                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00118-CR



            WILLIE DEE PRICE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 336th District Court
                Fannin County, Texas
            Trial Court No. CR-19-26942




      Before Morriss, C.J., Burgess and Stevens, JJ.
              Opinion by Justice Burgess
                                                 OPINION
         A Fannin County jury found Willie Dee Price guilty of aggravated sexual assault of

Tammy, a child, and sentenced him to life imprisonment. 1 On appeal, Price argues that the trial

court erred in failing to excuse veniremembers who could not consider the full range of punishment

and in allowing the State to admit extraneous-offense evidence. 2

         We find that Price failed to preserve his first issue for our review. We also find that the

trial court did not abuse its discretion by admitting the extraneous-offense evidence. As a result,

we affirm the trial court’s judgment.

I.       Price Failed to Preserve His First Point of Error

         Price argues that the trial court erred in failing to grant his challenges for cause to

veniremembers who answered that they could not consider the minimum punishment for “the

worst child sexual assault case [they could] imagine.” 3 In total, veniremembers 15, 17, 18, 23, 27,


1
 To protect the identity of victims who were minors at the time of the alleged offenses, we will use a pseudonym for
all parties in this case. See TEX. R. APP. P. 9.10(a)(3).
2
 Price also appeals from two additional convictions for aggravated sexual assault of a child in companion causes 06-
19-00119-CR and 06-19-00120-CR.
3
 The State objected that the question was an improper commitment question that did not give rise to a challenge for
cause. “Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an
issue a certain way after learning a particular fact.” Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001).
Where “the law requires jurors to make certain types of commitments,” “the attorneys may ask the prospective jurors
whether they can follow the law in that regard.” Id. at 181. For example, because “[b]oth the State and defense are
entitled to jurors who can consider the entire range of punishment for the particular statutory offense . . . i.e., from the
maximum to the minimum and all points in between,” “both sides may question the panel on the range of punishment
and may commit jurors to consider the entire range of punishment for the statutory offense.” Cardenas v. State, 325
S.W.3d 179, 184 (Tex. Crim. App. 2010) (footnotes omitted) (citations omitted). “A question committing a juror to
consider the minimum punishment is both proper and permissible.” Id. (footnotes omitted) (citations omitted).
          “However, where the law does not require the commitment, a commitment question is invariably improper.”
Standefer, 59 S.W.3d at 181. “To be proper, then, a commitment question must contain only those facts necessary to
test whether a prospective juror is challengeable for cause.” Id. at 182. “[C]ounsel veers into impermissible
commitment questions when he attempts to commit a veniremember to consider the minimum sentence based on
specific evidentiary facts.” Cardenas, 325 S.W.3d at 184. This is because “an attorney cannot attempt to bind or
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29, 30, 34, 35, 39, and 49 said that they could not assess the minimum sentence for “the worst

child sexual assault case” they could “personally imagine.” While several of these veniremembers

were struck for cause by agreement, Price challenged the six remaining veniremembers for cause

because they could not consider the full range of punishment in the “worst case” scenario. Price

used his peremptory challenges to strike those six jurors and asked for additional peremptory

strikes. In his first point of error, he argues that the trial court erred in refusing his challenges for

cause.

            The Texas Court of Criminal Appeals has made clear that

            [e]rror is preserved for review . . . only if appellant (1) used all of his peremptory
            strikes, (2) asked for and was refused additional peremptory strikes, and (3) was
            then forced to take an identified objectionable juror whom appellant would not
            otherwise have accepted had the trial court granted his challenge for cause (or
            granted him additional peremptory strikes so that he might strike the juror).

Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App. 2016). Although Price established the first

two requirements of error preservation, he failed to establish the third. Price requested additional

peremptory strikes but only indicated that he would use one strike on veniremember 49, who was

not seated on the jury. 4 Because Price failed to specifically identify any other veniremembers he


commit a prospective juror to a verdict based on a hypothetical set of facts.” Standefer, 59 S.W.3d at 179 (quoting
Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)).
         A question becomes “improper if it includes facts in addition to those necessary to establish a challenge for
cause.” Id. at 182. As an example,
         a party may ask the potential juror if he could consider the minimum of five years’ imprisonment in
         a murder case, but he may not ask if the juror could consider five years in prison in a case in which
         the State alleged that the defendant “tortured, garroted, poisoned, and pickled” the victim. The
         nonstatutory manner in which the defendant was alleged to have committed the offense adds
         evidentiary facts peculiar to the case on trial. That question, because it goes beyond the statutory
         elements and statutory manner or means, is improper under Standefer.
Cardenas, 325 S.W.3d at 184.
4
    Veniremembers 1, 4, 7, 8, 12, 13, 16, 20, 21, 31, 32, 36, and 48 (alternate) were seated on the jury.
                                                              3
wished to strike, the record fails to show that Price was forced to accept an objectional juror. As

a result, error is not preserved.

        We overrule Price’s first point of error.

II.     The Trial Court Did Not Abuse Its Discretion by Admitting Extraneous-Offense
        Evidence

        In his second point of error, Price argues that the trial court erred in admitting extraneous-

offense testimony from four other witnesses who said Price sexually abused them when they were

children. We disagree.

        A.      Factual and Procedural Background

        The evidence at trial showed that Price sexually assaulted a family member, Tammy, when

she was a child. Tammy testified that Price had “rubb[ed] his penis with [her] vagina” several

times when she was approximately four or five years old and discussed other sexually abusive acts

committed by Price against her. Tammy kept Price’s acts secret until she made a delayed outcry

to her mother, Tiffany; her fiancée, Dan; and her brother, Zeke, when she was an adult.

        Tiffany testified that Price moved in with them when Tammy was a young child. When

Tammy was in the second grade, Tammy told Tiffany that Price was mean and had spanked her.

As a result of Tammy’s behavior, Tiffany felt that Price must have been rough in his discipline

and told Price he was no longer welcome to live with them.

        In opening statement, Price argued, “[I]t appears that the evidence will show that someone

has just thrown something on the wall to see if something would stick here.” Price (1) doubted

the accuracy of Tammy’s memory, (2) questioned why she had never told anyone about the alleged

abuse until she reached adulthood, (3) challenged the timeframe of when the incidents occurred,
                                                    4
(4) argued that several of the alleged incidents must have taken place outside of Fannin County,

(5) accused the investigating officer of doing “nothing to validate whether [witnesses] were telling

the truth,” (6) and stated that Tammy’s memory of an incident where Price assaulted her over the

sink while looking out of a window in the room presented “a physics problem” based on the

location of the window.

       During cross-examination, Tiffany said that before she kicked Price out of the home,

Tammy and Zeke both denied that Price had committed any act other than spanking them. Tiffany

could not remember the exact time of Tammy’s outcry or the details of the outcry. Cross-

examination also showed that Tammy had been inconsistent about the timeline and physical

location of the alleged abusive acts. To challenge Tammy’s credibility, Tiffany, Dan, and Zeke

were all asked why Tammy had made no outcry until adulthood.

       Price also challenged Tammy’s credibility directly by showing that Tammy added

allegations of abuse several times during the investigation. When asked about reporting additional

abusive acts in successive interviews, Tammy testified that she did not know why it had taken her

so long to remember the additional incidents. Tammy admitted that she was unaware of when

some of the incidents had occurred and appeared shaky on whether they happened in the bedroom

or the bathroom of her house.

       After hearing this evidence, the State moved to admit the testimony of four other witnesses

who had suffered Price’s sexually abusive acts when they were children. Outside of the jury’s

presence, the trial court heard testimony from Polly, Wayland, Sarah, and Amanda, who were all

related to Price by blood or marriage.

