Kevin Boykin v. the State of Texas ( 2023 )

Opinion filed August 17, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00126-CR
__________
KEVIN BOYKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR23294
MEMORANDUM OPINION
In July 2014, Appellant, Kevin Boykin, was indicted for two counts of
indecency with a child—enhanced as a repeat sexual offender. TEX. PENAL CODE
ANN. §§ 21.11(a)(1), 12.42(c)(2) (West 2019). Appellant was later found to be
incompetent to stand trial and was committed for inpatient mental health services.
In March 2022, Appellant’s competency was restored, and the case proceeded to a
jury trial. The jury convicted Appellant of the charged offenses. Appellant elected
to have the trial court assess his punishment. The trial court subsequently found
Appellant’s prior felony conviction “true” and sentenced Appellant to life
imprisonment in the Institutional Division of Texas Department of Criminal Justice.
In four issues, Appellant challenges his conviction and contends that: (1) the
evidence is insufficient to support the jury’s finding that Appellant touched the
complainant’s genitals as charged in Count Two of the indictment; (2) the trial court
abused its discretion when it admitted extraneous-offense evidence concerning
comments Appellant allegedly made that he desired to have sexual relations with a
neighbor’s minor child; (3) the trial court erred when it overruled Appellant’s
objection to the admission of the contents of Appellant’s notebooks because this
evidence should have been excluded under Rules 403 and 404(b) of the Texas Rules
of Evidence; and (4) the trial court abused its discretion when it admitted Appellant’s
confession from a prior felony case in the guilt-innocence phase of his trial pursuant
to Article 38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 38.37 (West Supp. 2022); see also TEX. R. EVID. 403, 404(b).
I. Factual Background
On June 6, 2014, A.S. and T.B.1 were staying overnight with their aunt and
uncle, Stephanie and Corey Wishert, at the house that the Wisherts shared with
Appellant. At the time, A.S. was seven years old and T.B. was five years old. The
children were in the living room watching television while the adults were in the
garage, except for Appellant who had gone to his room earlier that night. While the
children were alone in the living room, Appellant entered the living room and asked
A.S. for a goodnight kiss. Appellant then pinned A.S. down, kissed her, moved his
hands under her nightgown and panties, and touched her chest and vagina. Appellant
then approached T.B. and touched T.B.’s penis and slapped his buttocks.
1
Pseudonyms are used for the children throughout the opinion to protect the children’s identities.
2
Appellant then left the living room and went into the garage. A.S.
and T.B. followed and told Stephanie what had occurred. Stephanie confronted
Appellant and asked “is this true?” to which Appellant responded “I don’t know.”
The next day, Stephanie called the Brown County Sheriff’s Department and reported
these incidents.
II. Procedural Background
During the trial, the trial court held multiple hearings outside the presence of
the jury to determine the admissibility of certain evidence proffered by the State.
A. Testimony Regarding Appellant’s Comments about the Neighbor’s Minor
Child
Prior to the presentation of witness testimony to the jury, the State proffered
testimony from Timothy Savell. According to Savell, while he shared a room with
Appellant, Appellant told Savell that he would like to have sex with the neighbor’s
minor child. The State contended that this evidence was admissible under
Rule 404(b). Appellant’s trial counsel objected to the admission of these comments
under Rule 403 and asserted that the probative value of Savell’s testimony was
outweighed by its tendency to prejudice the jury regarding the charges filed against
Appellant in this case. The State responded that the evidence is “probably some of
the most probative evidence that I have in the entire case” because it indicated
Appellant’s intent to commit the charged offense—indecency with a child. The trial
court, after conducting the Rule 403 balancing test, overruled the objection.
B. Testimony Regarding the Contents of Appellant’s Notebooks
The State proffered two notebooks kept by Appellant in which he wrote about
his sexual fantasies toward children. Appellant’s trial counsel objected to the
admission of the notebooks on the grounds that (1) Rule 404(b) precluded the
admission of the notebooks and (2) the thoughts and comments expressed by
Appellant in the notebooks were prejudicial. The State responded that the notebook
3
entries were indicative of Appellant’s motive and intent and were highly probative
of both because the notebook entries (1) tended to show how Appellant’s behavior
was sexual in this instance and (2) corroborated T.B.’s testimony that Appellant
spanked him because Appellant had noted fantasies about spanking young boys. The
State then moved to admit only certain excerpts from the notebooks through witness
testimony and agreed not to offer the notebooks as exhibits for the jury’s
consideration. Appellant’s trial counsel reasserted Rule 403 and 404(b) objections
to the admission of the specific notebook excerpts offered by the State. The trial
court overruled Appellant’s 404(b) objection and, after conducting the Rule 403
balancing test, overruled Appellant’s 403 objection.
