Opinion filed December 19, 2019




                                    In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-17-00343-CR
                                  __________

                CARLOS REFUGIO GARCIA, Appellant
                                       V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 142nd District Court
                            Midland County, Texas
                        Trial Court Cause No. CR46409


                     MEMORANDUM OPINION
      The jury convicted Appellant, Carlos Refugio Garcia, of indecency with a
child by contact, a second-degree felony offense. See TEX. PENAL CODE ANN.
§ 21.11(a)(1), (c)(1), (d) (West 2019). Appellant pleaded “true” to a prior felony
conviction alleged by the State for enhancement purposes. The trial court assessed
Appellant’s punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of life. Appellant brings two issues on
appeal. He challenges the sufficiency of the evidence supporting his conviction, and
he contends that the trial court abused its discretion when it admitted, during the
guilt/innocence phase, evidence of extraneous offenses. We affirm.
                                Background Facts
      C.R. has two children, a boy, A.S., and a girl, L. At the time of the offense,
A.S. was seven, and L. was three. C.R. was a work friend of Appellant’s wife,
Melinda Guerrero. C.R. regularly gave Guerrero rides to and from work, and the
two women occasionally went out to lunch together. Through her friendship with
Guerrero, C.R. also became acquainted with Appellant.
      On the evening of November 21, 2015, Guerrero invited C.R. to Guerrero’s
and Appellant’s home to have dinner and watch a pay-per-view boxing match. C.R.,
A.S., and L. arrived at the home between 6:00 p.m. and 7:00 p.m. A.S. and L. played
in the living room with toys they had brought with them. Appellant sat on the right-
hand side of a U-shaped couch in the living room and watched TV while they played.
Appellant’s sixteen-year-old daughter, M.G., testified that she was also sitting on
the couch watching TV.
      Shortly after C.R. and her children arrived, C.R. and Guerrero left to run an
errand. M.G. testified that C.R. and Guerrero asked M.G. to watch the children
while they were gone. When C.R. and Guerrero left, A.S. and L. were still playing
on the living room floor, and Appellant and M.G. were still sitting on the couch
watching TV. Guerrero and C.R. were gone between twenty-five and forty-five
minutes.
      While C.R. and Guerrero were gone, A.S. moved from the living room floor
to the couch near where Appellant was sitting. At some point, M.G. left the
living room. A.S. testified that, while only he and Appellant were in the room,
Appellant reached over a cupholder, stuck his hand inside A.S.’s pants, and touched


