                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-293-CR


JAMES ASHLEY MAYER                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      James Ashley Mayer appeals from the jury verdict convicting him of two

counts of aggravated sexual assault of a child and two counts of indecency

with a child. The trial judge assessed his punishment at confinement for life on

each aggravated sexual assault count and twenty years’ confinement for each

count of indecency with a child. In three points, appellant contends that the

trial court reversibly erred by admitting the following into evidence at guilt-


      1
          … See Tex. R. App. 47.4.
innocence: that appellant had given alcoholic beverages to the complainant and

her also underage friend, that appellant pushed his son into a wall during a

physical altercation between appellant and the complainant, and a detailed story

about the sexual assault of a child that police found on a computer disk in

appellant’s home. We affirm.

                                  Background

      The complainant, appellant’s daughter, testified that appellant regularly

touched her breasts and genitals, placed his tongue and mouth on her breasts

and genitals, and penetrated her with his finger during an approximately three-

year period when she was between eleven and fourteen years old. He also

attempted to have vaginal intercourse with her, but according to complainant,

he could not complete the act, and all that happened was “genital-to-genital”

contact. During this time, appellant slept in the same bed as the complainant;

he did these things when he thought she was asleep or when they were lying

down in bed. Appellant’s brother and stepsister corroborated the complainant’s

testimony that appellant and the complainant slept in the same bed; for a time,

appellant’s stepsister slept in the bed as well and her brother slept in the same

room on the floor. However, both testified that they were heavy sleepers and

do not recall anything happening between appellant and the complainant.

      To highlight the inappropriate nature of the relationship between appellant

                                       2
and the complainant, the State offered evidence under article 38.37 of the code

of criminal procedure, which the trial court admitted over appellant’s objections.

Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2008).              First, the

complainant and her brother both testified about an argument between

appellant and the complainant. During the argument, appellant slapped the

complainant; when her brother tried to intervene, appellant pushed him into the

wall. The complainant then pushed appellant down the nearby stairs. The next

day, complainant’s brother skipped school, and appellant kicked him out of the

house.

      Next, the complainant, her brother, and her former best friend testified

that when the complainant was in the seventh grade, appellant gave her and

her friends alcoholic beverages and that the complainant became intoxicated.

Specifically, both the complainant and her former best friend, whom she had

not seen since they were in the eighth grade, testified that appellant, a former

bartender, made them “Buttery Nipple” shots and gave them wine coolers.

      Finally, the trial court admitted evidence found by police when they

searched appellant’s home:     a story on a computer disk entitled “My First

Child,” which is a detailed, graphic account of the sexual assault of a child with

the same first name as complainant by a perpetrator having the same first name

as appellant. Although many of the details in the story are different from what

                                        3
the complainant testified to, some of the acts are similar.

      Appellant’s three points on appeal complain about the trial court’s

admission of these extraneous acts.

                             Standard of Review

      We review a trial court’s decision to admit or to exclude evidence under

an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542

(Tex. Crim. App. 2000); Davis v. State, No. 02-07-00177-CV, 2008 WL

3918050, at *4 (Tex. App.—Fort Worth Aug. 26, 2008, pet. filed). A trial

court does not abuse its discretion as long as the decision to admit or to

exclude the evidence is within the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on

reh’g); Davis, 2008 WL 3918050, at *4. And it cannot be said that the trial

court’s decision falls outside that zone if it can be supported under any theory

of law, regardless of whether the theory was raised at trial. Davis, 2008 WL

3918050, at *4; Lincicome v. State, 3 S.W.3d 644, 649 (Tex. App.—Amarillo

1999, no pet.).




                                       4
                   Evidence Admitted Under Article 38.37

      The State argued that the shoving incident and appellant’s giving alcohol

to the complainant and her friend were admissible under code of criminal

procedure article 38.37 as evidence of the relationship between the appellant

and complainant.   Under article 38.37, in a case involving sexual offenses

against a child, evidence of extraneous offenses “committed by the defendant

against the child” are admissible notwithstanding rules 404 and 405 “for its

bearing on relevant matters,” including the state of mind of the defendant and

the child and the previous and subsequent relationship between the defendant

and the child. Tex. Code Crim. Proc. Ann. art. 38.37, §§ 1–2; see Tex. R.

Evid. 404, 405. Appellant argues that evidence about him giving alcohol to the

complainant’s friend and evidence that he pushed her brother is not evidence

of extraneous offenses committed against the complainant and, thus, none of

the evidence is admissible under article 38.37. The State contends, however,

that this evidence is same transaction contextual evidence.

