Affirmed and Opinion filed August 26, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00405-CR

                           JESSE BEAM, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1321799

                                   OPINION

      Appellant was convicted of aggravated sexual assault of a child. Punishment
was assessed at fifteen years’ imprisonment. In two issues, appellant asserts that
the trial court reversibly erred when it admitted evidence of an extraneous offense
and when it charged the jury with a limiting instruction that failed to track the
language of a statute. We overrule both issues and affirm the trial court’s
judgment.
                                   BACKGROUND

         Appellant was arrested after the complainant, his stepdaughter, reported that
he had sexually molested her. The abuse allegedly occurred in 2009 when the
complainant was seven years old. The complainant testified that appellant had
digitally penetrated her vagina three or four times per week for an unspecified
length of time. The complainant also testified that, on one occasion, appellant had
inserted his penis into her mouth, vagina, and anus.

         Appellant denied the sexual abuse. He testified that the complainant had
fabricated her story because she wanted him out of her life. The defense focused on
appellant’s military background and his reputation as a disciplinarian. As counsel
emphasized in his opening statement, the main defensive theory was that the
complainant “did not like the discipline [appellant] brought to the house, being ex-
Army,” and she was willing to say anything to send appellant away.

         During the trial, the prosecution elicited testimony about an extraneous
offense that dated back to 2005, when the complainant was only three. The
testimony established that the complainant had been taken to a local hospital,
complaining that her “butt hurt” and that she was experiencing painful urination.
The complainant said that “Jesse did it,” referring to appellant. A doctor diagnosed
the complainant with a urinary tract infection and vaginitis. The doctor also
referred the complainant to a children’s center to be examined for possible sexual
abuse.

         The complainant was examined by a forensic interviewer at the children’s
center. During her interview, the complainant revealed that appellant had touched
her in “her front and her back.” The Houston Police Department was called to
investigate appellant, but it declined to pursue criminal charges because the
complainant had not made a sufficiently clear outcry of sexual abuse.
                                           2
                    EXTRANEOUS OFFENSE EVIDENCE

      In his first issue, appellant complains about the admission of extraneous
offense evidence, which consisted of both live testimony and records from the
complainant’s visit in 2005 to the hospital and children’s center. We review the
trial court’s decision to admit such evidence for an abuse of discretion. See Moses
v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A trial court does not abuse
its discretion if its decision falls within the “zone of reasonable disagreement.” See
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

      Evidence of a defendant’s bad character is generally not admissible to prove
that the defendant acted in conformity therewith. See Tex. R. Evid. 404(b).
However, when a defendant is charged with sexual assault of a child, evidence of a
previous offense or bad act involving the same child may be admissible under
article 38.37 of the Code of Criminal Procedure. At the time of trial, the applicable
version of Article 38.37 stated as follows:

      Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
      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. art. 38.37, § 2 (2012).

      The evidence in this case was relevant because it tended to rebut the
defense’s theory that the complainant had fabricated her story. There was no
testimony at trial that appellant had disciplined the complainant when she was only
three years old. The extraneous offense evidence accordingly showed that the
complainant was making a consistent statement and that she had no motive to

                                          3
invent a story to be used against appellant. We conclude that the trial court did not
abuse its discretion by determining that the evidence was relevant and admissible
under Article 38.37. See Tex. R. Evid. 401 (the test for relevance is whether the
evidence 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”); Burke v. State, 371 S.W.3d 252, 256–57 (Tex.
App.—Houston [1st Dist.] 2011, pet. dism’d) (holding that evidence about
unadjudicated sexual assaults committed in one county was admissible under the
statute to prove that the defendant committed another assault against the same
child in a different county).

      Appellant argues that the evidence should not have been admitted because
the evidence did not clearly establish that an offense had been committed.
Appellant suggests that the evidence was too weak to be admitted because the
complainant was very young at the time the allegations were made, there were no
medical findings of sexual abuse, and no prosecution resulted from that earlier
incident. All of these points invoke questions regarding the weight of the evidence,
not whether the evidence was relevant and admissible.

      The proponent of the evidence has no duty to establish that the extraneous
offense resulted in a formal conviction. Cf. Martin v. State, 173 S.W.3d 463, 468
(Tex. Crim. App. 2005) (holding that trial court did not abuse its discretion by
admitting evidence of unadjudicated “date rape” under Rule 404(b)). The Court of
Criminal Appeals has stated that evidence of an extraneous offense should be
admitted if there is merely “sufficient evidence” from which a hypothetical juror
could reasonably conclude that the defendant committed the extraneous act. See
Montgomery, 810 S.W.2d at 376 n.4 (citing Huddleston v. United States, 485 U.S.
681, 685 (1988)). The complainant’s outcry statement from 2005 clearly satisfies

                                         4
that test, even though other examiners ultimately concluded that the evidence was
not strong enough to warrant a prosecution. We reject appellant’s argument that
Article 38.37 required more definitive proof before the trial court could admit the
extraneous offense evidence. See Dowling v. United States, 493 U.S. 342, 348–49
(1990) (holding that a court may admit evidence of any relevant extraneous
offense, even if the offense was one for which the accused was charged and
acquitted); McNeil v. State, 398 S.W.3d 747, 755 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d); Dunklin v. State, 194 S.W.3d 14, 24 (Tex. App.—Tyler 2006, no
pet.); see also Ex parte Taylor, No. WR-58972-02, 2006 WL 950382, at *1 (Tex.
Crim. App. Apr. 12, 2006) (per curiam) (not designated for publication) (citing
Dowling for the same authority that “an otherwise admissible extraneous offense is
not rendered inadmissible merely because the defendant has been acquitted of that
offense in a previous criminal trial”).

