                                 NUMBER 13-07-00366-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


RICARDO VILLA,                                                                          Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                     Appellee.


   On appeal from the 319th District Court of Nueces County, Texas.


                             MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Yañez and Wittig
                    Memorandum Opinion by Justice Wittig1

        Ricardo Villa, appellant, appeals his jury conviction of three counts of

aggravated sexual assault of a child.               Punishment was assessed at 99 years

imprisonment plus a $5000 fine on each count. Appellant presents three identical


        1
         Retired Justice Don W ittig assigned to this Court by the Chief Justice of the Suprem e Court of
Texas pursuant to TEX. GOV’T CODE ANN. § 74.003 (Vernon Supp. 2004).
issues alleging erroneous admission of extraneous offenses involving three

witnesses, Jose Ortiz, Juan Cantu, and Felix Moreno, during the trial in chief. He

claims error under rules 403 and 404(b) of the Texas Rules of Evidence. See T EX

R. E VID. 403, 404(b). W e affirm.

                                1. Background

      The complainant, Jonathon Carrion was twenty-four at the time of trial. Three

instances of sexual assault began when he was 10. Carrion met appellant while

attending dance classes with his cousin, Natalie Barrera, at Villa’s studio. Carrion

was then in forth grade. Appellant picked up Carrion from his mother’s work and

took him to the Dance Center, where appellant worked and sometimes instructed

Carrion. On one occasion, when no one else was present at the studio, appellant

told the complainant he could watch T.V. Appellant joined him and then laid on top

of Carrion’s back, telling him it was good exercise. Appellant instructed Carrion to

massage his inner thigh, which Carrion did. Appellant then asked Carrion to undo

his pants so that he could get closer to the skin. Appellant took off his underwear

in the dark room. Appellant then instructed Carrion to rub appellant’s sexual organ

with his hand. Appellant then placed his organ into Carrion’s mouth, moving it.

Afterward, appellant took Carrion to W endy’s and bought him ice cream and a meal.

      A second incident occurred during a school break between fifth and sixth

grades. This incident was in another room at the dance studio, and began, as did

the first incident, with appellant requesting Carrion to massage his leg. Eventually,


                                         2
appellant again had Carrion perform oral sex on appellant, until interrupted by a

telephone call. Appellant again treated Carrion at W endy’s.

       Carrion was not alone with appellant again at the studio. In the third incident,

appellant pulled Carrion out of dance class and led him to a bathroom. Again, the

episode began by a request for a massage of the inner thigh. Appellant instructed

Carrion to kneel down and again engaged the boy with oral sex. The child made no

initial out cry, but mentioned the incidences years later after his mother died.

                                      2. Standard of Review

       The admissibility of evidence is within the discretion of the trial court and will

not be overturned absent an abuse of discretion. Moses v. State, 105 S.W .3d 622,

627 (Tex. Crim. App. 2003). As long as the trial court's ruling was within the zone

of reasonable disagreement, the appellate court should affirm. Id. (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

W hether extraneous offense evidence has relevance apart from character

conformity, as required by rule 404(b), is a question for the trial court. Id. An

appellate court owes no less deference to the trial judge in making this decision than

it affords him in making any other relevancy determination. Id. W hen a trial court

further decides not to exclude the evidence, finding that the probative value of the

evidence is not outweighed by the danger of unfair prejudice, this decision too shall

be given deference. Id. Thus, the court of appeals cannot simply substitute its own

decision for the trial court's. Id.


                                             3
      The appellate court should not conduct a de novo review of the record with a

view to making a wholly independent judgment whether the probative value of

evidence of "other crimes, wrongs, or acts" is substantially outweighed by the danger

of unfair prejudice. Id. It should reverse the judgment of the trial court "rarely and

only after a clear abuse of discretion." Id.

