Brian Martinez v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00354-CR

Brian Martinez, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF HAYS COUNTY
NO. CR-22-4143-A, THE HONORABLE TRACIE WRIGHT-RENEAU, JUDGE PRESIDING

MEMORAN D U M OPI N I ON

In six issues, appellant Brian Martinez challenges his convictions for first-degree

continuous sexual abuse of a child (count I), second-degree indecency with a child by sexual

contact (count II), and third-degree indecency with a child by exposure (count III). See Tex. Penal

Code §§ 21.02(b), .11(a)(1). The victim of all three offenses is Martinez’s girlfriend’s child,

Amber, 1 who was eleven and twelve years old at the time of the offenses. In his first four issues,

Martinez contends that the trial court erred when it overruled his Rule 403 objections to the

admission of extraneous offense evidence. In his last two issues, he contends that the judgments

of conviction for counts II and III contain clerical errors. We modify and affirm the trial court’s

judgments of conviction as modified.

1 Because the victims in this case and of the extraneous offenses are minors or were minors

at the time of the offenses, we will refer to them and their family members by pseudonyms to
protect their privacy. See Tex. R. App. P. 9.10(a)(3).
BACKGROUND

Amber, who was in the eighth grade—about fourteen years old—at the time of the

trial, testified that she, her two younger siblings, and her mother (Mother) moved in with Martinez

when she was eleven years old, which was the summer of 2021. Martinez lived in a three-bedroom

trailer with his grandparents. Amber testified that a couple of months after she moved there,

Martinez started doing things that made her uncomfortable. He told Mother that Amber “had to

dress more like a girl.” Martinez bought new clothes for Amber and told her to wear them. The

new clothes were “dresses, skirts, shorts, and crop tops.” She did not like the clothes because they

revealed her stomach, thighs, and legs and she did not want to show those parts of her body.

Mother refused to intervene after Amber told her that she was uncomfortable in the clothes.

Amber testified that around this same time Martinez started coming into her room

at night while she was sleeping to touch and grab her “breasts” over her clothes. A couple of

months after the abuse started, Martinez “move[d] [her] clothes to the side” and touched and

rubbed Amber’s “vagina” in addition to touching her breasts. He touched her vagina on three

occasions. He touched her breasts two to three times a week until Fall 2021 when Mother and

Martinez temporarily broke up and Amber lived with Mother’s friend for about four months.

Amber testified that she told her mother’s friend about the abuse, and the friend told Mother.

Amber testified that Mother accused her of lying and when Amber tried to tell her that it happened,

Mother physically abused Amber.

Mother’s friend testified that while living with her, Amber wore t-shirts and jeans,

but when she lived with Mother and Martinez, Amber was dressing “like an adult” and wearing

“tight clothes.” She testified that Amber made an outcry of sexual abuse against Martinez. When

she told Mother about it, Mother moved Amber back in with her. The friend testified that when

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Amber was told that she had to go live with Mother and Martinez again, Amber engaged in

self-harm.

Amber testified that when she moved back in with Mother and Martinez, he started

touching her breasts at night again. One time, Amber woke up to Martinez masturbating in front

of her. He told her not to tell anyone about any of the abusive conduct. Martinez stopped sexually

abusing Amber around March of 2022, about two months before Amber moved in with her father

and stepmother (Stepmother).

Amber testified that while living with her father, Amber told her stepmother about

the abuse. Amber was not ready to speak to the police yet. A few months later, Mother and

Martinez came to pick up Amber and her siblings to go live with them again. Mother was

screaming and banging on the door. Amber said that she was not going back and that her younger

siblings needed to stay with her. Her stepmother called the police. Stepmother explained to Amber

that her options were to either go with Mother or tell the officer what had happened to her. Amber

told the officer what Martinez had been doing to her at night.

Stepmother testified that Amber told her about the abuse. Stepmother testified that

she reported Amber’s outcry to an investigator with Child Protective Services (CPS) right away,

but that she was told that nothing could happen at that time because there was no police report.

Deputy Linda Garza testified about answering a call about a verbal dispute over

child custody at Stepmother’s house. She testified that Amber made an outcry to her. The case

was then transferred to another county’s law enforcement department based on where the reported

crime had occurred. Detective Chase Crow testified that he was assigned to investigate Amber’s

allegations against Martinez.

