A.P. Tristan v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00373-CR

A.P. Tristan,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
54th District Court of McLennan County, Texas
Hon. Susan Kelly, presiding
Trial Court Cause No. 2019-280-C2

JUSTICE SMITH delivered the opinion of the Court.

OPINION

A.P. Tristan appeals his convictions for two counts of trafficking of

persons. After finding Appellant guilty, the jury assessed punishment at

imprisonment in the Texas Department of Criminal Justice—Institutional

Division for seventy-five years for each count, to run consecutively, and a ten

thousand dollar fine for each count. In four issues, Tristan contends he

received ineffective assistance of counsel, the evidence is insufficient to support
the convictions, and the trial court abused its discretion by admitting

extraneous offense evidence. We affirm.

BACKGROUND

Tristan, a volunteer coach with a non-profit travel sports program,

coached girls’ softball teams. The teams routinely traveled to other cities for

weekend tournaments necessitating overnight hotel stays. Tristan used his

position of authority to befriend parents and control their children for several

years. Through manipulation and exploitation, he was able to repeatedly

engage in sexual contact with the girls on his teams while at out-of-town

tournaments. He was indicted for, and convicted of, two counts of trafficking

of persons, causing the trafficked children to become victims of indecency with

a child. He now appeals his convictions.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, Tristan contends his trial counsel was ineffective

because he failed to move to quash the indictment. He argues that Texas Penal

Code Section 20A.02(a)(7)(B) is unconstitutionally vague as applied to him and

that a reasonable person would not be on notice that the innocuous activity of

giving a child a ride to a softball tournament could be construed as trafficking.

He claims that, at most, he took turns driving a vehicle belonging to Miriam

Ramirez, the mother of two players, to assist her in taking some players to out-

Tristan v. State Page 2
of-town tournaments. To avoid the possibility that innocent acts of

transportation are construed as trafficking, he suggests that the statute should

require proof that the defendant knowingly transported the child with the

intent to engage in conduct prohibited by Texas Penal Code Section 21.11,

indecency with a child.

Tristan further argues that counsel was ineffective because he failed to

object to the jury charge. He contends “[t]he statute is written such that the

offender must know that they are trafficking a child and know that they are

causing the trafficked child to engage in or become the victim of the prohibited

conduct.” Tristan asserts that the charge allowed the jury to convict him “on

scienter less than required by the statute,” that is, without finding that he

knowingly caused the trafficked child to engage in or become the victim of the

prohibited conduct.

Standard of Review

Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees an

accused the right to reasonably effective assistance of counsel in criminal

prosecutions. U.S. CONST. amend. VI; Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). We look to the totality of the representation in evaluating

the effectiveness of counsel. Lopez, 343 S.W.3d at 143. To show that trial

Tristan v. State Page 3
counsel was ineffective, the appellant must demonstrate that (1) trial counsel’s

performance was deficient because it fell below an objective standard of

reasonableness and (2) a probability sufficient to undermine confidence in the

outcome existed that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88 (1984). A failure to make a showing under either prong of the

Strickland test defeats a claim for ineffective assistance. Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Appellant has the burden to prove

ineffective assistance of counsel by a preponderance of the evidence. Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Constitutionality of Statute

A claim that a statute is unconstitutional as applied is an argument that

the statute is generally constitutional but operated unconstitutionally to the

defendant due to his particular facts and circumstances. State ex rel. Lykos v.

Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (orig. proceeding). We review

de novo a challenge to the constitutionality of a statute. Vandyke v. State, 538

S.W.3d 561, 570 (Tex. Crim. App. 2017). We afford great deference to the

legislature and presume that the statute is constitutional, and that the

legislature has not acted unreasonably or arbitrarily. Id. The party

Tristan v. State Page 4
challenging the statute normally bears the burden of establishing its

unconstitutionality. Id. at 571.

The construction of a statute is a question of law that we review de novo.

Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015). We interpret

a statute in accordance with the plain meaning of its language unless the

language is ambiguous or the plain meaning leads to absurd results that the

legislature could not possibly have intended. Wagner v. State, 539 S.W.3d 298,

306 (Tex. Crim. App. 2018). In determining plain meaning, words and phrases

must be read in context and construed according to the rules of grammar and

usage. Id.

A statute is void for vagueness if it (1) fails to give a person of ordinary

intelligence fair notice of the conduct prohibited, or (2) is so indefinite that it

encourages arbitrary and discriminatory enforcement. Id. at 313. A statute

satisfies vagueness requirements if the statutory language “conveys

sufficiently definite warning as to the proscribed conduct when measured by

common understanding and practices.” Id. at 314.

Analysis

Constitutionality of Section 20A.02(a)(7)(B)

Ramirez owned the vehicle in which the complainants traveled to

tournaments, and Ramirez testified that she did most of the driving. However,

Tristan v. State Page 5
as will be explained in more detail below, the complainants, K.L.I and K.L.II,

testified that Tristan drove them to the tournaments.

The penal code provides that a person commits the offense of trafficking

of persons if the person knowingly traffics a child and by any means causes the

trafficked child to engage in, or become the victim of, conduct prohibited by

Section 21.11 (Indecency with a Child). TEX. PENAL CODE ANN.

§ 20A.02(a)(7)(B). The code defines “traffic” to mean “transport, entice, recruit,

harbor, provide, or otherwise obtain another person by any means.” Id.

§ 20A.01(4).

Driving falls within the plain meaning of the term transport. See Ritz v.

State, 533 S.W.3d 302, 309 (Tex. Crim. App. 2017) (per curiam) (Newell, J.,

concurring) (agreeing that, in case where defendant drove complainant to his

home to have sex, the court of appeals properly found sufficient evidence of

continuous trafficking of persons); Benavides v. State, No. 04-18-00273-CR,

2019 WL 5580260, at *5 (Tex. App.—San Antonio Oct. 30, 2019, pet. ref’d)

(mem. op., not designated for publication) (finding that driving falls within the

plain meaning of the term transport). Even “assisting” Miriam in taking

players to out-of-town tournaments, whereby Tristan was instrumental in

conveying the girls from one place to another, falls within the plain meaning

of trafficking. See Ritz, 533 S.W.3d at 304; see also Transport, Black’s Law

Tristan v. State Page 6
Dictionary (12th ed. 2024) (To carry or convey (a thing) from one place to

another.). Based on the plain text of the statute, it is possible that the

legislature intended to classify Tristan’s conduct as trafficking. Ritz, 533

S.W.3d at 309.

Tristan also asserts that he did not transport either child for the purpose

of engaging in sexual contact. The applicable statute does not require a

showing that the defendant trafficked a child with the intent to commit the

offense of indecency with a child. The plain language of the statute places a

person of ordinary intelligence on notice that transporting, including by

driving, a child to another location where he then commits the offense of

indecency with a child constitutes the offense of trafficking. See Wagner, 539

S.W.3d at 313. Further, the statute is not so indefinite that it encourages

arbitrary and discriminatory enforcement. Id. The language of Section

20A.02(a)(7)(B) prohibiting the trafficking of persons conveys a sufficiently

definite warning as to the proscribed conduct. See id. at 314. Therefore, that

statute is not unconstitutionally vague as applied to Tristan and there was no

need for his trial counsel to move to quash the indictment in his case.

