1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00127-CR

__________________

GUS GUEVARA, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Cause No. 88817-CR

__________________________________________________________________

OPINION

A jury convicted Gus Guevara on four counts of a six-count 

indictment—specifically, counts two and three—which charged Guevara 

with aggravated sexual assault of a child, count five—which charged 

Guevara with touching a child’s breast, and count six—which charged 
2

Guevara with causing a child to touch his genitals.1 In the punishment 

hearing that followed, the trial court sentenced Guevara to prison for life

on the two convictions finding him guilty of sexually assaulting a child.

The court assessed twenty-year sentences on the other two counts,

stacking the sentences so that Guevara would begin serving his sentence 

for causing the child to touch his genitals after completing his sentence 

on his conviction for touching the child’s breast. 

Guevara appealed, raising two issues for our review. In issue one, 

Guevara argues the judgment should be reversed because the evidence is 

insufficient to support his four convictions. In issue two, Guevara argues

the trial court erred in admitting the testimony of four witnesses who 

testified about sexual assaults he allegedly committed against two other 

children, years before he allegedly sexually assaulted the child named in 

1Tex. Penal Code Ann. § 22.021(a)(2)(B) (Aggravated Sexual 

Assault of a Child); id. § 21.11(a)(1) (Indecency With a Child). Guevara 

filed his appeal in the Fourteenth Court of Appeals. But in April 2021, 

the Texas Supreme Court signed a docket-equalization order and 

transferred the appeal to the Ninth Court of Appeals to equalize the 

appellate dockets. See Tex. Gov’t Code Ann. § 73.001. As to the counts on 

which the jury found Guevara not guilty, the jury found him not guilty of 

penetrating the child’s sexual organ and not guilty of penetrating the 

child’s anus. 
3

the six counts of the indictment as the victim of his crimes. Because we 

conclude Guevara’s arguments lack merit, we will affirm.

Background

The case against Guevara was tried in April 2021. The six count 

indictment is based on acts that allegedly occurred between June 30, 

2016, and November 21, 2019, the day the indictment was filed. The 

indictment alleges that when the acts of sexual abuse occurred, Luciana,2

the child named as the victim of the crimes, was not yet fourteen years 

old. As to the offenses alleged by the indictment, 

1) count one alleges Guevara intentionally or knowingly caused the 

penetration of Luciana’s sexual organ by his sexual organ,

2) count two alleges that Guevara intentionally or knowingly 

caused Luciana’s sexual organ to contact his mouth,

3) count three alleges that Guevara intentionally or knowingly 

penetrated Luciana’s mouth with his sexual organ,

4) count four alleges that Guevara intentionally or knowingly 

penetrated Luciana’s anus with his sexual organ,

5) count five alleges that Guevara intentionally or knowingly 

engaged in sexual contact with Luciana by touching her breast,

and

2To protect the identity of the victim of the indictment and the 

members of her family except for Guevara, we use pseudonyms for their

names.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 dignity and 

privacy throughout the criminal justice process”). The first time a 

pseudonym is used for a person’s name, we indicate a pseudonym is being 

used with italics. 
4

6) count six alleges that Guevara, with the intent to arouse or 

gratify his sexual desire, intentionally or knowingly engaged in 

sexual contact by causing Luciana to touch his genitals. 

Eight witnesses testified in the guilt-innocence phase of the trial. 

All eight were called by the State. In closing argument, Guevara’s 

attorney argued that we don’t know why young people tell stories, “some 

of them are true, some of them are not.” Then, he suggested that even 

though eight witnesses testified in the trial, the case boiled down to a 

“she said, he said case[,]” but he argued that nothing corroborated 

Luciana’s story about the elements the State was required to prove to 

meet its burden of proving that Guevara was guilty of the crimes on 

which he had been tried.

On appeal, Guevara argues the evidence “so overwhelmingly 

outweighs the evidence which shows that he committed these four 

felonies that the jury’s verdict is unsupported by proof beyond a 

reasonable doubt.” To support that argument, Guevara relies on the 

following evidence: (1) Detective Cecil Arnold’s testimony, whom 

Guevara claims testified that Guevara denied having sexually abused 

Luciana during the detective’s investigation of Luciana’s claims; (2) 

evidence showing that Luciana waited two years before reporting the 
5

sexual abuse to an adult; and (3) the fact the jury acquitted Guevara on 

two of the indictment’s six counts. 

