AFFIRM; and Opinion Filed May 23, 2019.




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-18-00243-CR
                                       No. 05-18-00244-CR

                           STEPHEN LAWRENCE PRICE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                    Dallas County, Texas
                      Trial Court Cause Nos. F14-47178-H, F16-47218-H

                                          OPINION
                           Before Justices Schenck, Osborne, and Reichek
                                    Opinion by Justice Schenck
       Stephen Lawrence Price appeals his convictions for aggravated sexual assault and

continuous sexual abuse of a child. In three issues, appellant argues the trial court erred by

(1) allowing K.M. to testify about uncharged acts of sexual abuse, (2) failing to exclude evidence

of extraneous offenses, and (3) allowing a magistrate to preside over jury selection. We affirm the

trial court’s judgments.

                                          BACKGROUND

       The State charged appellant by indictments with aggravated sexual assault of B.J., a child,

and continuous sexual abuse of C.J., a child. The State timely notified appellant that, pursuant to

Article 38.37 of the code of criminal procedure, it intended to introduce evidence of extraneous
offenses during trial. The trial court referred both cases to a magistrate to conduct voir dire and

jury selection.

           After the jury was empaneled, and before the State proceeded with its case-in-chief, the

trial court judge conducted a hearing on the admissibility of the extraneous offense evidence.

Outside the presence of the jury, K.M., who, as a child, resided in the same home with appellant,

testified about the acts of sexual abuse appellant committed against her when they resided together.

At the time of trial, K.M. was thirty-eight years old. She is eight years younger than appellant.

She explained that, when she was between the ages of four and nine, appellant subjected her to

various acts of sexual abuse and she described those acts in detail. The trial court then heard

argument as to the admissibility of K.M.’s testimony. The State directed the trial court to Article

38.37.1 Appellant argued K.M. should not be allowed to testify because her testimony would be

“more prejudicial than relevant.” The trial court found K.M. to be credible and that the jury could

believe her testimony beyond a reasonable doubt.                                  The trial court impliedly found K.M.’s

testimony would be more probative than prejudicial. See TEX. R. EVD. 403.

           Appellant pleaded not guilty to both offenses, and the cases were presented to the same

jury in a consolidated proceeding. The State called K.M. as its first witness. K.M. testified that

when she was a young child her father was not home very often because his employment involved

extensive travel. Appellant took advantage of her father’s absence to abuse her. The abuse started

when she was four years old and consisted of conduct undeniably within the coverage of Article

38.37. K.M. further testified that this behavior continued for over a year and, if she refused to

comply with appellant’s demands that she perform sexual acts, he would force feed her dog food.

When she started kindergarten, the family moved to a new house. There, appellant would lock her



      1
        Article 38.37 allows for the admission of evidence that the defendant committed sex crimes against children other than the victim of the
alleged offense “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.” TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2(b).

                                                                     –2–
in the bathroom with him and force her to perform oral sex on him and to have sexual intercourse

with him. After they moved to another house, appellant would corner her in the backyard, force

her into a trash-can, and make her perform oral sex on him. The assaults occurred weekly and

continued until she was nine years old, when her father was able to spend more time at home. She

told her mother about the abuse before she was an adult, but her mother did not believe her and

called her a liar.

        Appellant’s estranged wife testified she has two daughters, B.J. and C.J., and one son.

Appellant is not the father of any of her children. B.J. and C.J. both have developmental problems.

More particularly, B.J. struggles with comprehension and learning and C.J. is speech delayed. She

and her children lived with appellant from 2009 through 2013. During the time they lived with

appellant, she held two jobs and was the primary income earner for the family. Appellant was not

employed and was often left alone with the children.

        B.J. told the jury that one time after appellant had dropped her mother off at work, he took

her and C.J. into his room. She was seven or eight years old at the time and C.J. was five or six

years old. She indicated that appellant locked the door and told her to take off all of her clothes.

B.J. refused, and appellant forced her to remove her clothing. Appellant then threw her on the bed

and had sex with her. She explained that appellant also had sex with C.J. When he finished,

appellant told them to put their clothes back on and not to tell their mother. She did not tell anyone

what happened until three or four weeks after her mother left appellant because she was afraid of

appellant.