Jury Charge

We turn now to Tristan’s argument that counsel was ineffective because

he did not object to the jury charge on the basis that it did not require the jury

Tristan v. State Page 7
to find that he knowingly caused the trafficked children to engage in or become

the victim of the prohibited conduct. Here, the applicable statute requires the

State to prove the defendant knowingly trafficked a child and that he caused

the trafficked child to engage in certain conduct or become the victim of

specified offenses. TEX. PENAL CODE ANN. § 20A.02(a)(7)(B). It does not

require proof that the defendant knowingly caused the child to engage in

certain conduct or become the victim of specified offenses. The scienter

required by the indecency with a child portion of the trafficking of persons

statute is found in Section 21.11. The State must prove that the defendant

engaged in sexual contact with the intent to arouse or gratify the sexual desire

of any person. Id. § 21.11(a)(1), (c).

The trial court is required to give the jury a written charge that, among

other things, “set[s] forth the law applicable to the case.” TEX. CODE OF CRIM.

PROC. ANN. art. 36.14. A jury charge which tracks the language of the

applicable statute is a proper charge on the statutory issue. Riddle v. State,

888 S.W.2d 1, 8 (Tex. Crim. App. 1994).

The pertinent part of the charge provided:

A person commits the offense of Trafficking of Persons
if the person knowingly traffics a child and by any
means causes the trafficked child to engage in or
become the victim of conduct prohibited by Texas
Penal Code Section 21.11 – Indecency with a Child.

Tristan v. State Page 8
This explanation of the law closely tracks Section 20A.02(a)(7)(B) and precisely

recites the statute’s scienter requirements. See TEX. PENAL CODE ANN.

§ 20A.02(a)(7)(B). Therefore, there is no error in the jury charge regarding the

statutorily required scienter, and Tristan’s trial counsel’s failure to object to

the jury charge does not constitute ineffective assistance of counsel.

Because Tristan has not shown that his trial counsel’s performance fell

below an objective standard of reasonableness, he has not met his burden to

show ineffective assistance of counsel. See Thompson, 9 S.W.3d at 813;

Rylander, 101 S.W.3d at 110. We overrule Tristan’s first issue.

SUFFICIENCY OF THE EVIDENCE

In his second and third issues, Tristan contends the evidence is legally

insufficient to prove he is guilty of trafficking of persons under either count one

or count two. He appears to contend that his actions did not constitute

transporting the girls as anticipated by the penal code. Also, he asserts the

evidence does not prove he committed indecency with a child.

Standard of Review

In reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the prosecution, to determine whether any rational trier

of fact could have found the essential elements of the offense beyond a

reasonable doubt. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010);

Tristan v. State Page 9
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Because the jury

is the sole judge of the witnesses' credibility and the weight to be given their

testimony, we defer to those determinations. Brooks, 323 S.W.3d at 899. We

give deference to the trier of fact's responsibility to fairly resolve conflicts in

testimony and to draw reasonable inferences from basic facts to ultimate facts.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record supports

conflicting inferences, we presume that the fact finder resolved the conflict in

favor of the prosecution and defer to that resolution. Garcia v. State, 367

S.W.3d 683, 687 (Tex. Crim. App. 2012).

It is not necessary that the evidence directly prove the defendant's guilt;

circumstantial evidence is as probative as direct evidence in establishing a

defendant's guilt, and circumstantial evidence alone may be sufficient to

establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App.

2013). Each fact need not point directly and independently to guilt if the

cumulative force of all incriminating circumstances is sufficient to support the

conviction. Hooper, 214 S.W.3d at 13.

In some cases, sufficiency of the evidence turns on the meaning of the

statute under which the defendant has been prosecuted. See Ritz, 533 S.W.3d

at 304. Thus, we must construe the statute to determine whether his conduct

Tristan v. State Page 10
actually constituted an offense under the statute. Liverman, 470 S.W.3d at

836.

Applicable Law

A person commits the offense of trafficking of persons if he knowingly

traffics a child and by any means causes the trafficked child to engage in, or

become the victim of conduct prohibited by Texas Penal Code Section 21.11,

indecency with a child. TEX. PENAL CODE ANN. § 20A.02(a)(7)(B). A person

commits indecency with a child if, with a child younger than seventeen, he

engages in sexual contact with the child or causes the child to engage in sexual

contact. Id. § 21.11(a)(1). “Sexual contact” means any touching of the anus,

breast, or any part of the genitals of a child, if committed with the intent to

arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). In Chapter

20.A, to “traffic” means to transport, entice, recruit, harbor, provide, or

otherwise obtain another person by any means. Id. § 20A.01(4).