Viewed in the light most favorable to the verdict, the evidence 

shows that Luciana was living with her parents in April 2021 when the 

case went to trial. She was in the third grade when she testified and 

approaching her tenth birthday. Luciana’s mother—Helen—testified 

that between June 2016 and October 2019, the family was living with 

Guevara (Helen’s father) in a townhome. Luciana was in third grade 

when she told a school counselor she had been sexually abused by her 

grandfather when she was five or six years old.3 Helen described the 

family’s sleeping arrangements in the two-bedroom townhome, 

explaining her father had a bedroom of his own. As to Helen’s family, 

Helen testified they either slept in the other bedroom or that Luciana and 

3Helen explained she was living in Guevara’s home when Luciana 

was born, but that she had moved out and back into Guevara’s home a 

few times since then. That said, Helen testified when the incident the 

subject of the Guevara’s indictments occurred, her family had moved 

back in and had been living in Guevara’s home since her son was “about 

a year old[.]” Helen testified that Luciana was about two years older than 

her son.
6

her brother sometimes “slept anywhere they fell asleep[,]” which was 

either upstairs “in our bedroom or the living room.”4

Helen also described how sometimes her work required that she 

leave her children with Guevara (Helen’s father) when she went to work 

or left to run errands. For example, Helen testified that in 2016, her 

husband was working from sunup until sundown at two restaurants.

Helen testified that she too worked at restaurants in 2016, but her work 

ended around November 2016.According to Helen, after her work ended 

around November 2016, she stayed at home and took care of her children 

until October 2017, when she got another job. Still, even when staying 

home and caring for her children, Helen said there were occasions when 

she left the home to run errands. When that happened, Helen explained 

she left Guevara with her children in his home.

Helen also was asked about changes she noticed in Luciana’s 

behavior. Helen testified she noticed a significant change in Luciana’s 

behavioraround October 2018. Helen explained the changes in behavior 

were to everyone in the home, but Helen also said Luciana’s behavior 

4Although the record is unclear, it appears the living room in the 

townhome was located downstairs from the context of other testimony 

when viewed from the record as a whole. 
7

changed even more toward Guevara.When describing what had changed, 

Helen testified Luciana began exhibiting signs of anger toward Guevara,

and she suddenly began secluding herself from everyone in the home.

Before Luciana’s behavior changed, Helen described Luciana as someone 

who was “loveable, just always with smiles on her face[.]”But afterwards, 

Helen said Luciana begged to go with her when she left the house and 

made sad facial expressions when she left Luciana in Guevara’s care. 

Helen also noticed that Luciana stopped coloring, even though Helen 

explained that before things changed “[t]hat was her thing.”

Given the jury’s decision to acquit Luciana on some of the counts, 

it’s clear the jury chose to believe most but not all of Luciana’s testimony. 

Luciana, nearly ten years old when she testified, told the jury she was six

and in kindergarten when Guevara sexually abused her in his bedroom.

Luciana testified the abusive behavior occurred when her parents

weren’t at home, Guevara sexually abused her more than once, and 

Guevara stopped sexually abusing her when she was around seven years 

old. According to Luciana, all the incidents occurred in Guevara’s 

bedroom. Luciana testified that her then four-year-old brother was in the 

living room when these incidents occurred. 
8

Luciana described the details of the abuse. According to Luciana,

Guevara: (1) “put his private part inside mine[;]” (2) “put his private in 

my bottom[;]” (3) used his hands to touch her chest; (4) had her put her 

mouth on his private part; and (5) had her put chocolate syrup on his 

penis. When Luciana was asked what Guevara made her do with her 

hands, she testified he “made me touch his private.” And when asked

whether Guevara ever touched her “front private with anything other 

than his front private[,]” Luciana responded, “Yes.” Asked for more 

detail, Luciana testified that Guevara touched her “front private” with 

his hand and tongue. She testified his conduct occurred “sometimes every 

day.” 

