                                    NO. 07-11-00269-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     AUGUST 22, 2012


                             MICHAEL DEKNEEF, JR., APPELLANT

                                            v.

                              THE STATE OF TEXAS, APPELLEE


               FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY;

            NO. D-1-DC-10-100020; HONORABLE JIM CORONADO, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                         OPINION

      Appellant, Michael Dekneef, Jr., was convicted of aggravated sexual assault 1 of

a child under the age of six 2 and sentenced to serve fifty-five years in the Texas

Department of Criminal Justice, Institutional Division (TDCJ-ID) and pay a fine of

$10,000. Appellant appeals his conviction in four issues, contending that evidence was

legally insufficient and that the court erred by denying his motion for a mistrial, by




      1
          TEX. PENAL CODE ANN. § 22.021(a)(2) (West Supp. 2012).
      2
          Id. § 22.021(f).
denying his motion to suppress evidence, and by admitting extraneous-act evidence

over his objection. We will affirm.

                              Factual and Procedural History

       During an unrelated Child Protective Services (CPS) investigation, S.R., a nine-

year-old child, made statements indicating some prior sexual abuse. CPS referred S.R.

to the Travis County Sherriff’s Office, which arranged for her to meet with David

Wheeler, a forensic interviewer for the Center for Child Protection. During the interview

with Wheeler, S.R. indicated that appellant, her mother’s former boyfriend, had sexually

abused her. Specifically, S.R. said to Wheeler that appellant “would do inappropriate

things,” such as getting in the bath with her and “sticking his thing into her.” S.R. also

said that appellant “put his tongue into the front part of her hiney” and “put his thingy

into her hiney.” Wheeler determined through the use of anatomical dolls that “hiney”

and “front of hiney” meant her anus and vagina and that “thingy” meant appellant’s

penis. The sexual abuse continued until S.R. told her grandfather, who told appellant to

move out the same day. Appellant moved out of the house in March of 2008.

       After S.R.’s interview with Wheeler, Child Abuse Detective Ramon Lopez twice

contacted appellant by telephone. Both of the telephone calls were recorded, and, in

both calls, appellant identified himself. During the first call, appellant told Lopez that all

of his friends in Houston had kids and that all children loved him. Appellant went on to

say that he did not mind sitting and playing dolls with little girls for hours and that he

sometimes preferred the company of children. During the second phone call, appellant

admitted that he stuck his penis in S.R.’s anus. Appellant stated that he did not stop


                                              2
even though S.R. was crying and asking him to stop. Appellant also admitted that he

tried to get S.R. to perform oral sex on him and, after she told him to stop a few times,

he “finished” in the bathroom.

       Appellant was arrested and charged with sexual assault of S.R. Prior to trial,

appellant urged a motion in limine to exclude evidence of any “alleged extraneous

offense or misconduct on the part of the defendant.” The State voiced no opposition to

the motion, and the trial court did not rule on the motion. However, during the State’s

direct examination of Lopez, the State asked Lopez about the findings from his initial

investigation of appellant. Lopez stated that appellant had been a “suspect,” without

any further details as to the date or the nature of the suspected offense. Appellant then

moved for a mistrial, which the trial court denied.

       The State presented the recorded telephone calls between appellant and Lopez.

Appellant first moved to suppress the recordings as having been obtained in violation of

section 16.02 of the Texas Penal Code.           After appellant’s motion to suppress was

denied, appellant objected to the specific portions of the recorded conversations that

involved appellant’s activities with his friends’ children as being irrelevant evidence of

extraneous acts under Texas Rule of Evidence 404 and as posing a danger of unfair

prejudice that substantially outweighed its probative value under Rule 403. The trial

court overruled both of these objections as well.

