                                                                                 ACCEPTED
                                                                            01-13-01004-CR
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                       2/18/2015 4:07:14 PM
                                                                        CHRISTOPHER PRINE
                                                                                     CLERK


                    No. 01-13-01004-CR
                             In the
                                                           FILED IN
                       Court of Appeals             1st COURT OF APPEALS
                            For the                     HOUSTON, TEXAS
                    First District of Texas         2/18/2015 4:07:14 PM
                                                    CHRISTOPHER A. PRINE
                          At Houston                        Clerk
                  
                         No. 1363644
                  In the 182nd District Court
                   Of Harris County, Texas
                  
                   BRIAN VICTORIAN
                           Appellant
                               V.
                  THE STATE OF TEXAS
                           Appellee
                  

                STATE’S APPELLATE BRIEF

                  

                                       DEVON ANDERSON
                                       District Attorney
                                       Harris County, Texas

                                       KATIE DAVIS
                                       Assistant District Attorney
                                       Harris County, Texas
                                       State Bar Number: 24070242
                                       davis_katie@dao.hctx.net

                                       1201 Franklin Street, Suite 600
                                       Houston, Texas 77002
                                       Telephone: (713) 755-5826
                                       Fax Number: (713) 755-5809


ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral

argument is requested by the appellant.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon AndersonDistrict Attorney of Harris County

      Katie DavisAssistant District Attorney on appeal

      Angela SmithAssistant District Attorneys at trial

Appellant or Criminal Defendant:

      Brian Victorian

Counsel for Appellant:

      Kurt B. Wentz—Counsel on appeal

      Yvonne Burton—Counsel at trial


Trial Judge:

      Honorable Jeannine BarrJudge of 182nd District Court

      Honorable Don Burgess—Visiting Judge at trial




                                          i
                                        TABLE OF CONTENTS
                                                                                                            Page
STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 6

REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 7
   I.   Standard of Review and Applicable Law......................................................7
   II. The evidence is legally sufficient to support the appellant’s conviction for
       aggravated sexual assault of a child. ...............................................................9
REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR ....... 17
   I.    Standard of Review .....................................................................................18
   II. The trial court did not abuse its discretion in admitting the appellant’s
        extraneous sexual abuse of Jane into evidence..............................................19
        A. Jane’s testimony that the appellant touched and fondled her on other
        occasions was more probative than unfairly prejudicial. .............................21
        B. The extraneous evidence that the appellant repeatedly touched Jane, as
        presented through the testimony of Isaac and the medical records, Isaac was
        more probative than unfairly prejudicial. .....................................................26
   III. The appellant was not harmed by the trial court’s admission of the
        extraneous conduct. .......................................................................................31
CONCLUSION ........................................................................................................ 33

CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 34




                                                          ii
                                   INDEX OF AUTHORITIES


CASES

Adames v. State,
  353 S.W.3d 854 (Tex. Crim. App. 2011) ...............................................................7
Albrecht v. State,
  486 S.W.2d 97 (Tex. Crim. App. 1972) ...............................................................19
Apolinar v. State,
  155 S.W.3d 184 (Tex. Crim. App. 2005) .............................................................18
Austin v. State,
  222 S.W.3d 801 (Tex. App.—
  Houston [14th Dist.] 2007, pet. ref’d) ..................................................................28
Beam v. State,
  447 S.W.3d 401 (Tex. App.—
  Houston [14th Dist.] 2014, no pet.)............................................................... 23, 29
Blackwell v. State,
  193 S.W.3d 1 (Tex. App.—
  Houston [1st Dist.] 2006, pet. ref’d) ....................................................................25
Broxton v. State,
  909 S.W.2d 912 (Tex. Crim. App. 1995) .............................................................30
Burke v. State,
  371 S.W.3d 252 (Tex. App.—
  Houston [1st Dist.] 2011, pet. ref’d) ....................................................... 22, 23, 28
Cardenas v. State,
  30 S.W.3d 384 (Tex. Crim. App. 2000) .................................................................9
Chambers v. State,
  805 S.W.2d 459 (Tex. Crim. App. 1991) .............................................................15
Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007) .................................................. 8, 13, 17
Garcia v. State,
 563 S.W.2d 925 (Tex. Crim. App. 1978) .............................................................14
Geesa v. State,
 820 S.W.2d 154 (Tex. Crim. App.1991) ................................................................8


                                                     iii
Gigliobianco v. State,
  210 S.W.3d 637 (Tex. Crim. App. 2006) .............................................................20
Gonzalez v. State,
 337 S.W.3d 473 (Tex. App.—
 Houston [1st Dist.] 2011, pet. ref’d) ......................................................................9
Green v. State,
  934 S.W.2d 92 (Tex. Crim. App. 1996) ...............................................................18
Greene v. State,
  287 S.W.3d 277 (Tex. App.—
  Eastland 2009, pet. ref’d) .....................................................................................22
Guevara v. State,
 152 S.W.3d 45 (Tex. Crim. App. 2004) ...............................................................23
Guzman v. State,
 955 S.W.2d 85 (Tex. Crim. App. 1997) ...............................................................18
Hinds v. State,
  970 S.W.2d 33 (Tex. App.—
  Dallas 1998, no pet.) ............................................................................................20
Hinojosa v. State,
  995 S.W.2d 955 (Tex. App.—
  Houston [14th Dist.] 1999, no pet.)......................................................................24
Hooper v. State,
 214 S.W.3d 9 (Tex. Crim. App. 2007) ...................................................................8
In re R.R.,
  373 S.W.3d 730 (Tex. App.—
  Houston [14th Dist.] 2012, pet. filed) ........................................................... 13, 15
Jackson v. Virginia,
  443 U.S. 307 (1979) .........................................................................................7, 17
Johnson v. State,
  419 S.W.3d 665 (Tex. App.—
  Houston [1st Dist.] 2013, pet. ref’d) ................................................. 10, 12, 13, 31
Johnson v. State,
  871 S.W.2d 183 (Tex. Crim. App. 1993) ...............................................................8
Johnson v. State,
  967 S.W.2d 410 (Tex. Crim. App. 1998) .............................................................31



                                                         iv
Johnston v. State,
  230 S.W.3d 450 (Tex. App.—
  Fort Worth 2007, no pet.) .....................................................................................16
Jones v. State,
  119 S.W.3d 412 (Tex. App.—
  Fort Worth 2003, no pet.) .............................................................................. 24, 25
Laster v. State,
  275 S.W.3d 512 (Tex. Crim. App. 2009) ...............................................................9
Lee v. State,
  176 S.W.3d 452 (Tex. App.—
  Houston [1st Dist.] 2004)
  aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006) ...................................................12
Lockhart v. State,
  847 S.W.2d 568 (Tex. Crim. App. 1992) .............................................................19
Lopez v. State,
  884 S.W.2d 918 (Tex. App.—
  Austin 1994, pet. ref’d) ....................................................................................8, 30
Losada v. State,
  721 S.W.2d 305 (Tex. Crim. App. 1986) .............................................................16
Martin v. State,
 176 S.W.3d 887 (Tex. App.—
 Fort Worth 2005, no pet.) .....................................................................................32
Martines v. State,
 371 S.W.3d 232 (Tex. App.—
 Houston [1st Dist.] 2011, no pet.) ........................................................... 20, 27, 30
Martinez v. State,
 190 S.W.3d 254 (Tex. App.—
 Houston [1st Dist.] 2006, pet. ref’d) ....................................................................27
Massey v. State,
 933 S.W.2d 141 (Tex. Crim. App. 1996) .............................................................29
McCoy v. State,
 10 S.W.3d 50 (Tex. App.—
 Amarillo 1999, no pet.) ................................................................................. 25, 29
Mechler v. State,
 153 S.W.3d 435 (Tex. Crim. App. 2005) .............................................................21