On cross-examination, Guevara’s attorney asked Luciana: “[H]ow 

many times have you had told this story?” Luciana responded and said 

she had told it “[a] lot.” When the attorney asked her to be more specific, 

Luciana testified:“It has been more than a dozen times.”

Cynthia Silva, Luciana’s school counselor, was also called by the 

State to testify in the trial. Silva testified that on October 3, 2019, she 

asked Luciana to come talk to her in her office after learning from a 

parent of another child at the school that Luciana had reportedly told 
9

that child about her grandfather’s abuse. Silva explained that she spoke 

to Luciana, she had Luciana play with some sand and toy figurines. After 

Luciana relaxed and began talking about members of her family, Silva 

told Luciana that “someone told me what [you] had said about Grandpa.” 

At that point, Silva said Luciana’s eyes widened, and Luciana said: “My 

friend told you. I am so embarrassed.” Silva explained that she reassured 

Luciana that she could trust her, and then Luciana told her: “It’s true. I 

had s-e-x with my grandpa.” 

According to Silva, Luciana told her what Guevara did to her when 

she was five or six-years old when her parents weren’t home. Silva

testified Luciana told her that Guevara “put his thing in herprivate part”

when they were in his bedroom. Luciana also told Silva that Guevara 

“would do it a lot” even though Luciana told “him to stop[.]” On crossexamination, Silva agreed that on occasion she had seen children lie to 

get someone else into trouble.Silva also agreed there’s “no ironclad way 

to tell whether that’s what they are doing[.]” 

The same day Luciana told Silva that Guevara had sexually abused 

her, she spoke to Detective Cecil Arnold, an employee of the City of 

PearlandPolice Department about the alleged sexual abuse. During the 
10

trial, Detective Arnold testified that Luciana decided to tell others about 

Guevara’s sexual abuse because she told one of her friends and her friend 

encouraged her to tell an adult. Detective Arnold testified that when he 

interviewed Luciana, she told him she had “s-e-x with [her] grandpa.”

And he stated she told him these incidents occurred when she was five or 

six years old. 

Detective Arnold also discussed what Luciana told him about the 

details of the sexual abuse. For example, the detective explained that 

Luciana described “sex’ as “[Guevara’s] front private part in her front and 

back private part.” Detective Arnold also said Luciana told him “she felt 

[Guevara’s]front private part was hard and as she was being penetrated 

that it hurt her and she would ask him to stop.” When Detective Arnold

asked her what functions her back and front private parts have, he said 

she told him her “pee” came from her front private part and “she uses her 

back private part to go poo.” 

Detective Arnold said he asked Luciana whether anything else 

happened, and “[s]he brought up oral.” Luciana described additional 

details about the oral sex to the detective too, according to Detective

Arnold, as he testified that Luciana told him Guevara had asked her to 
11

lick his private part and that she complied, licking what Luciana called 

Guevara’s “front private part.” According to the detective, Luciana also 

told him “her grandfather told her to go get some chocolate syrup and 

bring it back and that the chocolate syrup was put on [Guevara’s] front 

private part for her to lick off.” 

Detective Arnold’s interview with Luciana provided details about 

other acts of sex relevant to the counts in the indictment not yet 

discussed. For instance, Detective Arnold testified Luciana “described an 

incident where [Guevara] was putting his mouth onto her breast and she 

used the word nipples” during the interview. He also said Luciana told 

him that sometimes Guevara “would take her hand and put it on his front 

private part,” which the detective explained Luciana understood to be 

Guevara’s penis. Luciana also told the detective “her grandpa would get 

a towel or a rag and, quote, wipe her front private part.” As to how often 

these incidents occurred, Detective Arnold testified Luciana told him 

they occurred “every day or every time that her parents were out 

shopping[.]” 

Detective Arnold explained that after he completed Luciana’s 

interview, he spoke to Guevara at his home. In that interview, Detective 
12

Arnold said he thought Guevara seemed “[v]ery laid back.” Detective

Arnold also testified that when he spoke to Guevara, Guevara laughed 

after being informed about what Luciana told the detective what she was 

claiming Guevara had done. According to Detective Arnold, after he told 

Guevara about Luciana’s allegations, Guevara said: “[T]he only time he 

would have ever touched her private part would be during a bathing 

time.” Detective Arnold testified that Guevara told him that he often gave 

Luciana her baths. 

