                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00437-CR

HORREESE BERNARD BAILEY,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2008-1695-C2


                           MEMORANDUM OPINION


       Appellant, Horreese Bernard Bailey, challenges his conviction for sexual assault,

a second-degree felony. See TEX. PENAL CODE ANN. § 22.011(a), (f) (West 2011). In two

issues, Bailey contends that the trial court erred:     (1) by allowing evidence of an

extraneous sexual assault for irrelevant purposes other than establishing “consent”; and

(2) in instructing the jury that it could consider evidence of an extraneous sexual assault

for purposes not relevant to the trial. For the reasons expressed herein, we affirm.
                                    I.    BACKGROUND

        On the morning of July 7, 2007, Shawn Etchison, an officer with the Waco Police

Department, was dispatched to Providence Hospital in McLennan County, Texas, to

investigate an alleged sexual assault. Upon arriving at the hospital, Officer Etchison

interviewed Amanda Goggans, a patient at the hospital. Initially, Goggans was upset,

crying, and non-responsive to Officer Etchison’s questioning; however, she later

accused Bailey of raping her. Thereafter, Goggans submitted to a sexual-assault exam.

        Officer Etchison then questioned Bailey about Goggans’s allegations. Bailey, a

nurse at the hospital, admitted to having sexual intercourse with Goggans while

Goggans was a patient at the hospital, but he claimed that the interaction was

consensual. Bailey gave a written statement to police in which he recounted his version

of the encounter. In particular, Bailey contended that he was Goggans’s nurse and that

Goggans and a friend who was visiting flirted with him on the evening of the incident.

Bailey also alleged that Goggans kissed him and initiated the sexual encounter and that

she gave him her contact information after the encounter. Subsequently, investigators

requested a buccal swab from Bailey’s mouth to compare with the results from

Goggans’s sexual-assault exam.      Erin Casmus, a forensic scientist with the Texas

Department of Public Safety, confirmed that DNA extracted from semen detected on

vaginal and anal swabs from Goggans was indeed Bailey’s.

        Goggans testified that she had been admitted to the hospital a few days prior to

the incident because of pneumonia. Goggans recalled seeing Bailey before on the same

floor in April 2007, when her mother was a patient at the hospital. Melanie Alvarado,

Bailey v. State                                                                   Page 2
previously a nurse technician at the hospital, testified that Bailey requested that the

charge nurse, Brenda Mauk, add Goggans as an additional patient for his rounds.

Mauk granted Bailey’s request; thus, he served as Goggans’s nurse during her stay at

the hospital.

        On the evening of the incident, Goggans’s friend, Sarah Reyes, visited Goggans

in the hospital. According to Reyes, Bailey entered Goggans’s room on two occasions

during Reyes’s visit, but Reyes and Bailey did not interact beyond an introduction.

Bailey, on the other hand, asserted that Reyes and Goggans were giggling and flirting

with him while he was in Goggans’s room. Specifically, in his written statement, Bailey

alleged that Reyes and Goggans were “making eyes” at him and that they were “talking

about my [Bailey’s] butt and how good I look.” In any event, after Reyes left, Bailey

entered Goggans’s room numerous times.1 Goggans alleged that, at this time, Bailey

began to make flirtatious comments about her appearance and helped her brush her

hair. At some point during the early morning hours of July 7, 2007, Goggans requested

a breathing treatment. However, Goggans testified that prior to getting the breathing

treatment, Bailey climbed into the hospital bed with her, licked her ear, and attempted

to remove her pants. Thereafter, Bailey allegedly groped Goggans’s breasts, stuck his

finger in her vagina, and penetrated her vagina with his penis from behind.


        1 The record indicates that the hospital used technology that tracked the whereabouts of the
hospital’s nurses. The tracking technology revealed that Bailey visited Goggans’s room twenty-six times
for the twelve-hour period from 7:00 p.m. on July 6, 2007 to 7:00 a.m. on July 7, 2007. In comparison, the
next most frequented room by Bailey was the room adjacent to Goggans’s, which Bailey visited sixteen
times during the relevant time period. In addition, the hospital’s tracking technology and security
cameras indicated that Bailey removed his tracking device just before the time that Goggans alleged she
was sexually assaulted.