C. Appellant’s Confession from a Prior Case
The trial court conducted an Article 38.37, Section 2-a hearing outside the
jury’s presence during which the State proffered Appellant’s signed confession from
a prior felony offense that occurred in 1993. Appellant’s trial counsel objected to
the admission of Appellant’s signed confession claiming that Article 38.37
precluded its admission. The State responded that the confession was admissible
under Article 38.37 because Appellant had committed one of the statute’s
enumerated offenses and the statute did not limit the admissibility of such evidence
to only the conviction itself. The State also argued that the details of Appellant’s
confession were admissible under Rule 404(b) to show motive, intent to arouse, lack
of mistake or accident, and common scheme or plan by discussing and comparing
the similarities between the prior offense and the current offense—the ages of the
victims, the acts committed toward minor children, and the gender of the children.
Appellant’s trial counsel re-urged his Rule 404(b) objection regarding the
confession’s admissibility. At the conclusion of this hearing, the trial court found
that (1) Appellant’s confession would be adequate to support a finding by the jury
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that Appellant committed the prior felony offense beyond a reasonable doubt and
(2) Appellant’s confession should be admitted.
III. Discussion
A. Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of the evidence to
support his conviction as charged in Count Two. He alleges that there was
insufficient evidence that he touched the complainant’s genitals. 2 Specifically,
Appellant contends that evidence of T.B.’s original outcry is insufficient to sustain
the conviction because T.B. could not recall the incident when he testified, there is
no physical evidence to connect Appellant to the charged offense, and the eyewitness
testimony offered by the State was brief and speculative.
1. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319, Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010).
In conducting a sufficiency review, we consider all of the evidence admitted
at trial, including evidence that may have been improperly admitted. Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 899;
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the
Although Appellant was also convicted of indecency with a child as charged in Count One of the
2
indictment, he does not challenge the sufficiency of the evidence to support his conviction for this offense.
5
factfinder’s role as the sole judge of the witnesses’ credibility and the weight their
testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard is deferential
and accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. We may not reevaluate the
weight and credibility of the evidence to substitute our judgment for that of the
factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Thus, if
the record supports conflicting inferences, we presume that the factfinder resolved
the conflicts in favor of the verdict, and we defer to that determination. Jackson,
443 U.S. at 326, Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012);
Clayton, 235 S.W.3d at 778.
The evidence need not directly prove the defendant’s guilt; circumstantial
evidence is as probative as direct evidence in establishing the defendant’s guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Carrizales v. State,
414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently
to the defendant’s guilt if the cumulative force of all incriminating circumstances is
sufficient to support the defendant’s conviction. Hooper, 214 S.W.3d at 13.
Therefore, in evaluating the sufficiency of the evidence, we treat direct and
circumstantial evidence equally, and we must consider the cumulative force of all
the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); Isassi, 330 S.W.3d at 638;
Hooper, 214 S.W.3d at 13.
2. Analysis
A person commits the offense of indecency with a child if the person engages
in sexual contact with a child younger than seventeen years of age. PENAL
§ 21.11(a)(1). Sexual contact means any touching by a person, including touching
6
through one’s clothing, of the anus, breast, or any part of the genitals of a child if the
act is committed with the intent to arouse or gratify the sexual desire of any person.
Id. § 21.11(c)(1).
The record shows that four witnesses testified that T.B. made an outcry of
being inappropriately touched by Appellant. T.B. made his initial outcry to
Stephanie shortly after the incident occurred. Stephanie testified that T.B. told her
that “[Appellant] had reached down his pants and touched his pee-pee.” Stephanie
also testified that when she was told about this, initially she was very upset and tried
to reconcile Appellant’s version of events with the children’s version. She stated
that when she asked Appellant about the incident his only response was “I don’t
know.” Stephanie testified that after she discussed what had occurred with both
children and Appellant that she “absolutely” believed the children and did not
believe Appellant “at all.” Stephanie also testified that later that same evening after
she had reflected and calmed down from the initial shock, she asked the children
again what had happened and T.B. told her again that Appellant had touched his
“pee-pee.”
