                      /669/V
                PDR#
                                                 ORIGINAL
APPEAL FROM THE 128TH JUDICIAL DISTRICT
                    COURT
   TRIAL COURT CAUSE NUMBER 080508R
       OF ORANGE COUNTY, TEXAS
     Hon. Courtney Arkeen, Judge Presiding



 TRANSFERRED FROM THE 9TH COURT OF
  APPEALS TO 14th Case # 14-13-00650-CR

MOTION FOR PETITION FOR DISCRETIONARY
                   REVIEW

                                           cRECEIVED IN
  PRO- SE MOTION BY ERIC WILLIAM^criminaiappeals
             P.O. Box 776         FEB 20 2015
           Orange, Texas 77631-776           AtmiActm Ctok
               (409)728-3131                         ,U**
          (337) 936-0773—Alternate
      E-mail: ericwill86.ew@gmail.com          FILED IN
              February 19,2015        C0UftT of criminal appeals
                                                 F£3 2 o 2015

                                              Aocjj Acosta, Clerk
        IDENTITY OF PARTIES AND COUNSEL



Appellant: ERIC JARROD WILLIAMS

Trial Counsel: Joe Alford
105 S. Market Street
Orange, TX 77630
State Bar No. 1012500


Appellate COUNSEL: N/A

PRO-SE MOTIONS: Eric Jarrod Williams



Appellee: State of Texas
Counsel: Phillip C. Smith, Jr.
(Trial and Appeal) Orange County Assistant District
Attorney
801 W Division Ave.
Orange, TX 77630
State Bar No. 797460
                                      IN THE


                        COURT OF CRIMINAL APPEALS


                SUPREME JUDICIAL DISTRICT PDR #

                            ERIC JARROD WILLIAMS


                                     Appellant

                                           V.


                              THE STATE OF TEXAS


                                      Appellee




TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
Now comes Eric Jarrod Williams, appellant in the above-captioned cause, by and
   through, and submits this motion for Petition For Discretionary Review


                                       Background

      On May 15, 2013, Appellant was convicted by a Jury Panel of the offense

Indecency With A Child By Exposure 21.11(a) (2) (A) Of the Texas Penal Code and

given-a sentence of Ten years confinement in TDCJ and a $5,000 fine by the Bench

on June 14, 2013. The Bench ordered that the sentence be probated for a period of

ten years with 180 days to be served as upfront time In the County Jail as a

condition of probation and a $5000 fine.
On September 23, 2014, the Honorable14th Court of Appeals denied relief for Appellant,

and affirmed the judgment of the trial court. The Motion for Petition for Discretionary

Review is due on February 20, 2015.

The sole issue on appeal was whether the trial court erred in denying the appellant a

hearing on his motion for new trial. The opinion predicates its holding on two grounds:

       In two issues, appellant argues that (1) the trial court erred in admitting evidence

of extraneous offenses allegedly committed by appellant; and (2) the evidence presented

at trial was legally and factually insufficient to establish that appellant committed the

specific offense.

       Appellant believes the record demonstrates otherwise and prays to the court that

this case is accepted and reviewed by the Court of Criminal Appeals.

                                   Presentment of the Motion


       The supplemental record filed by the trial court in this case contains case events

submitted to the court of appeals of events were alleged to have taken place in violation

of Rule 404(b) of the Texas Rules of Evidence. Appellant contends in his first issue that

the trial court violated Texas Rule of Evidence 404(b) by admitting evidence of

extraneous offenses allegedly committed by appellant during the guilt-innocence phase

of his trial. The extraneous offenses at issue were incidents in which appellant allegedly

watched pornographic movies and exposed his genitals in front of                     and an

incident in which appellant allegedly watched a pornographic movie and masturbated

with Desmond Burnette. Appellant asserts that, because the incident upon which the
State elected to base the indictment was a specific event. In fact the event in the

indictment was not the event chosen to be the event used in the guilt phase to the jury

panel. This event contained a specific event sworn by Detective Jefferson- Simon but not

by Detective Davis, who was the initial Detective in the case. Evidence of extraneous

offenses committed by appellant against                  and an extraneous offense

committed by appellant against Desmond Burnette and Chris Janice was inadmissible.

       After hearing            testimony and arguments the issue, the trial court issued a

letterruling that the extraneous offenses would be admissible with a limiting instruction

in the Court's charge. (C.R. 21). The following day, the court further explained that it

was allowing the evidence for purposes of showing motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. (4 R.R. 12).

Appellant's counsel then specifically asserted objections to each of these grounds

individually. (4 R.R. 13-15).Appellant's objections were noted and overruled. (4 R.R.