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John Guerra testified that he is an investigator with CPS. He was involved in CPS

investigations involving Amber’s family during 2021 and 2022. As part of those investigations,

he interviewed Amber in January and May 2022. Guerra testified that Amber never made an outcry

to him. He testified that the only people that Amber outcried to were women.

The State presented extraneous-offense evidence of sexually abusive conduct

committed against three other child victims over defense counsel’s Rule 403 objections.

Outside the presence of the jury, the State presented the testimony of Martinez’s

cousin, Aaron. Aaron, who was twenty-eight years old when he testified at trial, testified that when

he was seven or eight-years-old, Martinez sexually abused both him and his brother Charlie—who

is older than him by one year. Aaron did not know how old Martinez was, but knew Martinez was

older than him. Based on juvenile adjudication paperwork, Martinez was twelve years old at the

time. Aaron testified that Martinez penetrated his anus and mouth with his penis at least ten times.

This happened both at Martinez’s parents’ house and Aaron’s house. Aaron also witnessed

Martinez penetrate Charlie’s anus at least five times. Aaron testified that these incidents happened

at night during family parties. The trial court admitted, for purposes of the hearing, the juvenile

adjudication paperwork for the offense of aggravated sexual assault committed against Aaron.

Still outside the presence of the jury, the State called Sandy, who was twenty-one

years old when she testified. Sandy testified that when she was about five years old, her mother

started dating Leroy Martinez, who is Martinez’s cousin. Sandy testified that Leroy and Martinez’s

grandmother would babysit her sometimes at night when her mom and Leroy would go out.

Martinez lived with his grandmother. In 2011, when she was eight years old, she was asleep on

the couch at the grandmother’s house when Martinez woke her up, put her between his legs, and

rubbed her against him. He asked her if she had ever seen her mom and dad do what he was doing

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to her. She said, “No,” and started crying. He told her not to tell anyone what had happened or

they would get in trouble. She did not tell anyone until she told her mom in 2017. It was reported

to police about a year later, and she gave a forensic interview.

The State argued to the trial court that the extraneous offense evidence was

admissible under Article 38.37 of the Texas Code of Criminal Procedure. Defense counsel

objected under Rule 403 of the Texas Rules of Evidence. The trial court overruled defense

counsel’s objections. Aaron and Sandy testified in front of the jury substantially similarly as they

did during the hearing. Defense counsel renewed his objections prior to Aaron and Sandy

testifying, and the trial court overruled them.

After the testimony of Aaron and Sandy in front of the jury, the State moved to

admit State’s Exhibit 9, which is the juvenile adjudication paperwork reflecting that Martinez

pleaded true in 2004—at age twelve—to an aggravated sexual assault of Aaron that was committed

in September 2003. It also reflected that because of his plea, an additional count naming Charlie

as the victim was dismissed. Defense counsel objected to the admission of this exhibit on Rule

403 grounds. The trial court overruled the objection and admitted the exhibit.

Casey Crosby testified that she was the forensic interviewer that spoke with Amber

at a children’s advocacy center after Amber outcried to the police officer. She testified that Amber

stated that Martinez touched her breasts and her vagina multiple times a week and also masturbated

in front of her.

After hearing all the evidence, the jury found Martinez guilty of all three offenses.

The jury found the two enhancement paragraphs true—which alleged that Martinez had been

previously convicted in 2018 of aggravated assault with a deadly weapon and assault with family

violence as a repeat offender—and assessed punishment at life imprisonment for counts I and II

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and twenty years’ imprisonment for count III. See Tex. Penal Code §§ 12.32, .33, .42, 21.02(h),

.11(d). Martinez appeals.

RULE 403

Standard of Review

At the trial of a defendant accused of, among other things, continuous sexual abuse

of a young child and indecency with a child, evidence that the defendant committed a separate sex

offense against another child may be admissible under Article 38.37 “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.” See Tex. Code Crim. Proc. art. 38.37, § 2; see also Dies

v. State, 649 S.W.3d 273, 284 (Tex. App.—Dallas 2022, pet. ref’d). “When evidence of a

defendant’s extraneous acts is relevant under article 38.37, the trial court is still required to conduct

a Rule 403 balancing test upon a proper objection or request.” Hitt v. State, 53 S.W.3d 697, 706

(Tex. App.—Austin 2001, pet. ref’d).

We review a trial court’s ruling regarding the admission or exclusion of extraneous

offense evidence for an abuse of discretion. See Irsan v. State, 708 S.W.3d 584, 616 (Tex. Crim.

