Opinion issued August 9, 2016.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00409-CR
                            ———————————
                  CURTIS SYLVESTER BABERS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 209th District Court
                            Harris County, Texas
                        Trial Court Case No. 1299015


                        MEMORANDUM OPINION

      The jury found appellant, Curtis Sylvester Babers, guilty of the second-degree

felony offense of sexual assault and assessed his punishment at twenty years’

confinement in the Texas Department of Criminal Justice, Institutional Division and

a $10,000 fine. On appeal, appellant argues that the trial court erred by overruling
his objections and admitting (1) testimony that he was watching pornographic

movies and masturbating four hours after the commission of the alleged offense, and

(2) a box of approximately fifty pornographic DVDs belonging to him. We reverse

and remand for a new trial.

                                    Background

      Appellant was arrested on March 15, 2011 and subsequently charged with

sexually assaulting his adult daughter, C.B.

      At trial, C.B. testified that her father, appellant, came to stay with her and her

four-year-old son on March 6 or 7, 2011. According to C.B., appellant slept on her

living room couch while she and her son shared the apartment’s only bedroom. The

bedroom contained a queen-sized bed for C.B. and a twin-sized bed for her son.

Before moving in with C.B., appellant had been living with his girlfriend, Cynthia,

and her daughter, C.E.

      C.B. testified that when she arrived home from work the evening of March

12, 2011, she saw appellant drinking and watching television in her living room.

After settling in for the night and putting her son to bed, C.B. had a beer with

appellant in the living room. C.B. then retired to her room and went to sleep around

10:30 p.m.

      At 2:30 a.m., C.B. awoke to find appellant in her bedroom performing oral

sex on her while he masturbated. C.B. testified that after she “felt the lick of a


                                           2
tongue” on her vagina and the “flick of a finger on [her] clitoris,” she opened her

eyes and saw appellant next to her bed. According to C.B., appellant’s mouth and

tongue were in her vagina and he was masturbating with his left hand.

      Shocked and afraid, C.B. “jumped up and snatched the covers up over”

herself. Appellant ran out of the room. When appellant attempted to return to her

bedroom shortly thereafter, C.B. turned the light on and told appellant that he needed

to leave her home. C.B. testified that she was unaware of what appellant was doing

to her when she was asleep and that she did not consent to what had transpired

between them.

      C.B., who was afraid of appellant, waited until she thought that appellant was

gone before she got out of bed again. When C.B. walked into her living room shortly

after 6:30 a.m., however, she saw appellant was still in her home—watching

pornography and masturbating. C.B. asked appellant to leave, but he refused. At that

point, C.B. and her son left the apartment and went to stay with a friend.

      After she learned that appellant was still living in her apartment, C.B. reported

the sexual assault to the Houston Police Department on March 15, 2011. Appellant

was arrested at C.B.’s apartment that same day. At some point during the

investigation, C.B. gave HPD a box containing approximately fifty pornographic

DVDs that appellant had brought with him when he moved into C.B.’s apartment.




                                          3
       After his arrest, appellant gave a recorded statement to police in which he

claimed that, among other things, he and C.B. had been drinking that night and C.B.

was confused about what happened. According to appellant, he went into C.B.’s

bedroom looking for tobacco rolling papers, and he stumbled and fell, causing his

hand to strike C.B.’s stomach. A redacted version of appellant’s statement was

admitted at trial.

       Three HPD officers also testified at appellant’s trial. Although five officers

were present at C.B.’s apartment complex on March 15, 2011, none of the officers

photographed the scene or collected any evidence from her apartment, e.g., C.B.’s

bedding and the nightgown she was wearing when the assault occurred. The officers

also did not attempt to collect any physical evidence from C.B.’s person because she

had waited two days to report the assault and, by that time, had already showered.

In fact, aside from appellant’s redacted audio statement to police and the box of

DVDs, the only other evidence admitted during the guilt/innocence phase of

appellant’s trial consisted of two maps showing the location of C.B.’s apartment

complex, a photograph of the outside of C.B.’s apartment complex, a floor plan of

C.B.’s apartment, a photograph of appellant from March 2011, and a Texas Statutory

Warning blue card.