17). In this Case Appellant states the trial court violated Rule 404(b) of the Texas Rules

of Evidence due to there was no mistaken identity in this case. This case, Appellant

would urge that the State failed to establish that the various extraneous offenses alleged

in this case were admissible under any of the exceptions enumerated in Rule 404(b). For

example, the case relied upon by the State at the pretrialhearing to show admissibility of

the evidence for purposes of identity," Segundo v. State, 270 S.W.3d 79 (Tex. Crim.

App. 2008), is distinguishable because "identity" was not a true issue in this case. This

case did not involve a situation where in a crime was committed and there was a genuine
question of what person committed the crime. Rather, Appellant's defense was simply

that the events alleged never occurred at all.

       Thus, extraneous allegations do not show a modus operandi that links a particular

perpetrator to a known crime; to the contrary, they were used in this case simply to

bolster the idea for the jury that there were so many allegations against Appellant that he

mustbe guilty of them all. SeeSegundo, 270 S.W. 3d at 87-88. The othercase relied

upon by the State initiatives argument is also distinguishable.



       In Schexnider v. State, 943 S.W.2d 194 (Tex. App.—Beaumont 1997, no pet.), the

court held that in the Defendant's capital murder trial, evidence of the dismemberment of

the corpse was admissible as an extraneous offense because it was interwoven with the

indicted offense to the extent that it was part of the same contextual transaction



       The State/ Appellant Courts argues that the trial court did not abuse its discretion

because the identity of appellant was at issue. We disagree that identity was at issue. The

dispute at trial focused not on the identity of the person who exposed himself to

but on whether           was credible and whether the incident occurred. However in any

case where there is a question of actual evidence then reliability becomes the over

weighing factor beyond a reasonable doubt.             did state he had an extensive

criminal history along with State's other witness Desmond Burnette. (For Further See

C.R. v4 of 7 page 58 Line                        and pg 181 Line 22 Desmond Burnette.)
       Extraneous Offense against Desmond Burnette, the states alleges that Desmond

Burnette testified/agreed to masturbating for money, which nowhere in his testimony

does he state this or his written statement. The testimony includes this:

       THE STATE: OKAY. NOW, WHAT HAPPENED WHEN YOU GOT TO HIS GRAND

       MOTHER'S HOUSE IN CLAIRMONT?




       DESMOND BURNETTE: WHEN HE GOT THERE, HE HAD HE HAD HE HAD GOT

       A TOWEL OUT AND STUFF AND A - AND A LAPTOP, HIS LAPTOP. THEN

       WHEN THEYHAD PUT ON SOME PORNO AND THEYSTART—THEY START

       PLAYING WITH THEMSELVES (SIC) AND I HAD WALKED OUT BECAUSE I

       DON'T-1 TOLD THEM, "I DON'T DO THAT STUFF."




The actual "incident" upon which the Indictmentis based and conviction sought was a

single specific event alleged to have taken place in the bedroom of Appellant, in the

presence of, Chris Janice. (C.R. 47 atf 5; 5 R.R. 49). Nonetheless, the State offered

testimonial evidence of various other alleged events that purportedly took place in

different locations, under different circumstances, and involving different people. For

example, Victim testified about a pornography viewing and group masturbation event

that allegedly occurred in a parking lot across the street from         aunt's house (3 R.R.

9-11); an event that occurred at Appellant's home while           was skipping school, with
no other participants (4R.R. 78-79); and occurrences on two or three occasions in Vinton,

Louisiana. (3R.R. 16; 4 R.R. 52, 79-80).

                also testified as to alleged acts or offenses that were different than the act

alleged in the indictment; specifically,          testified that Appellant made requests for

         to masturbate him, to allow Appellant to masturbate              and to perform

oral sex on Appellant, although none of those requests were fulfilled. (4 R.R. 55). The

pornography alleged bythe victim to be shown was homemade and unfounded by analyst

research. Neither Burnette nor       could identify or describe any of the videos and this

evidence was excluded. Defense also submitted on Defense exhibit #4 a recorded

conversation between the victim and Appellant to where victim admitted that none of

these events ever happened. This exhibit was objected by Judge Arkeen from being

played in the trial. When questioned about the recorded the victim stated, " No he didn't

ever call and that he would have to hear it. Judge Arkeen reviewed the records and told

thejury there was a conversation between Victim and Appellant. The Questionable fact

of this is based off of hear say verses no evidence. If none of the alleged homemade

videos were found or allowed in the trial. The answer is where and how did the appellant

expose his genitals to anyone?



       Evidence is relevant if it has a "tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less
Probable than it would be without the evidence." TEX. R. EVID., Rule 401. Evidence

that is not relevant is inadmissible. TEX. R. EVID., Rule 402. Further, rule 404(b) of the

Texas Rules of Evidence reads, in pertinent part,

as follows:

       Evidence of other crimes, wrongs or acts is not admissible to prove the

Character of a person in order to show action in conformity there with. It may, however,

be admissible for other purposes, such a proof of Motive, opportunity, intent, preparation,

plan, knowledge, identity, or Absence of mistake or accident....