     Rule 403 favors admissibility of relevant evidence, and the presumption is that

relevant evidence will be more probative than prejudicial. Montgomery, 810 S.W .2d

at 389. If the trial court determines that evidence of "other crimes, wrongs, or acts"

has relevance apart from character conformity, it should admit the evidence absent

a further objection by the opponent of the evidence. It is then incumbent upon the

defendant, in view of the presumption of admissibility of relevant evidence, to ask the

trial court to exclude the evidence by its authority under rule 403, on the ground that

the probative value of the evidence, assuming it is relevant apart from character

conformity, is nevertheless substantially outweighed by the danger of unfair

prejudice. Id.

       If the trial court's evidentiary ruling is correct on any theory of law applicable

to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for

his correct ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

                        3. Extraneous Offense Testimony

      Feliz Moreno, 37, testified that in mid 1985, he was at Villa’s dance studio and

told Villa that he wanted to dance. Villa asked Moreno if he wanted to help judge a


                                            4
dance contest. Moreno was in the eighth grade and stated his age to be 14 or 15.

Villa invited Moreno to a back room, wore a towel, and requested Moreno to

massage his legs under the towel. Villa then asked Moreno to perform oral sex,

which he did. On a second occasion, Moreno was again asked to massage Villa’s

legs in the genital area and again asked to perform oral sex, which Moreno refused.

Villa masturbated while Moreno massaged Villa. The same thing happened on a

third occasion when Villa’s wife came into the room.

       Juan Cantu, 23, testified he took dance lessons from Villa at the studio when

he was ten years old. Villa took Cantu out of the class into a back room, laid down,

and asked Cantu to massage his upper thighs. Cantu complied. Villa was clothed.

W hen Cantu returned home, he told his mother who made a police report. Cantu

did not return to the dance studio.

       Father Jose Angel Ortiz, 37, testified he met Villa when he was 18, although

he looked much younger. Villa met Ortiz at a bus stop. Ortiz indicated he was

looking for a job and Villa invited Ortiz to go with him to see about an office cleaning

job. Villa kept rubbing his inner thigh and talked about a soccer injury. They

eventually parked in a back alley behind a mall. They then went to a back office,

possibly at the dance studio. Villa told Ortiz he had pornographic adult movies, but

not at his office. Villa invited Ortiz over and placed his hand on Villa’s inner thighs.

Villa then invited Ortiz to the floor and Villa took off his pants and Ortiz’s pants. Villa

performed oral sex on Ortiz and maneuvered his genitals over Ortiz’s face. Ortiz


                                            5
massaged Villa’s sexual organ and placed it in his mouth.

                                4. Rule 404(b)

      Appellant contends that the admission of the extraneous offense testimony of

Cantu and Moreno was erroneous and was not relevant to rebut the defensive theory

of fabrication and lack of opportunity or to show plan. Appellant also contends the

extraneous offense testimony of Ortiz was erroneous and not relevant to rebut the

defensive theory of fabrication and lack of opportunity. The State concedes that the

testimony of Cantu and Moreno did not show a plan. Appellant argues that the mere

challenge to credibility of the complainant does not open the door to extraneous

offenses, citing DeLeon v. State, 77 S.W .3d 300, 313 (Tex. App.–Austin 2001, pet.

ref’d.) (impeachment is not among the listed exceptions in rule 404(b); testimony

admitted for impeachment purposes only is without probative value and cannot be

considered as substantial evidence). Similarly, he argues the cross-examination

must be sufficient to construct a defensive theory. See Walker v. State, 588 S.W .2d

920, 922 (Tex. Crim. App. 1979) (cross-examination of State's witnesses can raise

the issue of identity but where cross-examination fails to impeach the witness, or

only one of several witnesses is impeached in his identification, such

cross-examination will not in itself support the introduction of extraneous

transactions on the issue of identity).   The cross-examination responses must

undermine the State’s testimony and place in controversy a fact that the testimony

was offered to prove. Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988).