                                         2
A.S.’s “bad part,” at which point A.S. jerked away causing Appellant to scratch him.
A.S. testified that Appellant told him: “Don’t tell, I won’t ever do it again.”
      Guerrero and C.R. subsequently returned from their errand. C.R. noticed that
A.S. was being “kind of clingy” and quiet after they returned. C.R. asked A.S. if
anything was wrong, and he responded that he was just tired. It had gotten late in
the evening, so C.R. decided to take the children home.
      C.R. subsequently dropped A.S. off with his father, Scott Strauss. At trial, the
State called Strauss as the outcry witness. While bathing A.S., Strauss noticed what
appeared to be a rash on the underside of A.S.’s penis, and Strauss applied lotion to
the area. When Strauss bathed A.S. the next day, he noticed that the area looked
worse—like it was infected—and asked A.S. what caused it. A.S. told Strauss that
it happened when Appellant touched his penis. A.S. told Strauss that it occurred
when M.G. left the room and that Appellant jerked his hand away when M.G.
returned.
      Donna Doyle, a certified sexual assault nurse, examined A.S. During the
examination, A.S. recounted the same version of events that he had told Strauss and
testified to at trial. In her report, Doyle noted that there was “a linear healing
abrasion . . . on the bottom of the shaft of [A.S.’s] penis.” She testified that “it was
not a rash that I saw, it was absolutely an abrasion.” Doyle also photographed the
injury, and the photograph was published to the jury.
                                       Analysis
      In his first issue, Appellant contends that there is insufficient evidence to
support his conviction for indecency with a child by contact. Specifically, Appellant
asserts that the evidence of contact between Appellant and A.S. was contradictory
and misleading and failed to show that the contact was sexual in nature. He contends
that the State’s evidence failed to show sexual contact because no one saw the
incident; because there was no testimony that Appellant received gratification from
                                           3
the contact; and because “[n]o evidence was presented [that] Appellant had his pants
off, had an erection, or made sexually suggestive comments.”
      We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
      When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      A person commits the offense of indecency with a child by contact if he
“engages in sexual contact with [a] child” younger than seventeen years of age.
PENAL § 21.11(a)(1). “Sexual contact” means “any touching by a person, including
touching through clothing, of the anus, breast, or any part of the genitals of a child,”
if the act is “committed with the intent to arouse or gratify the sexual desire of any
                                           4
person.” Id. § 21.11(c)(1). Although Appellant admits that “the evidence regarding
the actual contact shows Appellant placed his hand in the complainant’s shorts and
jerked his hand away, leaving a scratch,” Appellant contends that this is insufficient
to show sexual contact because “[n]o testimony was presented [that] [Appellant]
laughed, smiled, or made any remarks which demonstrated he intended to satisfy his
sexual desire.”
      Direct evidence of what an accused intended at the time he committed the
offense is rare. See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998)
(“Mental states are almost always inferred from acts and words.”). As such, like
other essential elements of an offense, circumstantial evidence can be used to
establish intent. See Rivera–Reyes v. State, 252 S.W.3d 781, 785 (Tex. App.—
Houston [14th Dist.] 2008, no pet.); Scott v. State, 202 S.W.3d 405, 408 (Tex.
App.—Texarkana 2006, pet. ref’d).
      When called on to prove the offense of indecency with a child by contact, the
State is not required to prove that the defendant was actually aroused; the offense
only requires that the alleged act be committed with the intent to arouse or gratify
the sexual desire of any person. See Shamam v. State, 280 S.W.3d 271, 278 (Tex.
App.—Amarillo 2007, no pet.). The specific intent to arouse or gratify a person’s
sexual desire can be inferred from the defendant’s conduct, remarks, and all the
surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.
App. [Panel Op.] 1981); Tienda v. State, 479 S.W.3d 863, 873 (Tex. App.—Eastland
2015, no pet.); Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio 2013,
no pet.). Intent can be inferred from conduct alone, and no oral expression of intent
or visible evidence of sexual arousal is necessary. Tienda, 479 S.W.3d at 873; Scott,
202 S.W.3d at 408. Further, a complainant’s testimony alone is sufficient to support
a conviction for the offense of indecency with a child. Tienda, 479 S.W.3d at 873;


                                          5
Moore, 397 S.W.3d at 754; Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—
Fort Worth 2007, no pet.).
      With respect to a defendant’s intent to arouse or gratify his sexual desire, his
intent can be inferred from the act itself. See McKenzie, 617 S.W.2d at 216. In this
case, the evidence shows that Appellant stuck his hand inside A.S.’s pants and made
contact with A.S.’s penis. This is not conduct that is consistent with any type of
innocent or childcare activity. See Montgomery v. State, 810 S.W.2d 372, 396 (Tex.
Crim. App. 1990). Instead, it is conduct that permits a rational factfinder to infer
that Appellant committed the act with the intent to arouse or gratify his sexual desire.
See McKenzie, 617 S.W.2d at 216. Additionally, Appellant told A.S. not to tell
anyone what had happened and said that he would not do it again. A defendant
instructing a complainant not to reveal an event indicates consciousness of
wrongdoing, which in turn leads to the inference that he harbored the specific intent
to arouse or gratify his sexual desires. Montgomery, 810 S.W.2d at 396. Viewing
the evidence in the light most favorable to the jury’s verdict, we conclude that a
rational trier of fact could have found that Appellant touched A.S.’s genitals with
the intent to arouse or gratify Appellant’s own sexual desires.                      We overrule
Appellant’s first issue.
      In Appellant’s second issue, he contends that the trial court abused its
discretion by admitting evidence of extraneous offenses related to Appellant’s 2004
conviction for aggravated sexual assault of a child. The State provided Appellant
notice under Article 38.37 of its intent to introduce extraneous offense evidence
during the guilt/innocence phase. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2 (West
2018). This notice listed three minor victims: M.M., B.M., and I.M.1 The notice
alleged that, in December 2001 in El Paso, Appellant caused the penetration of the


