Aaron Wayne Cotton v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00343-CR
________________

AARON WAYNE COTTON, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F20-34613
________________________________________________________________________

MEMORANDUM OPINION

Appellant Aaron Wayne Cotton challenges his conviction for indecency with

a child by exposure, a third-degree felony. See Tex. Penal Code Ann. §

21.11(a)(2)(A), (d). In four issues, Cotton complains about the sufficiency of the

evidence, ineffective assistance of counsel, and the admission of extraneous offense

evidence. For the reasons explained below, we affirm the trial court’s judgment.

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BACKGROUND

A grand jury indicted Cotton for the offense of indecency with a child by

exposure, a third-degree felony. See id. The indictment alleged that Cotton “did then

and there with the intent to arouse or gratify the sexual desire of any person and

knowing [U.G.], 1 hereafter styled the Complainant, was present[,] expose[d] his

genitals to the Complainant, a child younger than seventeen years of age and not the

spouse of the Defendant[.]” The indictment also alleged that Cotton had two prior

felony convictions, increasing his punishment range for a habitual offender to 25 to

99 years of confinement or life. See id. § 12.42(d).

The trial court conducted a jury trial. Michael Trahan, the assistant store

director of Cash Saver, testified that he provided the police with video footage from

his surveillance equipment. This footage shows a car parking next to a Suburban in

the parking lot. Trahan explained that the video shows that when people ran to the

parking lot, the car left.

Sara, U.G.’s mother, testified that U.G. was thirteen years old and sitting alone

in their Suburban at Cash Saver when the May 11, 2020 incident occurred. Sara

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We refer to the crime victim by her initials and to her family members by a
pseudonym to protect their privacy. See Tex. Const. art. I, § 30(a)(1) (granting crime
victims “the right to be treated with fairness and with respect for the victim’s identity
and privacy throughout the criminal justice process”).

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explained that when she and her husband, Mark, were inside the store, they received

an emergency phone call from U.G., who asked Mark to hurry outside. Sara testified

that Mark heard urgency in U.G.’s voice and ran outside, and U.G. told them what

had happened.

While Sara did not see the car in the parking lot that day, Sara reviewed the

Cash Saver video and recognized the car that parked next to their Suburban as the

car that followed them home from the store after the incident. Sara called the police

after U.G. noticed the car had followed them, and she described the car to the police

as being a gray Mercury car with a black passenger door. Sara’s 911 call was played

to the jury, and during her call, Sara reported that while they were at Cash Saver,

U.G. saw a man in a car playing with his penis and that the man followed them home.

Chancellor Van Houten of the Beaumont Police Department testified that he

was dispatched to Cash Saver on May 11, 2020 to investigate a suspicious person

exposing their genitals and masturbating in the parking lot. Van Houten was advised

that the Mercury vehicle involved was two-toned with the driver door and front

quarter panel being dark colored. Van Houten testified that he assisted Officer

Brandon Rodriguez, who stopped the vehicle and identified Cotton as the suspect.

Van Houten explained that Cotton was ticketed and allowed to leave because he

believed Cotton had committed the misdemeanor offense of indecent exposure.

After talking with U.G. and her parents, Van Houten determined the offense was a

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felony due to U.G.’s age. Van Houten collected the Cash Saver video, which showed

the Mercury vehicle Cotton was driving pull up beside the Suburban U.G. occupied.

Van Houten testified that evidence showing Cotton was masturbating in his vehicle

sufficiently demonstrates his intent to arouse or gratify his sexual desires or another

person’s.

At one point, Van Houten testified that Cotton’s arm was in a cast because he

broke it when he ran from police, leading the trial court to conduct a hearing outside

the jury’s presence. During the hearing, Van Houten explained that on April 5, 2020,

just one month before the current offense, he investigated another case in U.G.’s

neighborhood. In that case, Cotton committed indecent exposure by masturbating in

public. Cotton then ran from the complainant, hopped a fence, and broke his arm.