                                          4
      The State called twenty-four-year-old C.E. as its final witness during the

guilt/innocence phase of trial.1 C.E. testified that appellant had been living with her

and her mother until appellant moved out sometime in March 2011.

      Before trial, appellant objected to the admission of a box of pornographic

DVDs, and to any testimony regarding C.B.’s observations of him watching

pornography and masturbating within hours of the alleged sexual assault, based on

Texas Rules of Evidence 404(b) and 403. The State argued that the evidence was

admissible because it was “all part of the context of the crime.” When appellant

sought clarification regarding the basis on which the State was offering the evidence

in order to determine whether he needed to request a limiting instruction, as well as

for purposes of appeal, the prosecutor acknowledged that she was not offering the

evidence for a limited purpose as allowed by Rule 404(b); rather, she was offering

it as contextual evidence that was relevant to appellant’s intent and state of mind.2

The court overruled appellant’s objections and granted him a running objection. The


1
      The significance of C.E.’s brief testimony, however, likely was not apparent to the
      jury until C.E. testified again during the punishment phase of appellant’s trial.
      During the punishment phase, C.E. testified that appellant began living in the
      apartment C.E. shared with her mother in early 2011. One night after appellant
      moved in, C.E. woke up around midnight, and discovered appellant standing at the
      end of her bed, penetrating her vagina with his finger. This alleged assault would
      have occurred shortly before appellant moved in with C.B. and her son in March
      2011.
2
      The prosecutor also informed the court that she would be offering the box of
      pornographic DVDs “to also corroborate what [C.B.] was saying that she observed
      her father doing. So, that evidence would be also further corroboration to [C.B.].”

                                           5
trial court also noted that because the State was arguing only that the evidence was

admissible as contextual evidence, appellant was not entitled to a limiting

instruction.3

      The prosecutor discussed the box of pornographic DVDs and appellant’s

conduct after the sexual assault in her opening and closing statements to the jury

during the guilt/innocence phase. Specifically, in her opening statement, the

prosecutor informed the jury that the evidence would show that appellant, “who had

been watching inappropriate videos on the television, had been masturbating, came

into her bedroom, lifted up her nightgown and proceeded to have oral sex with her,

touch her vagina with his hands while he was masturbating.” The prosecutor further

contended that the evidence would also show that:

      when [C.B.] left [her apartment] at 7 o’clock in the morning after that
      terrible night with her little boy that she observed her father to still be
      watching his dirty videos and to still be masturbating in her home. At
      the conclusion of this case, the evidence will show you that [appellant]
      just could not help himself.

In her closing statement to the jury, the prosecutor argued:




3
      Specifically, the trial court stated: “Okay. Your 404(b)—whether that’s—and that
      is not the reason they are offering it—is overruled. 403 is also overruled. And you’re
      not going to ask for a limiting instruction because it’s contextual.” As the trial court
      correctly noted, a limiting instruction is not required when evidence of extraneous
      offenses is admitted as same transaction contextual evidence. Devoe v. State, 354
      S.W.3d 457, 471 (Tex. Crim. App. 2011).

                                             6
      Why is [appellant] in his daughter’s bedroom at 2:30 in the morning
      after watching pornos,4 jacking off, saying he fell? Use your common
      sense. That’s exactly what I’m asking you to do.

      ....

      What was . . . that disgusting man doing in his daughter’s bedroom that
      night? He couldn’t help himself. He was watching his pornos. And you
      can look. There are 50 of them in this box. Watching his pornos,
      masturbating, getting drunk, and he could not help himself. That nasty,
      disgusting man went into the daughter’s bedroom where his grandson
      sleeps.

At the jury’s request, “all” of the evidence in the case, including the box of

pornographic DVDs, was provided to the jury during their deliberations.

      The jury found appellant guilty of sexually assaulting C.B. and assessed his

punishment at twenty years’ confinement and a $10,000 fine. This appeal followed.