Analysis

K. L.I, age 22 at the time of trial, testified that she started playing on a

team coached by Tristan when she was ten or eleven, and played on his team

until she was 15 years old. At the same time, he also coached a team that her

older sister, K.L.II, played on. They had out-of-town tournaments about every

other weekend. Her parents were able to attend only about half of those. She

Tristan v. State Page 11
testified that, when her parents did not attend, Tristan was responsible for her

and drove her to the tournaments. On cross-examination, K.L.I testified that

Tristan “usually” drove them. The car they rode in belonged to Miriam

Ramirez, the mother of two players. K.L.I stayed in a hotel room with Tristan

and others every time her parents did not attend. Usually, they stayed in a

hotel room that had two beds. In one bed, Miriam and her two daughters, K.E.

and A.E., would sleep together. Tristan, K.L.I, and another player, B.D.L.R.,

would sleep together in the other bed. Tristan did not want anyone to sleep on

the floor. Even when a couch was available, he slept in the bed.

K.L.I testified that the first time Tristan touched her inappropriately

was when she was twelve or thirteen. And he did the same thing every time

they went to a tournament without her parents. She testified that, while in

bed, usually between 2:00 and 5:00 a.m., he would start with massaging her.

Then he would move his hand up her thigh and touch her vagina and her

“butt,” and he would move his hand from her shoulder and hip to her breasts,

under her clothes. It would last for about an hour and a half, maybe two hours.

He thought she was asleep. When she began to move around, he would wait

and then he would begin it again. While touching her, he made a “deep breath

moaning kind of noise,” as if “he was enjoying it. Like a relief.”

Tristan v. State Page 12
K.L.II, age 24 at the time of trial, testified that she started playing on a

team coached by Tristan when she was ten to twelve years old. They had out-

of-town tournaments “pretty much” every weekend. She traveled by car to the

tournaments, sometimes with her parents and sometimes with Tristan,

Miriam Ramirez, and two other players. When her parents were not at the

tournament, Tristan was in charge of her. They took Miriam’s car, but Tristan

drove. When asked if Miriam drove, she answered, “No. Not really. It was

mainly him.” The hotel rooms had two queen beds. Miriam and her two

children slept in one bed, and K.L.II slept in the other bed with one or two

other girls and Tristan. None of the girls wanted to sleep next to Tristan. She

testified that Miriam’s husband “really wasn’t ever there.”

Beginning in the summer before her sophomore year, Tristan touched

her inappropriately while in the hotel bed. Around 3:00 to 5:00 a.m., he would

start massaging around her shoulders, slowly go down near her breasts and

massage her breasts. Then he would move down to her “vagina area.” He

would slowly start massaging her thighs and “then slowly work his way up

until he got in there.” He touched her vagina and massaged all around that

area. Sometimes his hands went underneath her clothes. She testified that

he would make moaning noises, which caused her to think “he was getting

pleased out of it.” She would act like she was waking up and he would stop for

Tristan v. State Page 13
a bit. But when he thought she was asleep, “he would start again and it would

be the same exact thing every single time.” The next day, he acted like nothing

happened. It happened every time she went to a tournament without her

parents. The last time it happened was when she played her last tournament

with his team, when she was sixteen.

Tristan asserts that “the testimony at trial established Appellant was

not directly transporting any of the players to and from the softball

tournament.” Although he was in the car, he contends the “transportation was

done by Miriam, and sometimes Appellant for the purposes of getting the

players to and from softball games.”