Van Houten testified that when he found Cotton on the ground after he broke his

arm, Cotton admitted to exposing his penis but claimed he was urinating. Van

Houten explained that based on his observations at the scene, Cotton appeared to be

lying. Van Houten testified that he has investigated other complaints of indecent

exposure and indecency with children where Cotton was identified as the suspect,

and in his experience, Cotton often runs from the scene as he did in the current

offense.

Cotton’s counsel objected to the admission of allegations of prior bad acts

because they are more prejudicial than probative. The trial court explained that it

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would admit the April 5th incident for the limited purpose of identity because it was

close in time, occurred in a similar location, included relevant factors like those

surrounding the current offense, and Van Houten’s testimony about Cotton’s

statement was sufficient. The trial court found that since Cotton was challenging

whether he was the person U.G. saw exposing his genitals, the April 5th incident

was admissible under Rule 404(b) of the Texas Rules of Evidence for the limited

purpose of proving his identity. The trial court found that the inherent probative

value of the evidence is not substantially outweighed by unfair prejudice and is

relevant to a fact of consequence in the case. The trial court stated it would only

consider other incidents if the State could prove beyond a reasonable doubt that

Cotton committed the acts.

Van Houten testified about the April 5th incident, explaining that he was

dispatched to a location on U.G.’s street where citizens had chased Cotton, who was

masturbating and exposing his genitals in a field across the street from the

complainant. Van Houten testified that he found Cotton on the ground with a broken

left arm, and Cotton admitted he had his pants down and was holding and shaking

his penis but he claimed he was urinating. At defense counsel’s request, the trial

court instructed the jury that it could only consider the April 5th incident for the

limited purpose of proving identity and only if it was proven beyond a reasonable

doubt.

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Mark, U.G.’s father, testified that U.G. was thirteen when the Cash Saver

incident occurred. Mark testified that U.G. was alone in their Suburban in the

parking lot when she called and asked him to come to the parking lot and check on

her. Mark explained that U.G. sounded scared, and when he got close to the

Suburban, the car parked next to it left. Mark testified that U.G. was hysterical and

told them what happened, and as they were driving home, they saw the same car

following them. They called the police.

U.G. testified she was thirteen years old when the Cash Saver incident

occurred. U.G. explained she was alone in their Suburban with her window midway

down when a man, whom she identified as Cotton, parked his vehicle beside her and

sat in his car. U.G. testified that she could see Cotton “masturbating in his front seat[]

but staring me dead in the eyes[.]” U.G. explained Cotton was sitting on the console

with his leg over the passenger’s seat with his shorts halfway down, and his genitals

were exposed while he masturbated for what “felt like a long time.” U.G. explained

that Cotton pointed his body toward her so she could see him directly. U.G. testified

Cotton did not stop when she saw him, and she was shocked when she called Mark,

who ran outside. Cotton left when he saw Mark, and U.G. remembered Cotton’s car,

which was a Mercury, because the doors and bumper were different colors. U.G.

testified that when they got home, Cotton pulled up in front of their house, and they

followed him but could not get his license plate number. U.G. also testified she went

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to the Garth House and that she would be surprised if she had reported Cotton was

wearing pants when the incident occurred. U.G. agreed that she only saw Cotton’s

inner and upper thighs.

After U.G.’s testimony, the trial court conducted a second hearing outside the

jury’s presence regarding the admission of extraneous offense evidence. The State

argued the video evidence showing Cotton masturbating at an apartment complex

near U.G.’s house on two prior occasions was admissible under Article 38.37 of the

Texas Code of Criminal Procedure and Rule 404(b) of the Texas Rules of Evidence

for identity purposes. Defense counsel argued the evidence should not be admitted

unless it was adequate to support a finding by the jury that Cotton committed the

extraneous offenses beyond a reasonable doubt.

