Albert Wendell Sells v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00295-CR
________________

ALBERT WENDELL SELLS, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F19-33290
________________________________________________________________________

MEMORANDUM OPINION

Appellant Albert Wendell Sells (“Sells” or “Appellant”) appeals his

conviction for the offense of continuous sexual abuse of a child, a first-degree felony

punishable by five to ninety-nine years or life imprisonment and a fine not exceeding

$10,000. See Tex. Penal Code Ann. §§ 12.32, 21.02(b). As we construe his brief,

Sells complains that the trial court erred in admitting the testimony of one of Sells’

other alleged victims, and in failing to include a limiting instruction in the court’s

1
charge to the jury. Sells further contends that the evidence was insufficient to sustain

Sells’ conviction. For the reasons explained below, we affirm the trial court’s

judgment.

BACKGROUND

A grand jury indicted Sells for the offense of continuous sexual abuse of a

child, alleging that Sells:

during a period that was thirty (30) or more days in duration, to-wit:
from on or about the 1ST day of SEPTEMBER, TWO THOUSAND
AND SEVEN through on or about the 9TH day of JUNE, TWO
THOUSAND AND TEN, and anterior to the presentment of this
indictment, when the Defendant was 17 years of age or older, did then
and there commit two or more acts of sexual [] abuse against
[TRACY], 1 a child then and there younger than 14 years of age
hereafter styled the Complainant, namely, Aggravated Sexual Assault
under Texas Penal Code Section 22.021, and Indecency with a Child
under Texas Penal Code Section 21.11(a)(1), namely:

The Defendant, with the intent to arouse or gratify the sexual desire of
any person, did then and there engage in sexual contact with the
Complainant, by touching the Complainant’s genitals; and

The Defendant, with the intent to arouse or gratify the sexual desire of
any person, did then and there engage in sexual contact with the
Complainant, by causing the Complainant to touch the Defendant’s
genitals; and

1
We use pseudonyms to refer to the victims, including the complainant, a
minor, and we refer to the victims’ family members other than Sells by pseudonyms
or familial relationships to protect all victims’ privacy. See Tex. Const. art. I, §
30(a)(1) (granting crime victims “the right to be treated with fairness and with
respect for the victim’s dignity and privacy throughout the criminal justice process”).
2
The Defendant, did then and there, intentionally or knowingly cause the
penetration of the sexual organ of the Complainant, by inserting the
Defendant’s finger[.]

See id. § 21.02(b), (c)(2), (4); see also id. §§ 21.11(a)(1), 22.021(a)(1)(B)(i).

The trial was to the jury for both guilt-innocence and punishment. After the

jury convicted Sells of the offenses charged and assessed punishment at forty-three

years imprisonment, the trial court sentenced Sells accordingly. We summarize the

evidence below.

“Tracy’s” Testimony

Tracy, the complainant, testified that she was Sells’ former stepdaughter.

Tracy recalled that she met Sells when she was about five years old, and that she

initially liked him and thought “[h]e was nice.” When Tracy was five to seven years

old, Sells penetrated Tracy’s vagina with his finger, and when Tracy was ten to

twelve years old, the sexual abuse “kept going on[.]” Tracy described an incident in

about 2009, when she was eleven or twelve years old, when Sells pinned Tracy on a

bed, got on top of her, and began “grinding” on her. Although both Tracy and Sells

were clothed at that time, Tracy recalled that she could feel Sells’ penis rubbing

against her vagina. Tracy also recalled that Sells would often “touch [her] on the butt

or something or grab [her], you know, [her] breast or something in that nature.”

Tracy did not disclose Sells’ abuse until she was eighteen years old, when she “was

just tired of holding it in.”

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“Rhonda’s” Testimony

Rhonda, Sells’ niece, testified that until she was fourteen years old, she liked

Sells because he was “a fun uncle.” When Sells was married to “Ginny,” Rhonda

often visited Sells’ home to spend time with Ginny’s three daughters, including

“Allison.” During one such visit, Rhonda was sleeping on the floor of Allison’s

bedroom when Sells entered the room “like in the middle of the night[,]” and woke

Rhonda by grabbing Rhonda’s breast and “private area[.]”