Section 20A.01(4) defines “traffic” to include transporting another

person. TEX. PENAL CODE ANN. § 20A.01(4). As noted above, driving falls

within the plain meaning of the term transport. See Ritz, 533 S.W.3d at 309.

The evidence is sufficient for the jury to find that Tristan was the driver.

Both K.L.I and K.L.II testified that Tristan drove them to the tournaments.

See Lawrence v. State, No. 02-23-00238-CR, 2024 WL 3282193 at *5 (Tex.

App.—Fort Worth July 3, 2024, pet. ref’d) (holding that defendant’s act of

driving complainant to motel falls within plain meaning of definition of

trafficking in trafficking statute). Although K.L.I later qualified her testimony

by saying Tristan “usually” drove, and K.L.II said “mainly” Tristan was the

Tristan v. State Page 14
driver, to the extent this testimony can be considered conflicting, we defer to

the jury’s resolution of those conflicts. See Hooper, 214 S.W.3d at 13. Johnny,

the complainants’ father, testified that he believed Tristan drove.

Additionally, the jury could disregard Miriam’s testimony that she, her

husband, and Tristan took turns driving and that she did most of the driving.

Id.

Even if he was not the sole driver, there is no doubt Tristan was

instrumental in conveying the girls to softball tournaments. See Transport,

Black’s Law Dictionary (12th ed. 2024) (To carry or convey (a thing) from one

place to another.). There is nothing in Chapter 20A that requires the

conclusion that one cannot be guilty of committing trafficking of persons if he

is not driving the vehicle. As explained above, construing Section

20A.02(a)(7)(B) in accordance with the plain meaning of its text, we determine

that the statute includes acts peripheral to driving where the actor is

instrumental in conveying a person from one place to another. See Ritz, 533

S.W.3d at 304. As stated earlier, it is possible that the legislature intended to

classify Tristan’s conduct as trafficking based on the plain text of the statute.

See id. at 309. Therefore, his conduct constitutes an offense under the statute.

See Liverman, 470 S.W.3d at 836.

Tristan v. State Page 15
To the extent Tristan may be asserting that the evidence is insufficient

to support his convictions because the purpose of traveling out of town was to

play in softball tournaments, not to engage in sexual contact with the girls, we

disagree. Again, the statute does not require proof that the defendant traffics

a person for a particular purpose. The State must prove the defendant

transported a child and caused that child to be the victim of sexual contact,

with intent to arouse or gratify the sexual desire of any person. TEX. PENAL

CODE ANN. §§ 20A.02(a)(7)(B); 21.11(a), (c). The wording of the statute does

not eliminate the possibility that there is also a valid reason for travel.

Finally, Tristan asserts the evidence is insufficient to prove he engaged

in sexual contact with either K.L.I or K.L.II by touching her anus, breast, or

genitals with the intent to arouse or gratify the sexual desire of any person.

K.L.I testified that, on numerous occasions, Tristan touched her vagina, her

“butt,” and her breasts. K.L.II testified that, on numerous occasions, Tristan

touched and massaged her breasts and vagina. Both girls testified that Tristan

made moaning noises while touching them. The specific intent required for

the offense of indecency with a child may be inferred from a defendant’s

conduct, his remarks, and all of the surrounding circumstances. See McKenzie

v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); Connell v.

State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.).

Tristan v. State Page 16
An oral expression of intent is not required; the conduct itself is sufficient to

infer intent. C.F. v. State, 897 S.W.2d 464, 472 (Tex. App.—El Paso 1995, no

writ). Additionally, evidence of a common pattern of similar acts is admissible

as tending to prove intent. See Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim.

App. 1986). A complainant’s testimony alone is sufficient to support a

conviction for indecency with a child. See Garcia v. State, 563 S.W.2d 925, 928

(Tex. Crim. App. [Panel Op.] 1978); Bazanes v. State, 310 S.W.3d 32, 40 (Tex.

