Desiderio Gonzales, Jr. v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-21-00294-CR

DESIDERIO GONZALES, JR.,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 85th District Court
Brazos County, Texas
Trial Court No. 17-00458-CRF-85

MEMORANDUM OPINION

Appellant, Desiderio Gonzales Jr., was convicted of continuous sexual abuse of a

young child. See TEX. PENAL CODE ANN. § 21.02. In three issues, appellant argues that:

(1) section 21.02 of the Texas Penal Code is unconstitutional as applied to him; (2) the trial

court erred by denying his requested instruction on the lesser-included offense of

indecency with a child by contact as to one incident allegedly occurring in Robertson
County, Texas; and (3) article 38.37, section 2(b) of the Code of Criminal Procedure is

unconstitutional as applied to him. We affirm.

Background

Appellant was charged by indictment with continuous sexual abuse of a young

child. See id. The original indictment alleged a total of three sexual acts against three

child victims. Later, the State reindicted appellant, alleging that, between August 11,

2011, and May 1, 2016, in Brazos County, he committed two or more acts of sexual abuse

against J.N., A.N., and A.W., children that were younger than fourteen years of age at the

time the acts of sexual abuse were committed. More specifically, appellant allegedly

committed two acts of aggravated sexual assault against J.N., two acts of aggravated

sexual assault against A.N., and one act of aggravated sexual assault and one act of

indecency with a child by contact against A.W. The State later abandoned one of the

allegations of aggravated sexual assault against J.N. Thus, the State proceeded to trial on

a total of five alleged predicate acts against three child victims.

At the conclusion of the evidence, appellant moved for a directed verdict, arguing

that section 21.02 of the Texas Penal Code and article 38.37, section 2(b) of the Code of

Criminal Procedure are unconstitutional. The trial court denied appellant’s motion for

directed verdict. Thereafter, during the charge conference, appellant requested an

instruction on the lesser-included offense of indecency with a child as to A.N., arguing

that the instruction was required based on A.N.’s testimony about an incident where

Gonzales v. State Page 2
appellant purportedly touched her vagina with his hand at a house in Franklin, Texas,

which is in Robertson County. The trial court denied appellant’s request.

The jury convicted appellant of continuous sexual abuse of a child. Appellant

elected for the trial court to assess punishment. At the conclusion of the punishment

hearing, the trial court sentenced appellant to life in prison in the Institutional Division

of the Texas Department of Criminal Justice. This appeal followed.

As Applied Constitutional Challenge to Section 21.02 of the Texas Penal Code

In his first issue, appellant contends that section 21.02 of the Texas Penal Code is

unconstitutional as applied to him because it lowers the State’s burden of proof by not

requiring the members of the jury to agree unanimously on which specific acts of sexual

abuse were committed by the defendant. See U.S. CONST. amends. VI, XIV; see also TEX.

CONST. art. I, §§ 10, 19; id. art. V, § 13.

STANDARD OF REVIEW

A statute may be challenged as unconstitutional either “on its face” or “as

applied.” McCain v. State, 582 S.W.3d 332, 346 (Tex. App.—Fort Worth 2018, no pet.). The

constitutionality of a statute is a question of law we review de novo. Lawrence v. State,

240 S.W.3d 912, 915 (Tex. Crim. App. 2007). We begin with the presumption that the

statute is valid and that the Legislature did not act arbitrarily and unreasonably in

enacting it. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Rodriguez v. State,

Gonzales v. State Page 3
93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The party challenging the statute has the burden

to establish its unconstitutionality. Rosseau, 396 S.W.3d at 557.

An “as applied” challenge to a statute argues that the claimant’s particular

circumstances render the statute unconstitutional as to him. McCain, 582 S.W.3d at 346;

see State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (“A litigant raising

only an ‘as applied’ challenge concedes the general constitutionality of the statute, but

asserts that the statute is unconstitutional as applied to his particular facts and

circumstances.”). Appellant must show that, “in its operation, the challenged statute was

unconstitutionally applied to him; that it may be unconstitutional as to others is not

sufficient (or even relevant).” Lykos, 330 S.W.3d at 910.