                                                 5
       Polly testified that Price sexually abused her “probably . . . every night, every other night,”

from the time she was two until she was fifteen. Polly said Price’s acts included touching her

vagina, trying to “rape” her, and making her kiss his penis. Wayland testified that Price attempted

anal sex with him when he was eight or nine years old. Sarah testified that when she was eight or

nine, Price rubbed the skin of her private area. Amanda testified that Price “directed” her to his

exposed penis when she was seven or eight. The trial court overruled Price’s objections that the

testimony was irrelevant, “unduly cumulative,” “far remote from the alleged allegations,” and

“prejudicial.”

       B.        Standard of Review

       “[A] trial court’s ruling on the admissibility of extraneous offenses is reviewed under an

abuse-of-discretion standard.” Bradshaw v. State, 466 S.W.3d 875, 878 (Tex. App.—Texarkana

2015, pet. ref’d) (quoting Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). “A trial

court does not abuse its discretion if the decision to admit evidence is within the ‘zone of

reasonable disagreement.’” Id. (quoting Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—

Texarkana 2011, pet. ref’d)). “If the trial court’s decision on the admission of evidence is

supported by the record, there is no abuse of discretion, and the trial court will not be reversed.”

Id. (quoting Marsh, 343 S.W.3d at 478). “In determining whether the trial court abused its

discretion, ‘[w]e may not substitute our own decision for that of the trial court.’” Id. (quoting

Marsh, 343 S.W.3d at 478).




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       C.      Admissibility of Certain Prior Offenses

       By statute, when a defendant is tried for a sexual offense committed against a child under

seventeen years of age, the State may, notwithstanding Rules 404 and 405 of the Texas Rules of

Evidence, introduce evidence that the defendant has committed a separate sexual offense against

another child “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, §§ 1–2. Thus, in cases like the one before us, Article 38.37 “permits

the introduction of evidence ‘in a trial of a defendant for the enumerated sexual crimes against

children . . . that the defendant has committed certain offenses against a nonvictim of the charged

offense.’” Harty v. State, 552 S.W.3d 928, 933 (Tex. App.—Texarkana 2018, no pet.) (quoting

Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—Tyler 2015, no pet.)).

       However, “the admission of evidence under Article 38.37 ‘is limited by Rule 403’s

balancing test, which permits admission of evidence as long as its probative value is not

substantially outweighed by its potential for unfair prejudice.’” Fahrni v. State, 473 S.W.3d 486,

492 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Bradshaw v. State, 466 S.W.3d 875, 882

(Tex. App.—Texarkana 2015, pet. ref’d)). When conducting a Rule 403 balancing test, the court

       must balance (1) the inherent probative force of the proffered item of evidence
       along with (2) the proponent’s need for that evidence against (3) any tendency of
       the evidence to suggest decision on an improper basis, (4) any tendency of the
       evidence to confuse or distract the jury from the main issues, (5) any tendency of
       the evidence to be given undue weight by a jury that has not been equipped to
       evaluate the probative force of the evidence, and (6) the likelihood that presentation
       of the evidence will consume an inordinate amount of time or merely repeat
       evidence already admitted.


                                                 7
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). In any given case, “these

factors may well blend together in practice.” Id. at 642.

        D.       Analysis

        With respect to the first factor in the balancing test, Price argues that the extraneous

offenses were irrelevant and had no probative force because they were remote in time to the

allegations in the indictment. We disagree. Evidence of a separate sexual offense against a child

admitted under Article 38.37 is probative on the issues of intent and a defendant’s character or

propensity to commit sexual assaults on children. 5 See Bradshaw, 466 S.W.3d at 883; TEX. CODE

CRIM. PROC. ANN. art. 38.37, § 2(b). Here, the evidence was especially probative of Price’s

propensity to sexually assault children who were members of his family by relation or marriage. 6

We conclude that this factor weighed strongly in favor of admission.

