                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00234-CR

FILEMON HERRERA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 12-04824-CRF-361


                          MEMORANDUM OPINION

      Appellant Filemon Herrera was charged with continuous sexual abuse of a child

under the age of fourteen. The indictment alleged that, between August 1, 2011, and July

9, 2012, Herrera committed two or more acts of sexual abuse against M.R., namely:

aggravated sexual assault of M.R. by performing oral sex on her and aggravated sexual

assault of M.R. by causing her to perform oral sex on him. The jury convicted Herrera

and assessed his punishment at forty-five years’ imprisonment. This appeal ensued.
           Because Herrera does not challenge the sufficiency of the evidence, we will only

briefly recite the background of the offense. M.R.’s maternal grandmother testified that

seven-year-old M.R. told her that Herrera, M.R.’s paternal step-grandfather, had kissed

her, improperly touched her, performed oral sex on her, and had her perform oral sex on

him. M.R. told her that these things happened on different occasions at Herrera’s and

her paternal grandmother Rosie’s house and in a shed behind their house. M.R., who

was nine years old at the time of trial, also testified that, when she was in the first grade,

Herrera kissed her on her mouth with his tongue, touched her private part with his

hands, performed oral sex on her, and made her perform oral sex on him. These things

happened on different occasions at her paternal grandmother Rosie’s house and in the

garage. Herrera told her that if she told anyone, he would spank her. She told her brother

but asked him not to tell anyone. She eventually told her maternal grandmother.

           Rosie, who was married to Herrera at the time of the offense,1 testified that she

learned of M.R.’s allegations on a Saturday but did not report it right away. The

following Monday, she used Herrera’s debit card to remove $10,000 from a savings

account. She stated that she feared that Herrera would leave the country. She then called

CPS to report M.R.’s allegations. Rosie also confronted Herrera and told him that he had

to leave the home because of what he had done to M.R. She stated that Herrera said

nothing; he picked up his things and left the house. Herrera subsequently called her and

said that nothing serious had happened, that she should just let it go, and that if she




1   Herrera and Rosie had divorced at the time of trial.
Herrera v. State                                                                        Page 2
would just stop thinking and talking about it, she could get over it faster. When asked

by the prosecutor if she told M.R. to make the allegations to get Herrera’s money, she

replied, “No.”

        M.R.’s brother J.R., who was eleven years old at the time of trial, testified that on

one occasion when he was using the computer in Herrera’s daughter Lisset’s room, he

saw Herrera and M.R. in Herrera’s room together. Herrera was touching and rubbing

M.R. on the legs “in and out of her pants” and was kissing her on the neck. J.R. thought

Herrera caught him watching because Herrera walked up to him and said that if he told

his mom or dad, Herrera would give him a spanking. J.R. stated that at another time, he

was coming out of the restroom when he saw Herrera lifting up M.R.’s shirt.

        Nurse Jane Riley testified that she conducted an examination of M.R. on July 23,

2012. M.R.’s mother was with her. Nurse Riley did not observe any physical signs of

injury, but M.R. described to her how Herrera had sexually abused her. Nurse Riley

stated that the physical and behavioral symptoms described by M.R.’s mother were also

consistent with examinations of other children who had been sexually assaulted.

        Herrera’s daughter Lisset testified for the defense that, during the time of the

alleged offense, she was living at Herrera’s and Rosie’s house. She said that a person

could see only the corner of Herrera’s bed from the computer desk where J.R. had been

seated when he allegedly saw Herrera and M.R. together in Herrera’s room because the

door to Herrera’s room could only be opened partially. She described the relationship

between Rosie and M.R. during that time as “very close, attached at the hip even.” She



Herrera v. State                                                                       Page 3
described      the   relationship   between      Herrera    and     M.R.    as   like     any

granddaughter/grandfather relationship.