      Evidence About Alcoholic Beverages

      The State introduced the evidence about appellant giving the girls

alcoholic beverages to show that appellant favored the complainant.2 Other


      2
       … It also adduced other evidence from the complainant and her brother
that appellant favored the complainant. Because the complainant did not come

                                      5
testimony in this same vein was that after the complainant moved out of the

house, appellant bought her a car and paid her bills; he did not do the same for

her brother.    According to the State, appellant’s giving alcohol to the

complainant’s friends was an act directed at the complainant, not just her

friends, and further exemplified the inappropriate relationship between appellant

and the complainant.

      Appellant objected to the admission of this testimony for two reasons:

(1) appellant’s giving the girls alcoholic beverages was not temporally related

to the sexual conduct, nor was it a part of the sexual offenses; and (2) it was

overly prejudicial because it tended to show only character conformity. When

the State repeatedly urged the admission of the evidence under article 38.37,

appellant did not object that the extraneous matter was inadmissible because

the acts were directed at someone other than the complainant.          However,

appellant’s complaint on appeal is that evidence of bad acts against a third

party is not admissible to show relationship under article 38.37. Accordingly,

appellant’s complaint on appeal does not comport with his complaint at trial

and, thus, is not preserved for our review.      See Heidelberg v. State, 144




forward with her allegations against appellant until she was almost twenty
years old, the State contended that this evidence of favoritism helped show
why she took so long to tell anyone what appellant had done.

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S.W.3d 535, 538 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 54

(Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997). Moreover, the trial

court did not abuse its discretion by admitting the evidence as to the

complainant under article 38.37 because it serves to show, among other things,

appellant’s inappropriate treatment of the complainant as adult-like. See Tex.

Code Crim. Proc. Ann. art. 38.37; cf. Jones v. State, 119 S.W.3d 412, 418,

420 (Tex. App.—Fort Worth 2003, no pet.) (holding that appellant’s act of

providing alcohol to groups of girls before trying to take off their swimsuit tops

and bottoms was relevant to show how appellant’s inappropriate relationship

with complainant developed through group activities directed at girls

simultaneously). We overrule appellant’s second point.

      Evidence About Shoving Incident

      Appellant also contends that the evidence about his shoving his son, the

complainant’s brother, during an argument with the complainant is not

admissible under article 38.37 because his physical act towards his son was

not directed at the complainant. At trial, he objected that the physical assault

had “to do with [the complainant’s brother], not” the complainant. The trial

court determined that the conduct was admissible because it occurred “in front

of [the complainant] and it was violence against [her] and it explains why [she]

was in the relationship she was with the [appellant] and alone in the house.”

                                        7
       Here, we cannot conclude that the trial court abused its discretion in

admitting this evidence under article 38.37.       Although the physical act of

appellant’s shoving his son was not a discrete act of physical violence against

the complainant, it occurred within the context of acts of violence by appellant

against her and is further evidence of appellant’s attempts to keep his son out

of the relationship between him and his daughter. See Jones, 119 S.W.3d at

420 (holding that it was difficult to separate acts against third parties from acts

against complainant because acts were directed at group). Appellant contends

that the evidence does not tend to show that he kicked his then eleven or

twelve year old son out of the house because he tried to interfere in the fight

because there is also evidence that his son skipped school the day after (also

the day he was thrown out) and had behavior problems. However, appellant

was able to cross-examine both the complainant and her brother about these

alternative reasons that appellant may have had for kicking him out.

      Moreover, even if the trial court admitted this evidence in error, we

discern no harm. The State did not dwell on or emphasize this evidence; it was

a small part of the trial. And appellant’s shoving his son is not as egregious as

the acts alleged against his daughter and is just as disturbing as the admissible

testimony about appellant’s slapping his daughter in the same episode. See

Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002). Accordingly,

                                        8
we also overrule appellant’s third point.

                       Evidence Admitted Under Rule 404(b)

      Appellant also complains about the admission of a typewritten graphic,

detailed story depicting the sexual assault of a six-year-old girl with the same

name as the complainant by a perpetrator with the same name as appellant.

Police found the disk in appellant’s home on a computer table, along with other

personal items such as a cap and hunting knife, in a room that appeared to be

appellant’s office.    Included on the disk were file folders with the names,

“James A. Mayer,” “Jim’s,” and “Jim’s documents.”

      The State offered the evidence to show appellant’s “intent to arouse or

gratify [his] sexual desire,” a required element of the indecency counts under

the statute and as alleged in the indictment. See Tex. Penal Code Ann. §

21.11(a)(1), (c) (Vernon 2003).     Appellant objected that the evidence was

being offered solely to prove character conformity and that it was not

admissible because appellant had not attempted to rebut any evidence of intent

other than by placing the offense at issue by pleading not guilty. The trial court

admitted the evidence because “of the similarities between the story and the

offense now on trial and the fact that the [appellant] possessed it[, which] goes

to show his intent.”