A few weeks or months after that initial incident between Rhonda and Sells,

Rhonda’s mother told Rhonda to accompany Sells to a house, but when Rhonda and

Sells arrived at the house, Sells “rushed in the room and he just started taking – he

pulled my clothes down, pulled his clothes down and forced himself on me, pinned

me down to the bed and he inserted himself into me.” Rhonda then clarified that

Sells “inserted his penis into [her] vagina.” “[A] couple of months later[,]” Rhonda

told her mother that Sells had assaulted her, but her mother did not believe the outcry.

Rhonda then decided not to tell anyone else “because [she] felt that since [her] own

mother didn’t believe [her], [she] felt nobody else would.”

Rhonda authenticated text messages between herself and Sells, as follows:

SELLS: Good morning

[RHONDA]: U called?

SELLS: Yes

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[RHONDA]: What’s going on?

SELLS: Asking a question have [ginny] put you in this

[RHONDA]: What are u talking about

SELLS: You haven’t heard

[RHONDA]: Heard about what

SELLS: Don’t worry anyway love you guys

[RHONDA]: Filing charges on u

SELLS: Yes

[RHONDA]: Well u know u took my virginity at 14

SELLS: So your involved

SELLS: I’m not gonna fuss I would like to talk

[RHONDA]: I haven’t to any cops like them

[RHONDA]: I haven’t talked to any cops

SELLS: Well can you answer I need to talk to someone

[RHONDA]: I’m at work . . . and what is there to talk about

[RHONDA]: Every time I think about that situation I cry

SELLS: Why are you texting talk to me

[RHONDA]: I’ll call after I get off

SELLS: Ok thank

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Rhonda eventually reported Sells’ assault to the police, but no charges were

filed due to the lapse of time since the assault took place. Rhonda did, however,

record a telephone call between herself and Sells during which Sells apologized to

Rhonda for bothering her in that manner. Although Sells did not expressly apologize

to Rhonda for sexually assaulting her when she was a teenager, Rhonda understood

Sells’ apology that way because Sells had done nothing else to her that warranted an

apology.

“Allison’s” Testimony

Allison testified that she was Sells’ former stepdaughter. She recalled that she

met Sells when she was about nine years old and that Sells married her mother,

Ginny, about two years later. Allison lived with her mother, Sells, and Allison’s two

younger sisters. According to Allison, Sells was a typical stepfather at first and she

considered him “a good person,” but when she was about eleven years old, Sells

“came in [her] room at night and had sex with [her].” After that first assault, Sells

took Allison to a “nook” off the living room about twice a week and sexually

assaulted her. These assaults continued until Allison began menstruating, when she

was thirteen years old and in the seventh grade.

It was not until 2007, when Allison was twenty-one years old, that she

reported Sells’ abuse to the police. She did so because she knew that Sells was then

married to a woman with daughters and it concerned her that Sells was living with

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girls. Although Allison reported Sells’ sexual abuse, the authorities did not pursue

the case because the statute of limitations expired before she reported the matter. In

about 2017, however, Allison again contacted law enforcement after learning that

Tracy had made similar complaints, so that “they can link their statement to mine

and something be done.”

“Ginny’s” Testimony

Ginny, Sells’ former wife and Allison’s mother, testified that she met Sells

when her three daughters were in elementary school. They married after dating for

about a year, and Ginny and Sells lived together with Ginny’s three daughters and

Sells’ two children. Ginny testified that Sells was a good father to her children and

that the girls “really looked up to him[.]”Ginny and Sells divorced when Allison was

in high school. Ginny characterized the divorce as amicable, stating that she and

Sells kept their own retirement benefits and neither asked the other for anything.

Ginny testified that during the time that Ginny and Sells were married, Ginny

was unaware that Sells was sexually assaulting Allison, although she suspected that

someone had molested Allison’s younger sister, “Lisa.” When Lisa had symptoms

of an infection, Ginny obtained medical attention for her out of concern that Lisa

had been molested. Ginny testified that she was molested as a child, and therefore

she would not let her children visit friends’ houses and told her children to let her

know if anyone molested them. It was not until Allison was about twenty years old

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that Ginny heard that Sells had sexually assaulted Allison. Ginny confirmed that

Sells could have repeatedly assaulted Allison, as Allison testified, without Ginny’s

knowledge.