Robert Ramirez, a former deputy with the Brown County Sheriff’s
Department, testified that T.B. outcried during his forensic interview. Similarly,
Investigator Chrisstena Nelson with the Texas Department of Family and Protective
Services conducted T.B.’s forensic interview and testified that T.B. outcried during
the interview. Investigator Nelson testified that, during the interview, T.B. stated
that Appellant had touched T.B.’s anus and his penis. Investigator Nelson also
testified that this statement was consistent with the outcry that T.B. made to his aunt.
In addition to the outcry evidence, there is other evidence that Appellant
touched T.B.’s genitals. A.S. witnessed the acts of sexual misconduct that Appellant
committed against T.B. A.S. testified that after Appellant had finished touching her,
she was “kind of disassociating or zoning out” but she believed that Appellant had
7
done “basically the same thing” to T.B. that he had done to her. A.S. clarified in her
testimony that she remembered Appellant touching T.B. and she thought that
Appellant had touched T.B.’s penis.
Despite this evidence, T.B. and Appellant both testified that Appellant did not
touch T.B.’s genitals. T.B. testified that he remembered Appellant picking him up
and slapping his buttocks over his clothing. When asked if he was touched in any
other way, T.B. answered “No.” Appellant testified that he did not touch T.B.’s
genitals and claimed that another houseguest was the person who had touched the
children inappropriately.
Consistent with the applicable standard, we have reviewed the evidence in the
light most favorable to the jury’s verdict. Stephanie testified that T.B. told her, not
just once, but twice, that Appellant touched his “pee-pee.” “A child victim’s outcry
statement alone can be sufficient to sustain a conviction for a sexual offense.”
Chavez v. State, 324 S.W.3d 785, 788 (Tex. App.—Eastland 2010, no pet.) (citing
Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)). Although T.B.
testified at trial that he had no recollection of being touched inappropriately by
Appellant, the jury as the sole judge of the credibility of the witness was free to
believe the outcry witness’s testimony and to disbelieve T.B.’s trial testimony on
this issue. We presume that the jury resolved any evidentiary conflicts in favor of
the verdict. Thus, considering the cumulative force of the evidence, we hold that the
record before us contains sufficient evidence from which a rational jury could have
logically inferred and found beyond a reasonable doubt that Appellant was guilty of
indecency with a child as charged in Count Two of the indictment. Accordingly, we
overrule Appellant’s first issue.
B. Evidentiary Issues
In his second and third issues, Appellant contends that the trial court abused
its discretion when it admitted (1) comments Appellant made that he desired to have
8
sexual relations with a neighbor’s minor child and (2) excerpt passages from
notebooks found in Appellant’s bedroom after his arrest.
In his fourth issue, Appellant contends that the trial court abused its discretion
when it admitted Appellant’s confession from a prior case. Specifically, Appellant
argues (1) that Article 38.37 does not allow for the admissibility of the details of the
prior offense, but only that the prior offense occurred and (2) the Gigliobianco
factors weigh against the admission of his confession. See Gigliobianco v. State,
210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
1. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
Ruiz v. State, 631 S.W.3d 841, 855 (Tex. App.—Eastland 2021, pet. ref’d) (citing
Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019)). This standard of
review also applies to a trial court’s decision to admit or exclude extraneous-offense
evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009);
Barron v. State, 630 S.W.3d 392, 410 (Tex. App.—Eastland 2021, pet. ref’d). We
will not reverse a trial court’s decision to admit or exclude evidence, and there is no
abuse of discretion, unless that decision lies outside the zone of reasonable
disagreement. De La Paz, 279 S.W.3d at 343–44; Ruiz, 631 S.W.3d at 856 (citing
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018)); Barron, 630 S.W.3d
at 410. Furthermore, we will uphold a trial court’s evidentiary ruling, even if the
trial court’s reasoning is flawed, if it is correct on any theory of law that finds support
in the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex.
Crim. App. 2016); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland
2015, no pet.).
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2. Applicable Law
Generally, a party may not introduce evidence of a person’s specific past
conduct to prove conformity of character. TEX. R. EVID. 404(b); Robbins v. State,
88 S.W.3d 256, 259 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810
S.W.2d 372, 386–88 (Tex. Crim. App. 1990)); Barron, 630 S.W.3d at 413.
Nevertheless, extraneous evidence may be admissible for other purposes if it has
relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457, 469
(Tex. Crim. App. 2011); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.
