Anthony Dials v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00232-CR

Anthony Dials,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge Roy Sparkman, presiding
Trial Court Cause No. 2021-1282-C1

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

OPINION

A jury found Appellant, Anthony Dials, guilty of two counts of the

felony offense of indecency with a child by contact and one count of the felony

offense of indecency with a child by exposure. After finding the two

allegations of prior felony convictions true, the jury assessed his punishment

at thirty-five years confinement in the Institutional Division of the Texas

Department of Criminal Justice on each count of indecency with a child by
contact, and ten years confinement on the count of indecency with a child by

exposure. The trial court sentenced Dials accordingly and ordered the two

counts of indecency with a child by contact to run concurrently and the count

of indecency with a child by exposure to run consecutively. This appeal

ensued. We affirm.

BACKGROUND

Dials was tried for five counts: two counts of indecency with a child by

contact; one count of indecency with a child by exposure; and two counts of

exploitation of a child. The two victims, D.M. and K.J., are sisters whose

grandmother was married to Dials. D.M. lived with her grandmother and

Dials for several years. D.M. and K.J. both testified during the State’s case-

in-chief.

D.M. testified that when she was approximately 11 years old, Dials

exposed his erect penis to her. She stated she told her grandmother about

the incident, but the incident was not brought to the attention of law

enforcement or anyone else until after an outcry by K.J. implicated Dials. On

cross-examination, Dials’s attorney questioned D.M. about the possibility

that she misinterpreted the incident with Dials.

K.J. testified that during two different visits at her grandmother’s

house when she was around 11 years old, Dials touched her breast under her

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clothing. On cross-examination, Dials’s attorney questioned K.J. about

whether the incidents could have been horseplay.

Following the testimony by D.M. and K.J., the State argued that the

door had been opened for the State to call D.T. to testify about an extraneous

offense committed by Dials. Dials objected, and a hearing was held outside

the presence of the jury to determine whether the extraneous offense

testimony should be allowed to be presented to the jury. D.T.’s testimony

included multiple incidents involving indecency with a child by touching and

sexual assault of a child by penetration. The trial court limited D.T.’s

extraneous offense testimony to the incidents involving touching, excluding

any testimony about the incidents involving sexual assault by penetration.

The trial court gave a limiting instruction to the jury that D.T.’s testimony

was to be considered for the purposes of intent and the defensive theory that

D.M. and K.J. were lying.

Dials was found guilty of two counts of indecency with a child by

contact and one count of indecency with a child by exposure.

STANDARD OF REVIEW

In two issues, Dials challenges the admission of testimony regarding an

extraneous offense. A trial court’s ruling on the admissibility of extraneous

offenses is reviewed under an abuse-of-discretion standard. De La Paz v.

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State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the court’s ruling is

within the “zone of reasonable disagreement,” it will be upheld. Id. A trial

court’s ruling to admit an extraneous offense is generally within the zone of

reasonable disagreement if 1) the extraneous transaction is relevant to a

material, non-propensity issue and 2) the probative value of that evidence is

not substantially outweighed by the danger of unfair prejudice, confusion of

the issues or misleading of the jury. Id at 344.

RELEVANCE AND RULE 404

To determine whether the trial court’s ruling to admit the extraneous-

offense testimony was within the zone of reasonable disagreement, we first

determine whether the extraneous-offense evidence was relevant to a

material, non-propensity issue. See id. Texas Rule of Evidence 404 states

that evidence of a crime, wrong, or other act is not admissible to prove a

person’s character to show that on a particular occasion the person acted in

accordance with that character. TEX. R. EVID. Rule 404. However, evidence

of other crimes, wrongs, or acts may be admissible if it has relevance apart

from its tendency to prove the character of a person in order to show that the

person acted in accordance with that character. Montgomery v. State, 810

S.W.2d 372, 387 (Tex. Crim. App. 1990), on reh’g (June 19, 1991). This

evidence may be admissible for another purpose, such as proving motive,

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opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake or lack of accident. TEX. R. EVID. Rule 404(b). These exceptions

listed under Rule 404(b) are not exhaustive. See De La Paz v. State, 279

S.W.3d at 343. Additionally, an extraneous offense may be admissible to

rebut a defensive theory, but the extraneous offense must be similar to the

charged one under this theory of admissibility. See Newton v. State, 301

S.W.3d 315, 317 (Tex. App.—Waco 2009, pet. ref’d).