        Lisset testified that, on July 9, 2012, she had a conversation via email with Rosie

about needing tuition for her classes. Lisset described it as a “bad conversation” because

it made Rosie angry that she wanted her father’s money for school. Later that day, Lisset

had a conversation with Rosie at Herrera’s and Rosie’s house. Rosie said that she was

asking Herrera to leave because there were allegations being made about him. Lisset’s

reaction was that it was not true, and she was “disgusted at the fact that someone had

ever said that about my dad.” While Rosie packed Herrera’s things, Lisset called Herrera

and told him to come home. Lisset met Herrera outside and told him to just go inside,

grab his things, and leave without talking to Rosie. Herrera did respond, however, when

Rosie said something to him. Herrera was disgusted. Lisset asked Rosie about the money

that Rosie took from her dad. Lisset told her dad that he needed to get his things “because

it was obvious that the money was what was going on there. She was concerned about

money with him.”

        As a rebuttal witness, L.R., Rosie’s daughter and M.R.’s aunt, testified that Herrera

first came to live with her and her mother, his girlfriend at the time, when she was

fourteen years old.     During that time, Herrera engaged in sexually inappropriate

behavior with her. Herrera came up behind her and started kissing her neck and ear,

pressing his body up against her, and touching her breasts over her clothes. On one

occasion, she was lying down in the master bedroom talking on the phone when Herrera

came in and began kissing her, forcing his tongue into her mouth, and touching her

Herrera v. State                                                                        Page 4
breasts and vagina over her clothes. L.R. testified that these things happened often. She

told her mother that she did not like the way that Herrera was kissing her. She did not

tell her mother the full extent of what Herrera was doing to her because she was scared

that Herrera would be angry with her and because she was ashamed. After she told her

mother, Herrera was not allowed to be alone with her anywhere in the house, and it

stopped.

                                          Issue One

        In his first issue, Herrera contends that the trial court’s admission of extraneous-

offense evidence deprived him of his right to a fair trial and due process.             More

specifically, Herrera asserts that (1) Article 38.37, Section 2(b) of the Code of Criminal

Procedure is facially unconstitutional because it deprives a defendant of a right to a fair

trial and due process and (2) the admission of extraneous-offense evidence under Article

38.37, Section 2(b) in this case therefore requires reversal of his conviction. The State

responds that Herrera’s constitutional challenge was not preserved for review because

Herrera did not raise it in the trial court.

        Constitutional challenges to a statute are generally forfeited by failure to object at

trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also Mendez v.

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The constitutionality of a statute as

applied must be raised in the trial court to preserve error. Curry, 910 S.W.2d at 496; see

Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the “well-

established requirement that appellant must preserve an ‘as applied’ constitutional

challenge by raising it at trial”). Further, a defendant may not raise a facial challenge to

Herrera v. State                                                                        Page 5
the constitutionality of a statute for the first time on appeal. Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009).

        Herrera acknowledges that he made no objection to the constitutionality of Article

38.37, Section 2(b) in the trial court. He nevertheless asserts that his facial challenge may

be raised for the first time on appeal based on the Court of Criminal Appeals’ opinion in

Smith v. State, 463 S.W.3d 890 (Tex. Crim. App. 2015). In Smith, the appellant raised for

the first time in a petition for discretionary review that his conviction was void because

the court held in another case that the statutory subsection under which he was convicted

was facially unconstitutional. Id. at 892-93. The State argued that the appellant’s issue

was not preserved for review. Id. at 893-94. The court, however, rejected the State’s

argument and concluded that the appellant was entitled to relief, stating that “[a]ny

defendant, convicted or not, may obtain relief from a conviction under a statute that has

already been held void.” Id. at 895-96. But the court in Smith did not overrule Karenev;

rather, it distinguished it. Id. at 896. The court explained that the appellant in Smith was

seeking relief for a conviction of a non-crime under a statute that had already been held

to be invalid, while Karenev held that a defendant may not raise for the first time on appeal

a facial challenge to the constitutionality of a statute that has not yet been declared void.

Id.

        Here, Herrera is not seeking relief for a conviction of a non-crime under a statute

that has already been held to be invalid. Accordingly, Smith is distinguishable from this

case. Instead, Herrera has raised for the first time on appeal a facial challenge to the

constitutionality of a valid statute that has not yet been declared void. Accordingly,

Herrera v. State                                                                       Page 6
Karenev is controlling. Herrera’s constitutional challenge is therefore not preserved for

review. See Karenev, 281 S.W.3d at 434. We overrule Herrera’s first issue.