On October 9, 2019, Luciana was examined by Angie Chacko, a 

sexual assault nurse. When Chacko testified, she explained she asks her 

patients broad questions. In Luciana’s case, she testified she asked, “has 

anyone ever touched you or did something to you that made you feel weird 

or uncomfortable?” According to Chacko, Luciana responded: “Oh, yeah, 

my grandpa.” Chacko explained that during Luciana’s examination, 

Luciana told her that Guevara 

would take his ‘front private,’ and patient points to genitalia, 

‘and put it in my front and back private.’ Patient points to 

front genitalia and anus. ‘And he would touch my front 

private.’ 

Luciana also told Chacko about an incident when she (Luciana) put 

her mouth on Guevara’s penis. Luciana described that incident 
13

(according to Chacko) as involving the use of chocolate syrup. Chacko also 

testified that Luciana told her that Guevara “put his tongue in my front 

private part.” As to the part of the body Luciana was describing when she 

referred to a person’s front private part, Chacko testified that Luciana 

pointed to the correct area of a person’s body when she asked her what 

she was talking about, the part consistent with a male or a female’s 

sexual organ. And Chacko stated that Luciana pointed to her bottom

when she was talking about her backprivate part, which Chacko clarified 

was Luciana’s anus. 

Chacko’s history about when the sexual abuse occurred also fits

with what Luciana told Silva and Detective Arnold.Luciana told Chacko 

that Guevara abused her when she was five or six years old. Luciana also 

told Chacko Guevara sexually abused her when she was in kindergarten.

Chacko examined Luciana, but Chacko found no objective evidence in the 

exam to suggestLuciana had suffered a physical injury from the alleged 

abuse.

The testimony of the three remaining witnesses addressed the 

evidence of the extraneous offenses that are the subject of Guevara’s 

second issue, incidents involving sexual abuse of minors that allegedly 
14

occurred in 1983 and 2004. Only the 1983 offense led to Guevara’s 

indictment, and that indictment was dismissed. The evidence in 

Guevara’s trial, however, does not show the reason the indictment was 

dismissed.

Olivia testified about an extraneous offense that she claimed 

occurred in 1983. Olivia was fifty three years old when she testified in 

Guevara’s trial. Olivia testified about what she claimed Guevara did to 

her in 1983 when she was fifteen years old. According to Olivia, in 

January 1983 while she was babysitting at her aunt’s home, she was in 

a loft bedroom, upstairs and by herself when Guevara (her uncle) came 

upstairs and sat on the couch. According to Olivia, the next thing she 

knew she was on the floor on her back. Then, Olivia continued, Guevara 

covered her mouth with his hand, pulled the shorts she was wearing to 

the side, and inserted his penis in her sexual organ. Olivia testified that 

when Guevara finished,he told her to “go clean up.” Olivia explained that 

when she went to the bathroom, she noticed Guevara had ejaculated. The 

next morning,Guevara took her home and gave her $20 for babysitting. 

Olivia agreed that when she got home, she didn’t tell anyone about what 
15

Guevara did to her, excusing her failure to say anything to her parents 

because she said she “was scared.” 

Olivia explained that about five months after Guevara raped her, 

her stomach “just started getting bigger.” She told her brother’s girlfriend 

what Guevara had done and after that, her brother found out. When he

told her mother, the police were called to investigate. According to Olivia, 

the “family was very divided at the time.” Explaining why the family was 

divided, Olivia testified that some members of her family called her a 

“mentirosa, which is a liar.” Olivia had a baby in September 1983, a baby 

she testified that Guevara fathered. But according to Olivia, her mother

told her “she couldn’t raise his – [Guevara’s] child and be – have 

[Guevara’s] child running around with his other kids and all the family.” 

Olivia explained she never got to see her baby and didn’t get to keep her; 

instead, Olivia explained “they took [the baby] away” to a family who 

adopted the child. 

At trial, Olivia agreed she knows where her daughter now lives. 

