April 2024: The Texas Thirteenth Court of Appeals Upholds Judgment in Victoria County Child Abuse Case – Alvarado v. State

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Overview of Alvarado v. State: Conviction and Appeal

On April 11, 2024, the Texas Thirteenth Court of Appeals in Corpus Christi-Edinburg upheld the conviction of Victoriano Cruz Alvarado for continuous sexual abuse of a child, a first-degree felony, in Victoria County.

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Initial Trial and Allegations

Alvarado was accused of sexually abusing his daughter from a very young age. The abuse was alleged to have started when she was five or six years old and continued until she was nine. The case came to light after the child disclosed the abuse to her mother, who took took her daughter to the hospital and notified hospital staff.

Key Issues on Appeal in Alvarado v. State

The appeal raised several issues, including the trial court’s decision not to allow Alvarado’s counsel to withdraw, the improper admittance of hearsay testimony, and the use of extraneous offense evidence.

The appellant argued that trial court’s actions—releasing the venire members and instructing them to return later absent an admonishment—ran afoul of Texas Code of Criminal Procedure Article 35.23.

Appellant also argued the trial court abused its discretion in allowing hearsay testimony regarding the results of the accuser’s SANE examination, specifically her chlamydia diagnosis.

Appellant also argued the trial court abused its discretion in allowing evidence concerning an extraneous offense involving appellant and Kathryn in contravention of the Texas Code of Criminal Procedure Article 38.37 and the Texas Rules of Evidence.

Admission of Hearsay Evidence

The court found no abuse of discretion with the trial court’s decision to admit evidence of the child’s sexually transmitted disease as it related directly to the allegations of sexual abuse. The court pointed out that such evidence was admitted without objection from a different witness later in the trial. The appellate court pointed to precedent that “The improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial.”

Admission of Extraneous Offense Evidence

With respect to the extraneous offense admitted over objection by the defense:

The trial court held a hearing outside the presence of the jury after the State notified the trial court that it sought to “get into testimony about [appellant] sexually assaulting [Kathryn] in the same exact way as alleged in the indictment.” During the hearing, Kathryn testified that appellant forcibly penetrated her anus during their dating relationship, while they were both minors. The trial court made the determination that the State had complied with article 38.37, concluded “this evidence could be relevant to prove intent, an element of the offense alleged in the indictment,” and stated it had conducted a Rule 403 balancing test, finding that “the probative nature is not outweighed by the prejudicial effect that this evidence would have on the jury.”

Appellant first argued that Kathryn’s uncorroborated testimony about an event “that was unreported to police, investigated, or . . . resulted in a conviction” was not permissible under article 38.37. However, the appellate court held that Kathryn’s testimony, however, need not be corroborated for the trial court to make its “beyond a reasonable doubt” Article 38.37 finding.

The court also reviewed the 403 factors and conducted its own balancing test. The court concluded the trial court reasonably found that the probative value of the extraneous-offense evidence was not substantially outweighed by the danger of unfair prejudice and the other factors in the rule. Accordingly, it held that the trial court did not abuse its discretion in admitting the extraneous-offense evidence.

Challenges in Representation

Alvarado’s appeal also contested the effectiveness of his counsel, specifically arguing that his lawyer’s motion to withdraw should have been granted and that this impacted his right to a fair trial. The appellate court found that the an inability to “get along” with trial counsel did not rise to the level of requiring a new attorney.

Legal Precedents and Impact

The court in Alvarado v. State “read no such limitation” within Article 35.23 with respect to a trial court’s ability to excuse venire members prior to being impaneled and sworn in. The court also held that there was no imposition of a requirement that venire members must be admonished prior to being impaneled and sworn in.

In addition, the court’s balancing test of the Rule 403 factors showed that courts will now allow even highly prejudicial evidence if it has some probative value.

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