                                                         v
Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990) ................................................ 21, 22, 30
Monzon v. State,
 991 S.W2d 841 (Tex. Crim. App. 1991) ..............................................................21
Morales v. State,
 32 S.W.3d 862 (Tex. Crim. App. 2000) ...............................................................32
Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................................ 31, 32
Paulson v. State,
  28 S.W.3d 570 (Tex. Crim. App. 2000) .................................................................8
Pool v. State,
  981 S.W.2d 467 (Tex. App.—
  Waco 1999, pet. ref’d)..........................................................................................23
Powell v. State,
  194 S.W.3d 503 (Tex. Crim. App. 2006) .............................................................17
Proctor v. State,
  356 S.W.3d 681 (Tex. App.—
  Eastland 2011, pet. ref’d) .....................................................................................15
Reed v. State,
  158 S.W.3d 44 (Tex. App.—
  Houston [14th Dist.] 2005, pet. ref’d) ....................................................................8
Richert v. State,
  01-10-00901-CR, 2012 WL 3775979 (Tex. App.—
  Houston [1st Dist.] Aug. 30, 2012)
  cert. denied, 134 S. Ct. 1317 (2014) ....................................................................14
Rodriguez v. State,
  104 S.W.3d 87 (Tex. Crim. App. 2003) ...............................................................27
Shepherd v. State,
  273 S.W.3d 681 (Tex. Crim. App. 2008) .............................................................18
Sims v. State,
  84 S.W.3d 805 (Tex. App.—
  Houston [1st Dist.] 2002, no pet.) ........................................................................18
Solomon v. State,
  49 S.W.3d 356 (Tex. Crim. App. 2001) ...............................................................31



                                                        vi
State v. Maldonado,
  176 S.W.3d 419 (Tex. App.—
  Houston [1st Dist.] 2004, no pet.) ................................................................. 18, 19
Taylor v. State,
  920 S.W.2d 319 (Tex. Crim. App. 1996) .............................................................24
Temple v. State,
  390 S.W.3d 341 (Tex. Crim. App. 2013) ...........................................................7, 8
Tinker v. State,
  148 S.W.3d 666 (Tex. App.—
  Houston [14th Dist.] 2004, no pet.)......................................................................14
Valtierra v. State,
  310 S.W.3d 442 (Tex. Crim. App. 2010) .............................................................19
Waddell v. State,
 873 S.W.2d 130 (Tex. App.—
 Beaumont 1994, pet. ref’d) ..................................................................................25
Williams v. State,
 235 S.W.3d 742 (Tex. Crim. App. 2007) .............................................................15
Williams v. State,
 301 S.W.3d 675 (Tex. Crim. App. 2009) .............................................................18
Williamson v. State,
 356 S.W.3d 1 (Tex. App.—
 Houston [1st Dist.] 2010, pet. ref’d) ....................................................................28
Worley v. State,
 870 S.W.2d 620 (Tex. App.—
 Houston [1st Dist.] 1994, pet. ref’d) ....................................................................27
Wyatt v. State,
 23 S.W.3d 18 (Tex. Crim. App. 2000) .................................................................16


STATUTES

TEX. CODE CRIM. PROC ANN.
  art. 57.01 (4) (West 2010) ......................................................................................1
TEX. CODE CRIM. PROC. ANN.
  art. 38.07 (West supp. 2014) ................................................................................12


                                                        vii
TEX. CODE CRIM. PROC. ANN.
  art. 38.37, § 1(b) (West supp. 2014) ............................................................. 20, 32
TEX. CODE CRIM. PROC. ANN.
  art. 38.37, § 2(b) (West supp. 2014) ....................................................................20
TEX. CODE CRIM. PROC. ANN.
  art. 57.02(h) (West supp. 2014) .............................................................................1
TEX. CODE CRIM. PROC. ANN.
  art. 57.03(d) (West 2010) .......................................................................................1
TEX. PENAL CODE § 22.021(a)(1)(B) (West supp. 2014) ..........................................9
TEX. PENAL CODE ANN. § 22.021 (West supp. 2014) ..............................................23


RULES

TEX. R. APP. P. 33.1 .......................................................................................... 26, 27
TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. P. 44.2(b) .............................................................................................31
TEX. R. EVID. 103(a) ......................................................................................... 26, 27
TEX. R. EVID. 404(b) ................................................................................................19




                                                           viii
TO THE HONORABLE COURT OF APPEALS:


                             STATEMENT OF THE CASE

       The State charged the appellant with one count of aggravated sexual assault

of a child under fourteen years of age enhanced by one prior felony conviction, and

the jury found the appellant guilty (CR –7-8, 18, 1364, 136-37; 6 RR 4-5). The trial

court sentenced him to forty-five years in the Texas Department of Criminal

Justice, Institutional Division (CR – 136-37; 7 RR 11-12). The appellant filed a

timely notice of appeal, and the trial court certified that he had the right to appeal

(CR – 139-40).


                                STATEMENT OF FACTS

       The appellant began inappropriately touching Jane1 when she was nine years

old (4 RR 63). The appellant is Jane’s biological father, and they lived together in

an apartment with Jane’s mother and Jane’s younger sister (4 RR 10, 58). Jane’s


1
  A person “who has access to or obtains the name, address, telephone number, or other
identifying information of a victim younger than 17 years of age may not release or disclose the
identifying information to any person who is not assisting in the investigation, prosecution, or
defense of the case.” TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West supp. 2014). The term
“victim” means a person who was the subject of: “(A) an offense the commission of which leads
to a reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the
same criminal episode, as defined by Section 3.01, Penal Code, as an offense described by
Paragraph (A).” TEX. CODE CRIM. PROC. ANN. art. 57.01 (4) (West 2010). The release or
disclosure of such information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC.
ANN. art. 57.03(d) (West 2010). Therefore, the pseudonym “Jane” will be used for the victim in
this case.
mother worked during the day, and the appellant stayed home with the girls (4 RR

35, 67).

      The first time something happened, Jane woke up, and her clothes were on

wrong: her pants were backwards, and her shirt was inside out (4 RR 62). Another

time, when Jane came home from school and lay in her bed wearing a t-shirt and

shorts, the appellant came into her room (4 RR 63-4). He lay next to Jane and got

on top of her (4 RR 64). In 2012, the abuse escalated; the appellant touched Jane’s

breasts and buttocks with his hand (4 RR 72). He would also touch her “middle

part” with his hand and “middle part” (4 RR 72).

