Affirmed and Opinion filed August 25, 2015.




                                           In The

                        Fourteenth Court of Appeals
                                  NOS. 14-13-01077-CR
                                      14-13-01078-CR

                           JAQUALIEN GRANT, Appellant

                                             V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 185th District Court
                               Harris County, Texas
                     Trial Court Cause Nos. 1386096 & 1386097

                                     OPINION
      In three issues, appellant Jaqualien Grant appeals his convictions for
aggravated kidnapping and sexual assault. Appellant challenges the legal and
factual sufficiency of the evidence to support the jury’s finding that he did not
release complainant in a safe place. Appellant further contends that the trial court
abused its discretion in admitting evidence of prior extraneous offenses.1 We
affirm.


      1
          Appellant was indicted separately for aggravated kidnapping and sexual assault. The
                                     Background
       Complainant lived in Pasadena, Texas. She testified she became lost driving
in Houston, so she pulled into an apartment complex to check her cell phone’s
GPS. As she sat in her car, a tall man opened her car door and ordered her to
“listen or [he would] hurt [her].” The man had one hand in his pocket, and
complainant thought he might have had a weapon. She turned off the ignition, and
the man grabbed her arm and led her to an abandoned apartment. Another man
waited in the apartment.2

       After taking her purse and demanding her ATM pin number, the men
ordered complainant to undress. She complied, and they locked her in a closet.
Both men then took turns sexually assaulting her. After the assaults, the men
forced complainant to wash herself repeatedly. Complainant believed the men
would not let her go. The tall man told complainant to give him a reason to let her
go. She told them that she would not call the police because she had worked as an
escort and did not want to involve the police. She also told the tall man that she
had a boyfriend waiting for her at home who would call the police if she did not
make it home on time.

       The men obtained her parents’ contact information from her phone and
threatened that if complainant went to the police, they would hurt her parents. The
tall man returned complainant’s keys, phone and purse, opened the apartment door
to let complainant out, and walked away. It was now dark outside. Complainant

two cases were tried together. Appellant initially appealed only the aggravated kidnapping
conviction. We granted appellant leave to file a brief raising any issues pertinent to the sexual
assault conviction and postponed the original submission date. Appellant filed a supplemental
brief asserting his issue regarding the extraneous offenses as to both convictions. Even though
appellant was not permitted to assert this new issue as to the aggravated kidnapping conviction,
we analyze both, infra, and overrule the issue.
       2
         Complainant did not identify appellant at trial because she said she never saw his face.
She differentiated between her two assailants by referring to one as “a really tall man.”

                                               2
walked back to her car and drove away. She called a friend, who told her to call the
police. She drove to a McDonald’s, called the police, and was taken by ambulance
to the hospital. DNA from a vaginal swab collected from complainant showed that
appellant was the source of the DNA to a reasonable degree of scientific certainty.3

       The State presented evidence at trial of extraneous offenses committed by
appellant two weeks prior to the charged offenses. A woman was exiting a CVS
Pharmacy when a man approached her and ordered her at gunpoint into her car. He
got into the car and forced her to drive to a hotel. He took her to a room and forced
her to undress. He took her ATM cards and phone and forced her to take off her
clothes, make a video of their having intercourse several times, and sit in a bathtub
with water and soap for hours to clean herself. The man went through her phone
and took down numbers from people he believed to be family members. He said if
she went to the police, her family would be in danger. The woman finally got
away. She identified appellant in court as the man who kidnapped and sexually
assaulted her. Also, DNA from a vaginal swab collected from the woman showed
that appellant was the source of the DNA to a reasonable degree of scientific
certainty.

       The jury found appellant guilty of aggravated kidnapping and sexual assault.
In response to the jury question “Do you . . . find . . . that [appellant] voluntarily
released [complainant] in a safe place?” the jury responded, “We do not.” The jury
assessed punishment at life imprisonment for aggravated kidnapping and 20 years’
confinement for sexual assault.

