Christopher Joseph Babcock v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00250-CR
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CHRISTOPHER JOSEPH BABCOCK, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 25,291
________________________________________________________________________

MEMORANDUM OPINION

Christopher Joseph Babcock (“Babcock”) appeals his conviction for sexual

assault of a child, with one prior felony enhancement. See Tex. Penal Code Ann. §

22.011(a)(2). In two issues, Babcock complains that the trial court erred when it

admitted hearsay statements, and when it admitted evidence of extraneous offenses

that he was not charged with. As discussed below, we affirm the trial court’s

judgment.

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Background

In 2017, a Polk County grand jury indicted Babcock on a charge of

intentionally or knowingly causing the penetration of the female sexual organ of a

child younger than seventeen (17) years old on or about October 13, 2016. See id. In

2023, Babcock’s jury trial began, and the State called seven witnesses, including the

victim, “Jana,” to testify. 1 Babcock then called two witnesses to testify in his
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defense, including his daughter and wife. The jury ultimately found Babcock guilty

of sexual assault of a child.

Babcock elected for the trial judge to assess punishment, and at the

punishment phase of trial the State presented seven witnesses. Babcock presented

four witnesses. After closing arguments, the trial judge sentenced Babcock to forty-

five (45) years in prison.

This appeal followed.

1We use pseudonyms to refer to the victim, a minor, and we refer to her family

members by their relationship to the victim to protect the victim’s privacy. See Tex.
Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness
and with respect for the victim’s dignity and privacy throughout the criminal judicial
process”).
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Standard of Review

Appellate courts review a trial court’s ruling regarding the admission or

exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d

425, 435 (Tex. Crim. App. 2011). Under the abuse of discretion standard, a trial

court’s ruling will only be deemed an abuse of discretion if it is so clearly wrong as

to lie outside “the zone of reasonable disagreement,” or is “arbitrary or

unreasonable.” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002) (citation

omitted) (discussing zone of reasonable disagreement); State v. Mechler, 153

S.W.3d 435, 439 (Tex. Crim. App. 2005) (citation omitted) (discussing arbitrary and

unreasonable). The ruling of the trial court will be upheld provided that the trial

court’s decision “is reasonably supported by the record and is correct under any

theory of law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex.

Crim. App. 2005) (citation omitted). Additionally, an appellate court reviews the

trial court’s ruling considering the record before the court “at the time the ruling was

made.” Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (citations

omitted).

Relevant evidence is generally admissible. Tex. R. Evid. 402. Rules of

Evidence 404 and 403 govern the admission of evidence. See id. 403, 404. Under

Rule 403 of the Texas Rules of Evidence, a “court may exclude relevant evidence if

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

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

or needlessly presenting cumulative evidence.” Id. 403. “Rule 403 favors

admissibility of relevant evidence, and the presumption is that relevant evidence will

be more probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372, 389

(Tex. Crim. App. 1991) (op. on reh’g).

Rule 404(b) provides that extraneous-offense evidence “is not admissible to

prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character” but may be admissible for other purposes,

“such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Tex. R. Evid. 404(b). “Rule 404(b)…is a

rule of inclusion rather than exclusion,” and the “enumerated exceptions” listed

under Rule 404(b) “are neither mutually exclusive nor collectively exhaustive.”

Chaparro v. State, 505 S.W.3d 111, 115–16 (Tex. App.—Amarillo 2016, no pet.)

(citation omitted) (explaining it is a rule of inclusion); Torres v. State, 543 S.W.3d

404, 420 (Tex. App.—El Paso 2018, pet. ref’d) (citation omitted) (noting rule is not

exclusive or exhaustive).

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Analysis

In his first issue, Babcock argues that the trial court permitted a hearsay

statement from Ashley Cryer (“Cryer”), a family friend of Jana. According to

Babcock, Cryer’s statement is hearsay and not subject to any hearsay exception that

would permit the statement. Babcock argues that Cryer’s statement was extremely

prejudicial and affected Babcock’s substantial rights.

At trial, Cryer testified that she is a family friend of Jana. According to Cryer,

in 2016, she was at a Halloween get-together with her family and friends, including

Jana. Cryer testified that she could tell that something was off with Jana, and she

asked Jana if she wanted to talk. According to Cryer, Jana wanted to talk and told

her that Babcock “got in the bed with me and fingered me[.]”