Bailey v. State                                                                                    Page 3
        Later that night, once she was alone, Goggans called her sister to tell her about

the incident. Goggans’s sister then called the hospital and spoke to Nurse Mauk, who

recalled that Goggans’s sister asked for the identities of all the nurses working that

night and threatened legal action.2 After speaking with Goggans’s sister, Nurse Mauk

immediately met with Goggans, who was extremely upset at this time. Goggans told

Nurse Mauk that Bailey had raped her. Upon receiving this information, Nurse Mauk

contacted her supervisor and the police were called.

        Nurse Mauk then confronted Bailey in the hospital’s break room. With regard to

her conversation with Bailey, Nurse Mauk recalled the following:

               He [Bailey] told me that, yes, he had had sex with her. He told
        me—because I asked him. He told me it was consensual, that she had
        been begging him to all night long or whatever. I told him, no, you can’t
        do that, it doesn’t matter. He kept on insisting that it was consensual, but
        yet he was very nervous. And—

                  ....

                Well, at one point he pulled out a piece of paper and it was—it
        looked like it was in female handwriting and it was kind of, like, in a pink
        ink. And it had her name, address[,] and telephone number on it. And he
        said, see, see, see, she gave me her telephone number. And I still told him,
        I said, you still can’t do that, you know. I even asked him, did you miss
        ethics that day they taught it in nursing school. I mean, we were taught
        that you can’t under any circumstances have sex with a patient.

Nurse Mauk then spoke to Goggans again regarding Bailey’s version of the story.

Goggans noted that she gave Bailey her phone number because he had continually




        2During questioning by Bailey’s trial counsel on cross-examination, Goggans admitted that she
brought a claim against the hospital pertaining to the incident and that she recovered a $150,000
settlement from the hospital.

Bailey v. State                                                                               Page 4
harassed her for it. Nurse Mauk also testified that, after she spoke to Goggans and

Bailey, Bailey tried to go into Goggans’s room several times, which she prevented.

          At trial, the State was allowed to present evidence of an extraneous offense with

which Bailey was involved.        Over Bailey’s objection, the State presented evidence

showing that Bailey had allegedly sexually assaulted another patient at the hospital a

few days before the incident with Goggans. Prior to presenting this evidence, the State

argued that the evidence was admissible because Bailey had raised the issues of consent

and falsification of testimony for pecuniary gain.        The State also argued that the

extraneous-offense evidence was admissible because of the similarities of the alleged

crimes and because the evidence is relevant to consent, credibility, and opportunity.

Relying on this Court’s opinion in Yarbrough v. State, No. 10-06-00328-CR, 2008 Tex.

App. LEXIS 9056, at **4-7 (Tex. App.—Waco Nov. 26, 2008, pet. ref’d) (mem. op., not

designated for publication) and Texas Rule of Evidence 404(b), the trial court overruled

Bailey’s objection and admitted the extraneous-offense evidence.         See TEX. R. EVID.

404(b).

          Nurse Peggi Sheppard testified that, on July 3, 2007, she performed a sexual-

assault examination on another hospital patient, Pamela Barajas, who also claimed that

Bailey had raped her. Sheppard recounted that Barajas told her that, on July 2, 2007,

Bailey climbed onto her when she was asleep, kissed both sides of her neck, raped her,

and threatened to kill her and her family if she told anyone about the incident.

Afterwards, Barajas gave Bailey her phone number.




Bailey v. State                                                                      Page 5
        Subsequent to Barajas’s outcry, Bailey was interviewed by Andrew Degnan, then

a detective in the Special Crimes Unit at the Waco Police Department. Degnan recalled

that Bailey initially told him that “he did not have sexual intercourse with that woman

[Barajas], that she was coming onto him.”                  However, Bailey’s story later changed.