In determining the admissibility of the extraneous offenses, the trial court

reviewed the videos of the March 30 and May 3 incidents. Concerning the May 3rd

incident, the video allegedly shows Cotton driving a truck into the parking lot of the

apartment complex, exiting the truck, and masturbating in front of children with a

cast on his left arm. The trial court found the May 3rd incident was admissible under

Rule 404(b) for identity purposes due to several common denominators between the

prior incidents and current offense. Concerning the March 30th incident, which

allegedly shows Cotton driving the same car involved in the Cash Saver incident

into the parking lot of the same apartment complex as the May 3rd incident, and the

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trial court found that it was admissible only for the purpose of connecting Cotton to

the car. The trial court excluded the masturbation portions in the video of the March

30th incident, which did not involve children, explaining the State had enough and

it was just bolstering.

Stephen Clagett with Watchtower Security testified before the jury and

explained that his company provides fully managed video surveillance to apartment

complexes. Clagett explained he provided the videos and still shots of the May 3rd

and March 30th incidents.

Officer Brandon Rodriguez responded to the Cash Saver incident involving a

suspicious person masturbating in a green or gray Mercury with a black door.

Rodriguez located the suspect and the Mercury at an apartment complex where the

911 caller reported seeing the suspect. Rodriguez stopped the vehicle and identified

Cotton as the driver and sole occupant. Rodriguez explained that when he found

Cotton, Cotton’s pants were pulled down with his buttocks exposed, and he was

sweating a lot. Rodriguez testified that it appeared as though Cotton was pulling his

pants up. Rodriguez’s body camera footage of the stop was played for the jury, and

the video shows Cotton’s left arm was in a cast. Rodriguez explained Van Houten

was the lead officer assigned to the case, and Rodriguez’s only involvement was

issuing Cotton some traffic citations.

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Rodriguez explained that he viewed a still shot from the video of the May 3rd

incident at the apartment complex, which is close to where he stopped Cotton for the

current offense. After viewing the video of the May 3rd incident, Rodriguez testified

that the man exposing himself in the video has a cast on his left arm and the same

facial and body characteristics as Cotton. Rodriguez explained the individual in the

video has a goatee that is consistent with how he observed Cotton during the traffic

stop, which was eight days after the May 3rd incident. According to Rodriguez,

Cotton looked just like the man in the video. At that point, the trial court instructed

the jury that it could only consider the May 3rd incident for identity purposes–an

issue in the case–if they found beyond a reasonable doubt that Cotton committed the

May 3rd incident.

Rodriguez also viewed the video of the March 30th incident. Rodriguez

explained the video shows the car Cotton was driving during the current offense, and

he recognized the man in the video and in the still photo as Cotton. Rodriguez

testified Cotton did not have a broken arm on March 30th.

Detective Jeffrey Busby testified that he responded to a call involving the

current offense and was present when Rodriguez stopped Cotton. Busby explained

he recognized Cotton from the April 5th incident, where he responded to a call about

people chasing a suspect masturbating in a field, and Busby saw Cotton flee, jump a

fence, and break his left arm. Busby testified that during the April 5th incident, which

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occurred in the same proximity as the current offense, Cotton’s pants were hanging

mid-thigh level when he jumped the fence and broke his left arm, which required a

cast that Cotton still had during the current offense. Busby also explained that the

vehicle Cotton was driving during the current offense was distinct because it was

two-tone with a black door.

Busby testified that the still photo from the March 30th incident appears to be

Cotton, and he explained he would not be surprised that Cotton did not have a cast

during that incident because he was not injured yet. Busby viewed the video of the

May 3rd incident showing a man exposing himself, and he testified that the man,

who has a cast on his left arm, looks like Cotton and has matching facial features

and characteristics.

Officer Jacob Leslie was present during the April 5th incident when Cotton

broke his arm. Leslie testified he also responded to the May 3rd incident and spoke

with an eleven-year-old girl and her mother. After reviewing the video of that

incident, Leslie testified that the man in the video with a cast appears to be Cotton,

but Leslie could not say for sure it was Cotton.

