                           NUMBER 13-16-00548-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ERLIS JOSEPH CHAISSON,                                                  Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 19th District Court
                       of McLennan County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Erlis Joseph Chaisson challenges his conviction for one count of

aggravated sexual assault of a child, see TEX. PENAL CODE ANN. § 22.021 (West, Westlaw

through 2017 1st C.S.), and two counts of indecency with a child by contact, see id. §

21.11 (West, Westlaw through 2017 1st C.S.). By five issues, which we construe as two

with various sub-issues, Chaisson contends the trial court erred by: (1) admitting the
testimony of several witnesses, and (2) admitting extraneous offense evidence. We

affirm.

                                         I.      BACKGROUND1

          Chaisson was charged by indictment with five counts of aggravated assault of a

child and ten counts of indecency with a child by contact. See id. §§ 21.021, 22.11. Prior

to trial, the State waived several counts, leaving one count of aggravated assault of a

child and four counts of indecency with a child by contact. At the close of the State’s

case, appellant’s motion for directed verdict was granted with respect to two of the counts

of indecency with a child by contact.

          At trial, the testimony showed that the complainant, E.W. 2 accused Chaisson, her

step-father, of sexually assaulting her multiple times over a period of several years. E.W.

further testified that the abuse took place in the bedroom as well as while laying on the

couch. E.W. stated when she was approximately seven or eight years old, Chaisson

would sometimes go into her bed at night and begin by rubbing her back and would

progress to touching her breasts and her “private parts.” She further testified to a specific

instance involving Chaisson touching his penis to her vagina and causing her hand to

touch his penis.

          Prior to trial, the State notified appellant of its intent to call a witness under article

38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.

38.37 (West, Westlaw through 2017 1st C.S.) (providing that evidence of extraneous




           1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was

transferred to this Court from the Tenth Court of Appeals in Waco. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
           2 ln order to protect the complainant’s identity, we will use her initials and her family members’

initials throughout this memorandum opinion. See generally TEX. R. APP. P. 9.8.

                                                     2
offenses or acts may be admissible in the prosecution of a defendant for continuous

sexual abuse of a child, among other offenses). The State’s notice stated, among other

things, that V.W. would testify to prior offenses of sexual assault committed on her by

Chaisson in 1993.

        In a preliminary hearing outside the presence of the jury regarding the admissibility

of testimony from V.W., the trial court heard testimony that Chaisson sexually assaulted

V.W. in Jefferson Parish, Louisiana, two times when she was a child. V.W. testified that

the first time the sexual assault happened was while watching a movie on the sofa

together. V.W. told the court that she and Chaisson were under a blanket when he put

his hands inside her underwear and touched her vagina. She then testified that the next

night, again while watching television on the sofa, she and Chaisson were under a blanket

when he put his penis against her vagina “under the elastic part of [her] underwear.” V.W.

reported the sexual assault the next day to her mother. After the hearing and over the

objection of Chaisson, the State was allowed to call V.W. to testify in front of the jury

regarding her past allegations of sexual assault by Chaisson. V.W.’s testimony to the jury

was substantially similar to that presented in the hearing outside of the jury’s presence.

After V.W.’s testimony, the jury received a limiting instruction from the court informing

them:

        Ladies and gentlemen, the testimony you've just heard from this witness,
        first of all, you may not consider it for any purpose whatsoever unless you
        believe beyond a reasonable doubt that the events described occurred.
        Aside from that, you may consider it for any relevant matter, including the
        character of the defendant and the acts performed in conformity with the
        character of the defendant.

The jury also received the following instruction in the jury-charge:




                                              3
             There is evidence before you that the Defendant has committed
       crimes, wrongs, or bad acts other than the ones charged in the indictment.

              You are instructed that you shall not consider any such allegations
       for any purpose at all unless you, as an individual juror, believe beyond a
       reasonable doubt that such crimes and acts were committed.

              Those of you who believe beyond a reasonable doubt that the
       defendant committed these acts may consider them only for the purposes
       outlined below:
       ....
              As to the extraneous crimes and acts alleged to have been
       committed by the defendant Erlis Joseph Chaisson against V.W., a child,
       you may consider these acts, if any for any bearing the evidence has on
       relevant matters including the character of the defendant Erlis Joseph
       Chaisson and acts performed in conformity with the character of the
       defendant.

