Opinion filed August 1, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-11-00074-CR
                                   __________

           ARMANDO CASTILLO CAMPOS, JR., Appellant

                                          V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 220th District Court
                            Comanche County, Texas
                     Trial Court Cause No. CCCR-10-03300


                      MEMORANDUM OPINION
      The jury found Appellant guilty of aggravated sexual assault and indecency
with a child by contact and assessed his punishment at confinement for ninety-nine
years and twenty years, respectively. The trial court ordered the sentences to run
consecutively.    Appellant challenges his conviction in four issues. Appellant
claims in his first two issues that the trial court abused its discretion when it denied
his motion for continuance. He argues in his third issue that the trial court also
abused its discretion when it denied his motion for new trial without a hearing. In
his final issue, Appellant contests the admission of extraneous offenses. We affirm.
                                 I. Background Facts
      Law enforcement first learned of sexual assault allegations against Appellant
in March 2006 when his stepdaughters, R.S. and A.S., made outcries of sexual
abuse. Lieutenant Ed Dyson of the Comanche Police Department was called to
Comanche Elementary School because A.S., a student at Comanche Elementary,
reported that she had been sexually abused. Lieutenant Dyson contacted Child
Protective Services (CPS) and asked them to interview A.S. and her older sister,
R.S. Amanda Welch, a CPS supervisor, conducted a forensic interview with each
of the girls. After R.S. and A.S. reported the sexual abuse, their mother, Maria
Campos, told them not to say anything; she was afraid that CPS would take them
from her. Neither R.S., age eleven at the time of the interview, nor A.S., who was
in second grade at the time of the interview, was forthcoming.
      Welch confronted Maria, and she admitted that she told her daughters not to
tell Welch anything. After Maria told R.S. and A.S. to tell Welch the truth, Welch
reinterviewed R.S.     In the second interview with Welch, R.S. told her that
Appellant touched her vagina and placed his fingers inside of her vagina and that
he made her put her mouth on his penis.
      After R.S. reported the sexual abuse and after the interviews, Maria, R.S.,
A.S., and their brother, E.C., moved out of Appellant’s home. However, Maria
admitted that she continued to have a physical relationship with Appellant. They
began dating when R.S. was one year old and Maria was pregnant with A.S.
Appellant and Maria were married for ten years when she divorced him in 2007.
Maria further testified that, after the divorce, Appellant had visitation rights to
E.C., his and Maria’s son. She said that she felt it was important for E.C. to remain
in contact with his father’s family.
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      After a lengthy investigation, Appellant was charged in July 2010 and later
indicted regarding allegations against both R.S. and A.S., but the State elected to
proceed only with the charges involving R.S. Appellant was indicted on two
counts of aggravated sexual assault of a child and one count of indecency with a
child by contact.
      At trial, before R.S. testified, the trial court held a hearing outside the
presence of the jury to determine the admissibility of acts that involved both R.S.
and A.S. Appellant objected, arguing any allegations of sexual assault against A.S.
would be impermissible 404(b) evidence.        See TEX. R. EVID. 404(b). The State
responded that the evidence was same transaction contextual evidence. The trial
court admitted the evidence, but limited it to “evidence concerning [A.S] as it
relates to sexual assaults on [R.S.].”
      In the presence of the jury, the State introduced evidence of sexual acts that
occurred between R.S., A.S., and Appellant. R.S. testified that, on one occasion,
they were all in the bathroom, and Appellant took turns “sticking his private area in
[R.S.’s] and [A.S.’s] private areas.” A.S. testified to one incident in the bedroom
that she shared with R.S. A.S. testified that Appellant had R.S. remove her pants
and sit on the bed. A.S. stated that, as Appellant sexually assaulted R.S., he made
A.S. remove her pants and sit beside R.S. She further testified that Appellant
“rubbed [his privates] against [hers].”