       Ultimately, the jury found appellant guilty of three counts of aggravated sexual

assault of a child 3 and assessed a fine of $10,000 and sentence of fifty-five years for

       3
       Appellant was originally charged with six counts of aggravated sexual assault
and four counts of indecency with a child. The State abandoned one count of
                                             3
each offense, to run concurrently. Appellant has presented four issues on appeal from

his convictions.   His first issue challenges the sufficiency of the evidence to prove

beyond a reasonable doubt that the child was under the age of six at the time of the

sexual assaults. In his second issue, he contends that the trial court erred by denying

his motion for mistrial with regard to the State’s violation of his motion in limine. In his

third issue, he contends that the trial court erred by failing to suppress recordings of

appellant’s conversations with Lopez that, he argues, were obtained in violation of the

Texas Penal Code. Finally, in his fourth issue, appellant maintains that the trial court

erred by admitting into evidence portions of those recorded conversations relating to

extraneous acts in violation of Rules 403 and 404 of the Texas Rules of Evidence.

                               Sufficiency of the Evidence

       The minimum term of imprisonment for an aggravated sexual assault of a child is

increased to twenty-five years if the victim of the offense is younger than six years of

age at the time the offense is committed. See TEX. PENAL CODE ANN. § 22.021(f)(1).

Appellant challenges the sufficiency of the evidence to prove that S.R. was younger

than six years of age at the time of the offenses alleged.

Standard of Review

       In evaluating the sufficiency of the evidence on appeal, the reviewing court must

consider all of the evidence available in the light most favorable to the verdict and
_______________________

aggravated sexual assault of S.R. contained in Count V, and, the jury, having found that
appellant committed aggravated sexual assault of S.R. by penetration of her sexual
organ and her anus, did not reach Counts II and IV, alleging alternative means of
committing sexual assault of a child younger than age six, or Counts VII-X, alleging
lesser offenses of indecency with a child.
                                             4
determine whether a rational jury could have found that the State adequately proved all

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912

(Tex.Crim.App. 2010). Proving every element of an offense beyond a reasonable doubt

is the highest burden of proof in any trial, and “there is no higher standard of appellate

review than the standard mandated by Jackson.” Brooks, 323 S.W.3d at 917 (Cochran,

J., concurring). “[T]he reviewing court is required to defer to the jury’s credibility and

weight determinations because the jury is the sole judge of the witnesses’ credibility and

the weight to be given their testimony.” Id. at 899.

Analysis

       Again, appellant anchors his sufficiency challenge on his position that, given all

of the inconsistencies in the evidence, there is no conclusive evidence that S.R. was

under the age of six at the time of the assaults.        Appellant contends that S.R.’s

statement to Wheeler that she was six or seven at the time of the assaults is the best

evidence that the child was not younger than six years old. However, it is undisputed

that S.R.’s birthdate was April 14, 2002. S.R. would have been five years old on March

1, 2008, the alleged date of the offense. Further, both S.R.’s mother and grandfather

testified that appellant moved out in March 2008, before S.R. turned six years old.

Appellant maintains that there was no evidence to corroborate the family’s testimony.

However, to the extent there need be “corroboration,” there is: appellant’s own

statements to Lopez corroborated the evidence that S.R. was under the age of six.

Appellant told Lopez on April 2, 2010, that he had not been with S.R.’s mother in over


                                             5
two years. Assuming “over two years” meant that appellant had moved out on April 1,

2008, at the latest, S.R. would not yet have turned six when appellant moved out.

      Dr. Lee Carter testified that young children are not as good as adults at

remembering some things and they often get dates confused. S.R.’s mother’s and

grandfather’s testimony, as well as appellant’s statements to Lopez, indicated that S.R.

was under the age of six at the time of the assaults. The only testimony indicating

otherwise came from S.R. herself.      The jury, acting within its exclusive province,

resolved the conflicting testimony and found that S.R. was under the age of six at the

time of the assaults. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982)

(op. on reh’g). We must afford due deference to the jury’s verdict when its verdict is

reasonably supported by the record.     See Marshall v. State, 210 S.W.3d 618, 625

(Tex.Crim.App. 2006).

