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IN THE
TENTH COURT OF APPEALS
 

No. 10-91-224-CR

     SHERMAN LOUIS HOUSTON,
                                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                                              Appellee
 

From the 220th District Court
Bosque County, Texas
Trial Court # 91-03-11439-BCCR
                                                                                                    

O P I N I O N
                                                                                                    

      A jury convicted Sherman Houston of the aggravated sexual assault of Nicky D., an eleven-year-old girl, and assessed his punishment at fifty years in prison.  His only complaint is that the
court improperly admitted evidence that he had taken nude pictures of Nicky and his own daughter
shortly before he committed the offense.  He contends the evidence had no relevance apart from
showing his character and, even if it were relevant to the sexual assault, its potential for unfair
prejudice substantially outweighed its probative value.  See Tex. R. Crim. Evid. 401, 403,
404(b).  We affirm.
NICKY'S TESTIMONY
      Houston and his family and Nicky and her family were camping together at Lake Whitney
when the offense occurred.  Nicky testified that Houston invited her, her nine-year-old sister
(Christy), and Houston's daughter (Tina) to ride in his car to the store to buy ice.  Before they
reached the store, Houston stopped the car and retrieved a Polaroid camera from the trunk.  He
then had Tina and Nicky pull their swimsuits to one side while he took two photographs of their
vaginal area and buttocks.  Christy handed the photographs to Nicky, who tried to hide them by
stuffing them into the folds of the back seat where she and Tina were sitting.  Nicky planned to
destroy the hidden pictures when they returned to camp.  Once they reached the store, however,
Houston found and kept the pictures in his possession.
      When the children and Houston returned from the store, Christy and Tina went to the lake to
swim while Nicky remained at the camp site to eat lunch.  After finishing eating, Nicky started
along a trail leading to the cove where Christy and Tina were swimming.  She described what
happened:
      [DISTRICT ATTORNEY'S QUESTIONING]:
      Q   When you started walking down the trail, did something happen?
      A   Yes.
      Q   What happened?
      A   Sherman [Houston] stopped me.
      Q   Okay.  Did he stop you where your parents could see you?
      A   No.
      Q   All right.  And once he stopped you, what did he do?
      A   He started talking to me.
      Q   What did he say to you?
      A   He told me that if he -- if I came up to the car with him, then he would give me the
pictures back.
      Q   Uh-huh.  Did you go with him?
      A   Yes, I did.
      Q   Did -- was he holding you when you went up there?
      A   No.
      Q   And where did you go?
      A   We stopped at -- where a little white building is.
      Q   Is -- is this on a trail?
      A   Yes.
. . . 
      Q   What happened?
. . . 
      A   He told me that if I let him lick my private, then he would give me the pictures back.
(Emphasis added).  Nicky then described how Houston forced her into the white building, pulled
down the bottom of her swimsuit, and put his mouth on her vagina.  
      Christy, who saw the photographs taken, also testified about the picture-taking episode but
not about the sexual assault.  The State introduced Houston's confession in which he admitted
taking the pictures.  (The record does not reflect the length of time between the photographs being
taken and the sexual assault).  All of this evidence was admitted over defense objections based on
Rule 404(b) and Rule 403 of the Rules of Criminal Evidence.  See id. at 403, 404(b).
SAME-TRANSACTION CONTEXTUAL EVIDENCE
      The Court of Criminal Appeals has labeled evidence of extraneous offenses indivisibly
intertwined with the charged offense as "same transaction contextual evidence."
 Mayes v. State,
816 S.W.2d 79, 86 (Tex. Crim. App. 1991).  Same-transaction evidence refers to separate
offenses that are "intermixed, or blended with one another, or connected so that they form an
indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of
any one of them cannot be given without showing the others."  Id. at 86-87 n.4.  Offenses are
intertwined in the same transaction if "in narrating the one it is impracticable to avoid describing
the other."  Id. at 87 n.4.  Evidence of all the offenses in the same transaction is admitted out of
necessity—you cannot practicably separate one from the other.  Id.
      The facts and circumstances of the charged offense are relevant evidence.  Id. at 85; Tex. R.
