Manuel Rodriguez v. the State of Texas

Opinion filed May 21, 2026

In The

Eleventh Court of Appeals
__________

No. 11-24-00297-CR
__________

MANUEL RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellees

On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 23305-B

OPINION
When an indicted offense is one that is enumerated in Article 38.37,
Section 2(a) of the Code of Criminal Procedure, as it is here, Section 2(b) permits
the admission of extraneous evidence that shows the defendant has committed a
separate offense of a sexual nature against a child. See TEX. CODE CRIM. PROC. ANN.
art. 38.37 § 2(a)(1)(C), 2(b) (West Supp. 2025). Under such circumstances, to be
admissible, the “child victim” of the offense for which the defendant is on trial need
not be the same child victim of the separate, extraneous offense(s). See Wishert v.
State, 654 S.W.3d 317, 330–31 (Tex. App.—Eastland 2022, pet. ref’d) (collecting
cases).
In this case, a jury convicted Appellant, Manuel Rodriguez, of the offense of
indecency with a child, a second-degree felony. TEX. PENAL CODE ANN.
§ 21.11(a)(1), (d) (West 2026). The trial court assessed his punishment at
imprisonment for twenty years in the Institutional Division of the Texas Department
of Criminal Justice and a $10,000 fine. PENAL § 12.33 (West 2019).
On appeal, Appellant raises two issues contending that: (1) Article 38.37,
Section 2(b) is unconstitutional both facially and as applied to him; and (2) the trial
court abused its discretion when it admitted, pursuant to this statute, evidence of an
allegation that Appellant committed a separate sexual offense against a child. See
CRIM. PROC. art. 38.37, §§ 2(a)(1)(C), (D), 2(b), 2-a. We affirm.
I. Factual Background
Before the venire panel was seated, the trial court held a hearing to consider
the admissibility of outcry testimony and extraneous-offense testimony. The outcry
witness, J.T., is the stepmother of G.T., the victim of the indicted offense.1 The
extraneous-offense witness, K.N, who was seventeen at the time of trial, testified
that when he was twelve Appellant lived with him and his mother and sexually
assaulted him. Appellant objected to the admission of this extraneous-offense
evidence on the grounds that it was (1) too dissimilar to the indicted offense, and

1
To protect the identity of the victims and their families, we refer to them by either pseudonyms or
initials. See TEX. CONST. art. I, § 30(a)(1); TEX. R. APP. P. 9.10(a)(3).

2
(2) unduly prejudicial. The trial court ruled that K.N.’s testimony was admissible
under Article 38.37, Section 2(b).
G.T. and Appellant are part of a large family. J.T. and her husband share ten
children—six are J.T.’s biological children, and the other four, including G.T., are
her stepchildren. During trial, conflicting testimony was presented as to whether
Appellant is the stepson or brother-in-law of one of J.T.’s daughters.
G.T., who was nineteen at the time of trial, testified that when he was fifteen,
Appellant, who was then twenty-seven, fondled G.T.’s penis over his pants.
According to G.T., he had known Appellant for several years because Appellant is
his brother-in-law’s brother. G.T. has an adult stepsister, L.B., who lived with her
husband and three sons; this incident occurred during a sleepover at L.B.’s home.
G.T. testified that he, his brother, and L.B.’s sons played video games and slept in
the bottom bunk of a bunkbed in one of the children’s bedrooms.
After the children went to sleep, Appellant and L.B.’s older son returned from
work. Appellant entered the bedroom and used the light from his cell phone’s screen
to see. At the time, G.T. was awake but the other children were asleep. Appellant
grabbed G.T.’s leg and pulled it straight out, and G.T. felt Appellant’s hand touch
his penis over G.T.’s pants for about fifteen seconds; G.T. curled his legs back up
toward his body and Appellant stopped touching him. G.T. then saw Appellant
leaning over the bed. After pausing, Appellant tugged on G.T.’s leg again, but G.T.
stiffened and resisted. Appellant then climbed up onto the top bunk.
G.T. was “shellshocked” and laid there wondering what to do. He considered
leaving the bedroom to sleep on the couch but decided not to because he was
concerned about his brother and nephew that were sleeping next to him. He then
observed Appellant climb down from the top bunk and go to the other side of the