      Viewing all of the evidence regarding S.R.’s age in the light most favorable to the

verdict, we conclude that a rational jury could have found beyond a reasonable doubt

that S.R. was under the age of six at the time of the sexual assaults. See Jackson, 443

U.S. at 319; Brooks, 323 S.W.3d at 912. We overrule appellant’s first issue.

                                   Motion for Mistrial

      During the State’s questioning of Lopez, the following exchange occurred:

      Q:    And can you just briefly tell us what steps you took in order to figure
      out who [appellant] was?
      A:     I did research within our own agency, myself, and I incorporated
      our law enforcement specialist, Ann Rivas, and a APD admin, he’s in the
      admin position, he’s a former detective, that also does research. That
      research revealed that [appellant] had been a suspect or –

                                           6
Appellant immediately asked that the jury be removed and objected to Lopez’s

statement, contending that it was a violation of appellant’s motion in limine. With the

jury absent, the court resolved the question of whether the word “suspect” alone was a

violation of appellant’s motion in limine and, ultimately, sustained appellant’s objection.

Upon the jury’s return, appellant asked for an instruction to the jury to disregard, and the

trial court gave such an instruction. Appellant then moved for a mistrial, which the trial

court denied and which forms the substance of appellant’s second issue.

Standard of Review

       A mistrial is a device used to halt trial proceedings only in narrow circumstances

where an error is so highly prejudicial and incurable that the “expenditure of further time

and expense would be wasteful and futile.”          Ladd v. State, 3 S.W.3d 547, 567

(Tex.Crim.App. 1999).     “The determination of whether a given error necessitates a

mistrial must be made by examining the particular facts of the case.” Id. We review the

denial of a mistrial for an abuse of discretion. Id. We must view the evidence in the

light most favorable to the trial court’s ruling and uphold the ruling if it was within the

“zone of reasonable disagreement.”           Ocon v. State, 284 S.W.3d 880, 884

(Tex.Crim.App. 2009); see Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004).

Applicable Law

       A reviewing court generally considers instructions given to the jury to be sufficient

to remedy most improprieties that occur during a trial and presumes that a jury will

follow the trial court’s instructions.     Gamboa v. State, 296 S.W.3d 574, 580

(Tex.Crim.App. 2009); see Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.

                                             7
1987) (en banc). Therefore, it is assumed that the harm created by the error has been

cured by the instruction to disregard, “except in extreme cases where it appears that the

question or evidence is clearly calculated to inflame the minds of the jury and is of such

character as to suggest the impossibility of withdrawing the impression produced on

their minds.” Campos v. State, 589 S.W.2d 424, 428 (Tex.Crim.App. 1979).

Analysis

      Appellant contends that Lopez’s response concerning appellant as having been a

“suspect” was “extremely prejudicial in that it cast the appellant as the suspect in a

separate criminal investigation in the context of being tried for sexually assaulting a

child.” The State did not ask whether appellant had been a suspect in another sexual

assault case, nor was the discussion at that point on the topic of sexual assault. When

taken in context, the question merely sought to elicit the steps Lopez took to identify

appellant before contacting him. Furthermore, appellant objected before Lopez was

able to fully answer or provide any information that would imply appellant’s involvement

in another sexual assault case. The fact that Lopez used the word “suspect” in his

answer without further explanation does not constitute a statement that is “clearly

calculated to inflame the minds of the jury and is of such character as to suggest the

impossibility of withdrawing the impression produced on their minds.” Id.

      Rather, Lopez’s response simply stated that appellant was a suspect but did not

assert any separate offense for which appellant was accused. The trial court’s prompt

instruction to the jury to disregard the response was sufficient to remedy the impropriety

at issue here. See Gamboa, 296 S.W.3d at 580. The trial court did not abuse its


                                            8
discretion by denying appellant’s motion for mistrial. See Ladd, 3 S.W.3d at 567. We

overrule appellant’s second issue.