When asked about the text message exchange between Sells and Rhonda,

Ginny denied having prompted Rhonda, Allison, Tracy, Chrissy, or anyone else to

allege that Sells had sexually assaulted or abused them.

“Chrissy’s” Testimony

Chrissy testified that she was sixteen years old at the time of trial and lived

across the street from Sells when she was nine years old. Chrissy recalled that she

visited Sells’ daughters in Sells’ home during the time that she lived nearby. Sells

made Chrissy feel uncomfortable with “[t]he way he was looking at me all the time.

. . . He was looking at me in a way like he wanted to do something with me.”

Once when Chrissy was at Sells’ house, she was standing in Sells’ kitchen

when Sells came up behind her and “started rubbing on [her] breast.” Sells then

began “easing to [Chrissy’s] legs, to [her] thighs[,]” and touched her genitals over

her clothing and was “rubbing his penis on [her].” Another time, Chrissy was on

Sells’ property looking for something when Sells came up behind her and Chrissy

could feel Sells’ penis through her clothes. On another occasion, Chrissy was

sleeping on the couch in Sells’ living room when she felt Sells’ breath on her neck

as he was “grinding” on her and saying, “Tell me you love me.” Yet another time,

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Chrissy was spending the night at Sells’ home when Sells sent Chrissy a message

through social media. Sells’ message to Chrissy asked, “You coming in my room

tonight?” When Chrissy showed Sells’ daughter the message, she “was just like,

‘hmm,’” but when Sells’ nephew saw the message, “he was just shocked.”

“Donna’s Testimony

Chrissy’s mother, “Donna,” testified that she moved in across the street from

Sells in 2016 when Chrissy was ten years old. She lived in that house for “maybe

two years.” After Donna’s and Sells’ daughters became friends, Donna and Sells

became friends and socialized at Sells’ home. Although Donna was not concerned

when her daughters were spending time at Sells’ house, she later realized that she

should have been concerned when Sells gave Chrissy phones after Donna took

Chrissy’s phone from her.

As Donna recalled, Chrissy was ten years old when Donna first learned of the

allegations against Sells. Donna did not initially believe these allegations “[b]ecause

kids say things[,]” although Chrissy had no history of inventing such stories. Despite

her doubt, Donna filed a police report. Although the police investigated the report of

Chrissy’s abuse, the investigation was later closed.

Officer Darrell Leboeuf’s Testimony

Leboeuf, a Beaumont police officer, testified about his law enforcement

training and experience. For almost sixteen years, Leboeuf worked as a detective in

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the Special Crimes Unit, which handled cases involving either children or sex, but

later transferred back to patrol duties because “dealing with cases of children and/or

sex is like the worst of the worst; and after a while, it’s just time.”

Leboeuf testified that case investigation involved gathering paperwork and

speaking with “everyone involved,” which in this case included Tracy, Allison,

Chrissy, Donna, and others, including Sells. When complainants are adults by the

time of the report, Leboeuf interviews them himself, but child victims are

interviewed at the Garth House by specially trained interviewers.

Leboeuf recalled that he was assigned Chrissy’s case when she reported her

abuse but did not move forward with the case at the time because Chrissy’s

“explanation of what happened did not fit the elements of the crime.” When Leboeuf

learned of Tracy’s allegations, however, he reopened Chrissy’s case.

When Leboeuf interviewed Sells, he recorded the interview and that recording

was played for the jury. During the interview, Leboeuf asked Sells why Tracy would

make up an allegation about something that happened years earlier, a question Sells

did not then answer. Sells also could not explain why Allison, Rhonda, or Chrissy

would falsely accuse him of sexual abuse, but later suggested that Tracy may have

made a false allegation “because a couple of weeks prior, [Sells] put [Tracy] out of

the house.” Sells admitted to knowing Tracy and living in the same house with Tracy

when Tracy was a child and he was over seventeen. Sells did not, however,

10
acknowledge having committed any of the offenses alleged against him. To the

contrary, Sells

could not understand why anyone would come forward with these
allegations, more than one; that a lot of the things he said, he was a
victim of some sort, not of necessarily a crime, but these people are
lying about him, you know. They were all false. People were mad at
him. And that, on the other hand, there were his daughters or some of
his stepdaughters were always at his house and acted like nothing ever
happened.