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bunkbed and “[do] the same stuff” to G.T.’s nephew, who was ten. G.T. told
Appellant to stop and leave them alone, which he did. After that, G.T. remained in
the room with the other children, although he struggled to sleep because he was
afraid.
G.T. texted J.T. around 3:00 a.m. and said that he needed to tell her something.
He outcried to her the next morning after he returned home; J.T. and her husband
thereafter reported this incident to law enforcement. G.T testified he was aware that
Appellant had been accused of sexually abusing a child in Montgomery County (the
incident involving K.N.), although not necessarily “every single detail,” and that the
family “did not want to believe it.”
J.T. testified that Appellant is the stepson of one of her daughters. She
testified that G.T. and her other young son spent the night at L.B.’s house. Although
she received the text that G.T. had sent her, she did not become aware of it until later
that morning. J.T. picked up the children from L.B.’s home that morning, and G.T.
delayed telling her what Appellant had done until he and J.T. were alone. According
to J.T., G.T. said that Appellant fondled his penis over his pants while the children
were asleep in the bottom bunk at L.B.’s house. G.T. said that he was afraid to leave
the bedroom because the other children were there, and he did not want to leave them
alone. G.T. cried as he told J.T. what had occurred. J.T. testified that she, L.B., and
L.B.’s husband had known Appellant for approximately fifteen years, and that
Appellant was “family’s family.” J.T. also testified they were aware that Appellant
had been accused of sexually abusing K.N., and although at first they did not believe
it had occurred, they believed it now.
L.B. testified that J.T. is her mother, G.T. is her stepbrother, and Appellant is
her sister’s brother-in-law. On the night in question, G.T., his brother, and L.B.’s

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sons played video games in their bedroom and fell asleep on the bottom bunk.
Appellant returned from work intoxicated and slept at L.B.’s house that night. After
he arrived, L.B. called her oldest son, who drove Appellant from work, into her
bedroom; Appellant followed, and she told him she was upset that he was intoxicated
and had put her son in that situation, because he only had a permit to drive. L.B.
testified that Appellant then walked down the hall to the bedroom where G.T. and
the other children were sleeping and climbed onto the top bunk. L.B. did not see
Appellant use any lighting device when he entered the bedroom, but she did see him
climb up the ladder and onto the top bunk; she was standing at the door of her room
speaking with her oldest son at the time. She testified that the children’s bedroom
was “quite a distance” away from her bedroom—past the living room and the
kitchen. She went to sleep soon after this and did not know if anything occurred
later that night.
K.N., who was seventeen at the time of trial, testified that when he was twelve,
Appellant, who was then twenty-five, fondled him and sexually assaulted him by
inserting his penis into K.N.’s anus. K.N. was playing video games in the bedroom
that he shared with Appellant; Appellant was also in the room. K.N. finished playing
video games and began playing a game on his cell phone while lying on Appellant’s
bed. Appellant laid down behind him, “spooning” him, and touched K.N.’s “butt”
with his hand and his erect penis. Appellant then pulled down K.N.’s shorts and
inserted his penis into K.N.’s anus. Appellant told K.N. not to tell anyone what he
had done.
K.N.’s grandmother walked past the open bedroom door while Appellant was
“spooning” K.N. in Appellant’s bed, under the covers. When she continued walking
down the hall, K.N. got out of Appellant’s bed and into his own bed. Four days later,

5
K.N. told his mother and grandmother that Appellant had touched him sexually, and
this incident was reported to law enforcement. Later, K.N. reported that Appellant
had sexually assaulted him.
K.N.’s mother, K.B., testified that she worked with Appellant and had invited
him to live in her home and share a bedroom with K.N. because Appellant “was
going through some tough times.” K.B. testified that Appellant sexually assaulted
K.N. on the day Appellant moved in with them.
K.N.’s grandmother, C.V., testified that the family had known Appellant for
about a year because she and K.B. worked with him and had invited him to their
house for crawfish boils or to “hang out.” During that time, before he moved in,
Appellant developed a relationship with K.N. by buying him video games, gift cards,
and taking him to the mall. C.V. testified that although they believed that Appellant
was interested in a relationship with K.N.’s mother, it appeared to her that Appellant
was grooming K.N.
On the day of the incident involving K.N., the door to K.N.’s bedroom was
ajar, and C.V. looked in and saw Appellant and K.N. “spooning” on Appellant’s bed,
under the covers. She looked in again shortly thereafter and K.N. had moved to his
own bed. C.V. was suspicions and “shocked” because she believed they had “split
up” when she had walked by. She told K.B. “something [was] going on in there.”
According to C.V., K.N. at first denied that anything had occurred because K.N. was
twelve and “didn’t know any different. . . . [H]e was just trying to protect his friend.”
After K.N. advised K.B. and C.V. that “something” had occurred with
Appellant, the three of them met Appellant in C.V.’s front yard to listen to his
explanation of events. At first, Appellant denied that anything had occurred, but he
eventually conceded that his “private part probably touched [K.N.’s] butt.” C.V.