                                     Motion to Suppress

       Appellant contends on appeal, as he did below, that Lopez violated the law when

he recorded the two telephone conversations between appellant and Lopez. Therefore,

his argument goes, the trial court improperly denied his motion to suppress the

recordings of those telephone conversations.

Standard of Review

       We review a trial court’s ruling on a motion to suppress for abuse of discretion.

Lujan v. State, 331 S.W.3d 768, 771 (Tex.Crim.App. 2011) (per curiam). In reviewing

the denial of a motion to suppress, we apply a bifurcated standard of review. Hubert v.

State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review de novo a trial court’s

application of law to the facts. Id. However, we defer to the trial court on questions of

credibility and historical fact. Id. The trial court is “the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony.” Valtierra v.

State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010).

       When no findings of fact were requested or filed, the reviewing court will view the

evidence in the light most favorable to the trial court’s ruling and “assume that the trial

court made implicit findings of fact supported by the record.” Id. (quoting Harrison v.

State, 205 S.W.3d 549, 552 (Tex.Crim.App. 2006)). We will sustain the trial court’s

ruling if it is “reasonably supported by the record and is correct on any theory of law



                                               9
applicable to the case.” Id. at 447–48 (quoting State v. Dixon, 206 S.W.3d 587, 590

(Tex.Crim.App. 2006)).

Applicable Law

      If evidence is obtained “in violation of any provisions of the Constitution or laws of

the State of Texas, or of the Constitution or laws of the United States of America,” that

evidence cannot be admissible as evidence against the accused. TEX. CODE CRIM.

PROC. ANN. art. 38.23(A) (West 2005).        Appellant contends that, by recording his

conversations with appellant, Lopez violated section 16.02 of the Texas Penal Code

and that, therefore, the recordings should not have been admitted into evidence. Under

that section, a person commits an offense if that person “intentionally intercepts,

endeavors to intercept, or procures another person to intercept or endeavor to intercept

a wire, oral, or electronic communication.” TEX. PENAL CODE ANN. § 16.02(b) (West

Supp. 2012). However, it is an affirmative defense to prosecution of such an offense if a

party acting under the color of law is a party to the intercepted communication or has

given prior consent to the interception of the communication. See id. § 16.02(c)(3)(A).

Analysis

      Appellant characterizes his telephone conversations with Lopez as “oral

communication”: “an oral communication uttered by a person exhibiting an expectation

that the communication is not subject to interception under circumstances justifying that

expectation.” See id. § 16.02(a) (making reference to definition in TEX. CODE CRIM.

PROC. ANN. art. 18.20, § 1(2) (West Supp. 2012)). It would appear, however, that those

conversations would be more precisely characterized as “wire communication”: “an

                                            10
aural transfer4 made in whole or in part through the use of facilities for the transmission

of communications by the aid of wire, cable, or other like connection between the point

of origin and the point of reception, including the use of such a connection in a switching

station, furnished or operated by a person authorized to engage in providing or

operating the facilities for the transmission of communications as a communications

common carrier.” See TEX. CODE CRIM. PROC. ANN. art. 18.20, §1(1).


       Regardless of the characterization of the communication at issue here, Lopez’s

participation in the communication and his active consent to the recording of the

conversations would serve as an affirmative defense to prosecution of an offense under

section 16.02(b).     See TEX. PENAL CODE ANN. § 16.02(c)(3)(A).              Here, it is

uncontroverted that Lopez, in furtherance of his duties as a detective to investigate an

alleged offense, was a party to the recorded communication and was, in fact, the party

who actively recorded the communication.