In Leboeuf’s experience, it was not unusual for sexual abuse victims to delay

reporting their abuse. It therefore did not concern Leboeuf that the victims in this

case did not immediately report their abuse because Leboeuf knew that children may

be afraid to come forward to report their abuse out of fear of embarrassment or of

being disbelieved.

According to Leboeuf, it is possible to molest a child while others are in the

home, and the following circumstances do not negate abuse:

• The child chooses to be around the abuser;

• The child exhibited no animosity to the abuser;

• Other children were voluntarily in the abuser’s company; and

• Other adults trusted the abuser with their children.

ANALYSIS

The Texas Rules of Appellate Procedure state that an appellant’s brief “must

contain a clear and concise argument for the contentions made, with appropriate

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citations to authorities and to the record.” Tex. R. App. P. 38.1(i). Sells’ brief does

not meet this standard, so we could overrule his arguments for that reason alone. See

Aldrich v. State, 928 S.W.2d 558, 559 n.1 (Tex. Crim. App. 1996). In the interest of

justice, however, we have chosen to address the merits of Sells’ appeal.

Sufficiency of the Evidence

Since Sells’ brief also references the standard of review for evidentiary

sufficiency, we construe Sells’ appeal as challenging the sufficiency of the evidence

of Sells’ guilt. We review the sufficiency of the evidence to support a conviction

under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under the Jackson

standard, we review all the evidence in the light most favorable to the verdict and

determine, based on that evidence and any reasonable inferences therefrom, whether

any rational factfinder could have found the essential elements of the offense beyond

a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013) (citing Jackson, 443 U.S. at 318-19). “The jury is the sole judge of the

credibility and weight to be attached to the testimony of witnesses.” Id. We give full

deference to the jury’s responsibility to fairly resolve conflicts in the testimony, to

weigh evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not substitute

our judgment for that of the factfinder concerning the weight and credibility of the

12
evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We permit

juries to draw multiple inferences from facts as long as each inference is supported

by the evidence presented at trial. Temple, 390 S.W.3d at 360.

A person commits the offense of continuous sexual abuse of a child if:

(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more victims;
and

(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is . . . a child
younger than 14 years of age[.]

Tex. Penal Code Ann. § 21.02(b)(1), (2)(A).

Section 21.02 of the Penal Code defines “act of sexual abuse” as including,

among other things, an act that constitutes the offenses of aggravated sexual assault

and indecency with a child. Id. § 21.02(c)(2), (4). A person commits the offense of

aggravated sexual assault of a child if the person intentionally or knowingly causes

the penetration of the anus or sexual organ of a child by any means and the victim is

younger than fourteen years of age. Id. § 22.021(a)(1)(A)(i), (a)(2)(B). A person

commits the offense of indecency with a child if he

(1) engages in sexual contact with the child or causes the child to
engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s genitals,
knowing the child is present; or
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(B) causes the child to expose the child’s anus or any part of the
child’s genitals.

Id. § 21.11(a)(1), (2).

“Sexual contact” is defined as the following acts, if committed with the intent

to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the
anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching
through clothing, with the anus, breast, or any part of the genitals of a
person.

Id. § 21.11(c).

The State need not prove the exact dates of the abuse, only that “there were

two or more acts of sexual abuse that occurred during a period that was thirty or

more days in duration.” Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland

2012, no pet.); Lane v. State, 357 S.W.3d 770, 773-74 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d).

With respect to the alleged continuous sexual abuse, Tracy’s testimony alone

was sufficient evidence from which a jury could convict Sells if she testified to two

or more incidents of sexual abuse at least thirty days apart after September 1, 2007

and if the jury found her credible. See Tex. Code Crim. Proc. Ann. art. 38.07(b).