DISCUSSION

In his motion for directed verdict, appellant argued that section 21.02 of the Texas

Penal Code is unconstitutional because it violates the constitutional requirement of a

unanimous jury verdict since it fails to require jury unanimity as to the underlying

specific acts of sexual abuse, and because it diminishes the State’s burden of proof.

At trial, in the abstract portion of the guilt-innocence jury charge, the trial court

included an instruction on unanimity that was consistent with section 21.02(d):

You are instructed that members of the jury are not required to agree
unanimously on which specific acts of sexual abuse, if any, were committed
by the defendant or the exact dates when those acts were committed, if any.
The jury must agree unanimously that the defendant, during a period that
was 30 or more days in duration, committed two or more acts of sexual
abuse as that term has been previously defined.
Gonzales v. State Page 4
See TEX. PENAL CODE ANN. § 21.02(d).

During the charge conference, appellant objected to the above instruction,

asserting that it “allows the jury to find the defendant guilty based on a non-unanimous

jury verdict and diminishes the State’s burden of proof.” The trial court overruled

appellant’s objection.

A person commits the offense of continuous sexual abuse of a young child if,

during a period of thirty or more days, that person commits two or more acts of sexual

abuse against a child younger than fourteen years of age. Id. § 21.02(b). An “act of sexual

abuse” is an act that violates one or more specified penal laws, among them indecency

with a child by sexual contact and aggravated sexual assault of a child. Id. § 21.02(c). A

jury is “not required to agree unanimously on which specific acts of sexual abuse were

committed by the defendant or the exact date when those acts were committed” but must

“agree unanimously that the defendant, during a period that is 30 or more days in

duration, committed two or more acts of sexual abuse.” Id. § 21.02(d).

Subsection(d) does not lower the State’s burden of proof. See, e.g., Ex parte

Sandoval, No. 04-20-00435-CR, 2021 Tex. App. LEXIS 5978, at *7 (Tex. App.—San Antonio

July 28, 2021, no pet.) (mem. op., not designated for publication). In Navarro v. State, this

Court noted:

Jury unanimity is required in all criminal cases in Texas. Every juror must
agree that the defendant committed the same, single, specific criminal act.
However, there is a distinction between a fact that is a specific element of
the crime and one that is but the means to the commission of a specific
Gonzales v. State Page 5
 element. Jurors must unanimously agree on all the elements of a crime in
order to convict, but jurors need not agree on all underlying facts that make
up a particular element. When alternative manners and means of
committing an offense are submitted to a jury, it is appropriate for the jury
to return a general verdict of guilty if the evidence supports a conviction
under any one of them.

...

Although the Court of Criminal Appeals has not specifically
determined the constitutionality of this statute as to jury unanimity, the
Court has discussed the legislative intent behind the statute, noting that it
is the series of acts which constitutes the key element of the offense upon
which jury unanimity is required rather than the specific acts of sexual
abuse enumerated in the statute.

535 S.W.3d 162, 165 (Tex. App.—Waco 2017, pet. ref’d) (internal citations & quotations

omitted). This Court then concluded that section 21.02 does not violate a defendant’s

constitutional right to jury unanimity because “the individual acts of sexual abuse are the

manner and means by which the element of ‘two or more acts of sexual abuse’ is

committed, and not elements in and of themselves.” Id. at 166; see Jacobsen v. State, 325

S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.).1 Many other Texas courts have

1 In Jacobsen, the Austin Court of Appeals emphasized that:

Under the plain language of section 21.02, it is the commission of two or more acts of sexual
abuse over the specified time period—that is, the pattern of behavior or the series of acts—
that is the actus reus element of the offense as to which the jurors must be unanimous in
order to convict. The individual acts of sexual abuse that make up this pattern of behavior
or series of acts are not themselves elements of the offense, but are merely evidentiary facts,
the manners and means by which the actus reus element is committed. When there is
evidence of two or more acts of abuse over the specified time period, section 21.02(d)
makes it clear that the jurors need not agree as to which individual acts were committed
so long as they agree that the defendant committed at least two.

Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.).