      In August 2012, while Jane’s mother was at work, the appellant came into

Jane’s room and got on top of her (4 RR 77-8). He slid his hand onto her “middle

part” and moved it around for a couple of seconds (4 RR 77-8). Then he moved his

hand up to her breasts, under her clothes (4 RR 78). The appellant unzipped and

took off his pants and put his “middle part” inside her “middle part” (4 RR 79-81).

This hurt Jane (4 RR 81). Jane tried to push and kick the appellant, but he held her

down (4 RR 81-2). Jane’s sister banged on the door, but the appellant covered

Jane’s face with a pillow (4 RR 79-80). Jane knew the appellant was finished when

she felt something warm on her genitals, and saw something white on her stomach

(4 RR 83-4). She took a shower because it felt wrong (4 RR 84). She then went




                                         2
back to her room and locked the door so the appellant could not come in (4 RR

85). Jane was eleven years old (4 RR 54).

      Jane began cutting herself with a razor blade because of all she was “going

through” (4 RR 61, 65, 157-58). Jane’s mother noticed she had some discipline

problems at school in 2011 (4 RR 36-8). See (St. Ex. #2 – Jane’s school records).

During that year, Jane was angry with the appellant and no longer wanted to go to

the store with him on Sundays, even though that was something she had always

done (4 RR 33). And by summer 2012, Jane’s mother noticed that she became

angrier and withdrawn (4 RR 38).

      The appellant’s penis penetrated Jane’s vagina four different times (4 RR

164). See (St. Ex. #4). Jane was inappropriately touched “overall” by the appellant

five times; the last time occurring several days before she finally told her friends at

Keller Middle School in September 2012 (4 RR 64-5, 71-2, 165-66). See (St. Ex.

#4). Jane told three friends at school about her father sexually assaulting her after

one of the girls shared that she had been molested (4 RR 65). She told because she

was tired of the abuse (4 RR 167). Her friends told the school counselor, but Jane

denied the abuse (4 RR 66). Jane was afraid to tell because she still had to go home

to where the appellant would be (4 RR 66). Instead, Jane told a made-up story

about a man grabbing her at the bus stop (4 RR 66).




                                          3
      On September 6, 2012, Brittany Brown, a sexual abuse investigator with

CPS, went to speak with Jane at school (3 RR 16; 4 RR 66). Jane also told Brown

the made-up story about the man grabbing her at the bus stop (3 RR 18; 4 RR 67).

Jane repeated this story because she wanted it all to go away (4 RR 67). But Brown

continued her investigation because Jane’s explanations did not make sense (3 RR

19). She recognized that sometimes kids are hesitant to talk with her because they

think CPS will remove them from their families (3 RR 29-30).

      On September 12, 2012, Detective Tim Brinson with the Pasadena Police

Department Juvenile Sex Crimes division met with Jane (3 RR 49, 54). Jane was

very upset and emotional; she cried during their conversation (3 RR 55). At first

Jane denied any abuse from her father and told Brinson the made-up story (4 RR

67). But later when confronted with the previous outcry to her friends, Jane told

him what happened (4 RR 67). Jane told Brinson that the appellant touched her

breasts and buttocks (4 RR 67). And she told him what the appellant was going to

do to her at home (4 RR 67).

      Brinson took Jane to the Children’s Assessment Center (CAC) where she

was forensically interview by Susan Odhiambo (3 RR 56-7; 4 RR 68-9, 71, 114).

During the interview, Jane made very little eye contact, looked down, and was

emotional as she described the details of the abuse by the appellant (4 RR 126).

Jane told Odhiambo the details of what was going on at home with the appellant (4



                                        4
RR 71, 126, 129-31). Finally, Jane told Odhiambo all the details of the appellant’s

abuse (4 RR 89). Jane told her because it was “finally time” and she “felt safe”

since the appellant would not be able to go home with her (4 RR 89).

      On September 13, 2012, Dr. Reena Isaac, a child abuse pediatrician,

conducted a comprehensive forensic medical evaluation of Jane at the CAC (4 RR

141-42, 153). See (St. Ex. #4 – CAC Medical Records). Isaac took a complete

medical history from both Jane and her mother (4 RR 153-59). Isaac learned that

Jane recently had a bad temper and had gone through a period of self-mutilation (4

RR 157-58). Jane told Isaac she was sexually touched on her vagina and breasts by

the appellant over the past year (4 RR 162-68). Jane told Isaac that the appellant’s

penis penetrated her vagina more than one time (4 RR 163-64). Jane was tearful

discussing the abuse with Isaac (4 RR 156). Although there were no signs of

trauma during Jane’s exam, Isaac was not surprised because the female sexual

organ is meant to take trauma, and it heals quickly (4 RR 171-73).

      After Jane told her friends at school about the appellant sexually assaulting

her, “one of the girls told a lot of people” and other students were talking about the

abuse (4 RR 87-8). Other students began “making fun of her, writing ugly things

on her folder, [and] bullying her.” (4 RR 49). Because of this, Jane’s mother took

her out of Keller Middle and homeschooled her until she began at another school




                                          5
in January 2013 (4 RR 28, 87-8). Jane later moved and did well at a different

school (4 RR 30-31, 89).

      Jane’s mother and the appellant did not have any marital issues prior to the

allegations (4 RR 11). She did not want to believe the allegations because she

loved her husband, but she was supportive of Jane (4 RR 48). And although she

was surprised by the allegations, Jane’s mother realized that she missed some signs

that something was wrong: Jane’s anger towards the appellant, finding the

appellant in Jane’s room at night with the door locked, Jane not wanting to go to

the store with the appellant, and Jane complaining that her vagina hurt and seeing a

tear (4 RR 33-6).


                       SUMMARY OF THE ARGUMENT

      The evidence admitted in this case was legally sufficient to enable a rational

factfinder to find each element of the offense of aggravated sexual assault of a

child, including Jane’s account of the sexual assault by the appellant, giving due

deference to the jury’s role as the factfinder and judge of the credibility of the

evidence, and reviewing the record in the light most favorable to the guilty verdict.

      The trial court did not abuse its discretion in admitting the extraneous acts of

touching and fondling during Jane’s testimony or the medical records under Rule

403 because the probative value outweighed any unfair prejudice. Furthermore, the

appellant failed to preserve any complaint regarding Isaac’s testimony or the

                                          6
number of times Jane was sexually assaulted by the appellant as mentioned in the

medical records.


              REPLY TO APPELLANT’S FIRST POINT OF ERROR

         In the appellant’s first point of error, he argues that the evidence presented in

his case was legally insufficient to convince any rational factfinder beyond a

reasonable doubt that he committed the offense of aggravated sexual assault of a

child.

         I.    Standard of Review and Applicable Law
         Every criminal conviction must be supported by legally sufficient evidence

that each element of the offense is proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 315 (1979); Adames v. State, 353 S.W.3d 854, 853 (Tex.

