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Gaytan v. State of Texas

A jury convicted appellant of 20 counts of aggravated sexual assault and one count of indecency with a child. During the trial, the court allowed two adult female relatives of appellant?s to testify that he had molested them more than twenty 20 years earlier. Appellant objected to the admission of their testimony, and on appeal he argues that the admission of their testimony was error requiring reversal because: 1. He did not open the door to their testimony by advancing a defensive theory of fabrication; 2. the testimony's unfairly prejudicial effect far outweighed its probative value; and 3. the testimony was not admissible to prove motive, intent or knowledge. Appellant also argues that the trial court erred by refusing to strike his 6-year-old niece's testimony because she admitted that she could not directly recall being abused. Finally, he argues that the evidence was legally insufficient to sustain a conviction on 16 of his 20 assault counts. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-09-00370-CR, 01-21-2011

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OPINION

A jury convicted forty-five-year-old Frank Gaytan of twenty counts of aggravated sexual assault and one count of indecency with a child. See Tex. Penal Code Ann. §§ 21.11, 22.021 (West Supp. 2010). The jury assessed punishment at ninety-nine years’ confinement on each sexual-assault count and fifteen years’ confinement on the indecency count, all sentences to run consecutively. See id. § 3.03(b)(2)(A) (West Supp. 2010) (sentences may run consecutively when defendant is convicted of multiple offenses arising out of same criminal episode under penal code sections 21.11 and 22.021). The jury found that between August 18 and September 8, 2004, Gaytan repeatedly molested his six-year-old niece, C.R., while baby-sitting her. During the trial, the court allowed two adult female relatives of Gaytan’s to testify that he had molested them more than twenty years earlier. Gaytan objected to the admission of their testimony, and on appeal he argues that the admission of their testimony was error requiring reversal. Gaytan argues that (1) he did not open the door to their testimony by advancing a defensive theory of fabrication; (2) the testimony’s unfairly prejudicial effect far outweighed its probative value, see Tex. R. Evid. 403; and (3) the testimony was not admissible to prove motive, intent, or knowledge under Texas Rule of Evidence 404(b). Gaytan also argues that the trial court erred by refusing to strike C.R.’s testimony because C.R. admitted that she could not directly recall being abused. See Tex. R. Evid. 602 (testimony must be based on personal knowledge). Finally, he argues that the evidence was legally insufficient to sustain a conviction on sixteen of his twenty assault counts. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

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