Officer Daniel Norsworthy testified he investigated the current offense, and

he explained the vehicle involved was unique because of the side panels. Norsworthy

explained that U.G. was interviewed at the Garth House, and he reviewed the

information U.G. provided, the videos from the March 30th and May 3rd incidents,

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the still photo of Cotton and the vehicle he used during the March 30th incident, and

the details of the April 5th incident when Cotton broke his arm. Norsworthy testified

there are multiple reference points linking Cotton to the prior incidents and the

current offense, including the video footage and pictures, vehicle, same location,

same “MO,” distinct mannerisms, and the timing of when Cotton got the cast on his

arm.

Defense counsel presented Preston Addison Jr., who is familiar with Cotton.

Addison viewed a picture of the vehicle Sara identified as being involved in the

current offense and testified it is a “dope friend rental.” Addison explained that you

can borrow the vehicle for a few hours by trading drugs. Addison testified he had

seen numerous people in that vehicle.

The jury found Cotton guilty of the offense of indecency with a child by

exposure. The trial court conducted a punishment hearing before the jury during

which Cotton pleaded “true” to the two prior felony convictions alleged in the

indictment. The jury assessed Cotton’s punishment as a habitual felony offender at

thirty-five years of confinement.

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ANALYSIS

Sufficiency of the Evidence

In issue one, Cotton argues there was insufficient evidence to support his

conviction because he and U.G. were in separate vehicles and there was no testimony

that he knew anyone was watching him.

We review complaints of legal insufficiency under the standard in Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979). See Fernandez v. State, 479 S.W.3d 835, 837

(Tex. Crim. App. 2016). Under Jackson, we review all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have

found the essential elements of the offense beyond a reasonable doubt. Jackson, 443

U.S. at 319; see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We

defer to the jury’s responsibility to resolve conflicts in testimony, weigh the

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

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record contains

conflicting inferences, we must presume that the factfinder resolved such facts in

favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at 899 n.13;

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury as factfinder

is the sole judge of the weight of the evidence and credibility of the witnesses, and

it may believe all, some, or none of the testimony presented by the parties. See

Metcalf v. State, 597 S.W.3d 847, 865 (Tex. Crim. App. 2020) (citing Febus v. State,

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542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Heiselbetz v. State, 906 S.W.2d 500,

504 (Tex. Crim. App. 1995)). The appellate court does not reweigh the evidence or

determine the credibility of the evidence, nor does it substitute its own judgment for

that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007).

We treat direct and circumstantial evidence equally and consider the

“‘combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d

at 16-17). Each fact need not point directly and independently to the guilt of the

defendant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction. Temple v. State, 390 S.W.3d 341, 359 (Tex.

Crim. App. 2013); Hooper, 214 S.W.3d at 13; Johnson v. State, 871 S.W.2d 183,

186 (Tex. Crim. App. 1993). The testimony of a child victim, standing alone and

without corroboration, is sufficient to support a conviction for indecency with a

child. Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (providing that child’s

testimony alone is sufficient to support a conviction for a sexual offense when the

child is under the age of seventeen at the time of the alleged offense); Chasco v.

State, 568 S.W.3d 254, 258 (Tex. App.—Amarillo 2019, pet. ref’d).

For the offense of indecency with a child by exposure, the State needed to

prove beyond a reasonable doubt that Cotton, “with intent to arouse or gratify the

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sexual desire of any person[,]” exposed any part of his genitals knowing a child

younger than 17 years old was present. Tex. Penal Code Ann. § 21.11(a)(2)(A). U.G.

testified that she was thirteen years old when Cotton parked beside her family’s

Suburban in the Cash Saver parking lot, positioned himself on the console so as to

be seen by U.G., exposed his genitals, and masturbated in the front seat of his car

while staring at her “dead in the eyes[.]” U.G.’s testimony alone was sufficient to

support a conviction for indecency with a child by exposure. See Tex. Code Crim.

Proc. Ann. art. 38.07(a), (b)(1); Chasco, 568 S.W.3d at 258. Viewing the evidence

in the light most favorable to the verdict and deferring to the jury’s authority to

determine the credibility of the witnesses and the weight to give their testimony, we

conclude that a reasonable factfinder could have found the essential elements of the

offense of indecency with a child by exposure beyond a reasonable doubt. See Tex.