                     Same Transaction Contextual Evidence

      Appellant argues that the trial court abused its discretion by admitting C.B.’s

testimony that she observed him masturbating and watching pornography in her

living room four hours after the alleged sexual assault, and the box of pornographic

DVDs because such evidence was inadmissible as character-conformity evidence

under Rule of Evidence 404(b), and, the evidence was more prejudicial than

probative, in violation of Rule of Evidence 403. See TEX. R. EVID. 403, 404(b).


4
      Although the State argued that appellant had been watching pornography before he
      assaulted C.B., there is no evidence in the record to support such an assertion. C.B.
      testified that when she arrived home on March 12, 2011 appellant was watching
      “[j]ust regular TV, something regular on TV.”

                                            7
      The State responds that the evidence was admissible as same transaction

contextual evidence, and the trial court did not abuse its discretion in applying the

Rule 403 balancing test and deciding that the evidence was more probative than

prejudicial. The State further responds that even if the trial court abused its discretion

by admitting this evidence, such errors were harmless.

A.    Standard of Review and Applicable Law

      Under Texas Rule of Evidence 404(b), evidence of extraneous crimes,

wrongs, and other bad acts is not admissible at the guilt/innocence phase of trial to

prove that a defendant committed the charged offense in conformity with a bad

character trait. TEX. R. EVID. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex.

Crim. App. 2011). Such evidence, however, may be introduced if it constitutes same

transaction contextual evidence. Devoe, 354 S.W.3d at 469.5 When different crimes

are intermixed in such a way that they form an indivisible criminal transaction, and

full proof by testimony of any one of these crimes cannot be given without revealing

the others, such crimes are collectively referred to as same transaction contextual


5
      The Court of Criminal Appeals has delineated two types of background evidence:
      (1) same transaction contextual evidence; and (2) background contextual evidence.
      Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (citing Mayes v. State,
      816 S.W.2d 79, 86–87 (Tex. Crim. App. 1991)). Background contextual evidence
      offered only for the reason that it is “background” evidence and therefore helpful to
      the jury is not admissible under Rule 404(b). See Rogers, 853 S.W.2d at 33 n.5
      (discussing Mayes). Background contextual evidence, however, may be admissible
      for specific, non-character-conformity purposes, such as to prove motive,
      opportunity, intent, preparation, or plan, pursuant to Rule 404(b)(2). TEX. R. EVID.
      404(b)(2).
                                            8
evidence. Id. Same transaction contextual evidence, however, is only admissible if

the facts and circumstances of the charged offense would make little or no sense

without also bringing in the same transaction contextual evidence. Id. In other words,

same transaction contextual evidence is only “where such evidence is necessary to

the jury’s understanding of the instant offense.” Rogers v. State, 853 S.W.2d 29, 33

(Tex. Crim. App. 1993) (emphasis in original).

      Such evidence is admitted, not because it has any particular evidentiary

purpose, but rather, because in narrating the one offense, it is impracticable to avoid

describing the other extraneous offense. See Mayes v. State, 816 S.W.2d 79, 86–87

(Tex. Crim. App. 1991). Thus, same transaction contextual offense evidence

illuminates the nature of the crime alleged by imparting to the trier of fact

information essential to understanding the context and circumstances of events. See

Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

      In order to be admissible, same transaction contextual evidence must also

satisfy Rule 403’s balancing test. TEX. R. EVID. 403. Under Rule 403, relevant

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice.6


6
      A Rule 403 analysis by the trial court should include, but is not limited to, the
      following considerations: (1) the probative value of the evidence; (2) the potential
      of the evidence to impress the jury in some irrational, indelible way; (3) the time
      needed by the proponent to develop the evidence; and (4) the proponent’s need for
      the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

                                           9
      A trial court’s ruling on the admissibility of evidence is reviewed under an

abuse-of-discretion standard. Devoe, 354 S.W.3d at 469. As long as the trial court’s

ruling is within the “zone of reasonable disagreement,” there is no abuse of

discretion and the trial court’s ruling will be upheld. Id.