       TEX. R. EVID., Rule 404(b). This rule "incorporates the fundamental tenet of our

criminal justice system that an accused may be tried only for the offense for which he is

charged and not his criminal propensities." Rankin v. State, 91A S.W.2d 707,718 (Tex.

Crim. App. 1998) (op. on reh'g).

       Upon objection to extraneous offense evidence, the proponent of such

evidence bears the burden of showing that the evidence has relevance apart from

Its character conformity value. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim.

App. 1997). "If the evidence has no relevance apart from supporting the conclusion

11 that the defendant acted in conformity with his character, it is absolutely

Inadmissible." Id.

       In this case, Appellantwould urge that the State failed to establish that the

various extraneous offenses alleged in this case were admissible under any of the

exceptions enumerated in Rule 404(b). Forexample, the case relied upon by the

State at the pretrial hearing to show admissibility of the evidence for purposes of
                                              9
"Identity," Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), is distinguishable

because "identity" was not a true issue in this case. This case did not involve a situation

where in a crime was committed and there was a genuine question of what person

committed the crime. Rather, Appellant's defense was simply that the events alleged

never occurred at all. Thus, extraneous allegations do not show a modus operandi that

links a particular perpetrator to a known crime; to the contrary, theywere used in this

case simply to bolster the idea for the jury that there were so many allegations against

Appellant that he must be guilty of them all. See Segundo, 270 S.W. 3d at 87-88. The

other case relied upon by the State in its argument is also distinguishable. In Schexnider

v. State, 943 S.W.2d 194 (Tex.App.—Beaumont 1997, no pet.), the court held that in the

Defendant's capital murder trial, evidence of the dismemberment of the corpse was

admissible as an extraneous offense because it was interwoven with the indicted offense

to the extent that it was part of the same contextual transaction. 943 S.W.2d at 201-202.

That 12doctrine is not applicable in this case, however, as the various allegations made

against Appellant at the trial involved distinct and completely unrelated events, locations,

and participants rather than a single continuous transaction.

       Further, the extraneous offenses could not be admissible under the "plan"

exception to Rule 404(b). As succinctly stated by the Court of Criminal Appeals:

Repetition of the same act or same crime does not equal a "plan." It equals the repeated

commission of the same criminal offense offered obliquely to show bad character and

conduct in conformity with that bad character—"once a thief, always a thief." This bad-

character conformity purpose, whether express or not, is precisely what is barred

                                              10
by Rule 404(b). Thus, if the proponent is unable to articulate exactly how an extraneous

act tends to prove a steptoward an ultimate goal or overarching plan, the evidence is not

admissible to prove part of a "plan"Daggett v. State, 187 S.W.3d 444,451-52 (Tex.

Crim. App. 2005). Just as in Dagget, the evidence of extraneous offenses herein were

nothing more than the alleged repetition of the same act at different times; there was no

evidence of an"ultimate goal or overarching plan," thus the evidence was not admissible

to provepart of a plan. Nor could the evidence have been admissible to prove opportunity,

as Appellant never denied opportunity. See Powell vState, 63 S.W. 3d435,438-

40 (Tex. Crim. App. 2001).

       In sum, the testimony presented that Appellant allegedly committed various

extraneous offenses at different times, in different locations, and with different

individuals, constituted character-conformity evidence and nothing more. It was

13 not probative of whether Appellant committed the specific offense alleged in the

Indictment in this case, and it was offered only for a "bad-character-conformity purpose."

See Daggett, 187 S.W.3d at 452. Such evidence is prohibited by Rules 403 and404(b).

Moreover, such evidence, particularly consisting exclusively of allegations that have

never been proven in a court of law on their own merit, unquestionably caused unfair

prejudice, confusion of the issues, and misleading of the jury, as there was grossly more

extraneous offense evidence than there was evidence pertaining to the specific event

alleged inthe Indictment. Thus, Appellant urges that the trial court abused its discretion

in admitting this evidence.



                                              11
Harm Analysis

       The effect on appeal of the improper admission of evidence is governed by

Rule of Appellate Procedure 44.2(b), which provides that"a nonconstitutional error 'that

does not affect substantialrights must be disregarded.'" Motilla v. State, 78S.W.3d 352,

355 (Tex. Crim. App. 2002) (quoting TEX. R. APP. P. 44.2(b)); Fowler v. State, 958

S.W.2d 853, 864-65 (Tex.App.-Waco 1997), affd, 991 S.W.2d258 (Tex. Crim.

