Opinion issued June 25, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-01004-CR
                           ———————————
                        BRIAN VICTORIAN, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1363644


                         MEMORANDUM OPINION

      A jury convicted Brian Victorian of aggravated sexual assault of a child

under age 14.1 He was sentenced to 45 years’ incarceration. In three issues, he

contends: (1) the evidence is insufficient to support his conviction, (2) the trial


1
      TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011).
court abused its discretion by allowing the complainant to testify about extraneous

bad acts over his Rule 403 objection, and (3) the trial court abused its discretion by

admitting into evidence unredacted medical records relating to extraneous bad acts

over his Rule 403 objection. We affirm.

                                    Background

      Victorian is the father of the complainant, Jane. 2 Jane was eleven years old

and lived with her younger sister, her mother, and Victorian. Shortly after starting

sixth grade, Jane confided to three classmates that Victorian had sexually assaulted

her. The classmates informed the school counselor, but when the counselor asked

Jane, she denied the account. A CPS investigator also interviewed Jane. She again

denied that Victorian had abused her and instead claimed that an unknown man

had accosted her at a bus stop.

      Police Detective T. Brinson interviewed Jane and her three classmates. Jane

initially repeated her account of being accosted by a stranger at a bus stop, but she

eventually admitted to Detective Brinson that Victorian had abused her. Victorian

was arrested and charged with sexual assault.

      At trial, Jane gave a detailed description of the sexual assault. Jane also

testified about three earlier incidents. One time, she awoke wearing her pants

backwards and her shirt inside out. Another time, Victorian laid in bed with Jane


2
      To protect the complainant’s identity, we refer to her using this pseudonym.

                                           2
while she was wearing a t-shirt and athletic shorts. Both of these events occurred

when she was nine years old. Finally, Jane testified that Victorian had touched her

breasts and buttocks on at least one other occasion. Victorian objected to these

extraneous acts under Rule 403. See TEX. R. EVID. 403. The trial court overruled

the objection.

      Jane’s mother also testified that in the months before the allegations

surfaced, Jane seemed angry at her father and had begun cutting herself. One night,

she awoke to find her husband, Victorian, in their daughters’ bedroom with the

door locked. However, she also allowed that Jane was not always truthful and that

she never suspected anything inappropriate until Jane’s allegations against

Victorian surfaced.

      The State called several other witnesses, including Dr. Reena Isaac, a child-

abuse pediatrician who examined Jane after Jane reported the alleged abuse to

Detective Brinson. Victorian objected under Rule 403 to a paragraph in Dr. Isaac’s

records reporting Jane’s statement during her examination that Victorian had

sexually assaulted her “like five times.” See TEX. R. EVID. 403. The trial court

overruled the objection. Dr. Isaac’s records included additional statements from

Jane describing the assaults, but indicated no physical evidence of abuse.

      Victorian offered no evidence in his case-in-chief. In closing argument,

Victorian argued that Jane had succumbed to pressure from her classmates and



                                         3
police and made up her allegations against Victorian. The State responded that

Jane was a credible witness and it did not make sense for her to lie.

      The jury convicted Victorian. He timely appealed.

                            Sufficiency of the Evidence

      In his first issue, Victorian contends that the evidence is insufficient to

support his conviction.

A.    Standard of review

      We review a challenge to the sufficiency of the evidence under the standard

announced in Jackson v. Virginia. 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89

(1979); see Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010).

Under the Jackson standard, evidence is insufficient to support a conviction if,

considering all of the record evidence in the light most favorable to the verdict, no

rational factfinder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 317–19, 99 S.

Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).

We consider both direct and circumstantial evidence and all reasonable inferences

that may be drawn from the evidence in making our determination. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      The Jackson standard defers to the factfinder to resolve any conflicts in the

testimony, weigh the evidence, and draw reasonable inferences from “basic facts to



                                          4
ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d

at 778. We presume that the factfinder resolved any conflicts in the evidence in

favor of the verdict and defer to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      Evidence is insufficient when (1) the record contains no evidence, or merely

a “modicum” of evidence, probative of an element of the offense, (2) the evidence

conclusively establishes a reasonable doubt, or (3) the acts that the State alleges, if

true, do not constitute the charged crime. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007); see Jackson, 443 U.S. at 314–19, 99 S. Ct. at 2786–89. If

an appellate court finds the evidence to be insufficient under this standard, it must

reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S.

31, 41, 102 S. Ct. 2211, 2217 (1982).

