      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                             444444444444444444444444444
                              ON MOTION FOR REHEARING
                             444444444444444444444444444



                                       NO. 03-03-00559-CR




                                    Rodgy Lee Nesby, Appellant

                                                 v.

                                    The State of Texas, Appellee




     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
         NO. 9322, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw the prior opinion and judgment dated March 24, 2005, and the

following opinion is substituted.

               A jury found Rodgy Lee Nesby guilty of aggravated sexual assault of a child and

assessed punishment at ninety-nine years in prison. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)

(West Supp. 2004-05). Nesby complains that the district court erred by admitting testimony of the

complaining witness and two other children about extraneous acts by appellant. We will affirm the

judgment.
                                         BACKGROUND

               Nesby was convicted for having sex with his longtime girlfriend’s minor

daughter, who was called “Marble Falls Number 118” during trial. (We will shorten this pseudonym

to “MF-118” and will shorten other pseudonyms similarly.) He was convicted for an incident

occurring on or about October 31, 2001. Only MF-118 testified about that incident, but she and her

cousins, MF-122 and MF-124, all testified about previous sexual activity involving Nesby, MF-118,

and these other children. After Nesby’s objection to testimony about extraneous acts involving other

children, the court instructed the jurors that they could consider testimony about incidents concerning

children other than MF-118 only if the jurors found beyond a reasonable doubt that Nesby committed

the extraneous offense; the court also limited the jury’s use of these extraneous offenses to such

issues as plan, preparation, intent, opportunity, and identity of the victim and/or the accused in this

case. On appeal, Nesby challenges the admission of this evidence.

               Other evidence adduced at trial provides context for evaluating the district court’s

admission of the children’s testimony. The State began its case with testimony from police

investigators Larry Lamb and Melony Myers and the written statements Nesby gave them. In one

statement, Nesby described MF-118 as disturbed, inappropriately sexual in behavior and dress, and

vindictive. Nesby indicated that MF-118’s accusations against him were motivated by anger that

he would not let her move in with him and his new wife. In his second statement, Nesby said

that MF-118 was sexually aggressive toward him and had touched his penis against his will

numerous times. Nesby said that once, when his shoulder was injured, MF-118 and MF-124 came

into his bedroom, held him down, and inserted his penis into MF-118’s vagina. (Lamb testified that,

at time of trial, MF-118 was about 5’1, 100 pounds, and that MF-124 was about 5’3, 120 pounds;

                                                  2
the incident occurred more than two years before trial.) Nesby said that, when he did not maintain

penetration, the girls laughed and compared him to an uncle with whom they had also had sex. The

experience upset him and he moved out of the house. After the detectives testified, the State

adduced evidence from various persons regarding how MF-118’s accusations came to light. The

State then called the children to the stand.

               Before MF-122 testified, the court again instructed the jury regarding extraneous

offenses. The court told jurors they could consider the other offenses only if they believed beyond

a reasonable doubt that Nesby committed them. Even then, the court said, they could consider the

other offenses only for the purpose of considering plan, preparation, intent, opportunity, and identity

of the victim and/or the accused in this case. MF-122 testified that, when he was seven or eight years

old, he and his siblings sometimes stayed with Nesby and MF-118 during the day. MF-122 testified

that Nesby would tell MF-118 to “start doing stuff to his thing” and that Nesby would put “the sperm

or whatever on her butt.” MF-122 testified that Nesby then told him to simulate having sex with

MF-118. MF-122 testified that this happened to him three or four times, eventually leading to him

having sex with MF-118. On cross-examination, MF-122 admitted that he had previously denied

that these events occurred, but he explained that he made the denials because he was shy and scared.

               MF-124 testified that she was fourteen years old at the time of trial. She testified

that, one summer when she was eleven years old, Nesby babysat several times for her, her brothers,

MF-118 and MF-118’s sisters. After the court gave the limiting instruction about extraneous

offenses, MF-124 testified about a time that she and MF-118 were lying in bed watching

television while wearing T-shirts and boxer shorts. Nesby came in and lay between them. He

                                                  3
removed MF-118’s underwear and began feeling her “bottom part” and her breasts under the T-shirt.

He then had sex with MF-118, getting on top of her and penetrating her with his penis. MF-124 said

she saw Nesby fondle and have sex with MF-118 about six or seven times over the next week or so.

MF-124 said that MF-118 was twelve years old at the time of these acts.