Although Tracy testified to multiple incidents of sexual abuse that occurred more

than thirty days apart, one such incident happened before 2007, and therefore that

14
incident cannot be used in a prosecution for continuous sexual abuse of a child. See

Martin, 335 S.W.3d 873-74. That said, the incident of sexual abuse Tracy described

when Sells pinned her to the bed and was “grinding” on her took place after

September 1, 2007, based on Tracy’s recollection of her age at that time.2 See Tex.

Penal Code Ann. § 21.11(c). Tracy further testified that the sexual abuse “kept going

on” when she was ten to twelve years old. The jury, as trier of fact, could accept this

testimony in satisfaction of the statutory requirement that there be evidence of two

acts of sexual abuse after September 1, 2007. See Tex. Penal Code Ann. § 21.02(b).

As the factfinder, the jury was entitled to judge the credibility of each witness.

See Hughes v. State, 897 S.W.2d 285, 289-90 (Tex. Crim. App. 1994). The testimony

from a child who testifies that she was the victim of a sexual assault is sufficient to

support a defendant’s conviction for sexual assault. Tex. Code Crim. Proc. Ann. art.

38.07(a), (b)(1); Carr v. State, 477 S.W.3d 335, 338 (Tex. App.—Houston [14th

Dist.] 2015, pet. ref’d).

Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational factfinder could have found the essential elements of the offense of

continuous sexual abuse of a child beyond a reasonable doubt. See Brooks, 323

2
Tracy was born in 1997 and testified that this happened when she was eleven
or twelve years old, so according to Tracy’s recollection, it must have been later than
2007.
15
S.W.3d at 912; Hooper, 214 S.W.3d at 13. We overrule Appellant’s sufficiency

issue.

Admissibility of Evidence

In his brief, Sells states that the trial court should not have admitted Rhonda’s

testimony because, Sells argues that his conduct toward Rhonda “was not a ‘crime’

when committed,” and Rhonda’s testimony therefore was rendered inadmissible

under the due process and ex post facto provisions of the United States and Texas

Constitutions. See U.S. CONST. art. I, §§ 9, 10, amend. XIV; Tex. Const. art. I, §§

16, 19.

As we interpret Sells’ brief, Sells argues on appeal that the trial court erred by

admitting Rhonda’s testimony since Sells could not be prosecuted for sexually

assaulting Rhonda for two reasons: (1) the statute of limitations had expired, and (2)

Sells’ continuous sexual abuse of Rhonda took place before September 1, 2007, the

effective date of the section of the Texas Penal Code that applies to continuous

sexual abuse of a young child. See Martin v. State, 335 S.W.3d 867, 873 (Tex.

App.—Austin 2011, pet. ref’d).

We review a trial court’s ruling on the admissibility of extraneous offense

evidence for an abuse of discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011). A trial court does not abuse its discretion if its decision falls within the

“zone of reasonable disagreement.” Id. (citations omitted) “If the trial court’s

16
decision on the admission of evidence is supported by the record, there is no abuse

of discretion, and the trial court will not be reversed.” Marsh v. State, 343 S.W.3d

475, 478 (Tex. App.—Texarkana 2011, pet. ref’d) (citations omitted). Reviewing

courts should not substitute their judgment for that of the trial court. Id. Also, “a

court of appeals may not reverse a judgment of conviction without first addressing

any issue of error preservation.” Meadoux v. State, 325 S.W.3d 189, 193 n.5 (Tex.

Crim. App. 2010) (citation omitted).

“The erroneous admission of extraneous-offense evidence constitutes non-

constitutional error[.]” Pittman v. State, 321 S.W.3d 565, 572 (Tex. App. —Houston

[14th Dist.] 2010, no pet.) (citation omitted). An appellate court may not reverse for

non-constitutional error if, after examining the record as a whole, the appellate court

has “fair assurance that the error did not have a substantial and injurious effect or

influence in determining the jury’s verdict.” Garcia v. State, 126 S.W.3d 921, 927

(Tex. Crim. App. 2004) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)); see also

Tex. R. App. P. 44.2(b). Therefore, even if evidence is admitted by a trial court in

error, substantial rights are not affected by the erroneous admission of evidence “‘if

the appellate court, after examining the record as a whole, has fair assurance that the

error did not influence the jury, or had but a slight effect.’” Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Johnson, 967 S.W.2d at 417). If

17
the trial court’s evidentiary ruling is correct under any applicable theory of law, it

will not be disturbed. See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.

