             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00242-CR
     ___________________________

 CHESTER LEE FINNEY, JR., Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 271st District Court
           Wise County, Texas
        Trial Court No. CR18821


   Before Kerr, Pittman, and Birdwell, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

       Appellant Chester Lee Finney, Jr. appeals his convictions for aggravated sexual

assault of a child and for indecency with a child by exposure. In two issues, he

contends that the trial court abused its discretion by admitting evidence of extraneous

bad acts that he committed before and after the offenses at issue. We hold that the

trial court did not abuse its discretion by admitting the extraneous-act evidence, and

we affirm the trial court’s judgment.

                                        Background

       C.F. (Carol) has two children: T.T. (Tammy) and K.T. (Katie).1 Carol met

Finney on Facebook in 2013, and that year, he moved into a two-bedroom apartment

with her, Tammy, and Katie. At the time, Tammy was in sixth grade, and Katie was in

first grade.

       One day in 2013, Tammy stayed home from school because she was sick.

Carol went to work. According to Tammy’s testimony, after she fell asleep on

Finney’s bed, she awoke to Finney fondling her breasts. While Tammy and Finney

both had their clothes on, she also felt his erect penis pressing against her. Finney

asked Tammy, “Isn’t this what you wanted?” Tammy got out of the bed and locked

herself in a bathroom. After Carol returned home from work, Tammy, without


       To protect the anonymity of persons associated with this appeal, we use
       1

pseudonyms. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel
Op.] 1982).


                                            2
providing every detail, accused Finney of doing something improper. Carol

confronted Finney, asking him, “What the hell have you done to my child?” Finney

yelled that he had not done anything. According to Carol, when she pressed Tammy

for more details, Tammy said that nothing had happened. Finney continued to live

with Carol and her daughters.

      Later that year, while Carol, Finney, and the girls were spending a weekend at

Carol’s sister’s house in Wise County, Carol went to work while leaving Finney, the

girls, and several other people at the house. According to Katie, she fell asleep in a

bed, and when she awoke, she was lying on top of Finney with her head on his chest.

Finney was touching her sexual organ with one hand2 while holding his penis with his

other hand. Katie ran away from Finney and did not immediately tell anyone what had

occurred.

      Carol, Finney, and the girls eventually moved to Lubbock. While they lived

there, one night in August 2014, Finney became enraged while accusing Carol of

attempting to hurt him by driving recklessly. He threw things, shoved her multiple

times, hit her arm with a closed fist, and kept her and the girls in a house when they

tried to get away.3 He told Carol that he would “release all of his rage and [she] would

feel the wrath of it.” After he trapped Carol and the girls in a bedroom, he knocked a

      2
       Katie testified that Finney had pulled her shorts and her panties to the side.
      3
       Carol testified that she and the girls “tried to run to each of the doors multiple
times and get out[,] . . . and he would drag us back and tell us, no, you’re not leaving.”


                                            3
door partially off its hinges and said, “[T]he only way out of this is death.” The girls

begged Finney to let them go, but he refused. Tammy managed to reach a phone and

call Carol’s sister, who called 9-1-1. When Finney saw that Tammy had a phone, he

twisted her wrist, took the phone from her, and threw it into a wall. When he heard

the 9-1-1 dispatcher call back, he took the phone and began talking to the dispatcher.

Aided by that distraction, Carol and the girls left the house. Finney followed them

outside and said to Carol, “[B]itch, I’m going to jail. I hope you’re happy.” Lubbock

police officers arrested Finney, and he eventually pleaded guilty to committing family

violence against Carol. According to Carol, this occasion was the first (and only) time

that Finney physically abused her, although it was not the first time they had fought.

After his release from confinement following his arrest, Finney again began living

with Carol and the girls.

      In June 2015, after Carol and Finney finally separated, Tammy provided details

to Carol about Finney’s sexual abuse. Carol reported the abuse to the police, and

Tammy gave a forensic interview and began participating in trauma counseling. A

Tarrant County grand jury indicted Finney for committing sexual crimes against

Tammy.