Gonzales v. State Page 6
concluded similarly. See Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.—Fort Worth

2016, pet. ref’d); Fulmer v. State, 401 S.W.3d 305, 313 (Tex. App.—San Antonio 2013, pet.

ref’d); McMillian v. State, 388 S.W.3d 866, 872-73 (Tex. App.—Houston [14th Dist.] 2012,

no pet.); Kennedy v. State, 385 S.W.3d 729, 732 (Tex. App.—Amarillo 2012, pet. ref’d); Casey

v. State, 349 S.W.3d 825, 829 (Tex. App.—El Paso 2011, pet. ref’d); Reckart v. State, 323

S.W.3d 588, 600-01 (Tex. App.—Corpus Christi 2010, pet. ref’d); Render v. State, 316

S.W.3d 846, 857-58 (Tex. App.—Dallas 2010, pet. ref’d).

Because the jury is required under section 21.02(d) “to unanimously find that

[appellant] committed two or more of the alleged acts of sexual abuse, his right to a

unanimous jury verdict was not violated.” Jacobsen, 325 S.W.3d at 739. Accordingly, we

cannot say that the provisions of subsection (d) lowered the burden of proof by violating

appellant’s right to a unanimous jury verdict. See Navarro, 535 S.W.3d at 165; Ingram, 503

S.W.3d at 748; Fulmer, 401 S.W.3d at 313; McMillian, 388 S.W.3d at 872-73; Kennedy, 385

S.W.3d at 732; Casey, 349 S.W.3d at 829; Jacobsen, 325 S.W.3d at 737; Reckart, 323 S.W.3d at

600-01; Render, 316 S.W.3d at 857-58. As such, we conclude that section 21.02 is

constitutional as applied to appellant. We overrule appellant’s first issue.

Lesser-Included Instruction

In his second issue, appellant asserts that the trial court erred by denying his

request for an instruction in the jury charge on the lesser-included offense of indecency

Gonzales v. State Page 7
with a child by contact as to the allegation involving A.N. in Robertson County. We

disagree.

We review an allegation of jury-charge error by considering: (1) whether error

existed in the charge; and (2) whether sufficient harm resulted from the error to compel

reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). The erroneous refusal

to give a requested instruction on a lesser-included offense is subject to a harm analysis

pursuant to Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

See Braughton v. State, 569 S.W.3d 592, 613 (Tex. Crim. App. 2018); Grey v. State, 298 S.W.3d

644, 648 (Tex. Crim. App. 2009). If an error was properly preserved by requesting the

challenged instruction, as was the case here, we reverse the conviction if the denial of the

instruction resulted in some harm to the defendant. Braughton, 569 S.W.3d at 613; Cornet

v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013). “Some harm” means actual harm

and not merely a theoretical complaint. Rogers v. State, 550 S.W.3d 190, 191 (Tex. Crim.

App. 2018). Reversal is required if the error was calculated to injure the rights of the

defendant. Id. at 192; see Almanza, 686 S.W.2d at 171. In evaluating harm, we review the

whole record, including the jury charge, the state of the evidence, the arguments of

counsel, and other relevant information. Almanza, 686 S.W.2d at 171.

In Braughton, the Court of Criminal Appeals held that a jury’s failure to find a

defendant guilty of an intervening lesser-included offense can render the trial court’s

failure to give the requested charge harmless. 569 S.W.3d at 617; see Masterson v. State,

Gonzales v. State Page 8
155 S.W.3d 167, 171 (Tex. Crim. App. 2005). The harm from denying a lesser-offense

instruction stems from the potential to “place the jury in the dilemma of convicting for a

greater offense in which the jury has reasonable doubt or releasing entirely from criminal

liability a person the jury is convinced is a wrongdoer.” Masterson, 155 S.W.3d at 171.

Such a concern is not present in situations where another charged offense presents the

jury with an available compromise, thereby giving the jury the ability to hold the

wrongdoer accountable without having to find him guilty of the greater offense. Id.

