Andrew Scott Riggs v. the State of Texas

Affirmed and Majority Memorandum Opinion filed February 6, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00515-CR

ANDREW SCOTT RIGGS, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 89th District Court
Wichita County, Texas
Trial Court Cause No. 56,662-C

MAJORITY MEMORANDUM OPINION1

Appellant Andrew Scott Riggs was convicted with indecency with a child by
sexual contact and sentenced to five-years imprisonment. His three-issue appeal
challenges the trial court’s admission of the State’s evidence—expert testimony
about the reasons for the complainant’s delayed outcry, evidence about two
extraneous acts involving complainant which appellant contends was inadmissible

1
Justice Spain concurs without opinion.
character-conformity evidence, and evidence of a third extraneous act for which
appellant contends reasonable notice was lacking. The State responded, arguing
that each issue appellant raises was not preserved, that each evidentiary ruling was
not erroneous, and that even if it were, no harm resulted from the evidentiary
admission. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A grand jury indicted Appellant with indecency with a child by sexual
contact. The grand jury alleged that with the intent to arouse or gratify his own
sexual desire, appellant had touched Rowana’s2 breast.

Appellant was Rowana’s second uncle by marriage, and she called him
“Uncle Drew.” Rowana was 18 years old at time of trial. Appellant and Rowana’s
mother, Kathy, became romantically involved when Rowana was six, and appellant
moved in with the family in a home in Wichita Falls in 2009. Rowana testified
that appellant began to come into her room to cuddle and rub her back when she
went to bed. She testified that one time when she was about twelve, she awoke to
find appellant’s hand “under her bra on her left boob.” She testified that the same
touching occurred many times after that, but she was afraid to tell her mom. On
one occasion, Rowana explained, when she lay in bed with her back to him,
appellant put his penis between her legs and moved it back and forth. This
incident also was not reported.

Rowana testified appellant’s incursions into her room that involved
inappropriate touching occurred “regularly” for several years. In mid-2012,
Rowana spoke to a counsellor, Carrie Gardner (also known as “Carrie Andree”),
for the first time, not to deal with issues related to appellant, but to deal instead

2
To protect the complainant’s identity, we have not used her actual name since she was a
minor at the time of the offense. See Tex. R. App. P. 9.8.

2
with issues related to her grandfather’s death with whom Rowana had been close.
Rowana did not mention any sexual contacts with appellant during those first
counselling sessions in 2012.

Kathy, Rowana’s mother, testified that in mid-2012, she walked in on
appellant in her daughter’s bedroom at 3 a.m. to find appellant in Rowana’s twin
bed. Kathy testified that appellant was wearing a t-shirt and boxers. Kathy said he
stumbled from the bed with a beer bottle in his hand, and that appellant denied
doing anything inappropriate with Rowana and went to take a shower.
Notwithstanding his claim of innocence, Kathy called police and CPS. Rowana
was taken to Patsy’s House in Wichita Falls for her first forensic interview. At the
time Rowana was 9 years-old, and she denied anything inappropriate had occurred
between her and appellant. Anticipating a potential prosecution, Wichita Falls
police gathered evidence from the home including Rowana’s bedclothes, a DNA
swab from appellant, as well as his boxer shorts retrieved from the family’s clothes
hamper. After Rowana denied in her forensic interview that anything inappropriate
had occurred, the case was dropped.

Kathy testified that soon after she left appellant and moved with her three
children, (Rowana, Rowana’s brother Manuel, and Rowana’s new baby brother by
appellant, Baby), to Garland for a time. But, after a short stay, the four moved back
to Wichita Falls to live with appellant once more. In 2015, the relationship soured
again, and Kathy moved out of the house with her children to Burkburnett. There,
she soon took up with a new boyfriend, Stephan, whom she eventually married.