In his first issue, Dials argues that the extraneous offense of Dials

touching D.T.’s breasts lacks relevance to the charged offenses. 1 Specifically,

he argues that the extraneous offense was not similar enough to the charged

offense to be able to establish a modus operandi. 2 In its brief, the State

argues that the theories of admissibility were not identity or modus operandi,

but rather intent and rebutting the defensive theory of fabrication. This

disagreement between the parties over the non-propensity issue the evidence

was offered to address is of consequence because evidence to establish a

modus operandi to prove identity requires a much higher degree of similarity

1
As part of his first issue, Dials argues that the Rules of Evidence do not allow the trial court to
carve out portions of the extraneous offense as admissible, while keeping out other portions deemed
inadmissible, to “fit the perceived requirements of 404(b).” This was not argued at the trial court,
and therefore was not properly preserved for appeal. See TEX. R. APP. P. 33.1; Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009).
2
Dials also argues that the extraneous offense was too remote to have been admitted. Remoteness is
a consideration not when determining whether extraneous-offense evidence has relevance but rather
when assessing whether the probative value of such evidence is substantially outweighed by the
danger of unfair prejudice or similar concerns under Rule 403. See Newton, 301 S.W.3d at 318.
Therefore, we will wait to address the remoteness argument until the Rule 403 analysis.

Dials v. State Page 5
than the non-propensity issues of intent or rebutting the defensive theory of

fabrication. See Newton, 301 S.W.3d at 317–18; Plante v. State, 692 S.W.2d

487, 493 (Tex. Crim. App. 1985). Therefore, we must first address the

threshold question of what non-propensity issue the extraneous-offense

evidence was offered to address before we can analyze whether the evidence

was relevant to that non-propensity issue.

During a hearing outside the presence of the jury, Dials offered

numerous theories to exclude the evidence, including that the evidence lacked

probative value, was prejudicial, and that is improper character evidence.

The State argued that the extraneous-offense evidence was admissible to

prove intent, rebut the defensive theory that the victim misunderstood the

defendant’s actions, and rebut the defensive theory of false allegations or

false testimony. When the evidence of the extraneous offense was offered in

front of the jury, Dials objected on the basis that it was not relevant, was

highly prejudicial with no probative value, and that it was too remote. The

State argued that it goes to Dials’s intent. Additionally, the limiting

instruction given by the trial court at the time of the extraneous-offense

testimony instructed the jury consider the testimony for the limited purpose

of intent and the defensive theory that the victim is lying. Therefore, the

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record supports that the extraneous-offense evidence was offered for the non-

propensity issues of intent and rebutting the defense theory of fabrication.

To be admissible for intent or rebuttal of a fabrication defense, the

extraneous misconduct must be at least similar to the charged one. See

Newton, 301 S.W.3d at 317–18; Plante, 692 S.W.2d at 492. Here, Dials was

an adult during both the extraneous offense and the charged offenses in this

case. The victims were adolescent girls at the time of Dials’s conduct towards

them. Dials had access to the victims through relationships with their adult

family members. Both the extraneous incident with D.T. and the charged

incident with K.J. involved Dials touching the victim’s breast. Therefore, we

conclude the record shows sufficient similarities between the extraneous

offense and the charged offense to establish the relevance of the extraneous-

offense evidence to determine Dials’s intent and to rebut the defensive theory

of fabrication. See Newton, 301 S.W.3d at 317–18.

RULE 403 ANALYSIS

To determine whether the trial court’s ruling to admit the extraneous-

offense testimony was within the zone of reasonable disagreement, we next

consider whether the probative value of that evidence is substantially

outweighed by the danger of unfair prejudice, confusion of the issues or

misleading of the jury. De La Paz, 279 S.W.3d at 344. Texas Rule of

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Evidence 403 states that the court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence. TEX. R. EVID. Rule 403.

The rule envisions exclusion of evidence only when there is a “clear disparity

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

value.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). The

Court of Criminal Appeals applies the following Rule 403 balancing test to

extraneous offenses:

(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 decision on an improper
basis, (4) any tendency of the evidence to confuse or distract the
jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.

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

In his second issue, Dials argues that the trial court abused its

discretion by admitting extraneous offense evidence because the probative

value was substantially outweighed by the danger of unfair prejudice. Dials

asserts that he was unduly prejudiced because the extraneous offense

occurred 24 years prior to this trial. Additionally, he reasserts that, even

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with the limitations by the trial court of which details of the extraneous

offense were admissible, the extraneous offense differed too greatly from the

charged offense. In assessing whether the trial court abused its discretion by

allowing evidence which the opponent of the evidence argues is substantially

more prejudicial than probative, we look to the factors laid out in

Gigliobianco. 210 S.W.3d at 641-42.