Penal Code Ann. § 21.11(a)(2)(A); Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1);

Metcalf, 597 S.W.3d at 865; Brooks, 323 S.W.3d at 902 n.19; Clayton, 235 S.W.3d

at 778; Hooper, 214 S.W.3d at 13; Chasco, 568 S.W.3d at 258. We overrule issue

one.

Ineffective Assistance of Counsel

In issue two, Cotton complains his counsel was ineffective for failing to

request a jury instruction for an affirmative defense because he did not use duress,

force, or threats against U.G. See Tex. Penal Code Ann. § 21.11(b)(2).

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To establish that he received ineffective assistance of counsel, Cotton must

demonstrate that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. See Strickland v. Washington,

466 U.S. 668, 687-88 (1984). The party alleging ineffective assistance has the

burden to develop facts and details necessary to support the claim. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-

assistance claim must overcome the “strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.” See Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellant’s failure to make either of

the required showings of deficient performance or sufficient prejudice defeats the

claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.

App. 2003).

The right of effective assistance of counsel ensures the right to reasonably

effective assistance and does not require that counsel must be perfect or that the

representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). Ordinarily, on direct appeal, the record will not have been

sufficiently developed during the trial to demonstrate in the appeal that trial counsel

provided ineffective assistance under the Strickland standards. Menefield v. State,

363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial

15
counsel’s actions as ineffective, counsel should normally be given an opportunity to

explain the challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). When counsel has not been given an opportunity to explain the

challenged actions, we will find deficient performance only when the conduct was

“‘so outrageous that no competent attorney would have engaged in it.’” Id.

The record does not show that Cotton filed a motion for new trial alleging

ineffective assistance. The record is silent as to trial counsel’s tactical and strategic

decision making. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

Moreover, Cotton cannot demonstrate that, but for counsel’s alleged errors, the

outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924,

929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is trial counsel’s ineffectiveness

apparent from the record. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim.

App. 2003). Cotton cannot defeat the strong presumption that counsel’s decisions

during trial fell within the wide range of reasonable professional assistance. See

Thompson, 9 S.W.3d at 814. Since we lack any basis in the record before us to

conclude that the alleged failure of Cotton’s trial counsel to request the jury

instruction was “so outrageous that no competent attorney would have engaged in

it[,]” we overrule Cotton’s second issue. Goodspeed, 187 S.W.3d at 392.

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Extraneous Offense Evidence

In issues three and four, Cotton complains the trial court erred by admitting

extraneous offense evidence under Article 38.37 of the Texas Code of Criminal

Procedure. See Tex. Code Crim Proc. Ann. art. 38.37. In issue three, Cotton argues

the videos of the March 30 and May 3 incidents from the apartment complex were

irrelevant and more prejudicial than probative. See Tex. R. Evid. 403. In issue four,

Cotton argues Van Houten’s testimony concerning the April 5th incident for the

purpose of identity was more prejudicial than probative and denied him a fair trial.

See Tex. R. Evid. 403, 404(b).

The record shows the trial court admitted all three extraneous offenses under

Rule 404(b) and not Article 38.37. We review a trial court’s decision to admit or

exclude evidence for an abuse of discretion and must uphold the trial court’s ruling

if it was “within the zone of reasonable disagreement.” Wells v. State, 611 S.W.3d

396, 427 (Tex. Crim. App. 2020); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991). This includes our review of a trial court’s decision to admit

evidence under Rule 404(b) for an abuse of discretion. See Dabney v. State, 492

S.W.3d 309, 318 (Tex. Crim. App. 2016); De La Paz v. State, 279 S.W.3d 336, 343

(Tex. Crim. App. 2009); Guevara v. State, 667 S.W.3d 422, 439 (Tex. App.—

Beaumont 2023, pet. ref’d). A trial court abuses its discretion if it acts without

reference to any guiding rules and principles or acts arbitrarily or unreasonably.