      Later, Katie asked Tammy why she was going to individual counseling. Tammy

told Katie that Finney had abused her,4 and Katie disclosed to Carol that Finney had


      4
       According to Carol, when Katie asked Tammy why Tammy was going to
individual counseling, Tammy told Katie about sexual acts that Finney had engaged in

                                           4
likewise sexually abused her while they had been staying at Carol’s sister’s house.

Carol again contacted the police, and Katie gave a forensic interview.

      For Finney’s abuse of Katie, a Wise County grand jury indicted him for

aggravated sexual assault and for indecency with a child by exposure.5 Before trial, the

State gave Finney notice of its intent to offer evidence of Finney’s extraneous bad

acts. The State informed Finney that among other acts, it planned on introducing

evidence of his sexual abuse of Tammy that occurred before his abuse of Katie and of

his physical abuse of Carol—the “Lubbock incident”—that occurred later. Finney

filed a motion seeking exclusion of that evidence.

      Before the trial began, the trial court held a hearing on the admissibility of

evidence of the bad acts. Finney argued that evidence of his alleged sexual abuse of

Tammy was inadmissible under rule of evidence 403 because the evidence was unduly

prejudicial. He explained,

      It’s a pending case that hasn’t been tried. It’s going to be -- because of
      the very nature of it, it’s going to -- the jury is going to give more weight
      to it and . . . not understand it.

             And finally, one of the factors the Court looks at in considering
      403 is the time that would be consumed by the Court, and basically what
      we’re talking about here, your Honor, is litigating a second case with a

with her and said that Finney “probably would have raped [her]” had she not woken
up. Katie testified that during that conversation, Tammy had said that Finney had
done “something bad” but had not provided details of Finney’s abuse.
      5
       See Tex. Penal Code Ann. §§ 21.11(a)(2)(A), 22.021(a)(1)(B)(i), (2)(B) (West
Supp. 2018).


                                           5
      second victim in a different county and everything that’s entailed with
      that.

The State argued that Finney’s alleged abuse of Tammy was probative and admissible

under rule 403 because the abuse proved his character for committing sexual crimes

and because his crime against Tammy was factually similar to his crime against Katie.

      Concerning the “Lubbock incident,” Finney argued that the evidence was

irrelevant because his physical abuse was against Carol, not the children; because the

incident occurred after his alleged crimes against Katie; and because it constituted a

single instance of physical violence rather than establishing a history of violence. The

State argued that evidence of the abuse was relevant because it showed Finney’s state

of mind concerning his familial relationships and because it explained the “delayed

outcry of the children. They were scared of [Finney], as they should have been.”

      The trial court overruled Finney’s objections to evidence concerning both

extraneous bad acts. At trial, the jury heard evidence about those acts. After the jury

received all of the parties’ evidence and arguments, it convicted Finney of both

charges. The trial court sentenced him to confinement for life for the aggravated

sexual assault conviction and to twenty years’ confinement for the indecency with a

child conviction. He appeals.

                                Evidentiary Rulings

      On appeal, in two issues, Finney contends that the trial court erred by

admitting evidence of his alleged abuse of Tammy and of the “Lubbock incident.” He



                                           6
argues that evidence of his alleged acts with Tammy was inadmissible under rule of

evidence 403 because the evidence had minimal probative value, was inflammatory,

potentially confused the jury “as to which assault [he] was on trial for,” required

significant time to develop, encouraged the jury to reach a verdict based on anger or

sympathy, and resulted in an unfair trial. See Tex. R. Evid. 403. Finney contends that

the trial court abused its discretion by admitting evidence of the “Lubbock incident”

because it was irrelevant. He reasons that the incident occurred after his abuse against

Katie and could not, therefore, logically explain her delay in reporting the abuse. He

also asserts that the evidence was unduly prejudicial.