        C.J. testified that they began living with appellant when she was younger than six. She

testified to a variety of unlawful conduct, including appellant’s having forced her to perform oral

sex and engage in sexual intercourse. These acts usually occurred in her mother’s bedroom and

occurred approximately once a week. She also told the jury about a time appellant took her and

                                                 –3–
B.J. into the bedroom, made them strip, and made them watch adult television showing men and

women having sex. The abuse started shortly after she met appellant and continued until she

moved out of the house with her mother and sister. C.J.’s outcry took place approximately 30

months after B.J.’s outcry.

       Following B.J.’s initial outcry, B.J. and C.J. were questioned by a forensic interviewer.

During her interview, B.J. disclosed details of the experience she had with appellant. C.J. did not

disclose any information that day and denied any illegal contact. During cross-examination, and

again during closing argument, appellant’s counsel emphasized the fact that C.J. initially denied

any illegal contact by appellant and that she was now telling a different story. During C.J.’s second

forensic interview, after her outcry, she disclosed the recurring instances of abuse by appellant.

C.J. told the interviewer she did not tell her about the abuse during the first interview because she

did not know her and she was afraid of appellant. C.J. told the interviewer that appellant pointed

swords at her throat and threatened to harm her if she told anyone what he had done.

       During appellant’s case-in-chief, his mother and Ginger Price, the woman he considers to

be his current wife, testified. Appellant’s mother admitted that she was aware of the allegations

K.M. had made against appellant, but claimed that she did not see any signs or symptoms of abuse

as appellant and K.M. grew up. While no one else mentioned the presence of appellant’s mother

in the home, she stated she lived with B.J. and C.J. and took care of the girls until their mother and

appellant divorced. Appellant’s mother also testified that appellant had a long military career and

that his military records were secret.

         Ginger Price testified that she married appellant in November 2017. She began living

with him after he and B.J. and C.J.’s mother separated. She claimed that appellant was an amazing

father and was not violent. She asserted that appellant lost part of his penis during his military

service as a result of a land-mine explosion. She described his penis as being scarred and mangled.

                                                 –4–
       Appellant testified on his own behalf. He denied having committed any of the alleged

abuse. He spoke extensively about his alleged military service, claiming that he enlisted in the

National Guard after high school and rejoined the military after going on a mission with a church.

He claimed to have been part of the “Sixth Air Force” special operations unit and to have been

deployed on three tours in Iraq and two tours in Afghanistan. He insisted that national security

prevented him from discussing details about those deployments. He introduced documents that

purportedly evidenced his military service that he alleged were emailed to him by a friend at the

Pentagon.

       Prior to rebuttal, Assistant District Attorney Marissa Aulbaugh requested and obtained

permission to require photographing of appellant’s genitals. The photographer testified that

appellant’s penis appeared normal and was not mangled. A photograph of appellant’s genitals was

admitted into evidence.

       The State also presented the testimony of Shawn Parks who worked as Diplomatic Security

for the Department of State. He reviewed the records that the State obtained concerning appellant’s

military service. The records revealed that appellant did not finish basic training, had never been

deployed overseas, and served in the Air Force for approximately six months before being

discharged because of a personality disorder. He further testified that the service records submitted

by appellant had been forged.

       The jury found appellant guilty of both offenses and assessed his punishment at life

imprisonment in each case. Appellant moved for a new trial. The motion was overruled by

operation of law. This appeal followed.




                                                –5–
                                             DISCUSSION

        I.      Extraneous-Offense Evidence

        In his first issue, appellant argues the trial court abused its discretion by admitting K.M.’s

testimony over his objection under Article 38.37 of the code of criminal procedure. We review a

trial court’s decision to admit or exclude evidence of extraneous offenses under an abuse of

discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). As long as the

trial court’s decision was within the zone of reasonable disagreement and was correct under any

theory of law applicable to the case, it must be upheld. Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1990) (op. on reh’g). This is so because trial courts are usually in the best

position to make the determination as to whether certain evidence should be admitted or excluded.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).

        Article 38.37 allows for the admission of evidence that the defendant committed sex crimes

against children other than the victim of the alleged offense “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.” TEX. CODE CRIM. PRO. ANN. art. 38.37, § 2(b). Before extraneous-

offense evidence may be introduced, the trial court must determine that the evidence likely to be

admitted at trial will be adequate to support a finding by the jury that the defendant committed the

separate offense beyond a reasonable doubt and must conduct a hearing outside the presence of

the jury for that purpose. Id. art. 38.37, § 2-a.