Crim. Evid. 401.  Evidence of how events of the charged offense unfolded and progressed is
necessary for the jury to have a full picture and understanding of what took place.  Mann v. State,
718 S.W.2d 741, 744 (Tex. Crim. App. 1986).  Consequently, the State was entitled to prove all
of the facts and circumstances surrounding the sexual assault, everything that Houston said and
did, including how he used the nude photographs to lure Nicky to where she was sexually
assaulted and how he tried to use them to get her to submit to the sexual assault.  In fact, had they
been available at trial, the State could have introduced the photographs into evidence because
Houston had used them as a ploy and inducement to commit the sexual assault.  See White v. State,
131 Tex. Crim. 481, 131 S.W.2d 968, 969 (1939) (holding that a book of lewd photographs seized
from the defendant at his arrest was admissible in his trial for attempted rape if he had used the
book in any way in committing the charged offense).  Moreover, because evidence of the
photographs was admissible to show the facts of the charged offense, the jury could consider
evidence of the photographs as an aggravating factor in assessing Houston's punishment for the
sexual assault.  See Wilkerson v. State, 736 S.W.2d 656, 660 (Tex. Crim. App. 1987).
      Nicky could not practicably narrate the relevant facts and circumstances surrounding the
charged offense without mentioning the nude pictures.  This is a classic example of same-transaction contextual evidence.  The two offenses became inextricably intertwined through
Houston's own words and acts, and the State was entitled to prove both, not only by Nicky's and
Christy's eye-witness testimony but by Houston's confession.  The amount of time elapsing
between the picture-taking episode and the sexual assault did not make the evidence inadmissible
as the two offenses were indivisibly entertwined.
RULE 404(B) IS INAPPLICABLE
      Rule 404(b), which prohibits the state from introducing evidence of other crimes to show the
defendant's bad character and his "propensity" to commit criminal acts, does not limit or govern
the admissibility of same-transaction evidence.  Tex. R. Crim. Evid. 404(a), (b).  Same-transaction evidence is admitted as an exception to the "propensity rule."  Mayes, 816 S.W.2d at
86 n.4.  The exception necessarily exists because evidence of an extraneous offense intertwined
with the charged offense is admitted out of necessity—i.e., the offenses cannot be practicably
separated in proving the charged offense—"and not because the [extraneous offense] has any
evidential purpose."  Id. at 87 n.4.  Rule 404 controls the admission of evidence with an
evidentiary purpose apart from the defendant's character—evidence that not only must be relevant
to a consequential fact but whose relevance is not substantially outweighed by its potential for
prejudice.  Id. at 86.  
      Thus, because the evidence was admitted as an exception to Rule 404, the State was not
required to assert or prove that it had a relevance apart from character conformity.  The court
properly overruled Houston's Rule 404(b) objections.
RULE 403 BALANCING TEST
      When the court overruled his Rule 404(b) objections, Houston then objected to the evidence
under Rule 403:
[DEFENSE COUNSEL]: Okay.  Judge, then I would further object on the basis under
Rule 403 that the  -- that the -- well, Judge, may I have permission of the Court to -- to -- for
purposes of my objection to get in two witness statements that show it's -- show it [the
picture-taking episode] happened from an hour and a half to three and a half hours difference
in time?
THE COURT: Counsel, I don't have that before me.  I don't know ...
[DEFENSE COUNSEL]: Well, Judge, I would ask for -- also object to it on the basis of
-- under Rule 403 that its probative value is outweighed by its -- by its prejudicial nature,
would request a hearing on that.
THE COURT: Overruled.  It's admitted --
[DEFENSE COUNSEL]: Are you denying me a hearing?
THE COURT: Yes, sir.
(Emphasis added).  The following appears twenty pages later in the statement of facts, after the
court has again overruled an objection under Rule 404(b):
[DEFENSE COUNSEL]: Judge, then I would ask for a ruling under -- I object to them
on -- object on any testimony on -- concerning those pictures and events around them, because
they are -- that their probative value is greatly outweighed by their . . . prejudicial nature and
I would request a hearing on that.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Overrule my 403 objection and my request for a --
THE COURT: That's correct -- 
[DEFENSE COUNSEL]:  -- for a hearing for -- a determination hearing?
