart v. State, 129 S.W.3d 93,
96 (Tex. Crim. App. 2004). In determining relevance, courts must examine the
purpose for which particular evidence is being introduced. Layton v. State, 280
S.W.3d 235, 240 (Tex. Crim. App. 2009). �It is critical that there is a direct or logical
connection between the actual evidence and the proposition sought to be proved.�
C. The Gigliobianco Factors Applied
After the trial court ruled that the evidence was admissible, appellant�s exwife testified they had sex infrequently�only once or twice a year, and then only in
the upstairs master bedroom. They used K-Y jelly when they had sex, and she found
K-Y jelly in the master bedroom, downstairs guest bathroom, and under the couch
where AE took her naps.
We note at the outset that the evidence is relevant. See Brown v. State, 381
S.W.3d 565, 578 (Tex. App.�Eastland 2012, no pet.) (evidence of lubricant relevant
in child sex abuse case). And applying the Gigliobianco factors to this case, we
conclude that appellant has not shown that the evidence�s probative value was
substantially outweighed the danger of unfair prejudice. See Gigliobianco, 210
S.W.3d at 641�42. In considering the evidence�s inherent probative force, we
consider how compellingly it tends to make a fact of consequence more or less
probable. See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010)
(�probative value� refers to how strongly evidence makes existence of fact more or
less probable).
Here, AE testified about the K-Y jelly without objection. The ex-wife�s
testimony provided context. That the lubricant was found in locations other than the
location where appellant and his ex-wife had sex, including under the couch where
AE was assaulted, tends to make appellant�s commission of the offense more
probable. The infrequency of appellant�s sexual relations with his wife also shows
that the K-Y jelly downstairs was not for use with her.
AE testified that appellant�s hands were wet when he assaulted her, she saw
appellant go into a downstairs bathroom�the same one where she saw the K-Y jelly,
and that she heard appellant wash his hands after assaulting her. This testimony
shows that appellant used the lubricant to facilitate the offense.
Moreover, appellant�s ex-wife�s testimony was strongly probative because it
corroborated AE�s testimony and rebutted appellant�s suggested inference of
fabrication. For example, in appellant�s opening statement, he told the jury:
I don�t have to prove that [AE] is a liar . . . I will say that she is wrong.
I don�t know why. But I don�t have to prove that she is lying. I don�t
have to prove that she is mistaken. They have to prove that she is
Appellant also said that AE�s parents wanted him convicted and that the �story
changed� after his ex-wife told a friend why she thought the charges were false.
Furthermore, on cross-examination, appellant asked AE where the K-YJelly was in
the downstairs bathroom and why she was looking in the drawers. Thus, from
opening statements, appellant challenged AE�s credibility and implied that her
claims were fabricated.
In addition, appellant�s opening statement and cross-examination of AE,
together with the fact that there was no physical evidence establishing the assault
shows the State�s need for the evidence was strong. Therefore, the first two
Gigliobianco factors weigh heavily in favor of the evidence�s admission. See
Gigliobianco, 210 S.W.3d at 641�42.
As to the third factor, we are not persuaded that the evidence had the potential
to cause unfair prejudice. Unfair prejudice may be created by the tendency to prove
some adverse fact not properly at issue or to unfairly excite emotions against the
defendant. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1991).
Appellant argues that the testimony tended to create sympathy for AE and that
the jury would interpret the infrequency of sexual relations with his wife as an
indication that he is a child molester. But appellant does not explain how his sexual
relations with his ex-wife might engender sympathy for AE. Nor does he explain
the supposed nexus between the frequency or infrequency of marital relations and
child molestation. Indeed, the State never argued that there was such a relationship
to the charged offense. This factor is neutral at best.
As to the fourth and fifth factors, we do not perceive how the evidence would
confuse or distract the jury, and the evidence was not of a scientific or technical
character such that it might have been given undue weight by an untrained jury. See
Gigliobianco 210 S.W.3d at 641�42.
Finally, the testimony at issue comprised only five pages out of approximately
365 pages of testimony and was not repetitive. The State�s questions to the ex-wife
focused on who was using, or more specifically, not using, the K-Y jelly and its
specific placement in the downstairs bathroom and under the couch where AE was
assaulted. Those were questions only the ex-wife could address. Thus, analysis of
the sixth factor demonstrates that the evidence did not consume an inordinate amount
of time. See id.
The evidence may have been prejudicial; that is the nature of evidence. Rule
403, however, contemplates excluding evidence only when there is a �clear
disparity� between the offered evidence�s prejudice and its probative value.
Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
Considering the standard of review, the presumption favoring admissibility of
relevant evidence, and the Gigliobianco factors, we cannot conclude that the trial
court abused its discretion in overruling appellant�s Rule 403 objection. See
Hammer, 296 S.W.3d at 568 (�Because Rule 403 permits the exclusion of admittedly
probative evidence, it is a remedy that should be used sparingly, especially in �he
said, she said� sexual-molestation cases that must be resolved solely on the basis of
the testimony of the complainant and the defendant.�(footnote omitted)).

Outcome: We resolve appellant�s sole issue against him and affirm the trial court�s

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