Crim. App. 2011). In order to determine whether this standard has been met, an

appellate court reviews all the evidence in the light most favorable to the verdict

and decides whether, based on that evidence and reasonable inferences, a rational

factfinder could have found each essential element of the crime beyond a

reasonable doubt. Jackson, 443 U.S. at 319 (finding that “the relevant question is

whether, after viewing the evidence in light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.”) (emphasis in original); Temple v. State, 390 S.W.3d 341, 360

(Tex. Crim. App. 2013); Reed v. State, 158 S.W.3d 44, 46 (Tex. App.—Houston


                                             7
[14th Dist.] 2005, pet. ref’d). This applies equally to the analysis of direct or

circumstantial evidence in the record. Reed, 158 S.W.3d at 47.

      Circumstantial evidence alone can be sufficient to establish guilt, and is

analyzed the same as direct evidence in the record. Temple, 390 S.W.3d at 359 (“A

criminal conviction may be based upon circumstantial evidence.”); Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (noting “[c]ircumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor” and that

“circumstantial evidence alone can be sufficient to establish guilt.”); Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (same). Not every fact has to

point to the defendant’s guilt, rather “it is enough if the conclusion is warranted by

the combined and cumulative force of all the incriminating circumstances.”

Temple, 390 S.W.3d at 359 (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex.

Crim. App. 1993)); see Clayton, 235 S.W.3d at 778. When conflicts appear in the

record a reviewing court must presume the trier of fact resolved the conflict in

favor of the verdict and should defer to that resolution. Id. at 360.

      The jury’s role is to “weigh the evidence, to judge the credibility of the

witnesses, and to choose between the conflicting theories of the case.” Lopez v.

State, 884 S.W.2d 918, 921 (Tex. App.—Austin 1994, pet. ref’d) (citing Geesa v.

State, 820 S.W.2d 154, 159 (Tex. Crim. App.1991) (overruled in part on other

grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000))); see also



                                           8
Gonzalez v. State, 337 S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d) (finding a rational juror could believe the appellant sexually assaulted the

complainant in resolving conflicting testimony between what the complainant

testified to and what she told the sexual-assault-examination nurse)

      This Court’s role is not to simply compare an appellant’s analysis of the

evidence against the State’s analysis of the same evidence. Cardenas v. State, 30

S.W.3d 384, 389 (Tex. Crim. App. 2000). Rather, this Court must uphold the

verdict unless a factfinder does not act rationally. Laster v. State, 275 S.W.3d 512,

517-518 (Tex. Crim. App. 2009) (stating this Court’s role is to guard against this

“rare occurrence” where a jury acts irrationally).

      II.    The evidence is legally sufficient to support the appellant’s
             conviction for aggravated sexual assault of a child.
      The jury concluded beyond a reasonable doubt that on or about August 15,

2012, the appellant intentionally or knowingly caused the sexual organ of Jane, a

person younger than fourteen years of age, to contact his sexual organ (CR – 18,

134, 136). TEX. PENAL CODE § 22.021(a)(1)(B) (West supp. 2014). The record

contains abundant evidence from which the jury could rationally find each element

of aggravated sexual assault of a child beyond a reasonable doubt.

      The appellant was left alone with Jane during the months surrounding the

charging date of the assault (4 RR 34-5, 85). The appellant is Jane’s biological

father and lived in the same apartment as Jane in August 2012 (4 RR 9-10, 58).


                                          9
Jane and her mother testified that because her mother worked during the day the

appellant stayed home with the kids (4 RR 34-5, 85). Jane testified her mother left

for work at 7:00 a.m. and came home around 6:00 p.m. (4 RR 98). Thus, the

appellant had access to Jane. See Johnson v. State, 419 S.W.3d 665, 671 (Tex.

App.—Houston [1st Dist.] 2013, pet. ref’d) (finding victim’s testimony of sexual

assault was corroborated by the testimony of every witness including the appellant

showed he had access to the complainant).

      Jane testified that the appellant sexually assaulted her multiple times (4 RR

62-4, 72-85). Jane told the jury that the appellant touched “all the parts of her

body” – her breast, buttocks and “middle part” (4 RR 67-8, 72). She testified that

the appellant touched her “middle part” with his hand and his “middle part” (4 RR

73-4). Jane explained that both her “middle part” and his “middle part” are used for

peeing (4 RR 72, 74). Using anatomically correct dolls, Jane pointed to the genitals

of both the female and male doll when referring to their middle parts (4 RR 74,

78). She testified the first time it happened she woke up and her pants were on

backwards, and shirt on inside out (4 RR 62). She testified the last time the

appellant sexually abused her was the day before she told her friends at school in

September 2012 (4 RR 71-2).

      She described a time that the appellant assaulted her in August 2012 in detail

(4 RR 72, 74-85). She testified while her mom was at work she was in her room



                                        10
laying down watching television on her bed, and the appellant came into her room

and lay next to her (4 RR 74-6, 85). She testified that the appellant got on top of

her, slid his hand down her pants onto her “middle part” and moved it around (4

RR 77-9). She testified that the appellant then moved his hand to her breasts (4 RR

78). She explained that he touched her breasts underneath her clothes (4 RR 78).

Jane testified that her sister began to bang on the door and described that the

appellant put a pillow over her face (4 RR 81). She told the jury that the appellant

held her down, unzipped and removed his pants, and forced his middle part inside

of her middle part (4 RR 80-81). Jane testified that this hurt (4 RR 81). She stated

that she tried to push and kick the appellant, but that he did not stop (4 RR 81-2).

She testified that the appellant stopped when “he finished” and described that she

felt something warm at her vagina (4 RR 82-4). Jane explained “it” was also on her

stomach, and “it” was white, but did not state she saw where “it” came from (4 RR

83-4). Jane testified that afterwards she took a shower to clean everything off

because it felt wrong (4 RR 85).

      Jane testified she did not tell her mom because the appellant was there, and

she was scared (4 RR 85, 100). Jane explained that she did not think her mother

would believe her (4 RR 100). She finally told her friends at school after another

girl shared that she was molested (4 RR 91-2). Although she later denied the abuse

to several adults, Jane explained she told Odhiambo because she felt safe the



                                        11
appellant would not go home with her (4 RR 89-90). In Jane’s forensic interview at

the CAC and her medical examination by a child abuse pediatrician, she was able

to provide these same details of abuse (4 RR 128-31; 162-64). See (St. Ex. #4).

Jane’s testimony that the appellant placed his “middle part” inside of her “middle

part”2 met each element aggravated sexual assault of a child; thus, was sufficient to

support the jury’s verdict. See Johnson, 419 S.W.3d at 671-72 (holding the

victim’s testimony that the appellant inserted his finger into her vagina itself

satisfied the elements of aggravated sexual assault of a child and was sufficient to

support a conviction).

       The appellant argues Jane’s testimony is not sufficient to sustain a

conviction because there were not enough specific details. (App’nt Brf. 16-17). But

Jane’s testimony met each element of aggravated sexual assault of a child. And the

testimony of a single witness may be legally sufficient to support a conviction of a

criminal offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West supp. 2014)

(stating that a conviction under Chapter 21, among other enumerated provisions, of

the Texas Penal Code may be supported by the uncorroborated testimony of the

victim of the sexual offense); Lee v. State, 176 S.W.3d 452, 455 (Tex. App.—

Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006) (holding


2
 Jane used the term “middle part” to refer to their genitals; Isaac testified that Jane told her the
appellant put his penis inside her vagina and that the vagina and penis are sexual organs (4 RR
74, 78, 159-60).