Specifically, in Braughton, the jury was given a manslaughter instruction as a

lesser-included offense to murder, but the trial court denied the defendant’s request for

an instruction on felony deadly conduct. 569 S.W.3d at 613. The Braughton Court

concluded that the error, if any, was harmless:

By its rejection of manslaughter, the jury signaled its legitimate belief that
appellant was not merely reckless in bringing about Dominguez’s death
and that he did in fact harbor the requisite culpable mental state required
for murder—that is, that he either intentionally or knowingly caused
Dominguez’s death, or intended to cause Dominguez serious bodily injury
and intentionally or knowingly shot him.

Id. at 615.

We believe that the reasoning in Braughton applies similarly to the instant case. As

mentioned above, appellant was charged with the offense of continuous sexual abuse of

a young child. The jury heard evidence that appellant committed multiple sex acts

against three child victims that were named in the indictment. The jury charge included

instructions on the lesser-included offenses of aggravated sexual assault against J.N.,
Gonzales v. State Page 9
aggravated sexual assault against A.N.,2 and aggravated sexual assault and indecency

with a child against A.W. The jury convicted appellant of the greater offense—

continuous sexual abuse of a young child—despite receiving instructions on the lesser-

included offenses as to the three child victims. Even if the jurors believed that appellant

only committed indecency with a child against A.N. during the Franklin incident, the

finding of continuous sexual abuse of a young child demonstrates that they also found

that appellant committed at least one other act of sexual abuse against the three child

victims during a period of thirty days or more. This renders the purported charge error

harmless because there is no realistic probability that the jury would have opted to

convict appellant of only indecency with a child had it received such an instruction. See

Braughton, 569 S.W.3d at 617 (holding that the denial of an instruction on a lesser-included

offense is harmless when the record establishes no realistic possibility that the jury would

have opted to convict of the lesser charge); see also Linzey v. State, Nos. 13-18-00353-CR &

13-18-00354-CR, 2020 Tex. App. LEXIS 2479, at **12-15 (Tex. App.—Corpus Christi Mar.

2 A.N. testified that appellant licked her vagina with his tongue and touched her vagina with his
hand at a house in Franklin. Appellant requested a lesser-included instruction on indecency with a child
based on the touching allegation; however, the trial court denied the instruction based on the premise that
Brazos County did not have jurisdiction over the Robertson County allegations. We note that the location
or place where the sexual abuse was committed is not an element of the offense of continuous sexual abuse
of a young child. See TEX. PENAL CODE ANN. § 21.02; see also Meraz v. State, 415 S.W.3d 502, 505 (Tex. App.—
San Antonio 2013, pet. ref’d). Moreover, the elements of continuous sexual abuse of a young child are not
required to be committed in one county. See Meraz, 415 S.W.3d at 505. When continuing sexual abuse of a
child is committed in more than one county, venue is proper in any of those counties. See id. Regardless,
the indictment alleged and the jury charge only authorized the jury to convict upon proof of two or more
acts of sexual abuse perpetrated by appellant during a period of at least thirty days in the county of
prosecution—Brazos County.

Gonzales v. State Page 10
26, 2020, no pet.) (mem. op., not designated for publication) (same). More specifically,

had the jury received the requested instruction and believed that appellant committed

indecency with a child during the Franklin incident, rather than aggravated sexual

assault, appellant still would have been convicted of continuous sexual abuse of a young

child because the jury believed that appellant committed at least one other sexual act

against the child victims during a period of thirty days or more. We therefore conclude

that the purported error in the jury charge did not cause appellant actual harm. See

Braughton, 569 S.W.3d at 613; Rogers, 550 S.W.3d at 191; Cornet, 417 S.W.3d at 449. As

such, we overrule appellant’s second issue.

Constitutionality of Article 38.37, Section 2(b) of the Texas Code of Criminal
Procedure

In his third issue, appellant contends that article 38.37, section 2(b) of the Texas

Code of Criminal Procedure is unconstitutional as applied to him. Specifically, appellant

asserts that article 38.37, section 2(b) is unconstitutional because it violates a defendant’s

right to due process under the United States Constitution and to due course of law under

the Texas Constitution. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b); U.S. CONST. amend.

XIV; TEX. CONST. art. I, § 19. Appellant focuses this argument on the testimony of A.W.,

who recounted that appellant touched and squeezed her breasts one time when she was

eight or nine years old.