      Appellant also suggests that the evidence should have been excluded
because it was unfairly prejudicial. This argument invokes Rule 403 of the Texas
Rules of Evidence, which provides that relevant evidence may still be excluded “if
its probative value is substantially outweighed by the danger of unfair prejudice.”
The Rule favors admissibility of relevant evidence, and there is a presumption that
relevant evidence will be more probative than prejudicial. See Montgomery, 810
S.W.2d at 389. We consider the following factors when analyzing the competing
interests under Rule 403: (1) the probative value of the evidence; (2) the potential
to impress the jury in some irrational yet indelible way; (3) the time needed to
develop the evidence; and (4) the proponent’s need for the evidence. See State v.
Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).

      Beginning with the first factor, the Court of Criminal Appeals has stated that
the probative value of extraneous offense evidence is low when the evidence

                                          5
supports only noncompelling or undisputed evidence that has already been
submitted. See Montgomery, 810 S.W.2d at 390. In this case, evidence of the
extraneous offense was offered to support a highly disputed fact: whether appellant
committed a sexual assault, as the complainant had alleged. We conclude that the
evidence was probative for the same reason stated earlier: it rebutted appellant’s
theory that the complainant had fabricated her allegations.

      The second factor requires courts to evaluate whether the extraneous offense
evidence has the potential to irrationally impress the jury. Here, the extraneous
offense was quite similar to the charged offense in that both offenses contained
allegations that appellant had inappropriately touched the complainant. Whenever
the extraneous offense is similar to the charged offense, there is always a potential
that the jury may be unfairly prejudiced by the defendant’s character conformity.
See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). However, this
impermissible inference can be minimized through a limiting instruction. See
Karnes v. State, 127 S.W.3d 184, 193 (Tex. App.—Fort Worth 2003, pet. ref’d). In
this case, the trial court attempted to mitigate the prejudicial effect of the evidence
by offering to give the jury a limiting instruction if appellant so requested. Despite
the offer, appellant never made the request.

      The third factor evaluates the time during trial that the proponent required to
develop the evidence of the extraneous offense. The prosecution spent a significant
amount of time developing and discussing the 2005 incident. Testimony was
elicited from the hospital physician who had treated the complainant, the forensic
interviewer at the children’s center, an investigating officer with the Houston
Police Department, and other members of the complainant’s family. The
complainant herself, however, did not testify about the incident. This factor tends
to weigh in favor of exclusion.

                                          6
      The fourth factor addresses the proponent’s need for the extraneous offense
evidence. Here, the prosecution’s need was strong because both sides hotly
contested the commission of a sexual assault. See Lane, 933 S.W.2d at 521
(holding that the need for extraneous offense evidence is greatest when the
evidence supports an element of a “hotly contested issue”). Appellant denied an
assault and asserted that the complainant had fabricated her story to get him out of
the house. The complainant’s mother also asserted that the allegations were false.

      Balancing all of the factors together, we hold that the trial court acted within
the zone of reasonable disagreement when it determined that the probative value of
the extraneous offense evidence was not substantially outweighed by its prejudicial
effect. Appellant’s first issue is overruled.

                               JURY INSTRUCTION

      In his second issue, appellant complains that the trial court erred by charging
the jury with a limiting instruction that failed to track the language of Article
38.37. When reviewing a challenge to the jury charge, we first determine whether
error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we
find error, we then analyze that error for harm under the standards set forth in
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g).

      The jury instruction stated as follows:

      You are further instructed that if there is any evidence before you in
      this case regarding the defendant’s committing an alleged offense or
      offenses other than the offense alleged against him in the indictment
      in this case, you cannot consider such evidence for any purpose unless
      you find and believe beyond a reasonable doubt that the defendant
      committed such other offense or offenses, if any, and even then you
      may only consider the same in determining the motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of mistake or


                                            7
      accident of the defendant, if any, in connection with the offense, if
      any, alleged against him in the indictment and for no other purpose.