                                                 12
“[t]he testimony of a child victim alone is sufficient to support a conviction for

indecency with a child.”); see also In re R.R., 373 S.W.3d 730, 734-35 (Tex.

App.—Houston [14th Dist.] 2012, pet. filed) (holding “a rational factfinder could

have found that [the appellant] intentionally or knowingly caused the penetration

of a child’s sexual organ” based only on the victim’s testimony that the appellant

“stuck his penis in my vagina”).

      Additionally, the determination of what weight to give that testimony is

within the sole province of the jury when it turns on credibility and demeanor.

Clayton, 235 S.W.3d at 778. The evidence on appeal must be viewed in the light

most favorable to the jury’s verdict. Id. Viewing Jane’s testimony in the light most

favorable to the jury’s decision, it is sufficient to support a rational finding that she

was assaulted by the appellant. Id.; Johnson, 419 S.W.3d at 671.

      Moreover, other witnesses corroborated Jane’s testimony. Jane’s mother

testified that during this time, Jane’s feelings towards the appellant changed, and

she observed Jane was withdrawn, depressed, and angry (4 RR 31-2, 34-5, 38).

Jane began to cut herself (4 RR 32). She testified that one time she woke up in the

middle of the night to find the appellant in the girls’ room with the door locked (4

RR 33-4). Additionally, she recalled a time during the summer of 2012 that Jane

complained of pain in her private area, and she observed a tear (4 RR 36).




                                           13
      Furthermore, both Odhiambo and Isaac’s testimony reflected that Jane told

them similar details of abuse and that she was emotional when she described what

happened to her (4 RR 126, 156). Laird testified that Jane showed signs and

symptoms of sexual abuse (4 RR 191). Although corroboration is not required and

no other witness testified to the specific acts of abuse, the evidence corroborated

Jane’s testimony surrounding the acts. See Richert v. State, 01-10-00901-CR, 2012

WL 3775979 at *5 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012) cert. denied,

134 S. Ct. 1317 (2014) (mem. op., not designated for publication) (recognizing the

jury could have reasonably found the appellant committed two or more acts of

aggravated sexual assault of a child from the complainant’s testimony regarding

the abuse, her mother’s testimony regarding visits to the appellant and the outcry

witness’s testimony of the complainant’s account of the sexual abuse).

      The appellant argues that there is no physical evidence of abuse. But

physical evidence is not required. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.

Crim. App. 1978) (holding that victim’s testimony was sufficient to prove sexual

contact occurred despite a lack of physical evidence); Tinker v. State, 148 S.W.3d

666, 669 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (noting despite the lack

of DNA evidence, the complainant’s testimony alone was sufficient to support the

jury’s verdict that sexual contact did occur).




                                          14
      The appellant argues that Jane’s testimony should be discounted because it is

not credible. (App’nt Brf. 16-17). But, attacks on the complainant’s credibility

have “no bearing on [a reviewing court’s] sufficiency analysis.” In re R.R., 373

S.W.3d at 735 (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007)); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)

(holding the jury, as factfinder, was free to disbelieve the complainant’s

recantation; it “is entitled to judge the credibility of witnesses, and can choose to

believe all, some, or none of the testimony presented by the parties.”). Jane

testified she understood the difference between a truth and a lie and promised to

tell the truth (4 RR 56-7).

      The appellant specifically points to evidence that Jane provided conflicting

statements to multiple witnesses. (App’nt Brf. 16-17). But the jury was free to

believe or disbelieve all or any part of Jane’s testimony and conclude that any

inconsistencies were inconsequential. Proctor v. State, 356 S.W.3d 681, 684 (Tex.

App.—Eastland 2011, pet. ref’d) (holding sufficient evidence to prove the

appellant was guilty of aggravated sexual assault of a child in spite on

inconsistencies in the victim’s testimony). Although Jane did not immediately

outcry and denied the abuse to her mother, to the school counselor, to CPS, and to

Detective Brinson, she did tell everything to Odhiambo and Isaac (4 RR 89, 128-

31, 162-64). See Johnston v. State, 230 S.W.3d 450, 455-56 (Tex. App.—Fort



                                         15
Worth 2007, no pet.) (recognizing that delayed outcry is common in abused

children and something the jury could have resolved in finding the appellant guilty

of sexual assault of a child).

      Additionally, the appellant contends that Jane’s testimony is inconsistent

because she told Odhiambo that she felt something warm on her genitals and

stomach, but that she told Isaac nothing came out of the appellant’s middle part (4

RR 84-5, 131, 164). (App’nt Brf. 18). But the appellant assumes Jane, an eleven-

year-old girl, knew where the “white stuff” came from. Jane never discussed that

with Odhiambo, and Isaac’s question specifically asked her if anything came out of

his middle part (4 RR 164). See (St. Ex. #4). Regardless, as previously stated, this

would merely be a conflict for the factfinder to resolve and the jury was free to

believe this testimony or not. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000) (noting “reconciliation of conflicts in the evidence is within the

exclusive province of the jury.” (quoting Losada v. State, 721 S.W.2d 305, 309

(Tex. Crim. App. 1986)).

      Moreover, the appellant’s contentions that Jane copied her friends are

neither appropriate for a sufficiency review nor are they supported by the record.

See (App’nt Brf. 16-17). First, there is nothing in the record that supports Jane’s

recount of abuse “mirrored” her friend’s molestation (4 RR 65, 91-2). See (App’nt

Brf. 16). The record does not contain how her friend was molested or that she was



                                        16
molested the same way. Second, the appellant’s argument that Jane cut herself to

be like her friends is not supported by the record. (App’nt 16-17). Neither Jane nor

her mother testified that her cutting was because her friends were doing it (4 RR

32, 61). The only mention of friends also cutting was in Dr. Isaac’s medical notes.

See (St. Ex. #4). In fact, Jane testified she cut herself because she was “going

through a lot at the time” (4 RR 61). And Laird testified that cutting can be an

expression of feelings (4 RR 192).

      Reviewing the record in the light most favorable to the jury’s verdict, and

allowing for the credibility determinations and logical inferences that the jury was

permitted to make from the evidence, there is sufficient evidence for a rational trier

of fact to have concluded beyond a reasonable doubt that the appellant was guilty

of each element of aggravated sexual assault of a child. See Clayton, 235 S.W.3d at

778-79 (noting that when a record supports conflicting inferences, a reviewing

court presumes that the factfinder resolved the conflict in favor of their verdict);

Powell v.State, 194 S.W.3d 503, 508 (Tex. Crim. App. 2006); Jackson, 443 U.S. at

319. Thus, the appellant’s first point of error should be overruled.


  REPLY TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR

      In the appellant’s second point of error, he argues that the trial court erred by

allowing evidence of extraneous conduct between the appellant and Jane of

touching and fondling during Jane’s testimony. (App’nt Brf. 18). In the appellant’s

                                          17
third point of error, he argues that the trial court erred by allowing extraneous

evidence of touching and intercourse through the testimony and medical records of

Isaac. (App’nt Brf. 23-4). Because both points of error challenge the admissibility

of extraneous acts of abuse by the appellant they will be addressed together.