According to Olivia, her daughter contacted her in 2009. Olivia testified 

that occasionally, the two of them “speak.” As to other sexual 

relationships Olivia had with other men around January 1983, Olivia 
16

explained she had sex in the summer of 1982 with her boyfriend. But 

Olivia denied she and that boyfriend were still together by January 1983.

According to Olivia, in January 1983 she had a different boyfriend, a boy 

with whom she had not slept. 

The evidence about Guevara’s other extrinsic offenses related to 

two unindicted offenses he allegedly committed in 2004 against his then 

seven-year-old granddaughter, Luisa. At trial, Luisa testified about two 

specific acts she said Guevara committed against her in 2004. In one, she 

said she was walking by a couch when Guevara grabbed her, put her on 

his lap, reached in her pants, and touched her skin but touched her above 

her sexual organ. She said that when that incident occurred, Guevara

didn’t say anything and she “just grabbed him and tried to get it out and 

then ran upstairs.” 

In the other incident, Luisa testified that Guevara came in his 

bedroom while she and her siblings were playing on his bed. When 

Guevara sat on the bed, Luisa explained she was afraid he might try to 

“grab” her and “touch” her, so she tried to avoid him by hopping away 

beyond his reach. But Luisa told the jury that Guevara “tackled [her] and 
17

reached his hand in [her] pants[.]” Luisa testified Guevara’s hand 

touched her “vagina” after he put his hands in her pants.

Luisa also told the jury that she told her cousin what happened to 

her that day. Then, according to Luisa, her nine year old cousin told her

mother. After her parents found out, Luisa said her family took her to 

the police station,where they told the police what she told them Guevara 

had done. But to Luisa’s recollection, said she didn’t remember speaking 

to a police officer that day. Instead, Luisa said she remembered sitting 

on her father’s lap and the officers telling her parents that, “in time she’ll 

forget about it.” According to Luisa, until Detective Arnold took her 

statement in Luciana’s case, the investigation the police conducted into 

what happened in 2004 didn’t go anywhere.

Luisa’s mother, Sara, testified that, after Luisa’s cousin told her 

Sara was crying, she went to the room where Luisa was to see what was 

wrong. Sara told the jury that Luisa “told me about the incident that 

happened with her grandfather[,]” explaining that Luisa told her about 

the incidents that occurred on the couch and in the bedroom. According 

to Sara, these incidents both occurred in April 2004. Sara’s account about 

what Luisa told her largely tracks Luisa’s, except Sara didn’t testify (and 
18

wasn’t asked) whether Luisa told her exactly where Guevara’s hand 

contacted Luisa’s body in either of the incidents that Luisa described. 

Sara also testified the day or two after Luisa told her about what Guevara 

did to her on the bed, she took Luisa to a therapist. Sara also told the 

jury that before testifying in court that day, she had not appeared in court 

to testify about what happened to Luisa in April 2004. Sara also 

explained she has always wondered why the police didn’t follow up on the 

report that she and her husband filed about what Luisa told them 

Guevara had done. 

At the end of the guilt-innocence phase of the trial, the jury found 

Guevara guilty on four counts of the indictment—counts two and three, 

which charged Guevara with sexually assaulting Luciana, a child; count 

five, which charged Guevara with touching Luciana’s breast; and count 

six, which charged Guevara with causing Luciana to touch his genitals. 

There was no dispute at trial and there is no dispute in the appeal 

that during the period relevant to Guevara’s indictment—June 30, 2016,

until November 19, 2019—Luciana was a child as that term is defined by 
19

the Penal Code.5 With respect to counts two and three, the counts 

charging Guevara with the offense of aggravated sexual assault of a 

child, the State needed to prove the defendant intentionally or knowingly:

(ii) cause[d] the sexual organ of a child to contact or penetrate 

the mouth . . . of another person, including the actor[—as to 

count two]; 