6
testified that Appellant told her he was sorry and that he understood she would
probably want to “beat [his] a-s” and to call the police. He then got in his car and
drove away, and they never saw him again.
The State also presented testimony from two Montgomery County Sheriff’s
deputies who investigated K.N.’s outcry and the sexual assault nurse examiner
(SANE) who examined K.N. in January 2020. K.N. told the SANE nurse that
Appellant had “pulled [K.N.’s] pants and [his] underwear down, and [Appellant’s]
wee wee touched [K.N.’s] butt.” When the SANE nurse asked K.N. if Appellant’s
“wee wee [went] into [his] butt?” K.N. confirmed: “Yes.” Appellant’s criminal case
involving the offense he committed against K.N. was still pending at the time of the
trial in this case.
II. Standards of Review and Applicable Law
A. Constitutional Challenges
A facial constitutional challenge attacks the meaning of the statute itself rather
than the statute’s application to the defendant. Peraza v. State, 467 S.W.3d 508, 514
(Tex. Crim. App. 2015). Whether a statute is facially constitutional is a question of
law we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
To resolve a facial challenge to the constitutionality of a statute, we focus “on the
language of the statute itself rather than how it operates in practice.” McGruder v.
State, 483 S.W.3d 880, 883 (Tex. Crim. App. 2016) (internal quotation marks
omitted). Generally, with a facial challenge, it is the challenger’s burden to establish
that the statute operates unconstitutionally in every application. Ex parte Stafford,
726 S.W.3d 231, 235 (Tex. Crim. App. 2024) (“To mount a successful facial
constitutional challenge, the challenger must establish that no set of circumstances
exists under which the statute would be valid or that the statute lacks any plainly

7
legitimate sweep.”); Lo, 424 S.W.3d at 15. In our review, we make every reasonable
presumption in favor of the statute’s constitutionality, unless the contrary is clearly
shown. Peraza, 467 S.W.3d at 514.
An as-applied challenge “concedes the general constitutionality of the statute,
but asserts that the statute is unconstitutional as applied to [the defendant’s]
particular facts and circumstances.” Davis v. State, No. AP-77,106, 2026 WL
692433, at *17 (Tex. Crim. App. Mar. 12, 2026) (quoting State ex rel. Lykos v. Fine,
330 S.W.3d 904, 910 (Tex. Crim. App. 2011)); Estes v. State, 546 S.W.3d 691, 698
(Tex. Crim. App. 2018). Because a statute may be valid as applied to one set of facts
and invalid as applied to another, the defendant must show that, in its operation, the
challenged statute was unconstitutionally applied to him. Fine, 330 S.W.3d at 910.
Under either type of constitutional challenge, we begin with the presumption
that the challenged statute is valid, and that the legislature has not acted unreasonably
or arbitrarily by enacting it. Id.; see Faust v. State, 491 S.W.3d 733, 744 (Tex. Crim.
App. 2015); Lo, 424 S.W.3d at 14–15; State v. Rosseau, 396 S.W.3d 550, 557 (Tex.
Crim. App. 2013); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978);
see also TEX. GOV’T CODE ANN. § 311.021(1) (West 2013). The Due Process
Clauses of the Fifth and Fourteenth Amendments protect a person from the
deprivation of life, liberty, or property without due process of law. U.S. CONST.
amends. V, XIV, § 1. To establish a due process violation, it is Appellant’s burden
to show that the challenged statute violates those “‘fundamental conceptions of
justice which lie at the base of our civil and political institutions,’ and which define
‘the community’s sense of fair play and decency.’” Dowling v. United States, 493
U.S. 342, 352–53 (1990) (internal citations omitted) (quoting United States v.

8
Lovasco, 431 U.S. 783, 790 (1977)); Buxton v. State, 526 S.W.3d 666, 686 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d).
B. Evidentiary Challenge
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019);
Wishert, 654 S.W.3d at 329. This standard also applies to a trial court’s decision to
admit or exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336,
343 (Tex. Crim. App. 2009); Wishert, 654 S.W.3d at 329; Barron v. State, 630
S.W.3d 392, 410 (Tex. App.—Eastland 2021, pet. ref’d). We will not reverse a trial
court’s decision to admit or exclude evidence, and there is no abuse of discretion,
unless that decision lies outside the zone of reasonable disagreement. Beham v.
State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); De La Paz, 279 S.W.3d at 343–
44; Barron, 630 S.W.3d at 410. Furthermore, we will uphold a trial court’s
evidentiary ruling, even if the trial court’s reasoning is flawed, if it is correct on any
legal theory that finds support in the record and is applicable to the case. Henley v.
State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016); Wishert, 654 S.W.3d at 329;
Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.).
III. Analysis
A. Constitutionality of Article 38.37, Section 2(b)
In his first issue, Appellant contends that Article 38.37, Section 2(b) is
unconstitutional, both facially and as applied to him, because it violates the due
process protections guaranteed by the United States Constitution.
Article 38.37, Section 2(b) states:
(b) 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