App. 2025). Under that standard, a trial court’s ruling will be deemed an abuse of discretion only

if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State,

86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that

the trial court’s decision “is reasonably supported by the record and is correct under any theory of

law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In

addition, an appellate court reviews the trial court’s ruling in light of the record before the court

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“at the time the ruling was made.” Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas

2005, no pet.).

Rule 403 provides that relevant evidence may be excluded “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. 403. “Under Rule 403, it is presumed that the probative value of relevant evidence

exceeds any danger of unfair prejudice. 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) (footnotes and internal quotation

marks omitted). Accordingly, “the plain language of Rule 403 does not allow a trial court to

exclude otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence

against a defendant is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d

807, 811 (Tex. Crim. App. 2013) (internal citation omitted).

“Probative value” means more than relevance; it “refers to the inherent probative

force of an item of evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation—coupled with the proponent’s need for that

item of evidence.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “Unfair

prejudice” refers to a “tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Id.; see Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim.

App. 2021). In conducting a Rule 403 analysis, the trial court must balance the claimed probative

force of the proffered evidence along with the proponent’s need for the evidence against:

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(1) any tendency of the evidence to suggest that the case would be decided on an
improper basis; (2) any tendency of the evidence to confuse or distract the jury from
the main issues; (3) 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
(4) the likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.

Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016) (citing Gigliobianco, 210 S.W.3d at

641–42). These factors may blend together in practice. Gigliobianco, 210 S.W.3d at 642. The

trial court’s balancing test need not be performed on the record. See Hitt, 53 S.W.3d at 706.

Reviewing courts should afford trial courts a high level of deference regarding admissibility

determinations under Rule 403. See Brickley v. State, 623 S.W.3d 68, 79–80 (Tex. App.—Austin

2021, pet. ref’d).

Discussion

Aaron’s testimony and State’s Exhibit 9

In his first through third issues, Martinez contends that the trial court erred when it

admitted evidence of extraneous offenses committed against his cousins when he was twelve years

old. For the reasons detailed below, we conclude that the admission of this extraneous evidence

was error but that the error was harmless.

As discussed above, Aaron testified that when he was about seven-years-old and

his brother was about eight-years-old, Martinez penetrated their anuses and his mouth with

Martinez’s penis on multiple occasions, and a juvenile adjudication for the offense of aggravated

sexual assault committed against Aaron was admitted as State’s Exhibit 9. Defense counsel argued

that these acts should be excluded under Rule 403 because they were too different and remote from

the charged offenses to be probative, Martinez was a juvenile at the time they allegedly occurred,

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they were acts of “sexual perversion,” they would confuse the jury, and they would encourage a

verdict on an improper basis. Defense counsel argued that State’s Exhibit 9 should be excluded

under Rule 403 because the aggravated sexual assault offense described in that case was more

egregious than the charged offenses, would confuse the jury, would result in a conviction on this

basis alone, and was cumulative to Aaron’s testimony. The prosecutor argued that the evidence of

Martinez’s extraneous offenses committed against the cousins should be admitted because this was

a “he said/she said” case without any forensic evidence, the remoteness of the juvenile offenses

were mitigated by the intervening offense committed against Sandy, the State did not plan to spend

an extraordinary amount of time developing Aaron’s testimony or presenting the exhibit, and that

the testimony would not confuse the jury because they would be provided with instructions.

Balancing test

“[E]vidence of a separate sexual offense against a child admitted under Article

38.37, Section 2(b) is probative of a defendant’s character or propensity to commit sexual assaults

on children.” Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.—Waco 2022, pet. ref’d). On appeal,

Martinez contends that the probative value of this extraneous offense evidence is weakened by the

remoteness and dissimilarity of the offenses committed against the cousins compared to the

charged offenses. “[R]emoteness can significantly lessen the probative value of extraneous-

offense evidence . . . because logically, the passage of time allows things and people to change.”

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

“remoteness alone is not sufficient to render an extraneous offense excludable under Rule 403,”

and other factors can bolster the probative value, such as remarkable similarities between the

extraneous and charged offenses. Id. at 226–27 (explaining that probative force of “extremely

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remote event” from over twenty years prior was “significantly bolstered” by extraneous offenses

being “remarkably similar” to charged offense and resulting in factor only “somewhat favor[ing]

exclusion”). Here, the extraneous offenses against the cousins occurred about eighteen years prior

to the charged offenses and eight years prior to the intervening extraneous offense against Sandy.