App. 1999). "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, 90 L.Ed. 1557 (1946)). "In assessing the likelihood that thejury's decision

was adversely affected by the error, 14 the appellate courtshould consider everything in

the record, including any testimony of physical evidence admitted for the jury's

consideration, the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other evidence in the

case." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). If, after reviewing

the entire record, the appellate court has grave doubts about the effect of the improper

evidence on the outcome, it should require a new trial. See Fowler, 958 S.W.2d at

866.




               The evidence introduced at trial that supported the verdict included the

testimony of                 Toni Hardin (mother), Chris Janice., and Officer Sarah

Jefferson Simon. Victimtestified that appellant masturbated in front of him on multiple

                                             12
occasions and he agreed to this and was paid over $500. Chris Janice testified that he

watched the movies on his own free will and was never paid any money as part of any

scam, agreement, motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake by the appellant. Chris states that appellant "kind of sort of

masturbated with of them, but appellant was out of sight on the floor away from everyone

else. He wasn't even sure if the appellant was doing anything or not cause he was on the

floor sitting out of sight of anyone else in room. In this incident Appellant was to have

never taken his clothing off. This incident only had taken place one time with the victim

              Present. During this event          was on the floor on left side of bed, and

Appellant was on right of bed on the floor out of eyesight of everyone in the dark room.

Further, the State introduced a prior written statement signed by Chris, who stated: we

were at appellant's house about four or five times while I was there. Appellant would be

on one side of his bed. He would be pleasuring himself" Chris Janice then testified he

only agreed to this statement because he was threatened by Detective Jefferson- Simon.

When crossed examined by Defense Chris agreed that he wrote a corrected statement to

the appellant. (Entered as Defense exhibit #2) The trial testimony includes this:

       THE STATE: SO YOU ARE SAYING YOU NEVER TOLD THESE

THINGS TO SARAH JEFFERSON?


       CHRIS: I TOLD YOU SHE ASKED ME QUESTIONS, I GAVE HER

ANSWERS. SHE ASSUMED HER OWN SCENARIOS.

       THE STATE: SHE ASSUMED IT. DID SHE READ THIS STATEMENT TO

YOU BEFORE YOU SIGNED IT SWEARING THAT IT WAS THE TRUTH?

                                             13
      CHRIS: YEAH.

      THE STATE: AND DID YOU FIND IT TO BE THE TRUTH WHEN YOU

SIGNED IT AND SWORE TO IT?

      CHRIS: NOPE. I HAD TO SIGN IT

      THE STATE: YOU HAD TO SIGN IT. WHY DH) YOU HAVE TO SIGN

IT?


       CHRIS: BECAUSE SHE STATED THAT EVERYBODY IN THE CASE

SAID MY NAME, THAT IF I WOULDN'T CORROBRATE, I WOULD BE

BROUGHT UP ON CHARGES.

       Chris: SHE ASKED. I TOLD YOU SHE OUT IT INTO HER OWN WORDS

       The potential harm for a verdict based on extraneous offenses in this case,

rather than evidence of the event upon which the Indictment was based, is highlighted by

the absolute absence of evidence produced at trial that Appellant exposed his genitals on

the event in question. Specifically, although              testified that he saw

Appellant's penis on the occasion of the first "group masturbation" event that occurred in

Appellant's car the first night they met, that was not the incident upon which the State

based its Indictment and witnesses Chris Janice denied knowledge of this event. (4 R.R.

49). The only testimony offered about the pornography and masturbation event that

included both          and Chris, which was the incident chosen by the State to be the

incident upon which conviction was sought, was offered not by             but by Chris

himself. In that testimony, however, Chris denied that Appellant's genitals were exposed.

(4R.R. 115-119). In fact, Chris stated thathe did not even know whether Appellant was
                                                14
masturbating at the same time everyone else was or what he was doing. (4 R.R. 117-127).

        who provided very few details about any of his allegations or could remember

the events he testified to the day before when cross examined by defense counsel.

        offered no testimony regarding a specific occurrence in Appellant's bedroom

with Chris present. Accordingly, thejury couldonly have found that Appellant showed

his genitals on that specific occasion by assuming that, because          testified that

Appellant had exposed himself before, he must have done so on thatoccasion, even

though there was absolutely no evidence whatsoever to that effect. This constitutes no

evidence, or nothing more than a "modicum" of evidence, probative of an essential

element of the offense; accordingly, the evidence is insufficient to support Appellant's

conviction in this case. Gonzalez, 337 S.W.3d at 479.

Accordingly, Appellant's conviction should be reversed and a judgment of acquittal

given by Appellant Court.



       Specifically, Thejury was given specific instructions to avoid violating rule

404(b) was to use the given testimony ONLYfrom Chris Janice which they failed to do.

