This is a case of aggravated sexual assault of a minor. The case arises as a petition for writ of habeas corpus from a conviction in Texas. The facts describe a “ninja game” that involve suffocation.

PHRORY MORAN GAMBLE, Petitioner,
v.
RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

No. 4:12-CV-057-A

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION

June 26, 2012, Decided
June 26, 2012, Filed

Opinion by US District Judge John Mcbryde:

In affirming the trial court’s judgment, the Second Court of Appeals of Texas set out the factual and procedural background of the case as follows:

A grand jury indicted Appellant for aggravated sexual assault of a minor. Appellant pleaded “not guilty,” and the case was tried to a jury.

M.L. was born in 1995, and he was eleven years old at the time of trial. His mother, Christine, testified that she met Appellant at work in 1998 and that they developed a romantic relationship while living together as roommates. Christine and Appellant had two children together, Z.H. in 1999 and K.H. in 2002. Christine testified that her relationship with Appellant was imperfect and that he eventually became physically abusive.

Christine testified that she moved to Boston with the children to get away from Appellant, but Appellant followed them to Boston two months later. She said that while they were living in Boston, M.L.’s teacher made a physical-abuse referral to Child Protective Services (“CPS”). Christine testified that CPS investigated and concluded that Appellant had physically abused M.L. Christine said that after living in Boston for about a year, she, Appellant, and the children moved to Arkansas, where Appellant’s family lived. She later left Appellant and returned to Texas with the children.

Christine testified that when M.L. was almost ten, she and M.L. were watching a television news program about a man who said he had been molested. She said that M.L. then told her that Appellant had blindfolded him, taken him to the bathroom, told him he was going to give him some candy, instructed him to open his mouth, and put Appellant’s penis into M.L.’s mouth. She testified that M.L. said that he did not tell her sooner because he was scared Appellant would kill him if he told anyone. Christine reported M.L.’s outcry to Irving police, whose investigation ultimately led to this case.

M.L. testified that when he was three years old and lived in Texas (he could not remember what city) with Christine and Appellant, Appellant would sometimes watch him when Christine was at work. He testified that Appellant would play “the ninja game,” in which Appellant would put a plastic grocery bag over M.L.’s head and prevent M.L. from breathing. He said that if he got dizzy and fell down, Appellant would tie the bag shut at M.L.’s neck. M.L. said they played the ninja game “a lot.”

M.L. also testified that Appellant would sometimes choke him with one or both hands. He testified that Appellant told M.L. he would kill him if he told Christine about the ninja game.

The convicted person now argues that some of this evidence was unfairly prejudicial:

Appellant argues that the trial court abused its discretion by admitting evidence concerning the extraneous offenses against M.L., specifically, the “ninja game,” the choking and belt-hanging incidents, and the injury to M.L.’s head.

arguing:

M.L.’s horrific testimony about the “ninja game” and being hung by the neck with a belt had the tendency to confuse or distract the jury from the main issue, whether Appellant sexually assaulted M.L., and there was a danger that the jury would give the physical abuse testimony undue weight.

This argument was made in the State courts and denied, now again, habeas petition denied:

A federal habeas court will disturb state court evidentiary rulings on habeas review only if they render the trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991); Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993); Scott v. Maggio, 695 F.2d 916, 922 (5th Cir. 1983). Under Texas Code of Criminal Procedure article 38.37, § 2, evidence of extraneous evidence is more often admissible in cases involving sexual assaults of children, notwithstanding Texas’s normal rules of evidence. Kessler v. Dretke, 137 Fed. Appx. 710, 2005 WL 1515483, at *1 (5th Cir. 2005), cert. denied, 546 U.S. 1105, 126 S. Ct. 1050, 163 L. Ed. 2d 880 (2006). The admission of such evidence does not violate due process if the state “makes a strong showing that the defendant committed the offense and if the extraneous offense is rationally connected with the offense charged.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007). The evidence of petitioner’s physical abuse of M.L. was properly admitted because it bears a rational relationship to the charged offense. Moreover, there is no evidence that admission of the extraneous offense evidence rendered the entire trial fundamentally unfair or that but for the admission of the evidence the result of petitioner’s trial would have been different. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).

Therefore this petition is denied.

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