                                            OPINION
                                        No. 04-11-00179-CR

                                        Thesus WILLIAMS,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR5905
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 7, 2011

AFFIRMED

           A jury found appellant, Thesus Williams, guilty of aggravated sexual assault of a child

and the court assessed punishment at fifty-five years’ confinement. In a single issue on appeal,

appellant asserts the trial court erred by admitting the complainant’s testimony that he showed

her a computer clip of two naked people immediately before he sexually assaulted her. The

complainant, E.P., is appellant’s daughter, and she was twelve years old at the time of trial when
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she testified about the sexual assault that occurred several years earlier. We conclude the court

did not err and affirm the trial court’s judgment.

                                          DISCUSSION

       Appellant argues the admission of the evidence violates both Texas Rule of Evidence

404(b) and Texas Code of Criminal Procedure article 38.37. Rule 404(b) precludes “evidence of

other crimes, wrongs or acts to prove the character of a person in order to show action in

conformity therewith.” TEX. R. EVID. 404(b). Such evidence is admissible, however, “for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . . .” Id. Article 38.37 provides that, notwithstanding Rule 404,

“evidence of other crimes, wrongs, or acts committed by the defendant against the 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 defendant and the child; and (2) the previous and subsequent

relationship between the defendant and the child.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2

(West 2005). We review a trial court’s ruling on the admission or exclusion of evidence for an

abuse of discretion. Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009); Hernandez

v. State, 327 S.W.3d 200, 205 (Tex. App.—San Antonio 2010, pet. ref’d).

       On appeal, appellant argues the evidence was not necessary to the jury’s understanding of

the offense because neither E.P. nor her mother mentioned the clip to anyone before trial, neither

the outcry witness nor the examining nurse mentioned the clip, and the SANE report did not

mention it. Therefore, appellant concludes, the jury’s understanding of the offense would not

have been diminished in the absence of the testimony. Appellant also argues the testimony was

not admissible under article 38.37 because it was not relevant to either his or E.P.’s state of

mind. Appellant contends his state of mind was apparent from the details of the alleged offense



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and from what he allegedly said to E.P.; and E.P.’s own testimony described her state of mind

without reference to the clip. Finally, appellant asserts the testimony was not relevant to the

previous or past relationship between himself and E.P. because E.P. saw the clip immediately

prior to the assault and the clip played no part in E.P.’s outcry or subsequent treatment.

       E.P. testified she was in the living room watching television when appellant called her

into his bedroom. Over appellant’s objection, she testified as follows:

       Q.     [E.P.], you were telling us about what you saw when you walked into your
       dad’s bedroom when he called you?
       A.     Yes.
       Q.     And can you tell us what you remember seeing him doing? What was he
       doing in that bedroom?
                                                      ...
       Q.     He was on the computer?
       A.     Yes, when I first came in.
       Q.     Okay. And did you go up to the computer?
       A.     Yes.
       Q.     And what is it that he was looking at on the computer?
       A.     It was CD covers, I think, at first.
       Q.     At first. And then did it change on the computer?
       A.     Yes.
       Q.     What was it that you saw?
       A.     Then it was like a little clip of two people.
       Q.     Okay. Can you describe what the two people were doing? Just tell me
       what you saw.
       A.     Two people naked.
                                                      ...
       Q.     What do you remember them doing on the computer?
       A.     Like they were touching each other and they were moving.
                                                      ...
       Q.     [What did your father tell you?]
       A.     He asked me did I know what it was.
       Q.     And what did you say?
       A.     No.

       E.P. said her father then told her “to get on the bed, and he cut the lights off. And I think

he went to the restroom and then he came back, and told me to take my clothes off.” E.P.

complied and appellant told her to lie on top of him and “he put his private part inside of” of her.



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       Although Rule 404(b) precludes the admission of evidence of other crimes, wrongs, or

acts to prove the character of a person to show action in conformity therewith, the “other crime,

wrong, or act” may have relevance apart from character conformity if it tends to establish some

elemental fact, such as intent or if it tends to establish some evidentiary fact, such as motive,

opportunity or preparation, leading inferentially to an elemental fact. Wyatt v. State, 23 S.W.3d

18, 25 (Tex. Crim. App. 2000); see also Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App.

1993) (Rule 404(b) permits evidence of other offenses connected with primary offense; referred

to as “same transaction contextual evidence”). In fact, “events do not occur in a vacuum, and the

jury has a right to hear what occurred immediately prior to and subsequent to the commission of

[the offense] so that it may realistically evaluate the evidence.” Wesbrook v. State, 29 S.W.3d

103, 115 (Tex. Crim. App. 2000) (same transaction contextual evidence admissible to show

context in which criminal act occurred). However, same transaction contextual evidence is

admissible only to the extent that it is necessary to the jury’s understanding of the offense. See

Rogers, 853 S.W.2d at 33.

       We conclude E.P.’s testimony regarding the computer clip shown to her by appellant

immediately prior to the sexual assault, coupled with him asking E.P. if she knew what it was she

was looking at in the clip, “shows [appellant’s] attempts to prepare the child to engage in sexual

activity and thus would also show his intent to commit the crime[] charged against him.”

Broderick v. State, 35 S.W.3d 67, 79 (Tex. App.—Texarkana 2000, pet. ref’d) (child testified

defendant showed her pictures of young girls engaged in sexual acts with male adults and told

her she would have to do these things with him). Therefore, we conclude the trial court did not

abuse its discretion by allowing E.P.’s testimony about the computer clip into evidence.




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                                      CONCLUSION

      We overrule appellant’s complaint on appeal and affirm the trial court’s judgment.


                                              Sandee Bryan Marion, Justice

Publish




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