B.    The complainant’s testimony is sufficient evidence

      Jane, the complainant, testified against Victorian. Generally, “[t]he

testimony of a child victim alone is sufficient to support a conviction” in child sex-

abuse cases. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]

2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). “A conviction under

Chapter 21, Section 20A.02(a)(3), (4), (7), or (8), Section 22.011, or Section

22.021, Penal Code, is supportable on the uncorroborated testimony of the victim

of the sexual offense . . . .” TEX. CODE. CRIM. PROC. ANN. art. 38.07(a) (West



                                          5
Supp. 2014). “We liberally construe testimony given by a child victim of sexual

assault, and as long as the child communicates to the fact finder that the touching

occurred on a part of the body within the definition of the statute, the evidence will

be sufficient.” Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st

Dist.] 2011, no pet.).

      Jane testified that Victorian sexually assaulted her. In particular, Jane

described Victorian unzipping his pants and touching Jane’s “middle part” with his

“middle part.” Using anatomically correct dolls, Jane identified male and female

genitalia as their respective “middle parts.” The State asked Jane, “What did he do

with his middle part when it was touching your middle part?” Jane responded: “He

was holding me down and put his in mine.”

      Victorian concedes that “[t]he testimony of a child victim is sufficient to

support a conviction for the sexual assault of a child.” But he argues that “[Jane]

should not be extended the almost complete deference victims in other sexual

assault cases have been afforded in determining the sufficiency of the evidence”

because: (1) “[c]hild abuse pediatrician Dr. Reena Isaac found no physical

evidence of abuse,” (2) the complainant’s allegation “came on after a friend

revealed her abuse to [Jane],” (3) “[Jane’s mother] acknowledged there were times

her daughter was untruthful,” (4) Jane previously denied that she was abused when




                                          6
asked by CPS and police, (5) Jane’s account of Victorian’s abuse changed over

time, and (6) Jane’s “relationship with [Victorian] was good prior to the incident.”

        We disagree with Victorian for two reasons. First, the credibility of Jane’s

testimony is the province of the jury. Jackson, 443 U.S. at 318–19, 99 S. Ct. at

2788–89; Clayton, 235 S.W.3d at 778. Under Jackson we presume that the jury

found Jane to be credible and defer to that finding. 443 U.S. at 326, 99 S. Ct. at

2793.

        Second, we have upheld the sufficiency of a child-complainant’s testimony

despite similar deficiencies. For example, in Lee, the child-complainant’s

testimony was sufficient to uphold a conviction for indecency with a child despite

no physical evidence of the crime. 176 S.W.3d at 458. And in Martines, we found

sufficient evidence of guilt when the child-complainant testified against the

defendant, but later recanted. 371 S.W.3d at 240.

        Because Jane described Victorian sexually assaulting her and such testimony

from a child-complainant is legally sufficient evidence to support a guilty verdict

on that offense, we conclude that the evidence is sufficient to support the jury’s

guilty verdict. We overrule Victorian’s first issue.




                                           7
                          Objections to Extraneous Acts

      In his second and third issues, Victorian contends that the trial court erred by

admitting evidence of certain extraneous offenses over his Rule 403 objections.

See TEX. R. EVID. 403. We will address each issue in reverse order.

A.    Standard of review

      “A trial court’s ruling on the admissibility of extraneous offenses is

reviewed under an abuse of discretion standard.” Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009). “The test for whether the trial court abused its

discretion is whether the action was arbitrary or unreasonable. An appellate court

should not reverse a trial judge whose ruling was within the zone of reasonable

disagreement.” State v. Mechler, 153 S.W.3d 435, 439–40 (Tex. Crim. App. 2005).

B.    Expert’s evidence

      In his third issue, Victorian contends that the trial court abused its discretion

by failing to redact part of State’s Exhibit Four, which the State offered through its

expert witness, child-abuse pediatrician Dr. Reena Isaac. The exhibit contains

records from Dr. Isaac’s assessment of Jane after Jane reported her abuse.

Victorian objected under Rule 403 to a portion of the exhibit that recorded Jane

reporting additional inappropriate conduct. See TEX. R. EVID. 403. Victorian,

through his attorney, made his objection in these words:




                                          8
      [O]n page four of the actual records . . . the question is, “How many
      times were you touched overall by him inappropriately?” The answer
      appears to be, “Like, five times.”

      Next question, “When was the first time?” The answer was, “Last
      year.”