(iii)cause[d] the penetration of the mouth of another person by 

the sexual organ of the actor[—[as to count three].6

As for counts five and six—the counts charging Guevara with the 

offense of indecency with a child by contact—Penal Code Section 21.11(a) 

required the State to prove that Guevara “engage[d] in sexual contact 

with [Luciana] or cause[d Luciana] to engage in sexual contact” with the 

intent to arouse or gratify the sexual desire of any person regardless of 

whether he knew Luciana’s age.7 Under Penal Code Section 21.11(c), 

sexual contact is defined as follows:

(c) In this section, ‘sexual contact’ means the following acts, if 

committed with the intent to arouse or gratify the sexual 

desire of any person: 

5Tex. Penal Code Ann. § 22.011(c)(for the offense of sexual assault, 

defining child to mean “a person younger than 17 years of age”); id. § 

22.021(b) (for the offense of aggravated sexual assault, defining child as 

having “the meaning assigned by Section 22.011(c)”).

6Id. § 22.021(a)(1)(B)(ii), (iii), (a)(2)(B).

7Id. § 21.11(a). 
20

(1)any touching by a person, including touching through 

the clothing, of the anus, breast, or any part of the 

genitals of a child,

(2)any touching of any part of the body of a child, including 

touching through clothing, with the anus, breast, or any 

part of the genitals of a person.8

Issues

Guevara raises two issues in his appeal, one complaining about the 

sufficiency of the evidence supporting his four convictions and the other 

complaining of the trial court’s ruling admitting evidence that shows 

Guevara engaged in other sexual misconduct with Olivia and Luisa, 

children when the conduct that they described in the trial occurred. 

Guevara frames his issues as follows: 

(1)The Evidence Was Insufficient To Support Appellant’s 

Convictions For Aggravated Sexual Assault Of A Child and 

Indecency With A Child By Contact[; and]

(2)The Trial Court Erred by Allowing Evidence Of Extraneous 

Offenses.

Standard of Review

When reviewing the evidence supporting a defendant’s conviction, 

we view it in the light favoring the verdict the jury reached.9 In our 

8Id. § 21.11(c). 

9Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State, 

520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
21

review, the question is not whether we believe the witnesses; instead, the 

question is whether, after viewing the evidence in the light favoring the 

prosecution, “a rational juror could have found the essential elements of 

the crime beyond a reasonable doubt.”10

“Our review of ‘all the evidence’ includes evidence that was properly 

and improperly admitted.”11 If the record supports conflicting inferences, 

we still must presume the jurors resolved any conflicts in a manner that 

favors the jury’s verdict, and we must defer to the verdict it reached in 

the trial.12 When deliberating on its verdict, the jury may rely on direct 

or on circumstantial evidence to establish the defendant’s guilt as both 

have equal probative value.13 In trials to juries, the jury is the ultimate 

authority in deciding which witnesses were credible and in deciding the 

weight to assign to the testimony.14 As a reviewing court, we “must give 

deference to ‘the responsibility of the trier of fact to fairly resolve conflicts 

10Queeman, 520 S.W.3d at 622 (quoting Anderson v. State, 416 

S.W.3d 884, 888 (Tex. Crim. App. 2013)). 11Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(cleaned up). 12Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010); 

Clayton, 235 S.W.3d at 778. 

13Clayton, 235 S.W.3d at 778.

14Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). 
22

in testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts.’”15 Also, each fact need not point 

directly to the defendant’s guilt; “it is enough if the [jury’s] conclusion is 

warranted by the combined and cumulative force of all the incriminating 

circumstances.”16

Analysis 

Guevara argues the evidence doesn’t support his convictions

because: (1) he denied Luciana’s allegations when Detective Arnold spoke 

to him about what Luciana told him Guevara had done; (2) Luciana 

waited two years before reporting the sexual abuse to any adults; and (3) 

the jury returned verdicts acquitting him on two of the six counts of the 

indictment—the counts alleging he sexually abused Luciana by 

penetrating her sexual organ and the count alleging he penetrated her 

anus.

As for the counts on which the jury returned convictions, count two 

of the indictment required the State to prove that Guevara intentionally 

15Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)(quoting 

Jackson, 443 U.S. at 118-19). 16Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). 
23

or knowingly caused Luciana’s sexual organ to contact his mouth.17 At 

trial, Luciana testified that Guevara touched her front “private” with his 

tongue. Nurse Chacko testified that when she questioned Luciana about 

what parts of Guevara’s body touched Luciana’s body, Luciana told her: 

“Oh, yea, he would put his tongue in my front private part.” 