                                         Discussion
       In three issues, appellant argues the jury’s finding that he did not release
       3
          DNA was obtained from a vaginal swab, a tampon, and a swab of complainant’s breast.
The State’s expert at trial confirmed that appellant was the source of DNA from the vaginal swab
to a reasonable degree of scientific certainty.

                                               3
complainant in a safe place is not supported by legally and factually sufficient
evidence and the trial court abused its discretion in admitting evidence of
extraneous offenses.

       I.     Voluntary Release in a Safe Place

       In his first and second issues, appellant challenges the legal and factual
sufficiency of the evidence in support of the jury’s finding that he did not release
complainant in a safe place. The punishment level for aggravated kidnapping is
reduced from a first-degree felony to a second-degree felony if the kidnapper
“voluntarily release[s] the victim in a safe place.” See Tex. Penal Code § 20.04(d).
Voluntary release in a safe place is an affirmative defense that may be evaluated
for legal and factual sufficiency.4 See Butcher v. State, 454 S.W.3d 13, 18, 20 (Tex.
Crim. App. 2015).

       In a legal-sufficiency review of an affirmative defense, we first assay the
record for a scintilla of evidence favorable to the factfinder’s finding and disregard
all evidence to the contrary unless a reasonable factfinder could not. See id. at 20.
The finding of the factfinder rejecting a defendant’s affirmative defense should be
overturned for lack of legal sufficiency only if the appealing party establishes that
the evidence conclusively proves his affirmative defense and no reasonable
factfinder was free to think otherwise. Id.

       In a factual-sufficiency review of a finding rejecting an affirmative defense,
unlike in a legal-sufficiency review, we examine the evidence in a neutral light.
See id. We cannot overturn a finding rejecting a defendant’s affirmative defense
unless, after setting out the relevant evidence supporting the verdict, we clearly

       4
         Affirmative defenses may be evaluated for legal and factual sufficiency, even after
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), which abolished factual-sufficiency
review as it applies to criminal convictions. Butcher, 454 S.W.3d at 20.

                                             4
articulate why the verdict is so much against the great weight of the evidence as to
be “manifestly unjust, conscience-shocking, or clearly biased.” See id.

       The determination of whether a place is safe is fact-specific. See id. at 16-19.
The defendant has the burden of proof to establish the safety of the place of
release. Nolan v. State, 102 S.W.3d 231, 238 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d).

       Appellant argues that the jury’s finding was not supported by legally and
factually sufficient evidence because complainant was released in a safe place. 5
Complainant was released after dark from the abandoned apartment where she had
been held and assaulted. She had her cell phone and keys, and her car was in the
parking lot of the apartment complex. She returned to her car and drove to a
McDonald’s where she called the police, and an ambulance arrived and transported
her to the hospital. Appellant argues that because the apartment complex was along
a major thoroughfare near businesses and complainant was able to drive away and
call the police, the evidence conclusively shows she was released in a safe place
and the jury’s finding is against the great weight of the evidence.

       The State asserts that the factors articulated in Lavarry v. State, 936 S.W.2d
690, 696 (Tex. App.—Dallas 1996, pet. ref’d), weigh in favor of the jury’s finding.
The Court of Criminal Appeals recently has stated that courts of appeals may
consider a list of factors similar to the Lavarry factors to determine whether a
complainant was released in a safe place, but the Court noted these factors are
“merely nonexclusive aids” to guide our analysis under the totality of the
circumstances of each case. See Butcher, 454 S.W.3d at 19.

       5
          Appellant also argues that the jury’s finding was not supported by legally or factually
sufficient evidence because he voluntarily released complainant. We need not address whether
appellant voluntarily released complainant because we conclude appellant has not established
that he released complainant in a safe place.

                                               5
      Keeping in mind the Court of Criminal Appeals’ admonition that these
factors are only an aid in our analysis, we address the evidence—or lack thereof—
of certain factors:

      Remoteness of Location. Complainant was released from an abandoned
apartment. Appellant contends, however, that the apartment complex was located
“in a populated area containing storefronts and businesses.” Appellant relies on
two photographs admitted at trial showing a pawn shop near the apartment
complex. There is no evidence in the record of whether any nearby businesses,
including the pawn shop, were open when complainant was released after dark or
how populated the area was at that time or any other time.