                                          6
      In his cross-examination of the complainant, appellant sought to establish that

the complainant took drugs, drank alcohol to excess, and made untrue statements

about his allegedly abusive step-father. According to the cross-examination, the

complainant told different “stories” about the sexual assaults to his various

counselors. In one episode, where complainant was supposedly picked up at a W al-

Mart and taken to the dance studio of Villa for sex, the store did not exist or was not

yet opened at the time of the assault. Counsel for appellant accused complainant:

“Your story just didn’t jibe.” The defense developed discrepancies between what the

complainant told investigator Michael Hess and a police report. The defense sought

to establish that the complainant confused his sister’s sweet sixteen birthday with her

Quincenera (15 th birthday celebration). Ultimately, defense counsel charged the

complainant that the third incident in a “public” bathroom was “just a fabrication on

your part.”

                                 5. Fabrication

      Defense counsel challenged how a ten year old could remember “everything

you remember.” Virtually every detail related by the complainant was challenged,

including the fact the lights were out. Defense counsel suggested it would be almost

impossible to do or see anything during the bathroom incident. Counsel suggested,

in effect argued, that with nine other students and nine parents around, the charged

sexual assault was impossible. After the complainant’s mother’s death, his grades

were bad and he went to counseling. The complainant was also suspended from


                                          7
school. Defense counsel then argued, i.e. by leading questions suggested, that

complainant’s testimony about Villa’s sexual advances, were an attempt to generate

sympathy to get better grades. Furthermore, the complainant reported no problems

until the 2005 time frame. Complainant never told his mother or sister about the

episodes. Defense counsel accused the victim of using Villa “as a crutch.” Counsel

also charged the complainant tried to get back into school “with these allegations.”

Patently, the Villa defense was charging fabrication.

      Appellant also argues from the intermediate court’s holding in Bass, that a

fabrication defensive theory standing alone (without other rule 404(b) purposes) is

insufficient to permit introduction of extraneous offense evidence in rebuttal. Bass

v. State, 222 S.W .3d 571, 578 (Tex.App.–Houston [14th Dist.] 2007), rev’d & rem’d.,

270 S.W .3d 557 (Tex. Crim. App. 2008). The higher court rejected the distinction

drawn by the intermediate court between a “fabrication” defense and a “frame up”

or “retaliation” defense.   Bass, 270 S. W . 3rd at 563.     “The issue does not

necessarily turn on the type of defense presented, but on whether the

extraneous-offense evidence has noncharacter-conformity relevance by, for

example, rebutting a defensive theory or making less probable defensive evidence

that undermines an elemental fact.” Id. (citing Powell v. State, 63 S.W .3d 435, 438

(Tex. Crim. App. 2001)); Montgomery, 810 S.W.2d at 387)).

      Appellant likewise argues from a footnote to an unpublished case cited in

Dennis, that mere cross-examination, without evidence of motive or a reason to lie,


                                         8
is insufficient to introduce extraneous-offences. See Dennis v. State, 178 S.W .3d

172, 178 n. 1 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d.). The Houston court

noted that the defendant did no more than attempt to impeach the victim's

credibility–he did not argue that the defendant was framed. Id. The noted case held

that the evidence was inadmissible because, "unlike the defendants in the child

sexual assault cases the State cites, appellant never offered a motive or reason for

the victim's purported lie." Id. However, in Dennis, the defense did more than

merely impeach F.S.'s credibility, and thus opened the door to extraneous evidence

of his prior sexual assault of a minor. Id. Likewise, appellant here did more than

attempt to impeach the complainant, suggesting he had a motive to lie to his

counselors in order to regain admission to college, impossibility, and an attempt to

gain sympathy.

      Appellant also cites Bargas v. State, 252 S.W .3d 876, 892 (Tex.

App.–Houston [14th Dist.] 2008, no pet.). There, the defendant offered both a

motive to fabricate the allegations and evidence, i.e. reason to lie, because the

complainant was upset about living with defendant’s temper and physical abuse. Id.