See Curtis v. State, 89 S.W.3d 163, 174 (Tex. App.—Fort Worth 2002, pet. ref’d) (acknowledging

that intervening misconduct may “narrow the gap” between remote offenses). Although the

extraneous and charged offenses share some similarities, they are not “remarkably similar.”

Because of the remoteness, lack of “remarkable similarities,” and existence of only a singular and

not “remarkably similar” bad act to “narrow the gap,” we conclude that this factor favors exclusion.

In deciding whether the evidence was needed by the State, we consider whether the

proponent had other evidence to establish the fact of consequence, how strong the other evidence

was, and whether the “fact of consequence related to an issue that is in dispute.” See Erazo v.

State, 144 S.W.3d 487, 495–96 (Tex. Crim. App. 2004). Here, the State’s need for the evidence

was to rebut the defensive theory of fabrication—that Amber had made up the allegations against

Martinez so that she could continue living with her father instead of her physically abusive mother.

See Price v. State, 594 S.W.3d 674, 681 (Tex. App.—Texarkana 2019, no pet.) (concluding that

“[b]ecause there was no biological evidence and there were no third-party eyewitness to the alleged

incidents, and because [defendant] challenged [victim’s] credibility and memory, the State had a

considerable need for the evidence.”). Additionally, there were no corroborating eyewitnesses or

physical or biological evidence of Martinez’s abuse of Amber. See Hammer, 296 S.W.3d at 568

(explaining that “Rule 403 . . . should be used sparingly, especially in ‘he said, she said’ sexual-

molestation cases that must be resolved solely on the basis of the testimony of the complainant

and the defendant”); Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—Austin 2016, pet.

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ref’d) (determining that State’s need for evidence “weighs strongly in favor of admission” because

without evidence, State’s case would have amounted to the complainant’s word against

defendant’s). We conclude this factor weighs in favor of admission.

The extraneous offense evidence of the assaults allegedly committed against the

cousins may have tended to suggest a decision on an improper basis. See Gigliobianco,

210 S.W.3d at 641 (stating that evidence might encourage decision on improper basis if it arouses

jury’s sympathy or hostility “without regard to the logical probative force of the evidence”); Love

v. State, 706 S.W.3d 584, 616 (Tex. App.—Austin 2024, pet. ref’d) (acknowledging inflammatory

nature of sexually-related bad acts and misconduct involving children). The extraneous offenses,

which involved penetrative intercourse, were more egregious than the charged offenses and

included the additional stigma of being incestual acts. Cf. Robisheaux, 483 S.W.3d at 220 (noting

that “inherently inflammatory” nature of extraneous sexual offenses committed against children

may be “ameliorated somewhat” when the extraneous allegations are “no more serious than the

allegations forming the basis for the indictment”); Dies, 649 S.W.3d at 286 (same). We conclude

that this factor weighs in favor of exclusion.

The next factor concerns “a tendency of an item of evidence to be given undue

weight by the jury on other than emotional grounds. For example, ‘scientific’ evidence might

mislead a jury that is not properly equipped to judge the probative force of the evidence.” See

Gigliobianco, 210 S.W.3d at 641. Martinez concedes that no specialized knowledge was required

for the jury to understand the probative value of this evidence and states that this factor does not

weigh in his favor. We agree.

Martinez contends that the jury could have been confused and convicted on the

extraneous offenses alone instead of the charged offense. This factor addresses the evidence’s

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“tendency to confuse or distract the jury from the main issues in the case.” See id. As addressed

above, the extraneous offense testimony contained inflammatory topics that were not present in

the charged offenses—including oral and anal penetration and incest. Further, we note that Aaron’s

testimony did not include testimony that Martinez was also a young child at the time—twelve

years old. Although, State’s Exhibit 9 included Martinez’s age at the time of the aggravated sexual

assault offense he pleaded true to. We conclude that this factor weighs in favor of exclusion.

Regarding the time-consuming or repetitive nature of the evidence, Martinez states

that the State was efficient in its development of this evidence and states that it does not weigh in

his favor. We agree. This factor concerns “whether the jury was distracted from the charged

offense.” Love, 706 S.W.3d at 616. In calculating the time needed to develop the extraneous-

offense evidence, we exclude jury argument and hearings held outside the jury’s presence, see

Dennis v. State, 178 S.W.3d 172, 181 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), and

include “any testimony introduced regarding the evidence, including cross-examination, redirect

examination, and any rebuttal offered by the defense in response to the evidence,” Hart v. State,

688 S.W.3d 883, 893 (Tex. Crim. App. 2024). Here, all the evidence was presented in one day and

covers about 174 pages of transcript. The extraneous offense evidence regarding the cousins

covered about eleven pages—roughly six percent. See Lane v. State, 933 S.W.2d 504, 520 (Tex.