Now in any cause the reliability is to be the sworn factor beyond a reasonable doubt to

prove innocence or guilt. If the testimony is unreliable then it shall be thrown out. The

factors relied only on the testimony of states witness Chris Janice who was treated as a

hostile witness by the state and called "Suborning witness by state. (C.R. V4 OF V7 page

146-147 line 25)



                                             15
      THE STATE: I HAVE NO FURTHER QUESTIONS OF THIS LYING,

SUBNORING WITNESS.

Officer Simon testified that she found the accounts given by the juveniles to be

consistent. However Detective Jefferson-Simon was not the initial detective who

investigated this case the proven sworn statement was given to Detective Davis not

Detective Jefferson-Simon.               gave three different statements to Officer

Melancon, Detective Davis and Detective Jefferson- Simon. Officer Melancon states that

the statement he taken was to be the first and the events Detective Jefferson- Simon

wrote up were not consistent to his.




       The Court of Criminal Appeals has held that "a rigorous and proper

application" of the Jackson legal sufficiency standard is "the only standard that a

reviewing court shouldapply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove beyond

a reasonable doubt". Brooks v. State, 323 S.W.3d 893, 902-03, 906, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 16 61 L.Ed.2d

560 (1979)). To determine the sufficiency of the evidence under the Jackson standard, an

appellate court must review all of the evidence in the light most favorable to the verdict

to determine whether any rational tier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Brooks, 323 S.W.3d. at 898-99." [Ejevidence is

insufficient to supporta conviction if considering all record Evidence in the light most


                                             16
favorable to the verdict, a fact finder could not have rationally found that each essential

element of the charged offense was proven beyond a reasonable doubt." Gonzalezv.

State, 337 S.W.3d 473,478 (Tex.App.- Houston [1st Dist] 2011, pet. refd); Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007).

        "Evidence is insufficient under this standard in four circumstances: (1) the

           record contains no evidence probative of an element of the offense;

                                       (2) the record

     contains a mere 'modicum' of evidence probative of an element of the offense;

                                             (3)

               the evidence conclusively establishes a reasonable doubt; and

                                     (4) the acts alleged

      do not constitute the criminal offense charged." Gonzalez, 337 S.W.3d at 479.

       If an appellate court finds the evidence insufficient under this standard, it must

reverse the judgment and enter an order of acquittal. Id. (citing Tibbs v. Florida, 457 U.S.

31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982)).An appellate court "determine^]

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence viewed in the light most favorable to the verdict."

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quotingHooper v. State,

214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).




                                              17
                           CERTIFICATE OF SERVICE



I delivered a copy of the above and foregoing Motion to the Orange County District
Attorney's Office on February 20, 2015
/s/Eric Jarrod Williams


                                      f^t:
    ~^




                                           18
      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the court

grant/ Accept Appellant motion in this case, and thereafter remand the case on appellant's

motion for acquittal vacating the trial court judgment and sentence.

RESPECTFULLY SUBMITTED



£-x) <?^j?




                                            19
Affirmed and Memorandum Opinion filed September 23, 2014.




                                       In The


                    iKnurtccntl| Court at Appeals

                               NO. 14-13-00650-CR


                    ERIC JARROD WILLIAMS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 128th District Court
                           Orange County, Texas
                       Trial Court Cause No. A-080508-R


                  MEMORANDUM                     OPINION


      Appellant Eric Jarrod Williams appeals his conviction for indecency with a child.
See Tex. Penal Code Ann. § 21.11 (Vernon 2011). In two issues, appellant argues that
(1) the trial court erred in admitting evidence of extraneous offenses allegedly
committed by appellant; and (2) the evidence presented at trial was legally and
factually insufficient to establish that appellant committed the specific offense
alleged in the indictment. We affirm.1
                                      Background


      Appellant was indicted for indecency with a child younger than 17 years of
age by exposure. See Tex. Penal Code § 21.11 (a)(2). The complainant, J.L., was
13 years old at the time of the incident.           J.L. testified that he and appellant
masturbated together while watching pornographic movies. J.L. testified that he
agreed to do so because appellant paid him. J.L. stated that this conduct occurred
between 10 and 16 times. Another minor, D.B., testified that he also agreed to
masturbate with appellant while watching a pornographic movie for money.

      On May 15, 2013, a jury found appellant guilty of indecency with a child by
exposure. Appellant elected to have the trial court determine punishment, and the
case was reset until June 14, 2013. The trial court assessed punishment on June
14, 2013, at 10 years' confinement probated for 10 years and a fine of $5,000.
Appellant was ordered to serve 180 days in the Orange County Jail as a term and
condition of probation. This appeal followed.