      The next question, “The last time?” “Two weeks ago.”

      We’re going to object to that in that it talks about the extraneous
      offenses. She has talked specifically about one occasion here, the one
      indicted occasion. And we’re asking that that answer be restricted or
      redacted out of this copy as it is more prejudicial than it is probative.

The court overruled the objection.

      The State contends that Victorian failed to object to other sections of Exhibit

Four that contained the same or similar evidence. We agree. For example, page

three of the exhibit reads: “[Jane] stated that [Victorian] has sexually assaulted her

by putting his penis against/inside her vagina at least 3 times.” And the paragraph

above the objected-to portion reflects Jane’s statement that Victorian touched her

“middle part . . . 4 times.” Victorian objected to neither statement.

      Any erroneous admission of evidence is rendered harmless when “the same

or similar evidence was admitted at another point in the trial without objection.”

Nelson v. State, 405 S.W.3d 113, 130 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d). Because Victorian did not object to portions of the report almost identical to

the objected-to section, he rendered any error harmless. Accordingly, we overrule

Victorian’s third issue. See TEX. R. APP. P. 44.2(a).



                                           9
C.    Complainant’s testimony

      In his second issue, Victorian complains that three episodes related by Jane

to the jury should not have been admitted under Rule 403. See TEX. R. EVID. 403.

In the first, Jane awoke with her pants on backwards and her shirt on inside out. In

the second, Victorian laid in bed with Jane, who was wearing a t-shirt and athletic

shorts. In the third, Victorian touched her breasts and buttocks.

      The State sought to admit this testimony under article 38.37 of the Texas

Code of Criminal Procedure, which reads:

         (b) 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. ANN. art. 38.37 (West Supp. 2014). Article 38.37

overrides the character-evidence proscriptions in Texas Rule of Evidence 404. Id.;

Howland v. State, 966 S.W.2d 98, 103 (Tex. App.—Houston [1st Dist.] 1998),

aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). But evidence that would be




                                          10
admissible under the statute may still be excluded under Rule 403. 3 Martines, 371

S.W.3d at 246.

      “A proper Rule 403 analysis includes, but is not limited to, four factors:

(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.” Mechler, 153 S.W.3d at 440. “There is

a presumption that relevant evidence is more probative than prejudicial.” Howland,

966 S.W.2d at 103.

      1.    The first factor: probative value

      “The first factor looks to the evidence’s probativeness or how compellingly

the evidence serves to make a fact of consequence more or less probable.”

Mechler, 153 S.W.3d at 440. Victorian contends that the extraneous conduct “does

not make any fact of consequence more probable.”

      “[U]nder [article 38.37], the State may permissibly introduce testimony

involving the defendant’s extraneous bad acts when that evidence is relevant ‘to

demonstrate the unnatural attitude and relationship’ between a defendant and his

child victim.” Campos v. State, Nos. 01-13-00415-CR, 01-13-00416-CR, 01-13-


3
      “Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion of the
      issues, or misleading the jury, or by considerations of undue delay, or needless
      presentation of cumulative evidence.” TEX. R. EVID. 403, 61 TEX. B.J. 374, 377
      (Tex. & Tex. Crim. App. 1998, amended 2015).

                                         11
00417-CR, 2015 WL 162123, at *8 (Tex. App.—Houston [1st Dist.] Jan. 13, 2015,

pet. filed) (quoting Sanders v. State, 255 S.W.3d 754, 759 (Tex. App.—Fort Worth

2008, pet. ref’d)). But the first two acts provide almost no evidence of such an

unnatural relationship. In the first, Jane awoke wearing her pants backwards and

her shirt inside out. Jane did not know how her clothes came to be inside out and

did not notice anything else “wrong.” Victorian makes no appearance in the

account and there is no testimony regarding who else was in the house while Jane

slept. In the second, Jane describes her father lying in bed with her, and at one

point, turning on top of her. But the account ends there. Thus, neither episode

clearly indicates any inappropriate relationship prior to the alleged abuse.

      With respect to the third extraneous act, the State contends: “Jane’s

testimony regarding the appellant touching and fondling her breasts and buttocks

not only provided context for the jury to understand how the sexual abuse started,

it showed how the offense related directly to their previous relationship and states

of mind.” We agree. This testimony is evidence of Victorian’s state of mind and

the nature of his relationship with Jane. See Hinojosa v. State, 995 S.W.2d 955,

957 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (complainant’s testimony that

“appellant had touched her at least once a week for ten years” admissible under

article 38.37 to show state of mind); Pool v. State, 981 S.W.2d 467, 469 (Tex.