       Relying on the Texas Court of Criminal Appeals’s conclusion in analogous

circumstances, we conclude that, because Lopez did not violate section 16.02 when he

recorded his telephone conversations with appellant, “no law was broken, and article

38.23 does not render the evidence inadmissible.” See Alameda v. State, 235 S.W.3d

218, 223 (Tex.Crim.App. 2007); see also Mitchell v. State, No. 03-09-00643-CR, 2010

Tex. App. LEXIS 9771, at *2–3 (Tex.App.—Austin Dec. 8, 2010, no pet.) (mem. op., not

designated for publication) (citing affirmative defense under section 16.02(c)(3)(A) and

       4
        “Aural transfer” is “a transfer containing the human voice at any point between
and including the point of origin and the point of reception.” TEX. CODE CRIM. PROC.
ANN. art 18.20, § 1(21).

                                            11
concluding interception of telephone conversation between appellant and victim,

recorded by law enforcement after the victim agreed to participate in a controlled call,

did not violate state or federal law and was not inadmissible under article 38.23).


       Viewing the evidence in the light most favorable to the trial court’s ruling, we

conclude that its denial of appellant’s motion to suppress the recorded telephone

conversations with Lopez was reasonably supported by the record. See Valtierra, 310

S.W.3d at 447–48. Therefore, the trial court did not abuse its discretion by denying

appellant’s motion. We overrule appellant’s third issue.


                                   Exclusion of Evidence

       Following the trial court’s denial of his motion to suppress the entirety of the

recorded telephone conversations, appellant specifically objected to certain portions of

those recordings as irrelevant extraneous-act evidence and as being more prejudicial

than probative. See TEX. R. EVID. 403, 404(b). The trial court overruled appellant’s

objections, concluding that the evidence was relevant to appellant’s state of mind, that

its probative value outweighed its prejudicial effect, and that it would not confuse or

distract the jury.

Standard of Review

       Since the adoption of the Texas Rules of Evidence, courts have widely

recognized and applied considerable freedom in a trial court’s decisions to admit or

exclude evidence based on its probative value in relation to its prejudicial effect. See

Montgomery, 810 S.W.2d at 378.            The reason reviewing courts afford so much

discretion is due, in part, to the appellate court’s recognition that the trial court sits “in a
                                              12
superior position to evaluate the impact of the evidence.” Id. at 378–79. “The trial judge

sees the witnesses, the defendant, the jurors and counsel; he alone is able to witness

the participants’ mannerism and reactions.” Id. at 379.

       The trial court’s decision to exclude or admit evidence before the jury should be

reviewed for abuse of discretion. Id. at 379 (citing Marras v. State, 741 S.W.2d 395,

404 (Tex.Crim.App. 1987)). The test for abuse of discretion is a question of whether the

trial court acted without reference to any guiding rules and principles. Id. at 380. We

will uphold the trial court’s ruling “so long as the result is not reached in an arbitrary or

capricious manner.” Id.

Applicable Law

       Rule 404 provides that “[e]vidence 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).       Evidence of extraneous misconduct may be

admissible, however, when such evidence is relevant to a non-character-conformity fact

of consequence in a case, such as establishing motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id.; Berry v. State, 233

S.W.3d 847, 858 (Tex.Crim.App. 2007).


       However, even if the evidence is relevant and the purpose for which it is being

offered is permissible under Rule 404(b), the trial court still may exclude the evidence

under Rule 403 if its probative value is substantially outweighed by the danger of unfair

prejudice.    Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003).                More

specifically, even though relevant, evidence will not be admissible “if its probative value

                                             13
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; see Casey v. State, 215 S.W.3d 870, 882

(Tex.Crim.App. 2007). If there is “other compelling or undisputed evidence to establish

the proposition or fact that the evidence goes to prove, the [probative value of the

evidence] will weigh far less than it otherwise might in the probative-versus-prejudicial

balance.” Montgomery, 810 S.W.2d at 390 (op. on reh’g).