       The jury found Chaisson guilty of all three remaining counts of the indictment. As

to Count I of the indictment, punishment was assessed at life imprisonment in the Texas

Department of Criminal Justice–Institutional Division, punishment for Count II was

assessed at seven-years’ imprisonment, to be served concurrently, and punishment for

Count V was assessed at seven-years’ imprisonment, to be served concurrently. This

appeal followed.

                       II.    ADMISSIBILITY OF WITNESS TESTIMONY

       By his first issue, Chaisson alleges that the trial court erred by allowing several

witnesses to testify as to the truth of E.W.’s allegations. See TEX. R. EVID. 702.

A.     Testimony of Complainant’s Truthfulness

       Chaisson asserts that the trial court erred by allowing three witnesses to testify as

to the truthfulness of E.W.’s allegations. The State argues that Chaisson did not preserve

error regarding the testimony complained of, and even if he had, the error, if any, would

have been harmless.



                                             4
       1.     Standard of Review and Applicable Law

       We review the trial court's ruling regarding the admissibility of evidence under an

abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App.

2001), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001); see Aguilera v.

State, 75 S.W.3d 60, 64 (Tex. App.—San Antonio 2002, pet. ref'd). An expert witness

may not testify directly that a particular witness is truthful, or that a class of persons to

which the particular witness belongs is truthful. Yount v. State, 872 S.W.2d 706, 711

(Tex. Crim. App. 1993); see also Hitt v. State, 53 S.W.3d 697, 707 (Tex. App.—Austin

2001, pet. ref'd).

       In order to preserve error for appellate review, the record must show that a

complaint was made to the trial court by an objection that stated the grounds for the ruling

that the complaining party sought from the trial court with sufficient specificity to make the

trial court aware of the complaint, unless the specific grounds were apparent from the

context. TEX. R. APP. P. 33.1(a); Aguilera, 75 S.W.3d at 65.

       2.     Analysis

       To preserve error for review, a timely and specific objection must be made and

followed by an adverse ruling. Id.; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App.

1991). A party must object every time allegedly inadmissible testimony is offered in order

to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991);

Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Scaggs v. State, 18

S.W.3d 277, 291 (Tex. App.—Austin 2000, pet. ref'd); see also Hitt, 53 S.W.3d at 707–

08.




                                              5
       Assuming, as Chaisson claims, that the State's elicited testimony from Tabetha

Harrison, Marjorie Husbands, and Dr. William Lee Carter crossed the line and that each

testified directly as to E.W.’s truthfulness concerning the allegations against him, we

observe that not all the claimed errors were preserved for review. There was no objection

to some of the testimony cited by Chaisson; thus, nothing was preserved for review as to

that testimony. See TEX. R. APP. P. 33.1. Specifically, the complained of testimony of

Marjorie Husbands contains no objection from Chaisson, and is therefore waived.

       As to Dr. Carter, Chaisson’s complained of testimony also does not contain any

objection during questioning by the State, but prior to the testimony of Dr. Carter, a

“running objection” was lodged relating to the testimony of Dr. Carter “invading the

province of the jury.” However, even if Chaisson’s “running objection” preserved error,

overruling an objection to evidence will not generally result in reversal where other

evidence of that same fact was received without objection, either before or after the

complained-of ruling, regardless of whether the other evidence was introduced by the

defendant or the State. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)

(citing Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)). Here, the State did

not elicit truthfulness testimony from Dr. Carter until they were on re-direct. In fact, the

first instance of such truthfulness testimony was elicited by Chaisson during cross-

examination:

       Q. What about -- talk to us about embellishment of memories or the idea
       that maybe one thing occurred and it's actually larger or bigger than what
       actually occurred.

       A. We all know what a fish tale is. You know, "I went fishing when I was 10
       years old and I caught a fish." "Well, how big was it?" Well, maybe in
       actuality it was this big, but by the time I'm 25 years old, it's this big.



                                             6
       Q. Uh-huh.

       A. Maybe. We've got to -- we have to consider that possibility.

       Q. And to be fair, it could be the other way around?

       A. That's true.

Chaisson focuses much attention on the idea that the embellishment testimony was

improper; however it is not until cross-examination that such questioning occurs with Dr.