      Proximity of Help. Appellant asserts that complainant “drove a short
distance from the complex to a McDonald’s where she stopped and called the
police.” But there is no evidence in the record of how far complainant’s car was
from the apartment where she was released or how far she drove to the
McDonald’s. In addition, there is no evidence that anyone other than complainant
and her attackers were near or in the apartment complex at the time of her release,
so there is no evidence of nearby help.

      Time of Day. Complainant was released after dark at 7 p.m.

      Condition of Complainant. Complainant’s physical injuries were minor, but
she suffered mental and emotional harm as shown by her testimony that she “broke
down” after calling her friend, was barely able to communicate with him, and
resisted hanging up and calling 911 because she was afraid.

      Character of the Location and Surrounding Neighborhood. An officer
testified that while the location where complainant was released was “not a
dangerous part of town to be in,” it likewise was “not one of the safer parts of


                                          6
town.” He agreed with the prosecutor that it was a “high-crime, high-narcotics
neighborhood.” That complainant was forced to walk from the abandoned
apartment through the parking lot to her car where she was abducted also supports
an inference that the character of the location was not safe. See id. at 16, 19
(acknowledging that depending on the circumstances, being released where one
was abducted can support an inference that one was not released in a safe place,
particularly when the area was “desolate,” among other things).

      Complainant’s Familiarity with the Location. Complainant had pulled over
in the apartment complex parking lot to consult her GPS because she was lost.
After the assault, she had to be given directions to the McDonald’s over the phone
by her friend, and she was not very familiar with Houston in general.

      We agree with the State that these factors support an inference that
complainant was not released in a safe place. She was released after dark from an
abandoned apartment in a “high-crime, high-narcotics neighborhood” that was not
familiar to her and drove some distance to a business to seek help. As she left, she
“broke down,” “was shaking,” “was crying,” and “was scared,” and thus the jury
could infer she did not feel safe when she was released. See id. at 16.

      Appellant argues, however, that this case is like Storr v. State, 126 S.W.3d
647, 652-53 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d), in which we held
that the defendant’s attorney rendered ineffective assistance because he did not
request a jury instruction on voluntary release in a safe place. In that case, we
concluded the evidence conclusively established that the complainant was released
in a safe place because it was at the post office where he had been abducted near
his college, thus no conceivable trial strategy could explain counsel’s failure to
request the instruction. Id. at 653. In contrast, the complainant in this case was
released from an abandoned apartment after dark, and appellant presented no

                                          7
evidence that any surrounding businesses were open at that time. See Butcher, 454
S.W.3d at 19. Moreover, in this case, the jury found that complainant was not
released in a safe place, whereas in Storr, the issue was not presented to the jury.
See Storr, 126 S.W.3d at 653. Accordingly, Storr is distinguishable from this case.

       In light of the totality of the circumstance of this case, we conclude appellant
failed to establish that the jury’s finding was not supported by legally or factually
sufficient evidence.6 The record contains more than a scintilla of evidence to
support the jury’s finding that the place where appellant released complainant was
not safe. See id. at 20. Accordingly, appellant has not conclusively proved that he
released complainant in a safe place such that no reasonable factfinder was free to
think otherwise. Likewise, the jury’s finding rejecting appellant’s affirmative
defense was not so against the great weight and preponderance of the evidence as
to be manifestly unjust, conscience-shocking, or clearly biased. Accordingly, the
evidence was legally and factually sufficient to support the jury’s finding that
appellant did not voluntarily release complainant in a safe place.

       We overrule appellant’s first and second issues.