Standard of review

      We review a trial court’s decision to admit evidence, including evidence of a

defendant’s extraneous bad acts, for an abuse of discretion. De La Paz v. State, 279

S.W.3d 336, 343 (Tex. Crim. App. 2009); Williams v. State, 513 S.W.3d 619, 636 (Tex.

App.—Fort Worth 2016, pet. ref’d). Under the abuse-of-discretion standard, we

uphold the trial court’s ruling as long as it is within the “zone of reasonable

disagreement.” De La Paz, 279 S.W.3d at 343–44. As long as an evidentiary ruling is

correct on any applicable legal theory, we will uphold it. Id. “The bare fact that a trial

court may decide a matter differently from an appellate court does not demonstrate an

abuse of discretion.” State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016).




                                            7
Finney’s alleged abuse of Tammy

      Finney first contends that the trial court erred by admitting evidence

concerning his alleged sexual acts with Tammy because the evidence was more

unfairly prejudicial than probative under rule 403. See Tex. R. Evid. 403 (“The court

may exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence.”). He appears to acknowledge that apart

from his argument under rule 403, the evidence was otherwise admissible under article

38.37 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.37,

§ 2(b) (West 2018).

      We recently explained the relationship between the general admissibility of

character-conformity evidence in child-sex-crime cases under article 38.37 and a trial

court’s discretionary exclusion of such evidence under rule 403:

             Article 38.37 . . . creates an exception to the general exclusion in
      criminal trials of character evidence by proof of extraneous offenses. See
      Tex. Code Crim. Proc. Ann. art. 38.37; Tex. R. Evid. 404(a)(1), (b)(1);
      Harris v. State, 475 S.W.3d 395, 401 (Tex. App.—Houston [14th Dist.]
      2015, pet. ref’d); see also Gonzales v. State, 477 S.W.3d 475, 480 (Tex.
      App.—Fort Worth 2015, pet. ref’d) (“Although the general rule is that a
      person may not be convicted based on a claim of character conformity,
      the legislature has changed the rules when there is an allegation of a
      sexual offense against a child.” (footnote omitted)). Under article 38.37,
      when a defendant is on trial for indecency with a child or for aggravated
      sexual assault of a child (among other crimes), evidence of the
      defendant’s extraneous sexual crimes “may be admitted . . . for any
      bearing the evidence has on relevant matters, including the character of
      the defendant and acts performed in conformity with the character of


                                           8
the defendant.” Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a)(1)(C), (E),
(b). . . .

       ....

        . . . Even if evidence is admissible under article 38.37, “it is
subject to exclusion if its probative value is substantially outweighed [by
the danger of unfair prejudice] and if rule 403 is raised in the trial court.”
Wells v. State, No. 02-16-00209-CR, 2017 WL 6759029, at *5 (Tex.
App.—Fort Worth Dec. 28, 2017, pet. [ref’d]); see Bezerra v. State, 485
S.W.3d 133, 140 (Tex. App.—Amarillo 2016, pet. ref’d) (explaining that
when a defendant makes a rule 403 objection to evidence that would
otherwise be admissible under article 38.37, the trial court must balance
the evidence’s probative value against its danger of unfair prejudice), cert.
denied, 137 S. Ct. 495 (2016). Only “unfair” prejudice provides the basis
for exclusion of relevant evidence; such prejudice arises from evidence
that has an undue tendency to suggest that a decision be made on an
improper basis, commonly an emotional one. Karnes v. State, 127 S.W.3d
184, 191 (Tex. App.—Fort Worth 2003, pet. ref’d), cert. denied, 556 U.S.
1241 (2009).