App.—Waco 1998, pet. ref’d) (in trial for sexual assault of minor, evidence of



                                          12
defendant’s sexual activity with complainant after she became of age admissible to

show subsequent relationship). Evidence is admissible for these purposes under the

express language of article 38.37.

      For the first two extraneous acts, this factor weighs in Victorian’s favor

because the evidence is not especially compelling. But the third extraneous act

demonstrates Victorian’s state of mind and the nature of his relationship with Jane

more clearly than the first two. Thus, for the third act, this factor favors the State.

      2.     The second factor: danger of unfair prejudice

       “The second factor asks whether the evidence has the potential to impress

the jury in some irrational but indelible way.” Mechler, 153 S.W.3d at 440.

      Victorian cites two potential dangers of unfair prejudice. First, he contends

that “the complainant’s testimony cast the appellant as a sexual predator who was

acting in conformity with his character the day of the alleged events.” Normally,

Rule 404 proscribes the admission of character-conformity evidence, and any

danger that the jury will infer from otherwise proper evidence that the defendant

possesses a character trait and acted in conformity therewith is a danger of unfair

prejudice under Rule 403. TEX. R. EVID. 403–04; see Mozon v. State, 991 S.W.2d

841, 846 (Tex. Crim. App. 1999) (character-conformity evidence, if admissible for

another legitimate purpose, is subject to Rule 403 balancing test). But that danger

is not present here because article 38.37 allows the admission of character-



                                           13
conformity evidence. Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston

[1st Dist.] 2011, pet. ref’d, untimely filed); Howland, 966 S.W.2d at 103.

      Second, Victorian contends that any inference of sexual misconduct with a

child is inherently inflammatory. In response, the State supplies three reasons why

the emotional weight of this testimony is limited. First, it notes that Jane did not

mention Victorian in her account of the first extraneous act. Second, the State notes

that the jury charge contained a limiting instruction. 4 Although not dispositive, we

consider such instructions when evaluating the danger of unfair prejudice. Lane v.

State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996); Jaggers v. State, 125 S.W.3d

661, 670 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Third, “her detailed

description of [the assault for which Victorian was convicted] likely overshadowed

any inflammatory response the jury may have had to these acts.”

      In general, courts often conclude that extraneous acts that are not more

heinous than the alleged crime do not carry a danger of further emotional

inflammation. See Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996)
4
      That instruction read:
         You are further instructed that if there is any evidence before you in this
         case regarding the defendant committing other crimes, wrongs, or acts
         against the child who is the victim of the alleged offense 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 crimes, wrongs, or acts against the child, if any, and even then
         you may only consider the same in determining 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, and for no other purpose.

                                           14
(“[T]he first murder, being no more heinous than the second, was not likely to

create such prejudice in the minds of the jury that it would have been unable to

limit its consideration of the evidence to its proper purpose.”); Jones v. State, 119

S.W.3d 412, 422–23 (Tex. App.—Fort Worth 2003, no pet.) (prejudicial effect did

not substantially outweigh probative value of extraneous acts admitted under

article 38.37 when “all of the extraneous acts involving G.V. were less heinous

than the evidence relating to the charged offense involving Jones’s reaching into

G.V.’s pants and touching her.”).

      In Burke v. State, a child-complainant testified that the defendant had

assaulted him on several occasions before the assault for which the defendant was

on trial. 371 S.W.3d at 255. There, the complainant’s account of the offense

included more violent details than his accounts of earlier assaults. Id. at 258.

Therefore, we held that the brief accounts of earlier sexual assaults were not more

inflammatory than the more detailed and shocking account of the charged offense.

Id. at 258. Accordingly, they presented little danger of unfair prejudice. Id.

      But in Montgomery v. State, the Court of Criminal Appeals found some

danger of unfair prejudice from less-heinous extraneous acts of a defendant who

was the parent of the child-complainant. 810 S.W.2d 372, 397 (Tex. Crim. App.

