Background
David Allen Tovar was charged with continuous sexual abuse of his stepdaughter, identified by the court as Jessica, when she was younger than fourteen. The indictment alleged that, over a period of at least thirty days between April 2015 and April 2021, Tovar committed multiple acts of aggravated sexual assault, including oral and vaginal penetration. A jury found him guilty and assessed a twenty-eight-year prison sentence.
On appeal, Tovar challenged three evidentiary rulings. He argued that the trial court improperly admitted his prior child-sexual-assault conviction and sex-offender registration, improperly admitted a redacted version of Jessica’s sexual-assault-nurse-examination report, and improperly prevented him from questioning Jessica about her past sexual conduct and prior allegations involving others.
The Court’s Holding
The Ninth Court of Appeals held that the trial court acted within its discretion by admitting Tovar’s prior conviction and sex-offender-registration evidence under article 38.37 of the Texas Code of Criminal Procedure. Applying the Rule 403 balancing factors, the court concluded that the evidence was highly probative of Tovar’s character and propensity and helped rebut the defense theory that Jessica fabricated the allegations. Although inherently prejudicial, the evidence did not create a danger of unfair prejudice that substantially outweighed its probative value, particularly given the limiting instruction and the relatively brief presentation of the evidence.
The court also upheld the redaction of portions of the SANE report concerning consensual sexual conduct with two other individuals and an alleged childhood incident involving another child. That information was unnecessary to understand the admitted portions of the report, so the rule of optional completeness did not require its admission; Tovar’s separate due-process argument was unpreserved. The court further held that Tovar failed to establish a logical nexus between Jessica’s prior sexual conduct or allegations and her accusations against him, or to show that the evidence satisfied any exception to the then-applicable version of Rule 412. The court therefore overruled all three appellate issues.
Key Takeaways
- Article 38.37 permitted the jury to consider Tovar’s prior child-sexual-assault conviction as relevant propensity evidence, subject to the trial court’s Rule 403 analysis and limiting instruction.
- The rule of optional completeness did not require admission of redacted sexual-history information that was unnecessary to explain the SANE nurse’s testimony or the admitted portions of the report.
- Rule 412 barred evidence of the complainant’s prior sexual conduct and allegations because Tovar did not establish a definite logical connection to bias, fabrication, or another recognized exception.
Why It Matters
The opinion illustrates the broad admissibility of prior child-sex-offense evidence under Texas article 38.37, even when used to show character and conformity, while confirming that courts must still conduct the Rule 403 balancing analysis. It also underscores the demanding burden defendants face when seeking admission of a child complainant’s sexual history under Texas’s rape-shield rule.
The court modified the judgment solely to correct a clerical error identifying Tovar himself, rather than Marcus Wilkerson, as defense counsel. It affirmed the judgment as modified, leaving the conviction and twenty-eight-year sentence intact.