        Rule 403 favors the admission of relevant evidence and presumes
that relevant evidence is more probative than prejudicial. See Sanders v.
State, 422 S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d); see
also Johnson v. State, 490 S.W.3d 895, 911 (Tex. Crim. App. 2016)
(explaining that rule 403 should be “used very sparingly” to exclude
relevant evidence in sexual assault cases). When we analyze a trial court’s
rule 403 decision, we consider the probative value of the evidence; the
potential of the evidence to impress the jury in some irrational, indelible
way or to suggest a decision on an improper basis; the time the
proponent needs to develop the evidence; and the proponent’s need for
the evidence. Sanders, 422 S.W.3d at 815; see Kirk v. State, 421 S.W.3d 772,
782 (Tex. App.—Fort Worth 2014, pet. ref’d) (adding that we should
consider the tendency of the evidence to confuse or distract the jury
from the main issues and the tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the
evidence’s probative force).

      . . . We will reverse the rule 403 ruling rarely because the trial
court is in a superior position . . . to gauge the impact of relevant



                                      9
      evidence. [Gonzales v. State, 477 S.W.3d 475, 481 (Tex. App.—Fort
      Worth 2015, pet. ref’d).]

Swegheimer v. State, No. 02-17-00095-CR, 2018 WL 1528477, at *2–5 (Tex. App.—Fort

Worth Mar. 29, 2018, pet. ref’d) (mem. op., not designated for publication).

      Under these principles, we cannot conclude that the trial court abused its

discretion by admitting evidence of Finney’s alleged abuse of Tammy. See id. at *5.

The trial court could have reasonably found that the probative value of the evidence

and the State’s need for it were high because given Katie’s delayed outcry, the “State

had no physical or scientific corroborative evidence, and the case therefore hinged

on” a swearing match. See id.; Bradshaw v. State, 466 S.W.3d 875, 883–84 (Tex. App.—

Texarkana 2015, pet. ref’d) (explaining that the Legislature’s intent in enacting article

38.37 was to allow for the corroboration of a child’s testimony when little or no

physical evidence exists); Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999,

pet. ref’d) (“The special circumstances surrounding the sexual assault of a child victim

outweigh normal concerns associated with evidence of extraneous acts.”).

      Moreover, like in Swegheimer, the trial court could have reasonably determined

that Finney’s acts with Tammy were probative of his acts against Katie because they

“showed his sexual aggression toward [an] underage girl[] in his household.” 2018 WL

1528477, at *5; see also Burgess v. State, No. 05-17-00271-CR, 2018 WL 3322886, at *4

(Tex. App.—Dallas July 6, 2018, no pet. h.) (mem. op., not designated for publication)

(holding that an extraneous bad act had probative value in a case concerning sexual



                                           10
abuse of a child because the bad act showed the appellant’s sexual interest in

children); Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016,

pet. ref’d) (stating that evidence of prior sexual abuse of children is “especially

probative” of a defendant’s propensity to commit sexual assault).

      Finally, as the State argues, evidence of Finney’s abuse of Tammy was

probative of his acts against Katie because of the similarity of circumstances in which

the abuse occurred: in each case, Finney fondled a sleeping child while lying in bed

with her and while Carol was away from the home. See Gaytan v. State, 331 S.W.3d 218,

227–28 (Tex. App.—Austin 2011, pet. ref’d) (holding that evidence that a defendant

had sexually abused two other children in a “remarkably similar” way to the abuse of

the complainant was “directly relevant to the only issue in the case, namely whether

[the defendant] abused [the complainant]”); see also Holcomb v. State, No. 09-16-00198-

CR, 2018 WL 651228, at *4 (Tex. App.—Beaumont Jan. 31, 2018, pet. ref’d) (mem.

op., not designated for publication) (noting the “substantial similarities between the

charged offense and the extraneous offense” when in “both instances, the teen-aged

girl was sleeping on a couch in the common area of the house, and Holcomb touched

the child sexually while she was asleep, then stopped when she protested”).

      Finney contends that the probative value of “propensity evidence” is inherently

low and relies on historical jurisprudential principles that have generally required the

exclusion of such evidence. See generally Tex. R. Evid. 404(a)(1); Boyd v. United States,

142 U.S. 450, 458 (1892) (“However depraved in character, and however full of crime

                                           11
their past lives may have been, the defendants were entitled to be tried upon

competent evidence, and only for the offense charged.”). But in enacting article 38.37,

the Legislature carved out an exception to the general exclusion of such evidence on

the basis that such evidence has inculpatory value in child-sex-crime cases; we decline

to second-guess the Legislature’s decision in that regard. See Tex. Code Crim. Proc.