      I.     Standard of Review
      A trial court’s ruling on the admissibility of an extraneous offense is

reviewed under an abuse of discretion standard. Williams v. State, 301 S.W.3d 675,

687 (Tex. Crim. App. 2009); Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim.

App. 2008); Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A

trial judge whose ruling is within the “zone of reasonable disagreement” should not

be reversed. Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996). The

reviewing court must view the evidence in the light most favorable to the trial

court’s ruling, giving the trial court almost total deference on its findings of

historical fact that find support in the record. Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). Where the trial court does not make express findings of

fact, a reviewing court will assume that the trial court made “implicit findings that

support its ruling, provided those implied findings are supported by the record.”

State v. Maldonado, 176 S.W.3d 419, 421 (Tex. App.—Houston [1st Dist.] 2004,

no pet.); Sims v. State, 84 S.W.3d 805, 807-08 (Tex. App.—Houston [1st Dist.]

2002, no pet.); Ross, 32 S.W.3d at 856. A reviewing court must affirm the trial



                                         18
court’s ruling if it is correct on any theory of law applicable to the case and is

reasonably supported by the record. Maldonado, 176 S.W.3d at 421; Valtierra v.

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

      II.    The trial court did not abuse its discretion in admitting the
             appellant’s extraneous sexual abuse of Jane into evidence
      Evidence of an extraneous offense is not generally admissible to prove the

character of a defendant in order to show that the defendant acted in conformity

with that character. See Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App.

1992); TEX. R. EVID. 404(b). But extraneous offenses may be admitted for other

purposes, such as to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id. Additionally, evidence

of extraneous offenses that are “indivisibly connected to the charged offense and

necessary to the State’s case in proving the charged offense” may be admissible for

contextual purposes. Id. at 571; Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim.

App. 1972) (recognizing background evidence was admitted “[t]o show the context

in which the criminal act occurred … under the reasoning that events do not occur

in a vacuum and that the jury has a right to hear what occurred immediately prior

to and subsequent to the commission of the act so that they may realistically

evaluate the evidence.”).

      Specific to child abuse cases, Article 38.37 of the Texas Code of Criminal

procedure allows for extraneous offenses “committed by the [appellant] against the


                                        19
child who is the victim of the alleged offense shall be admitted for its bearing on

relevant matters, including: (1) the state of mind of the [appellant] and the child;

and (2) the previous and subsequent relationship between the [appellant] and the

child.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (West supp. 2014)3

(emphasis added); Hinds v. State, 970 S.W.2d 33, 35 (Tex. App.—Dallas 1998, no

pet.) (“By enacting article 38.37, the legislature in effect determined that, in certain

sexual abuse cases, evidence of “other crimes, wrongs, or acts” committed by the

accused against the child victim are relevant and admissible under rule 402.”).

       Although otherwise irrelevant evidence may become relevant under Article

38.37, that evidence may still be excluded under Rule 403 if its probative value is

substantially outweighed by its danger of unfair prejudice. See TEX. R. EVID. 403;

Martines v. State, 371 S.W.3d 232, 248 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). Unfair prejudice “refers to a tendency to suggest decision on an improper

basis, commonly, though not necessarily, an emotional one.” Gigliobianco v. State,

210 S.W.3d 637, 641 (Tex. Crim. App. 2006).

       A Rule 403 balancing test or analysis includes, but is not limited to,

consideration of four relevant factors: (1) the probative value of the evidence; (2)

the potential to impress the jury in some irrational yet indelible way; (3) the time

3
 Amended September 1, 2013 to add that a separate, enumerated offense of child abuse may be
admitted in the trial 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) (West supp. 2014) (emphasis added).

                                                20
needed to develop the evidence; and (4) the proponent’s need for the evidence.

Mechler v. State, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); Monzon v. State,

991 S.W2d 841, 847 (Tex. Crim. App. 1991). A trial court has broad discretion to

determine      whether      evidence      is    admissible.     Montgomery        v.    State,

810 S.W.2d 372, 386, 390 (Tex. Crim. App. 1990). “Rule 403 favors admissibility

of relevant evidence, and the presumption is that relevant evidence will be more

probative than prejudicial.” Id. at 389.

              A.     Jane’s testimony that the appellant touched and fondled her
                     on other occasions was more probative than unfairly
                     prejudicial.
       The appellant argues that the trial court abused its discretion in allowing

Jane to testify to extraneous acts of touching and fondling by the appellant because

the probative value of that testimony was substantially outweighed by its unfair

prejudice. (App’nt Brf. 18-21). Specifically, he complains about Jane’s testimony

regarding three4 separate extraneous events: (1) the first time she was abused

where she woke up with her pants on backwards and shirt inside out (4 RR 62); (2)

a time that she came home from school, changed into a t-shirt and basketball shorts

and the appellant came into her room and lay with her (4 RR 63-4); and (3) when

the appellant touched her breast and buttocks (4 RR 67). (App’nt Brf 21-2). But the


4
  Although at trial the appellant objected to Jane’s testimony regarding all noticed extraneous
offenses, on appeal he does not complain about Jane’s testimony regarding the appellant’s hand
touching or penetrating her genitals (4 RR 51, 72-3, 77-8). (App’nt Brf. 18-23).

                                               21
probative values of each of these extraneous acts were not substantially

outweighed by their unfairly prejudicial effect.

      The first two complained-of extraneous acts demonstrated the relationship

between Jane and the appellant before he began sexually assaulting her, and they

were not so inflammatory to impress the jury in some irrational manner. See

Montgomery, 810 S.W.2d at 395 (noting that “other crimes, wrongs, or acts” are

impermissible when they create “unfair prejudice” and invites the jury to “convict

on a moral or emotional basis rather than as a reasoned response to the relevant

evidence.”). In fact, her testimony about finding her clothes were on wrong did not

include her father touching her and she did not know how her clothes became that

way (4 RR 62). Moreover, her detailed description of the August 2012 offense

likely overshadowed any inflammatory response the jury may have had to these

acts. See id.; Burke v. State, 371 S.W.3d 252, 256 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d) (finding the complainant’s testimony of extraneous offenses was

likely overshadowed by his description of the underlying offense – the appellant

putting his hands around his throat, causing pain); see also Greene v. State, 287

S.W.3d 277, 285 (Tex. App.—Eastland 2009, pet. ref’d) (“To constitute an

extraneous offense, the evidence must show a crime or bad act and must connect

the defendant to it.”) (citing Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim.

App. 1992)).



                                         22
      Additionally, there was not an excessive amount of time spent developing

the first two acts. It was only a couple of questions and three pages of the record,

whereas a majority of her testimony was spent on the charged offense (4 RR 62-4,

72-85). Cf. Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (noting that the State spent significant time developing the

extraneous act calling multiple witnesses and presenting medical records).