Crim. App. 1996) (concluding this factor weighed in favor of admission where extraneous-offense

testimony amounted to “less than one-fifth” of trial testimony); Love, 706 S.W.3d at 616 (noting

that “[t]he precise ratio is less important than determining whether the jury was distracted from

the charged offense”).

In summary, the inherent probative value was significantly diminished by the

remoteness of the offenses and by the fact that the extraneous and charged offenses did not share

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remarkable similarities that effectively mitigated the remoteness’s effect in this case. Although the

State had a strong need for the extraneous offense evidence, that need combined by the diminished

probative value of the evidence was substantially outweighed by the prejudicial nature of the

offenses that were likely viewed as more egregious than the charged offenses by the jury. After

balancing the Rule 403 factors, we conclude that the trial court could not have reasonably

concluded that the probative value of the extraneous offense evidence regarding Martinez’s sexual

abuse of his two young cousins when he was twelve years old was not substantially outweighed

by the danger of unfair prejudice. We conclude that the trial court erred in admitting this evidence

and conduct a harm analysis. See Pawlak, 420 S.W.3d at 811 (remanding case to appellate court

for harm analysis after concluding extraneous offense evidence was erroneously admitted over

Rule 403 objection).

Harm analysis

We review the erroneous admission of extraneous offense evidence under Texas

Rule of Appellate Procedure 44.2(b), which provides that a nonconstitutional error “that does not

affect substantial rights must be disregarded.” See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim.

App. 2002). An error affects a substantial right “when the error had a substantial and injurious

effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997). An appellate court “will not overturn a criminal conviction for

non-constitutional error if [it], after examining the record as a whole, has fair assurance that the

error did not influence the jury, or influenced the jury only slightly.” Schutz v. State, 63 S.W.3d

442, 444 (Tex. Crim. App. 2001). When conducting our review, we “should consider everything

in the record, including testimony and physical evidence, the nature of the evidence supporting the

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verdict, and the character of the error and its relationship to other evidence.” Id. Additionally, we

“may consider the trial court’s instructions to the jury, the theories of the case that the State and

defendant have espoused, arguments to the jury and relevant voir dire.” Id. at 444–45. Whether

the State emphasized the error is also a factor. See Motilla, 78 S.W.3d at 356.

In considering the character of the error and its relationship to other evidence,

courts consider whether the erroneously admitted evidence was so “emotionally charged” as to

prevent the jury from rationally considering the evidence before it. Compare id. at 359 (concluding

that brief testimony by mother of murder victim about caring for him when he was sick baby and

adopting him soon after “was not so ‘emotionally charged’ as to prevent the jury from rationally

considering the evidence before it” in part because it “bore no relationship to the sole contested

issue in the case”), with Reese v. State, 33 S.W.3d 238, 244 (Tex. Crim. App. 2000) (concluding

that erroneously admitted photo of victim’s fetus that had been removed from her body after her

death was not harmless error when “this emotionally charged photograph [was] the only

photograph that the State offered during the punishment phase”). As noted above, the extraneous

offense evidence was highly inflammatory and directly related to the contested issue before the

jury—whether Martinez sexually abused Amber.

However, this was not the only Article 38.37 evidence that the jury heard regarding

Martinez’s history as and propensity for being a sex offender. Sandy also testified that Martinez

had abused her when she was eight-years-old, and as discussed below, her testimony was properly

admitted. See King, 953 S.W.2d at 273 (acknowledging that potential harm of erroneously

admitted evidence may be “defused by properly admitted evidence”).

Additionally, Amber testified that Martinez committed the charged offenses against

her, and four witnesses—her stepmother, her mother’s friend, Deputy Garza, and the forensic

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interviewer all testified that Amber outcried to them regarding the same offenses that Martinez

was charged with committing. See Motilla, 78 S.W.3d at 359 (concluding erroneously admitted

evidence was harmless error when evidence of defendant’s intent to murder victim

“was substantial”).