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Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). We uphold the trial

court’s decision if correct on any theory of law applicable to the case even if the trial

court states the wrong reason for the correct ruling. De La Paz, 279 S.W.3d at 344;

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

Relevant evidence is evidence that has any tendency to make the existence of

any fact of consequence to the determination of the action more probable or less

probable than it would be without the evidence. See Tex. R. Evid. 401. Rule 404(b)

of the Texas Rules of Evidence provides that “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.” Tex. R. Evid.

404(b)(1). Rule 404(b)(2), however, provides for certain permitted uses of

extraneous offense evidence. See Tex. R. Evid. 404(b)(2). Under the rule, such

evidence is admissible for “proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Id. “[E]xtraneous-

offense evidence may be admissible when a defendant raises a defensive issue that

negates one of the elements of the offense.” Martin v. State, 173 S.W.3d 463, 466

(Tex. Crim. App. 2005). “Thus, a party may introduce evidence of other crimes,

wrongs, or acts if such evidence logically serves to make more or less probable an

elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or

defensive evidence that undermines an elemental fact.” Id.

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Rule 403 permits a trial court to exclude relevant evidence “if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Tex. R. Evid. 403. When conducting a Rule 403

analysis, a trial court must balance: (1) the inherent probative force of the proffered

item of evidence along with (2) the proponent’s need for that evidence against (3)

any tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42

(Tex. Crim. App. 2006); see also Hall v. State, 663 S.W.3d 15, 32 (Tex. Crim. App.

2021). Rule 403 favors admitting relevant evidence and “carries a presumption that

relevant evidence will be more probative than prejudicial.” Davis v. State, 329

S.W.3d 798, 806 (Tex. Crim. App. 2010) (citation omitted).

The record shows that during his opening statement, Cotton raised the issue

of identity, arguing this was a “simple case of misidentification.” In determining that

the videos from the March 30th and May 3rd incidents were for identity purposes

under Rule 404(b), the trial court considered the common denominators linking

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those incidents with the current offense, including the same time period, same

masturbation-type event, similar location, identifying characteristics of the

perpetrator, arm cast or no cast, the vehicle, and flight after the offense. Based on

this record, we conclude the trial court did not abuse its discretion by finding the

videos of the March 30th and May 3rd incidents were admissible under Rule 404(b)

for identity purposes.

While Cotton also complains the trial court erred by admitting the videos

because they were more prejudicial than probative, the record shows he did not lodge

a Rule 403 objection prior to the trial court admitting the videos. See Tex. R. Evid.

403. Thus, he has not preserved this argument for our review. See Tex. R. App. P.

33.1(a) (stating that to preserve error, the record must show a specific and timely

complaint was made to the trial judge and that the trial judge ruled on the complaint).

Even if Cotton could show the complaint was preserved for our review, we conclude

the trial court’s decision was “within the zone of reasonable disagreement.” See

Wells, 611 S.W.3d at 427; Montgomery, 810 S.W.2d at 391. We overrule issue three.

Cotton also complains that the admission of Van Houten’s testimony

concerning the April 5th incident for identity purposes was more prejudicial than

probative and denied him a fair trial. See Tex. R. Evid. 403, 404(b). The record

shows the trial court admitted the testimony about the April 5th incident for identity

purposes after finding the incident occurred in a similar location and included

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relevant factors surrounding the current offense. See Tex. R. Evid. 401, 404(b)(2).

The record also shows the trial court conducted the necessary balancing test and

found that the probative value of the evidence was not substantially outweighed by

its prejudicial value and was relevant to a fact of consequence–the issue of identity–

apart from its tendency to prove conduct in conformity with character. See Tex. R.

Evid. 403; Gigliobianco, 210 S.W.3d at 641-42. We conclude the trial court did not

abuse its discretion by finding Van Houten’s testimony about the April 5th incident,

which involved Cotton breaking his arm after fleeing from the same type of exposure

and masturbation event that occurred on U.G.’s street, was relevant and its probative

value was not substantially outweighed by its prejudicial value. We overrule issue

four.

CONCLUSION

Having overruled all of Cotton’s issues, we affirm the trial court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on July 8, 2025
Opinion Delivered July 30, 2025
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

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