Prior to Cryer’s testimony about this, counsel for the State and Babcock spoke

with the trial judge about Jana’s statement to Cryer. The State explained that she was

going to ask Cryer what Jana told her under the hearsay exception of present sense

impression. Counsel for Babcock disagreed that the exception applied since Cryer

had already testified that she could tell that Jana was uncomfortable. The trial judge

stated that he would allow “just that one question[.]”

If the trial court erred by admitting the testimony Babcock claims was

inadmissible as hearsay, the erroneous admission of evidence in a trial is non-

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constitutional error that is subject to a harm analysis. See Tex. R. App. P. 44.2(b);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Chapman v. State,

150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). A non-

constitutional error that does not affect substantial rights must be disregarded. See

Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008); see also Tex. R. App.

P. 44.2(b). We may disregard error in admitting hearsay if, after examining the entire

record, we have fair assurance that the error did not influence the jury or had but a

slight effect. See Taylor, 268 S.W.3d at 592; see also Tex. R. App. P. 44.2(b).

Here, even when we disregard the testimony that Babcock complains about,

the evidence indicates that Jana testified at trial about Babcock touching her

inappropriately on the morning of October 13th. At trial, Jana testified that Babcock

“insert[ed] his fingers inside my vagina” and that Babcock “touched my clitoris and

then after that he inserted his fingers in my vagina.” Considering the record as a

whole, we conclude that Cryer’s testimony either did not influence the jury or had

but a slight effect. See Taylor, 268 S.W.3d at 592; see also Tex. R. App. P. 44.2(b).

Therefore, we hold that even if the trial court erred by admitting the testimony,

Babcock is not entitled to a new trial. See Tex. R. App. P. 44.2(b). We overrule

Babcock’s first issue.

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In his second issue, Babcock argues that the State alluded to two incidents

occurring in opening statements but failed to present any evidence regarding a

second incident between Jana and Babcock. According to Babcock, the State failed

to timely elect the incident that they sought a conviction for, and therefore a

comment regarding a second incident is reversible error.

“In a sexual assault trial, where one act of intercourse is alleged in the

indictment and more than one act of intercourse is shown by the evidence, the State

must elect the act upon which it would rely for conviction.” Garcia v. State, 614

S.W.3d 749, 753 (Tex. Crim. App. 2019) (citation omitted). It is at the discretion of

the trial judge to order the State to make this election any time prior to the State

resting its case in chief. See id. “But once the State rests, in the face of a timely

request by the defendant, the trial court must order the State to make a decision.” Id.

“‘Failure to do so constitutes error.’” Id. (quoting O’Neal v. State, 746 S.W.2d 769,

772 (Tex. Crim. App. 1988)).

The record indicates that Jana was the State’s final witness during the

guilt/innocence phase of trial. During the State’s questioning of Jana, and outside

the presence of the jury, counsel for the State and Babcock discussed with the trial

judge the possibility that Jana would allude to another incident with Babcock that

allegedly occurred on the very next day, on October 14. At the conclusion of the

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discussion, the record indicates that the State elected to prove that an incident

occurred on October 13. The record indicates that prior to bringing the jury back into

the courtroom, the trial judge instructed Jana that she was only to testify regarding

what Babcock allegedly did to her on October 13. After this instruction, the jury

returned to the courtroom, and the State continued its questioning of Jana.

Although the State commented in its opening statement that another incident

occurred the next day, the trial court had previously admonished the jury that

statements from the lawyers, particularly in opening statements, were not evidence.

Since, the State’s opening statement is not evidence, there is no evidence in the

record that Jana or any other witness testified to any incident other than what

occurred on October 13. See Llamas v. State, 270 S.W.3d 274, 279 (Tex. App.—

Amarillo 2008, no pet.) (stating that opening statements are not evidence). The jury

charge further informed the jury that they were to “consider only the evidence and

exhibits presented here in the courtroom through the witnesses who have testified.”

We presume the jury followed the trial court’s instructions. See Reed v. State, 680

S.W.3d 620, 627 (Tex. Crim. App. 2023).

The record establishes that there was no evidence presented to the jury

regarding an extraneous offense on October 14, and that the State made its election

regarding the act it would rely on for conviction prior to resting its case in chief.

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Because the prosecutor in a sexual assault case is required to make its election

regarding the act upon which it will rely for conviction by the end of its case in chief,

the State’s election was timely. See Garcia, 614 S.W.3d at 753. We overrule issue

two.

Conclusion

Having overruled both of Babcock’s issues, the trial court’s judgment is

affirmed.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on March 27, 2025
Opinion Delivered April 9, 2025
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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