THE COURT: That's correct.
(Emphasis added).  Again, six pages later:
[DEFENSE COUNSEL]: Your Honor, I would like to renew my objection to extraneous
offenses and also . . . also renew my request for a hearing outside the presence [of the jury]
on prejudicial versus probative value.
THE COURT: Overruled.
(Emphasis added). 
      He contends that the court refused to perform the balancing test required by Rule 403 and
that, even if the test had been performed, the evidence should have been excluded based on its
potential for unfair prejudice.
      When evidence of an extraneous offense is admissible to show the res gestae or context of the
charged offense—now renamed "same transaction contextual evidence"—the court must still
balance its probative value against the potential for unfair prejudice.  Tex. R. Crim. Evid. 403;
Mann, 718 S.W.2d at 744.  "Rarely," however, will its prejudicial potential make it inadmissible. 
E.g., Wilkerson, 736 S.W.2d at 660; Mann, 718 S.W.2d at 744; Maynard v. State, 685 S.W.2d
60, 67 (Tex. Crim. App. 1985).
      The Court of Criminal Appeals outlines in Montgomery v. State, 810 S.W.2d 372, 389-90
(Tex. Crim. App. 1990) (on rehearing), the responsibilities of the trial court once a Rule 403
objection is made and suggests a procedure to facilitate appellate review of its decision:
      •    The trial court has no discretion to refuse a request to conduct a balancing test—the
balancing test is mandatory.  Id. at 390.
      •    The trial court must apply the factors used to determine probative weight versus
prejudicial potential to the facts of the case.  Id. (referring to the factors listed on pages
392-93 of the Montgomery opinion).
      •    Appellate review would be "facilitated" by the trial court's listing in the record the
considerations that governed its decision.  Id. at 393 n.4.
The Court of Criminal Appeals does not require the trial court to conduct the balancing test during
a formal hearing held for that purpose or that it announce for the record that it has, in fact,
conducted and completed the balancing test in its own mind.  Although not requiring the
procedure, the Montgomery court merely recognizes that appellate review would be made easier
if the trial court would list the reasons for its decision in the record.  Id. 
      Houston was requesting a formal hearing, presumably for the court to formally balance the
evidence and declare the result.  That is what the court denied.  As noted above, Montgomery does
not require or even suggest that the court must conduct such a hearing.  The record affirmatively
reflects that the court, after hearing the Rule 403 objection, considered and overruled it.  It did
not refuse to consider or rule on the objection, which would have indicated that it was refusing
to perform the balancing test. 
      That the court did not announce before ruling on the objection, "I'm now considering the
objection and mentally balancing the evidence to determine whether its prejudicial value
substantially outweighs its probative weight," and "I've now completed the balancing test and
announce my decision by overruling the objection," does not mean that it did not consider the
objection, balance the evidence, and by overruling the objection find that the scales tipped in favor
of probative value.  The trial court necessarily performed the balancing test when it heard the
objection, considered it, and overruled it.  The record does not indicate otherwise.
      Evidence of the nude pictures was relevant to the sexual assault and, as such, is presumed to
be admissible under Rule 401.  See id. at 390.  Whether the court properly admitted the evidence
under the balancing test is measured by an abuse-of-discretion standard.  See id. at 391.  Although
reviewable on appeal, we must defer to the trial court's ruling if its determination is "within the
zone of reasonable disagreement."  See id.  To do otherwise would be to substitute our judgment
for that of the trial court.
      Giving due deference to the court's ruling and because same-transaction evidence relating to
an extraneous offense is only rarely excluded due to its prejudicial effect, we hold that the court
did not abuse its discretion in admitting the evidence.  The court's determination is "within the
zone of reasonable disagreement."  
      We overrule all points and affirm the judgment.
 
                                                                               BOB L. THOMAS
                                                                               Chief Justice

Before Chief Justice Thomas, 
      Justice Cummings, and 
      Justice Vance (Vance, J., dissenting)
Opinion delivered and filed June 17, 1992
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