9
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.
CRIM. PROC. art. 38.37, § 2(b).
As a threshold matter, the State contends, and we agree, that Appellant did not
preserve his constitutional challenges for appellate review. A challenge to the
constitutionality of a statute is a forfeitable right and must be preserved in the trial
court either during or after trial. Solis v. State, 726 S.W.3d 394, 413 (Tex. Crim.
App. 2025) (first citing TEX. R. APP. P. 33.1(a); then citing Reynolds v. State, 423
S.W.3d 377, 383 (Tex. Crim. App. 2014); and then citing Karenev v. State, 281
S.W.3d 428, 434 (Tex. Crim. App. 2009)); Cruz v. State, 698 S.W.3d 265, 268 (Tex.
Crim. App. 2024). Both facial and as-applied challenges must first be raised and
addressed in the trial court to preserve either complaint for appellate review. Solis,
726 S.W.3d at 413; Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App.
2008); see TEX. R. APP. P. 33.1.
At the hearing before the jury was seated, Appellant objected to the use, and
subsequent admission, of K.N.’s testimony on the grounds that it involved a different
type of offense—sexual assault, rather than indecency with a child—and that this
difference rendered the extraneous-offense evidence unduly prejudicial. Neither
objection raised the constitutional challenges to K.N.’s testimony that Appellant now
asserts on appeal; therefore, they were not preserved for our review. See TEX. R.
APP. P. 33.1; Karenev, 281 S.W.3d at 434 (“[A] defendant may not raise for the first
time on appeal a facial challenge to the constitutionality of a statute.”); Cooper v.
State, 673 S.W.3d 724, 749 (Tex. App.—Fort Worth 2023, no pet.) (“A
constitutional objection must also alert the trial court to the constitutional bases for

10
the objection, allowing the trial court to make a reasoned ruling.”). Though
Appellant’s arguments on appeal—that the admission of this extraneous-offense
evidence is unduly prejudicial and that such extraneous-offense evidence is always
so prejudicial as to render the statute unconstitutional—overlap, these complaints
are clearly distinct, a fact acknowledged by Appellant’s discrete presentation of each
in his brief.
Nevertheless, even if Appellant had properly raised and preserved his
constitutional challenges for our review, as we discuss below, they would fail.
B. Facial Challenge
At the outset, we note that the courts of appeals that have considered this same
argument have uniformly held that Article 38.37, Section 2(b) is facially
constitutional. See, e.g., Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler
2015, no pet.); Harris v. State, 475 S.W.3d 395, 403 (Tex. App—Houston [14th
Dist.] 2015, pet. ref’d). 2 We agree with our sister courts. Put simply: “The special
circumstances surrounding the sexual assault of a child victim outweigh normal
concerns [that are] associated with evidence of extraneous acts.” Jenkins v. State,
993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d).
Appellant acknowledges the uniform agreement of the courts of appeals on
this issue; however, he nonetheless states that he “disagrees” with these courts’
interpretations of the statute. Appellant urges us to recognize what he characterizes
as the “fallacy in reasoning” embedded in Article 38.37, Section 2(b) and the courts

2
We have not addressed this specific issue until today; however, every Texas court since Harris
that has upheld the constitutionality of Article 38.37, Section 2, has also done so when confronted with due
process challenges. See Avila v. State, No. 05-24-00160-CR, 2025 WL 3670491, at *2 (Tex. App.—Dallas
Dec. 17, 2025, no pet.) (mem. op., not designated for publication) (collecting cases); Torres v. State, No. 08-
19-00309-CR, 2021 WL 3013307, at *8 (Tex. App.—El Paso July 16, 2021, no pet.) (not designated for
publication) (same).

11
of appeals’ decisions that have upheld its constitutionality. He further asserts that
the admission of extraneous-offense evidence pursuant to Article 38.37, Section 2(b)
is so inherently prejudicial as to invert the presumption of innocence that is due every
defendant, and that the procedural protections—such as the required thirty days’
notice the State must provide of its intent to introduce extraneous-offense evidence,
the trial court’s required pre-trial determination of the admissibility of this and other
evidence, the Rule 403 balancing test, and the State’s burden to prove the
defendant’s guilt beyond a reasonable doubt—are insufficient and illusory.
The concerns expressed by Appellant have been thoroughly addressed by our
sister courts, and, in each instance, resolved against the position that he now
advances. For example, in Belcher, the court reviewed the history of propensity
evidence, specifically in the context of extraneous offenses that are offered to show
character conformity, under both the Federal and Texas Rules of Evidence. See
Belcher, 474 S.W.3d at 844–45 (explaining that child sexual abuse cases present
evidentiary problems not resolved by any of the exceptions to Rule 404 of the Texas
Rules of Evidence, and that in such cases the prosecution must rely on the largely
uncorroborated testimony of the child victim, which results in the focal issue
becoming the child’s credibility); Harris, 475 S.W.3d at 402 (“Prosecuting sex
crimes committed against children can be difficult due to the physical and emotional
trauma suffered by the victims. . . . Children often are targeted for these crimes, in
part because they tend to make poor witnesses.”) (quoting Senate Comm. on Crim.
Just., Bill Analysis, Tex. S.B. 12, 83rd Leg., R.S. (2013)). The courts in Belcher
and in Harris further explained that the legislature modeled Article 38.37,
Section 2(b) after the text of Rule 413(a) of the Federal Rules of Evidence, a rule
which is broader in scope and has been held not to violate the due process clause.