1990). There, the defendant was tried for and convicted of sexually assaulting his

daughter. Id. at 374. The State introduced evidence that the defendant walked



                                          15
around his house naked and visibly aroused in the company of his children. Id. at

375, 397. Because “[a] substantial portion of the State’s case was devoted to

showing such extraneous misconduct, and most of appellant’s evidence was

responsive to it,” the Court of Criminal Appeals found “a grave potential for

decision on an improper basis, as jurors may have lost sight of specific issues they

were called upon to decide and convicted appellant out of a revulsion against his

parental demeanor.” Id. Thus, the Court concluded: “Though relevant, such

evidence has only marginal probative value. By contrast, the danger of unfair

prejudice from such testimony is substantial. Both sexually related misconduct and

misconduct involving children are inherently inflammatory.” Id. at 397.

      Jane’s testimony regarding the first two extraneous acts carried very little

danger of further inflaming the emotions of the jury because Jane did not mention

or describe any unmistakably inappropriate action by Victorian. We therefore

conclude that, for the first two acts, this factor favors the State.

      Jane’s testimony regarding the third extraneous act indicated clear sexual

misconduct by Victorian. This carries some danger of unfair prejudice because, as

with any evidence of sexual misconduct with children, it is inherently distressing.

Id. Evidence of ongoing sexual misconduct may be particularly distressing. See id.

However, the unfairly prejudicial effect of this evidence is limited under Burke

because the acts were less heinous than the crime charged and less heinous than the



                                           16
additional penetrative assaults described in Dr. Isaac’s records. In addition, the trial

court issued a limiting instruction in its charge. Thus, for the third act, this factor

weakly favors Victorian.

      3.     The third factor: time for development

      “The third factor looks to the time the proponent will need to develop the

evidence, during which the jury will be distracted from consideration of the

indicted offense.” Mechler, 153 S.W.3d at 441. Here Victorian concedes that the

State rapidly developed the extraneous-act evidence. Accordingly, this factor

favors the State.

      4.     The fourth factor: necessity

      “The fourth factor focuses on the proponent’s need for the evidence. This

last factor encompasses the issues of whether the proponent has other evidence

establishing this fact and whether this fact is related to a disputed issue.” Id.

Victorian contends that because he “offered no evidence at guilt/innocence, the

complained-of evidence was not necessary to refute a defensive theory.” While he

did not offer evidence, he did advance an alternate theory—that Jane made up her

story. For example, in closing argument, Victorian argued:

      Because remember, [Jane] started off saying it didn’t happen. And
      people just would not leave it alone. What do you do when you’re 11
      years old and somebody asks you the same questions over and over
      and over? Sooner or later you change your answers and you give them
      what they want to hear.



                                          17
         We know she’s not truthful because . . . .

         When, as here, a defendant denies that the criminal act occurred and

contends that the complainant fabricated her account, evidence of similar

extraneous acts may be necessary to corroborate the complainant’s account and

rebut the defensive theory. Montgomery, 810 S.W.2d at 397. However, the need

for the objected-to evidence may diminish if the State offers other compelling

bolstering evidence. See id. at 396 (no need for evidence to show intent when “the

State had other compelling evidence to show appellant touched his children with

the intent to arouse and gratify his own sexual desire.”).

         Here, Jane’s testimony provided the most compelling and specific evidence

of the other bad acts. But the necessity of Jane’s direct testimony was somewhat

diminished by the admittance of Jane’s prior statements in Dr. Isaac’s records.

Further, Jane’s mother testified that she noticed behavioral changes in Jane and had

once caught Victorian in Jane’s room with the door locked. Because this evidence

augmented Jane’s extraneous-acts testimony, this factor only somewhat favors the

State.

         5.    Rule 403 balancing test

         We must uphold the trial court’s conclusion if it is within the zone of

reasonable disagreement. Mechler, 153 S.W.3d at 439–40. Under Rule 403, the

danger of unfair prejudice must substantially outweigh the probative value. TEX. R.



                                            18
EVID. 403. Jane’s account of the first two extraneous acts contained no

unmistakably inappropriate actions by Victorian. Accordingly, the probative value

of this evidence was not great—but neither was the risk of unfair prejudice. In

contrast, the third extraneous act was clearly inappropriate conduct by Victorian

and thus highly probative under article 38.37. But the danger of unfair prejudice,

thought present, was ameliorated because the third act is less heinous than both the

crime charged and other extraneous acts described in Dr. Isaac’s records. In

addition, the jury charge contained a limiting instruction. Further, the evidence did

not take long to develop and was significant, though not essential, in rebutting

Victorian’s fabrication theory. Accordingly, we conclude that the trial court’s

ruling was within the zone of reasonable disagreement. Thus, the trial court did not

abuse its discretion by overruling Victorian’s Rule 403 objection.

      We overrule Victorian’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).


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