One day during a cookout around July 4th of 2015, when Rowana was alone
with Stephan outside the house, Rowana suggested to Stephan, her stepfather, that
appellant had touched her inappropriately. Stephan told Rowana’s mother about
the conversation. Rowana then told her mother appellant had “touched her” but

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wouldn’t say more. Kathy took Rowana back to her counsellor, Ms. Gardner,
hoping she would open up about what had happened. Eventually, following
directives from police, Rowana also went for a second forensic interview at Patsy’s
House in Wichita Falls. There, she related to the forensic interviewer that appellant
had touched her “boobs” and had rubbed his penis between her thighs. She told
the interviewer that appellant’s inappropriate contacts had occurred a number of
times over the years – on a “weekly” basis, she said – and that once, while she had
her back to him, he had put his penis between her thighs and pushed it back and
forth. She also told the interviewer appellant had one time tried to guide her hand
to his penis, and, on another occasion, had attempted to masturbate, using her feet
to “give himself a foot job”.

Shannon Althouse, the forensic interviewer for Rowana’s 2012 and 2015
forensic interviews, testified that Rowana made outcry to her in the forensic
interview in 2015 as alleged in appellant’s indictment and as set forth above. She
had made no outcry in 2012. Althouse also testified that during the 2015 interview,
Rowana was approximately 12 years-old, she was consistent in the details she
described, she said the abuse occurred regularly over the course of years, and she
recounted specific sensory impressions related to the alleged sexual contacts.

Several forensic experts testified concerning their efforts to compare
appellant’s known DNA samples to evidence gathered at the scene in 2012 when
police had initially investigated claims by Kathy that appellant had acted
inappropriately with her daughter. DNA forensic scientists from Garland’s DPS lab
testified to finding two semen cells in underwear appellant allegedly wore in the
2012 incident. After the State presented testimony that two semen cells were found
in those boxer shorts from 2012, the defense elicited testimony from the same lab
scientists that normal ejaculate contains hundreds of millions of such cells, and that

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the scientists could not tell when or how the two sperm cells got on appellant’s
underwear. One DNA expert also admitted the cells could have survived machine
washings – from which it could be inferred the two semen cells had been on the
underwear long before the incident in question.

Various police officers testified about extracting data from appellant’s cell
phone using Cellebrite technology. The officer’s testimony established that several
texts were retrieved from appellant’s cellphone. These texts were read to the jury.
In those texts, appellant apologized to his wife for “abusing [Rowana’s] trust” in
2015 when he went into her room and lay in her bed. The State implied the
various messages were admissions of guilt.

In his defense, appellant presented several witnesses that testified to his
good character and to Rowana’s bad reputation for truthfulness. For example,
Ricardo, appellant’s first cousin, testified that Rowana’s reputation for truthfulness
was bad. Ricardo also testified that she had grown up with Rowana, that she had
seen Rowana and appellant interact on a weekly if not daily basis, and that she had
never seen any inappropriate behavior on appellant’s part toward Rowana.

Appellant testified that he and Rowana’s mother were both alcoholics, but
he denied he ever did anything inappropriate with Rowana. He also testified about
the incident in 2012 where his then-wife found him in Rowana’s bed. He told the
jury he had fallen asleep in Rowana’s bed after a night of heavy drinking on the
night in question, but he maintained he had originally gone into the child’s
bedroom to comfort her and help her get to sleep – something he often did. He
maintained that his efforts to comfort his stepdaughter were innocent.

Appellant testified that the apologies reflected in the texts were intended to
address his decision to enter Rowana’s bedroom uninvited to comfort himself
during his on-going bouts with depression and were not meant as apologies for any
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inappropriate behavior.

The jury deliberated and found appellant guilty as charged.

During the punishment phase, appellant presented five witnesses in defense
of his character and witnesses, including Rowana’s father, who continued to attack
Rowana’s credibility. The jury assessed five years’ confinement and a $2,000 fine.
The trial court sentenced appellant accordingly and signed a judgment reflecting
the conviction and sentence. He appealed.

II. ISSUES AND ANALYSIS

Appellant raises three evidentiary issues, to each of which the State responds
with a threefold attack: first, challenging appellant’s trial counsel’s preservation of
each issue at trial, then contending each disputed trial-court ruling as errorless, and
finally arguing that regardless, the purported errors were harmless.