                MF-118 was fifteen at the time of trial. She testified that, when she was in first grade,

Nesby began coming into her room and rubbing her vagina area over her panties, then under her

panties. After she made these statements, Nesby objected and requested a limiting instruction; the

court overruled his objection and request for a limiting instruction. MF-118 testified that Nesby first

had sex with her when she was seven or eight years old and did so many times after that. Before she

testified about events involving the other children, the court gave an instruction limiting the

applicability of extraneous offenses to purposes of identification of the defendant, preparation, intent,

and opportunity. MF-118 then recounted the incident during which MF-124 was present; her

testimony matched MF-124’s except that MF-118 testified that Nesby first tried to have sex with

MF-124 before turning to MF-118. She confirmed that Nesby made MF-122 have sex with her.

Finally, she testified about a time when Nesby had sex with her on the kitchen table when she was

younger than fourteen years old. This last incident was the one for which Nesby was convicted.

                MF-118 denied telling anyone that she had sex with her uncle or grandfather or telling

any state authority that she had sex with anyone other than Nesby. She denied forcing Nesby to have

sex with her. She admitted that she initially denied to Nesby’s new wife that Nesby touched her

inappropriately; MF-118 said she withheld that information in retaliation for the new wife’s role in




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ending Nesby’s relationship with MF-118’s mother. MF-118 said she later decided to expose these

activities to protect Nesby’s daughters from Nesby.


                                          DISCUSSION

               Nesby raises three issues on appeal concerning the court’s admission of testimony by

MF-118, MF-122, and MF-124 regarding extraneous offenses; because of the similarity of the issues,

Nesby argues these issues together. He contends that the evidence was unnecessary, and that the

prejudicial effect of this evidence so far outweighs the probative value that the court abused its

discretion by admitting it.

               The State, as the proponent of this extraneous offense evidence, bears the burden of

showing admissibility. See Rankin v. State, 974 S.W.2d 707, 719 (Tex. Crim. App. 1998) (op. on

reh’g). Evidence is relevant and generally admissible if it has “any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Tex. R. Evid. 401; see also Tex. R. Evid. 402. Evidence

of other crimes or bad acts is not admissible to prove the defendant’s character in order to show that

the charged acts were in conformity with that character, but is admissible to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.

R. Evid. 404(b). Where the State’s direct evidence that clearly shows an element of the crime is

neither contradicted by the defendant nor undermined by cross-examination, evidence of other

crimes to show the element is irrelevant. See Rankin, 974 S.W.2d at 719.

               The legislature has determined that, notwithstanding rule 404, evidence of other

crimes, wrongs, or acts committed by the defendant against a child victim shall be admitted for its

                                                  5
bearing on relevant matters such as the state of mind of the defendant and the child and the

relationship of the defendant and the child before and after the offense. See Tex. Code Crim. Proc.

Ann. art. 38.37, § 2 (West Supp. 2004-05). This Court has held that evidence of extraneous sexual

conduct with a child helps to prove that acts otherwise unthinkable to the average juror could occur,

showing, for example, that a person in a position of authority, custody, or care of a young child has

developed an unnatural attitude and relationship toward that child. Ernst v. State, 971 S.W.2d 698,

700 (Tex. App.—Austin, 1998, no pet.); see also Montgomery v. State, 810 S.W.2d 372, 394 (Tex.

Crim. App. 1990); Johns v. State, 236 S.W.2d 820, 823 (Tex. Crim. App. 1951). Evidence that is

relevant under article 38.37 still is subject to exclusion if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or

needless presentation of cumulative evidence. Tex. R. Evid. 403; Hitt v. State, 53 S.W.3d 697, 706

(Tex. App.—Austin 2001, pet. ref’d).

               We review the admission of evidence for an abuse of discretion. Salazar v. State, 38

S.W.3d 141, 153 (Tex. Crim. App. 2001); Montgomery, 810 S.W.2d at 378. Rulings on relevance

should be left largely to the trial court, relying on its own observations and experience, and will not

be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.

1993); Corley v. State, 987 S.W.2d 615, 618 (Tex. App.—Austin 1999, no pet.). If the trial court’s

ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and we

must uphold the trial court’s ruling. Salazar, 38 S.W.3d at 153-54; Montgomery, 810 S.W.2d at 391.

To find an error in the admission of evidence, we must be able to “say with confidence that by no

reasonable perception of common experience can it be concluded that proffered evidence has a



                                                  6
tendency to make the existence of a fact of consequence more or less probable than it would

otherwise be . . . .” Montgomery, 810 S.W.2d at 391. Upon finding such error, we must assess

whether the error was harmful. Id.

