Affirmed as Modified and Memorandum Opinion filed Octo ber 12 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14
- 19
- 00237
- CR

RYAN COLEMAN , Appellant

V. THE STATE OF TEXAS , Appellee
On Appeal from the 337th District Court

Harris County, Texas Trial Co ur t Cause N o . 1619943

M E M O R A N D U M O P I N I O N Appellant Ryan Coleman appeals his conviction for aggravated sexual assault. After a jury conv icted appellant, the trial court assessed his punishment at 70 years in prison. In a single issue, app el lant cont e nds that t he trial court abused its discretion in denying his motion to suppress evidence of four alleged extraneous offenses involving other complainants because the prejudicial effect of that evidence substantially outweigh ed its probative va lu e
. We modify the trial court ’ s judgment to delete a n incorrect special finding that appellant waived his right to2

appeal, and as so modified, affirm the trial court ’ s judgment

. B ackground Complainant , who is from Honduras, testified that she was work ing a s a dancer at a club in June 2015 when she met appellant at the club. When the club closed , complainant , a co
- worker, appellant, and appellant ’ s female friend all we nt to a n other bar . After con suming a drink that appellant ’ s friend gave her, complainant sa id that her heart began to race, she felt dizzy , and she had to go to the restroom to vomit. Shortly thereafter, complainant and her coworker decided to leave , but w hen the cowor ker discovered that her car had been towed , appellant and his fr iend offered t o give them a ride to complainant ’ s apartment. Appellant, however, drove them instead to the ap artment c omplex where he and his friend lived. The friend explained th at they n eede d to pick something up first. When they arrived at the complex, the friend sh owed complainant her apartment while complainant ’ s coworker was outside talking to her boyfriend on her phone

. The friend then informed complainant that appellant wo uld be t he on e to take complainant home. Complainant followed appellant to his apartment. S he said that she was not concerned at this point and thought he was just going to get his keys. Once they entered appellant ’ s a partment, appellant closed the door. Compla i n ant immediately tried to open the door but found that there was a device

on the do orkno b that just spun in her hand , and she could not get the door open. Complainant told appellant to open the door , but he refused and began groping her

. She pushed him aw a y an d told him no , but he started trying to remove her clothes. She then noticed a gun tucked into the waistband of appellant ’ s pants. When he took the gun out, c omplainant ran to the bathroom , locked the door, and told him she was going to call t h e polic e , alt hough she had left her phone in appellant ’ s car
.3

Appellant pounded on the do or and told her to open it. He then pried the door open with a kitc hen knife

. Still holding the knife, he fondled complainant and then grabbed her by her hair and thre w her o n the couch in the living room

. App el l ant offered her money , but she again told hi m no. Appellant began to kiss her on the neck while still holding the knife. He groped her and la y on top of her

. C omplainant tried to fight him off , but she said his weight was t oo much. She kept telling appellant no and that the police could arrive any m o ment. Appellant then forcibly penetrated complainant ’ s vagina with hi s penis. Compla inant said it was painful.
Aft erwards, appellant placed a finger to his lips whi le hold i ng th e knife and told complainant to calm down. Appellant then opened the door , an d they walked outside. Complainant began to run down the st airs , yelling for her friend w ho had apparently left

. Appe llant briefly grabbed complainant ’ s hair , but she kept ru n ning, stopping only to grab her phone out of his car, and ran through the apartme nt compl ex ’ s gate and across the street. She then called the police and watched as appellant go t in his car and dr ove away quickly

. One of the off

i cers who respon d ed to the scene testified that complainant appeared traumatized and the apartment s howed sig ns of a struggle . A fter the police arrived , complainant was taken to the hospital by ambula nce. She was treated for pain , various brui ses and abrasions were noted, and a tampon was removed from her vaginal vault