There was also testimony that allowed the jury to reasonably 

conclude that when Luciana used the term front private part, she was 

referring to her sexual organ. Detective Arnold testified that when he 

asked Luciana about the functions of her front private part, she told him 

the front was “where she pees from.” 

Luciana’s testimony alone allowed the jury to find Guevara guilty. 

Under Article 38.07 of the Texas Code of Criminal Procedure, when the 

victim is seventeen or younger and even when the sexual offense of 

aggravated sexual assault is not reported within a year, Texas law 

provides that a conviction for aggravated sexual assault of a child “is 

supportable on the uncorroborated testimony of the victim of the sexual 

offense[.]”18

17See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii).

18Tex. Code Crim. Proc. Ann. art. 38.07(a)(b)(1).
24

To be sure, Guevara like most defendants accused of sexually 

assaulting a child didn’t admit he sexually abused Luciana when 

confronted with the allegations of the abuse. Guevara points to Luciana’s 

delay in reporting his sexual misconduct to an adult to cast doubt on 

whether the jury should have believed her. And we must concede the 

record shows the first adult Luciana told of the abuse was her school 

counselor, a delay of over a year when considering the first time Luciana 

claimed Guevara engaged in the sexual misconduct she described in the 

trial. Still, Luciana also testified that she didn’t tell her parents or 

anyone about what Guevara did to her because Guevara asked her to 

keep it a secret. And it’s so well known that it would have been within 

the jury’s common knowledge that the cognitive skills of a child Luciana’s 

age would not have been developed like that of an adult or even an older 

child.19 Thus, it wouldn’t have been irrational for the jury to have 

19See Edwards v. State, No. PD-0585-21, 2023 Tex. Crim. App. 

LEXIS 98, *6 (Tex. Crim. App. Feb. 15, 2023) (explaining “the jury may 

use common sense, common knowledge, personal experience, and 

observations from life when drawing inferences”); Booker v. State, 929 

S.W.2d 57, 60 (Tex. App.—Beaumont 1996, pet. ref’d) (explaining “the 

jury may use common sense and apply common knowledge, observation, 

and experience gained in the ordinary affairs of life when giving effect to 

the inferences that may reasonably be drawn from the evidence”).
25

concluded that Luciana—a five to six-year-old child when the abuse 

occurred—would have chosen not to report her grandfather for the 

conduct based on her age and lack of perspective about what was right 

and wrong together with the right the jury had to credit Luciana’s 

testimony that she stayed silent for over a year because she was 

complying with what her grandfather asked her to do.

So essentially Guevara simply wants this Court to reach a verdict 

different than the one the jury reached in his trial by making an 

assessment of the evidence that differs from that of the jury. As the trier 

of fact, however, it was the jury’s responsibility to fairly resolve the 

conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from the evidence in reaching its verdict.20 Simply put, as an 

appellate court it is not our role to decide whether a witness in a trial was

a credible witness and then assign a different weight to that witness’s 

testimony when the jury’s verdict from the evidence it heard is 

reasonable.21

20See Jackson, 443 U.S. at 318-19. 

21Penagraph, 623 S.W.2d at 343.
26

Guevara also argues the evidence must be insufficient to support 

the jury’s verdict on the four counts on which it found him guilty since it 

acquitted him on two of the counts, the counts alleging he penetrated 

Luciana’s sexual organ and penetrated her anus. According to Guevara, 

the jury’s decision to acquit him on these two counts but to convict him 

on the other four “casts serious doubt” on her claims that she was 

sexually abused. Although Guevara doesn’t expressly state his argument 

in these words, his claim is that the jury’s verdicts on counts one and four 

conflict with counts two, three, five and six. 

First, we disagree that the differences between the jury’s finding on 

the counts cannot be rationally explained. Even though we need not 

provide Guevara with an explanation, we can see why a rational jury 

based on the testimony would have chosen to acquit him on counts one 

and four. 

