                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                       §
 ARMANDO MADRID,                                                        No. 08-07-00127-CR
                                                       §
                           Appellant,                                        Appeal from
                                                       §
 v.                                                                      109th District Court
                                                       §
 THE STATE OF TEXAS,                                                 of Andrews County, Texas
                                                       §
                           Appellee.                                         (TC # 4715)
                                                       §

                                               OPINION

       Armando Madrid appeals his conviction of two counts of indecency with a child by

sexual contact, enhanced by two prior felony convictions. A jury found Appellant guilty of each

count, found both enhancement paragraphs true and assessed his at imprisonment for twenty-five

years on each count. Finding no error, we affirm.

                                         FACTUAL SUMMARY

       In 2005, sixteen-year-old ME891 lived with her family in Andrews, Texas. She knew

fifty-three-year-old Appellant because he was a friend of the family. On July 2, 2005, ME89 was

home alone because her mother and siblings were out of town. Appellant came to the residence

and ME89 told him that her mother was not there. ME89 went with Appellant to a store where

he purchased potato chips and soft drinks and they returned to the house. Once back at the

house, Appellant asked ME89 if she wanted to smoke some cocaine with him. ME89, who had

used cocaine before, agreed and they used cocaine there at her house. Later, they left her house



       1
           The child victim was identified in the proceedings below by the pseudonym ME89.
to get more cocaine and went to a motel in Andrews to “do drugs.” ME89 recalled that they sat

around, talked and “kept doing drugs.” Appellant was also drinking. Appellant asked ME89 if

she would “make love to him” but she refused. He asked her more than once and each time she

refused. When they ran out of cocaine, they went to his mother’s house and got more. Back at

motel, ME89 went into the restroom. When she came out, Appellant was in his underwear. He

pushed her onto the bed and got on top of her. He began touching her breasts with his hands and

he touched her vagina with his fingers. ME89 told him to get off of her but he did not say

anything and instead removed her pants. When the prosecutor asked ME89 what Appellant did

next, the court reporter apparently did not hear what the witness stated because the record states:

“He just (unclear) - .” ME89 continued to describe what happened next, stating that “I was just

trying to push him off, trying to push him away and then finally he stopped.” Appellant fell

asleep and slept through the night but ME89 could not sleep. At one point during this incident,

ME89 told Appellant that she was only sixteen but he replied that it did not matter and nobody

had to know about it. She woke him up the next morning and told him to take her home.

Appellant offered ME89 $100 if she would not tell anyone what had happened.         The following

day, Andrews County Deputy Sheriff Prentiss Hill was dispatched to the Sheriff’s Office at about

11 p.m. to speak with a person about a sexual assault of a child. He spoke with ME89’s mother

who was visibly upset, crying, and confused. Based on his conversation with her, Deputy Hill

went to ME89’s home to speak with her. ME89 was on her bed crying. Based on ME89’s

statements to him about what had happened, he determined that she had not washed the clothes

she had been wearing at the time of the assault and he collected the clothing as evidence. A

blood sample was subsequently taken from Appellant and submitted, along with ME89’s

clothing, to the D.E.A. Crime Lab in Lubbock for analysis. A semen stain was found on the
ME89’s panties. DNA analysis revealed that to a reasonable degree of scientific certainty,

Appellant was the source of the DNA profile found in the sperm fraction of the semen stain.

ME89’s DNA was also found on the underwear.

       Appellant testified at trial that he had been in a relationship with ME89’s mother but it

had ended on Friday, just prior to these allegations being made against him.2 He and ME89’s

mother had sex on Friday but they got into an argument and she threatened to pay him back.

Although Appellant lived with his mother, he had gotten the motel room because his mother had

guests at her home and there was not enough room for all of them. Appellant admitted giving

ME89 a ride to her boyfriend’s house and to the store so she could use the telephone. However,

he denied giving ME89 any cocaine, having her in his motel room, or having sex with her.