B.    Analysis

      In this case, appellant was charged by indictment with “unlawfully,

intentionally and knowingly” causing C.B.’s sexual organ, i.e., her vagina, to contact

appellant’s mouth, without C.B.’s consent, and knowing that C.B. “was unaware that

the sexual assault had occurred.” After reviewing the record, it is apparent that C.B.’s

testimony about the sexual assault, standing alone, was sufficient for the jury to

understand the nature of the crime committed against her. It was not necessary for

the jury to know about appellant’s pornography collection, or to hear that C.B. had

seen appellant watching pornography and masturbating four hours after the assault

in order for the jury to understand that appellant had sexually assaulted C.B. by

performing oral sex on her while she was asleep. The jury’s understanding of the

charged offense would not have been impaired or clouded had C.B. described the

events surrounding the sexual assault without mentioning the extraneous

information. Therefore, the testimony about appellant’s conduct four hours after the

sexual assault, and his possession of a box of pornographic DVDs, were not

admissible under the same-transaction-contextual-evidence exception to Rule


                                           10
404(b). See Devoe, 354 S.W.3d at 469; see also Delgado, 235 S.W.3d at 253 (“Same

transaction contextual evidence refers to those events and circumstances that are

intertwined, inseparable parts of an event that, if viewed in isolation, would make

no sense at all.”).

       Accordingly, we hold that the trial court abused its discretion when it admitted

the complained-of evidence and testimony on this basis.7

                                         Harm

       Having determined that the trial court erred by admitting testimony regarding

appellant’s box of pornographic DVDs and C.B.’s observations of appellant

watching pornographic movies and masturbating after he sexually assaulted her, as

well as the box of DVDs itself, we must now determine whether appellant was

harmed by these errors.

A.     Standard of Review and Applicable Law

       The introduction of extraneous offense evidence is “inherently prejudicial,

tends to confuse the issues, and forces the accused to defend himself against charges

not part of the present case against him.” Sims v. State, 273 S.W.3d 291, 294–95

(Tex. Crim. App. 2008) (quoting Pollard v. State, 255 S.W.3d 184, 187–88 (Tex.




7
       Having determined that the evidence was inadmissible under the same-transaction-
       contextual-evidence exception to Rule 404(b), we do not need to consider whether
       such evidence is also more prejudicial than probative in violation of Rule 403. See
       TEX. R. EVID. 403, 404(b).
                                           11
App.—San Antonio 2008), aff’d, 277 S.W.3d 25 (Tex. Crim. App. 2009)); accord

Carter v. State, 145 S.W.3d 702, 710 (Tex. App.—Dallas 2004, pet. ref’d). “By its

very nature, an improperly admitted extraneous offense tends to be harmful. It

encourages a jury to base its decisions on character conformity, rather than evidence

that the defendant committed the offense with which he or she has been charged.”

Jackson v. State, 320 S.W.3d 873, 889 (Tex. App.—Texarkana 2010, pet. ref’d).

      We review the erroneous admission of extraneous offense or extraneous bad

act evidence for non-constitutional error under Texas Rule of Appellate Procedure

44.2(b). TEX. R. APP. P. 44.2(b); Martin v. State, 176 S.W.3d 887, 897 (Tex. App.—

Fort Worth 2005, no pet.). Under Rule 44.2(b), we are to disregard the error unless

it affected appellant’s substantial rights. TEX. R. APP. P. 44.2(b). A substantial right

is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253

(1946)); Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex. App.—Fort Worth

1998, pet. ref’d). Conversely, an error does not affect a substantial right if we have

“fair assurance that the error did not influence the jury, or had but a slight effect.”

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

      In making this determination, we review the record as a whole, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of


                                          12
the evidence supporting the verdict, and the character of the alleged error and how

it might be considered in connection with other evidence in the case. Motilla v. State,

78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury

instructions, the State’s theory and any defensive theories, whether the State

emphasized the error, closing arguments, and even voir dire, if applicable. Id. at 355–

56.