2016).

Generally, an accused must be tried only for the charged offense and may not

be tried for a collateral crime or for being a criminal generally. Harris v. State, 475

S.W.3d 395, 399 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); see also Tex.

R. Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is 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.”).

Sells was charged with the continuous sexual abuse of a child, an offense

under section 21.02 of the Penal Code, to which article 38.37 applies. See Tex. Code

Crim. Proc. Ann. art. 38.37, § 2(a)(1)(B); Tex. Penal Code Ann. § 21.02(b).

Therefore, evidence that the defendant committed a separate offense included in

Chapter 21 of the Penal Code may be admitted “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). This statutory provision applies only in certain prosecutions, including

prosecutions for continuous sexual abuse of a young child, and applies despite

contrary provisions of the Texas Rules of Evidence. Id. §§ 1(a)(1), (b), 2(a)(1)(B);

see Tex. R. Evid. 404, 405. When a trial court admits such evidence of a defendant’s

18
extraneous offenses, and when either party so requests, the trial court must give the

jury

a limiting instruction regarding the purposes for which the evidence
may be used. The court shall provide the limiting instruction: (1) orally
at the time the evidence is admitted; and (2) in writing on conclusion of
the presentation of evidence in the case, at the time written instructions
are provided to the jury.

Tex. Code Crim. Proc. Ann. art. 38.37, § 1(c).

Before the trial court allowed the testimony to be heard by the jury, the trial

court held hearings regarding the admissibility of Rhonda’s, Allison’s, and Chrissy’s

testimony to determine whether the evidence would “be adequate to support a

finding by the jury that [Sells] committed the separate offense[s] beyond a

reasonable doubt[.]” Id. § 2-a(1). In conformity with article 38.37 § 2-a(2), the court

conducted these hearings outside the jury’s presence. Id. § 2-a(2).

At the hearings, Rhonda, Allison, and Chrissy testified as they did in front of

the jury, and in each instance, the trial court conducted the balancing test required

by Rule 403, found that the testimony satisfied article 38.37, and admitted it over

Sells’ objections. See Brown v. State, No. 09-25-00025-CR, No. 09-25-00026-CR,

2026 Tex. App. LEXIS 1802, **30-31 (Tex. App.—Beaumont November 7, 2025,

no pet.) (mem. op., not designated for publication). (“When a trial court considers

the admission of extraneous offense evidence offered under article 38.37, section 2

and Rule 404(b), the trial court also considers the balancing test under Rule 403 if

19
the defendant lodges a timely Rule 403 objection before the evidence is admitted.”);

and See Clark v. State, No. 09-20-00083-CR, 2021 Tex. App. LEXIS 9500, at **30-

31 (Tex. App.—Beaumont Nov. 24, 2021, no pet.) (mem. op., not designated for

publication) (“Although admissible under Rule 404(b), evidence may still be

excluded under Rule 403[.]”). See Tex. R. Evid. 403. The trial court therefore

complied with article 38.37 in admitting Rhonda’s testimony as well as Allison’s

and Chrissy’s testimony.

Even though Sells’ sexual abuse of Rhonda occurred before September 1,

2007, the effective date of section 21.02 of the Penal Code, Sells’ sexual assaults of

Rhonda were not, as Sells states in his brief, “not a ‘crime’ when committed[,]” and

section 21.02 of the Texas Penal Code is not an ex post facto law. See McCulloch v.

State, 39 S.W.3d 678, 681-85 (Tex. App.—Beaumont 2001, pet. ref’d) (admitting

evidence of the defendant’s other crimes and holding that section 38.37 does not

violate the prohibition against ex post facto laws); see also Martin, 335 S.W.3d at

873-74 (explaining the significance of the dates the crimes were committed).