Carter. Therefore, Chaisson has waived his right with regards to Dr. Carter’s testimony

regarding the truthfulness of E.W. See Hitt, 53 S.W.3d at 708; see also Fuller v. State,

827 S.W.2d 919, 928 (Tex. Crim. App. 1992).

       There was some testimony of Tabetha Harrison to which appellant timely objected

on the ground of an “improper question” and secured an adverse ruling.

       Ordinarily, an objection to “improper argument” is too general to preserve
       error. See, e.g., Miles v. State, 312 S.W.3d 909, 911 (Tex. App.—Houston
       [1st Dist.] 2010, pet. ref'd) (collecting cases). A general objection like the
       one appellant made, however, can be sufficient to preserve error when the
       record shows the trial court understood the nature of the objection—e.g.,
       when the trial court denies a motion for mistrial or specifically instructs the
       jury concerning the same matter raised in the appeal. See, e.g., Everett v.
       State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986); see also Vasquez v.
       State, 501 S.W.3d 691, 705 (Tex. App.—Houston [14th Dist.] 2016, pet.
       ref'd) (trial court's understanding of an objection may be evidenced by
       comments or admonitions after its ruling).

Gonzalez v. State, --- S.W.3d ----, 2017 WL 5618018, at *7 (Tex. App.—Houston [14th

Dist.] 2017, no pet.) (emphasis added). Here, counsel’s objection was, “I believe that's

an improper question,” and the court merely overruled the objection. The State went on

to elicit additional testimony relating to authenticity of E.W.’s claims, to which Chaisson

did not object. On the basis of the record before us, it cannot be concluded that the court

necessarily understood the nature of the objection. See id. Furthermore, to preserve a



                                             7
complaint for appellate review, the objecting party must either make a timely and specific

objection each time the evidence or testimony is offered, or obtain a running objection.

See Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd). Since

Chaisson did neither of these, he has preserved nothing for our review regarding

Harrison’s testimony. See id.; see also Badall v. State, 216 S.W.3d 865, 872 (Tex. App.—

Beaumont 2007, pet. ref’d).

      Chaisson’s first issue is overruled.

                         III.   EXTRANEOUS OFFENSE EVIDENCE

      By issues two, three, and four, Chaisson challenges the admissibility of the

extraneous offense evidence offered at trial. Chaisson argues: (1) his due process rights

were violated by the testimony; (2) the evidence did not support a finding that he

committed the extraneous offense beyond a reasonable doubt as required by Texas Code

of Criminal Procedure article 38.37; and (3) the trial court violated rule of evidence 403

by admitting evidence of his extraneous acts. See TEX. CODE CRIM. PROC. ANN. art. 38.37;

see also TEX. R. EVID. 403.

B.    Due Process Violation

      Chaisson contends that the trial court's admission of the extraneous offense

against V.W. into evidence at the guilt-innocence stage of the trial deprived him of due

process of law. Therefore, he contends that Texas Code of Criminal Procedure article

38.37, section 2(b), under which the evidence was admitted, is unconstitutional. See TEX.

CODE CRIM. PROC. ANN. art. 38.37, § 2(b).




                                             8
       1.     Standard of Review and Applicable Law

       In reviewing the constitutionality of a statute, we must presume that the statute is

valid and that the legislature did not act unreasonably or arbitrarily in enacting it. Belcher

v. State, 474 S.W.3d 840, 843 (Tex. App.—Tyler 2015, no pet.) (citing Ex parte Granviel,

561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). The person challenging the statute must

show that the statute is unconstitutional. Id.

       To establish a due process violation, it is the appellant’s burden to show that the

challenged statute or rule violates those “fundamental conceptions of justice which lie at

the base of our civil and political institutions and which define the community's sense of

fair play and decency.” Dowling v. United States, 493 U.S. 342, 352–53 (1990).

       2.     Analysis

       Chaisson’s argument is substantially that admission of the evidence of extraneous

offenses relevant only to showing his propensity to commit such crimes, denied him a fair

opportunity to defend only against the current charge against him. He argues that the

admission of the evidence of the prior offenses was so prejudicial as to violate his

constitutional right to due process.