        As to the second factor, in his opening statement and during cross-examination of

witnesses, Price challenged Tammy’s credibility and memory about allegations resulting from her

late outcry. By adopting Article 38.37, Section 2, the Legislature recognized that in child sex



5
 Therefore, we overrule Price’s argument that the testimony was irrelevant. We also note that it is unclear whether
Price raises a Rule 404(b) argument on appeal. To the extent that he does, Price’s argument is overruled because it
does not comport with the objections raised at trial. See Garcia v. State, 553 S.W.3d 645, 648 (Tex. App.—Texarkana
2018, pet. ref’d) (quoting Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)). Moreover, Article 38.37
evidence is admissible notwithstanding Rule 404(b). TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b).
6
 “Remoteness of an extraneous offense is properly considered in determining whether the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice.” Harty, 552 S.W.3d at 935 (citing Newton v.
State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d) (concluding that the “remoteness of the extraneous-
offense evidence significantly lessens its probative value” but finding the twenty-five-year-old extraneous offense
admissible)). However, we do not believe here that the “remoteness of the extraneous offenses rendered the probative
value of this evidence so weak as to render this evidence inadmissible under Rule 403.” Id. This is because the Texas
Rules of Evidence “favor the admission of all logically relevant evidence for the jury’s consideration.” Montgomery
v. State, 810 S.W.2d 372, 375 (Tex. Crim. App. 1990) (op. on reh’g).
                                                         8
offenses, “there is typically very little evidence to assist prosecutors with proving their cases.”

Bradshaw, 466 S.W.3d at 884 (quoting Senate Comm. on Criminal Justice, Bill Analysis, Tex.

S.B. 12, 83d Leg., R.S. (2013)). Because there was no biological evidence and there were no third-

party eyewitness to the alleged incidents, and because Price challenged Tammy’s credibility and

memory, the State had a considerable need for the evidence. “Rule 403 ‘should be used sparingly

to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the

defendant or complainant in such ‘he said, she said’ cases [involving sexual assault].’” Id. at 883–

84 (alteration in original) (quoting Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App.

2009)). Accordingly, the second factor also weighed in favor of admission.

       With respect to the third factor, we recognize that the inherently inflammatory and

prejudicial nature of evidence of Price’s extraneous sexual offenses against children does tend to

suggest a verdict on an improper basis. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.––

Waco 2009, pet. ref’d). Thus, the third factor weighed against admission.

       As to the fourth factor, the ultimate issues in this case were whether Price had committed

the acts of sexual abuse against Tammy as alleged in the State’s indictment. The trial court

mitigated the tendency of the extraneous-offense evidence to confuse or distract the jury from the

main issues at trial by its charge. Specifically, the trial court identified for the jury the elements

the State was required to prove by its indictment and instructed the jury that it could consider the

extraneous-offense evidence only if it found Price had committed the extraneous offenses beyond

a reasonable doubt, and then, if it made that finding, that it could only consider the evidence for

its bearing on matters relevant to determining whether Price committed the acts alleged in the

                                                  9
indictment. Because the jury was redirected to the main issues in the case, we find the fourth factor

weighed in favor of admission.

       The fifth factor refers to evidence such as highly technical or scientific evidence that might

mislead the jury because it is not equipped to weigh the probative force of the evidence. See

Gigliobianco, 210 S.W.3d at 641. Here, the evidence in question was neither scientific nor

technical and pertained to matters, including victim credibility, that could easily be understood by

a jury. We find the fifth factor weighed in favor of admission.

       As to the last factor, the extraneous-offense direct testimony comprised approximately

twenty-six pages of transcript in a multi-day trial. In addition to testimony by Polly, Wayland,

Sarah, and Amanda, the State presented testimony from seven other witnesses. We find that the

presentation of the extraneous-offense evidence did not consume an inordinate amount of time.

On this record, we conclude that the last factor favored admission.

       We find that the trial court, after balancing the Rule 403 factors, could have reasonably

concluded that the probative value of the extraneous-offense evidence was not substantially

outweighed by the danger of unfair prejudice and the other factors in the rule. Consequently, we

find that the trial court did not abuse its discretion in admitting the extraneous-offense evidence.

We overrule Price’s last point of error.




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III.   Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:       December 5, 2019
Date Decided:         December 9, 2019

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