Ann. art. 38.37, § 2(b); Gonzales, 477 S.W.3d at 480; see also Bradshaw v. State, 466

S.W.3d at 883 (“The statute recognizes that evidence of this type is, by definition,

propensity, or character evidence. It is admissible notwithstanding those

characteristics.”).

       We acknowledge that like in Swegheimer, the development of evidence

concerning Finney’s acts with Tammy comprised a significant portion of the trial.

2018 WL 1528477, at *5. This fact weighed against admissibility. See id. (citing Sanders,

422 S.W.3d at 815). We also recognize, as Finney argues, that evidence of a

defendant’s sexual acts with children is inflammatory,6 but the inflammatory nature

does not automatically render the evidence inadmissible. See id. (citing Cox v. State, 495

S.W.3d 898, 908 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)).


       6
        We note, however, that the evidence of the extraneous offense (Finney’s
alleged abuse of Tammy in which he touched her breasts over her clothes) was likely
less inflammatory to the jury than evidence of the charged offense (his assault of
Katie in which he pulled aside her clothes and touched her bare sexual organ while
holding his penis). See Rivera v. State, 269 S.W.3d 697, 706 (Tex. App.—Beaumont
2008, no pet.) (comparing the seriousness of extraneous bad acts and the charged
offenses).


                                           12
       Considering all of the factors described above and relying on rule 403’s

presumption of admissibility, we cannot conclude that the trial court abused its

discretion by admitting evidence of Finney’s alleged abuse of Tammy. See Tex. R.

Evid. 403; Swegheimer, 2018 WL 1528477, at *4–5. We overrule his first issue.

The “Lubbock incident”

       In his second issue, Finney argues that the trial court abused its discretion by

admitting evidence of the “Lubbock incident.” Finney argues that the evidence was

irrelevant because the incident occurred well after his abuse of Katie and therefore

could not explain her delayed outcry, which was one theory of relevance that the State

asserted at trial. He also contends that the evidence was “extremely prejudicial”

because it portrayed him as a violent criminal and exhibited his violence towards

children. The State responds by arguing that the evidence “illuminated the increasingly

fraught relationships within the family, was probative to explain why [Katie] did not

immediately outcry, and explained why the family was going to therapy, which

indirectly led to [Katie’s] outcry.”

       We conclude that the admissibility of the “Lubbock incident” did not depend

on whether it explained Katie’s delayed outcry. Rather, as asserted by the State in the

trial court, the evidence, which proved a bad act committed by Finney in trapping and

threatening Katie (along with with Carol and Tammy), was admissible under article

38.37 to show “the state of mind of the defendant” and “the previous and subsequent

relationship between the defendant and the child.” Tex. Code Crim. Proc. Ann. art.

                                          13
38.37, § 1(b)(1)–(2). Under section 1(b) of article 38.37, jurors may consider

extraneous acts showing the defendant’s state of mind and the defendant’s

relationship with the child to explain how someone in a position of trust could

commit a crime against the child. Ware v. State, 62 S.W.3d 344, 353 (Tex. App.—Fort