. Later DNA ana lysis of a semen samp le recove red from complainant could not exclude appellant as the source of the semen. In 2017, appellant was located in Arizona and extradited back to Texas.
At tria l, defe n se co unsel ’ s opening statement and questioning focused on whether the sexual interc ourse bet ween complainant and appellant was consensual and on complainant ’ s immigration sta tus as a reas on for why she may have4

fabricated the charge. Defense counse l also elicited t estimony that complainant had apparently stopped cooperating with the police inve st igation for a time. Complainant explained that this was because she was afraid.
When the State offered evidence regarding four other sexual assaults that appellan t had a l leged ly committed against other women, the trial court held a hearing on appellant ’ s motion to suppress that evidence. As will be discussed more fully below, each of these fou r allegat ions included elements similar to the alleged sexual assault of complai n ant. The trial court denied the motion to suppress but instructed the jury both ora ll y and in the jury ch arge regarding their consideration of these extran eous offenses. Standards of R eview
In his sole issue , appellant asserts the trial court er red in adm i tting the evidence of four extraneous offenses because the prejudicial effect of th at evidence substantially outweighed its probative value

. We review a trial court ’ s d ecision to admit or exclude evidence under an abuse of discretion standard. De L a Paz v

. Stat e , 279 S.W.3d 336, 343

– 44 (Tex. Crim. App. 2009). As long as the trial court ’ s

r uling falls within the zone of reasonable disagreement, we will affirm that decisio n. Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Under Texas R ule of Evid e nce 4 04(b), evidence of a “crime, wrong, or other act” is not admissible to prove a p erson ’ s character or that he acted in conformity with that character

. Tex. R. Evid. 404(b)(1) ; see a lso Metcalf v. State , No. 14

- 19

- 00101

- CR, 2020 WL 1880991, at * 5 (Tex. App.

— Houston [14th Dist.] Apr

. 16, 2020 , no pet. )

. Evidence that does not have rele va nce apart from character conformity is inadmissible. Tex. R. Evid. 404(b) ; Casey v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)

. However, evi dence of ex tr aneou s offenses may be admissible for another purpose “such as proving motive, opportunity, in te nt,5

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Tex. R. Evid. 404(b)(2); see also Metcalf , 2020 WL 1880991, at *5

. Moreo ve r,
e x traneous offense evidence is not inadmissible under Rule 404(b) when it is offered to reb ut an affirmat ive defense or a defensive issue that negates one of the elements of the crime. Casey , 215 S.W.3d at 879

. Here, the State argued that the ch alleng ed evid ence was admissible to show intent as well as to rebut the defensive theories that the se xu al intercourse was consensual and that compla inant fabricated the sexual assault allegation to enhance her immigration status. Appellant does not appear to ch al lenge the relevance of the extraneous offense evidence for these purposes but instead argues t ha t the evidence was in a

sense “ too relevant, ” i.e., that any value of the contested testimony was substanti ally outweighed by the danger of unfair preju dice a nd ther efore should have bee n excluded pursuant to Texas Rule of Evidence 403

. The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. Segundo v. State , 270 S.W.3 d 79, 87 (Tex

. Crim. App. 2008). However, evidence o f extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejud ic ial e ffect. Id

. All evidence tends to be prejudicial to one party or the other. Hernandez v. S ta te , 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) . On ly “unfair” prejudice provides the basis for exclusion of relevant evidence. Montgomery v. State , 810 S.W.2d 3 72, 3 78 (Tex. Crim. App. 1990); Metcalf , 2020 WL 1880991, at *5 . Prejudice is “unfair” if it h as an “undu e tendency to suggest a decision on a n improper basis, commonly, though not necessarily, an emotional one.” Montgomery , 810 S.W.2d at 378. In c onduct in g a r ule 403 analysis, courts must balance (1) the inherent probative force of the proffered e vi dence and (2) the6

proponent ’ s need for that ev idence, against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tende ncy to c onfus e or distract the jury from the main issues, (5) any tendency to be given undue weight by t he jury, and (6) the likelihood that presentat ion of the evidence will consume an inordinate amount of time or be cumulative of other evidence. Gigliobi anco v
. State , 210 S.W.3d 637, 641

