David Torres v. the State of Texas

NUMBER 13-24-00129-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DAVID TORRES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 148TH DISTRICT COURT
OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Cron
Memorandum Opinion by Justice Peña

Appellant David Torres appeals his conviction for continuous sexual abuse of a

child under 14 years of age, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02.

The jury sentenced Torres to fifty years’ imprisonment. By one issue, Torres argues that
the trial court erred in permitting the complainant, E.M. 1, to testify that she wished Torres

to be sentenced to forty-five years’ imprisonment. We affirm.

I. BACKGROUND

On June 2, 2022, a Nueces County grand jury indicted Torres with one count of

continuous sexual abuse of a child under 14 years of age (Count 1), and two counts of

aggravated sexual assault of a child (Counts 2 and 3). See id. §§ 21.02, 22.021. The

indictment alleged that Torres committed various acts of sexual assault against a child,

E.M., from on or about September 19, 2015, through February 1, 2016.

The evidence adduced at trial showed that Torres was the “significant other” of

E.M.’s grandmother, whom E.M. considered as her mother. At the close of evidence, the

jury returned a verdict of guilty as to Count 1, and the State dismissed Counts 2 and 3.

During the punishment phase of trial, the State asked E.M., “What are you asking this jury

for?” Trial counsel objected before E.M. responded, but the trial court overruled the

objection. E.M. answered: “Forty-five years.” Trial counsel renewed his objection to this

testimony as not “appropriate,” asking that the trial court strike the response and grant a

mistrial. The trial court overruled trial counsel’s objection, and the jury sentenced Torres

to fifty years’ imprisonment. This appeal followed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Matew v. State, 655 S.W.3d 291, 300 (Tex. App.—Corpus Christi–Edinburg

1 To protect the identity of the complainant, we will refer to her by her initials. See TEX. CONST. art.

I, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity
and privacy throughout the criminal justice process”).

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2022, pet. ref’d) (citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). A

trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement. Id. (citation omitted); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.

App. 2003) (noting that an abuse of discretion occurs “only when the trial judge’s decision

was so clearly wrong as to lie outside that zone within which reasonable persons might

disagree” (citation omitted)).

For non-constitutional error, as asserted here, we apply Texas Rule of Appellate

Procedure 44.2(b) and disregard the error if it did not affect the defendant’s substantial

rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error had a

substantial and injurious effect or influence on determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Conversely, an error does not affect a

substantial right if we have “fair assurance that the error did not influence the jury or [that

it] had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

We examine everything in the record to assess harm, including any testimony or physical

evidence, the nature of the evidence supporting the verdict, the character of the alleged

error and how it might be considered with other evidence in the case, closing arguments,

and whether the State emphasized the alleged error. Motilla v. State, 78 S.W.3d 352,

355–56 (Tex. Crim. App. 2002).

Evidence is relevant if it has any tendency to make a fact consequence more or

less probable than it would be without the evidence. TEX. R. EVID. 401. This concept of

relevance has been incorporated into the relevant procedural rules governing the

admission of evidence during sentencing hearings. See Beham v. State, 559 S.W.3d 474,

478 (Tex. Crim. App. 2018). Specifically, Article 37.07, § 3(a) of the Texas Code of

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Criminal Procedure “governs the admissibility of evidence during the punishment stage

of a non-capital criminal trial.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App.

2007) (citation omitted). Article 37.07, § 3(a) provides that “evidence may be offered” in

the punishment stage of trial “as to any matter the court deems relevant to sentencing.”

TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). Evidence is “relevant to sentencing,” within

the meaning of the statute, if the evidence is “helpful to the jury in determining the

appropriate sentence for a particular defendant in a particular case.” Rodriguez v. State,

203 S.W.3d 837, 842 (Tex Crim. App. 2006). “In non-capital felony cases, the general

rule remains that the State may present evidence as to any matter the trial court, in the

legitimate use of its discretion, may deem relevant to sentencing.” Boone v. State, 60

S.W.3d 231, 238 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

As to victim impact testimony, the Texas Court of Criminal Appeals has held that

relevancy depends upon whether the testimony has “some bearing on the defendant’s

‘personal responsibility and moral guilt.’” Stavinoha v. State, 808 S.W.2d 76, 78–79 (Tex.

Crim. App. 1991). Stated differently, the relevance of victim impact testimony in a non-

capital felony case requires that such testimony have a “close, direct link to the

circumstances of the case.” Brooks v. State, 961 S.W.2d 396, 399 (Tex. App.—Houston

[1st Dist.] 1997, no writ); see also Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App.

1998) (“We recognize that this standard does not draw a bright and easy line for

determining when evidence concerning the victim is admissible and when it is not. Trial

judges should exercise their sound discretion in permitting some evidence about the

victim’s character and the impact on others’ lives while limiting the amount and scope of

such testimony.”).