       II.    Admission of Extraneous Offense Evidence

       In his third issue, appellant complains that the trial court abused its
discretion in admitting evidence of his extraneous offenses of aggravated
       6
         See, e.g., Simmons v. State, No. 05-13-01590-CR, 2015 WL 534447, at *3 (Tex. App.—
Dallas Feb. 9, 2015, no pet.) (mem. op., not designated for publication) (holding evidence was
sufficient to support jury’s finding that complainant was not released in a safe place when the
defendant pushed her out of a van at a gas station during nighttime business hours even though
the gas station was located off a main highway near other locations that were also open); Nolan,
102 S.W.3d at 238 (holding defendant did not establish safety of place of release when
complainant was released at a middle school between 4:20 and 5:00 p.m. and evidence did not
show, among other things, character of neighborhood on day in question, safety of surrounding
area, whether release was during school hours or at a time when school activities were ongoing,
whether people were in the area or victim was familiar with campus, or whether surrounding area
was “generally safe or crime-ridden”).

                                               8
kidnapping and sexual assault. Appellant argues the evidence was inadmissible
under Rule of Evidence 404(b), as evidence of other crimes is generally
inadmissible, and under Rule of Evidence 403, because the probative value of the
evidence was substantially outweighed by the danger of unfair prejudice. The State
counters that the evidence was offered as an exception to the general rule of 404(b)
to refute appellant’s defense that complainant consented to the encounter and it
was not unfairly prejudicial under Rule 403.

      We review a trial court’s ruling under the Rules of Evidence for an abuse of
discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). If the
ruling was correct on any theory of law applicable to the case, in light of what was
before the trial court at the time the ruling was made, then we must uphold the
judgment. Id. We will uphold a trial court’s ruling on the admissibility of evidence
as long as the ruling was within the zone of reasonable disagreement. Id.

      Evidence is relevant if it has any 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. 401. Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity with the character. Tex. R. Evid. 404(b).
However, this evidence may be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Martin, 173 S.W.3d at 466 (citing Rule 404(b)). This list is
illustrative, not exhaustive. Id. Accordingly, a party may introduce extraneous
offense evidence if (apart from character conformity) it logically serves to make
more or less probable an elemental fact, an evidentiary fact that inferentially leads
to an elemental fact, or defensive evidence that undermines an elemental fact. Id.
Moreover, relevant evidence may be excluded if its probative value is substantially

                                          9
outweighed by a danger of, among other things, unfair prejudice. Tex. R. Evid.
403. Extraneous-offense evidence is admissible under both Rules 404(b) and 403 if
the evidence is relevant to a fact of consequence in the case apart from its tendency
to prove conduct in conformity with character and the probative value of the
evidence is not substantially outweighed by unfair prejudice. Martin, 173 S.W.3d
at 467.

              A. Defensive Theory of Consent Raised by Appellant

       Extraneous-offense evidence is not inadmissible under Rule 404(b) when it
is offered to rebut an affirmative defense or a defensive issue that negates one of
the elements of the crime. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.
App. 2009); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). As an
initial matter, we decide whether appellant raised the defensive theory of consent at
trial.7 During the State’s direct examination of complainant, she testified that she
had previously worked as an escort but stopped doing so approximately six months
prior to the incident in question. Appellant’s cross-examination of complainant
focused on her past as an escort. Appellant introduced an exhibit of online
advertisements for escort services in several Texas locations, including Houston,
all containing pictures of complainant along with her pseudonym. In response to
the State’s relevance and Rule 403 objections to the admissibility of the exhibit,
defense counsel explained: “[O]ur theory of the case is . . . she was working as an
escort in Houston when this incident happened. . . . They’re relevant as to consent.
They’re relevant as to our theory of the case that . . . there was a consensual act
between her and the defendant at a certain time at a certain location.” The trial
       7
         Appellant was not given permission by this court to raise in his amended brief the new
issue of extraneous evidence in his aggravated kidnapping conviction. As a matter of judicial
economy, however, we will analyze the admissibility of the evidence as to both sexual assault
(lack of consent to participate in sexual act is an element of the crime) and aggravated
kidnapping (restraint without consent is an element of the crime).

                                              10
court admitted the evidence with the photographs of complainant redacted.