      1
       M.M., B.M., and I.M. were subsequently adopted, and they are now known as M.J., B.J., and I.J.

                                                 6
sexual organ, anus, and mouth of each of the minor victims. The notice further
alleged that Appellant pleaded guilty to theses offenses in cause number
20030D03092 in El Paso County, Texas.
      Prior to trial, the trial court held a hearing on the State’s notice as required by
Section 2 of Article 38.37. At the hearing, the State introduced a “pen pack”
regarding Appellant’s 2004 conviction in cause number 20030D03092 for three
counts of aggravated sexual assault of a child.         The judgment indicated that
Appellant pleaded guilty to three offenses. However, the judgment did not list the
name of the victim or victims for the three counts of aggravated sexual assault of a
child for which Appellant was convicted. The State also called B.J. to testify at the
Article 38.37 hearing. She testified that, when she was four, and her sisters M.J. and
I.J. were six and two, respectively, Appellant came into their bedroom and sexually
assaulted them. The trial court subsequently entered a written order prior to trial
permitting the State to introduce the evidence under Article 38.37.
      Appellant lodged numerous objections to the extraneous offense evidence at
both the pretrial hearing and at trial. Immediately prior to B.J.’s trial testimony,
Appellant’s counsel advised the trial court that he had just determined that M.J. was
the only victim for the El Paso County conviction. Appellant asserted that the
Article 38.37 hearing only pertained to the offenses for which Appellant was
convicted in El Paso County. The trial court disagreed by determining that the
State’s notice and the hearing pertained to the offenses alleged to have occurred
against all three minors.
      At the end of its case-in-chief, the State called B.J. to testify about the sexual
assaults that she testified about at the Article 38.37 hearing. B.J. testified that, when
she was four years old, Appellant came to her home to see B.J.’s biological mother.
Appellant and B.J.’s mother were doing drugs in the living room. B.J. and her two-
year-old sister, I.J., and her six-year-old sister, M.J., were also in the living room.
                                           7
B.J. testified that Appellant was talking to B.J.’s mother but “kept looking at me and
my sisters.” Appellant told B.J. and her sisters to go to their room. Appellant made
the girls get onto the bed, and he began touching them “under [their] clothes.”
Appellant then took B.J. and I.J. off the bed, but he kept M.J. on the bed. Appellant
“took off [M.J.’s] clothes and he started having sex with her.” B.J. further testified:
      [W]hen he was done with my big sister, he got me onto the bed. He
      took off my clothes as well. And he put his penis into my vagina. I --
      I kept crying. But I couldn’t look at him because I knew what was
      happening. . . . And what I was going through, it hurt, a lot. It felt like
      it was going on forever when it was only a little bit of time. I could feel
      his hands everywhere. The pain, it was very excruciating. By the time
      he was done with me, he had got my little sister. He did the same thing
      to her as well.
           And when he was done with us, he just left us in the room. It
      was me and my sisters. We stayed there, we were crying, and he left.
      No one came to get us, they just left us in there.
       Appellant makes several arguments on appeal regarding the extraneous
offense evidence. He first argues that the trial court could not have adequately
conducted a Rule 403 balancing test because of the timing of the trial court’s ruling.
See TEX. R. EVID. 403. He contends that the trial court should not have ruled on the
Rule 403 objection prior to trial. Appellant also asserts that the trial court erred in
determining that the probative value of the evidence was not substantially
outweighed by the prejudicial effect. Appellant also argues that the evidence was
inadmissible under Article 38.37 because the extraneous offenses were not
sufficiently similar to the charged offense. Finally, he argues that the extraneous