Like Bargas, the appellant here did more than merely impeach credibility; through

the responses elicited from Carrion and other witnesses during cross-examination,

appellant opened the door to extraneous-offense evidence to rebut appellant's

defensive theories of sympathy and an alleged attempt to regain college admission.

See id.


                                         9
                                          6. Opportunity

        The defense also argued, through its questioning of several witnesses, lack

of opportunity. Specifically, during the cross-examination of Natilie Barrera, defense

counsel informed the trial court he was arguing “the circumstances wouldn’t permit

that to happen. It’s just not practical to have happened.” Again, during summation,

defense counsel argued he could not believe Carrion went back for a third incident

in a restroom that was pitch black and it was not reasonable that Villa would risk his

entire business and reputation to sexually assault a boy in a public restroom where

someone could walk in on him.2

        In Powell, the court of criminal appeals discussed the lack of opportunity as

a means of opening the door to extraneous offenses. Powell, 63 S.W .3d at 439.

The defense witnesses suggested there was no opportunity for the sexual assault

by Powell. Id. at 436-37. The court of appeals was reversed because it ignored the

lack-of-opportunity defensive theory which was put forth during appellant's

cross-examination of the complainant (in addition to opening statement.) Id. at 439.

The trial court could have reasonably decided that the extraneous offense evidence

at issue had noncharacter conformity relevance where it rebutted appellant's

defensive theory that he had no opportunity to commit the offense because he was

never alone with the complainant. Id. at 438. “It is at least subject to reasonable


        2
            In his brief, appellant argues there were no responses to cross-exam ination that put into question
both opportunity and that Villa enjoyed taking a risk of doing it in a place where he m ight get caught. This
parsing ignores trial defense counsel’s own words and argum ent. Additionally, appellant cites no authority
for this argum ent. See T EX . R. A PP . P. 38.1(c).

                                                     10
disagreement whether the extraneous offense evidence made this defensive theory

less probable since this evidence shows that appellant molested other girls in the

presence of others.” Id. (citing Montgomery, 810 S.W.2d at 387).

       In sum, it is also at least subject to reasonable disagreement whether the

extraneous offense evidence was admissible for the noncharacter conformity

purpose of rebutting appellant's defensive theories that the complainant fabricated

his allegations against him in order for complainant to gain sympathy or to use as a

stratagem to reenter school. See Bass, 270 S.W .3d at 563 (citing Daggett v, State,

187 S.W .3d at 453-54 (Tex. Crim. App. 2005); Powell, 63 S.W .3d at 438)). It is

likewise subject to reasonable disagreement whether the extraneous offense

evidence made these defensive theories less probable. Id. W e hold that the trial

court in this case could have reasonably concluded that the inherent probative force

of appellant's extraneous bad acts was considerable, because the evidence tended

to make more probable appellant's illicit sexual advances towards boys and a young

man.    State v. Mechler, 153 S.W .3d 435, 440 (Tex. Crim. App. 2005). The trial

court, therefore, did not abuse its discretion by deciding that the extraneous-offense

evidence was admissible to rebut these defensive theories.

                          7. The Doctrine of Chances

       The extraneous offense evidence was also admissible under W igmore's

"Doctrine of Chances." See 2 JOHN WIGMORE, EVIDENCE § 302, at 241 (Chadbourn

rev. 1979). The "doctrine of chances" tells us that highly unusual events are unlikely


                                         11
to repeat themselves inadvertently or by happenstance. De La Paz, 279 S.W .3d. at

347. As the court of criminal appeals explains, if A while hunting with B, hears the

bullet from B's gun whistling past his head, he is willing to accept B's bad aim as a

conceivable explanation; but if shortly afterwards the same thing happens again, and

if on the third occasion A receives B's bullet in his body, the immediate inference

(i.e., as a probability, though not a certainty) is that B shot at A deliberately; because

the chances of an inadvertent shooting on three successive similar occasions are

extremely small. Id. Here, Villa used a nearly identical modus of seduction of young

boys for sexual favors in the incidences in question.