References to this evidence during closing arguments were brief. The State did not

initially bring up Aaron’s testimony or the juvenile adjudication during its closing. The State

briefly referenced this evidence in its rebuttal as a response to defense counsel telling the jury to

disregard the extraneous offenses as “muddying the waters.” See Sanders v. State, 255 S.W.3d

754, 762 (Tex. App.—Fort Worth 2008, pet. ref’d) (noting that “the State did not mention the

incident at all in its opening statement and mentioned it only briefly in closing arguments” and

concluding that error was harmless).

Considering the concise nature of the development of the evidence, the existence

of other properly admitted extraneous offense evidence, the fact that Amber consistently and

repeatedly outcried to four witnesses who all testified in addition to her testifying about the charged

offense, the State’s focus on the charged offense in its closing arguments, and the minimal

reference to this evidence in both parties’ closings, we conclude that the erroneous admission of

Aaron’s testimony and the juvenile adjudication was harmless error. See id. (concluding that based

on “the brief presentation” of erroneously admitted extraneous offense evidence, it did not

substantially sway or influence the jury’s verdict and was harmless error).

We overrule Martinez’s first through third issues.

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Sandy’s Testimony

In his fourth issue on appeal, Martinez contends that the trial court erred when it

admitted Sandy’s extraneous offense testimony. As described above, Sandy testified that her

mother dated Martinez’s cousin and that when she was eight years old—about ten years before

Martinez abused Amber—Martinez grabbed her, pulled her onto his lap, and rubbed her butt

against him. At trial, Martinez’s counsel objected to the admission of this testimony under Rule

403. The prosecutor argued that her testimony should be admitted because the State did not plan

to spend an extraordinary amount of time developing it, that her testimony would not confuse the

jury because they would be provided with instructions, that the testimony was probative because

this was a “he said/she said” case without any forensic evidence, and that ten years was not

too remote.

Balancing test

Because evidence of prior sexual abuse of children is “‘especially probative of [a

defendant’s] propensity to sexually assault children,’ the Rule 403 balancing test normally will not

favor the exclusion of evidence of the defendant’s prior sexual assaults of children.” Alvarez

v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (quoting Belcher

v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.)). Martinez contends that the

probative value of this extraneous offense evidence is weakened by the remoteness and

dissimilarity of the offense committed against Sandy compared to the charged offenses. As

discussed above, “remoteness can significantly lessen the probative value of extraneous-offense

evidence . . . because logically, the passage of time allows things and people to change.” See

Gaytan, 331 S.W.3d at 226. However, “remoteness alone is not sufficient to render an extraneous

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offense excludable under Rule 403,” and other factors can bolster the probative value, such as

remarkable similarities between the extraneous and charged offenses. Id. at 226–27 (explaining

that probative force of “extremely remote event” from over twenty years prior was “significantly

bolstered” by extraneous offenses being “remarkably similar” to charged offense and resulting in

factor only “somewhat favor[ing] exclusion”). Here, the extraneous offense against Sandy

occurred about ten years prior to the charged offenses. The extraneous and charged offenses shared

many similarities. See Castaneda v. State, 694 S.W.3d. 13, 24 (Tex. App.—Houston [14th Dist.]

2023, pet. ref’d) (concluding that “[t]estimony that appellant sexually assaulted two other children

in a similar manner and at a similar age was highly probative to rebut appellant’s defense that

Complainant fabricated her allegations”). Amber was eleven-years-old and Sandy was eight.

Martinez was an adult at the time of both the extraneous and charged offenses. Amber is the

daughter of Martinez’s girlfriend and Sandy’s mother was dating Martinez’s cousin. Both girls

were left at Martinez and his grandmother’s trailer overnight while their mothers were out and

were awoken by Martinez either shortly before or during the inappropriate touching. Both the

extraneous and the charged offenses involved indecent touching and rubbing—although of

different body parts. Weighing the inherent probative value, the ten-year gap between the

extraneous and charged offenses, and the similarities between the offenses, we conclude that the

first factor weighs in favor of admission. See Gaytan, 331 S.W.3d 226–27.

The State’s need for Sandy’s extraneous offense testimony evidence was to rebut

the defensive theory of fabrication and because the case lacked corroborating eyewitnesses or

physical or biological evidence of Martinez’s abuse of Amber. See Price, 594 S.W.3d at 681;

Hammer, 296 S.W.3d at 568. This factor therefore weighs strongly in favor of admission. See

Robisheaux, 483 S.W.3d at 220.