A. General standards for reviewing reversible error on preserved complaints
of admissibility.
First, we consider whether an appellant has preserved his or her complaint
on appeal by making a timely objection, request or motion to the trial court in a
sufficiently specific manner and properly under the Rules. See Tex. R. App. P.
33.1; See also Tex. R. Evid. 103.

Second, a question of error concerning the admissibility of evidence is
reviewed for an abuse of discretion. Blasdell v. State, 470 S.W.3d 59, 62 (Tex.
Crim. App. 2015)(admissibility of expert testimony; stating a “trial judge’s
decision to admit expert testimony is reviewed for an abuse of discretion and may
not be reversed unless that ruling fell outside the zone of reasonable
disagreement”); James v. State, 623 S.W.3d 533, 541 (Tex. App.—Fort Worth
2021, no pet.) (admissibility of extraneous act under article 38.37 with Rule 403

6
balancing test reviewed for an abuse of discretion); Gonzalez v. State, 541 S.W.3d
306, 310 (Tex. App.—Houston [14th Dist.] 2017, no pet.)(same).

Finally, when necessary or for expediency, we address whether the error
harmed the appellant. With respect most evidentiary complaints, including those at
issue, which do not involve a constitutional error, we consider whether the trial
court’s error (or presumed error) in admitting the evidence in question has affected
the substantial rights of appealing party. See Tex. R. App. P. 44.2(b); Lara v. State,
513 S.W.3d 135, 142-43 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

B. Did the trial court reversibly err when it overruled appellant’s trial
counsel’s objections to Andree’s expert opinion testimony about the reasons
for Rowana’s delay in making her outcry?
Carrie Andree3, a licensed professional counselor, testified about the
possible reasons for Rowana’s delayed outcry. In his first issue, appellant
contends Andree was not qualified to give this opinion. On appeal, he argues that
the “State failed to satisfy any one of the requirements necessary to show [that
Andree] was qualified to answer questions in the area of delayed outcry,” and that
instead her testimony merely “showed only that she might be familiar with that
phenomenon because some of the children she counseled might have been the
subject of sexual abuse and some of them might have delayed their outcry.”

His current argument is at odds with his objections at trial. Before trial
appellant’s trial counsel stated “I don’t believe that [the expert] has provided any
information that correlates to making a statement regarding the [veracity] of a
statement by a child,” but also conceded, “. . . I do think that she . . . can speak and
render an opinion on whether the child was consistent with other, you know,
victims of abuse that she has worked with.” Appellant’s counsel did not, at that

3
The record sometimes refers to Carrie Andree as Carrie Gardner.

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time, object to an opinion that Andree could offer concerning reasons that a child
may delay in making an outcry of sexual abuse. Appellant’s counsel did not raise
the objection until expert had offered significant testimony before the jury at trial.

Before appellant’s counsel objected, Andree’s had already begun testifying
to the jury about the reasons for delayed sexual-abuse outcries. The State asked her
whether she had “seen children when abuse could have been happening and they
told [her] about it later,” and she responded that she had. The State then asked her
why “children sometimes [will] not outcry when there is abuse going on,” and
without objection, she testified, “I think there’s a variety of reasons. . . . I think
oftentimes, they’re . . . ashamed, they’re fearful, they’re trying to forget it, so they
just try not to think about it.” Then again without objection, Andree testified that
she has seen “people that have information like [sexual abuse] that they don’t tell
anybody for years.”

Later, appellant’s attorney objected a portion of Andree’s testimony
concerning the reasons for delayed sexual-abuse outcries. Andree had testified that
Rowana had “reported that [appellant] had snuggled in her bed, but . . . there
wasn’t enough info and that was evidently dismissed. So that too would be a
reason to maybe not make an outcry if you said something and it got dismissed or
not.” Appellant’s counsel’s objection was that Andree’s testimony about the
possible reasons for delayed outcries was “beyond the scope of . . . what she’s been
certified to testify to.” The objection was overruled.