        Appellant claims the trial court erred by concluding a jury could find beyond a reasonable

doubt that he committed offenses against K.M. because the alleged events occurred a long time

ago, and her allegations are uncorroborated and unsupported by physical evidence. Appellant’s

first issue attacks the credibility of K.M. We defer to the trial court’s findings regarding witness

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App. 1997). Here,

                                                    –6–
the trial court specifically found K.M. to be credible and that the jury could find her allegations

true beyond a reasonable doubt. The record supports this determination. K.M. was able to clearly

describe the abuse and included details concerning the attacks, including when and where they

occurred. She further explained that the abuse stopped only when her father was able to be home

more often, denying appellant the opportunity to engage in long, secluded encounters with her.

The lack of physical evidence is not surprising given the abuse occurred decades before K.M.

testified and is often lacking in cases involving allegations of unlawful contact with a child.

Accordingly, the trial court did not abuse its discretion in concluding K.M.’s testimony was

credible and that the jury could find beyond a reasonable doubt that appellant committed the

offenses K.M. alleged. We overrule appellant’s first issue.

           In his second issue, appellant argues the trial court should have excluded testimony of his

prior sexual abuse of K.M. under Rule 403 of the Texas Rules of Evidence.2 TEX. R. EVID. 403.3

Rule 403 authorizes a trial court to 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. Id. Probative value is the measure of how strongly

the 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 the item of evidence. Gigliobianco v. State, 210

S.W.3d 637, 641 (Tex. Crim. App. 2006). Unfair prejudice refers to the tendency to tempt the jury

into finding guilt on grounds apart from proof of the offense charged. State v. Mechler, 153 S.W.3d


      2
        Appellant did not specifically mention Rule 403 during his argument before the trial court concerning the admissibility of K.M.’s testimony,
but he did urge that her testimony was “more prejudicial than relevant,” which was sufficient to apprise the trial court of his Rule 403 complaint.
C.f. Checo v. State, 402 S.W.3d 440 S.W.3d 440, 451 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); see also Layton v. State, 280 S.W.3d
235, 239 (Tex. Crim. App. 2009).
      3
        In determining whether the trial court abused its discretion in admitting the evidence, we balance the inherent probative force of the proffered
item of evidence along with the proponent’s need for that evidence against (1) any tendency of the evidence to suggest a decision on an improper
basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues, (3) 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 (4) the likelihood that the presentation of the
evidence will consume an inordinate amount of timely or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–
42 (Tex. Crim. App. 2006). These factors may blend together in practice. Id. at 642.



                                                                         –7–
435, 440 (Tex. Crim. App. 2005). Evidence might be unfairly prejudicial if it arouses the jury’s

hostility or sympathy for one side without regard to the logical probative force of the evidence.

Gigliobianco, 210 S.W.3d at 641. Confusion of the issues refers to a tendency to confuse or

distract the jury from the main issues in the case. Id. Misleading the jury refers to a tendency of

an item of evidence to be given undue weight by the jury on other than emotional grounds. Id.

       Rule 403 does not require that the trial court perform the balancing test on the record. Hitt

v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. ref’d). In overruling a Rule 403

objection, the trial court is assumed to have performed a Rule 403 balancing test and determined

the evidence was admissible. Id. There is a presumption that relevant evidence is more probative

than prejudicial. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997). In reviewing

the trial court’s balancing determination under Rule 403, we are 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).

       Appellant does not explicitly state the basis for his contention that he was unfairly

prejudiced by the admission of K.M.’s testimony. It appears appellant’s complaint is that by

allowing the State to present evidence of specific prior offending behavior he committed against

someone other than the complainant, the jury is unjustly impressed with evidence of his character

to offend and, thus, likely to draw the inference that he is more likely to have engaged in the

charged offenses. To be sure, that evidence of character and the propensity inference it suggests

is precluded in most criminal trials by rule of evidence 404. See EVID. 404(a). The very purpose

of Article 38.37, however, is to reverse that rule and allow a jury to consider evidence that the

defendant committed other acts of sexual misconduct precisely because of its relevance to the

actor’s propensity to commit the crime charged. See David J. Karp, Symposium on the Admission

of Prior Offense Evidence in Sexual Assault Cases: Evidence of Propensity and Probability in Sex