      Similarly, the chance that a man innocently collects on his murdered business

partner's insurance policy decreases significantly when it is learned that he collected

on his murdered wife's insurance policy just three years earlier. Id. Modus operandi

may also encompass the "doctrine of chances" theory to show lack of consent,

motive, and the manner of committing an offense. Casey v. State, 215 S.W .3d 870,

881 (Tex. Crim. App. 2007).

                                     8. Rule 403

      Even if admissible, appellant challenges that the prejudicial effect out-weighs

the probative value of each of the extraneous offense evidence.                 He cites

Gigliobianco v. State, 210 S.W .3d 637, 641 (Tex. Crim. App. 2006). Appellant

quotes extensively from Gigliobianco:

      The rule's first key phrase, "probative value," means more than simply
      relevance. Old Chief v. United States, 519 U.S. 172, 184, 117 S. Ct.

                                           12
      644, 136 L. Ed. 2d 574 (1997) (discussing Federal Rule 403). Rather,
      "probative value" refers to the inherent probative force of an item of
      evidence–that is, how strongly it serves 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.

Id. To this, we add the court’s next sentence, applicable here:

      W e explained in Montgomery v. State, 810 S.W.2d 372, 390 (Tex.
      Crim. App. 1990) (op. on reh'g), that "[w]hen the proponent [of an item
      of evidence] has other compelling or undisputed evidence to establish
      the proposition or fact that the [item of evidence] goes to prove, the
      [probative value of the item of evidence] will weigh far less than it
      otherwise might in the probative-versus-prejudicial balance.

Id. Here, the State had only the complainant’s eye-witness testimony to the critical

facts and that evidence was seriously tested by the defense’s arguments and

theories of fabrication and lack of opportunity.   As the defense pointed out in the

trial, the complainant made no outcry, and didn’t tell his mother or his close sister.

It was not until over a decade later, when in counseling for his mother’s death and

suffering bad grades, that complainant came forth with his charges against Villa.

Understandably, the defense thus accused the complainant of fabrication for

sympathy, to excuse his grades, and to seek readmission to college. Similarly, the

defense claimed that Villa had no opportunity to molest boys in a “public” restroom,

with the door open and lights off. The defense also argued Villa would not risk his

reputation and business for underage sexual exploits. Therefore, the extraneous

offense evidence to counter these defensive theories, (absent other compelling or

undisputed evidence,) helped to prove both the possibility and probability of the

charged offenses.


                                         13
      A successful conviction "often depends primarily on whether the jury believes

the complainant, turning the trial into a swearing match between the complainant

and defendant." Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

Appellant admits Carrion’s credibility was the primary issue. At a minimum, the

evidence provided a "small nudge" towards contradicting appellant's defensive

theories and towards proving that the molestation did indeed occur. The testimony

of Ortiz, Cantu and Moreno showed strikingly similar events to the charged event:

the defendant coaxing young boys and one very young-looking youth to rub his inner

thighs, then gradually coax them into intimate sexual acts. Thus, we disagree with

appellant that the State does not get past the probative value factor.

      Appellant goes on to argue and recite from Gigliobianco:

      In summary, a trial court, when undertaking a Rule 403 analysis, 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. Of course, these factors may well
      blend together in practice.