Gonzales v. State Page 11
 In Deggs v. State, we addressed a virtually identical “as applied” challenge to

article 38.37.3 See generally Deggs v. State, No. 10-20-00068-CR, ___ S.W.3d.___, 2022 Tex.

App. LEXIS 3390 (Tex. App.—Waco May 18, 2022, pet. ref’d) (publish). Specifically, the

Deggs Court stated:

Generally, evidence of an extraneous offense is inadmissible if offered to
prove a person's character to show the person acted in conformity with that
character. See TEX. R. EVID. 404(b). Notwithstanding rule 404(b), evidence
that a defendant on trial for certain sex offenses against a child committed
a separate sex offense against another child may be admissible under
Section 2(b) of Code of Criminal Procedure Article 38.37. See TEX. CODE
CRIM. PROC. ANN. art. 38.37, § 2(b). Pursuant to Article 38.37, the evidence
is admissible for any relevant purpose, including as proof of the defendant's
character and propensity to act in conformity with his character. Id.

In an as applied constitutional challenge, the claimant “concedes the
general constitutionality of the statute, but asserts that the statute is
unconstitutional as applied to his particular facts and circumstances.” Estes
v. State, 546 S.W.3d 691, 698 (Tex. Crim. App. 2018). Because a statute may
be valid as applied to one set of facts and invalid as applied to a different
set of facts, a litigant must show that in its operation, the challenged statute
was unconstitutionally applied to him. Lykos v. Fine, 330 S.W.3d 904, 910
(Tex. Crim. App. 2011). We presume the statute is valid and the legislature
did not act unreasonably or arbitrarily in enacting it. Faust v. State, 491
S.W.3d 733, 744 (Tex. Crim. App. 2015).

The Due Process Clauses in the Fifth and Fourteenth Amendments
prohibit states from depriving any person of life, liberty, or property,
without due process of law. U.S. CONST. amends. V, XIV. The Due Process
Clause requires that the prosecution prove, beyond a reasonable doubt,
every element of the crime charged. Byrd v. State, 336 S.W.3d 242, 246 (Tex.
Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979)).

3Appellate counsel in this case was also appellate counsel in Deggs v. State, No. 10-20-00068-CR,
___ S.W.3d ___, 2022 Tex. App. LEXIS 3390 (Tex. App.—Waco May 18, 2022, pet. ref’d) (publish).

Gonzales v. State Page 12
 Generally, an accused must be tried only for the offense with which
he is charged and may not be tried for a collateral crime or being a criminal
generally. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). The
essential guarantee of the Due Process Clause is that the government may
not imprison or otherwise physically restrain a person except in accordance
with fair procedures. Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App.
1987), overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex.
Crim. App. 1990).

This Court has held that Article 38.37, Section 2(b) is facially
constitutional because of the protections set forth both in Article 38.37,
Sections 2-a and 3 requiring timely notice prior to trial and a hearing
conducted outside the presence of the jury for the trial court to determine
that the evidence would be sufficient for a reasonable juror to find that the
extraneous offense was committed beyond a reasonable doubt, with the
requirement to conduct a Rule 403 balancing test upon request by the
defendant. See Gates v. State, No. 10-15-00078-CR, 2016 Tex. App. LEXIS
2599, 2016 WL 936719, at *4 (Tex. App.—Waco Mar. 10, 2016, pet. ref'd)
(mem. op., not designated for publication); see also TEX. R. EVID. 403.
Although his arguments seem to express questions regarding the facial
constitutionality of Article 38.37, Section 2(b), Deggs states that his
complaint is limited to an “as-applied” challenge, and we will limit our
analysis as well.

Deggs complains that Article 38.37, Section 2(b) is unconstitutional
as applied to him in this proceeding because the protections provided by
Rule 403 of the Rules of Evidence, which have been used as a basis to find
the statute constitutional, were “illusory” as applied to him in this
proceeding. He argues that the evidence should have been excluded
pursuant to Rule 403, and that Rule 403's alleged protections are “illusory”
because only one court of appeals has ever excluded evidence admitted
pursuant to Article 38.37 on the basis of Rule 403. See Perez v. State, 562
S.W.3d 676, 686-88 (Tex. App.—Fort Worth 2018, pet. ref'd). He further
argues that because the trial court questioned the necessity of a balancing
test pursuant to Rule 403 during the Article 38.37, Section 2-a hearing, the
trial court's ruling was insufficient.