                                         Analysis


I.     Admission of Extraneous Offenses

       Appellant contends in his first issue that the trial court violated Texas Rule
of Evidence 404(b) by admitting evidence of extraneous offenses allegedly
committed by appellant during the guilt-innocence phase of his trial.                      The
extraneous offenses at issue were incidents in which appellant allegedly watched
pornographic movies and masturbated in front of J.L., and an incident in which
appellant allegedly watched a pornographic movie and masturbated in front of
       1Appellant initially appealed to the Ninth Court of Appeals in Beaumont. Pursuant to a
docket equalization order, this appeal was transferred to this court. See Tex. Gov't Code Ann. §
73.001 (Vernon 2013).
D.B. Appellant asserts that, because the incident upon which the State elected to
base the indictment was a specific event, evidence of extraneous offenses
committed by appellant against J.L. and an extraneous offense committed by
appellant against D.B. was inadmissible.

      We review a trial court's ruling on admission of evidence for an abuse of
discretion. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). The
trial court's ruling will be upheld as long as it falls within the zone of reasonable
disagreement and is correct under any theory of law applicable to the case. Id.;
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An appellate
court must review the trial court's ruling in light of what was before the trial court
at the time the ruling was made. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim.
App. 2003).

      A.      Extraneous Offenses Against the Complainant

      Evidence of other crimes, wrongs, or acts generally is not admissible to
prove the character of a person to show action in conformity therewith. Tex. R.
Evid. 404(b). Nevertheless, evidence of other crimes, wrongs, or acts may be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, provided
that upon a timely request by the defendant, the State gives reasonable notice in
advance of trial of intent to introduce such evidence. Id.

      The State argues that the trial court did not abuse its discretion because the
identity of appellant was at issue. We disagree that identity was at issue. The
dispute at trial focused not on the identity of the person who exposed himself to
J.L., but on whether J.L. was credible and whether the incident occurred. Thus,
identity does not serve as a proper basis for admitting evidence of extraneous
offenses in this case. See Eubanks v. State, 113 S.W.3d 562, 566 n.l (Tex. App.—

                                           3
Dallas 2003, no pet.) (identity not at issue in case in which main issue at trial was
whether sexual assault occurred and victim testified that she had been sexually
assaulted by appellant).

      This conclusion does not end the analysis. In cases involving prosecution of
a defendant for an offense under Chapter 21 of the Penal Code against a child
under 17 years of age, article 38.37 of the Texas Code of Criminal Procedure
provides that evidence of crimes, wrongs, or acts committed by the defendant
against a child who is the victim of the alleged offense shall be admitted for its
bearing on relevant matters, including the state of mind and relationship between
the child and defendant. Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp.
2014).     Article 38.37 is an evidentiary rule and supersedes Rule 404 in
prosecutions for indecency with a child. Hitt v. State, 53 S.W.3d 697, 706 (Tex.
App.—Austin 2001, pet. refd); Morgan v. State, Nos. 14-01-00809-CR & 14-01-
00810-CR, 2002 WL 1438680, at *3 (Tex. App.—Houston [14th Dist.] July 3,
2002, pet. ref d) (not designated for publication).

         Under article 38.37, the extraneous offenses at issue were admissible
because they pertained to appellant's state of mind and the nature of appellant's
relationship with J.L. See Tex. Code Crim. Proc. Ann. art. 38.37; Sarabia v. State,
227 S.W.3d 320, 325 (Tex. App.—Fort Worth 2007, pet. ref d) (pornographic
photograph defendant showed victim was admissible because it was relevant to
defendant's relationship with victim); McCulloch v. State, 39 S.W.3d 678, 681
(Tex. App.—Beaumont 2001, pet. refd) (evidence of prior sexual assaults
committed by defendant against victim was relevant to victim's and defendant's
state of mind, defendant's dominance over victim, and defendant's misuse of his
position of family disciplinarian to commit abuse); Hinojosa v. State, 995 S.W.2d
955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (evidence that appellant
fondled victim's breasts and private parts at least once a week for 10 years was
relevant to the defendant's relationship with the victim); see also Peters v. State,
No. 07-01-0430-CR, 2002 WL 31439482, at *1 (Tex. App.—Amarillo Oct. 31,
2002, pet. ref d) (per curiam) (not designated for publication) (evidence of prior
indecency with a child offense committed by defendant against victim was relevant
to defendant's relationship with victim).

        Although the State did not specifically invoke article 38.37 below, it stated
in closing argument that the extraneous offenses committed by appellant against
J.L. were probative of appellant's attempt to groom J.L. to be a victim. This
evidence had a bearing on the nature of the relationship between appellant and J.L.,
and therefore, it was admissible. See Sarabia, 227 S.W.3d at 325; McCulloch, 39
S.W.3d at 681; Hinojosa, 995 S.W.2d at 958; see also Peters, 2002 WL 31439482,
at*l.