12
See Belcher, 474 S.W.3d at 845–46 (citing United States v. Mound, 149 F.3d 799,
801 (8th Cir. 1998)); Harris, 475 S.W.3d at 401 (first citing Mound, 149 F.3d at 801;
and then citing United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998)).
In holding that Article 38.37, Section 2(b) does not violate due process, our
sister courts emphasized that the procedural safeguards present in the statute itself,
as well as the protections embodied in Rule 403 of the Texas Rules of Evidence, are
adequate to ensure that a defendant receives a fair trial. Caston v. State, 549 S.W.3d
601, 610 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (collecting cases). The
State is required to give notice of its intention to offer Article 38.37 evidence no later
than thirty days prior to trial. CRIM. PROC. art. 38.37, § 3. Before the extraneous
evidence may be introduced, the trial court is required to hold a hearing outside the
presence of the jury to determine whether the extraneous evidence to be offered at
trial will be adequate to support a jury’s finding that the defendant committed the
extraneous offense beyond a reasonable doubt. Id. § 2-a; Wishert, 654 S.W.3d at
331; see also Buxton, 526 S.W.3d at 688 n.4 (noting that Rules 413 and 414 of the
Federal Rules of Evidence, which have been repeatedly held to be constitutional, do
not contain this procedural safeguard). And Section 2(b) remains subject to the Rule
403 balancing test, which permits the trial court to exclude the extraneous evidence
if it determines that the probative value of the proffered evidence is substantially
outweighed by the danger of unfair prejudice. See Belcher, 474 S.W.3d at 847; see
also United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (holding that if
the protections of Rule 403 remain in place, the right to a fair trial remains
adequately safeguarded even though Rule 414 of the Federal Rules of Evidence
permits the admission of character propensity evidence). Thus, and contrary to
Appellant’s assertions, Article 38.37, Section 2(b) does not reduce the State’s burden

13
of proof or invert Appellant’s presumption of innocence. See, e.g., Caston, 549
S.W.3d at 611; Torres, 2021 WL 3013307, at *8.
Therefore, we conclude, as our sister courts have, that Article 38.37,
Section 2(b) does not violate due process and is facially constitutional. See, e.g.,
Belcher, 474 S.W.3d at 848; Harris, 475 S.W.3d at 403.
C. As-Applied Challenge
Appellant further contends that Article 38.37, Section 2(b) is unconstitutional
as applied to him because there is nothing in the record that the extraneous evidence
(1) would rebut any defensive theory upon which he relied, or (2) has any relevance
apart from establishing character conformity. But, as we have explained, these
reasons are not unconstitutional “as-applied” in the context of an offense involving
the sexual abuse of a child, the purpose and scope for which Article 38.37, Section
2(b) was specifically enacted to address. See Deggs v. State, 646 S.W.3d 916, 922
(Tex. App.—Waco 2022, pet. ref’d) (holding that extraneous evidence is admissible
for any relevant purpose under Article 38.37, Section 2(b), including to show a
defendant’s propensity to act in conformity with his character, and also rejecting an
as-applied challenge to Article 38.37, Section 2(b)); see also Wishert, 654 S.W.3d
at 333 (observing that “[t]he admissibility of a defendant’s commission of separate,
similar offenses against a minor child that are sexual in nature is precisely the
purpose and scope of what Article 38.37, Section 2(b) encompasses”); Harris, 475
S.W.3d at 403 (holding that the legislature chose to create another exception to the
prohibition of admitting evidence of extraneous offenses when it enacted Article
38.37, Section 2(b)).
There is nothing in the record that shows that the statute was applied to
Appellant in an unconstitutional manner; rather, its application was consistent with

14
its unambiguous intent. Wishert, 654 S.W.3d at 333; Deggs, 646 S.W.3d at 922.
Therefore, we conclude that Article 38.37, Section 2(b) is not unconstitutional as
applied to Appellant.
Accordingly, we overrule Appellant’s first issue.
D. Evidentiary Challenge – Rule 403
In his second issue, Appellant contends that the trial court abused its discretion
when it admitted the complained-of extraneous evidence pursuant to Article 38.37,
Section 2(b), and that this abuse of discretion constitutes harmful error.
When evidence of a defendant’s extraneous acts is determined to be relevant
and admissible under Article 38.37, Section 2(b), this evidence may nonetheless be
subject to exclusion under Rule 403 if a proper objection or request is presented to
the trial court. Wishert, 654 S.W.3d at 331; see TEX. R. EVID. 403. Rule 403
provides that a trial court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.
Gonzalez v. State, 544 S.W.3d 363, 371–72 (Tex. Crim. App. 2018) (citing TEX. R.
EVID. 403).
Because Rule 403 favors the admissibility of relevant evidence, it is presumed
that relevant evidence will be “more probative than prejudicial.” Wishert, 654
S.W.3d at 333 (citing Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002)).
The intent of Rule 403 is not to exclude all evidence that tends to prejudice the
defendant’s case. Id. (citing Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App.
2010)). Rather, the rule only prohibits the admission of evidence that is unfairly
prejudicial and influences the jury to decide an issue on an improper basis. Id.; see
Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002); Montgomery v. State,