      E.C. testified concerning two incidents that he observed. E.C. testified that
on one of those occasions, he was unable to get into the bathroom. He peeked
under the door and saw his father’s feet and his sister’s feet; he heard moaning. On
another occasion, E.C. walked into his mother’s room and saw that his father’s
pants were down and that one of his sisters was bent over. Although he was six
years old at the time of the events, E.C. testified that he was “sure [it] wasn’t [his]


                                          3
mom” he observed with his father.         He could not identify which sister was
involved.
      Dr. Jayme Coffman is a child abuse pediatrician and the medical director of
the Child Abuse Program at Cook Children’s Medical Center.               Dr. Coffman
testified that she examined R.S. and that R.S. told her that Appellant started
sexually abusing her when she was eight years old, that the last time that he
sexually assaulted her was about two months before the date of Dr. Coffman’s
examination, that the sexual assaults hurt her but there was never any blood, and
that Appellant threatened her not to tell anyone. Dr. Coffman testified that the
sexual assault examination was normal and that her diagnosis was sexual assault
without trauma. The doctor explained that only 5% of sexually abused children
exhibit any physical trauma.
                              II. Motion for Continuance
      Appellant challenges the trial court’s denial of his motion for continuance on
two grounds. He argues that the trial court abused its discretion when it denied his
motion because he was denied (1) his right to a fair trial and (2) his right to present
a defense. Although Appellant presents the arguments in two separate issues, we
will address them together.
      We review a trial court’s denial of a motion for continuance under an abuse
of discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App.
2007); see TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006) (criminal action
may be continued upon sufficient cause shown); TEX. CODE CRIM. PROC. ANN.
art. 29.06(6) (West 2006) (sufficiency of a motion for continuance is addressed to
the sound discretion of the trial court and shall not be granted as a matter of right).
For Appellant to establish an abuse of discretion, he must show (1) that the trial
court erred when it denied his motion and (2) that he was harmed by the denial of a
continuance. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
                                          4
      The first prong “requires a showing that the case made for delay was so
convincing that no reasonable trial judge could conclude that scheduling and other
considerations as well as fairness to the State outweighed the defendant’s interest
in delay of the trial.” Id. The second prong requires a defendant to demonstrate
actual prejudice to his defense that resulted from the trial court’s ruling. Janecka v.
State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v. State, 906
S.W.2d 500, 511–12 (Tex. Crim. App. 1995). An appellant must demonstrate “with
considerable specificity how [he] was harmed by the absence of more preparation
time than he actually had,” and this generally occurs at the hearing. Gonzales, 304
S.W.3d at 842–43.
      Appellant claims that the trial court’s denial of his continuance denied him
his right to a fair trial and his right to present a defense and that the denial harmed
him because counsel was not allowed time to investigate potential witnesses. The
State responds that the information sought in the motion for continuance would
serve only to impeach the credibility of the complainant and that defense counsel
did not lay the predicate for such impeachment evidence during its cross-
examination of either R.S. or A.S.
      When a defendant’s motion for continuance is based on an absent witness,
the motion must show (1) the name of the witness and, if known, his residence;
(2) that the defendant has exercised diligence to procure the witness’s attendance;
(3) that the witness is not absent by procurement or consent of the defense; (4) that
the motion is not made for delay; (5) the facts expected to be proved by the
witness; and (6) there is no reasonable expectation that attendance of the witness
can be secured by a postponement of the trial to some future date during the
present term of the trial court. TEX. CODE CRIM. PROC. ANN. art. 29.06 (West
2006). The facts expected to be proved by the absent witness must be material,
and the motion for continuance must show the materiality of the witness’s
                                          5
testimony; mere conclusions and general averments of materiality are insufficient.
Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). In addition, a trial
court is not required to delay a case where the request for a continuance centers on
witnesses who may provide impeachment testimony. Stanley v. State, 137 S.W.2d
34 (Tex. Crim. App. 1940). A continuance is not ordinarily granted to allow
defendant to secure evidence to impeach a witness who is expected to testify.