       The State then offered extraneous offense testimony regarding the other
aggravated kidnapping and sexual assault committed by appellant to rebut
appellant’s theory that complainant consented to the encounter with appellant.
Defense counsel objected, arguing that he had not opened the door to the issue of
consent because he never asked complainant if she engaged in consensual sexual
relations with appellant. He also argued that he had offered the evidence regarding
complainant’s being an escort to rebut the idea that she had been kidnapped: “I’m
trying to show that possibly she went to that apartment as an escort.” The State
argued that appellant’s line of questioning regarding complainant’s profession put
consent at issue as to both charged offenses. After a hearing outside the presence of
the jury, the trial court determined that the extraneous offense testimony was
admissible to rebut the defensive theory of consent.

       On appeal, appellant argues that the State, as the proponent of the extraneous
offense evidence, did not demonstrate that appellant raised the issue of consent
through his line of questioning related to complainant’s status as an escort.8
Considering the arguments and evidence elicited by appellant at trial, we conclude
the trial court did not abuse its discretion in determining that consent was his
defensive theory as to both offenses. See, e.g., Fields v. State, No. 03-04-00422-
CR, 2005 WL 1650985, at *6 (Tex. App.—Austin July 14, 2005, pet. ref’d) (mem.
op., not designated for publication) (considering defendant’s opening statement
and testimony elicited during cross-examination to determine whether defendant
opened door by implying complainant consented to sexual activity).


       8
         The State also argued below that appellant opened the door to the extraneous offenses
by raising the issue of fabrication, i.e., that complainant was working as an escort at the time of
the incident in question.

                                                11
      Defense counsel did not present an opening statement, but he cross-
examined complainant extensively about when and where she worked as an escort
and for how long. He then questioned her about the advertisements that the trial
court had admitted outside the presence of the jury. She admitted that the
advertisements included her pseudonym and that pictures of her had been attached
to them. The latest advertisement had been dated approximately two weeks before
the incident in question. As mentioned above, defense counsel argued successfully
that the advertisements should be admitted because they were relevant to show
“there was a consensual act between [complainant] and the defendant.”

      Defense counsel also questioned complainant about how she paid her bills.
Complainant had testified on direct examination that she owned a lingerie
business. Defense counsel asked her how much money she made in that business
and how much her monthly bills were, suggesting she did not make enough money
through her lingerie business to pay her bills.

      He further asked complainant whether she had suffered any vaginal tearing
from the incident. When defense counsel tried to retract his assertion to the trial
court that appellant was relying on a defensive theory of consent to the sexual
assault, the State argued that the question about vaginal tearing also was “designed
to go towards the issue of consent.”

      We agree with the State that appellant’s cross-examination of complainant,
standing alone, was enough to open the door for the State to present evidence
rebutting appellant’s defensive theory of consent because the gist of the cross-
examination was that complainant was working as an escort when she went to the
apartment and thus consented to the sexual encounter. See id. Moreover, a
consideration of the appellant’s arguments, testimony elicited on cross-
examination, and evidence presented at trial, affirms that appellant was attacking

                                          12
complainant’s credibility as to consent.

       During his case, appellant presented testimony from his cousin that the
month before the incident, the cousin saw the complainant in the parking at the
hotel where appellant was staying, implying that she was there to see appellant. In
his closing argument, defense counsel focused on the testimony from appellant’s
cousin. Regarding complainant, defense counsel also said:

       And what you know about her and the fact that she was, from age 18
       to 22, a dancer and a [sic] escort where she admitted going to hotel
       rooms and meeting guys but she doesn’t remember the name of the
       man who set up all of her details, that’s for you to evaluate if that
       means anything to you or not. . . .
       You have to decide, do you give her the same credibility you give the
       girl next door in the same situation. You have to weigh everything
       about her and make a decision based on her story.

       We conclude appellant raised the defensive theory that complainant
consented to accompanying appellant and engaging in intercourse with him.9 We
now address whether the State was entitled to put on the evidence of extraneous
offenses to rebut appellant’s defensive theory of consent.

