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In October before Halloween, he had gone to visit his father in Imperial. His father picked him up and took him to his grandmother's house. They went riding around in his father's car with Appellant. Peter sat in the left rear seat behind his father and Appellant sat in the backseat next to him.
Peter fell asleep in the car and Appellant woke him up by touching him. Appellant was moving his left hand from one leg to the other, then to his private, and then up to his chest.
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Appellant was touching Peter over his clothes rather than under. Peter pushed Appellant's hand away and went back to sleep.
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When he woke up again, Appellant was trying to kiss him. Peter then told his father that he needed to go to the bathroom. They stopped at the park and his father walked with him to the restroom. His father asked what had happened and Peter told him that Appellant was touching him and had tried to kiss him. Aida Rodriguez testified for the defense. She recalled that when they picked up Appellant, he was so drunk that he could not open the car door. After they bought the beer in Grandfalls, Bustamantes gave beer to her, Appellant, and Peter.
She told Bustamantes that Peter should not have beer but Bustamantes said he would do whatever he wanted with his children. During the drive, she heard Peter laughing and telling Appellant to stop so she turned around and looked in the backseat.
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She saw Appellant tickling Peter's stomach but she did not see Appellant touch Peter's private. Bustamantes told Appellant to stop but he continued to tickle Peter. Rodriguez was in custody at the time of trial because she had been on federal probation for possession of marihuana and had violated the terms of probation. But the State showed Rodriguez a copy of the judgment of conviction revealing that she had not been convicted of marihuana possession but had been convicted of making a materially false, fictitious, or fraudulent statement.
When confronted with this discrepancy, Rodriguez said she would not snitch out her friends and the federal authorities would not let her just walk away. Peter's mother, Maria Villa, testified at trial that Peter had been molested when he was four years old by a sixteen-year-old whose family attended her mother's church.
After the incident, she explained to Peter about good touches and bad touches but they had not had many conversations about the molestation. Following the incident in October of , she asked Peter whether he remembered the prior incident and he said he did not. Berta Bustamantes, who is Appellant's sister and Jacob Bustamantes' mother, testified that she sometimes felt pressure over this case because she felt torn between Appellant and Jacob.
She denied telling Appellant's attorney that Jacob had said he did not really see anything. She admitted, however, that Jacob had threatened her by saying she would not see her grandchildren again if she "said anything. The jury rejected Appellant's defense and found him guilty of attempted indecency with a child. At the punishment phase, the State introduced evidence that Appellant had been previously convicted of aggravated assault with a deadly weapon in , of aggravated robbery in , and of burglary in Peter's mother testified that his behavior had changed since the incident and he had not done well in school to the point that it was necessary for him to repeat the sixth grade.
Daneen Milam, a certified neuropsychologist, examined Appellant and testified on his behalf. He had suffered a head injury in when he fell out of a vehicle. As a result of this accident, he had plates put into his head and began to experience seizures and blackouts. He was in an auto accident in which injured his spine and caused him to be in substantial pain.
His IQ is 75 which is probably less than before the accidents. His motor skills are impaired and he cannot think clearly. Milam concluded that Appellant is an alcoholic which is problematic because he is on seizure and pain medications.
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Doctors also suspect that Appellant has Parkinson's disease although a definitive diagnosis has not been made. Milam believed that Appellant had suffered a seizure as the result of being struck by Jacob Bustamantes and that partially explained his behavior when he was arrested.
She admitted that intoxication could have contributed to his post-arrest behavior. The jury found the enhancement paragraph true and assessed his punishment at imprisonment for a term of twenty years. On appeal, Appellant raises five issues pertaining to the admission of his statement to Deputy Tucker regarding the Mexican Mafia, the exclusion of Dr. Milam's expert testimony at the guilt-innocence phase, and a comment by the bailiff to Peter Parker. In Points of Error One and Two, Appellant contends the trial court erred by refusing to sustain his objections or grant his motion for mistrial pertaining to Deputy Tucker's testimony that Appellant made a threat following his arrest.
He argues that the statement was not disclosed as required by the trial court's discovery order and should have been excluded. He further asserts that the statement amounted to an extraneous offense of which he was not given notice as required by Tex. Finally, he maintains that the extraneous offense is not admissible under Rule b and should have been excluded under Tex. Appellant told Tucker he had better watch his back because he ran with the Mexican Mafia. Appellant objected to the testimony after it had been elicited on the grounds that the statement was not included in Deputy Tucker's report, it constituted an extraneous offense, and it was prejudicial.
The court overruled these objections, refused Appellant's request for an instruction to disregard, and denied his motion for a mistrial. Appellant did not object at trial that the prosecutor had not complied with the court's discovery order. Defense counsel's statement that the testimony was not in the deputy's report did not clearly inform the trial court that the State had violated the discovery order. Thus, the argument made on appeal is waived. Even if the objection is sufficient to preserve the complaint, the argument is without merit.
The discovery order required the State to produce "[a]ll statements by the Defendant pursuant to Tex. Code Crim. State , 38 S. State , S. Article See Rhode Island v. Innis , U. Although Appellant was in custody, his statement was not the product of express questioning or its functional equivalent.
See id. Consequently, it does not fall within the ambit of Article Appellant also complains that the State did not provide him notice of its intent to introduce this extraneous offense during the guilt-innocence phase of trial. Appellant did not object at trial that the State had not given him notice of the extraneous offense as required by Rule b. Counsel's statement that the threat was not in the deputy's report is not sufficiently specific to inform the trial court that the State had not included the threat in its Rule b written notice.
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Therefore, the argument is waived. State , 80 S. But counsel did preserve Appellant's argument that the threat is an inadmissible extraneous offense. A trial court's admission of extraneous offenses is reviewed for an abuse of discretion. Prible v.
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If the trial judge's ruling is within the zone of reasonable disagreement, there is no abuse of discretion. We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State , 85 S. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of extraneous crimes or bad acts that a defendant may have perpetrated cannot be introduced at the guilt-innocence phase to show the defendant acted in conformity with his criminal nature and therefore committed the offense for which he is on trial. But extraneous offenses may be admitted for other purposes, such as proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The list of other purposes identified in Rule b is not exclusive. Rogers v.
Appellant focuses most of his argument on the portion of the statement in which Appellant claimed affiliation with the Mexican Mafia and he cites to cases where evidence of gang affiliation has been permitted under Rule b to prove motive or intent. See e.
State , 7 S. Appellant's claim that he ran with the Mexican Mafia is part and parcel of his threat against Deputy Tucker. Appellant did not simply state that Deputy Tucker should watch his back but told him that he should watch his back because Appellant ran with the Mexican Mafia. Thus, Appellant used the Mexican Mafia reference to give more weight to his threat.
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