Degnan testified that Bailey told him that “she [Barajas] jerked him off, inserted his

penis in her mouth and was licking it and eventually it led to where she pulled him on

top of her and his penis inserted into her vagina and they had sex.” Bailey also said

that the sex with Barajas was consensual, Barajas was flirting with him, and Barajas

wanted to give him her phone number. In any event, a sexual-assault exam was

performed on Barajas, which excluded Bailey. But, Barajas’s husband testified that, on

the night of the incident, his wife had gone home, showered, and douched.3

        At the conclusion of Nurse Sheppard and Degnan’s testimony, the trial court

gave the jury a limiting instruction, citing the purpose of the extraneous-offense

evidence in terms of Texas Rule of Evidence 404(b). See id. Specifically, the trial court’s

instruction was as follows:

        All right. Ladies and gentlemen of the jury, you are instructed that if
        there is any testimony before you in this case regarding the Defendant
        having committed any offenses, if any, other than the offense alleged
        against him in the indictment, 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, and
        even then you may only consider the same in determining the motive,
        opportunity, intent, preparation, plan, knowledge, identity[,] or absence of
        mistake or accident on the part of the Defendant, if any, in connection
        with the offense, if any, alleged against him in the indictment in this case
        and for no other purpose.

        3   Barajas’s husband also testified that his wife passed away from a heart attack on March 22, 2009.

Bailey v. State                                                                                       Page 6
In fact, the trial court gave this instruction a couple times during the latter parts of the

guilt-innocence phase of trial. Neither Bailey nor the State objected to the instruction or

indicated that the instruction was somehow inadequate.4

        At the conclusion of the evidence, the jury found Bailey guilty of sexual assault

and sentenced him to twenty years’ incarceration in the Institutional Division of the

Texas Department of Criminal Justice. See TEX. PENAL CODE ANN. § 22.011(a). This

appeal followed.

                                 II.     EXTRANEOUS-OFFENSE EVIDENCE

        In his first issue, Bailey asserts that the trial court erred in admitting extraneous-

offense evidence pertaining to the Barajas incident over his objection. Specifically,

Bailey contends that the extraneous-offense evidence was admitted for irrelevant

purposes other than the only relevant purpose which was “consent.”




        4   The jury charge contained the following instruction regarding extraneous-offense evidence:

        You are instructed that if there is testimony before you in this case regarding the
        defendant having committed any offenses, if any, other than the offense alleged against
        him in the indictment in this case, 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, and even then you may only consider the
        same in determining the motive, opportunity, intent, preparation, plan, knowledge,
        identity, or absence of mistake or accident on the part of the defendant, if any, in
        connection with the offense, if any, alleged against him in the indictment in this case, and
        for no other purpose.

Bailey did not object to this jury instruction at the charge conference.

Bailey v. State                                                                                        Page 7
A.      Applicable Law

        “An appellate court reviewing a trial court’s ruling on the admissibility of

evidence must utilize an abuse-of-discretion standard of review.” Weatherred v. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court’s ruling will be upheld if it is

found to be within the zone of reasonable disagreement. See id.; Sexton v. State, 93

S.W.3d 96, 99 (Tex. Crim. App. 2002). A trial court’s ruling on extraneous-offense

evidence is generally within the zone of reasonable disagreement “if the evidence

shows that 1) an extraneous transaction is relevant to a material, non-propensity issue,

and 2) the probative value of that evidence is not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury.” De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997)).

        “An appellate court would misapply the appellate abuse of discretion standard

of review to reverse a trial court’s admissibility decision solely because the appellate

court disagreed with it.” Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).

A trial court’s ruling on the admissibility of evidence will be upheld if the record

reasonably supports the ruling and is correct under any theory of law applicable to the

case. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

        Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. TEX. R. EVID. 404(b). It

may, however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.

Bailey v. State                                                                     Page 8
“The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively

exhaustive.” De La Paz, 279 S.W.3d at 343. “‘Rule 404(b) is a rule of inclusion rather

than exclusion.’” Id. (quoting United States v. Bowie, 232 F.3d 923, 929, 344 U.S. App.

D.C. 34 (D.C. Cir. 2000)). “The rule excludes only that evidence that is offered (or will

be used) solely for the purpose of proving bad character and hence conduct in

conformity with that bad character.” Id. (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex.

Crim. App. 1996)).