      Appellant contends that the instruction was erroneous because Article 38.37
does not permit extraneous offense evidence to be admitted for the purpose of
assessing “the motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident of a defendant.” That purpose is more consistent
with the terms of Rule 404(b) of the Texas Rules of Evidence. See also Hitt v.
State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref’d) (stating that
Article 38.37 supersedes Rule 404(b) in certain types of sexual abuse cases). By
contrast, Article 38.37 provides that extraneous offense evidence may be
considered for its bearing on “relevant matters,” including the state of mind of the
defendant and the child, or the previous and subsequent relationship between the
defendant and the child. To the extent that the jury instruction omitted reference to
these relevant matters, appellant asserts that the trial court erred.

      Limiting instructions are governed by Rule 105 of the Texas Rules of
Evidence. The Rule provides that “[w]hen evidence which is admissible as to one
party or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.” See Tex. R. Evid. 105(a). In the absence
of a proper request, “the court’s action in admitting such evidence without
limitation shall not be a ground for complaint on appeal.” Id.

      The Court of Criminal Appeals has consistently construed Rule 105 as
requiring a request for a limiting instruction at the time the evidence is admitted.
See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Hammock v.
State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); Rankin v. State, 974 S.W.2d
707, 713 (Tex. Crim. App. 1996). If evidence is admitted without a request for a


                                            8
limiting instruction, the evidence becomes admitted for all purposes. See
Hammock, 46 S.W.3d at 895. Once evidence is admitted for all purposes, a
limiting instruction on the evidence is not “within the law applicable to the case,”
and the trial court has no duty to include the instruction in its charge to the jury.
See id. (quoting Tex. Code Crim. Proc. art. 36.14).

      The trial court offered to give appellant a limiting instruction in a hearing
conducted outside the presence of the jury. However, when the extraneous offense
evidence was offered and admitted, appellant never requested the limiting
instruction. Because there was no request, the evidence became admissible for all
purposes and the court was not required to give the jury any limiting instruction
under Article 38.37. It naturally follows that the court was not required to give the
jury a limiting instruction that tracked the language of Article 38.37. Cf. Irielle v.
State, No. 14-13-00390-CR, — S.W.3d —, 2014 WL 3908119, at *9–10 (Tex.
App.—Houston [14th Dist.] Aug. 12, 2014, no pet. h.) (concluding that the trial
court did not err by giving a limiting instruction that failed to track the language of
Rule 404(b) when the defendant never requested a limiting instruction).

      Assuming for the sake of argument that the trial court erred by giving a
limiting instruction that tracked the language of Rule 404(b) instead of Article
38.37, the trial court’s error would be reviewed for a showing of egregious harm
because appellant never objected to the limiting instruction. See Almanza, 686
S.W.2d at 171.

      Egregious harm occurs when the error is so fundamental as to deprive the
defendant of a fair and impartial trial. Id. This is a difficult standard to prove, and
such a determination must be done on a case-by-case basis. See Hutch v. State, 922
S.W.2d 166, 172 (Tex. Crim. App. 1996). When deciding whether appellant
suffered egregious harm, we review “the entire jury charge, the state of the

                                          9
evidence, including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the record of
the trial as a whole.” See Almanza, 686 S.W.2d at 171. The harm must be actual,
not merely theoretical. Id. at 174. Egregiously harmful errors “are those that affect
the very basis of the case, deprive the defendant of a valuable right, vitally affect
the defensive theory, or make a case for conviction clearly and significantly more
persuasive.” See Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011).

       Based on our review of the record, we cannot say that the trial court’s error,
if any, vitally affected appellant’s defensive theory. As the prosecution argued
during closing statements, there were other reasons outside of the extraneous
offense evidence to disbelieve appellant’s theory. The evidence showed that the
complainant made an outcry in 2009 to two of her trusted classmates, whom she
had sworn to secrecy. It was the classmates, not the complainant, who reported the
abuse to authorities. If the complainant wanted appellant out of her life, as the
defense had suggested, the prosecution countered that she would have contacted
the authorities herself, rather than instruct her classmates to keep the abuse hidden.
The jury could have relied on the strength of this reasoning, instead of the
extraneous offense evidence, when it concluded that the complainant had not
fabricated her allegations.

      Appellant asserts that the charge “furthers the possibility that the jury was
confused by the instruction and focused on issues of credibility and character.” As
the finder of fact, the jury was already charged to determine the credibility of
witnesses, so the instruction could not be harmful for that reason. Furthermore,
there is no language in the instruction encouraging the jury to impermissibly
convict appellant based on character conformity. As worded, the instruction limits
the jury’s consideration of the extraneous offense evidence to matters unrelated to

                                         10
appellant’s character or his propensity to commit additional acts of sexual
misconduct. Defense counsel even suggested that character conformity was not an
issue in the case because the extraneous offense evidence was weak and the
offense had not been proven beyond a reasonable doubt.

      We conclude that the charge, even if erroneous, did not deprive appellant of
a fair trial or make the prosecution’s case clearly and significantly more
persuasive. Appellant’s second issue is overruled.

                                 CONCLUSION

      The judgment of the trial court is affirmed.



                                      /s/    Tracy Christopher
                                             Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Publish — Tex. R. App. P. 47.2(b).




                                         11