According to McCulloch, to constitute an ex post facto law, a statute must:

(1) punish as a crime an act previously committed that was innocent
when done;

(2) aggravate a crime and make it greater than it was when committed;

(3) inflict a greater punishment than the law annexed to the crime when
committed; or

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(4) alter the legal rules of evidence such that less or different evidence
is needed in order to convict the offender.

39 S.W.3d at 683 (citing Carmell v. Texas, 529 U.S. 513, 522 (2000)).

In this case, Sells appears to argue that admitting Rhonda’s testimony violated

the first category, both because his alleged sexual assaults of Rhonda took place

before September 1, 2007, and because Rhonda was fourteen years old when Sells

first assaulted her. See Tex. Penal Code Ann. § 21.02(b)(2)(A) (dictating that the

victim must be younger than fourteen years of age). Although we agree Sells’ abuse

of Rhonda cannot be prosecuted under section 21.02 for the foregoing reasons, Sells

was not prosecuted under section 21.02 for sexually abusing Rhonda. Instead, Sells

was prosecuted under section 21.02 for sexually abusing Tracy. Rhonda’s testimony

that Sells sexually assaulted her when she was a teen strengthens the case against

Sells for sexually abusing Tracy and was admissible under article 38.37. See Tex.

Code Crim. Proc. Ann. art. 38.37.

The Court’s Charge

Sells further complains that the trial court erred in failing to include a limiting

instruction in its charge to the jury. Sells contends that the trial court should have

instructed the jury to consider the length of time between his assaults of Rhonda and

the trial when considering its verdict. Sells’ request for an instruction about time

lapse seems to conflate impeachment requirements under Rule 609 with article

38.37. See Tex. R. Evid. 609(a), (b); Tex. Code Crim. Proc. Ann. art. 38.37. Rule
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609 limits impeachment through a felony conviction to ten years from the later of

the conviction or the release from confinement unless “its probative value, supported

by specific facts and circumstances, substantially outweighs its prejudicial effect.”

Tex. R. Evid. 609(b). Article 38.37 contains no such time limit. Tex. Code Crim.

Proc. Ann. art. 38.37. Moreover, the State did not offer Rhonda’s testimony to

impeach Sells, so Rule 609 does not apply to her testimony.

We further observe that the court’s charge includes a limiting instruction

regarding Sells’ alleged extraneous offenses, which necessarily includes Rhonda’s

testimony. The trial court instructed the jury:

During the trial, you heard evidence that the Defendant may have
committed other wrongful acts against others not charged in the
indictment, namely, Sexual Assault, Aggravated Sexual Assault, or
Indecency with a Child against [Rhonda], [Chrissy] and [Allison]. The
State offered the evidence to show the state of mind of the Defendant’s
character, acts performed in conformity with the character of the
Defendant, and for other matters of opportunity and intent. You are not
to consider that evidence at all unless you find beyond a reasonable
doubt[] that the defendant did, in fact, commit such wrongful act or
acts. Those of you who believe the Defendant did the wrongful act or
acts may consider them.

Even if you do find the Defendant committed a wrongful act or acts
pursuant to this Instruction, you may consider this evidence only for the
limited purpose or purposes I have described. You may not consider
this evidence to prove that the Defendant is a bad person in general and
for such reason was likely to commit the charged offense. In other
words, you should consider this evidence only for the specific, limited
purpose or purposes I have described. To consider this evidence for any
other purpose would be improper.

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This instruction complies with article 38.37 and it instructs the jury “regarding

the purposes for which the evidence may be used.” Tex. Code Crim. Proc. Ann. art.

38.37, § 1(c)(2). Although the trial court did not orally instruct the jury at the time

the evidence was admitted, it was not required to do so because Sells did not request

a limiting instruction at that time. See id. § 1(c)(1); Tex. R. Evid. 105(a); Delgado v.

State, 235 S.W.3d 244, 250-54 (Tex. Crim. App. 2007). The trial court thus did not

err in omitting an oral limiting instruction. Delgado, 235 S.W.3d at 250-54.

We overrule Sells’ challenge to the trial court’s jury charge.

CONCLUSION

Having overruled all of Sells’ appellate issues, we affirm the trial court’s

judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on April 7, 2026
Opinion Delivered May 27, 2026
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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