      The following factors are taken into consideration when undertaking a Rule 403

analysis: (1) the inherent probative force of the proffered evidence; (2) the proponent’s

need for that evidence; (3) any tendency of the evidence to suggest decision on an

improper basis; (4) any tendency of the evidence to confuse or distract the jury from the

main issues; (5) any tendency of the evidence to be given undue weight by a jury that

has not been equipped to evaluate the probative force of the evidence; and (6) the

likelihood that presentation of the evidence will consume an inordinate amount of time

or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637,

641–42 (Tex.Crim.App. 2006). Rule 403 favors admission of relevant evidence, and we

presume that relevant evidence will be more probative than prejudicial. Shuffield v.

State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006). In keeping with this presumption of

admissibility of relevant evidence, trial courts should favor admission in close cases.

Casey, 215 S.W.3d at 879 (citing Montgomery, 810 S.W.2d at 389 (op. on reh’g)).




                                           14
Analysis

       Appellant contends that the trial court erred in admitting into evidence the

following specific portions of the recorded telephone calls between appellant and Lopez:

(1) all the girls appellant knows have kids, (2) appellant does not mind playing dolls with

girls for hours at a time, and (3) appellant would rather spend time with kids. Appellant

challenges their admission under Texas Rules of Evidence 403 and 404.

Rule 404

       By asserting that he committed the acts against S.R. when he was intoxicated

and angry at S.R.’s mother, appellant arguably raised the issue of intent to arouse or

gratify a sexual desire, an element the State was required to prove with respect to

Counts VII–X of the indictment alleging indecency with a child, lesser-included offenses

for which appellant was not convicted. See TEX. PENAL CODE ANN. § 21.11 (West 2011).

Intent is a permissible purpose for which extraneous-act evidence may be admissible.

See TEX. R. EVID. 404(b). However, the proffered evidence must be relevant to the non-

character-conformity purpose. See id. “‘Relevant evidence’ means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” TEX. R. EVID. 401.

       Here, it seems dubious that appellant’s affinity for children in general–in the

absence of any evidence that he acted in an inappropriate or sexual manner with any of

these other children–is relevant to appellant’s intent to arouse or gratify a sexual desire




                                            15
with respect to his actions toward S.R. 5        Nonetheless, assuming that the contrary

position lies within the zone of reasonable disagreement and that the evidence was

relevant to intent, the evidence must still pass the balancing test of Rule 403.

Rule 403

       Again, there was no evidence of any inappropriate touching or otherwise sexual

conduct directed at these anonymous other children. Therefore, the probative value, if

any at all, must come from (1) the evidence’s tendency–especially in light of the other

evidence admitted at trial–to imply that appellant has abused or would have abused

other children in the past and/or (2) the deviation from social norms that would imply

character defects or other aberrant behavior.        The inherent probative force of this

evidence is low and weighs against admissibility under Rule 403. The State’s own

position demonstrates the tenuous link between the proffered evidence and the element

of intent: “From these somewhat innocuous expressions, the jury could infer that the

appellant had an unnatural attraction to and affection for these children.”          This

conclusion, the State maintains, shows that he acted with the requisite intent.



       5
        In the framework of Rule 401 the question might be posed as follows: Does the
proffered evidence of appellant’s atypical affinity for children and past–though
apparently not sexual or otherwise inappropriate–relationships with other children make
it more or less probable that appellant acted toward S.R. with the requisite intent to
arouse or gratify his sexual desire? Perhaps, it does. However, the answer is blurred
considerably when we consider the possibility that appellant could have presented this
evidence himself to show “moral and safe relations” with children. See Wheeler v.
State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002); see also TEX. R. EVID. 404(a)(1)(A).
Indeed, in arguing the probative value of the proffered evidence at trial, the State
pointed to the contrast between the normal interactions demonstrated by the evidence
and appellant’s conduct toward S.R., maintaining that it was relevant to appellant’s state
of mind. On the other hand, on appeal, the State contends the evidence shows “an
unnatural attraction” to children.
                                            16
       In a number of cases, we see that the State’s need to prove intent is a strong

need because extraneous acts may be probative to illuminate intent of an otherwise

innocent act at issue. See Boutwell v. State, 719 S.W.2d 164, 174 (Tex.Crim.App.