The Deggs Court concluded that article 38.37, section 2(b) was not unconstitutional

as applied to Deggs because the,
Gonzales v. State Page 13
 trial court followed the statute’s requirements and after hearing evidence
and the arguments of counsel, determined that the evidence was sufficient
for a reasonable juror to find that Deggs committed the extraneous offense
beyond a reasonable doubt and that its probative value was not
substantially outweighed by the danger of unfair prejudice or would
mislead or confuse the jury.

Similar to Deggs, the trial court in this case followed article 38.37, section 2-a’s

requirements with respect to determining the admissibility of the extraneous-offense

evidence. Specifically, the trial court conducted a hearing outside the presence of the jury

and heard A.W.’s testimony. After hearing A.W.’s testimony, the trial court found that it

was adequate to support a jury’s finding beyond a reasonable doubt that appellant

touched A.W.’s breasts. Furthermore, the trial court also considered and overruled

appellant’s objection under Texas Rule of Evidence 403. See TEX. R. EVID. 403. Moreover,

the trial court provided a limiting instruction in the jury charge, instructing jurors that

they could not consider the testimony that appellant touched A.W.’s breasts unless they

first found beyond a reasonable doubt that he did so. Although appellant disagrees with

these conclusions as will be discussed in the next issue, we do not find that article 38.37,

section 2(b) is unconstitutional as applied to him. See Estes, 546 S.W.3d at 698; Faust, 491

S.W.3d at 744; Lykos, 330 S.W.3d at 910; see also Deggs, 2022 Tex. App. LEXIS 3390, at **4-

9. We overrule appellant’s third issue.

The Testimony of A.W.

In his fourth issue, appellant contends that the trial court erred by ruling that

evidence of extraneous sexual conduct, specifically the testimony of A.W., was admissible
Gonzales v. State Page 14
pursuant to article 38.37, section 2-a(1) of the Texas Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. Art. 38.37, § 2-a(1). Appellant also argues that the evidence does

not support a finding that he committed the offense of indecency with a child by contact

against A.W.

ARTICLE 38.37

At the trial of a defendant accused of, among other things, continuous sexual abuse

of a young child, evidence of certain extraneous offenses committed by the defendant,

including aggravated sexual assault, is admissible under section 2 of article 38.37 “for any

bearing the evidence has on relevant matters, including the character of the defendant

and acts performed in conformity with the character of the defendant.” TEX. CODE CRIM.

PROC. ANN. art. 38.37, § 2; Fahrni v. State, 473 S.W.3d 486, 492 (Tex. App.—Texarkana 2015,

pet. ref’d). Before evidence under article 38.37 is introduced, the trial judge must conduct

a hearing outside the presence of the jury to “determine that the evidence likely to be

admitted at trial will be adequate to support a finding by the jury that the defendant

committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC.

ANN. art. 38.37, § 2-a.

Appellant argues that the evidence from the hearing conducted by the trial court

did not support a finding that he committed the offense of indecency with a child by

contact against A.W. because she was the sole witness to testify about the extraneous

Gonzales v. State Page 15
offense, she testified it occurred a single time, and because there was no other

corroborating evidence.

In making the article 38.37, section 2-a threshold admissibility determination, the

trial court was required to determine whether, if the jury were to believe the witness’s

testimony, that testimony would be sufficient to prove the commission of the extraneous

offense beyond a reasonable doubt. See id. art. 38.37, § 2-a(1); see also Deggs, 2022 Tex.

App. LEXIS 3390, at **9-10. An alleged victim’s testimony, standing alone without

corroboration, can be, and was in this instance, sufficient to prove an offense. See TEX.