2003); Hernandez v. State, 426 S.W.3d 820, 825 (Tex. App.—Eastland 2014, pet.
ref’d). For instance, such evidence “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Thus, although
Rule 404(b) generally precludes the admission of character-conformity evidence, it
does not necessarily prohibit the admission of such evidence if it is offered to
establish some other purpose. See De La Paz, 279 S.W.3d at 342–43.
Article 38.37, Section 2(b), although similar to Rule 404(b), provides that
character evidence, that would otherwise be inadmissible under the Texas Rules of
Evidence or other applicable law, is admissible for any relevant purpose. There is a
significant difference, however, between Article 38.37 and Rule 404(b) evidence.
Article 38.37 evidence is admissible as proof of the defendant’s character as well as
defendant’s propensity to act in conformity with such character, so long as the
charged offense concerns one of the offenses enumerated in Article 38.37—
including indecency with a child. CRIM. PROC. art. 38.37 §§ 2(a)(1)(B), (b); see
Wishert v. State, 654 S.W.3d 317, 330 (Tex. App.—Eastland 2022, pet. ref’d);
Deggs v. State, 646 S.W.3d 916, 922 (Tex. App.—Waco 2022, pet. ref’d); Ryder v.
State, 514 S.W.3d 391, 398–99 (Tex. App.—Amarillo 2017, pet. ref’d); Harris v.
State, 475 S.W.3d 395, 398–400 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
10
Article 38.37, Section 2(b) allows for the admission of evidence that the defendant
has committed a separate offense of a sexual nature against a child; the “child
victim” of the separate offense need not be the victim of the offense for which the
defendant is currently on trial. Wishert, 654 S.W.3d at 330 (citing Deggs, 646
S.W.3d at 922; Ryder, 514 S.W.3d at 398–99; Harris, 475 S.W.3d at 398–400;
Belcher v. State, 474 S.W.3d 840, 844–47 (Tex. App.—Tyler 2015, no pet.)).
For this type of evidence to be admissible under Article 38.37, Section 2(b),
the defendant need not have been charged with, tried for, or convicted of the separate
offense. Castillo v. State, 573 S.W.3d 869, 880–81 (Tex. App.—Houston [1st Dist.]
2019, pet. ref’d). A no-billed sexual-assault offense committed against a child other
than the victim of the offense on trial is admissible. Bradshaw v. State, 466 S.W.3d
875, 880 (Tex. App.—Texarkana 2015, pet. ref’d). Moreover, Article 38.37,
Section 2(b) provides that such evidence is admissible only if the extraneous offense
is one of the specific offenses enumerated in its provisions, all of which involve
sexual misconduct of some sort. CRIM. PROC. art. 38.37, § 2(a), (b).
Before extraneous-offense evidence may be admitted pursuant to
Article 38.37, Section 2(b), the trial court must (1) 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, and
(2) conduct a hearing out of the jury’s presence for that purpose. Ryder, 514 S.W.3d
at 399; see CRIM. PROC. art. 38.37, § 2-a. In this case, the nature of the challenged
evidence would satisfy the admissibility requirements of Article 38.37, Section 2(b).
When evidence of a defendant’s extraneous acts is determined to be relevant
and admissible under Rule 404(b) or Article 38.37, Section 2(b), and a timely, proper
Rule 403 objection is made, the trial court must make a Rule 403 balancing
determination. Montgomery, 810 S.W.2d at 388–89; Keller v. State, 604 S.W.3d
11214, 228 (Tex. App.—Dallas 2020, pet. ref’d) (citing Distefano v. State, 532 S.W.3d
25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)).
“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d
235, 240 (Tex. Crim. App. 2009) (citing TEX. R. EVID. 402). Evidence is relevant if
it has any tendency to make a fact of consequence to the determination of the action
more or less probable than it would without the evidence. TEX. R. EVID. 401; see
Shuffield v. State, 189 S.W.3d 782, 786–87 (Tex. Crim. App. 2006). However,
Rule 403 provides that relevant evidence may nonetheless be excluded “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.”
TEX. R. EVID. 403 (emphasis added).
“Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence will be more probative than prejudicial.” Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 376);
see Martin v. State, 570 S.W.3d 426, 437 (Tex. App.—Eastland 2019, pet. ref’d).
“Rule 403 requires exclusion of evidence only when there exists a clear disparity
between the degree of prejudice of the offered evidence and its probative value.”