15
810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g); Render v. State, 347
S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d).
Given that evidence of other acts of sexual abuse committed against children
is especially probative of a defendant’s propensity to sexually assault them, the
Rule 403 balancing analysis normally will not favor the exclusion of such evidence.
Wishert, 654 S.W.3d at 333 (citing Caston, 549 S.W.3d at 612); Alvarez v. State,
491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Granted,
we recognize that “all evidence against a defendant is . . . designed to be prejudicial.”
Wishert, 654 S.W.3d at 333 (quoting Pawlak v. State, 420 S.W.3d 807, 811 (Tex.
Crim. App. 2013)). However, because evidence of extraneous acts of sexual abuse
against children will nearly always be prejudicial, Rule 403 only protects a criminal
defendant from unfair prejudice, not all prejudice. Wishert, 654 S.W.3d at 334; see
Parker v. State, No. 03-24-00298-CR, 2026 WL 450704, at *5 (Tex. App.—Austin
Feb. 18, 2026, no pet.) (mem. op., not designated for publication) (stating that the
evidence, although prejudicial, was not unfairly so, given that the case was “a ‘he
said, she said’ case—the exact kind [that was] contemplated by the legislature when
it enacted article 38.37”).
In reviewing a trial court’s Rule 403 determination, we “measure the trial
court’s ruling against the relevant criteria by which a Rule 403 decision is made” by
considering:
(1) how compellingly the extraneous evidence serves to make a fact of
consequence more or less probable; (2) the potential the other offense
evidence has to impress the jury “in some irrational but nevertheless
indelible way”; (3) the time needed to develop the evidence; [and]
(4) the force of the proponent’s need for this evidence to prove a fact of
consequence.

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Perkins v. State, 664 S.W.3d 209, 217 (Tex. Crim. App. 2022) (quoting Mozon v.
State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)); Colone v. State, 573 S.W.3d
249, 266 (Tex. Crim. App. 2019); see Gigliobianco v. State, 210 S.W.3d 637, 641–
42 (Tex. Crim. App. 2006).
1. The Extraneous Evidence is Compelling and Makes a Fact of
Consequence More Probable
Appellant acknowledges that “evidence of prior sexual abuse of children is
especially probative of a defendant’s propensity to sexually assault [them], thus
[more] often than not, the [R]ule 403 balancing test will not exclude evidence of any
prior sexual assaults of children.” We agree. See Wishert, 654 S.W.3d at 330 (Such
evidence is admissible as proof of the defendant’s character and propensity to act in
conformity with such character, when the indicted offense concerns certain sexual
offenses against a child.). Moreover, Article 38.37, Section 2(b) expressly
authorizes the admission of this type of evidence “for any bearing the evidence has
on relevant matters.” CRIM. PROC. art. 38.37, § 2(b); see Wishert, 654 S.W.3d at 330
n.1 (collecting cases).
Here, the extraneous-offense evidence was highly probative of Appellant’s
propensity to sexually abuse children, carried a low likelihood of unfair prejudice,
and bore on a crucial issue: whether Appellant had a sexual interest in young male
children within his immediate family or from a household that treated him like
family. See Torres, 2021 WL 3013307, at *6 (“[T]he testimony was particularly
probative to show Torres’s propensity to commit sexual offenses against children
who are members of his family or of a family of close friends who treat him as if he
is a member of their family.”); Parker, 2026 WL 450704, at *2 (“[T]he extraneous-
offense evidence bore on a subject of genuine controversy—whether Parker had a
sexual interest in children.”); see also Montgomery, 810 S.W.2d at 390 (explaining

17
that the probative value of evidence “is often, although by no means invariably, a
function of the similarity of the extraneous transaction to the charged offense”).
As we said in Wishert, Article 38.37, Section 2(b) was designed to allow for
the admissibility of a defendant’s other, similar offenses that he committed against
minor children that are “sexual in nature.” 654 S.W.3d at 333. The extraneous
evidence admitted by the trial court tended to (1) make a fact of consequence more
probable, and (2) show Appellant’s motive, opportunity, and intent to commit other,
similar incidents of sexually abusive conduct against male children. Further, beyond
the typical permissible factors, this evidence was also admissible to show the
character of Appellant and to prove that he acted in conformity with that character.
CRIM. PROC. art. 38.37, § 2(b).
Therefore, we conclude that this factor weighs in favor of admission.
2. The Evidence had a Low Potential to Impress the Jury in Some
Irrational, Yet Indelible Way
Appellant contends that the extraneous-offense evidence was inherently
inflammatory and prejudicial, to such a degree that its admission instantly inverted
the presumption of innocence, reduced the State’s burden of proof, and permitted
the jury to find him guilty of the charged offense based solely on his association with
having committed other crimes or for being a child molester generally. Most jurors,
he asserts, presume the veracity of extraneous-offense evidence, that the use of such
evidence is for no reason other than to inflame the jury, and that the jury will
therefore always convict the defendant for being a child molester, rather than
because they concluded that the State proved the defendant’s guilt beyond a
reasonable doubt.
Extraneous-offense evidence of sexually related misconduct committed
against children is inherently prejudicial and naturally inflammatory, but Rule 403