Worth 2001, pet. ref’d). Article 38.37 recognizes that most jurors are reluctant to

believe that adults in parental positions “would commit sexual or physical crimes

against . . . children” and permits the admission of evidence to show “that a peculiar

relationship exists” between the defendant and a child, including the defendant’s

assertion of dominance over the child. Id. In other words, the defendant’s extraneous

acts are relevant to show how “in a position demanding care and guidance of a related

person, [the defendant] has failed in such duty and has adopted an unnatural attitude

relative thereto.” Johns v. State, 236 S.W.2d 820, 823 (Tex. Crim. App. 1951); see Pinson

v. State, No. 08-02-00327-CR, 2004 WL 1693551, at *5 (Tex. App.—El Paso July 29,

2004, pet. ref’d) (mem. op., not designated for publication) (“Other acts of

misconduct between the defendant and the child victim are relevant to show how a

person in a position of authority, custody, or care of a young child has developed an

unnatural attitude and relationship toward that child to explain the charged act—an

act that would otherwise seem wholly illogical and implausible to the average juror.”);

see also Ayala v. State, Nos. 02-06-00110-CR, 02-06-00111-CR, 2007 WL 1377731, at *3

(Tex. App.—Fort Worth May 10, 2007, pet. ref’d) (mem. op., not designated for

publication) (holding that in a trial for aggravated sexual assault of a child and

                                           14
indecency with a child, the trial court did not abuse its discretion by admitting, under

article 38.37, evidence concerning the defendant’s physical abuse of the child); Kenley v.

State, No. 02-06-00127-CR, 2006 WL 2925159, at *2–3 (Tex. App.—Fort Worth Oct.

12, 2006, no pet.) (mem. op., not designated for publication) (holding that in a child-

sex-crime prosecution, a trial court did not abuse its discretion by admitting evidence

of the defendant’s physical abuse of the child because the evidence “provided context

about the previous and subsequent relationship between” them).

      Applying article 38.37, we conclude that the trial court did not abuse its

discretion by admitting evidence of the “Lubbock incident” because the evidence

showed Finney’s state of mind, including his assertion of dominance over Katie,7 and

proved the “subsequent relationship between” him and Katie. See Tex. Code Crim.

Proc. Ann. art. 38.37, § 1(b)(1)–(2); Ware, 62 S.W.3d at 353; see also Kenley, 2006 WL

2925159, at *2–3; Comeaux v. State, Nos. 14-03-01223-CR, 14-03-01224-CR, 14-03-

01225-CR, 2005 WL 1149795, at *6 (Tex. App.—Houston [14th Dist.] May 17, 2005,

pet. ref’d) (mem. op., not designated for publication) (holding that evidence of an

extraneous offense was admissible to show that the “charged offenses did not occur

in an otherwise healthy relationship”). To the extent that Finney objected in the trial

court and argues on appeal that the “Lubbock incident” was inadmissible because it

was not relevant, we hold that the trial court did not abuse its discretion by overruling

      7
       Finney acknowledges on appeal that the evidence showed, in part, that he
dragged the girls back into the house when they tried to leave.


                                           15
the objection. See Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b)(1)–(2); Williams, 513

S.W.3d at 636. We overrule Finney’s second issue to that extent.

      Finally, to the extent that Finney argues that evidence of the “Lubbock

incident” was inadmissible under rule 403 because of unfair prejudice,8 he did not

object to the evidence on that basis in the trial court, and the record does not indicate

that the trial court ruled on an “undue prejudice” objection to this evidence. Thus, we

hold that he forfeited that complaint for our review, and we overrule the remainder of

his second issue. See Tex. R. App. P. 33.1(a)(1); Ferguson v. State, Nos. 02-16-00451-CR,

02-16-00452-CR, 2017 WL 6047667, at *3 n.3 (Tex. App.—Fort Worth Dec. 7, 2017,

pet. ref’d) (mem. op., not designated for publication); Lewis v. State, No. 02-16-00179-

CR, 2017 WL 2686325, at *9 (Tex. App.—Fort Worth June 22, 2017, pet. ref’d)

(mem. op., not designated for publication).




      8
        Finney contends that evidence of the “Lubbock incident” was “extremely
prejudicial in a number of ways,” including that “crimes against children are
particularly inflammatory.”


                                           16
                                    Conclusion

      Having overruled both of Finney’s issues, we affirm the trial court’s judgment.


                                                    /s/ Wade Birdwell
                                                    Wade Birdwell
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 4, 2018




                                         17