Stiles v. State, 141 S.W.2d 327 (Tex. Crim. App. 1940).
      Appellant moved for continuance on the morning that the trial was set to
begin. He alleged that, five days prior to trial, Appellant’s sister-in-law advised
Appellant’s counsel that the high school Spanish teacher, Rosio Hernandez,
overheard R.S. telling classmates that the allegations against Appellant were
untrue. Appellant’s counsel explained that he had contacted Hernandez and that
Hernandez confirmed what she had overheard. However, she directed counsel to
the principal regarding a release of the names.      When counsel contacted the
principal, the principal directed counsel back to Hernandez. Counsel then hired
Trace Hendricks, a private investigator, to get the names of the students to whom
R.S. had allegedly made the statements and to take statements from them.
      Hendricks took a statement from Hernandez the next morning, but
Hendricks was admitted to the hospital during the lunch hour and did not get the
students’ names or their statements that he was scheduled to take that afternoon.
At approximately 3:30 p.m. on the Friday afternoon before the trial was to begin
on Monday morning, Appellant’s counsel learned that Hendricks had been
hospitalized and that Hendricks had failed to identify the students involved and to
get their statements.
      Before trial commenced, Appellant’s attorney argued that the information in
question was potentially exculpatory, and he requested a continuance so that he
could properly investigate.    Appellant’s counsel admitted that he had neither
                                         6
spoken to nor secured the names from Hernandez and that he had not subpoenaed
Hernandez. The prosecutor responded that there was nothing to indicate that the
potential evidence was substantive and that the potential evidence involved only a
hearsay allegation that someone may have impeachment evidence. The trial court
denied the motion and stated that it understood the request to be based on the
illness of the investigator, not counsel’s inability to call witnesses.
      In Campbell v. State, No. 01-01-01057-CR, 2002 WL 31941499 (Tex.
App.—Houston [1st Dist.] Dec. 27, 2002, pet. ref’d) (not designated for
publication), the court held that the trial court did not abuse its discretion when it
denied a motion for continuance where defense counsel knew of potential
witnesses but could not locate the witnesses and asked for a continuance to pursue
the information. Campbell, 2002 WL 31941499, at *2. Similarly, in Hartson v.
State, the court determined that the trial court did not abuse its discretion when it
denied the defendant’s motion for continuance based on an absent witness. 59
S.W.3d 780 (Tex. App.—Texarkana 2001, no pet.). In that case, the defendant
failed to provide a supporting affidavit by the absent witness or some other sworn
evidence that the absent witness would testify to exculpatory facts.
      Appellant knew of the possibility that there were potential witnesses but he
could not provide names, had not issued subpoenas, and could only guess at the
materiality of the potential witnesses’ testimony.        Appellant also provided no
affidavits to support his contention and provided no evidence that the witnesses
were willing to testify or that they could offer any beneficial testimony if they
testified. Appellant also did not subpoena Hernandez to attest to the information
sought by a continuance.         Mere assertions, without more, cannot justify a
continuance. Harrison, 187 S.W.3d at 434.
      Moreover, a trial court does not abuse its discretion when it denies a
continuance to secure impeachment testimony. Keel v. State, 434 S.W.2d 687, 689
                                            7
(Tex. Crim. App. 1968). R.S. admitted that she denied all sexual abuse to anyone
at school; her mother testified that she told R.S. to lie about it; and A.S. testified
that her mother instructed them to lie. R.S. could not be impeached when she
admitted denying the allegations; the potential witnesses’ testimony would not
have been admissible. We overrule Appellant’s first and second issues.