Furthermore, the State had no other evidence that it could similarly illustrate the

relationship between Jane and the appellant, the progression of abuse, and the

appellant’s state of mind. See TEX. PENAL CODE ANN. § 22.021 (West supp. 2014).

(requiring proof that aggravated sexual assault was done “intentionally or

knowingly”); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent

may also be inferred from circumstantial evidence such as acts, words, and the

conduct of the appellant.”).

      Jane’s testimony regarding the appellant touching and fondling her breasts

and buttocks not only provided context for the jury to understand how the sexual

abuse started, it showed how the offense related directly to their previous

relationship and states of mind (4 RR 67). See Burke, 371 S.W.3d at 256 (holding

that evidence of the appellant’s previous molestations of the complainant was

probative of their relationship); Pool v. State, 981 S.W.2d 467, 469 (Tex. App.—

Waco 1999, pet. ref’d) (holding that sexual assaults and subsequent pregnancy by



                                        23
the appellant against the complainant after her seventeenth birthday were

admissible under Article 38.37); Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (evidence of extraneous acts committed

by the appellant against the child, including numerous incidents of sexual, verbal,

and physical abuse of the child victim, showed their previous and subsequent

relationship as well as their states of mind).

      Although the touching of Jane’s breast and buttocks undoubtedly carries

some emotional weight, it was less heinous than the charged offense of rape;

therefore, it was not likely to create such prejudice in the minds of the jurors that

they would have been unable to limit their consideration of the evidence to its

proper purpose. See Jones v. State, 119 S.W.3d 412, 422 (Tex. App.—Fort Worth

2003, no pet.) (holding evidence of an extraneous victim was less heinous than the

charged acts and therefore were not likely to create such prejudice in the minds of

the jury) (citing Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996)).

      Additionally, the jury charge contained a limiting instruction that minimized

any prejudicial effect of the extraneous evidence (CR – 130). See Beam, 447

S.W.3d 401 at 405 (noting that any impermissible inference from extraneous

conduct can be minimized through a limiting instruction); Lane v. State, 933

S.W.2d 504, 520 (Tex. Crim. App. 1996) (same). Moreover, similar to the first two

extraneous acts, a review of the record shows that the State did not spend an



                                           24
excessive amount of time5 developing this extraneous offense (4 RR 67-8). McCoy

v. State, 10 S.W.3d 50, 54 (Tex. App.—Amarillo 1999, no pet.).

       Finally, contrary to the appellant’s contention that he did not present a

defensive theory, his cross-examinations and closing argument introduced the

theory that Jane fabricated the whole incident (3 RR 28-30, 68; 4 RR 41, 43, 47,

92-4, 96-7, 99-101, 179, 195, 198; 5 RR 10-16). (App’nt Brf. 22); see Blackwell v.

State, 193 S.W.3d 1, 11-12 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(holding extraneous offenses were admissible to rebut the appellant’s defensive

theory created in cross-examination and argument). Therefore, the State needed

this evidence to rebut that theory. See Jones, 119 S.W.3d at 423 (holding that

extraneous sexual assaults of the child victim were a logical and necessary rebuttal

of major defense theory of fabrication); Waddell v. State, 873 S.W.2d 130, 136

(Tex. App.—Beaumont 1994, pet. ref’d) (same). Thus, the danger of unfair

prejudice did not substantially outweigh the probative value of the extraneous act.

McCoy, 10 S.W.3d at 54 (overruling the appellant’s Rule 403 challenge that “the

only reason the State wanted the extraneous offense in this case was to show that

[the appellant] was a child molester.”). The appellant’s second point of error

should be overruled.
5
  The State was careful not to discuss the extraneous fondling with other witnesses besides Jane
and Dr. Isaac. See (3 RR 46, 68) (notifying the trial court that the appellant had opened the door
to discuss the extraneous offenses during cross-examination of Brinson and allowing the
appellant to withdraw the question); (4 RR 112-13) (informing the trial court that the State would
not be eliciting testimony from Odhiambo regarding the extraneous offenses).

                                               25
              B.     The extraneous evidence that the appellant repeatedly touched
                     Jane, as presented through the testimony of Isaac and the
                     medical records, Isaac was more probative than unfairly
                     prejudicial.
       The appellant argues that the trial court abused its discretion in admitting

evidence of extraneous acts of touching and intercourse through Isaac’s testimony

and the medical records under Rule 403. (App’nt Brf. 23-4). During a bench

conference outside the presence of the jury, the appellant objected to portions of

State’s Exhibit #4 (4 RR 138-39). He objected specifically to a question on page

five of the record, “How many times were you touched overall by him

inappropriately?”, and to Jane’s answer, “Like, five times.” (4 RR 138-39). He also

objected specifically to the questions and answers regarding the timing of the first

and last act of abuse (4 RR 139). The appellant argued that both questions were

more prejudicial than probative, which the trial court overruled (4 RR 139).

       But the appellant failed to object to Isaac’s testimony6 itself (4 RR 138-39).

Therefore, to the extent Isaac’s testimony addressed the extraneous offenses, the

appellant has waived his right to complain. See TEX. R. APP. P. 33.1; TEX. R. EVID.

103(a). The appellant argues that Isaac’s testimony was prejudicial because it

“quantified the number of times that misconduct occurred.” (App’nt Brf. 25).

Specifically, that it “increased the number of times there was penetration from one


6
 The State recognizes, however, that most of Dr. Isaac’s testimony regarding Jane’s exam
appears to be read from the medical record (4 RR 151-74).

                                              26
to four.” (App’nt Brf. 25). But again the appellant failed to object to that specific

question in State’s Exhibit #4, and thus error is waived (4 RR 138-39). See TEX. R.

APP. P. 33.1; Martines, 371 S.W.3d at 248. Additionally, the appellant never

objected to any discussion regarding extraneous acts of “intercourse” (4 RR 138-

39). Therefore, only his objections to specific questions in the medical records

were preserved. See TEX. R. APP. P. 33.1; TEX. R. EVID. 103(a).

      Regardless, quantifying the amount of times the appellant sexually touched

Jane was not extraneous offense evidence, but simply evidence of multiple

occurrences of the indicted offense. See Worley v. State, 870 S.W.2d 620, 622

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (finding, in aggravated sexual

assault of a child case, that the victim’s testimony the appellant molested him “at

least over a hundred times” did not constitute evidence of extraneous offenses);

Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d) (holding that testimony from the victim’s medical examination revealed the

appellant had touched her in the vaginal and anal areas “many times” was not

evidence of extraneous offenses) (citing Rodriguez v. State, 104 S.W.3d 87, 90

(Tex. Crim. App. 2003)).

      Nevertheless, the evidence on how many times Jane was “touched overall”

in State’s Exhibit #4 was more probative than unfairly prejudicial. The evidence

provided context to Isaac’s diagnosis based on the totality of the physical or



                                         27
psychological trauma Jane suffered (4 RR 167). And, as previously stated, the

amount of times Jane was touched by the appellant demonstrated his treatment of

her, his mental state, their relationship, the progression of abuse and provided

context for the jury. See Austin v. State, 222 S.W.3d 801, 808-9 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref’d) (noting under Rule 403 that medical records

including evidence that siblings were also victims of Munchausen Syndrome by

Proxy was critical to showing motive and to providing context to crime); Burke,

371 S.W.3d at 257-58 (holding the extraneous sexual assaults of the complainant

by the appellant was probative of their relationship and increased the probability he

would have felt confident to assault the complainant again).