        Article 38.37 may be considered for the first time on appeal as a basis for the
admission of the evidence at issue. See Hitt, 53 S.W.3d at 706; McCoy v. State, 10
S.W.3d 50, 53 (Tex. App.—Amarillo 1999, no pet.) ("The fact that the benefit of
the statute was not specifically invoked by the State at trial does not prevent it from
being applicable in our consideration of the challenge before us."). A defendant is
entitled to notice from the State of its intent to use such evidence if the defendant
makes a specific request for such information pursuant to article 38.37. See Act of
April 21, 2011, 82nd Leg., R.S., ch. 1, § 2.05, 2011 Tex. Sess. Law Serv. 6, 6,
amended by Act of June 14, 2013, 83rd Leg., R.S., ch. 387, § 3, 2013 Tex. Sess.
Law Serv. 1168, 1168-69 (current version at Tex. Code Crim. Pro. Ann. art. 38.37
(Vernon Supp. 2014)).2 Appellant's request for notice of extraneous offenses did

      2 We apply the statute in effect at the time of the conviction, which was the statute as
amended effective September 1, 2011. See Act of April 21, 2011, 82nd Leg., R.S., ch. 1, § 2.05,
2011 Tex. Sess. Law Serv. 6 (amended 2013). ("The change in law made by this Act applies to
not specifically request notice under article 38.37. Appellant nonetheless had
notice of the extraneous offenses. Before the guilt-innocence phase of trial began,
the court held a hearing during which the State revealed the extraneous offenses it
intended to introduce during trial.

      We conclude that the trial court did not abuse its discretion by allowing
testimony of extraneous offenses committed against J.L. because it is probative of
the appellant's state of mind and relationship between appellant and J.L. See
Weatherred, 15 S.W.3d at 542 (trial court's ruling will be upheld as long as it is
correct under any theory of law applicable to the case).

      B.      Extraneous Offense Against D.B.

      Appellant also contends that the trial court erred by allowing testimony of
D.B. that D.B. agreed for money to masturbate with appellant while watching a
pornographic movie. Article 38.37 does not apply to this evidence because article
38.37 applies only to "evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense . . . ."
Assuming the trial court erred by allowing the testimony of D.B. with regard to
appellant's conduct, we conclude that the asserted error was harmless.
       Error in admitting evidence concerning extraneous offenses is a non-
constitutional error and is reviewed under Texas Rule of Appellate Procedure
44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Rule
44.2(b) provides that an appellate court must disregard a non-constitutional error
that does not affect a criminal defendant's "substantial rights." Tex. R. App. P.
44.2(b); Sandoval v. State, 409 S.W.3d 259, 304 (Tex. App.—Austin 2013, no
the admissibility of evidence in a criminal proceeding that commences on or after the effective
date [Sept. 1, 2013] of this Act. The admissibility of evidence in a criminal proceeding that
commences before the effective date of this Act is covered by the law in effect when the
proceeding commenced, and the former law is continued in effect for that purpose.").
pet.).    An error affects a defendant's substantial rights when the error has 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). A criminal conviction will
not be reversed for non-constitutional error if the appellate court, after examining
the record as a whole, "has fair assurance that the error did not influence the jury,
or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

         The evidence introduced at trial that supported the verdict included the
testimony of J.L., J.L.'s mother, J.L.'s cousin, C.J., and Officer Sarah Jefferson
Simon.      J.L. testified that appellant masturbated in front of him on multiple
occasions.     J.L.'s mother, an outcry witness, testified that J.L. told her that
appellant masturbated in front of him. C.J. testified that appellant showed J.L. and
C.J. pornographic movies and stated that appellant "kind of sort of masturbated in
front of them. Further, the State introduced a prior written statement signed by
C.J., which stated: "[N.] and [J.L.] were at [appellant's] house about four or five
times while I was there. [Appellant] would be on one side of his bed. He would
be pleasuring himself." Officer Simon testified that she found the accounts given
by the juveniles to be consistent.

         Considering the evidence introduced at trial, we cannot conclude the
extraneous offense testimony affected a substantial right of appellant.           See
Matthews v. State, 979 S.W.2d 720, 723 (Tex. App.—Eastland 1998, no pet.)
(admission of evidence of extraneous offense of assault was harmless in child
abuse case, and did not affect defendant's substantial rights, in light of
overwhelming evidence of his guilt). Therefore, the asserted error is not reversible
under Rule 44.2(b). Accordingly, we overrule appellant's first issue.
II.   Sufficiency of the Evidence

      Appellant contends in his second issue that the evidence presented at trial
was legally and factually insufficient to establish that appellant committed the
specific offense alleged in the indictment. We disagree.