              B. Extraneous Offense Evidence Similar Enough to be Admissible
                 under Rule 404(b)
       Courts have recognized that a defendant’s modus operandi—i.e., a
defendant’s “distinctive and idiosyncratic manner of committing criminal acts”—is
an exception to the general rule excluding extraneous-offense evidence if the
modus operandi tends to prove a material fact at issue other than propensity for
committing crimes. See Casey, 215 S.W.3d at 880–81. When a defensive theory of
consent is raised, a defendant necessarily disputes his intent to do the act without

       9
         Consent likely was appellant’s only available defense, as DNA evidence linked him to
the crime.

                                             13
the consent of complainant. Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App.
1980). Thus, modus operandi evidence has been used to prove lack of consent as a
fact at issue when it is an element of the charged offense. See Casey, 215 S.W.3d
at 880–81; Martin, 173 S.W.3d at 466–68; Rickerson v. State, 138 S.W.3d 528,
531–32 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

      In this case, lack of consent is an element of both charged offenses. See
Martin, 173 S.W.3d at 466 & n.1 (noting lack of consent “is the essence of the
offense of sexual assault”); Prudholm v. State, 333 S.W.3d 590, 598 (Tex. Crim.
App. 2011) (listing elements of aggravated kidnapping to include “restrict[ing] a
person’s movements without consent”). Appellant argues the extraneous offenses
should not have been admitted because they are not similar enough to show
appellant’s modus operandi.

      In Martin, the complainant testified that she became acquainted with Martin
at a private club, where he falsely told her he was a deputy sheriff. 173 S.W.3d at
464. She agreed to meet him at a mobile-home park several days later, but once she
arrived, he took her to an unoccupied mobile home and forced her to have
intercourse with him. Id. Martin testified that their intercourse was consensual. Id.
at 465. The State called a rebuttal witness who testified that, several months before
the alleged offense, she met Martin through a telephone “date line.” Id. She stated
that Martin told her he was a detective. Id. He later met her at her apartment and
sexually assaulted her. Id. Because Martin falsely claimed to be a law enforcement
officer to “pick up” both the complainant and the extraneous-offense witness, both
women agreed to meet Martin in a residential area, both women were assaulted on
the first face-to-face meeting after initial contact, and both assaults took place in a
residence, the court held that the extraneous-offense testimony was admissible as
sufficiently distinctive modus operandi evidence. See id. at 468.

                                          14
       Likewise, the extraneous-offense testimony the State presented at trial is
sufficiently distinctive and similar to the charged offenses to qualify as modus
operandi evidence relevant to the issue of consent. See id. These incidents occurred
within two weeks of each other. Both women were forcibly removed from their
cars to a private location to be sexually assaulted. Both women were held for
extended periods and sexually assaulted multiple times. In both instances,
appellant went through the women’s purses and took their ATM cards and also
went through their phones for contact information. Appellant also threatened to
harm the victims’ families if they reported the incidents to authorities. Both women
were forced to wash themselves, and appellant expressed doubts that they were
cleaning themselves well enough.10

       Appellant argues that these two incidents are not similar enough to support
the trial court’s finding of modus operandi because, in the first incident, appellant
forced the woman to make videos and smoke marijuana, had a gun, and forced the
victim to drive to a hotel. In the second incident, there were two attackers.
However, the similarities between the two offenses are striking and unusual. The
appellant’s preoccupation with the victims’ ATM cards, looking through their
phones and threatening their family members, and forcing the victims to wash
themselves multiple times is significant. Given the remarkable similarities between
the charged offense and the extraneous offense testimony in this case, we cannot
say the trial court abused its discretion in admitting the extraneous offenses unless
the evidence was unduly prejudicial. See Casey, 215 S.W.3d at 881; Martin, 173

       10
           Moreover, appellant apparently targeted women with a history of being escorts.
Defense counsel told the trial court, “[W]e have been told during discovery that [the other
victim] did advertisements in Georgia as an escort and I want to ask her about that.” The trial
court sustained the State’s objection to that line of questioning. The State also presented
evidence of another extraneous offense involving another escort to the trial court in a hearing
outside the presence of the jury, but decided not to offer the evidence in the presence of the jury.