               Nesby argues that the extraneous-offense evidence was irrelevant because it was not

necessary to prove elements of the offense that were essentially uncontested, such as identity, intent,

plan, preparation, and opportunity. But the evidence was relevant under article 38.37 to show the

relationship between Nesby and MF-118 and their respective states of mind. See Tex. Code Crim.

Proc. Ann. art. 38.37, § 2. This is true both of evidence of incidents that involved only Nesby and

MF-118 and of evidence of incidents that also involved other children. While the events that other

children witnessed or participated in also may have involved crimes against them, MF-118 was

present at and the focus of all the incidents testified about in this record.1 The testimony about such

events was thus within article 38.37 even though other children were present and, in some instances,

involved in the extraneous act. The incidents involving other children cast light on the state of mind

of Nesby and of MF-118, as well as their relationship.

               Nesby contends that the evidence of extraneous offenses was so unfairly prejudicial

that it should not have been admitted. See Tex. R. Evid. 403. This jury was asked to determine

whether Nesby committed one assault of MF-118, but heard evidence from multiple witnesses about

multiple assaults involving more than one child.            Nesby complains that evidence (and

argument based thereon) that he coerced MF-122 to have sex with MF-118 in the presence of his




       1
          MF-118 testified that MF-124 rebuffed Nesby’s attempts to fondle or have sex with her,
but that testimony was vague about what actually occurred.

                                                  7
sister, MF-124, would be extremely inflammatory and unfairly prejudicial to a jury concerned with

a different assault on a different day involving only MF-118. He contends that the issues could

become confused and the jury misled by the array of assaultive incidents in evidence when Nesby

was charged with only one offense. The litany of extraneous events could also be unnecessarily

cumulative.

               But the trial court has discretion in weighing the concerns of unfair prejudice. Mozon

v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). Factors in the decision include:


       (1) how compellingly the extraneous offense evidence serves to make a fact of
           consequence more or less probable—a factor which is related to the strength of
           the evidence presented by the proponent to show the defendant in fact
           committed the extraneous offense;

       (2) the potential the other offense evidence has to impress the jury “in some
           irrational but nevertheless indelible way”;

       (3) the time the proponent will need to develop the evidence, during which the jury
           will be distracted from consideration of the indicted offense;

       (4) the force of the proponent’s need for this evidence to prove a fact of
           consequence, i.e., does the proponent have other probative evidence available
           to him to help establish this fact, and is this fact related to an issue in dispute.


Id. at 847; see also Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

               The testimony about the extraneous offenses was strong, and compellingly showed

the nature of the relationship between Nesby and MF-118, their states of mind, and Nesby’s identity,

awareness, and intent. No other evidence illustrated these factors as well. The offender’s intent or

knowledge while committing the act is a critical fact in the offense of aggravated sexual assault of

a child. See Tex. Pen. Code Ann. § 22.021(a)(1)(B).

                                                  8
               The evidence of the extraneous offenses had great potential to impress the jury in an

indelible way. The acts described were repugnant. But the repugnance evoked is irrational only if

it distracted the jurors from the offense charged and impelled them to convict Nesby based on actions

other than the one for which he was charged.

               The relative amount of time spent on the extraneous offenses had some potential to

distract the jurors from the single event for which Nesby was charged. As Nesby notes, testimony

about the charged event occupied some twenty lines of text on one page in a guilt-innocence phase

reporter’s record that covers about 400 pages. But the imbalance is not that extreme. The testimony

from the three child witnesses occupied less than sixty pages, and many of those pages did not

concern extraneous offenses.

               Finally, the State needed the extraneous offense evidence to support its case against

Nesby. The determination of Nesby’s guilt or innocence hinged on the State’s ability to persuade

jurors that he intentionally or knowingly had sex with MF-118. His intent was a critical issue in

dispute. Without the evidence of extraneous offenses, the State had only the testimony from MF-118

about the incident in the kitchen. This was balanced with evidence that MF-118 lied and felt

motivated to harm Nesby. The evidence of extraneous offenses—particularly that from the other

child witnesses—was compelling corroboration of MF-118’s version of her relationship with Nesby

and of his intentions toward her.

               We conclude that the district court did not abuse its discretion by admitting the

testimony from MF-118, MF-122, and MF-124 regarding extraneous acts committed by Nesby

against MF-118.



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                                      CONCLUSION

              Concluding that the district court did not abuse its discretion in admitting this

evidence, we affirm the judgment.




                                           David Puryear, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: May 5, 2005

Do Not Publish




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