–

42 (Tex. Crim. App. 2006); Metcalf , 2020 WL 1880991, at *5

. The bal an ce is always slanted toward admission, not ex clusion, of otherwise relevant evidence

. De La Paz , 279 S.W.3d at 343

. We will examine each of these factor s and ho w the y rela te to the extraneous offense evidence offered in this case. Analysis
Probative valu e. The term “probative value” refers to the inherent probative force of an item of evidence , i.e., how strongly it serves to make more or less probable th e exis te nce o f a fact of consequence to the litigation

. See Casey , 215 S.W.3d at 879

. As mentioned, th e State sought admission of this evidence to show intent and to reb ut defensive theories o f conse n t and fabrication. To prove aggravated sexual assault in this ca se , t he State was required to establish that appellant intentionally or knowingly engaged in s ex ual conduct with complainant without her consent. See Tex. Penal Code § 22.021(a)(1 )(A)(i) ; Tinker v. State , 148 S.W.3d 666, 669 (Tex. App.

— Houston [14t h Dist .] 2004 , no pet. )

. When , as here, the defensive theory of consent is raised, a defendant necessa ri ly disputes his intent
to do the act without the consent of the complainant

. Rubio v. State , 607 S.W.2d 498, 501 (Tex. Crim. App. 1980)

. Such intent can not be i nferr ed from the mere act of sexual intercourse

. Id

. The probative value of the evidence o f ot he r alleged sexual assaults of other complainants lies in its tendency to show that this complainant did not consent to the sexual activity in thi s case
. See Ca se y , 215 S.W.3d a t 8 82. When evidence of7

an extrane ous offense is offered to show intent, its re le vance derives from the

so
- called “ doctrine of chances, ” which “ tells us that highly unusual events are unlikely to repeat themselves inadvertent ly or by happ ens tance

. ” De La P az , 279 S.W.3d at 347

– 48 ; Sandoval v. State , 409 S.W.3d 259, 300 (Tex. App.

— Aus ti n 2013 , no pet. )

. For the doctrine to apply, there must be a distinct similarity between the charged and extraneous offenses, since it is the im probability o f a like result be ing repeated by mere chance t hat gives the extraneous offense s probative weight

. Sandoval , 409 S.W.3d at 300 ; s ee also Casey , 215 S.W.3d at 8 8 1

. However, t he similarity required is less when intent is the issue than when identity is the issue

. Rickers on v. State , 138 S.W.3d 528, 531 (Tex. App.

— Houston [14th Dist.] 2004 , pe t. ref ’ d )

. Ap pellant does not challen ge the trial court ’ s determination that the extraneous offenses in this case were distinctly similar to the charged offense. In mak ing th at determ ination, the trial court noted similarities between the charged offense and the extran eous offenses, including the similarity in a ge of all of the women, the “ manner and means ” of the assault s , meeting at or going to a club o r strip club, an d drinking alco hol

. The court further noted th a t several of the women were either dancers at s trip cl ubs or , in the case of one, a model at a bar

. Each extraneous allegation did not include all these similarities b ut each did have simila rities with t he charged offense . We conclude that th e probative value of the extraneous offense evidence weigh s in favor o f its admission

. See , e .g. , Rickerson , 138 S.W.3d at 531

– 32 ( holding extraneous offenses were sufficiently similar where e ach c omplainant was acqua int ed with appellant , w as surprised by hi s actions , was around the same age, and alleged similar assaults )

. Need for the e vidence. The State ’ s need for the extraneous offense evidence in this case stems from the fact that without such e vidence, this case i s l argely a8

he

- said , sh e
- said dispute. There were no eyewitnesses to the alleged sexual assault. Although b ruises and abrasions were noted on complainant ’ s person and one officer testified it appeare d that there had been a struggle in a ppellant ’ s apartmen t, t he only testimony th at the se were the result of a sexual assault by appellant came from compla inant. The DNA evidence suggested appellant and complainant may have had sexual intercourse but said nothing about whether it was consensua l. Also, the defens e su ggested complainant fabricated the allegation t o aid her immigration status

. 1 Accordingly, w e conclude t hat the State ’ s need for the extraneous offense evidence in this case strongly supports admission of the evidence. See , e.g. , McC

ombs v. State , 562 S.W. 3d 748, 767 (Tex. Ap p.