The first and second Gigliobianco factors help establish the probative

value of the evidence by considering “(1) the inherent probative force of the

proffered item of evidence along with (2) the proponent’s need for that

evidence.” See id at 641. First, the “inherent probative force” refers to how

strongly the evidence serves to make more or less probable the existence of a

fact of consequence to the litigation. See id. Dials argues that extraneous

offense was not highly probative due to its remoteness. 3 While remoteness of

the extraneous-offense evidence can lessen its probative value, remoteness is

only one aspect of an offense’s probative value to consider along with the

other factors in the Rule 403 analysis. See Newton, 301 S.W.3d at 320;

Gaytan v. State, 331 S.W.3d 218, 226 (Tex. App.—Austin 2011, pet. ref'd);

West v. State, 554 S.W.3d 234, 239–40 (Tex. App.—Houston [14th Dist.] 2018,

3
Within his second issue, Dials also argues that the extraneous offense evidence differed too greatly from the
charged offenses involving D.M. specifically. This argument was not made at the trial court, and therefore, has not
been properly preserved. See TEX. R. APP. P. 33.1; Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.
2009).

Dials v. State Page 9
no pet.). Second, the proponent’s need for the evidence must be taken into

consideration. See Gigliobianco, 210 S.W.3d at 641. Dials’s attorney

thoroughly developed the defensive theories of fabrication and mistaken

intent during voir dire and the cross examination of both D.M. and K.J.,

asking both girls whether they could have misinterpreted Dials’s actions and

intent during the incidents. He also continued to emphasize these defensive

theories in his cross-examinations of other witnesses and in his closing

arguments. Dials contends that D.T.’s testimony was not necessary due to

the number of other witnesses the State called to testify. As we have already

discussed, D.T.’s testimony was admitted to rebut Dials’s defensive theory of

fabrication and to show his intent. While the State called many witnesses,

none of the other witnesses could provide evidence to rebut the defensive

theories put forward by Dials. See Newton, 301 S.W.3d at 320. Therefore,

the trial court could have reasonably concluded that, despite the remoteness

of the extraneous offense, the State’s need for the evidence still demonstrated

a relatively high probative value. See Newton, 301 S.W.3d at 320.

The remaining Gigliobianco factors address the dangers enumerated in

Rule 403 that must substantially outweigh the probative value established by

the first and second factors in order for the evidence to be excluded. See

Gigliobianco, 210 S.W.3d at 641-42. In this case, the third, fourth, and fifth

Dials v. State Page 10
factors have some overlap. Id at 642. These factors address whether the

evidence has any tendency to (3) suggest decision on an improper basis, (4)

confuse or distract the jury from the main issues, or (5) be given undue

weight by a jury that has not been equipped to evaluate the probative force of

the evidence. Id at 641. Extraneous-offense evidence of this nature can have

a tendency to suggest a verdict on an improper basis because of the

inherently inflammatory and prejudicial nature of crimes of a sexual nature

committed against children. See Newton, 301 S.W.3d at 320. However, the

extraneous-offense testimony discussed actions that were no more serious

than the allegations in the indicted offenses. See Robisheaux v. State, 483

S.W.3d 205, 220 (Tex. App.—Austin 2016, pet. ref’d). Additionally, the

dangers of unfair prejudice, undue weight, or confusion of the issues were

counter-balanced to some extent by the trial court’s limiting instructions at

the time the jury heard the evidence and in the jury charge, providing the

jury with the purpose and scope for which they could consider the evidence.

See Blackwell v. State, 193 S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d). We generally presume that a jury will follow the judge’s

instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).

Finally, the sixth factor considers the likelihood that presentation of the

evidence will consume an inordinate amount of time or merely repeat

Dials v. State Page 11
evidence already admitted. Gigliobianco, 210 S.W.3d at 641-42. The State

spent minimal time developing D.T.’s testimony, and D.T.’s testimony was

not cumulative or repetitive of other evidence. Therefore, while the

extraneous-offense evidence may have been inherently inflammatory, the

trial court could have reasonably concluded that it was not unfairly

prejudicial.

Rule 403 “envisions exclusion of evidence only when there is a clear

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

probative value.” Hammer, 296 S.W.3d at 568. We cannot say that there is a

“clear disparity” between the danger of unfair prejudice posed by the

extraneous-offense evidence and its probative value. Therefore, we cannot say

the court abused its discretion by overruling Dials’s Rule 403 objection.

Considering the foregoing evidence viewed in the light most favorable

to the verdict, we conclude that the trial court did not abuse its discretion in

admitting the extraneous offense testimony. Accordingly, we overrule Dials’s

first and second issues.

Conclusion

Having overruled Dials’s two issues, we affirm the trial court’s

judgment.

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MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: May 1, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Publish
CRPM

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