      A.       Standard of Review

      We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single legal
sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See
Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App. 2013); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences from it, whether any rational factfinder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011); see also Jackson, 443 U.S. at 319. The jury is
the exclusive judge of the credibility of witnesses and the weight to be given to the
evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We
defer to the jury's responsibility to fairly resolve or reconcile conflicts in the
evidence. Id. We draw all reasonable inferences from the evidence in favor of the
verdict. Id.

      B.       Applicable Law

      To support a conviction for indecency with a child, the State was required to
prove beyond a reasonable doubt that: (1) the child was within the protected age
group and not married to the accused; (2) the child was present; (3) the accused
had the intent to arouse or gratify someone's sexual desire; (4) the adult knew that
a child was present; and (5) that the accused exposed his anus or genitals. See Tex.
Penal Code Ann. § 21.11(a)(2)(A). Further, because the State presented evidence
of more than one act, it was required to elect the specific indictment upon which it
sought conviction. The jury charge indicated that the State elected "to rely on the
allegation that occurred at the defendant's home, in the presence of [C.J.]"

      C.     Analysis

      Appellant argues that the only evidence regarding the specific incident
elected by the State was C.J.'s testimony, which was insufficient to support
appellant's conviction because C.J. "denied that [appellant's] genitals were
exposed at that time." We disagree.

      J.L. testified that he first met appellant when he was 14 years old at his
aunt's house.3 On that occasion, appellant asked J.L. and two of J.L.'s male
cousins, including C.J., to masturbate in front of him. J.L. stated that appellant
promised to pay each of the males $10 and promised to pay an extra $10 to the
person who "finished first." J.L. testified that appellant drove J.L. and his cousins
to a parking lot where appellant took out his laptop and turned on a pornographic
movie. J.L. stated that the males, including appellant, masturbated together. J.L.
stated that he and appellant masturbated together between 10 and 16 times in
Orange County, Texas and Vinton, Louisiana. J.L. indicated that sometimes he
was alone with appellant and sometimes other boys were present. J.L. stated that
he "went to [appellant's] house a couple of times" to masturbate. J.L. stated that,
when he went to appellant's house,

       [Appellant] would put a — like when we was at his house, he would
       put the laptop on the bed where we both could see it and he would put
       a blanket on the floor. He would grab some lotion and stuff like that;

       3Later testimony indicated that J.L. was 13 years old at the time ofthe incident.

                                                9
      but I told him, T ain't — I ain't want none.' And, you know, he will
      just put — he would get naked sometimes; and I just pulled my pants
      down.

After J.L. testified, the State called C.J. to testify. C.J. provided testimony that was
contrary to a previous written statement that he signed; the State requested that C.J.
be designated as a hostile witness. The relevant testimony included this exchange:

      THE STATE: Okay. Was there an instance where you masturbated at
      his house?

      C.J.: Yeah.

      THE STATE: Was there an instance, at least one occasion, where
      your cousin, [J.L.], was there?
      C.J.: Yeah.

      THE STATE: And y'all watched [a] sex tape?
       C.J.: Yeah.

       THE STATE: And he masturbated?

       C.J.: Yeah.

       THE STATE: And [appellant] masturbated with y'all?
       C.J.: Kind of sort of.

       THE STATE: Okay.
       C.J.: But he wasn't like in plain sight.

To impeach this testimony, the State presented a sworn statement by C.J. stating:
"[N.] and [J.L.] were at [appellant's] house about four or five times while I was
there. [Appellant] would be on one side of his bed. He would be pleasuring
himself."

       The jury is the sole judge of the credibility of the witness and the weight to
be given to the witness's testimony. Spearman v. State, 307 S.W.3d 463, 469
(Tex. App.—Beaumont 2010, pet. ref d). Based on the inconsistencies between
C.J.'s testimony at trial and in his written statement, reasonable jurors could have

                                            10
disregarded his testimony at trial. See id.

      J.L. testified that appellant masturbated in front of him and others at
appellant's house. C.J. testified that he saw J.L. masturbate at appellant's house.
C.J. also testified that he saw appellant "kind of sort of masturbating in J.L.'s
presence. C.J.'s prior statement indicated that appellant masturbated in front of the
boys in appellant's house. Viewing the evidence in a light most favorable to the
verdict, a reasonable jury could have concluded that appellant was guilty of
indecency with a child. See Gear, 340 S.W.3d at 746.

      We conclude that the evidence is legally sufficient to support appellant's
conviction. Accordingly, we overrule appellant's second issue.

                                    Conclusion


       Having overruled appellant's two issues on appeal, we affirm the trial
court's judgment.




                                        /s/        William J. Boyce
                                                   Justice




Panel consists of Justices Boyce, Busby, and Wise.
Do not Publish —Tex. R. App. P. 47.2(b).




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