        Rebuttal of a defensive theory is one of the permissible purposes for which

extraneous-offense evidence may be admitted. See Moses v. State, 105 S.W.3d 622, 626

(Tex. Crim. App. 2003). Further, extraneous offenses are admissible to rebut theories

raised by the testimony of a defense witness during direct examination or a State’s

witness during cross-examination. See Daggett v. State, 187 S.W.3d 444, 453-54 (Tex.

Crim. App. 2005); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996).

B.      Discussion

        The record reflects that, throughout the entire guilt-innocence phase of trial,

Bailey’s defensive theory was that Goggans consented to the sexual encounter. And,

Bailey admits as much in his appellate brief. Relying on the Texas Court of Criminal

Appeals’ decision in Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007), this

Court has noted that “when the defensive theory of consent is raised in a prosecution of

sexual assault, the defendant necessarily disputes his intent to engage in the alleged

conduct without the complainant’s consent and places his intent to commit sexual

assault at issue.” Yarbrough v. State, 2008 Tex. App. LEXIS 9056, at *6. Therefore,

Bailey v. State                                                                      Page 9
because his defensive theory centered on consent, Bailey necessarily challenged the

intent element of the crime. See id.; see also Casey, 215 S.W.3d at 880. And as such, under

Rule 404(b), the State was entitled to present extraneous-offense evidence to rebut

Bailey’s defensive theory. See TEX. R. EVID. 404(b).

        We also note that the nature of the extraneous-offense evidence presented by the

State also likely fell within the opportunity and plan exceptions contained in Rule

404(b) and as evidence of modus operandi, especially considering the numerous

similarities between the Barajas incident and the incident in this case. See TEX. R. EVID.

404(b); see also Webb v. State, 995 S.W.2d 295, 298 (Tex. App.—Houston [14th Dist.] 1999,

no pet.) (noting that when the State seeks to admit extraneous-offense evidence under a

theory of modus operandi, the State must show the extraneous-offense which was

committed by the defendant was so nearly identical in method to the charged offense as

to earmark them as the handiwork of the accused (citing Owens v. State, 827 S.W.2d 911,

915 (Tex. Crim. App. 1992))).

        Nevertheless, Bailey also appears to argue that the trial court’s limiting

instruction was erroneous because it instructed that the jury could consider the

extraneous-offense evidence for not only the issue of consent but also “motive,

opportunity, . . . preparation, plan, knowledge, identity, and absence of mistake or

accident.” We first note that the list contained in the trial court’s limiting instruction

tracks the list contained in Rule 404(b), which is the rule of evidence pertaining to the

admissibility of evidence of other crimes, wrongs, or acts. See TEX. R. EVID. 404(b); see

also Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (holding that a jury

Bailey v. State                                                                     Page 10
instruction that tracks statutory language “will not be deemed error on the part of a trial

judge”). In addition, Bailey neither objected to the instruction provided nor did he

request a different limiting instruction that he deemed to be appropriate in this case.

See TEX. R. APP. P. 33.1(a)(1) (providing that a timely, specific objection is required to

preserve an argument for appellate review); TEX. R. EVID. 105 (stating that, upon

request, the trial court “shall restrict the evidence to its proper scope and instruct the

jury accordingly; but, in the absence of such request the court’s action in admitting such

evidence without limitation shall not be a ground for complaint on appeal”); see also

Lacaze v. State, 346 S.W.3d 113, 121-22 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(holding that where the trial court instructs the jury not to consider evidence for the

truth of the matter asserted, “any error with respect to the hearsay instruction has not

been preserved for our review in the absence of appellant’s request for a different

instruction in the trial court”).

        And finally, the Texas Court of Criminal Appeals has held that even if evidence

is admitted for the wrong reason, but is admissible for another reason, a reviewing

court will not find reversible error. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990); Deleon v. State, 126 S.W.3d 210, 214 n.3 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d); see also Perez v. State, No. 07-10-0147-CR, 2011 Tex. App. LEXIS 5724, at *16

n.13 (Tex. App.—Amarillo July 26, 2011, pet. dism’d) (mem. op., not designated for

publication). Therefore, even if the trial court admitted the extraneous-offense evidence

for other purposes outlined in Rule 404(b), which, as Bailey argues, may not be

applicable, the fact that the evidence is admissible under the opportunity, plan, and

Bailey v. State                                                                     Page 11
intent exceptions to Rule 404(b) and as evidence of modus operandi does not support a

finding of reversible error. See Romero, 800 S.W.2d at 543; Deleon, 126 S.W.3d at 214 n.3;

see also Perez, 2011 Tex. App. LEXIS 5724, at *16 n.13.