App.—Fort Worth 2010, pet. ref’d). We conclude the evidence is sufficient for

the jury to have found the essential elements of both counts of the offense of

trafficking of persons by trafficking a child and causing her to become the

victim of conduct constituting indecency with a child. See TEX. PENAL CODE

ANN. § 20A.02(a)(7)(B); Isassi, 330 S.W.3d at 638. We overrule Tristan’s second

and third issues.

EXTRANEOUS OFFENSE EVIDENCE

In his fourth issue, Tristan contends the trial court abused its discretion

by allowing the extraneous offense testimony of B.S., B.D.L.R., and K.E. He

argues that he was not given the statutorily required notice of the State’s

intent to use the testimony and did not have time to prepare for cross-

examination of these witnesses and adjust his trial strategy. Tristan also

Tristan v. State Page 17
asserts that the trial court did not properly complete a Rule 403 balancing test,

and the probative value was outweighed by unfair prejudice.

Standard of Review

We review the trial court’s decision to admit evidence for abuse of

discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).

We will uphold the trial court’s decision if it is within the zone of reasonable

disagreement. Id. The trial court’s evidentiary ruling must be upheld if it is

reasonably supported by the record and is correct under any applicable theory

of law. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

Applicable Law

Because an accused must be tried only for the offense for which he is

charged and may not be tried for a collateral crime or for being a criminal

generally, extraneous offense evidence is usually not admissible "to prove a

person's character in order to show that on a particular occasion the person

acted in accordance with the character." TEX. R. EVID. 404(b)(1); Stafford v.

State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). However, in prosecutions

for sexual offenses against children under the age of seventeen Texas Code of

Criminal Procedure article 38.37 permits the admission of evidence concerning

extraneous offenses committed by the defendant against others. See TEX.

CODE CRIM. PROC. ANN. art. 38.37, § 2(a), (b). The unique nature of sexual

Tristan v. State Page 18
assault crimes justifies admitting extraneous offense evidence. See Jenkins v.

State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref'd).

Article 38.37, Section 2(b) provides that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a, evidence that the defendant has committed
a separate offense described by Subsection (a)(1) or (2) may be
admitted in the trial of an alleged offense described by Subsection
(a)(1) or (2) 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.

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Subsection 2(b) applies to

specified offenses, including indecency with a child. See id. art. 38.37,

§ 2(a)(1)(C).

When evidence of a defendant’s commission of one of the offenses listed

in article 38.37, Section 2(a) is relevant under article 38.37, the trial court must

conduct a Rule 403 balancing test upon proper objection or request. West v.

State, 554 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

Pursuant to Rule of Evidence 403, the trial court must weigh the probative

value of the evidence against the potential for unfair prejudice. TEX. R. EVID.

403. “Probative value” is the measure of “how strongly [the evidence] serves to

make more or less probable the existence of a fact of consequence to the

litigation—coupled with the proponent’s need for that item of evidence.”

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). Unfair

Tristan v. State Page 19
prejudice refers to a “tendency to tempt the jury into finding guilt on grounds

apart from proof of the offense charged.” State v. Mechler, 153 S.W.3d 435, 440

(Tex. Crim. App. 2005). “Evidence might be unfairly prejudicial if, for example,

it arouses the jury’s hostility or sympathy for one side without regard to the

logical probative force of the evidence.” Gigliobianco, 210 S.W.3d at 641.

When a trial court conducts a Rule 403 balancing test, it must balance

(1) the inherent probative force of the proffered item of evidence along with (2)

the proponent’s need for that evidence against (3) any tendency of the evidence

to suggest a 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. Id. at 641-42.

Analysis

Initially, Tristan asserts that the State did not provide him with the

thirty days’ notice required by law. See TEX. CODE CRIM. PROC. ANN. art. 38.37,

§ 3. The record includes the State’s amended notice of intent to use evidence

pursuant to article 38.37. It specifies the intent to use evidence of sexual

offenses against K.E., B.S., and B.D.L.R. The certificate of service shows it

Tristan v. State Page 20
was served on Tristan’s counsel on October 7, 2023. Counsel acknowledged at

trial that the amended notice was served on October 7. The trial began on

November 6, 2023, making the notice timely. Id.