                              III. Motion for New Trial
      Appellant’s third issue is that the trial court erred when it denied his motion
for new trial without a hearing. Appellant’s sentence was imposed in open court
on February 16, 2011. Sixteen days later, Appellant’s attorney filed a motion for
new trial with the Comanche County District Clerk.                  A “Certificate of
Presentment,” signed by Appellant’s attorney, was attached to the motion. In the
certificate, Appellant’s attorney certified that he had hand-delivered the motion to
the trial court. Appellant also attached to the motion an “Order for a Setting.” The
order contained blanks for the court to fill in the hearing date and time; there was
also a signature line for the trial court’s signature. The record on appeal shows that
the blanks for the hearing date and time have not been filled in and the signature
line for the trial court’s signature remains blank.
      To preserve error by way of a motion for new trial, it must be presented to
the trial court. See TEX. R. APP. P. 21.6; Thompson v. State, 243 S.W.3d 774, 776
(Tex. App.—Fort Worth 2007, pet. ref’d). Presentment means that the appellant
has given the trial court actual notice that he wants the trial court to hold an
evidentiary hearing and rule on the motion. Carranza v. State, 960 S.W.2d 76, 78
(Tex. Crim. App. 1998). An appellant must show that the motion was actually
delivered to the trial court or otherwise brought to its attention or actual notice.
Thompson, 243 S.W.3d at 776. Although Appellant moved for a new trial, there is
nothing in the record to show that he presented it to the trial court.


                                           8
      Appellant did not show actual notice to the trial court because the
“Certificate of Presentment” showed only that the motion was hand-delivered to
the trial court’s office. Such a certificate of presentment cannot show presentment
under the rule. See Hiatt v. State, 319 S.W.3d 115, 122 (Tex. App.—San Antonio
2010, pet. ref’d); Owens v. State, 832 S.W.2d 109, 111 (Tex. App.—Dallas 1992,
no pet.). This is the case even when it is certified in the presentment certificate
that the motion was presented to the trial court. Hiatt, 319 S.W.3d at 122; Owens,
832 S.W.2d at 111.      Because this record does not show that Appellant ever
presented a motion for new trial that included a request for a hearing and because
there is no showing that such a request was ever brought to the attention of the trial
court, we hold that the trial court did not err by failing to hold a hearing on
Appellant’s motion for new trial. Rozell v. State, 176 S.W.3d 228, 231 (Tex. Crim.
App. 2005). We overrule Appellant’s third issue.
                          IV. Extraneous Offense Evidence
      Appellant asserts in his final issue that the trial court erred when it admitted
evidence of extraneous offenses committed against A.S. Appellant contends that
the trial court erred because (1) the sole purpose of the testimony proved
propensity, (2) the alleged offenses against A.S. were not so intertwined as to be
inseparable from the offenses against R.S., and (3) the testimony was unnecessary
to the State’s case.   Appellant also argues that A.S.’s testimony was unfairly
prejudicial. Prior to R.S. taking the stand, the trial court held a hearing outside the
presence of the jury to determine the admissibility of extraneous offenses
committed against A.S. The trial court ruled the extraneous offense evidence was
admissible as “same transaction contextual evidence,” but limited it to those sexual
assaults on A.S. that were contextually related to the sexual assaults against R.S.




                                          9
      A. Standard of Review
      We review a trial court’s decision to admit or exclude extraneous offense
evidence for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003). We will affirm a trial court’s ruling that an extraneous offense
has relevance apart from proving conformity with the defendant’s character if the
ruling is within the zone of reasonable disagreement. Id. (citing Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)). Likewise, we give deference
to a trial court’s determination that the probative value of the evidence is not
outweighed by the danger of unfair prejudice. Id.
      B. Same Transaction Contextual Evidence
      Appellant contends that the extraneous offense evidence only establishes his
propensity as a sex offender and that, therefore, the trial court should have
excluded it. A defendant may not be tried for a collateral crime or for being a
criminal generally, and Rule 404(b) prohibits the admission of extraneous offenses
to prove a defendant’s character or to show that the defendant acted in conformity
with that character. TEX. R. EVID. 404(b).      But extraneous offenses may be
“admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” TEX. R.