       ME89’s boyfriend, Michael Jimenez, testified for the defense that he was with ME89 on

the evening of July 2, but he admitted he was not with her all night. The defense attempted to

establish ME89’s reputation for truthfulness but Jimenez denied being familiar with her

reputation in the community. During cross-examination, Jimenez testified that ME89 came to

him the next day and “told [him] everything, what had happened.” The prosecutor asked

Jimenez whether ME89 told him that Appellant raped her, and he replied in the affirmative. On

re-direct, defense counsel asked Jimenez whether he believed her and Jimenez replied, “I didn’t

know what to believe at the time.”        Count I of the indictment alleged that Appellant, with intent

to arouse or gratify his own sexual desire, intentionally or knowingly engaged in sexual contact

with ME89 by touching her genitals. Count II of the indictment alleged that Appellant, with

intent to arouse or gratify his own sexual desire, intentionally or knowingly engaged in sexual

contact with ME89 by touching her breast. The jury rejected Appellant’s defense and found him

       2
           July 2, 2005 was a Saturday.
guilty of both counts of indecency with a child by sexual contact as alleged in the relevant count

of the indictment. Appellant entered a plea of true to both enhancement paragraphs and the jury

assessed his punishment at imprisonment for a term of twenty-five years.

                                         EXTRANEOUS OFFENSE

         In his sole issue, Appellant contends that the trial court abused its discretion by admitting

extraneous offense evidence that he used cocaine at the time of the offense because it was not

disclosed prior to trail and it was more prejudicial than probative.3 The State asserted at trial that

the evidence was admissible as same transaction contextual evidence.

         We review the trial court’s admission of extraneous-offense evidence for abuse of

discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). Rule 404(b) allows

admission of extraneous evidence “provided that upon timely request by the accused in a

criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s

case-in-chief such evidence other than that arising in the same transaction.” TEX .R.EVID . 404(b).

Extraneous offenses may be admissible as same transaction contextual evidence when “several

crimes are intermixed, or blended with one another, or connected so that they form an indivisible

criminal transaction.” Prible v. State, 175 S.W.3d 724, 731-32 (Tex.Crim.App. 2005), cert.

denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367 (2005), quoting Rogers v. State, 853

S.W.2d 29, 33 (Tex.Crim.App. 1993). This type of evidence results when an extraneous matter

is so intertwined with the State’s proof of the charged crime that avoiding reference to it would

make the State’s case difficult to understand or incomplete. Prible, 175 S.W.3d at 732. Under



         3
           In his brief, Appellant raises the same two issues he raised in a companion appeal, Armando Madrid v. State,
No. 08-07-00128-CR (trial court cause number 4716). The first issue pertains exclusively to the sufficiency of the
evidence in the companion case. W e have addressed that issue in a separate opinion issued this same date. This appeal
only concerns Issue Two. Therefore, we will not consider Issue One in this opinion.
such circumstances, the jury is entitled to know all relevant surrounding facts and circumstances

of the charged offense; an offense is not tried in a vacuum. Moreno v. State, 721 S.W.2d 295,

301 (Tex.Crim.App. 1986). The State is not required to give notice of its intent to introduce

same transaction contextual evidence. See TEX .R.EVID . 404(b)(upon timely request, State is

required to give notice of its intent to introduce during its case-in-chief, extraneous offense

evidence other than that arising in the same transaction).

       The evidence showing Appellant and the complainant used cocaine together is

intertwined with the evidence of the assaultive conduct and it would have been impractical to

describe the events of that day without relating the cocaine use. Further, the evidence illuminates

the nature of the crime and helped explain why the complainant went to the motel room with

Appellant. The trial court did not abuse its discretion by finding the evidence admissible as same

transaction contextual evidence. Further, Appellant was not entitled to notice.

       Under Rule 403, relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. TEX .R.EVID . 403. A Rule 403 analysis by the trial

court should include, but is not limited to, the following considerations: (1) the probative value

of the evidence; (2) the potential of the evidence to impress the jury in some irrational, indelible

way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for

the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). Although a trial court

must still perform a balancing test to see if the same transaction contextual evidence’s probative

value is substantially outweighed by its prejudicial effect, the prejudicial nature of contextual

evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury’s

comprehension of the whole criminal transaction. Mann v. State, 718 S.W.2d 741, 744

(Tex.Crim.App. 1986). Swarb v. State, 125 S.W.3d 672, 681 (Tex.App.--Houston [1st Dist.]
2003, pet. dism’d). We’ve already held that State had a need to introduce this evidence. The

record does not show that the evidence of Appellant’s cocaine usage had the potential to impress

the jury in some irrational, indelible way. Further, any prejudice suffered by Appellant was to

some degree counterbalanced by the complainant’s drug usage and her admission she had used it

before. We find that the trial court did not abuse its discretion by overruling the Rule 403

objection because the record does not establish that the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice. Issue Two is overruled. We affirm

the judgment of the trial court.


July 31, 2008
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)