      The State first contends that appellant failed to preserve error on this

                                        9
point because he did not object on the basis that intent can be inferred from the

acts themselves and thus that the State had no need for intent evidence.

However, appellant did object to the evidence under 404(b) on the ground that

there must be some rebuttal from the defense first as to intent before the State

can admit 404(b) evidence for the purpose of showing intent. When a party

attempts to adduce evidence of extraneous acts, the opponent of that evidence

must object in a timely fashion to preserve error on appeal. Montgomery, 810

S.W.2d at 387. Appellant did so here. After the opposing party so objects, “it

is incumbent upon the proponent of the evidence to satisfy the trial court that

the ‘other crime, wrong, or act’ has relevance apart from its tendency ‘to prove

character of a person in order to show that he acted in conformity therewith.’”

Id. (quoting Tex. R. Evid. 404(b)).     Thus, once appellant objected to the

evidence, it was the State’s burden, not appellant’s, to show that it was

admissible for intent purposes. We find no authority requiring appellant to

object again after the trial court’s ruling that such evidence is admissible.

Accordingly, we hold that appellant properly preserved this complaint for our

review.

      “Intent can be characterized as a contested issue for purposes of

justifying the admission of extraneous offense evidence to help prove intent if

the required intent for the primary offense cannot be inferred from the act itself

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or if the accused presents evidence to rebut the inference that the required

intent existed.” Ludwig v. State, 969 S.W.2d 22, 30 (Tex. App.—Fort Worth

1998, pet. ref’d); Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.—Austin

1996, pet. ref’d). Extraneous evidence offered to prove intent is not relevant

if the State's direct evidence clearly establishes the intent element and that

evidence is not contradicted by appellant nor undermined by appellant’s

cross-examination of the State’s witnesses. Rankin v. State, 974 S.W.2d 707,

719 (Tex. Crim. App. 1998); Hernandez v. State, 203 S.W.3d 477, 479 (Tex.

App.—Waco 2006, pet. ref’d); see also Thrift v. State, 134 S.W.3d 475, 478

(Tex. App.— Waco 2004), aff’d, 176 S.W.3d 221 (Tex. Crim. App. 2005).

Additionally, after the defendant claims lack of intent, it can no longer be

inferred from other uncontested direct evidence, and the State may prove intent

through extraneous acts under rule 404(b).         Ludwig, 996 S.W.2d at 30;

Johnson, 932 S.W.2d at 302.

      Here, appellant did not claim a lack of intent, nor did he inject it into the

proceedings in any way, including during voir dire questioning. He did not

testify or put on any evidence, and his counsel did not make an opening

statement to the jury. Counsel’s cross-examinations of witnesses were limited

to confirming details of testimony and, for example, as to the physical

confrontation, eliciting testimony that appellant’s son had also skipped school

                                       11
the day he was kicked out of the house. The only evidence of intent in this

case was elicited by the State on direct in the form of the complainant’s

description of appellant’s acts,3 her opinion that they were intended to gratify

his sexual desire, and her testimony that appellant had asked her to “flash” him

her breasts and to pull down her pants so that he could see her “p - - - -,“ but

that he did so jokingly, so that she would think he was being playful.4

Accordingly, the 404(b) evidence was not admissible as a result of any claim

by the defense of a lack of intent.

      Moreover, here, appellant’s intent was inferable from the acts themselves

and the circumstances surrounding them. See Murray v. State, 24 S.W .3d

881, 886–87 (Tex. App.—Waco 2000, pet. ref’d) (holding that appellant’s

using crude term “p - - - -“ showed intent for encounter to be sexual in nature);

Castillo v. State, 910 S.W.2d 124, 128 (Tex. App.—El Paso 1995, pet. ref’d,




      3
      … In addition to the acts that occurred while appellant and the
complainant were in bed, appellant also would reach up the complainant’s shirt
or down her pants whenever they were wrestling or playing during the day.
The complainant testified that appellant tried to be sneaky about it, but he
knew it made her uncomfortable.
      4
         … Specifically, the complainant testified, “[W]henever he did things, he
did it in a playful manner, so I would be more comfortable and more receptive
to it.” She also stated that when he went too far, “he would . . . turn [it]
into . . . like a wrestling thing, like we were playing.” If she told him to stop,
he would get angry and not speak to her for a couple of days to up to a week.

                                       12
untimely filed) (holding that intent was inferable from appellant’s touching

complainant’s genital area “many, many times” both outside and under her

clothes and acting strangely and guilty after complainant told her mother);

Garcia v. State, 827 S.W.2d 27, 30–31 (Tex. App.—Corpus Christi 1992, no

pet.) (holding that appellant’s rubbing breasts of child from behind like a

massage was sufficient to show intent to gratify); cf. Powell v. State, 137

S.W.3d 84, 87–88, 90 n.3 (Tex. App.—Tyler 2000) (holding that intent for

indecency purposes could be inferred from complainant’s repeatedly waking up

to appellant’s touching her vaginal area while she was sleeping in room with

other sleeping children), rev’d on other grounds, 63 S.W.3d 435 (Tex. Crim.