CODE CRIM. PROC. ANN. art. 38.07; TEX. PENAL CODE ANN. § 21.11(a); Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); see also Deggs, 2022 Tex. App. LEXIS

3390, at *10; Mejia v. State, No. 14-19-00432-CR, 2021 Tex. App. LEXIS 6563, at *26 (Tex.

App.—Houston [14th Dist.] Aug. 10, 2021, no pet.) (mem. op., not designated for

publication) (“Thus, where in the prosecution of indecency with a child by contact, the

uncorroborated testimony of a child victim would be legally sufficient to support a

conviction, the same uncorroborated testimony would be adequate to support a finding

by the jury that the defendant committed the separate offense beyond a reasonable doubt

under article 38.37, § 2-a.”).

We further note that in the article 38.37, section 2-a hearing, the trial court is the

fact finder and as such, is the sole arbiter of the credibility of the witness and the weight

given to her testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1979); see

Gonzales v. State Page 16
Deggs, 2022 Tex. App. LEXIS 3390, at *10. As fact finder, the trial court resolves conflicts

in the testimony, weighs the evidence, and draws reasonable inferences therefrom.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We presume that the trial

court found A.W.’s testimony to be credible and gave weight to her testimony. See

Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013); see also Deggs, 2022 Tex.

App. LEXIS 3390, at *11. Accordingly, we conclude that the trial court did not abuse its

discretion following the article 38.37, section 2(b) hearing by finding that A.W.’s

testimony would be adequate to support a finding by the jury that appellant committed

the extraneous offense beyond a reasonable doubt under article 38.37, section 2-a(1). We

overrule this part of appellant’s fourth issue pertaining to article 38.37.

TEXAS RULE OF EVIDENCE 403

Under article 38.37, evidence of extraneous offenses against other children is

admissible even if such evidence would be otherwise inadmissible under Texas Rules of

Evidence 404 or 405. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). However, the

admission of evidence under article 38.37 “is limited by Rule 403’s balancing test, which

permits admission of evidence as long as its probative value is not substantially

outweighed by its potential for unfair prejudice.” Bradshaw v. State, 466 S.W.3d 875, 882

(Tex. App.—Texarkana 2015, pet. ref’d); see TEX. R. EVID. 403.

Rule 403 of the Texas Rules of Evidence allows the exclusion of relevant evidence

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

Gonzales v. State Page 17
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence. TEX. R. EVID. 403. Appellant

complains on appeal that the probative value of the extraneous-offense evidence was

substantially outweighed by the danger of unfair prejudice.

Probative value refers to the inherent probative force of an item of evidence—that

is, how strongly it serves to make more or less probable the existence of a fact of

consequence to the litigation—coupled with the proponent’s need for that item of

evidence. Valadez v. State, No. PD-0574-19, 2022 Tex. Crim. App. LEXIS 217, at *11 (Tex.

Crim. App. Mar. 30, 2022) (publish). Relevant evidence is presumed to be more probative

than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). However,

evidence may be unfairly prejudicial if it prompts the jury’s hostility or sympathy for one

side without regard to the logical probative force of the evidence. Valadez, 2022 Tex. Crim.

App. LEXIS 217, at *11. Thus, a court must balance the probative force of the proffered

evidence and the proponent’s need for it against any tendency of the evidence to suggest

a decision on an improper basis. Id. at **11-12.

A trial judge has substantial discretion in balancing probative value and unfair

prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006). All testimony

and physical evidence will likely be prejudicial to one party or the other. Jones v. State,

944 S.W.2d 642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity

between the degree of prejudice of the offered evidence and its probative value (i.e., the

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evidence is unfairly prejudicial) that Rule 403 is applicable. Hammer v. State, 296 S.W.3d

555, 568 (Tex. Crim. App. 2009).