1986) (op. on reh’g). “On the other hand, where the circumstances surrounding the

offenses are ‘abundantly supportive of the inference of intent,’ the necessity for

extraneous offenses to prove intent is minimal and the prejudice arising from their

admission, comparatively great. Id. (quoting Morgan v. State, 692 S.W.2d 877, 881

(Tex.Crim.App. 1985)). Here, when we have appellant’s admission to the acts alleged

and those acts provide abundant support of the inference of intent, the implied probative

value of relationships with other children is minimal.

       Appellant was charged with committing sexual assault against S.R. only. Again,

the proffered evidence of appellant’s affection for other children did not include any

allegations of sexual contact with those children. And, as we have pointed out, perhaps

the greatest value of the evidence is its implication or suggestion of other victims or of

other offenses.   See Casey, 215 S.W.3d at 883 (observing that unfairly prejudicial

evidence “tends to have some adverse effect upon a defendant beyond tending to prove

the fact . . . that justifies its admission”). So, the proffered evidence becomes potentially

more sinister or, at least, much less palatable when evaluated in light of the evidence

presented relating to the offense for which appellant was actually being tried. The jury

has been provided only the most skeletal details of these other relationships with

children and has not been equipped to evaluate the evidence and its implications with

anything more than each individual juror’s sets of societal values, perception, and

experiences. Simply put, the evidence seems to be made available for the jury to make
                                             17
of it what it will. Further, presentation of evidence that appellant often preferred the

company of children is, in this context, potentially confusing and could serve as an

improper basis for the jury’s decision. We note, though, the suggestion that the jury’s

decision was based on an improper basis is most certainly undermined by the probative

force of appellant’s own admission to the allegations being tried.

      Based on the record before us and the unique facts of the case, we conclude that

the danger of unfair prejudice posed by the proffered evidence substantially outweighed

any probative value it may have had, and the admission of this evidence was error. See

Turner v. State, 754 S.W.2d 668, 672–73 (Tex.Crim.App. 1988) (“Every case must be

examined on its own facts, strengths and weaknesses to determine whether the

extraneous transaction is relevant to a material issue, and if it is, whether the relevancy

value outweighs the inflammatory or prejudicial potential.”).        We next evaluate this

nonconstitutional error for harm. See TEX. R. APP. P. 44.2(b).

      We must disregard ‘[a]ny other error . . . that does not affect substantial rights.”

Id. While we recognize the danger the proffered evidence poses in that it only seems

relevant by way of its implication of other offenses and the danger that such an

implication may be amplified in light of appellant’s admission to having committed the

alleged acts against S.R., we also recognize the strength of the other evidence admitted

at trial and relevant to the issue of intent, most notably appellant’s own admission to

having penetrated S.R., having tried to get her to perform oral sex on him, and having

“finished” in the bathroom. This evidence is strongly probative of appellant’s intent to

arouse or gratify his sexual desire. Appellant all but concedes as much in his Rule 403

analysis: “It is clear that Appellant’s statements that he sodomized [S.R.] sealed his
                                            18
conviction.” So, while the inherent probative force of the evidence may be low, as we

pointed out in our Rule 403 analysis, its contextual probative force may be even lower

still in light of the other evidence of appellant’s guilt.

       That said, we conclude that any error in admitting evidence of appellant’s

relationships with other children did not affect appellant’s substantial rights, and we

therefore disregard such error. See TEX. R. APP. P. 44.2(b). Accordingly, we overrule

appellant’s fourth and final issue.

                                               Conclusion

       Having overruled all of appellant’s issues, we affirm the trial court’s judgment.




                                                             Mackey K. Hancock
                                                                  Justice




Publish.




                                                19