App. 2005). Accordingly, we conclude and hold that the trial court abused its

discretion by admitting the story for purposes of showing appellant’s intent to

gratify his sexual desire. We must therefore determine if the admission of the

evidence was harmful.5 Tex. R. App. P. 44.2.

      Error in the admission of evidence under rule 404(b) is nonconstitutional

error governed by rule 44.2(b). See Solomon v. State, 49 S.W.3d 356, 365


      5
       … The State also contends that the evidence is nevertheless admissible
to show motive. However, if the acts and surrounding circumstances
themselves show an intent to gratify appellant’s sexual desire, they must also
in and of themselves show motive, i.e., the intent to gratify appellant’s sexual
desire by fondling the complainant. Thus, as with intent, the State had no need
for the evidence.

                                      13
(Tex. Crim. App. 2001); Martin v. State, 176 S.W.3d 887, 897 (Tex.

App.—Fort Worth 2005, no pet.). Thus, we must review the entire record to

determine if the error affected a substantial right of appellant’s; a substantial

right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. Tex. R. App. P. 44.2(b); King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall

v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort Worth 1998, pet. ref’d).

      Here, there is no denying that the story is prejudicial; it describes a

fantasy about heinous acts against a six-year-old girl in detail. It was read to

the jury.   The State discussed the story during its closing argument,

emphasizing that “it speaks volumes” that the story was entitled “My First

Child” and the complainant was appellant’s first child, that the girl in the story

was prepubescent as was the complainant, and that the names were the same.

But this argument was also within the context of urging the jury to consider the

story as evidence of appellant’s intent to gratify his sexual desires. In her

closing argument, defense counsel pointed out the vileness of the story and

specifically reminded the jury that it could not convict based on the horrible

nature of it and that it had to “look at the evidence of what [the complainant]

told you, the witness and the facts of this case, to discern whether you believe

                                       14
those allegations beyond any reasonable doubt.” The remainder of her closing

argument focused on the complainant’s credibility, emphasizing the generalness

of her testimony, the time between the abuse and the complainant’s outcry,

and the fact that she never tried to get away from appellant.6 In rebuttal, the

State argued in favor of the complainant’s credibility, then ended by discussing

the evidence showing that the story had to have been appellant’s and asked,

      [W]hat would any person have reason to have this kind of horrible,
      sick, twisted document, other than they wanted it. I mean, there’s
      nobody who would want this, other than somebody who abuses
      children or thinks about it. And it just so happens to be that the
      names on this are [appellant] and [the complainant]. Isn’t that a
      little bit too much coincidence now?

      As appellant points out, there is no evidence that he authored the story

or that it is even about the complainant. But although the story describes some

of the acts testified to by the complainant, it describes additional acts and

involves strangers.   The defense was able to cross-examine one of the

detectives about the circumstances surrounding the disk and that it was not in

a secure area. Defense counsel was also able to elicit testimony that the story

was not located in any of the folders labeled James or Jim and that the




      6
      … The complainant told her grandfather about the abuse in 2006 when
she was about twenty years old.

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detective did not know when the story was put on the disk.7 Thus, it is evident

that the jury had before it the means to discern the difference between the

complainant’s testimony and the story here; even if it had believed appellant

possessed the story as a fantasy, it is clearly not a description of what occurred

between appellant and the complainant, at least how the complainant described

their relationship.

      The complainant’s testimony in this case was clear and unequivocal.

Although the defense described her testimony as lacking in detail, she described

specific instances of misconduct by appellant—the “flashing,” being “sneaky”

by touching her while they were wrestling, trying to penetrate her one night—as

well as a continuous pattern of touching her with his hands and mouth, and

making her touch him, at night in bed. Her stepsister and brother corroborated

her testimony that appellant routinely slept in the same bed with his daughter

when she was between eleven and fourteen while her brother slept on the floor

or in another room. And the State also presented other evidence that appellant

did not have an appropriate relationship with his adolescent daughter.

      Considering the entire record in this case and the nature and strength of

the evidence supporting the verdict, we cannot say that the error, although


      7
       … He did testify that there was a date, January 25, 2001, associated
with the disk, but he did not know what that date meant.

                                       16
undoubtedly troubling, had a substantial and injurious effect or influence in

determining the jury’s verdict. See Tex. R. App. P. 44.2(b); King, 953 S.W.2d

at 271. Accordingly, we overrule appellant’s first point.

                                 Conclusion

      Having overruled appellant’s three points, we affirm the trial court’s

judgment.




                                                PER CURIAM

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2008




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