                                               –8–
Offense Cases and Other Cases, 70 CHICAGO–KENT L. REV. 15 (1994) (discussing purpose

underlying federal law antecedent to Article 38.37). We have previously confirmed the

legislature’s authority to alter the rule and rejected a due process challenge to its operation. See

Fronek v. State, No. 05-14-01118-CR, 2016 WL 3144243, at *4 (Tex. App.—Dallas June 6, 2016,

pet. ref’d) (mem. op., not designated for publication). In all events, even without the unique

character-proving aspect of Article 38.37, evidence of a prior crime, wrong, or other act has

historically been held to be admissible to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident. EVID. 404(b)(2). The probative value

of extraneous offense evidence in these cases is presumptively very high, and the Rule 403

balancing test normally will not favor the exclusion of evidence of the defendant’s prior sexual

assaults of children. See Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.);

see also David J. Karp, Symposium on the Admission of Prior Offense Evidence in Sexual Assault

Cases: Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70

CHICAGO–KENT L. REV. at 19, 31.

       Especially in cases like this one, where there is little or no physical evidence to support the

complainants’ accusations, the credibility of the complainants is a focal issue in the case.

Particularly in light of the complainants’ developmental issues, C.J.’s initial denial of abuse and

delayed outcry, and the case being one of “he said, she said,” the evidence that appellant sexually

abused another child has considerable probative force quite apart from its tendency to show

character or propensity to offend. See Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston

[1st Dist.] 2016, pet. ref’d); Belcher, 474 S.W.3d at 848. Moreover, in this case the trial court

could have reasonably concluded that the inherent probative force of K.M.’s testimony was

considerable because the testimony detailed instances of abuse that were remarkably similar to the

abuse alleged by B.J. and C.J., including the specific acts of abuse and the ages when the abuse

                                                –9–
occurred. See Gayton v. State, 331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d)

(“[B]ecause the [extraneous offense] testimony was remarkably similar to [the complainant’s], the

trial court could have reasonably found that its inherent probative force was significantly

bolstered.”) (footnote omitted); Distefano v. State, 532 S.W.3d 25, 32 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d). In addition, K.M.’s testimony established appellant’s modus operandi of

isolating, intimidating, and controlling his victims, and tended to contradict appellant’s contention

that he did not engage in the charged offenses. See Taylor v. State, 920 S.W.2d 319, 322 (Tex.

Crim. App. 1996). Thus, we conclude the probative force of the evidence and the need to establish

appellant committed the charged offenses and to counter attacks on B.J.’s and C.J.’s credibility

weighed in favor of the admission of K.M.’s testimony.

       The evidence that appellant sexually abused K.M. in addition to B.J. and C.J. was clearly

prejudicial to his case, but the question in a Rule 403 analysis is whether the evidence was unfairly

prejudicial. See Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015, pet. ref’d)

(noting that Rule 403 does not allow exclusion of otherwise relevant evidence when evidence is

merely prejudicial). The focus of Rule 403 is to assure that the danger of unfair prejudice is not

substantially outweighed by the probative value of proffered evidence. Given Article 38.37 was

designed, at least in part, to allow the State to introduce evidence of the accused’s prior or

subsequent bad acts to show the accused’s propensity to commit the charged offense, the calculus

of what is unfair and what is probative has materially changed. Appellant does not identify any

particular facts about K.M.’s testimony that make it uniquely or unfairly prejudicial. See Alvarez,

491 S.W.3d at 371.

       As to whether K.M.’s testimony concerning uncharged acts suggested an improper basis

for decision or created a risk of confusion of issues, in that the jury might convict for the prior

conduct, rather than the charged conduct, those risks were addressed by the trial court’s instruction

                                               –10–
that the jury not consider K.M.’s testimony unless it believed appellant committed the acts she

alleged beyond a reasonable doubt and then to consider the testimony only for the enumerated

purposes.4 We presume that the jury follows the trial court’s instructions in the manner presented.

Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). An appellant may refute this

presumption, but he must rebut it by pointing to evidence that the jury failed to follow the

instruction. Id. Appellant has not identified any such evidence in this case. Therefore, the trial

court could have reasonably concluded that the jury would not give K.M.’s testimony undue

weight or her testimony would not confuse the issues.