offense evidence was inadmissible because the State did not properly comply with
the notice provision of Article 38.37.
      Whether to admit evidence at trial is a preliminary question to be decided by
the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex.
Crim. App. 2012). We review a trial court’s ruling on the admissibility of evidence
                                          8
for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.
2007). We will uphold the trial court’s decision unless it lies outside the zone of
reasonable disagreement. Id. (citing Montgomery, 810 S.W.2d at 391).
      We will first address the admissibility of the evidence under Article 38.37,
and then we will address Rule 403. Under Article 38.37, section 2, notwithstanding
Texas Rules of Evidence 404 and 405, and subject to Article 38.37, section 2-a,
evidence that a defendant has committed certain offenses against a child may be
admitted in the trial of a defendant for indecency with a child “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.”            CRIM. PROC.
art. 38.37, § 2(b); see Lara v. State, 513 S.W.3d 135, 141 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). Article 38.37 supersedes the application of Rule 404(b),
making extraneous offense evidence admissible that Rule 404(b) would preclude.
Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref’d); see Lara,
513 S.W.3d at 141.
      Under Article 38.37, the State must give notice at least thirty days before trial
of its intention to introduce evidence of other offenses the defendant committed as
described in Section 2, including aggravated sexual assault of a child, sexual assault
of a child, and indecency with a child. CRIM. PROC. art. 38.37, §§ 2, 3; see Lara,
513 S.W.3d at 141. Appellant contends that the extraneous offense evidence was
“inadmissible as the State did not properly comply with the notice provisions” of
Article 38.37, section 3. He asserts that the notice was defective because the El Paso
County conviction in the pen packet that the State offered at the hearing related only
to M.J. We disagree with Appellant’s contention. While it was subsequently
determined that the conviction only applied to M.J., the State’s Article 38.37 notice
was not restricted only to the conduct reflected in the El Paso County conviction.
The State’s Article 38.37 notice indicated that the State intended to offer evidence
                                          9
that Appellant committed the penetration of the sexual organ, anus, and mouth of
M.J., B.J., and I.J. The notice further indicated that the acts were committed on or
about December 2001 in El Paso. Accordingly, the trial court did not abuse its
discretion by determining that the State provided sufficient notice under
Article 38.37 for extraneous offense evidence pertaining to all three minor victims.
        Appellant also asserts that the extraneous offense evidence was inadmissible
under Article 38.37 because it was not sufficiently similar to the charged offense.
He bases this assertion on the fact that the extraneous offenses involved the
penetration of young female victims that he knew, whereas this case involves sexual
contact of a young male victim that he did not know. However, there is no
requirement in Article 38.37, section 2 that the extraneous offenses of “sexual
misconduct” that are admissible under the statute must be of the same type of sexual
misconduct for which the defendant is being tried. See Aguillen v. State, 534 S.W.3d
701, 711 (Tex. App.—Texarkana 2017, no pet.) (noting that Article 38.37, section 2
permits the introduction of extraneous offenses in the nature of “sexual misconduct
of some sort”). 2 Furthermore, the extraneous offenses in this case share a common
fact to the charged offense—they both involve offenses of a sexual nature committed
against minors. “Children often are targeted for these crimes, in part because they
tend to make poor witnesses.” Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d) (quoting Senate Comm. on Criminal Justice,
Bill Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013)). The trial court did not abuse its
discretion by determining that the extraneous offense evidence was admissible under
Article 38.37.