The State then elicited testimony establishing that Andree had taken several
courses concerning trauma in children and that in her twenty-four years as a
licensed professional counselor, she had “dealt with a lot of children” who had
been sexually abused. Appellant asked the trial court to recognize his running
objection to Andree’s testimony concerning the possible reasons for delayed

8
outcries, and the trial court recognized the running objection. The State then
continued on her qualifications, and Andree agreed her opinions were based her
“training and experience, the ones you went through in education and [her] 24
[years] as an LPC.” She testified again that a possible reason for the delayed
outcry would be that when the matter had first been raised there had “already not
been a lot of attention, but had been kind of dismissed.”

In considering the question of preservation we note that Andree had begun
testifying about the reasons for a delayed outcry, and it would seem (consistent
with appellant’s counsel’s pretrial remarks) in some respects based on her
experience with “victims of abuse that she has worked with.” If appellant
preserved any objection on appeal, he preserved only his complaint to the narrow
opinion offered: Andree’s testimony that a child sexual assault victim who had
previously attempted to make an outcry but who was then ignored or dismissed
could explain or justify the child’s delay before coming forth later to provide
another outcry. The basis asserted by appellant’s trial counsel—outside the scope
of “what she’s been certified to testify to”—could be construed as a complaint
concerning notice (not asserted on appeal), but also could be a complaint about her
qualifications to offer such testimony (which appellant has asserted on appeal).
Though we are reluctant to conclude these narrow objections raised at trial were
sufficient to preserve the error asserted on appeal we will presume that they were;
however, we conclude that appellant did not object to any of Andree’s other
opinions, including reasons for a child’s delayed outcry. Tex. R. App. P. 33.1.

Even if we presume for the sake of argument that appellant’s objections
preserved error as to Andree’s qualifications to opine on the reasons for delayed
outcries, and that the trial court erred in allowing this testimony, we are not
persuaded such error was harmful.

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The improper admission of objected-to evidence is generally harmless when
that evidence is cumulative of other evidence that is admitted without objection.
Rosales v. State, 548 S.W.3d 796, 809 (Tex. App.—Houston [14th Dist.] 2018, pet.
ref’d); see also Brown v. State, No. 02-18-00489-CR, 2020 WL 7063297, at *7
(Tex. App.—Fort Worth Dec. 3, 2020, pet. ref’d) (mem. op., not designated for
publication) (“[W]hen the erroneous admission of evidence is cumulative of other
properly admitted evidence proving the same fact, the erroneous admission is
considered harmless.”). In deciding the question of harm, an appellate court should
consider “(1) the character of the alleged error and how it might be considered in
connection with other evidence, (2) the nature of the evidence supporting the
verdict, (3) the existence and degree of additional evidence indicating guilt, and (4)
whether the State emphasized the complained-of error.” Gonzalez v. State, 544
S.W.3d 363, 373 (Tex. Crim. App. 2018).

Appellant argues that he was harmed by the admission of the challenged
portion of Andree’s testimony because it “provided the causative link between
[his] actions and [Rowana’s] delayed accusations—bolstering the State’s case
where [Rowana’s] truthfulness had been put at issue.” But the jury had already
heard unchallenged testimony from Andree about delayed outcries, and
subsequently heard significant additional testimony about the reasons for delayed
outcries from three other witnesses.4 Given that unchallenged-on-appeal evidence

4
Shannon Althouse, who had forensically interviewed Rachel in 2012 and again in 2015,
testified that delayed outcries may occur if when victims become afraid because the alleged
offender is a family member (“component of support”) and agreed that when a child knows that
person no longer has that role in the child’s life it would be easier for the child to make an
outcry. Walter Vermillion, a Wichita Falls police officer, also testified about the possible
reasons for delayed outcries and testified that a child may delay an outcry until the child is not
living in the same home as the perpetrator of abuse. Finally, Dr. Katrina Cook, holding a
doctorate degree in clinical psychology and serves as director of clinical services at the Dallas
Children’s Advocacy Center, provided extensive testimony about the dynamics of sexual abuse
of children, including topics as grooming and the progression of normal to abusive behaviors in
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is cumulative of the narrow portion of Andree’s challenged testimony, Appellant
cannot demonstrate harm from the admission of the challenged testimony. See Tex.
R. App. P. 44.2(b); See Brown, 2020 WL 7063297, at *7; Rosales, 548 S.W.3d at
800.