       Article 38.37 as amended now provides for the admission of evidence of
       other sex crimes committed by the defendant against children other than
       the victim of the alleged offense “for any bearing the evidence has on
       relevant matters, including the character of the defendant and acts
       performed in conformity with the character of defendant.” TEX. CODE CRIM.
       PROC. ANN. art. 38.37, § 2(b). Though different in wording, the state statute
       and Federal Rule of Evidence 414 have virtually the same effect. Both
       make admissible evidence of the defendant's other sex crimes against
       children other than the complainant in order to show his propensity to
       commit the act of child sexual abuse alleged. Compare TEX. CODE CRIM.
       PROC. ANN. art. 38.37 § 2(b) with FED. R. EVID. 414(a) (“In a criminal case
       in which a defendant is accused of child molestation, the court may admit
       evidence that the defendant committed any other child molestation. The
       evidence may be considered on any matter to which it is relevant.”).

                                              9
Belcher, 474 S.W.3d at 846–47.

      While Chaisson argues that a significant rationale behind the promulgation of

Article 38.37 § 2(b) was the concept that the trauma inflicted upon abused children causes

them to be poor witnesses in court, we find this argument unpersuasive.            “Every

reasonable intendment and presumption will be made in favor of the constitutionality and

validity of a statute, until the contrary is clearly shown. The legislature is presumed to

have regarded constitutional limitations or requirements in enacting laws, as assiduously

as the courts do in construing and applying them. And before a legislative act will be set

aside, it must clearly appear that its validity cannot be supported by any reasonable

intendment or allowable presumption.” Ex parte Granviel, 561 S.W.2d at 511; see also

Alobaidi v. State, 433 S.W.2d 440 (Tex. Crim. App. 1968). Therefore, the statute, as

enacted, clearly applies to all sex crimes committed on children, regardless of the age of

the complainant at the time of trial. Even though E.W. was not a young child at the time

of her testimony, the nature of the charges against Chaisson allow for the extraneous

evidence to be admitted.

      However, not all evidence of extraneous offenses is admissible. Before such

evidence is admitted, the trial court must still conduct a balancing test under Rule 403.

See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2(b) (permitting admission of propensity

evidence “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,” but not

excluding from application of Rule 403). The trial court may exclude the evidence if its

probative value is outweighed by a danger of unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R.

EVID. 403. Futhermore, Article 38.37, Section 2–a requires that, before evidence of prior

                                           10
sexual misconduct is admitted, the trial court must conduct a hearing out of the jury's

presence to determine that the evidence likely to be admitted will support a jury finding

that the defendant committed the separate offense beyond a reasonable doubt. TEX.

CODE CRIM. PROC. ANN. art. 38.37 § 2–a. During the hearing and during the actual

testimony, once determined to be admissible, Chaisson was afforded the opportunity to

cross-examine the witness. Fundamental fairness, therefore, was preserved by the

defendant's right to cross examination. Belcher, 474 S.W.3d at 847; see also Brantley v.

State, 48 S.W.3d 318, 330 (Tex. App.—Waco 2001, pet. ref'd); Phelps v. State, 5 S.W.3d

788, 798 (Tex. App.—San Antonio 1999, pet. ref'd). The admission of evidence of

Chaisson’s other sexual crime or bad act against a child other than the complainant, E.W.,

did not deprive Chaisson of due process of law, and Article 38.37, Section 2(b) is

constitutional.

       Chaisson’s second issue is overruled.

C.     Extraneous Offense Evidence Testimony

       1.     Standard of Review

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

discretion standard. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

We will not disturb the trial court’s decision to admit or exclude evidence if it is within the

zone of reasonable disagreement. Id. A trial court has wide latitude to admit or exclude

evidence of extraneous offenses. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex.

Crim. App. 1990) (en banc) (op. on reh’g).




                                              11
       2.     Applicable Law

       Under Texas Code of Criminal Procedure article 38.37, in a trial for certain sexual

offenses including each offense alleged in the indictment, evidence that the defendant

has committed an extraneous sexual offense may be admitted “for any bearing the

evidence has on relevant matters, including the character of the defendant and acts

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

ANN. art. 38.37, § 2(b). The State must provide the defendant with notice of its intent to

introduce such evidence not later than thirty days before the date of trial. Id. § 3. For

such evidence to be admitted, the trial court must rule it admissible after a hearing outside

the presence of the jury to “determine that the evidence likely to be admitted at trial will

be adequate to support a finding by the jury that the defendant committed the separate

offense beyond a reasonable doubt.” Id. § 2–a; see also Dickey v. State, No. 13-15-

00303-CR, 2016 WL 3962688, at *2 (Tex. App.—Corpus Christi 2016, no pet.) (mem. op.,

not designated for publication).