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“[A]lthough sexually-related bad acts and misconduct involving children are

inherently inflammatory, the plain language of Rule 403 does not allow a trial court to exclude

otherwise relevant evidence when that evidence is merely prejudicial.” Love v. State, 706 S.W.3d

584, 616 (Tex. App.—Austin 2024, pet. ref’d). Further, the sole extraneous offense that Sandy

testified to—Martinez rubbing her butt on his lap—was not more egregious than the charged

offenses which occurred multiple times a week over an extended period. See Robisheaux,

483 S.W.3d at 220 (noting that “inherently inflammatory” nature of extraneous sexual offenses

committed against children may be “ameliorated somewhat” when the extraneous allegations are

“no more serious than the allegations forming the basis for the indictment”); Dies, 649 S.W.3d at

286 (same). We conclude that this factor weighs, at most, neutrally.

Regarding the tendency to confuse or distract the jury from the main issues in the

case, see Gigliobianco, 210 S.W.3d at 641, Martinez contends that Sandy’s testimony “was so

inflammatory” that the jury could have been confused and convicted on the extraneous offenses

alone instead of the charged offense. As addressed above, Sandy’s testimony was similar and less

egregious than the charged offenses. We conclude that this factor does not support exclusion.

Martinez concedes that no specialized knowledge was required for the jury to

understand the probative value of this evidence and that it did not have a tendency to be given

undue weight by the jury on other than emotional grounds. See id. We agree.

Regarding the time-consuming or repetitive nature of the evidence, Martinez states that the

State was efficient in its development of this evidence and that it does not weigh in his favor. We

agree. The State told the trial court that the extraneous offense witnesses would not take up an

extraordinary amount of time, and Sandy’s testimony covered about six pages of the total 174

pages of relevant transcript—roughly three percent. See Lane, 933 S.W.2d at 520 (concluding this

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factor weighed in favor of admission where extraneous-offense testimony amounted to “less than

one-fifth” of trial testimony). There is no indication in the record that the jurors were distracted

by it. See Love, 706 S.W.3d at 616 (noting that “[t]he precise ratio is less important than

determining whether the jury was distracted from the charged offense”).

In summary, none of the factors weigh in favor of exclusion of Sandy’s testimony

that Martinez rubbed her butt against his lap when she was eight years old. Under the applicable

standard of review, we cannot conclude that the trial court abused its discretion by overruling his

Rule 403 objection. See Tex. R. Evid. 403, Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d) (explaining that “the Rule 403 balancing test normally will

not favor the exclusion of evidence of the defendant’s prior sexual assaults of children” when

evidence of prior sexual abuse of children is especially probative of defendant’s propensity to

sexually assault children). We overrule Martinez’s fourth issue.

MODIFICATION OF THE JUDGMENTS

In his fifth and sixth issues on appeal, Martinez contends—and the State agrees—

that the trial court’s judgments for counts II and III contain an error and requests that we modify

the judgments to correct the errors. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc)

(explaining that “[a]ppellate courts have the power to reform whatever the trial court could have

corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment

appears in the record”). The judgments’ “Statute for Offense” section recites “21.11(d) Penal

Code” as the statute providing for the offense of indecency with a child. The “Statute for Offense”

section of judgments should recite the statutory references that define the elements of the offense

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that the defendant committed. Jones v. State, 691 S.W.3d 231, 246–47 (Tex. App.—Austin 2024,

pet. ref’d). The elements of the indecency with a child by contact offense that appellant was

convicted of in count II are contained within Texas Penal Code Section 21.11(a)(1). The elements

of the indecency with a child by exposure offense that appellant was convicted of in count III are

contained within Texas Penal Code Section 21.11(a)(2)(A). Thus, we modify the judgments to

reflect that the “Statute for Offense” for count II is “21.11(a)(1) Penal Code” and the “Statute for

Offense” for count III is “21.11(a)(2)(A) Penal Code.”

CONCLUSION

Having modified the judgments for counts II and III of cause number CR-22-4143-

A to reflect that the “Statute for Offense” is “21.11(a)(1) Penal Code” for count II and

“21.11(a)(2)(A) Penal Code” for count III, we affirm the trial court’s judgments of conviction as

modified. See Tex. R. App. Proc. 43.2(b).

__________________________________________
Gisela D. Triana, Justice

Before Justices Triana, Theofanis, and Crump

Modified and, as Modified, Affirmed

Filed: April 2, 2026

Do Not Publish

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