Additionally, we cannot agree with appellant’s suggestion that the
challenged testimony was so significant as to providing any causative link in the
jury’s reasoning that led to its verdict. The State’s questioning on the subject of
appellant’s narrow objection followed roughly only a page after the court overruled
appellant’s objection, whereas the guilt-innocence evidence comprises of four
volumes. Considering the “character of the alleged error . . . in connection with
other evidence,” the record does not support a conclusion that the few questions
and answers likely impacted the jury’s verdict or affected appellant’s substantial
rights. See Upchurch v. State, 656 S.W.3d 170, 183 (Tex. App.—Fort Worth
2022, no pet.).

Upon our review of the record, we cannot find that the State subsequently
emphasized the challenged testimony that served the alleged error. Rather, any
strength of opinion testimony at issue that had been elicited in direct examination,
through appellant’s counsel’s cross-examination of Andree became significantly
diminished. Appellant’s counsel questioned Andree about the challenged opinion,
and she recognized that she “[didn’t] know” about whether the lack of prosecution
or consequence flowing from a prior incident would contribute to a delayed outcry
in a case, like Rowana’s case, where a child had denied at the time of the prior
incident that abuse had occurred. Appellant’s effective cross-examination of the
an adult toward a child. Cook, likewise, testified that that a child may not tell about abuse until
the child feels safe and supported, and stated that it was “not uncommon” for an abused child to
deny that abuse occurred in an initial forensic interview and to disclose the abuse in a later
interview.

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sole complained-of opinion offered by Andree suggests a lack of harm to appellant.
See O’Brien v. State, 482 S.W.3d 593, 619 (Tex. App.—Houston [1st Dist.] 2015)
(considering in a harm analysis that the challenged evidence was “effectively
refuted on cross-examination”), aff’d, 544 S.W.3d 376 (Tex. Crim. App. 2018).

We therefore overrule appellant’s first issue.

C. Did the trial court reversibly err when it overruled appellant’s trial
counsel’s objections to the admission of two extraneous bad acts the State
offered under article 38.37?

In appellant’s second issue he complains that the trial court abused its
discretion when it overruled appellant’s trial counsel’s objections to the admission
of two extraneous bad acts the State offered under article 38.37. He contends that
the trial court abused its discretion by admitting evidence that appellant had
touched Rowana’s thighs and that he had forced her hand toward his penis.

Generally, extraneous crimes, wrongs, or other acts are not admissible
during the guilt phase of a trial in order to prove the defendant’s character and that
the defendant committed the charged offense in conformity with the character.
Tex. R. Evid. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.
2011). Exceptions exist, however, and one is contained in article 38.37 of the Code
of Criminal Procedure. Under article 38.37, when a defendant is charged with a
sexual offense, including indecency with a child, “[n]otwithstanding Rules 404 and
405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts
committed by the defendant against the child who is the victim of the alleged
offense shall be admitted for its bearing on relevant matters, including: (1) the state
of mind of the defendant and the child; and (2) the previous and subsequent
relationship between the defendant and the child.” Tex. Code Crim. Proc. Ann. art.
38.37, § 1(a)(1)(A), (b). That is, when article 38.37 applies, it “supersedes

12
application of Rule 404(b), making admissible extraneous offense evidence that
Rule 404(b) does not.” Lara v. State, 513 S.W.3d at 141.

1. Additional Background Relevant to the Issue

In various pretrial filings, the State provided notice of its intent to present
evidence of appellant’s bad acts that were extraneous to the charged offense,
including the two extraneous acts challenged by appellant in his second issue. In
addition to acts committed on specific dates, the notice included various other acts
not challenged on appeal, including acts occurring through a timespan, including
between January 1, 2011 and January 1, 2015, that appellant committed the
offenses and bad acts of “grooming”.