        Therefore, based on the foregoing, we cannot conclude that the trial court’s

ruling was outside the zone of reasonable disagreement. See De La Paz, 279 S.W.3d at

344; see also Weatherred, 15 S.W.3d at 542. Accordingly, the trial court did not abuse its

discretion in admitting the extraneous-offense evidence over Bailey’s Rule 404(b)

objection. See Weatherred, 15 S.W.3d at 542. Bailey’s first issue is overruled.

              III.   THE EXTRANEOUS-OFFENSE INSTRUCTION IN THE JURY CHARGE

        Bailey’s second issue is strikingly similar to his first issue, except that it pertains

to the jury charge. In particular, he argues that the extraneous-offense instruction in the

jury charge is erroneous because it does not instruct the jury to only consider the

extraneous-offense evidence for the purpose of “consent.”

A.      Applicable Law

        In analyzing a complaint of jury-charge error, we first determine whether or not

there was an error in the charge. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003). If we find that there was an error, we must then determine if the error

caused sufficient harm to warrant reversal. Id. The standard for determining harm

depends on whether or not an appellant properly preserved error in the jury charge. Id.

Reversal is required for a jury-charge error when the defendant has properly objected to

the charge and we find “some harm” to his rights. Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985). However, as stated earlier, Bailey did not object to the jury

Bailey v. State                                                                         Page 12
charge at the charge conference; therefore, assuming charge error, Bailey must show

that the alleged errors caused him to suffer egregious harm. Bluitt v. State, 137 S.W.3d

51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171.          Errors that result in

egregious harm are those that affect the very basis of the case, deprive the defendant of

a valuable right, or vitally affect a defensive theory. Ngo v. State, 175 S.W.3d 738, 750

(Tex. Crim. App. 2005).

        We must review the entire jury charge, the evidence, the arguments of counsel,

and any other relevant information in order to determine whether the alleged error was

so egregious that appellant was denied a fair and impartial trial. TEX. CODE CRIM. PROC.

ANN. art. 36.19 (West 2006); see Almanza, 686 S.W.2d at 171. Thus, we review alleged

charge error by considering: (1) whether error existed in the charge; and (2) whether

sufficient harm resulted from the error to compel reversal. See Posey v. State, 966 S.W.2d

57, 60 & n.5 (Tex. Crim. App. 1998).

B.      Discussion

        In this issue, Bailey appears to complain that the extraneous-offense instruction

in the jury charge does not explicitly reference the term “consent,” which was his only

defensive theory. As we have stated earlier, this Court and the Texas Court of Criminal

Appeals have held that the term “consent” is synonymous with intent—a term that is

contained in Rule 404(b) and was listed in the instruction contained in the jury charge.

See Casey, 215 S.W.3d at 880; see also Yarbrough, 2008 Tex. App. LEXIS 9056, at *6.

Therefore, we cannot say that the instruction in the jury charge improperly excluded

Bailey’s sole defensive theory for consideration by the jury. Furthermore, we note that

Bailey v. State                                                                    Page 13
the extraneous-offense instruction in the jury charge tracks the language of Rule 404(b)

and that Texas courts have held that “[a] jury charge which tracks the language of a

particular statute is a proper charge on a statutory issue.” Riddle v. State, 888 S.W.2d 1, 8

(Tex. Crim. App. 1994); see Martinez, 924 S.W.2d at 699.

        And to the extent that Bailey argues that the language of the jury charge is

erroneous because it does not narrow the Rule 404(b) instruction, we reiterate that the

extraneous-offense evidence presented by the State fell within several of the exceptions

of Rule 404(b); that he did not object to the instruction in the trial court; and that he does

not propose alternate language that should have been used in the charge. See TEX. R.

