Affirmed and Memorandum Opinion filed November 21, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00842-CR

                     CESARIO H. RODRIGUEZ, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 3
                          Fort Bend County, Texas
                   Trial Court Cause No. 10-CCR-152304

                  MEMORANDUM                       OPINION


      Appellant Cesario H. Rodriguez challenges his misdemeanor conviction for
indecent exposure, arguing in a single issue that the trial court erred in allowing the
State to question him regarding his prior conviction for indecency with a child.
We conclude that the trial court did not abuse its discretion in allowing this
questioning, and we therefore affirm its judgment.
                                  BACKGROUND

      The complainant was walking toward her car in a shopping mall parking lot
when she saw appellant standing between two cars.          When she walked past
appellant, he followed her to her car. When the complainant arrived at her car, she
looked toward appellant and saw that “he was laughing, making gestures, sticking
his tongue out really disgusting, had his pants pulled down, and playing with
himself and laughing.” The complainant testified that appellant’s shorts were
bunched around his ankles. The complainant told appellant what he was doing was
illegal and she called 911. As she was dialing the phone, appellant ran away,
pulling up his pants as he was running. Appellant got into his vehicle and drove
away. The complainant followed appellant until police arrived and arrested him.

      Appellant testified that as he was leaving the shopping mall, he saw the
complainant, and “[c]hecked her out, kind of looked at her.” In response, appellant
testified that the complainant made a gesture toward him with her middle finger,
which appellant described as the “bad finger.” In response to the complainant’s
gesture, appellant “grabbed [his] crotch.” Appellant testified that he never exposed
himself.

      On voir dire examination by the State, appellant testified that on October 26,
1983, he was at a shopping mall in Harlingen, Texas, when he saw a fifteen-year-
old girl in the parking lot. The girl gave a statement to police in which she stated
that appellant hissed at her in the parking lot and had his underwear and shorts
down with his hand on his penis and “playing with it up and down.” Appellant
admitted that he was exposed in the parking lot, but claimed it was because he was
urinating. Due to the age of the complainant in the prior case, appellant was
arrested and convicted of indecency with a child.

      Appellant objected to the admission of this testimony as irrelevant and
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overly prejudicial in violation of Rules 403 and 404(b) of the Texas Rules of
Evidence. The trial court overruled appellant’s objections and permitted the jury to
hear the testimony.

                                       ANALYSIS

      In a single issue, appellant contends the trial court erred in allowing the State
to question appellant regarding his prior conviction for indecency with a child.1
We review a trial court’s decision to admit evidence concerning an extraneous
offense for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435
(Tex. Crim. App. 2011). If the trial court’s ruling is within the “zone of reasonable
disagreement,” there is no abuse of discretion. De La Paz v. State, 279 S.W.3d
336, 343–44 (Tex. Crim. App. 2009) A trial court’s ruling is generally within this
zone if the evidence shows that an extraneous offense is relevant to a material,
non-propensity issue.     Id.   We “must uphold the trial court’s ruling if it is
reasonably supported by the record and is correct under any theory of law
applicable to the case.” Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App.
2002).

I.    Evidence of other crimes may be admissible if it is relevant for other
      purposes apart from showing character conformity.

      Rule 404(b) prohibits admission of evidence of other crimes, wrongs, or acts
to prove the character of a person in order to show action in conformity with that
character. Tex. R. Evid. 404(b). Specifically, the rule prohibits a two-part chain of
inferences. The first inference is that the person who engaged in the crime, wrong
or act possesses a certain character. Tex. R. Evid. 404(b). The second inference is
that, because the person possesses this character, he or she acted in conformity

      1
          On appeal, appellant does not challenge the trial court’s ruling on his Rule 403
objection.

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with it on a particular occasion. Id. When evidence relies exclusively upon this
inferential chain for its relevance, Rule 404 renders it inadmissible.            See
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh’g).

      In some cases, the prohibited inferences are so compelling and the
alternative relevance so tenuous that admitting the evidence creates unfair
prejudice that substantially outweighs its “non-character” probative value. See
Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). When this happens,
if the defendant objects on those grounds, the trial court may exclude the evidence
under Rule 403. See id. This case does not implicate such concerns, however,
because although appellant made a Rule 403 objection at trial, he does not address
Rule 403’s balance of prejudice and relevance on appeal.