18
only provides for the exclusion of this type of evidence in cases such as this when it
is found to be unfairly prejudicial, not merely prejudicial. See, e.g., Wishert, 654
S.W.3d at 333; Parker, 2026 WL 450704, at *2; Torres, 2021 WL 3013307, at *6.
And, although such evidence could “encourage a decision on an improper basis by
arousing the jury’s sympathy or hostility without regard to the logical probative force
of the evidence or distract the jury from the main issue in the case,” to be excluded,
this evidence must do so in a manner that substantially outweighs the probative value
of that evidence. Parker, 2026 WL 450704, at *2 (citing Valadez v. State, 663
S.W.3d 133, 142 (Tex. Crim. App. 2022)).
In this case, there are numerous and striking similarities in the allegations that
pertain to the indicted offense and the extraneous offenses—namely, that Appellant
sexually abused G.T. and K.N. in a bedroom that he shared with each of them for
one night and while the children were in bed. See, e.g., Parker, 2026 WL 450704,
at *2; Bonnet v. State, No. 01-23-00086-CR, 2025 WL 554198, at *4 (Tex. App.—
Houston [1st Dist.] Feb. 20, 2025, pet. ref’d) (mem. op., not designated for
publication) (“[A]lthough certain aspects of the charged offense in this case may
have differed from the extraneous sexual offenses, there were significant
similarities.”); Love v. State, 706 S.W.3d 584, 614 (Tex. App.—Austin 2024, pet.
ref’d) (“The extraneous offenses committed by Love against Turner were similar in
kind, intensity, and frequency to his charged conduct.”).
G.T. described that Appellant touched his genitals over his clothes for about
fifteen seconds, whereas K.N. testified that Appellant touched him sexually before
sexually assaulting him by inserting his penis into K.N.’s anus. K.N. was twelve
and G.T. was fifteen when Appellant sexually abused them. Both children knew
Appellant as either a family member or a family friend, and Appellant stayed in their

19
homes. And both offenses occurred in a bedroom, on a bed, with the bedroom door
open and potential witnesses nearby. These two offenses alone demonstrate a clear
pattern of behavior that is representative of Appellant’s propensity to commit acts
of sexual abuse against children. See, e.g., Bonnet, 2025 WL 554198, at *4; Torres,
2021 WL 3013307, at *6 (the prejudicial nature of the testimony was particularly
probative to show Torres’s propensity to commit sexual offenses against children).
Nothing in the record suggests that this extraneous-offense evidence confused
or distracted the jury, was given undue weight, or influenced the jury to decide the
case on an improper basis. See Belcher, 474 S.W.3d at 848 (noting that even though
the extraneous sexual offense evidence involving another child was “more repugnant
and inflammatory than the offense alleged against” the named complainant, the trial
court did not violate Rule 403 by admitting the evidence); Broadus v. State, No. 03-
24-00134-CR, 2026 WL 404675, at *7 (Tex. App.—Austin Feb. 13, 2026, no pet.)
(mem. op., not designated for publication) (holding that the admission of extraneous
sexual offense allegations, which could be seen as more egregious than the charged
offense, was not unfairly prejudicial).
Moreover, we note that the trial court included a limiting instruction in its
guilt/innocence charge that the jury was not to consider the extraneous-offense
evidence for any purpose unless it found, beyond a reasonable doubt, that Appellant
had committed those offenses. The instruction also advised the jury that, if they did
consider the extraneous-offense evidence, to be mindful that Appellant was not on
trial for any offense not alleged in the indictment and that, to find Appellant guilty,
they could only do so if they were satisfied that the State had proved all elements of
the indicted offense beyond a reasonable doubt. We presume that a jury follows a
trial court’s instructions regarding the consideration of evidence, and its instruction

20
here mitigated any potential harm or improper consideration of this evidence. See
Wishert, 654 S.W.3d at 334 (citing Gamboa v. State, 296 S.W.3d 574, 580 (Tex.
Crim. App. 2009)); Luna v. State, No. 10-21-00198-CR, 2022 WL 3269110, at *5
(Tex. App.—Waco Aug. 10, 2022, no pet.) (citing Resendiz v. State, 112 S.W.3d
541, 546 (Tex. Crim. App. 2003)); Barron, 630 S.W.3d at 412–13.
Therefore, we conclude that this factor weighs in favor of admission.
3. The Time Needed to Develop the Evidence Was Significant
Appellant does not offer argument addressing this aspect of the Rule 403
balancing analysis. This factor looks to the time the proponent needs to develop the
evidence during which the jury might be distracted from consideration of the
indicted offense. State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005).
Courts generally agree that where the presentation of extraneous-offense evidence
consumes a significant portion of the trial, this factor will weigh in favor of
exclusion. See James v. State, 623 S.W.3d 533, 550–51 (Tex. App.—Fort Worth
2021, no pet.); Newton v. State, 301 S.W.3d 315, 321 (Tex. App.—Waco 2009, pet.
ref’d).
The State’s case-in-chief focused heavily on Appellant’s extraneous
misconduct. See Joseph v. State, No. 14-25-00062-CR, 2026 WL 805756, at *4
(Tex. App.—Houston [14th Dist.] Mar. 24, 2026, no pet. h.) (“[M]ost of the trial
focused on the extraneous sexual assaults . . . the prosecution called on not just the
complainant, but also his mother, his grandmother, a sheriff’s deputy, a SANE nurse,
and a forensic analyst.”). By our count, the reporter’s record shows that of the 221
pages that are dedicated to the State’s development of evidence at trial, 152 pages
concerns the presentation of extraneous-offense evidence, while only 80 pages
pertain to direct evidence of the indicted offense. See Lane v. State, 933 S.W.2d