B.    Analysis

      Evidence of an extraneous offense or bad act is “inherently prejudicial” to a

defendant, given its propensity to confuse the issues and encourage the jury to base

its decisions on character conformity, rather than the evidence. See Sims, 273 S.W.3d

at 294–95; Jackson, 320 S.W.3d at 889. Accordingly, the character of the

erroneously admitted extraneous evidence in this case, i.e., evidence of appellant’s

extraneous bad acts, weighs in favor of a finding of harm.

      Our concerns about the character of the erroneously admitted evidence are

enhanced when we consider the overall paucity of evidence in this case and the

nature of the evidence supporting the verdict. The evidence supporting appellant’s

guilty verdict consists primarily of C.B.’s testimony and, to a lesser extent,

appellant’s statement to police in which he acknowledged being in C.B.’s bedroom

the night the alleged sexual assault occurred. In fact, C.B.’s testimony and

appellant’s statement are the only evidence of the sexual assault. There is no physical


                                          13
evidence linking appellant to the charged offense or even establishing that a sexual

assault occurred.8 The other evidence and testimony admitted at trial establishes

largely tangential matters, largely irrelevant to the commission of the offense, such

as the location and appearance of C.B.’s apartment complex, the floor plan of C.B.’s

apartment, appellant’s appearance in March 2011, and HPD’s investigation of the

case.

        Although the amount of testimony and time spent developing the erroneously

admitted evidence during appellant’s one-day trial was relatively small, our concern

about the harmfulness of the errors in this case is further enhanced by the

prosecutor’s repeated references to the evidence in both her opening and closing

statements, as well as some of the language she used to refer to appellant.

        The State argued, in its opening statement, that appellant had been “watching

inappropriate videos on the television, had been masturbating, came into [C.B.’s]

bedroom,” and when observed at seven o’clock in the morning appellant was found

to “still be watching his dirty videos and to still be masturbating in her home.” In

closing, the State argued appellant came into “his daughter’s bedroom at 2:30 in the

morning after watching pornos, jacking off,” and “[h]e couldn’t help himself. He



8
        We are not suggesting that the evidence supporting the jury’s verdict was
        insufficient. Indeed, the testimony of a single witness can be sufficient evidence to
        support a conviction. Shah v. State, 414 S. W.3d 808, 812 (Tex. App.—Houston
        [1st Dist.] 2013, pet. ref’d).
                                             14
was watching his pornos. And you can look. There are 50 of them in this box.

Watching his pornos, masturbating, getting drunk, and he could not help himself.”

These statements are completely unsupported by the record. There is no evidence

about porno watching or masturbation until hours after the incident. The introduction

and use of the evidence exceeds use as contextual evidence and borders on use as

character conformity evidence. Our evaluation of the potential harm of this evidence

has to take into consideration that this evidence was introduced in a one-witness,

four year-old, no-forensic-evidence case and could have had the effect of convincing

the jury that appellant was more likely to have committed this crime because he was

a “nasty, disgusting man.” While such an inference may be supported by the

evidence, that is not, in and of itself, a crime and does not support the conviction,

unless one can assume that his character is such that he would be more likely to

commit such a crime, and that the law forbids us to do. See Devoe, 354 S.W.3d at

469.

       Given the character of the erroneously admitted evidence, the paucity of the

other evidence in this case, and the State’s references in its opening and closing

statements to the box of pornography and C.B.’s testimony regarding appellant’s

lewd behavior four hours after the sexual assault, the erroneously admitted evidence

had an enormous potential to encourage the jury to base its decision on character




                                         15
conformity (i.e., that appellant was, as the State argued in its closing statement, a

“nasty, disgusting man,” who “couldn’t help himself”).

      In light of these facts and our review of the entire record, we have grave doubts

that the erroneous admission of the evidence did not substantially affect the outcome

of appellant’s trial. See Motilla, 78 S.W.3d at 355. Accordingly, we hold that the

admission of the box of pornographic DVDs and C.B.’s testimony that she saw

appellant masturbating and watching pornography four hours after the sexual assault

were harmful errors. TEX. R. APP. P. 44.2(b).

                                    Conclusion

      We reverse the trial court’s judgment and remand for a new trial.




                                                Russell Lloyd
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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