        2
         Appellant’s reliance on Aguillen is misplaced because the extraneous offense in Aguillen was not
of a sexual nature. 534 S.W.3d at 711–12. Thus, Article 38.37 was inapplicable in Aguillen. Id.

                                                   10
      When evidence of a defendant’s extraneous acts is relevant under
Article 38.37, the trial court is still required to conduct a Rule 403 balancing test
upon proper objection or request. Belcher v. State, 474 S.W.3d 840, 847–48 (Tex.
App.—Tyler 2015, no pet.). Under Rule 403, a trial court may exclude relevant
evidence if its probative value is substantially outweighed by the danger of “unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” TEX. R. EVID. 403; see Young v. State, 283 S.W.3d
854, 874 (Tex. Crim. App. 2009). “Rule 403 favors admission of relevant evidence
and carries a presumption that relevant evidence will be more probative than
prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v.
State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is
unfairly prejudicial when it has the undue tendency to suggest an improper basis for
reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000);
Render, 347 S.W.3d at 921.
      In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery, 810 S.W.2d at 392). When conducting a Rule 403 analysis, the trial
court must balance:
      (1) the inherent probative force of the proffered item of evidence along
      with (2) the proponent’s need for that evidence against (3) any tendency
      of the evidence to suggest [a] decision on an improper basis, (4) any
      tendency of the evidence to confuse or distract the jury from the main
      issues, (5) any tendency of the evidence to be given undue weight by a
      jury that has not been equipped to evaluate the probative force of the
      evidence, and (6) the likelihood that presentation of the evidence will
      consume an inordinate amount of time or merely repeat evidence
      already admitted.



                                         11
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These
factors may well blend together in practice. Id. Rule 403, however, does not require
that the balancing test be performed on the record. Greene v. State, 287 S.W.3d 277,
284 (Tex. App.—Eastland 2009, pet. ref’d). In overruling a Rule 403 objection, the
trial court is assumed to have applied a Rule 403 balancing test and determined that
the evidence was admissible. Id.
      Appellant contends that the trial court could not have adequately conducted a
Rule 403 balancing test prior to trial “before hearing any of the State’s evidence
regarding the offense to which Appellant was charged, defense counsel’s cross-
examination, or its opening statement.” After the Article 38.37 hearing, the trial
court issued a written order allowing the State to introduce the extraneous offense
evidence. In addition to making the finding required by Article 38.37, section 2 a(1),
the trial court found that, “in accordance with Rule 403 . . . , the probative value of
the evidence likely to be admitted at trial outweighs the danger of any unfair
prejudice, confusion of the issues[,] or misleading the jury.” At trial, however, the
court held another hearing regarding the admissibility of the extraneous offense
evidence. This hearing occurred prior to B.J.’s testimony after the State had
presented the bulk of its case-in-chief. Appellant re-urged his Rule 403 objection
during this hearing. After hearing arguments from Appellant and the State, and after
taking judicial notice of all of Appellant’s objections made at the Article 38.37
hearing, the trial court reaffirmed its previous ruling that the extraneous offense
evidence was admissible. Accordingly, we disagree with Appellant’s assertion that
the trial court made an inappropriate ruling on the Rule 403 objection prior to trial
because the trial court revisited the ruling prior to B.J.’s trial testimony.
      With respect to the merits of his Rule 403 objection, Appellant contends that
the trial court erred because the prejudicial effect of the extraneous offense evidence
substantially outweighed its probative value. We review a trial court’s ruling under
                                           12
Rule 403 for an abuse of discretion. Pawlak v. State, 420 S.W.3d 807, 810 (Tex.
Crim. App. 2013). This standard requires an appellate court to uphold a trial court’s
evidentiary ruling when it is within the zone of reasonable disagreement. Torres v.
State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Powell v. State, 63 S.W.3d 435,
438 (Tex. Crim. App. 2001). We will uphold the trial court’s ruling on the admission
or exclusion of evidence if the ruling was proper under any legal theory or basis
applicable to the case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App.
2002).
      The first two Gigliobianco factors focus on the inherent probative force of the
proffered evidence and the State’s need for it. As the Court of Criminal Appeals
explained in Gigliobianco, “probative value” is more than just relevance. 210
S.W.3d at 641. It refers to how strongly an item of evidence “serves to make more
or less probable the existence of a fact of consequence to the litigation[,] coupled
with the proponent’s need for that item of evidence.” Id. As noted in Distefano v.
State, “[A]rticle 38.37 expands a trial court’s analysis under Rule 403 of the
probative value of qualifying extraneous offense evidence by allowing the trial court
to consider character conformity evidence.” 532 S.W.3d 25, 37 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). “Evidence that [a defendant] has previously
sexually assaulted a child is probative that his actions toward the complainant[] were
not innocent actions that were misinterpreted as sexual but were, in fact, done with
an intent to arouse or gratify [the defendant’s] sexual desire.” Bezerra v. State, 485
S.W.3d 133, 141 (Tex. App.—Amarillo 2016, pet. ref’d).            We disagree with
Appellant’s argument that the extraneous offenses were not sufficiently similar to
the charged offense to constitute probative evidence. As previously noted, the
victims were young like the victim in this case. Additionally, Appellant waited in
both instances until the victims were isolated before assaulting them.