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). Therefore, in
reviewing a trial court’s Rule 403 determination, we will reverse the trial court’s
ruling only if a clear abuse of discretion is shown. Mozon v. State, 991 S.W.2d 841,
847 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 392; Martin, 570 S.W.3d
at 437.
When undertaking a Rule 403 analysis to determine whether to admit or
exclude evidence, a trial court must consider several factors (the Gigliobianco
factors) and balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest [a] decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
12
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence
already admitted.
Garcia v. State, 630 S.W.3d 264, 268 (Tex. App.—Eastland 2020, no pet.) (citing
Gigliobianco, 210 S.W.3d at 641–42). These factors guide our analysis.
3. Savell’s Testimony and Appellant’s Notebook Excerpts
Appellant’s second and third issues raise Rule 403 and 404(b) arguments
concerning (1) Savell’s testimony that detailed Appellant’s desire to have sex with
the neighbor’s minor child and (2) excerpts from Appellant’s notebooks that detailed
Appellant’s pedophilic fantasies. Turning first to Appellant’s Rule 404(b) argument,
he contends that his statements to Savell and his fantasies as contained in his
notebooks are not relevant for any purpose except to prove character conformity.
The State argues that this evidence is relevant to show that Appellant’s sexual
contact with the children was made with the requisite intent to arouse or gratify
Appellant’s sexual desire.
At the outset, we note that Appellant has not preserved for our review his
Rule 404(b) argument as it relates to Savell’s testimony. For a complaint to be
properly preserved for appellate review, a party must present a specific, timely
objection to the trial court that articulates and makes the trial court aware of the
specific grounds for the ruling that the complaining party seeks. See TEX. R.
APP. P. 33.1(a)(1)(A); Burg v. State, 592 S.W.3d 444, 448–49 (Tex. Crim. App.
2020); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). Further, the
complaint raised on appeal must correspond to and comport with the objection made
at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
Appellant objected under Rule 403 that the probative value of Savell’s
testimony was outweighed by its tendency to prejudice the jury regarding the charges
13
pending against Appellant in this case. As we have said, an objection asserted at
trial on one ground cannot support a different contention on appeal. Rezac v. State,
782 S.W.2d 869, 870 (Tex. Crim. App. 1990). As such, the arguments raised on
appeal must comport with the objections made at trial, or they are waived. TEX. R.
APP. P. 33.1(a)(1)(A); Dominguez v. State, 474 S.W.3d 688, 699 (Tex. App.—
Eastland 2013, no pet.). Therefore, Appellant has not preserved his Rule 404(b)
argument for our review.
Nevertheless, even if Appellant’s complaint had been preserved for our
review, we conclude that the trial court did not abuse its discretion when it admitted
Savell’s testimony. Evidence that Appellant expressed a desire to have sexual
contact with the neighbor’s minor child was not offered to show that Appellant acted
in conformity with the conduct leading to his conviction; rather, the evidence was
relevant to establish an element of the charged offense—that the contact was made
with the intent to arouse or gratify Appellant’s sexual desire. See PENAL
§ 21.11(c)(1).
Similarly, the trial court did not abuse its discretion when it overruled
Appellant’s Rule 404(b) objection to the admission of the notebook excerpts. The
notebooks similarly contained statements made by Appellant of his desire to have
sexual contact with minor children. In this instance, the admitted notebook excerpts
were relevant to a material, non-propensity issue—Appellant’s intent with respect to
his sexual misconduct with A.S. and T.B. See PENAL § 21.11(c)(1).
Because we have concluded that the above evidence had relevance apart from
character conformity, we now turn to Appellant’s Rule 403 objections. Appellant
argues that the probative value of the admitted evidence was substantially
outweighed by the danger of misleading or prejudicing the jury because Savell’s
testimony and the admitted notebook passages were unfairly prejudicial because
they described the most heinous acts—including bondage, aggravated assault,
14
pedophilia, spanking, anal intercourse, oral sex, and torture. The State contends that
(1) this evidence was highly probative because it describes Appellant’s intent to seek
sexual gratification from a minor child—an element of the charged offense—and
(2) the evidence is only prejudicial because it describes various manners in which to
sexually abuse a minor child—the same type of conduct that Appellant was currently
on trial for.