Gigliobianco, 210 S. W . 3 rd at 641. He also argues that the extraneous offenses/bad

acts did not directly relate to any fact of consequence, had many dissimilarities, two




                                         14
were remote in time and were uncorroborated.3 W e have already noted that clearly

an adult having sex with a ten year-old boy is a fact of consequence.                                  The

dissimilarities included the fact that Ortiz was eighteen at the time of his encounter

and there was no teacher/student relationship.                       Moreno was fifteen and his

encounters were “voluntary” and not submissive. Cantu was only a single incident

which did not involve a sexual act, according to appellant. We do not agree that

when Villa took the ten year old Cantu out of class, just as he did with Carrion, took

him to a dimly lit back room and asked the child to rub his thighs, that there was no

suggestion of sexual conduct or that Villa may not have been grooming Cantu for

further sexual exploitation. Additional sexual advances were averted by Cantu’s

prompt report to his mother and her report to police. Villa’s advances to Cantu

exactly paralleled his advances on Carrion, also ten, at his dance studio.

        The evidence showed that Ortiz looked much younger than his stated age of

eighteen. Instead of exploiting the young man’s interest in dancing, Villa used

Ortiz’s desire to work and make some money. The stratagem and enticement

followed the same course of conduct as with Carrion and the other victims.

        W hile Moreno was stated to be fourteen or fifteen at the time of his sexual

episodes with Villa, he was only in eighth grade.                        Moreno too sought Villa’s

assistance in dancing. Villa enticed Moreno with an offer to help him judge a dance



        3
          It seem s som ewhat contradictory to argue that evidence is inadm issable and at the sam e tim e
com plain there is not m ore evidence of corroboration. Further corroboration would necessarily include m ore
evidence concerning the extraneous offenses.

                                                    15
contest. This “leading on” conduct was similar to, if not the same as, Villa used to

coax the other boys into sex. He first asked Moreno to massage his thighs under a

towel, then gradually persuaded the boy into further sexual activity. Moreno refused

Villa’s invitation to perform oral sex on the second and third occasions; Moreno

stated his interest was to take up Villa’s offer to judge a dance contest. This “quid

pro quo” by the minor does not amount to the degree of voluntariness suggested by

appellant.

      First, we observe that evidence of the commission of other crimes by the

accused is admissible as an exception to the general rule to rebut some defensive

theory and, in cases such as sodomy, as evidencing the probability of the act

charged and the unnatural attention toward the complaining witness, victim or

accomplice. Johnston v. State, 418 S.W .2d 522, 527 (Tex. Crim. App. 1967). Next,

as argued by the State, in Wheeler, the Texas Court of Criminal Appeals held that

an extraneous offense may be admitted to rebut the defense that the defendant is

the innocent victim of a frame-up if the extraneous misconduct is "similar to the

charged one and an instance in which the 'frame-up' motive does not apply."

Wheeler v. State, 67 S.W .3d 879, 887 n.22 (Tex. Crim. App., 2002). And in Dennis,

the intermediate court observed that it had discovered no cases specifically

discussing the degree of similarity required before an extraneous offense may be

used to rebut the defense of fabrication. Dennis, 178 S.W .3d at 178. The Houston

court held that while the similarity required to prove a "defendant's system" naturally



                                          16
is higher, because the extraneous offense evidence is being used to show the

defendant's distinctive and idiosyncratic manner of committing the criminal acts, it

does not follow that an extraneous offense admitted to rebut the defensive theory of

frame-up requires this same degree of exacting similarity between the extraneous

and charged offenses. Id. at 179 (citing Cf. Plante v. State, 692 S.W .2d 487, 492-93

(Tex. Crim. App. 1985) (en banc) (holding that the high degree of similarity between

extraneous and charged offense used in cases proving modus operandi is not

required when purpose of proof is to show intent)).

      Regarding the time issue, appellant states Villa’s charged conduct occurred

in 1993-1994 according to the evidence. The Moreno conduct occurred in 1985 and

the Ortiz conduct in 1982. The State notes that appellant cited no authority for his

complaints concerning time, or dissimilarities. The State also argues that there is

no per se rule regarding remoteness of extraneous offense evidence. “W e note that

there is no per se rule as to when an extraneous offense is too remote in time to be

introduced in evidence.” Corley v. State, 987 S.W .2d 615, 620 (Tex. App.–Austin

1999, no pet.). The Corley court discusses remoteness ranging from two-and-a-half

years to fifteen years. Id. It concluded that the period of time separating the

extraneous transaction from the charge in chief is a factor to be considered, along

with all other relevant factors, noting that in Montgomery, the "new rules favor the

admission of all logically relevant evidence." Id. (citing Montgomery, 810 S.W .2d at

375). Earlier cases, tried under common law principles, before the new rules,



                                         17
tended to favor exclusion of evidence. Id.