After the jury had been empaneled, but outside its presence, the court held a
hearing to determine the admissibility of the extraneous acts. At the hearing,
Rowana testified that beginning when she was eight years old and ending when she
was eleven, appellant had acted in ways that had made her uncomfortable,
including kissing her cheek, asking her to kiss his cheek, rubbing her back, putting
his hands on her thighs, and snuggling with her. Rowana testified that on one
occasion, when she woke up in the middle of the night, her bra was unclasped, and
appellant’s hand was on her breast. When she turned away, appellant then put his
hand on her butt. Rowana testified that on another occasion, appellant grabbed
her hand, put it on his chest, and then attempted to drag it toward his penis before
she pulled it away. On other occasions, appellant placed his hand on her breasts
over her clothes. One night, appellant placed his penis between Rowana’s legs; “it
was hard[,] and he was . . . thrusting it.” On yet another occasion, he used her feet
to “give himself a foot job through his shorts.”

At the end of the hearing outside of the jury’s presence, the State informed
the trial court that under article 38.37, it intended to offer evidence of the incident
13
when appellant had placed his penis between Rowana’s legs, the incidents when he
had touched her breasts, the incident when he had contacted her butt, incidents
when he had touched her thigh, incidents when had touched her back, and the
incident when he had moved her hand toward his genitals.

Appellant generally objected to admission of the extraneous acts on the
grounds that (1) a “handful of” the incidents that Rowana had described were
based on conclusory testimony and not evidence by which the jury could determine
beyond a reasonable doubt that they occurred, and (2) evidence of all of the
incidents would be substantially more unfairly prejudicial than probative under
Texas Rule of Evidence 403. Appellant counsel also asserted arguments based on
“due process and due course of law under the Texas and United States
Constitutions”, and the prohibition against facing trial on matters other than those
for which one is charged, as is found in “the history Anglo-Saxon jurisprudence.”

In his second issue, appellant complains about the admission of two
extraneous acts: (1) that appellant touched Rowana’s thigh; and (2) that appellant
forced Rowana’s hand toward his genitals.

2. Preservation of Rule 404(b) Analysis

As part of his second issue challenging the admission of these two
extraneous acts, appellant contends that evidence of the acts was inadmissible
under Rule 404(b). But appellant never made that argument to the trial court;
rather, he objected on other grounds. To preserve a complaint about the admission
of evidence, a party must object in such a way that makes the trial court aware of
the objection’s basis. Tex. R. App. P. 33.1(a)(1)(A). When an appellate complaint
about the admission of evidence does not comport with a trial-court objection,
nothing is preserved for review. Although we do not analyze preservation of error
in a hyper-technical manner, the error on appeal must comport with the objection
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made at trial. Singleton v. State, 631 S.W.3d 213, 218 (Tex. App.—Houston [14th
Dist.] 2020, pet. ref’d)(finding appellant’s complaint on notice of extraneous acts
not preserved when appellant objected only to exhibits offered at trial to support
extraneous act evidence); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim.
App. 2009) (“A complaint will not be preserved if the legal basis of the complaint
raised on appeal varies from the complaint made at trial.”); Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint
is preserved depends on whether the complaint on appeal comports with the
complaint made at trial.”). Because appellant never asked the trial court to exclude
evidence of his extraneous bad acts on the basis of rule 404(b), he forfeited his rule
404(b) argument for this court’s review. See Tex. R. App. P. 33.1(a)(1)(A); See
Singleton v. State, 631 S.W.3d at 218.

Accordingly, “notwithstanding” rule 404(b), evidence of the two extraneous
acts against Rowana was admissible in the prosecution of the indecency charge
against him to show his state of mind, her state of mind, and their relationship. See
Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b).

3. Rule 403 Analysis

Under the remainder of appellant’s second issue, he argues that in
conducting its Rule 403 balancing test and subsequently admitting the two
extraneous acts—that he had touched Rowana’s thighs and that he had forced her
hand toward his penis—the trial court abused its discretion.

If extraneous-offense evidence is relevant and admissible under article
38.37, it is subject to exclusion if its probative value is substantially outweighed
and if rule 403 is raised in the trial court. Sanders v. State, 255 S.W.3d 754, 760
(Tex. App.—Fort Worth 2008, pet. ref’d). Recognizing that the trial court is in a
superior position to gauge the impact of the evidence, we measure the trial court’s
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ruling against the rule 403 balancing criteria: (1) the inherent probative force of the
evidence along with (2) the State’s need for the evidence against (3) any tendency
of the evidence to suggest a decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637, 641–
42 (Tex. Crim. App 2006).

Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will generally be more probative than
prejudicial. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
Appellant bears the burden to overcome this presumption and demonstrate that the
probative value of the evidence is substantially outweighed by the danger of unfair
prejudice or of misleading the jury. Sanders, 255 S.W.3d at 760.

The probative force of the extraneous-offense evidence and the State’s need
for the evidence were high. The extraneous bad acts were probative to illustrate
appellant’s intent toward Rowana and his grooming of her. The jury heard
unchallenged evidence from an expert witness—Dr. Cook—that a perpetrator of
sexual abuse often declines to lead with a criminal act and instead “test[s] the
waters to see what [he] can . . . get away with.” Dr. Cook testified that grooming
is the “intentional manipulation by a perpetrator of a child . . . in order to gain
access to a child and control over a situation such that a child is less likely to fight
against abuse.” She also explained, “Some different types of grooming include
physical, so I think that’s what a lot of people think of, you touch on the shoulder
and then on the knee and then on the inner thigh. It’s that build up.” Accordingly,

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Rowana’s testimony about how appellant had touched her thighs was highly
probative to show that he had groomed her—he had both tested the waters and
intentionally manipulated her—before sexually abusing her.

Additionally, the extraneous acts assisted in rebutting appellant’s defensive
theories. One defensive theory concerned his allegation that in the 2012 incident,
he had slept with her and had touched her only for the purpose of easing his own
anxiety. The extraneous incident in which he placed Rowana’s hand on his fast-
beating heart and then forced her hand toward his penis with force rebutted his
defensive theory that his relationship with Rowana was benign or innocent.

Accordingly, appellant’s extraneous bad acts were highly probative of
material issues affecting his guilt, and the State’s need for the evidence was high,
factors showing that the trial court did not clearly abuse its discretion by admitting
the evidence. See James v. State, 623 S.W.3d at 547.

Additionally, the two extraneous acts did not have a significant tendency to
suggest a decision on an improper basis or to confuse or distract the jury from the
main issues. The jury was not left unequipped to properly assess the evidence or to
evaluate its probative force. See Id.

The trial court instructed the jury that with respect to the extraneous-act
evidence, the jury was to consider the evidence only if it believed beyond a
reasonable doubt that appellant committed the acts, and even then, the jury was to
consider the acts only for the statutory purposes discussed above and not “to prove
that [appellant was] a bad person and for this reason was likely to commit the
charged offense.” The trial court’s limiting instruction mitigated against any
tendency to suggest a decision on an improper basis or confuse the jury, and thus
supports the admission of the challenged evidence.

17
In light of Rowana’s delayed outcry, the physical evidence linking appellant
to the charged offense,5 carried limited probative value. Appellant consistently
attacked Rowana’s credibility at trial, pointing out inconsistencies in her two
outcries. The State’s presentation of Rowana’s testimony was not repetitive, nor
did it take up an inordinate amount of time during the two-day, guilt-innocence
portion of the trial. See Holley v. State, No. 02-20-00051-CR, 2021 WL 1918769,
at *4 (Tex. App.—Fort Worth May 13, 2021, no pet.) (mem. op., not designated
for publication) (considering the “exceedingly brief amount of time during trial
that the prosecutor used to develop the alleged bad act”).

Applying the applicable standard of review and measuring the trial court’s
ruling against the rule 403 balancing criteria, we concluded the trial court did not
err in its Rule 403 assessment of the two challenged extraneous acts. See
Upchurch, 656 S.W.3d at 176; James, 623 S.W.3d at 546–47.

We therefore overrule appellant’s second issue.

D. Did the trial court reversibly err when admitted other extraneous act
evidence over appellant’s trial counsel’s objections that the State had failed to
provide reasonable notice?