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Absent a showing of unreasonable prejudice, we will not find an abuse of discretion

in admitting evidence over a relevancy objection unless we “can say with confidence that

by no reasonable perception of common experience can it be concluded that proffered

evidence has a tendency to make the existence of a fact of consequence more or less

probable that it would otherwise be.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1990), on reh’g (June 19, 1991) (en banc).

III. DISCUSSION

Torres argues that E.M.’s testimony that she wanted him to be sentenced to forty-

five years’ imprisonment was admitted erroneously and had a substantial and injurious

effect on the jury’s decision to sentence him to fifty years’ imprisonment. See King, 953

S.W.2d at 271. In support of this argument, Torres relies mainly on the decision in

Sattiewhite v. State, wherein the Texas Court of Criminal Appeals stated that “[t]he

argument that a witness may recommend a particular punishment to the trier of fact has

been soundly rejected.” 786 S.W.2d 271, 290 (Tex. Crim. App. 1989).

Sattiewhite, however, is inapposite. The holding of Sattiewhite is limited to

situations where a party asks for a sentencing recommendation from an expert witness.

See id. (warning against a “battle of the experts”). The Texas Court of Criminal Appeals

has subsequently affirmed the limited holding of Sattiewhite. See Fryer v. State, 68

S.W.3d 628, 630 (Tex. Crim. App. 2002) (“Our analysis in Sattiewhite, then, focused

specifically on the unsuitability of expert testimony on the issue of appropriate

punishment.”); see also Taylor v. State, 109 S.W.3d 443, 454 (Tex. Crim. App. 2003) (“A

punishment recommendation from a non-victim—especially an expert—entails a situation

significantly different from a recommendation from the victim, who, at least arguably, was

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in a position to give an opinion based rationally upon his observations of the crime itself

and who is the one who suffered from the crime in the first place.” (citing Fryer, 68 S.W.3d

at 631, 631 n.22)). Critically, here, the complained-of testimony comes from the victim

named in the indictment. See Bain v. State, 115 S.W.3d 47, 51 (Tex. App.—Texarkana

2003, pet. ref’d) (“Trial courts limit victim impact testimony to the victim named in the

indictment.”). Accordingly, the trial court did not err in permitting such testimony. See,

e.g., Hines v. State, 396 S.W.3d 706, 710 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(analyzing a case where the child sex abuse victim testified that she hoped that the

defendant received the maximum penalty and noting that Fryer likely meant that such

testimony was permitted).

Regardless, we find that Torres’s claim fails because he cannot show substantial

harm on this record. See King, 953 S.W.2d at 271. In Hines, for example, the appellant

was convicted of sexual assault of a child, and the child testified that she “would like the

maximum sentence,” which was twenty years’ imprisonment. 396 S.W.3d at 710. The

Fourteenth Court of Appeals concluded that because the jury sentenced him to twelve

years’ imprisonment, the appellant could not show substantial harm:

It likely came as no surprise to the jury that the complainant thought
appellant should receive a sentence in at least the range stated. . . . The
jury assessed a punishment of twelve years in prison, which was well below
the maximum sentence the complainant stated he would like to see given
and which was different than the ‘formula’ complainant suggested that
would have resulted in a sentence of eight years. Appellant argues without
legal citation that, because the twelve-year sentence assessed lies between
eight and twenty, the jury obviously was influenced by the complainant’s
testimony. However, other than the fact that the sentence fell somewhere
between the two numbers mentioned by the complainant, there is no
indication that the jury reached its verdict based on the complainant’s stated
wishes. The complainant’s testimony on this point was brief, and the
prosecutor made no specific request of the jury and did not refer to the

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complainant’s testimony about sentencing in the State’s closing argument.

On this record, the trial court’s alleged error in permitting the
complainant to testify as to the punishment he would like appellant to
receive had no more than a very slight effect on the jury’s determination of
punishment. Consequently, presuming there was error, such error was
harmless. We overrule appellant’s second issue.

Id. at 711 (citations omitted).

Here, the record contains only one reference to the complained-of recommended

sentence of forty-five years’ imprisonment, which E.M. briefly provided at the end of her

direct examination during the punishment phase of trial. The State did not further refer or

otherwise reinforce E.M.’s recommended sentence. Rather, during closing, the State

based its retribution argument on the “effects” the crime had on E.M., including her

“mental health problems,” “anxiety,” and her need to take medications. The State

concluded its closing by asking the jury to sentence Torres to “anywhere between 40 and

50 years in prison.” The jury sentenced Torres to fifty years’ imprisonment. Based on

“everything in the record” before us, Motilla, 78 S.W.3d at 355, as in Hines, we conclude

that any error committed by the trial court was harmless because the “alleged error in

permitting the complainant to testify as to the punishment [s]he would like appellant to

receive had no more than a very slight effect on the jury’s determination of punishment.”

396 S.W.3d at 711; see King, 953 S.W.2d at 271; Solomon, 49 S.W.3d at 365. We

overrule Torres’s sole issue.

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IV. CONCLUSION

For all the above reasons, we affirm the judgment of the trial court.

L. ARON PEÑA JR.
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
7th day of August, 2025.

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