       The court of criminal appeals allowed a ten-year-old extraneous offense

noting: “W e explained that sufficient similarity may be shown by proximity in time

and place or by a common mode of committing the offenses.” Lane v. State, 933

S.W .2d 504, 519 (Tex. Crim. App.,1996). We have already discussed the many

similarities of Villa’s sexual proclivities above. Given the similarities of action, place,

and modus operandi, the time differential standing alone does not render the

extraneous offense evidence irrelevant or lacking in probative value. See id. at 519-

20.

       Although appellant did not argue other elements of rule 403, we briefly

address them. See T EX R. E VID. 403.

       The trial court also could have reasonably concluded that the State's need for

the other sexual conduct was considerable, because the State's prima facie case

rested solely upon testimony of a ten year-old boy testifying some thirteen years

later. Gigliobianco, 210 S.W .3d at 642.

       The trial court could have reasonably concluded that the other sexual conduct

did not have a tendency to suggest a decision on an improper basis. The defense

even argues Villa’s encounter with Ortiz was not illegal. And though the other sexual

acts with a ten and fifteen year-old may have had some inflammatory effect, they

"relate[d] directly to the charged offense.” Id. The inflammatory effect, if any, does

not outweigh the inherent probative force. See id.



                                            18
        The trial court could have reasonably concluded that the other sexual conduct

did not have a tendency to confuse or distract the jury from the main issues in the

case. Id. The presentation of the extraneous offenses consumed very little time at

trial. And, because the testimony related directly to the charged offense, the jury

would not have been distracted away from the charged offense regardless of the

time required to present the evidence. Id.

        The trial court could have reasonably concluded that the other sexual conduct

did not have any tendency to be given undue weight by the jury. See id. This is

particularly true given the trial count’s admonishing instructions on the limited use

of the testimony.        See Daggett, 187 S.W .3d at 454-55.                   Here, the trial court

admonished the jury that the evidence was introduced for the limited purpose of

addressing defensive theories and was not admitted for the purpose of proving the

character of Villa or that the defendant acted in conformity with that character.4 W e

generally presume the jury follows the trial court's instructions in the manner

presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).

        Finally, the trial court could have reasonably concluded that it was unlikely that

presentation of the extraneous conduct would consume an inordinate amount of time

or merely repeat evidence already admitted. Gigliobianco, 210 S.W.3d at 642. Very

little time was consumed in presenting the brief testimony of Ortiz, Cantu and

Moreno.


        4
        The court also instructed that before considering the evidence, the jury m ust believe it beyond a
reasonable doubt and then only for the lim ited purpose for which it was adm itted.

                                                   19
       Although the Texas Rules of Evidence are intentionally slanted toward the

inclusion of all relevant evidence, rule 403 gives the trial court considerable

discretion to exclude evidence when it appears to that individual judge, in the context

of that particular trial, to be insufficiently probative when measured against the

countervailing factors specified in the rule. Winegarner v. State, 235 S.W .3d 787,

791 (Tex. Crim. App. 2007). The rule thus allows different trial judges to reach

different conclusions in different trials on substantially similar facts without abuse of

discretion. Id. W e hold that the trial court properly balanced the competing interests

of rule 403. See T EX R. E VID. 403. We overrule appellant’s three issues.

       W e affirm the judgment and sentence of the trial court.


                                                      DON WITTIG
                                                      Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 31st day of August, 2009.




                                           20