                                                15
S.W.3d at 648.

             C. Extraneous Offense Evidence Not Unduly Prejudicial under
                Rule 403
      We presume that the probative value of evidence substantially outweighs the
danger of unfair prejudice from admission of that evidence. Cargill v. State, No.
AP-76,819, 2014 WL 6477109, at *6 (Tex. Crim. App. Nov. 19, 2014). It is
therefore the defendant’s burden to demonstrate that the danger of unfair prejudice
substantially outweighs the probative value. Kappel v. State, 402 S.W.3d 490, 494
(Tex. App.—Houston [14th Dist.] 2013, no pet.). In reviewing the trial court’s
balancing determination under Rule 403, we are to “reverse the trial court’s
judgment rarely and only after a clear abuse of discretion.” Id.

      Determining whether the probative value of evidence is outweighed by the
danger of unfair prejudice requires balancing the following factors: (1) the strength
of the evidence in making a fact more or less probable; (2) the potential of the
extraneous-offense evidence to impress the jury in some irrational but indelible
way; (3) the amount of time the proponent needed to develop the evidence; and
(4) the strength of the proponent’s need for this evidence to prove a fact of
consequence. Bargas v. State, 252 S.W.3d 876, 892-93 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). When the record is silent as to the trial court’s balancing of
these factors, we presume the trial court conducted the balancing test. Id. at 893.

      Strength of the Evidence. The first factor weighs strongly in favor of
admissibility because the evidence was relevant to the issue of intent. See id.
(holding extraneous-offense evidence was probative to rebut appellant’s theory that
allegations were fabricated). As set forth above, appellant put his intent to commit
the charged offenses at issue by raising a defensive theory of consent. See Rubio,
607 S.W.2d at 500–01. The testimony regarding the extraneous offenses rebuts

                                          16
appellant’s defensive argument that complainant’s testimony was not credible and
that she consented to the sexual encounter. Because the extraneous-offense
evidence was so similar to the charged offense, it was highly probative as modus
operandi evidence to rebut the issue of appellant’s intent to commit the offenses.
See Casey, 215 S.W.3d at 882; Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim.
App. 1985).

      Potential to Impress Jury and Time Needed to Develop Evidence. The
second and third factors also weigh in favor of admissibility. The extraneous
offense was no more heinous than the crime for which appellant was indicted, so
the testimony was not likely to create such prejudice in the minds of the jury that it
would have been unable to limit its consideration of the evidence to its proper
purpose. See Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996). Any
danger the testimony may have impressed the jury in a prejudicial way is
overshadowed by its probative value. See Bargas, 252 S.W.3d at 893 (viewing
prejudicial tendencies of extraneous-offense testimony in sexual assault case as
outweighed by its probative value when it was used to rebut a defensive issue).
Furthermore, the testimony took less than an hour of the two-day guilt-innocence
proceedings.

      State’s Need for Testimony. The State’s need for this testimony was also
significant, favoring admissibility under the fourth factor. Appellant urges that the
jury could infer a lack of consent from the facts that complainant called the police,
went to the hospital, and had physical injuries and her personal identification was
stolen. But none of this evidence tends to discredit appellant’s argument that
appellant voluntarily went to the apartment building as an escort. See Casey, 215
S.W.3d at 884 (“[W]ithout the benefit of the [extraneous offense evidence, the
complainant’s] testimony could have been easily discounted by the jury due to her

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intoxication and intermittent recollection of events.”). Because appellant contested
complainant’s allegations on a theory of consent, the State demonstrated the need
to counter that theory.

      Considering the above factors, we conclude the probative value of the
extraneous-offense evidence was not substantially outweighed by unfair prejudice.
The evidence was probative in assessing whether complainant consented to the
sexual encounter. The State needed the evidence to counteract the defensive theory
that complainant went to the apartment as an escort. The trial court did not abuse
its discretion under Rule 404(b) or Rule 403 in admitting the extraneous-offense
evidence. See Bargas, 252 S.W.3d at 893; see also Montgomery v. State, 810
S.W.2d 372, 391-92 (Tex. Crim. App. 1990).

      We overrule appellant’s third issue.

      We affirm the judgment of the trial court.




                                      /s/    Martha Hill Jamison
                                             Justice




Panel consists of Justices Christopher, Jamison, and Busby.
Publish — TEX. R. APP. P. 47.2(b).




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