— Houston [14th Dist.] 2018 , no pet. ) (explaining that State ’ s need for e x t raneous offense evidence in sexual assault case stemmed from the fact the direct evidence was largely the complainants ’ testimon y)

. Tendency to ward im proper bas is. Certainly , the testim ony of four women alleging appellant sexually assaulted them possesse d some ten dency toward suggest ing a decision on an improper basis ; however, the trial court orally admonished the jury regarding t he proper consideration of t his evidence four times durin g the State ’ s presentation and included a limiting instruction in the jury char g e. This l essen ed the prejudicial impact of this factor. See Banks v. State , 494 S.W.3d 883, 894 (Tex. App.

— Houston [14t h Dist.] 2016 , pet. ref ’ d )

. Acco rdingly, this factor some what favors exclusion of the extraneous offense evidence

. Tendency to confuse o r distract. T he extraneous offense evidence in this

case was direct and very relevant to the issues of intent, consent, and fabrication. See id . App ella nt does not raise any con cerns regarding confusion o r distraction.

1 On cross

- examina tion by defense counsel, complainant testified that a police officer informed her that as a comp lainant of criminal activity she could apply for a “ U v isa. ”9

This factor weighs i n favor of admiss ion. Tendency for undue we ight. Appellant suggest s that the repetitive nature of receiving evidence of four alleged ext raneous offenses could lead the jury to assign undue weig ht to that evidence in determining appellant ’ s guilt for the sexual

a ssault of complainant. Although this is of some concern in this case, we again note that the tr ial court orally admonished the jur y four times and instruct ed them regarding the proper con sideration of this evidence in the jury charge. Moreover, as the tria l court no ted, the extraneous offense allegations were similar to and “ no more heinous ” than the allegations in the charged case.
Pres e ntation time. Lastly, we n ote that the State took a considerabl e portion of the trial to present the extraneous offense evidence. Appellant estimates that this evidence took about one

- fifth of the total time spent on the State ’ s case
- in

- chief. Even t he testimony in the suppress ion hearing occupied about 10 0 trans cript pages. Th e time required is not surprising given that th ere were f our extraneous offenses and each had to be proven beyond a reasonable doubt in order for the jury to consider it. See Di stefano v. State , 532 S.W.3d 25, 38 (Tex. App.

— Houston [1 4th Dist.] 2016 , pet. ref ’ d )

. This factor, however, does weigh some wh at against admission of the evidence. Conclu sion
. Although the extraneous offense evidence in this case took a fair amount of time to pr esent and had some ten denc y to suggest a decision o n an improper basis and potentially to be assigned undu e weight, g ive n the stro ng probative value of the evidence , the State ’ s need for that evidence, and the lack of any notable tendency of the evid ence to confuse or distract the jury, the trial
court ’ s d ecision to admit the evid ence was within the zone of reasonable disag reement

. A c c o r d i n g l y , t h e t r i a l c o u r t d i d n o t abuse its discretion in admitting the evidence under Rule 404(b). See Gigliobianco , 210 S.W.3d at 641

– 42 ; Moses ,10

105 S.W.3d at 627 ; Metcalf , 2020 WL 1880991, at *5

. We overrule appellant ’ s sole issue.
W e modify the trial court ’ s judgment to delete the special fin ding , “ A ppeal waived. N o permission to appeal granted , ” and affirm the judgment as so modified

. See Tex. R. App. P. 43.2(b) ; see also Fr ench v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) ( “ [A] n ap pellate co urt has authority to reform a judgment to

. . . make the record speak the truth when the matter has been called to its attention by any source ” )

.

/s/ Frances Bourliot Justice

Panel consists of J u stices Bo urliot, Zimmerer, a nd S pain. Do Not Publi sh

— T E X

. R. A PP

. P

. 47.2( b).