At the article 38.37 hearing, counsel for the defense asked the trial court

to exclude the extraneous witnesses’ testimony to prevent confusion, but

mainly based on “unfair surprise and undue prejudice.” The court and defense

counsel discussed whether Tristan received adequate notice of the State’s

intention to use the extraneous witnesses’ testimony. The court asked defense

counsel, “[s]o is your objection mostly that it’s surprise and notice and that if

you had received it earlier . . . . you believe that it would be, at least, allowable

for me to admit it?” Counsel responded, “Correct, Judge.” Although defense

counsel never mentioned Rule 403, and the discussion at the hearing was

murky, we will assume that Tristan’s Rule 403 complaint was preserved. See

TEX. R. APP. P. 33.1.

Next, we consider whether the testimony of the three extraneous

witnesses was more prejudicial than probative. Tristan complains of the

amount of time that it took to present the testimony of the three extraneous

witnesses and asserts that he was essentially tried for trafficking five girls.

Therefore, he contends, the danger of the jury finding him guilty for simply

being a criminal in general was greatly increased.

Tristan v. State Page 21
B.S. testified that Tristan became her softball coach when she was nine

or ten years old. She played on that team for six years. Usually, when her

parents were not able to attend tournaments, Tristan would take her in his car

along with other players. Sometimes, Miriam or Marcos Estrada1 would be in

the car also. B.S. would stay in a hotel room with all of them. She shared a

bed with Tristan and another player while the Estradas were in the other bed.

One night around midnight, while at a tournament when she was sixteen,

Tristan touched her breast, her “butt,” and “the outsides of [her] vagina.” He

massaged and grabbed her breasts and “butt” and “all around.” B.S. could see

that while he was touching her, he was touching B.D.L.R., the other player

who was in the same bed, on her vagina. The touching lasted for an hour or a

little more. The following night, also in the hotel bed, Tristan touched her

breasts and the “top part of [her] vagina.”

For about eight years, B.D.L.R. played on a softball team coached by

Tristan. Often, her parents were unable to take her to the tournaments. She

would ride with Tristan, Miriam Ramirez, her daughters, A.E. and K.E., and

sometimes Miriam’s husband, Marcos. Usually, Tristan drove the car.

B.D.L.R. would stay in a hotel room with Miriam, her daughters, and Tristan.

The rooms had two beds, and Miriam and her daughters would sleep in one

1 Miriam Ramirez testified that Marcos Estrada was her common law husband. At times in the record,
she is referred to as Miriam Estrada.

Tristan v. State Page 22
bed while B.D.L.R., Tristan, and another player would sleep together in the

other bed. While in bed late at night, Tristan would start massaging her

shoulders, back and legs, and then, using an up and down motion, touch on her

vagina and “butt.” From the time he first touched her, it happened at every

tournament she went to.

K.E., Miriam’s daughter, played on a travel softball team for Tristan

from the time she was nine or ten until she was fifteen. She knew Tristan

before he became her coach because he coached her older brother from the time

he was very young. She explained that her parents were close to Tristan, and

there was never a time when Tristan was not around. During the summer,

tournaments were about every weekend. Her parents took her to most of the

tournaments. They shared a hotel room with Tristan. She and her parents

would share one bed. Tristan and other players would share the other bed.

One time, when she was mad at her mother, she slept in the bed with Tristan

and B.D.L.R. During the night, she woke up when Tristan placed her hand on

his genitals, which she described as “erect.” When she was sixteen, she took a

trip to Florida and New York with Tristan, her boyfriend, her nineteen-year-

old sister, and her sister’s boyfriend. She assumed she would be sleeping in a

bed with her sister, but she had to sleep in a bed with Tristan. During the

night, he put his hand on her back and then rubbed her “butt.”