       Rule 403 provides that relevant evidence may be excluded “if its probative value

is substantially outweighed by the danger of unfair prejudice” among other things. TEX.

R. EVID. 403.    In determining whether probative value of evidence is substantially

outweighed by the danger of unfair prejudice, we consider “(1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the

time needed to develop the evidence; and (4) the proponent's need for the evidence.”

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Cox v. State, 495

S.W.3d 898, 903 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). “‘Probative value’

refers to the inherent probative force of an item of evidence—that is, how strongly it serves



                                              12
to make more or less probable the existence of a fact of consequence to the litigation—

coupled with the proponent's need for that item of evidence.” Gigliobianco v. State, 210

S.W.3d 637, 641 (Tex. Crim. App. 2006). “‘Unfair prejudice’ refers to a tendency to

suggest decision on an improper basis—commonly, though not necessarily, an emotional

one.”   Id.   An appellate court presumes that the probative value will outweigh any

prejudicial effect. See Montgomery, 810 S.W.2d at 389.

        3.     Analysis

               a.    Beyond a Reasonable Doubt

        By his third issue, Chaisson argues that V.W.’s inability to identify him with

certainty does not amount to adequate evidentiary proof beyond a reasonable doubt that

he committed the extraneous offense. An uncertain in-court identification of an accused

as the perpetrator of a crime, without more, has been held insufficient to uphold a

conviction. See Duvall v. State, 367 S.W.3d 509, 512 (Tex. App.—Texarkana 2012, pet.

ref'd). However, an equivocal identification will not make a verdict improper for lack of

evidence if there is other evidence to corroborate it. Prihoda v. State, 352 S.W.3d 796,

803 (Tex. App.—San Antonio 2011, pet. ref'd) (citing Anderson v. State, 813 S.W.2d 177,

179 (Tex. App.—Dallas 1991, no pet.)). In such a case, “[t]he witness's uncertainty goes

to the weight of the testimony and is for the jury” to consider, or the trial judge in a bench

trial. Anderson, 813 S.W.2d at 179.

        V.W. was questioned in a hearing outside the presence of the jury. During the

hearing, V.W. testified that she knew Erlis Chaisson when he was romantically involved

with her mother over 20 years earlier. V.W. was thirty-one years old at the time of her

testimony and she testified that she had not seen the defendant since she was eight years



                                             13
old. After her testimony regarding her molestation by Chaisson, she admittedly was

unable to immediately recognize the defendant as Chaisson.             She stated that she

deduced, based on the location of the defendant at counsel table, that the defendant was

Chaisson.    In addition to V.W.’s testimony, the State introduced into evidence the

underlying judgment relating to Chaisson’s out-of-state conviction for molestation of a

juvenile, naming V.W. as the victim. The record also shows that Chaisson is a registered

sex-offender as a result of the same out-of-state conviction against V.W. A jury is in the

best position to evaluate the credibility of witnesses, and we are required to afford due

deference to the jury's determinations. See James v. State, 264 S.W.3d 215, 219 (Tex.

App.—Houston [1st Dist.] 2008, pet. ref'd). We find a rational trier of fact could have

found the evidence presented to be sufficient to conclude beyond a reasonable doubt that

the extraneous offense was committed against V.W. by Chaisson.

       Chaisson’s third issue is overruled.

                b.   Probative Value of the Extraneous Evidence

       By his fourth and fifth issues, Chaisson argues the extraneous evidence presented

was more prejudicial than probative, and therefore, should have been excluded. See TEX.

R. EVID. 403.

       The probative value factor of a Rule 403 analysis requires us to consider the

strength of the extraneous offense evidence to make a fact of consequence more or less

probable. See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining

that “probative value” refers to how strongly evidence makes existence of “fact of

consequence” “more or less probable” and to how much proponent needs evidence and

that “unfair prejudice” refers to how likely it is that evidence might result in decision made



                                              14
on improper basis, including “an emotional one”). Chaisson argues that the remoteness

of the extraneous offense creates significantly lower probative force than a more recent

event. However, the extraneous offense and the charged offense occurred less than 10

years apart. While the trial was held some years later, the time between the extraneous

offense and the charged offense is significantly closer in time than the remoteness which

Chaisson focuses on. Further, the extraneous offense evidence is sufficiently similar to

the charged offense to have probative value on this issue. See Newton v. State, 301

S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref'd). When determining the probative

value of past criminal behavior, courts should consider “the closeness in time between

the extraneous offense and the charged offense” as well as “the similarities between the

extraneous offense and the charged offense.” Kiser v. State, 893 S.W.2d 277, 281 (Tex.