The first two Gigliobianco factors focus on the probative value of the
evidence. “Probative value” refers to (1) how strongly an item of evidence serves
to make more or less probable the existence of a fact of consequence to the litigation,
(2) coupled with the proponent’s need for that item of evidence. Gigliobianco, 210
S.W.3d at 641. First, Appellant’s desire to have sexual relations with minor children
makes it more likely that he would have pursued some form of inappropriate
interaction with A.S. and T.B. in this instance with the intent and purpose of arousing
his sexual gratification. Second, with respect for the State’s need for the evidence,
the State’s case pitted the outcry witnesses and victim’s version of the events against
Appellant’s denials. Appellant testified and denied that any conduct of a sexual
nature ever occurred between him and the children. Thus, Savell’s testimony and
the notebook excerpts rebutted Appellant’s denials and was relevant to show
Appellant’s intent. Therefore, we conclude that the first two Gigliobianco factors
weigh in favor of admission of this evidence.
The final four Gigliobianco factors focus on the potential negative effects of
the proffered evidence. The third factor addresses the tendency of the evidence to
suggest a decision on an improper basis. Indeed, evidence of a sexual nature that
involves children or family members is inherently inflammatory and prejudicial. See
Montgomery, 810 S.W.2d at 397; Roe v. State, 660 S.W.3d 775, 785 (Tex. App.—
Eastland 2023, pet. ref’d). This case is no exception. Savell’s testimony and the
notebook excerpts were undoubtedly inflammatory given their graphic nature.
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However, we note that the trial court limited the admission of both Savell’s
testimony and the notebook excerpts to those portions that the trial court found were
most relevant to Appellant’s desire to have sexual relations with minor children.
Thus, the trial court took adequate measures to mitigate and ensure that the
challenged evidence would not improperly influence the jury. See Roe, 660 S.W.3d
at 785; Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d);
Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d).
The fourth factor focuses on the potential of the proffered evidence to confuse
or distract the jury from the main issues in the case. This factor weighs in favor of
admission because the evidence was probative of the nature of the sexual contact
between Appellant and the children and his intent to arouse his sexual gratification
when engaging in the charged conduct. The fifth factor focuses on the potential of
the proffered evidence to mislead the jury. While the proffered evidence did not
pertain to the children who were the victims of the charged offense, as discussed
previously, it speaks to Appellant’s desire to attain sexual gratification from minor
children and assists in contextualizing Appellant’s conduct in this case. Finally, the
sixth factor focuses on the amount of time that was needed to present the proffered
evidence and whether it was cumulative of other admitted evidence. Savell’s
testimony concerning Appellant’s comments about the neighbor’s minor child
spanned just over a page in the reporter’s record. Further, the references to the
notebook excerpts spanned only four pages of the reporter’s record.
In short, Savell’s testimony and the notebook excerpts were certainly
prejudicial. But, to be excluded, the evidence must be unfairly prejudicial. See Ruiz,
631 S.W.3d at 865 (to be violative of Rule 403 the admitted evidence must be
unfairly prejudicial); see also TEX. R. EVID. 403. Under Rule 403, the probative
value of relevant evidence is presumed to substantially outweigh the danger of unfair
prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (citing
16
McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim. App. 1992), overruled on
other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994); Green v.
State, 840 S.W.2d 394, 410 (Tex. Crim. App. 1992)). It is only when there is a “clear
disparity” between the prejudice and the probative value of the offered evidence that
Rule 403 envisions exclusion. Hammer, 296 S.W.3d at 568 (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
Considering the standard of review, the applicable presumptions, and the
Gigliobianco factors, we cannot conclude that the trial court abused its discretion
when it overruled Appellant’s Rule 403 objections and admitted this evidence. See
Hammer, 296 S.W.3d at 568 (“Because Rule 403 permits the exclusion of admittedly
probative evidence, it is a remedy that should be used sparingly.”). Accordingly, we
overrule Appellant’s second and third issues.
4. Appellant’s Prior Case Confession
In his fourth issue, Appellant raises an Article 38.37 argument regarding the
admission of his confession from a prior case that resulted in his prior
felony conviction. Specifically, Appellant argues that the purpose and scope of
Article 38.37 is satisfied by evidence of the conviction alone and that the statute does
not expressly authorize the admission of the underlying details of the prior
conviction. The State contends that the plain text of the statute supports the
admission of the details of the prior offense when offered in a subsequent
prosecution.