      Additionally, the details of these additional times of abuse were neither

provided in the records nor discussed by Isaac. See (St. Ex. #4). Although knowing

that the abuse happened more than one time could have evoked emotion from the

jurors, it was not so much to irrationally influence them. Cf. Austin, 222 S.W.3d at

809 (finding that voluminous medical records of extraneous times the appellant

repeatedly induced and falsified illnesses in her children could have affected the

jury in an emotional way). And, as previously stated, the trial court provided a

limiting instruction (CR –130). See Williamson v. State, 356 S.W.3d 1, 24 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d) (finding no unfair prejudice in medical

records containing extraneous acts when it was clear from the State’s presentation



                                         28
of the evidence that it was offered to explain the motivating forces and to provide

context for the offense, the State did not go through the records, and the court

provided a limiting instruction).

      Moreover, the State spent relatively little time developing the evidence and

did not mention it in closing argument (4 RR 165-66). Finally, the State needed the

evidence to show the appellant’s intent, their relationship, and Jane’s mental state.

It also helped corroborate Jane’s testimony and rebut the defensive theory that she

lied. See Beam, 447 S.W.3d at 405 (holding the extraneous evidence of medical

records and testimony of an additional sexual assault by the appellant was

necessary because both sides contested the commission of the charged offense).

Thus, the trial court did not abuse its discretion in admitting the evidence, and the

appellant’s third point of error should be overruled.

      Furthermore, any complaint concerning the admission of the extraneous acts

of touching and intercourse were waived by the appellant’s failure to object to the

same or similar evidence admitted at another point in the trial. See Massey v. State,

933 S.W.2d 141, 149 (Tex. Crim. App. 1996); Mayes v. State, 816 S.W.2d 79, 88

(Tex. Crim. App. 1991); McCoy v. State, 10 S.W.3d 50, 54 (Tex. App.—Amarillo

1999, no pet.). Here, the appellant failed to object to the “referral report” portion of

the medical records, which states that the appellant penetrated her vagina with his

penis at least three times (4 RR 159). See (St. Ex. #4). And the appellant failed to



                                          29
object to the note that Jane told Isaac he touched her “middle part” with his hand

on page five of the medical records (4 RR 139, 163-64). See (St. Ex. #4). Thus, the

appellant waived any complaint by the failure to objection to similar testimony.

Accordingly, the appellant’s third point of error should be dismissed.

      Finally, although it is unclear if the appellant complains on appeal about the

admissibility of the indication of fondling as the alleged sexual conduct on page six

of the medical records, any complaint under Rule 403 was not preserved. (App’nt

Brf. 23-4). The appellant’s only objection to the evidence at trial was that “it is

going into an extraneous [offense] and not the case-in-chief that’s before the Court

today.” (4 RR 139). And a specific Rule 403 objection must be raised to preserve

error; it is not implicitly contained in either relevancy or 404(b) objections.

Montgomery, 810 S.W.2d at 388-89; see also Broxton v. State, 909 S.W.2d 912,

918 (Tex. Crim. App. 1995) (holding to preserve error for appellate review, a

complaint on appeal must comport with the objection at trial, and an objection

stating one legal theory may not be used to support a different legal theory on

appeal); Martines, 371 S.W.3d at 248 (holding an appellate issue based on alleged

violation of Rule 403 must be preceded by specific objection). Therefore, the

appellant has waived his right to complain about the indication of fondling under

Rule 403.




                                         30
      III.   The appellant was not harmed by the trial court’s admission of
             the extraneous conduct.
      Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, any non-

constitutional “error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.” TEX. R. APP. P. 44.2(b). Courts have determined that

substantial rights are not affected by the erroneous admission of evidence “if the

appellate court, after examining the record as a whole, has fair assurance that the

error did not influence the jury, or had but a slight effect.” Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002); Solomon v. State, 49 S.W.3d 356, 365

(Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998).

      Here, there was substantial evidence to support the appellant’s guilt. See

Motilla, 78 S.W.3d at 358 (finding the weight of the evidence of the defendant’s

guilt is a factor to be considered in a harm analysis). Jane testified in detail about

the appellant penetrating her vagina with his penis, and although not necessary to

support a conviction, the other witnesses’ testimony corroborated her testimony (4

RR 54-90). Johnson, 419 S.W.3d at 671-72 (holding the victim’s testimony that

the appellant inserted his finger into her vagina itself satisfied the elements of

aggravated sexual assault of a child and was sufficient to support a conviction).

The evidence of the actual rape was abundant.




                                           31
      Additionally, the extraneous acts showed the relationship between Jane and

the appellant, how he first tested the waters with fondling, and how it escalated to

sex (5 RR 21). See Motilla, 78 S.W.3d at 359 (citing Morales v. State, 32 S.W.3d

862, 867 (Tex. Crim. App. 2000)) (finding that another factor in the harm analysis

is “the character of the alleged error and how it might be considered in connection

with other evidence in the case.”); TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b)

(West supp. 2014). It also rebutted the defensive arguments that she lied and that

she only said she was molested to be like her friend (5 RR 11-14, 16).

      Moreover, the State did not emphasize the extraneous conduct. See Martin v.

State, 176 S.W.3d 887, 898, 903 (Tex. App.—Fort Worth 2005, no pet.) (noting

that the State did not even mention the objected-to testimony in its closing and

therefore holding the trial court’s error in admitting the testimony in question was

harmless) (citing Motilla, 78 S.W.3d at 358). Finally, the trial court provided a

limiting instruction regarding testimony of extraneous offenses in the jury charge,

which required proof beyond a reasonable doubt and limited consideration only for

purposes of determining state of mind and relationship; it is presumed the jury

followed those instructions absent evidence to the contrary (CR—130). See id.

Therefore, it is unlikely that the extraneous fondling or lying next to her in bed had

more than a slight effect on the jury’s verdict. Thus, the appellant’s second and

third points of error should be overruled.



                                         32
                                CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas


                                                 /S/ _ Katie Davis
                                                 KATIE M. DAVIS
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Davis_Katie@dao.hctx.net
                                                 State Bar Number: 24070242




                                       33
              CERTIFICATE OF SERVICE AND COMPLIANCE
      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 8,200 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

Kurt B. Wentz
5629 Cypress Creek Parkway
Suite 115
Houston, TX 77069
281-587-0088
kbsawentz@yahoo.com


                                                  /S/ _Katie Davis_________
                                                  KATIE M. DAVIS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Street, Suite 600
                                                  Houston, Texas 77002
                                                  Telephone (713) 755-5826
                                                  Fax Number (713) 755-5809
                                                  Davis_Katie@dao.hctx.net
                                                  State Bar Number: 24070242

Date: February 18, 2015




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