21
504, 520 (Tex. Crim. App. 1996) (measuring the ratio of trial testimony dedicated
to extraneous-offense evidence); Broadus, 2026 WL 404675, at *7 (measuring the
reporter’s record pages in evaluating this factor).
Therefore, we conclude that this factor weighs in favor of exclusion. See
James, 623 S.W.3d at 550–51; Newton, 301 S.W.3d at 321; see also Joseph, 2026
WL 805756, at *4.
4. The State’s Need for the Evidence to Prove a Fact of Consequence
was High
Prosecutions that involve sexual offenses against children are often “he said,
she said” scenarios; that is, the jury is called upon to decide the case solely upon two
completely different versions of events, unaided by tangible evidence. See Parker,
2026 WL 450704, at *4. In such circumstances, where the child victim’s credibility
becomes the focal issue in the case, Rule 403 exclusions should be used “sparingly.”
See id. (quoting Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009));
Wishert, 654 S.W.3d at 334 (“The State’s need for presenting evidence of
similar incidences of sexual abuse committed by [the appellant] against his other
children . . . when they were minors was high and extremely important to the State’s
goal to establish the truthfulness of R.W.’s testimony that [the appellant] had
repeatedly sexually abused her.”).3

3
See, e.g., Torres, 2021 WL 3013307, at *5 (“[T]he State’s need for the evidence was great as there
was no third-party eyewitness or physical evidence corroborating Z.S’s account . . . [and] Z.S.’s credibility
was integral to the State’s case.”); Caston, 549 S.W.3d at 612 (“Without S.C.’s testimony concerning
similar acts that appellant committed against her in similar circumstances, ‘the State’s case would have
basically come down to’ T.H’s word against appellant’s.”) (quoting Robisheaux v. State, 483 S.W.3d 205,
220 (Tex. App.—Austin 2016, pet. ref’d)); Belcher, 474 S.W.3d at 848 (stating that H.C.’s credibility was
clearly the focal issue in the case when there was no third-party eyewitness or physical evidence supporting
her accusation and her mother initially doubted her accusation).

22
Such is the case here. There was no physical evidence presented to show that
Appellant committed these sexual offenses. L.B. testified that she could see into the
children’s bedroom from her bedroom door and that she watched Appellant walk
into the children’s bedroom and climb onto the top bunk. The defense proposed a
different version of events—that Appellant did not touch G.T. or K.N. in a sexual
manner for the purpose of his own sexual gratification—which is completely
contrary to G.T.’s and K.N.’s accounts. Further, as is often the circumstance, the
direct evidence of the indicted offense was provided almost exclusively through
G.T.’s testimony. Thus, the State’s need to present extraneous evidence of the
incident involving K.N. was great and extremely important to its goal to establish
the truthfulness of G.T.’s testimony.
Because G.T.’s credibility was the focal issue in this case, and the State’s need
for the use of the extraneous evidence was great, we conclude that this factor weighs
in favor of admission. See Wishert, 654 S.W.3d at 334; Caston, 549 S.W.3d at 612;
Belcher, 474 S.W.3d at 848; Parker, 2026 WL 450704, at *4; Torres, 2021 WL
3013307, at *5.
5. Consideration of all Balancing Factors
It has been said that Rule 403 contemplates the exclusion of evidence only
when there is a “clear disparity” between the proffered evidence’s prejudice and its
probative value. Hammer, 296 S.W.3d at 568 (quoting Conner v. State, 67 S.W.3d
192, 202 (Tex. Crim. App. 2001)). After measuring the trial court’s ruling against
the relevant criteria, we conclude that there is no “clear disparity between the degree
of prejudice of the offered evidence and its probative value.” Parker, 2026 WL
450704, at *5 (quoting Conner, 67 S.W.3d at 202). The admission of the extraneous-
offense evidence, while inherently prejudicial, “was not unfairly so, given that the

23
case was a ‘he said, she said’ case—the exact kind contemplated by the legislature
when it enacted [A]rticle 38.37.” Id. (citing Bradshaw v. State, 466 S.W.3d 875,
883–84 (Tex. App.—Texarkana 2015, pet. ref’d)).
Therefore, considering the standard of review that we must employ, we hold
that the trial court did not abuse its discretion when it admitted the challenged
extraneous-offense evidence. See Joseph, 2026 WL 805756, at *4; Parker, 2026
WL 450704, at *4.
Accordingly, we overrule Appellant’s second issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

May 21, 2026
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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