                                         13
          With respect to the State’s need for the evidence, as is often the case with
sexual offenses against children, the State’s case came down mostly to A.S.’s
version of the events. Appellant’s cross-examination of A.S. focused on A.S.’s
credibility and inconsistencies in his testimony. There were no eyewitnesses to
corroborate A.S.’s testimony, and the State’s other witnesses merely related what
A.S. had told them. As such, it was reasonable for the trial court to conclude that
the extraneous offense evidence had probative value and that the State had a need
for it.
          The remaining Gigliobianco factors focus on the potential negative effects of
the proffered evidence. The third factor focuses on the tendency of the evidence to
suggest a decision on an improper basis. Extraneous offenses that involve the sexual
assault of children are inherently inflammatory and prejudicial. Montgomery, 810
S.W.2d at 397; Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet.
ref’d). In this case, the extraneous offenses were more serious than the charged
offense. Accordingly, this factor weighs in favor of exclusion. We note, however,
that the trial court also included a jury instruction in the jury charge regarding the
extraneous offense evidence.3 We presume the jury obeyed this instruction. See
Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003) (appellate courts
presume that the jury follows instructions). Thus, the trial court took measures to
mitigate the potential improper influence of B.J.’s testimony. See Gaytan v. State,

          3
           The trial court instructed the jury as follows:
                   The Defendant is on trial solely on the charge contained in the indictment.
          Regarding evidence, if any, that the Defendant previously participated in transactions or
          acts involving [M.J.], [B.J.], and [I.J.], you are instructed that you cannot consider such
          other transactions or acts, if any, for any purpose against the Defendant unless you find and
          believe beyond a reasonable doubt that the Defendant participated in such transactions or
          committed such acts, if any, and even then you may only consider the same . . . 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. Evidence of other
          crimes, wrongs, or acts, if any, committed by the Defendant, does not lessen the
          presumption of innocence or the State’s burden of proof.

                                                        14
331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d); Newton, 301 S.W.3d at
320.
       The fourth factor focuses on the potential of the proffered evidence to confuse
or distract the jury from the main issues. This factor weighs in favor of admission
because B.J.’s testimony was not confusing and because it was relevant to whether
Appellant touched A.S. with the intent to arouse our gratify his own sexual desires.
The fifth factor focuses on the potential of the proffered evidence to mislead the jury.
As noted by the court in Distefano, the order in which evidence is presented can
lessen the potential for extraneous offense evidence to confuse or mislead the jury.
532 S.W.3d at 34. In this case, B.J. testified at the end of the State’s case-in-chief,
thereby reducing its potential to confuse the jury. Additionally, we have previously
noted that the trial court gave a limiting instruction. Finally, the sixth factor focuses
on the time needed to present the proffered evidence and whether it is cumulative of
other evidence.     B.J.’s testimony lasted less than nine minutes during the
guilt/innocence phase of the trial that spanned three days.
       In summary, the extraneous offense evidence in this case was prejudicial.
However, Rule 403 contemplates excluding evidence only when there is a “clear
disparity” between the offered evidence’s prejudice and its probative value.
Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). Considering the standard of
review, the presumption favoring admissibility of relevant evidence, and the
Gigliobianco factors, we cannot conclude that the trial court abused its discretion in
overruling Appellant’s Rule 403 objection. See Hammer, 296 S.W.3d at 568
(“Because Rule 403 permits the exclusion of admittedly probative evidence, it is a
remedy that should be used sparingly, especially in ‘he said, she said’ sexual-
molestation cases that must be resolved solely on the basis of the testimony of the


                                           15
complainant and the defendant.”(footnote omitted)).                        We overrule Appellant’s
second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


December 19, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.




        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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