      Therefore, the question before us is whether evidence of the prior conviction
for indecent exposure had relevance apart from proving appellant’s alleged bad
character. Courts have recognized many alternative bases for admitting extraneous
offense evidence.    Generally speaking, a party may introduce such evidence
where—without relying upon the prohibited inferences—it logically serves to
make more probable or less probable an elemental fact, an evidentiary fact that
inferentially leads to an elemental fact, or defensive evidence that undermines an
elemental fact.   Montgomery, 810 S.W.2d at 387.          Thus, extraneous offense
evidence may be admissible to establish a contested element of the prosecution
such as motive, intent, or identity, or to rebut a defensive theory such as absence of
mistake or accident. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.
2003).

II.   Evidence of appellant’s extraneous offense was admissible to show
      intent.
      For the extraneous act to be admitted, the State was required to show its

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relevance to a fact of consequence contested in the case. Rankin v. State, 974
S.W.2d 707, 709 (Tex. Crim. App. 1996). Examining each part of this required
showing, we conclude the State met its burden here.

      Intent is a fact of consequence when the charging instrument requires the
State to show beyond a reasonable doubt that a defendant committed an act with a
specific intent. Cantrell v. State, 731 S.W.2d 84, 89 (Tex. Crim. App. 1987). In
this case, the complaint required the State to prove beyond a reasonable doubt that
appellant exposed part of his genitals with intent to arouse and gratify his or the
complainant’s sexual desire, and that he did so recklessly and in conscious
disregard of whether another person was present who would be offended and
alarmed by such act. See Tex. Penal Code § 21.08. Thus, appellant’s intent to
expose himself with the intent to arouse and gratify sexual desire was a fact of
consequence.

      Intent is contested if the intent required for the primary offense cannot be
inferred from the act itself, or if the accused presents evidence to rebut the
inference that the required intent existed. McGee v. State, 725 S.W.2d 362, 364
(Tex. App.—Houston [14th Dist.] 1987, no pet.). Intent is most clearly in issue
when the defendant argues that the charged offense was unintentional or the result
of an accident. Keller v. State, 818 S.W.2d 425 428–29 (Tex. App.—Houston [1st
Dist.] 1991, pet. ref’d). When a defendant claims his act was free from criminal
intent, extraneous offenses are relevant to prove guilty intent. Plante v. State, 692
S.W.2d 487, 491–92 (Tex. Crim. App. 1985); see also Montgomery, 810 S.W.2d at
387–88 (holding extraneous act is relevant if it serves to make an elemental fact
more or less probable).

      At trial, appellant testified that he “grabbed his crotch” but did not expose
himself. He argued that the complainant was mistaken about what she saw and had

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embellished her version of the facts. Thus, appellant placed his intent to commit
the offense at issue.

      “Before an extraneous offense is admissible to negate the possibility of
accident . . . , such offense must be sufficiently similar in nature to the charged
offense that the inference of improbability of accident logically comes into play.”
Cantrell v. State, 731 S.W.2d at 90 (quoting Morgan v. State, 692 S.W.2d 877, 881
(Tex. Crim. App. 1985)). The degree of similarity required in cases where intent is
the material issue, however, is not so great as in cases where identity is the material
issue and extraneous offenses are offered to prove modus operandi. Id.

      In this case, the mode of committing the offenses and the circumstances
surrounding the offenses are sufficiently similar for the extraneous offense to be
relevant to intent. The primary and extraneous offenses were similar in that: (1)
both offenses occurred in a shopping mall parking lot; (2) appellant attracted the
complainants’ attention; (3) appellant’s pants were pulled down around his ankles;
and (4) appellant claimed he was committing an innocent act rather than exposing
himself with intent to gratify his or the complainants’ sexual desire. Because the
circumstances surrounding the earlier offense made it more probable that, in this
case, appellant exposed himself with intent to arouse his or the complainant’s
sexual desire, the trial court did not abuse its discretion in concluding that evidence
of the earlier offense was relevant and admissible pursuant to Rule 404(b).

      Appellant alternatively argues that the trial court did not follow the factors
set out in Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). The court in
Theus addressed admission of extraneous offense evidence as impeachment under
Texas Rule of Evidence 609. Because we have found the evidence admissible
under Rule 404(b), we need not address its admissibility as impeachment evidence.
See Willover, 70 S.W.3d at 845. Appellant’s sole issue is overruled.

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      The judgment of the trial court is affirmed.




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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