When conducting a Rule 403 balancing test, courts should consider: (1) the

evidence’s probative force; (2) the proponent’s need for the evidence; (3) the evidence’s

potential to suggest a decision on an improper basis; (4) the evidence’s tendency to

distract the jury from the main issues; (5) any tendency for the jury to give the evidence

undue weight because it has not been fully equipped to evaluate the evidence’s probative

force; and (6) the likelihood that presenting the evidence will consume an inordinate

amount of time. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

ANALYSIS

The probative force of A.W.’s testimony that appellant once touched her breast

weighs in favor of admission. Not only was the testimony probative of appellant’s

character or propensity to commit sexual assaults on children, but the single extraneous

act of indecency with a child offered against appellant was committed against A.W., who

was already named in the indictment, and occurred during the same time period as the

charged offense. See Bradshaw, 466 S.W.3d at 883 (noting that evidence of a separate

sexual offense against a child admitted under article 38.37, section 2(b) is probative of a

defendant’s character or propensity to commit sexual assaults on children). This factor

weighs in favor of admission.

Gonzales v. State Page 19
 As to the second factor, we find that the State demonstrated its great need for the

evidence. On appeal, appellant emphasizes that A.W.’s testimony came late in trial, and

the jury had already heard about approximately fifteen acts of sexual abuse against the

three child victims. However, the record reflects that appellant consistently attacked the

credibility of all three child victims and their family members to whom they reported the

sexual abuse. Appellant repeatedly highlighted inconsistencies in the testimony, failures

to report claims of abuse, and the fact that no one witnessed the abuse. We are mindful

that “Rule 403 ‘should be used sparingly to exclude relevant, otherwise admissible

evidence that might bear on the credibility of either the defendant or complainant in such

‘he said, she said’ cases [involving sexual assault.’” Id. at 883-84 (quoting Hammer, 296

S.W.3d at 562. Accordingly, we find that the second factor also weighs in favors of

admission.

With respect to the third factor, we recognize that the inherently inflammatory and

prejudicial nature of evidence of extraneous sexual offenses against children does tend to

suggest a verdict on an improper basis. See Newton v. State, 301 S.W.3d 315, 320 (Tex.

App.—Waco 2009, pet. ref’d); see also Deggs, 2022 Tex. App. LEXIS 3390, at *15. This factor

weighs against admission.

As to the fourth factor, the main issue in this case was whether appellant engaged

in a course of conduct of sexual abuse of the three child victims alleged in the indictment.

A.W. was one of those victims. Similar to Deggs, the jury was orally instructed that A.W.’s

Gonzales v. State Page 20
testimony could only be considered if the jury determined, beyond a reasonable doubt,

that the extraneous offense was committed and for the purpose of determining whether

the State proved all the elements for the charged offense alleged in the indictment. See

Deggs, 2022 Tex. App. LEXIS 3390, at **15-16. The trial court gave a similar instruction in

the jury charge. Thus, the trial court twice redirected the jury to the main issues in the

case. We conclude that the fourth factor weighs in favor of admission.

The fifth factor refers to evidence such as highly technical or scientific evidence

that might mislead the jury because it is not equipped to weigh the probative force of the

evidence. Gigliobianco, 210 S.W.3d at 641. Here, A.W.’s testimony that appellant once

touched her breasts was neither scientific nor technical and pertained to matters

including victim credibility that could easily be understood by a jury. Thus, the fifth

factor weighs in favor of admission.

As to the last factor, A.W.’s testimony that appellant once touched her breasts

consisted of less than four of more than 500 pages of testimony. We find that the

presentation of this evidence did not consume an inordinate amount of time. As was the

case in Deggs, appellant acknowledges that the presentation of this evidence did not take

up a significant amount of time, but emphasizes that the testimony had a greater impact

than length alone because it was presented late in the trial. See Deggs, 2022 Tex. App.

LEXIS 3390, at **16-17. Regardless, in our review of this record, we conclude that the last

factor favors admission.

Gonzales v. State Page 21
 Based on the foregoing, we cannot say there is a “clear disparity” between the

danger of unfair prejudice posed by the complained-of evidence and its probative value.

See Hammer, 296 S.W.3d at 555. Thus, we cannot conclude that the trial court abused its

discretion by admitting the complained-of evidence. See TEX. CODE CRIM. PROC. ANN. art.

38.37, § 2(b); TEX. R. EVID. 403; Gigliobianco, 210 S.W.3d at 641-42. We overrule appellant’s

fourth issue.

Conclusion

Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 17, 2022
Do not publish
[CRPM]

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