EVID. 404(b). This list of exceptions to the general rule is “neither mutually
exclusive nor collectively exhaustive.”      Montgomery, 810 S.W.2d at 388.
Extraneous offense evidence may also be admissible for purposes other than those
expressly listed in Rule 404(b).    Such evidence may be admissible as same
transaction contextual evidence, which has been defined as evidence of other
offenses connected with the offense charged. Wyatt v. State, 23 S.W.3d 18, 25
(Tex. Crim. App. 2000); Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App.
1993); Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003,
pet. dism’d).
                                        10
             1. Relevance from Context
      Same transaction contextual evidence may be admissible where “several
crimes are intermixed, or blended with one another, or connected so that they form
an indivisible criminal transaction, and full proof by testimony . . . of any one of
them cannot be given without showing the others.” Rogers, 853 S.W.2d at 33.
“[I]t has long been the rule in this State that the jury is entitled to know all relevant
surrounding facts and circumstances of the charged offense; an offense is not tried
in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). But
same transaction contextual evidence is admissible under Rule 404(b) only if it is
necessary to the jury’s understanding of the charged offense, such as when the
charged offense would make little or no sense without it. Wyatt, 23 S.W.3d at 25;
Swarb, 125 S.W.3d at 681. The purpose of admitting extraneous offense evidence
as same transaction contextual evidence is to place the instant offense in context.
Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d). In Jannise v. State, 789 S.W.2d 623, 628 (Tex. App.—Beaumont 1990, pet.
ref’d), the court held that sexual assaults of two girls in the same room over a two
to three day period during a Thanksgiving holiday were admissible to show a fairly
complete narrative of the contemporaneous assault on the complainant. Jannise,
789 S.W.2d at 628.
      The facts and circumstances surrounding the commission of an offense are
relevant and necessary for the jury to have a complete picture of what occurred.
Burks v. State, 876 S.W.2d 877, 900 (Tex. Crim. App. 1994); Mayes v. State, 816
S.W.2d 79, 85 (Tex. Crim. App. 1991). Here, the sexual assaults involving A.S.
were so intertwined with those against R.S. that the jury’s understanding of the
offenses would have been obscured without them. R.S. could not fully testify to
the sexual assaults against her without mentioning that her younger sister, A.S.,


                                           11
was also present. Nor could A.S. testify to personal knowledge of sexual assaults
on R.S. without also testifying to assaults committed against her at the same time.
             2. Remoteness and Balancing Tests
      Remoteness is another factor that affects admissibility.      The extraneous
conduct may not be too remote from the charged offense without affecting whether
the probative value is substantially outweighed by the danger of unfair prejudice.
See Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi 2002, pet.
ref’d); Corley v. State, 987 S.W.2d 615, 620 (Tex. App.—Austin 1999, no pet.).
However, remoteness is not an issue where the extraneous offense occurred
contemporaneously with the charged offense. In addition to the requirements of
Rule 404(b), extraneous offense evidence must also satisfy the balancing test of
TEX. R. EVID. 403. Nguyen, 177 S.W.3d at 668; Swarb, 125 S.W.3d at 681.
      Under Rule 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. A Rule 403 analysis by
the trial court should include, but is not limited to, the following considerations:
(1) the probative value of the evidence; (2) the potential of the evidence to impress
the jury in some irrational, indelible way; (3) the time needed by the proponent to
develop the evidence; and (4) the proponent’s need for the evidence. Erazo v.
State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Although a trial court must
still perform a balancing test to determine whether the probative value of same
transaction contextual evidence is substantially outweighed by its prejudicial
effect, the prejudicial nature of contextual evidence rarely renders it inadmissible,
as long as it sets the stage for the jury’s comprehension of the whole criminal
transaction. Swarb, 125 S.W.3d at 681.