                                         Issue Two

        In his second issue, Herrera contends that the trial court erred in admitting

extraneous-offense evidence in violation of Rule 403. We review the trial court’s ruling

on a Rule 403 objection for an abuse of discretion. See Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

        Rule 403 states, “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence.” TEX. R. EVID. 403. When a trial court balances the probative value

of the evidence against its danger of unfair prejudice, a presumption exists that the

evidence will be more probative than prejudicial. Montgomery, 810 S.W.2d at 389.

        [A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
        inherent probative force of the proffered evidence along with (2) the
        proponent’s need for that evidence against (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. Of course, these factors may well
        blend together in practice.

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted)).

        Probative force of the evidence: The State argues that the probative value of L.R.’s


Herrera v. State                                                                        Page 7
testimony was great. The State asserts that the evidence established Herrera’s preference

for young girls with whom he had frequent unsupervised contact, his method of isolating

them during the encounters, and his preferred style of sexual conduct. The State contends

that this was in turn probative of Herrera’s character, see TEX. CODE CRIM. PROC. ANN. art.

38.37, § 2(b) (West Supp. 2015), the intentionality of his conduct, and as rebuttal to his

defensive theory of fabrication and financial incentive. Herrera argues that the minimal

degree of similarity between the two offenses and the remoteness of the extraneous

offense significantly lessened its probative value.

        First, Herrera notes that to be admissible for rebuttal of a fabrication defense, “the

extraneous misconduct must be at least similar to the charged one.” Newton, 301 S.W.3d

at 317 (quoting Wheeler v. State, 67 S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002)). And

Herrera asserts that there are a “myriad of differences” between the charged conduct in

this case and the extraneous offense. Herrera points out that M.R. was seven years old at

the time of the alleged offense while L.R. was fourteen years old, that the charged conduct

constituted sexual assault while the extraneous conduct constituted indecency with a

child, and that M.R. was allegedly told that she would be punished if she told while L.R.

was not threatened. We believe, however, that the extraneous-offense evidence was

sufficiently similar to the charged offense to have probative value. The alleged victims

were the daughter and granddaughter of Herrera’s wife when each was a young girl in

the home.

        Herrera next argues that the remoteness of the extraneous offense, which allegedly

took place nineteen years before trial, also lessened its probative value. The remoteness

Herrera v. State                                                                        Page 8
of an extraneous offense does impact its probative value. Id. at 318. We believe, however,

that, given the similarity of the offenses, this factor weighs in favor of admissibility.

        Proponent’s need for that evidence: Herrera argues that the State did not need L.R.’s

testimony because the only evidence that the defense presented regarding the defensive

theory of fabrication or monetary incentive amounted to two statements from Lisset.

Herrera asserts that any other evidence regarding the defensive theory of fabrication or

monetary incentive was preemptively elicited by the State. Herrera also argues that the

State did not need L.R.’s testimony because of the presence of other compelling evidence

supporting M.R.’s account. Herrera points out that his former wife Rosie testified that he

made statements implicating himself in the charged crime and that M.R.’s brother J.R.

testified to witnessing complained-of acts. The State responds that it had a “strong need”

to refute Herrera’s defensive theory that M.R. and other family members fabricated

M.R.’s testimony to gain access to his financial assets.

        While Lisset’s testimony may have been the most candid testimony regarding the

defensive theory of fabrication or monetary incentive, we do not believe that it was the

only evidence presented by the defense to support the theory. Herrera pointed out during

cross-examination the lack of immediate reporting of M.R.’s outcry to law enforcement.

Herrera also pointed out during cross-examination the close relationship between M.R.

and Rosie. And even as early as the defense’s opening statement, Herrera’s counsel

mentioned Rosie’s monetary incentive: “[Herrera], through his hard work, has put

together a pretty good nest egg. A nest egg that’s envied by the person closest to him.