Article 38.37, Section 2 states that “. . . evidence that the defendant has
committed a separate offense described by Subsection (a)(1) or (2) may be admitted
in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing
the evidence has on relevant matters.” CRIM. PROC. art. 38.37 § 2(b) (emphasis
added). The inclusion of the word “evidence” in Article 38.37, Section 2 is
inherently broad. Certainly, if the legislature had intended to limit the admissibility
17
of evidence of a prior conviction to only the conviction or the conviction’s
corresponding judgment, without any reference to the underlying facts or details of
the prior offense, the legislature would have instead included the words “conviction”
or “judgment” in the statute rather than “evidence.”
Further, the purpose of Article 38.37, Section 2 is to “provide prosecutors
with a much needed tool to assist them in showing a defendant’s propensity for
committing these types of crimes.” Senate Rsch. Ctr., Bill Analysis, Tex. S.B. 12,
83rd Leg., R.S. (2013). In enacting this statute, the legislative commentary states
that “[b]ecause of the nature of child sex offenses, there is typically very little
evidence to assist prosecutors with proving their cases.” Id. Thus, the legislature
found it necessary to expand the scope of admissible evidence in these types of cases
to include evidence of other incidents of sexual abuse that involve a different child
or multiple children, so that a jury can get a complete picture of the abuse that
occurred during the guilt/innocence phase of a defendant’s trial. See id. Given the
plain language and the legislative history of the statute, as well as existing precedent,
we conclude that the admission of evidence under Article 38.37 is not limited to only
the conviction itself.3
3
We have consistently held that Article 38.37, Section 2(b) provides for the admissibility of such
extraneous-offense evidence, including both the conviction itself and the underlying facts that resulted in
the defendant’s conviction. See Wishert, 654 S.W.3d at 333-34 (the defendant was convicted of continuous
sexual abuse of a young child and evidence of defendant’s sexual abuse of his adult children when they
were minors was properly admitted); Rojo v. State, No. 11-17-00225-CR, 2019 WL 3731382 (Tex. App.—
Eastland Aug. 8, 2019, pet. ref’d) (mem. op., not designated for publication) (the defendant was convicted
of several counts of indecency with a child and evidence of other sexual offenses committed by the
defendant against other children who were not the alleged victim at trial was properly admitted); Perez v.
State, No. 11-17-00206-CR, 2019 WL 3227575 (Tex. App.—Eastland July 18, 2019, no pet.) (mem. op.,
not designated for publication) (the defendant was convicted of one count of continuous sexual abuse of a
child and two counts of sexual assault and evidence of other acts of a sexual nature committed by the
defendant against a child victim was admissible); Jimenez v. State, No. 11-17-00065-CR, 2018 WL
3580879 (Tex. App.—Eastland July 26, 2018, no pet.) (mem. op., not designated for publication) (the
defendant was convicted of continuous sexual abuse of a child and evidence of other sexual offenses
committed by the defendant against the child victim and other children was admissible); Cornett v. State,
No. 11-16-00124-CR, 2018 WL 2437132 (Tex. App.—Eastland May 31, 2018, pet. ref’d) (mem. op., not
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Appellant further argues that even if the statute is construed to authorize the
admission of the underlying details of the prior offense, the details of Appellant’s
prior felony offense were dissimilar in magnitude and thus too prejudicial to be
admitted in the present case. The State contends that these details provided the jury
with a glimpse of Appellant’s thought processes in having previously committed
similar offenses, which is probative of Appellant’s intent to arouse his sexual
gratification in this case.
Appellant objected to the admission of this evidence, consistent with the first
part of his argument on this issue, on the ground that Article 38.37 is satisfied by the
admission of the judgment of conviction only. Appellant did not, however, make a
Rule 403 objection to the admission of this evidence. As we have said, to preserve
a complaint for appellate review (1) a party must have made a timely, specific
objection, request, or motion to the trial court that stated the specific grounds for the
ruling sought by the complaining party, unless the specific grounds were apparent
from the context, and (2) the trial court must have either ruled on or refused to rule
designated for publication) (the defendant was convicted of continuous sexual abuse of a child; the
defendant had a history of violent behavior toward his wife and children and had been investigated by CPS;
this evidence was relevant and admissible to “paint a full picture” of the family dynamic, the child victim’s
state of mind, and the relationship between the defendant and the child victim; the evidence also survived
a Rule 403 challenge); Shimp v. State, No. 11-16-00234-CR, 2017 WL 6395520 (Tex. App.—Eastland
Dec. 14, 2017, no pet.) (mem. op., not designated for publication) (the defendant was convicted of
indecency with a child and solicitation of prostitution and evidence of prior acts of indecency committed
by the defendant, although remote, were admissible to show the defendant’s propensity to commit sexual
offenses; the evidence was probative and survived a Rule 403 challenge); McKenzie v. State, No. 11-16-
00043-CR, 2017 WL 4440306 (Tex. App.—Eastland Sept. 29, 2017, pet. ref’d) (mem. op., not designated
for publication) (the defendant was convicted of continuous sexual abuse of a child and evidence that the
defendant had committed and was arrested for the offense of online solicitation of a minor was admissible
to show the defendant’s bad character); Luvano v. State, No. 11-14-00122-CR, 2016 WL 1725455 (Tex.