Tristan v. State Page 23
The first factor we consider is the inherent probative force of the

extraneous offense testimony. Because evidence of separate sexual offenses is

probative on the issues of intent and a defendant’s character or propensity to

commit sexual assaults on children if sufficient evidence is provided regarding

the extraneous offense, the probative value of sexual offenses committed

against other children is generally not substantially outweighed by the danger

of unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence. Deggs v. State, 646 S.W.3d 916,

925 (Tex. App.—Waco 2022, pet. ref’d); Price v. State, 594 S.W.3d 674, 680 (Tex.

App.—Texarkana 2019, no pet.). Here, Tristan’s sexually motivated actions,

including indecency by sexual contact, toward other female players on his

softball team are highly probative of his character or propensity to engage in

sexual contact with K.L.I and K.L.II. See Deggs, 646 S.W.3d at 926; Price, 594

S.W.3d at 680.

The second factor, the State’s need for the evidence weighs in favor of

admission. There was no biological evidence and no third-party eyewitnesses.

Article 38.37 recognizes the need for such evidence “for any bearing the

evidence has on relevant matters.” See TEX. CODE CRIM. PROC. ANN. art.

38.37, § 2(b).

Tristan v. State Page 24
With respect to the third factor, we recognize the inherently

inflammatory and prejudicial nature of the evidence of Tristan’s extraneous

sexual offenses against another child does tend to create the potential for a

verdict on an improper basis. See Deggs, 646 S.W.3d at 926.

Regarding the fourth factor, we consider whether there was a tendency

of the evidence to confuse or distract the jury from the main issue in this case,

that is, whether Tristan committed the offense of trafficking a child and caused

her to become the victim of conduct constituting indecency with a child by

engaging in sexual contact. The trial court mitigated the tendency of the

extraneous offense evidence to confuse or distract the jury by instructing them

that they cannot consider the extraneous offense testimony for any purpose

unless they find beyond a reasonable doubt that Tristan committed the other

offenses. The court further instructed the jury that they could consider the

evidence only for relevant matters, including the state of mind of Tristan and

the alleged victims, and the previous and subsequent relationship between

Tristan and the alleged victims. Then the trial court identified the elements

the State was required to prove by its indictment, thereby redirecting the jury

to the main issues in the case. We find the fourth factor weighed in favor of

admission.

Tristan v. State Page 25
The fifth factor refers to evidence such as highly technical or scientific

evidence that might mislead the jury because it is not equipped to weigh the

probative force of the evidence. See Gigliobianco, 210 S.W.3d at 641. Here,

the evidence in question was neither scientific nor technical. We find the fifth

factor weighed in favor of admission.

As to the sixth factor, the extraneous-offense direct testimony comprised

less than a fifth of the total time spent on presentation of the State’s case. We

find the presentation of the extraneous offense evidence did not consume an

inordinate amount of time. The last factor favored admission.

We find that the trial court, after balancing the Rule 403 factors, could

have reasonably concluded the probative value of the extraneous offense

evidence was not substantially outweighed by the danger of unfair prejudice.

See TEX. R. EVID. 403; Deggs, 646 S.W.3d at 927. We find that the trial court

did not abuse its discretion in admitting the extraneous offense evidence.

Therefore, we overrule Tristan’s fourth issue.

CONCLUSION

Tristan received effective assistance of counsel and the trial court did not

err in admitting the extraneous offense testimony. Further, the evidence is

sufficient to prove Tristan committed the offense of trafficking of persons as

alleged in the indictment in counts one and two.

Tristan v. State Page 26
We affirm the trial court’s judgment.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: June 12, 2025
Before Justice Smith,
Justice Harris, and
Senior Justice Davis2
Affirm
Publish
CRPM

2 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Texas.

Tristan v. State Page 27