EVID. 404(b).     In addition, the First Court of Appeals recently addressed a similar

complaint and noted the following:

        In Blackwell v. State, we were presented with a jury charge with nearly
        identical language. We concluded that the charge properly limited the
        jury’s reliance on extraneous[-]offense evidence to rebut a frame-up
        defense because the charge limited the jury’s consideration to the
        exceptions enumerated under Rule 404(b). Although the charge here, like
        the one in Blackwell, instructed the jury that it could consider the
        extraneous[-]offense evidence for any of the Rule 404(b) purposes rather
        than only the one in dispute, we concluded in Blackwell, as we do here,
        that the additional language was mere surplusage that the jury could have
        disregarded as irrelevant. While the jury charge was not as narrowly
        tailored as it could have been, it properly instructed the jury to consider
        the extraneous[-]offense evidence for only the purposes permitted by Rule
        404(b), one of which Brown had disputed at trial. We therefore find no
        error in the charge.

Brown v. State, No. 01-11-00462-CR, 2012 Tex. App. LEXIS 4150, at **19-20 (Tex. App.—

Houston [1st Dist.] May 24, 2012, no pet.) (mem. op., not designated for publication)




Bailey v. State                                                                        Page 14
(internal citations omitted)5; see Blackwell v. State, 193 S.W.3d 1, 16 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d) (concluding that, when lack of intent or motive was a

defensive theory, instructions that the jury could consider extraneous-offense evidence

for no purpose other than those listed in Rule 404(b) properly restricted the jury’s use of

the evidence).

        We conclude that the language of the extraneous-offense instruction contained in

the jury charge in this case properly instructed the jury to consider the extraneous-

offense evidence for only the purposes permitted by Rule 404(b), one of which Bailey

disputed at trial.6 See Blackwell, 193 S.W.3d at 16; see also Brown, 2012 Tex. App. LEXIS


        5The extraneous-offense instruction in the Brown jury charge, which is virtually identical to the
jury-charge instruction in this case, stated the following:

        You are further instructed that if there is any evidence before you in this case regarding
        the defendant’s committing an alleged offense or offenses other than the offense alleged
        against him in the indictment in this case, you cannot consider such evidence for any
        purpose unless you find and believe beyond a reasonable doubt that the defendant
        committed such other offense or offenses, if any, and even then you may only consider
        the same in determining the motive, opportunity, intent, preparation, plan, knowledge,
        identity[,] or absence of mistake or accident of the defendant, if any, in connection with
        the offense, if any, alleged against him in the indictment and for no other purpose.

Brown v. State, No. 01-11-00462-CR, 2012 Tex. App. LEXIS 4150, at **17-18 (Tex. App.—Houston [1st Dist.]
May 24, 2012, no pet.) (mem. op., not designated for publication).

        6We also find it noteworthy that Bailey did not object to the prosecutor’s closing argument
wherein he explained:

                There is testimony [sic] evidence before you about an extraneous offense[,] and
        there’s an instruction from the Court on extraneous offenses. Extraneous offenses are
        admitted for very limited purposes, and the Judge put out an instruction here about why
        you may consider this extraneous offense. Extraneous offenses aren’t put before you so
        you can say, oh, he’s a bad guy, we need to find him guilty. They are put before you for
        particular reasons.

                  ....

        But it’s important that you—that you use this extraneous offense to—for the things it’s
        intended for. And that’s for motive, intent, the lack of consent of Ms. Goggans. And one

Bailey v. State                                                                                      Page 15
4150, at **19-20. We therefore find no error in the charge. See Middleton, 125 S.W.3d at

453; Blackwell, 193 S.W.3d at 16; see also Brown, 2012 Tex. App. LEXIS 4150, at **19-20.

Accordingly, we overrule Bailey’s second issue.

                                            IV.     CONCLUSION

         Having overruled both of Bailey’s issues, we affirm the judgment of the trial

court.




                                                          AL SCOGGINS
                                                          Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 11, 2012
Do not publish
[CR25]




         thing the defense raised during cross-examination of witnesses, oh, that room is so close,
         how would you have the opportunity. Well, there’s no argument that it happened. So,
         obviously, he had the opportunity. But he had the same opportunity with Ms. Barajas
         also to be done against her consent and within close proximity to other people.

Bailey v. State                                                                                       Page 16