           Moreover, K.M.’s testimony was not repetitive and did not consume an inordinate amount

of time. The guilt-innocence phase of trial lasted only two days, the cases were relatively simple

and straightforward and did not necessitate lengthy testimony, the testimony of K.M. before the

jury is contained in 24 pages of the trial transcript, which totals more than 400 pages, and the State

did not place undue emphasis on the extraneous offense evidence. See Le v. State, 479 S.W.3d

462, 471 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

           Having considered the relevant factors, we conclude that the trial court reasonably could

have determined that the prejudicial effect of K.M.’s testimony did not substantially outweigh its

probative value. We therefore conclude that the trial court did not abuse its discretion in overruling

appellant’s objection to K.M.’s testimony. We overrule appellant’s second issue.




      4
        The jury charge instructed the jury, in part, “if there is testimony before you in this case regarding the defendant having committed offenses,
if any, other than the offense described in this paragraph, if any, you cannot consider said testimony for any purpose unless you find and believe
beyond a reasonable doubt that the defendant committed such other offenses, if any were committed. Then you may consider the same for any
bearing it has on relevant matters, including:
     a)    To determine motive, intent, scheme, or design, if any, of the Defendant;
     b)    To determine the state of mind of the Defendant and the child;
     c)    For its bearing on the previous and subsequent relationship between the Defendant and the child;
     d)    For any bearing it has on the character of the Defendant and acts performed in conformity with the character of the Defendant.”
This instruction is in material compliance with Article 38.37 and Rule 404(b)(2). See CRIM. PRO. art. 38.37; EVID. 404(b)(2).

                                                                       –11–
          II.        Jury Selection before Magistrate

          In his final issue, appellant claims the trial court committed reversible error by referring

jury selection to the magistrate. As an initial matter, we note that appellant failed to object to the

magistrate’s presiding over jury selection; accordingly, appellant has waived this complaint. TEX.

R. APP. P. 33.1(a)(1)(B).

          Even if appellant had preserved this complaint for review, we would find against appellant

on this issue. Section 54.306(a) of the Texas Government Code specifies which proceedings may

be referred to a criminal law magistrate.5 The primary limitation on a referral is that the magistrate

may not preside over a “trial on the merits.” TEX. GOV’T CODE ANN. § 54.306(b). A “trial on the

merits” begins when the jury is impaneled and sworn. Garner v. State, 523 S.W.3d 266, 276 (Tex.

App.—Dallas 2017, no pet.). Jury selection is not a “trial on the merits.” Id at 277. Thus, a

magistrate may preside over jury selection. See id. Accordingly, the trial court did not err in

referring voir dire and jury selection to the magistrate. We overrule appellant’s third issue.




   5
       Section 54.306(a) provides:
   (a)    A judge may refer to a magistrate any matter arising out of a criminal case involving:

          (1)   a negotiated plea of guilty or nolo contendere before the court;

          (2)   a bond forfeiture;

          (3)   a pretrial motion;

          (4)   a postconviction writ of habeas corpus;

          (5)   an examining trial;

          (6)   an occupational driver’s license;

          (7)   an appeal of an administrative driver’s license revocation hearing; and

          (8)   any other matter the judge considers necessary and proper.

   TEX. GOV’T CODE ANN. § 54.306(a).

                                                                     –12–
                                         CONCLUSION

       We affirm the trial court’s judgments.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE




DO NOT PUBLISH
TEX. R. APP. P. 47

180243F.U05




                                                –13–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 STEPHEN LAWRENCE PRICE,                              On Appeal from the Criminal District Court
 Appellant                                            No. 1, Dallas County, Texas
                                                      Trial Court Cause No. F14-47178-H.
 No. 05-18-00243-CR        V.                         Opinion delivered by Justice Schenck.
                                                      Justices Osborne and Reichek participating.
 THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 23rd day of May, 2019.




                                               –14–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 STEPHEN LAWRENCE PRICE,                              On Appeal from the Criminal District Court
 Appellant                                            No. 1, Dallas County, Texas
                                                      Trial Court Cause No. F16-47218-H.
 No. 05-18-00244-CR        V.                         Opinion delivered by Justice Schenck.
                                                      Justices Osborne and Reichek participating.
 THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 23rd day of May, 2019.




                                               –15–