      Here, evidence of sexual assaults against A.S., through testimony from A.S.,
R.S., and E.C., was helpful to the jury’s understanding of the instant offenses
because it was so intertwined with the charged offenses. The evidence of offenses
                                         12
against A.S provided the jury with a context for the offenses against R.S. We
conclude that the prejudicial effect of the extraneous offense evidence did not
substantially outweigh its probative value. Only limited details surrounding A.S.
were introduced in the State’s case-in-chief. E.C. was unable to identify which
sister was involved in the two incidents that he observed. R.S. testified to one
incident in the bathroom with Appellant when A.S was present. Likewise, A.S.
testified to one sexual assault between Appellant and R.S. in her bedroom; her
testimony provided context to the jury regarding the assaults against R.S.
      The extraneous offense evidence was necessary to provide context for the
assaults against R.S. and to rebut the defensive theory of fabrication. “[S]ame
transaction contextual evidence is admissible ‘not for the purpose of showing
character conformity, but to illuminate the nature of the crime alleged.’” Milner v.
State, 263 S.W.3d 353, 358 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
      C. Rebuttal of Appellant’s Fabrication Theory
      The admission of the sexual assault evidence also rebutted the defensive
theory of fabrication. Rebuttal of a defensive theory is “one of the permissible
purposes for which relevant evidence may be admitted under Rule 404(b).”
Moses, 105 S.W.3d at 626. In opening statements, Appellant suggested that R.S.
fabricated the allegations because she resented him for being strict and making her
do chores. Additionally, in cross-examination of the State’s witnesses, as well as in
closing arguments, Appellant raised the theory that R.S. fabricated her allegations,
either out of ill will toward Appellant or at her mother’s prompting.
      During his closing arguments, Appellant stated, “[T]hey [R.S. and A.S.]
were liars,” and “[T]here’s not proof [R.S.’s] virginity was gone.” Appellant
suggested that R.S. and A.S. fabricated the allegations because they did not like
Appellant whipping them, making them do chores, or fighting with their mother or
that they fabricated the allegations at the prompting of their mother who was bitter
                                         13
that Appellant had moved on to a new wife and kids. Appellant also stated that it
was Appellant’s word against R.S.’s and that it was “impossible” and
“preposterous” to “have vaginal sex hundreds of times and not rupture the hymen.”
      Additionally, although Appellant’s cross-examination of R.S. involved
general impeachment of R.S. with prior inconsistent statements, some cross-
examination tended to raise the fabrication theory.        Defense counsel elicited
testimony from R.S. that Appellant was strict on discipline and that only the girls,
R.S. and A.S., had to do chores. When Appellant’s counsel cross-examined Maria,
he brought out that Maria continued to have a relationship with Appellant after
R.S. and A.S. made the accusations that he had sexually assaulted them and that
she allowed Appellant visitation with their son, E.C.
      To be admissible for rebuttal of a fabrication defense, “the extraneous
misconduct must be at least similar to the charged one.” Wheeler v. State, 67
S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002). The requisite degree of similarity is
not exacting, and the extraneous conduct need only be sufficiently similar to the
charged offense. Dennis v. State, 178 S.W.3d 172, 178 (Tex. App.—Houston
[1st Dist.] 2005, pet. ref’d). Here, the extraneous offense is sufficiently similar to
the charged offense. Both R.S. and A.S. were Appellant’s stepdaughters; both were
under fourteen years of age when Appellant sexually assaulted them; Appellant
threatened both of them; and he abused both of them for several years. See
Galvez v. State, No. 10-06-00332-CR, 2009 WL 2476600, at *3 (Tex. App.—Waco
Aug. 12, 2009, pet. ref’d) (not designated for publication); Blackwell v. State, 193
S.W.3d 1, 14–15 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Dennis, 178
S.W.3d at 179. We overrule Appellant’s final issue on appeal.




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                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   TERRY McCALL
                                                   JUSTICE


August 1, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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