In his third issue, appellant complains that the trial court abused its
discretion when it overruled his objection to the extraneous-act evidence that he
had touched Rowana’s “butt” because the State’s pretrial extraneous-offense notice
alleged only that he had touched Rowana’s “anus,” not her “butt.” Specifically, at
number 9 (of 18) requested extraneous acts, the State alleged:

On or about October 1, 2012, in Wichita County, Texas, the defendant

5
The state provided testimony about appellant’s semen cells found on his own underwear
collected by complainant’s mother on the day of the offense. However, on cross-examination the
forensic expert explained the cells could have remained on the underwear after multiple laundry
cycles.

18
did then and there, with the intent to arouse or gratify the sexual desire
of said defendant, engage in sexual contact with [Rowana], a child
who was then and there younger than 17 years of age, by touching the
anus of the said [Rowana] with the defendant’s hand.
When Rowana testified about his extraneous acts outside of the jury’s
presence, she stated that one night, she awoke to find his hand on her breast, and he
then “moved his hand and . . . put it on [her] butt.” She then specified that
appellant had “rested his hand on [her] left butt cheek.” Later, appellant objected
to the evidence of his touching Rowana’s “butt” because the State’s notice had
alleged only that he had touched her “anus.” The trial court overruled his objection
and admitted the evidence. Rowana then testified to the jury that Appellant had
touched her butt.

Rule 404(b) provides that the notice of the State’s intent be “reasonable
notice ... in advance of trial.” Tex. R. Evid. 404(b). The purpose behind the notice
provision is to adequately make known to the defendant the extraneous offenses
the State intends to introduce at trial and to prevent surprise to the defendant. Self
v. State, 860 S.W.2d 261, 264 (Tex. App.—Fort Worth 1993, pet. ’ref’d); Martin v.
State, 176 S.W.3d 887, 900 (Tex. App.—Fort Worth 2005, no pet.)

He maintains on appeal that given that the body parts were “distinctly
different” that his trial counsel was caught flat-footed, that he:

had no opportunity to investigate the allegation, now to be admitted as
an extraneous matter, that he was also accused of touching a butt
cheek instead of an anus. While there may be no bright line on the
amount of notice required under the applicable statute, surely one
could agree that mere minutes is not sufficient when the State changes
the notice in mid-hearing.
Appellant did not provide this explanation to the trial court or any other
argument about how variance between “anus” and “butt” had affected his
preparation for trial, and he did not request a continuance so that he could prepare

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for the evidence that he had touched Rowana’s butt.

Appellant’s failure to request a continuance in conjunction with his
objection waives his complaint which is rooted in the theory that he was unfairly
surprised. Martin v. State, 176 S.W.3d at 900 (concluding appellant “waived any
complaint that he was surprised by the State’s [38.37] notice” after finding
“nothing in the record to indicate that [the appellant] requested a continuance”).
That is, under the transferor court’s jurisprudence, appellant’s complaint is not
preserved. See id.; See also Greer v. State, No. 2-09-087-CR, 2010 WL 2813404,
at *4 (Tex. App.—Fort Worth July 15, 2010, pet. ref’d) (mem. op., not designated
for publication); but see Lara v. State, 513 S.W.3d at 143 (failure to request
continuance a significant fact considered in harm analysis; thus, where appellant
failed to show how the late notice affected his trial strategy in a request for
continuance or otherwise the error was found harmless). We therefore, overrule
appellant’s third issue.6

III. CONCLUSION

Having overruled appellant’s three issues we affirm the trial court’s judgment.

/s/ Randy Wilson
Justice

Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J. concurring without
opinion)
Do not publish — Tex. R. App. P. 47.2(b)
6
When our case law differs, we resolve complaints under the law of the transferor court.
See Tex. R. App. P. 41.3. In resolving this transferred case, our holding and reasoning fixes upon
neither all those here nor there, but only on those immediately before us. See Tex. R. App. P.
41.3; see also In re Reardon, 514 S.W.3d 919, 922–23 (Tex. App.—Fort Worth 2017, no pet.).
As our transferor court has noted, we cannot establish binding precedent for that court. In re
Reardon, 514 S.W.3d at 922–23.

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