App.—Eastland Apr. 21, 2016, no pet.) (mem. op., not designated for publication) (the defendant was
convicted of indecency and evidence of prior acts of sexual misconduct committed by the defendant was
probative and admissible to show the defendant’s previous and subsequent relationship with the child
victim); Molinar v. State, No. 11-14-00302-CR, 2016 WL 1072641 (Tex. App.—Eastland Mar. 17, 2016,
no pet.) (mem. op., not designated for publication) (the defendant was convicted of indecency with a child
and evidence of other crimes of sexual misconduct committed by the defendant against “children other than
the victim” at trial was probative under Rule 403 and admissible).
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on the request. TEX. R. APP. P. 33.1(a); Burg, 592 S.W.3d at 448–49. Here, neither
occurred. Therefore, Appellant has not preserved his Rule 403 argument for our
review.
Nevertheless, even if Appellant had preserved his complaint for our review,
we conclude that the trial court did not abuse its discretion when it admitted
Appellant’s 1993 confession. The first two Gigliobianco factors, the probative value
and the proponent’s need for the evidence, weigh in favor of admission. The
evidence of Appellant’s extraneous conduct as contained in his 1993 confession was
highly probative because the State was required to prove that Appellant committed
the charged offense with the intent to arouse or gratify his sexual desire. Moreover,
Appellant’s confession detailed Appellant’s sexual assault of two young boys, ages
six and eight, by penetrating the children’s anuses and buttocks. While the nature
of the acts detailed in this confession are of a more extreme nature, the similarity
between the victims—young boys—and the similarity of the area on which the boys
were violated—the anus and the buttocks—are probative of the nature of the sexual
acts that Appellant committed against the children in this case. Further, the State’s
need to show Appellant’s character of being a child molester, which is a permissible
use of evidence under Article 38.37, is greater when Appellant claims that his
conduct was merely an innocent gesture that was misinterpreted. See CRIM. PROC.
art. 38.37, § 2(b). Contrary to Appellant’s assertion, this evidence showed that
Appellant’s contact with the children was neither innocent nor accidental.
The final four Gigliobianco factors—the potential negative effects of the
proffered evidence—do not outweigh the factors that support the admission of this
evidence. While the sexual acts contained in Appellant’s 1993 confession are of a
greater magnitude and a more graphic nature than the sexual acts for which
Appellant was charged in this case, we conclude that these prior acts do not reach
the level of unfair prejudice such that it would have confused, distracted, or misled
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the jury. None of the permissible uses of this proffered evidence under the applicable
evidentiary rules—namely Rule 403 and Article 38.37, Section 2(b)—weigh in favor
of a finding of unfair prejudice; Rule 403 only protects a criminal defendant against
unfair prejudice, not just any prejudice. See James v. State, 623 S.W.3d 533, 549
(Tex. App.—Fort Worth 2021, no pet.) (“Evidence is not excludable under Rule 403
if it is merely prejudicial; ‘all evidence against a defendant is . . . designed to be
prejudicial.’” (alteration in original) (quoting Pawlak v. State, 420 S.W.3d 807, 811
(Tex. Crim. App. 2013))); Ruiz, 631 S.W.3d at 865 (to be violative of Rule 403 the
admitted evidence must be unfairly prejudicial); see also TEX. R. EVID. 403. Finally,
the time needed to develop and admit the proffered evidence was not overly
burdensome and spans only six pages of the reporter’s record (which totals nine
volumes).
Because the proffered evidence was highly probative and carried a low
likelihood of unfair prejudice, we conclude that the trial court would not have abused
its discretion if it had performed a Rule 403 balancing analysis and in turn admitted
this evidence over a Rule 403 objection. Accordingly, we overrule Appellant’s
fourth issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
August 17, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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