App.—Houston [1st Dist.] 1995, pet. ref’d); see Morrow v. State, 735 S.W.2d 907, 909–

12 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d). This factor weighs in favor of

admissibility.

       Next, we turn to the potential of the evidence to impress the jury in some irrational

but indelible way.    Chaisson argues the evidence is inherently inflammatory and

prejudicial in nature. He further contends that the evidence is likely to distract the jury

given its emotional content. “Evidence might be unfairly prejudicial if, for example, it

arouses the jury's hostility or sympathy for one side without regard to the logical probative

force of the evidence.” Gigliobianco, 210 S.W.3d at 641. “[C]onfusion of the issues”

refers to “a tendency to confuse or distract the jury from the main issues in the case.” Id.

“[M]isleading the jury” refers to “a tendency of an item of evidence to be given undue

weight by the jury on other than emotional grounds.” Id. When the extraneous offense



                                             15
is no more heinous than the charged offense, evidence concerning the extraneous

offense is unlikely to cause unfair prejudice. See Taylor v. State, 920 S.W.2d 319, 323

(Tex. Crim. App. 1996). The out-of-state conviction for molestation of a juvenile was

substantially similar to and no more heinous than that of the charged offense. The trial

court also gave the jury a limiting instruction regarding the extraneous offense evidence.

See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (holding that any

impermissible inference of character conformity can be minimized by the use of a limiting

instruction). This factor weighs in favor of admissibility.

       Chaisson concedes that the testimony was not too time consuming and therefore

the time needed to develop the evidence was not prejudicial. This factor weighs in favor

of admissibility.

       The fourth factor requires us to determine the need for the extraneous offense

evidence in this case. See Hernandez, 390 S.W.3d at 324. The Texas Court of Criminal

Appeals has explained:

       sexual assault cases are frequently “he said, she said” trials in which the
       jury must reach a unanimous verdict based solely upon two diametrically
       different versions of an event, unaided by any physical, scientific, or other
       corroborative evidence. Thus, the Rules of Evidence, especially Rule 403,
       should be used sparingly to exclude relevant, otherwise admissible
       evidence that might bear upon the credibility of either the defendant or
       complainant in such “he said, she said” cases.

Hammer v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009); see also Thompson

v. State, No. 13-13-00558-CR, 2014 WL 4049892, at *6 (Tex. App.—Corpus Christi 2014,

pet. ref'd) (mem. op., not designated for publication). Chaisson argues the need for the

evidence was not compelling. He bases his argument on the testimony of E.W. as well

as the recorded conversations between E.W. and himself. However, Chaisson argues



                                              16
throughout his brief that the recorded conversations do not in fact contain any admissions

or evidence that proves he committed the charged offenses. Additionally, extraneous

evidence in these types of cases is often used to counter a defensive theory that the

complainant is being dishonest. See Williams v. State, 531 S.W.3d 902, 920 (Tex. App.—

Houston [14th Dist.] 2017, no pet.); see also Hudson, 2017 WL 5472626, at *7–8. (finding

that the State had a strong need for extraneous evidence where there was no direct

evidence linking appellant to the allegations and defense counsel presented the jury with

testimony regarding an alibi). We find the State had a need for the extraneous evidence.

This factor weighs in favor of admission.

       Given our standard of review, the presumption in favor of admissibility, and the

resolutions of the factors discussed above, we conclude the trial court did not abuse it’s

discretion when it concluded that the danger of unfair prejudice did not substantially

outweigh the probative value of the evidence. See Freeman v. State, 230 S.W.3d 392,

404–05 (Tex. App.—Eastland 2007, pet. ref’d) (appellate courts will not reverse a trial

court's Rule 403 determination absent a “clear abuse of discretion”).

       Chaisson’s fourth and fifth issues are overruled.

                                   IV.      CONCLUSION

       We affirm the trial court’s judgment.

                                                              NORA L. LONGORIA
                                                              Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of April, 2018.




                                               17