That’s his wife, Rosie . . . .” Furthermore, regarding the presence of other compelling

Herrera v. State                                                                        Page 9
evidence, Lisset’s testimony contested J.R.’s ability to see what he testified to witnessing.

There was also no physical evidence connecting Herrera to the offense. We believe that

this factor thus weighs in favor of admissibility.

        Tendency of evidence to suggest a decision on an improper basis: Extraneous-offense

evidence of this nature does have a tendency to suggest a verdict on an improper basis

because of the inherently inflammatory and prejudicial nature of crimes of a sexual

nature committed against children. Newton, 301 S.W.3d at 320. But the trial court gave

the following instruction just before L.R. testified:

                There may be testimony introduced regarding extraneous crimes or
        bad acts other than the one charged in the indictment in this case. This
        testimony and evidence may be admitted only for the purpose of assisting
        you, if it does, in showing the Defendant’s motive, intent, knowledge, lack
        of mistake or accident, if any, to rebut any defensive theory in connection
        with the offense alleged in the indictment in this case, or for any bearing the
        evidence has on relevant matters, including the character of the Defendant,
        and acts performed in conformity with that character and for no other
        purpose.

              You cannot consider that testimony and evidence unless you find
        beyond a reasonable doubt that the Defendant committed the acts which
        may be referenced.

And the trial court gave a similar limiting instruction in the jury charge:

                There has been introduced testimony and evidence of alleged
        extraneous crimes or bad acts other than the one charged in the indictment
        in this case. This testimony and evidence was admitted only for the
        purpose of assisting you, if it does, in showing the defendant’s motive,
        intent, knowledge, lack of mistake or accident, if any; to rebut any defensive
        theory in connection with the offense alleged in the indictment in this case,
        or for any bearing the evidence has on relevant matters, including the
        character of the Defendant and acts performed in conformity with the
        character of the Defendant, and for no other purpose. You cannot consider
        such testimony and evidence unless you find and believe beyond a
        reasonable doubt the defendant committed these acts.

Herrera v. State                                                                          Page 10
        We generally presume that the jury follows the trial court’s instructions in the

manner presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Herrera

argues, however, that the limiting instruction was not a sufficient safeguard against the

prejudice such evidence created and that the limiting instruction instead created

additional danger of unfair prejudice and confusion. We conclude that although the

danger of unfair prejudice was counter-balanced to some extent by the trial court’s

limiting instruction, this factor nevertheless weighs in favor of exclusion of the evidence.

        Jury confusion or distraction, undue weight, and amount of time or repetition: These

factors concern whether presentation of the evidence consumed an inordinate amount of

time or was repetitious, and the evidence’s tendency to confuse or distract the jury or to

cause the jury to place undue weight on its probative value. See Gigliobianco, 210 S.W.3d

at 641-42; Newton, 301 S.W.3d at 320. Herrera argues that, similarly to the previous factor,

the extraneous-offense evidence had a tendency to confuse the jury and had a tendency

to be given undue weight by the jury.         Herrera acknowledges, however, that the

presentation of the extraneous-offense evidence did not consume an inordinate amount

of time. L.R.’s entire testimony consisted of only twenty-seven pages of the reporter’s

record. It was not repetitious. Furthermore, as stated above, the danger of unfair

prejudice was counter-balanced to some extent by the trial court’s limiting instructions.

We conclude that these factors thus favor admission.

        Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative


Herrera v. State                                                                     Page 11
value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by the extraneous-offense

evidence and its probative value. Therefore, we hold that the trial court did not abuse its

discretion in admitting the extraneous-offense evidence. We overrule Herrera’s second

issue.

         Having overruled both of Herrera’s issues, we affirm the trial court’s judgment.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs with a note)*
Affirmed
Opinion delivered and filed July 27, 2016
Do not publish
[CRPM]

       *(Chief Justice Gray concurs in the judgment only. A separate opinion will not
issue. He notes, however, that he would weigh the factors on the second issue somewhat
differently but would reach the same conclusion as the Court.)




Herrera v. State                                                                    Page 12