The jury heard Nurse Chacko testify that when she examined 

Luciana, she didn’t find anything she could definitely associate with 

trauma. And since Luciana was five or six years old when the alleged 

events she described occurred, the jury could have rationally determined 

that she either did not understand or was unable to distinguish between 
27

penetration and attempted penetration to the degree expected of an 

adult.22 So even though Luciana testified that she felt pain and that from 

her perspective (as a child) Guevara put his private part in her front and 

back private parts, the jury acting rationally could have decided that 

Luciana was mistaken about whether penetration of her sexual organ 

and anus occurred. 

Even so, no matterhow the jury reached its decision as to the counts 

on which it acquitted Guevara, to affirm Guevara’s convictions we need 

not speculate about why the jury might have chosen to convict him on 

some counts but to acquit him on others. We need not do so because in 

measuring whether the evidence is sufficient to support a defendant’s 

conviction, the conviction on “each count must stand or fall on its 

own[.]”23

That the standard requires the evidence on each conviction to be 

examined separately is long established blackletter law. In rejecting a 

sufficiency challenge based on the defendant’s argument that the jury 

reached inconsistent verdicts on different counts of a multiple-count 

22See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).

23Hernandez v. State, 556 S.W.3d 325, 331 (Tex. Crim. App. 2018)

(opinion on rehearing).
28

indictment, the United States Supreme Court explained the differences 

in the verdicts on a multiple-count indictment “may have been the result 

of compromise, or of a mistake on the part of the jury. . . . But verdicts 

cannot be upset by speculation or inquiry into such matters.”24 Relying 

on Dunn, our own Court of Criminal Appeals has held that “if a defendant 

is acquitted of one count and convicted of another based on the same 

evidence in a single trial, the defendant cannot rely on the inconsistent 

verdicts to attack [his] conviction.”25

Essentially, Guevara wants this Court to become a thirteenth juror 

and substitute our judgment for that of the jury. Even so, that’s not our 

role.26 After reviewing the evidence and viewing it in the light favorable 

to the verdict, we conclude the jury acted rationally in finding Guevara 

guilty under count two of the indictment of the offense of aggravated 

sexual assault of a child, as the evidence supports its conclusion that he 

caused Luciana’s sexual organ to contact his mouth. 

Under count three of the indictment, the State had to prove that 

Guevara knowingly or intentionally penetrated Luciana’s mouth with his 

24Dunn v. U. S., 284 U.S. 390, 394 (1932).

25See Hernandez, 556 S.W.3d at 331. 

26See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
29

sexual organ to prove Guevara was guilty of the offense of aggravated 

sexual assault of a child.27 In his trial, Luciana testified that Guevara 

made her put “his private part” in her mouth.She testified that when he 

did so, she “didn’t like it[,]” and she “thought it was disgusting.” Since

Luciana was a child when the offense occurred, her testimony alone 

supports his conviction since the jury had the right to believe her 

testimony in its role as the finder of the facts.28 Measuring the evidence 

the jury heard on count three in the light most favorable to the 

prosecution, we conclude a rational jury could have found that Guevara 

knowingly or intentionally penetrated Luciana’s mouth with his sexual 

organ.29

Count five of the indictment required the State to prove that 

Guevara engaged in sexual contact with Luciana by touching Luciana’s 

breast with the intent to arouse or gratify his sexual desire.30 Count six 

of the indictment required the State to prove that Guevara knowingly or 

27Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii). 

28Tex. Code Crim. Proc. Ann. art. 38.07(a)(b)(1); see Brooks, 323 

S.W.3d at 899 n.13; Clayton, 235 S.W.3d at 778. 29See Hernandez, 556 S.W.3d at 331; Tex. Penal Code Ann. § 

22.021(a)(1)(B)(ii). 30Tex. Penal Code Ann. § 21.11(a)(1), (c)(1).
30

intentionally caused Luciana to touch his genitals with the intent to 

arouse or gratify his sexual desire.31

Turning to the testimony supporting count five, the jury heard 

Luciana testify that Guevara touched her chest with his hands. And it 

heard Detective Arnold testify that during Luciana’s interview, she 

“described an incident where [Guevara] was putting his mouth onto her 

breast and she used the word nipples[.]”Thus, since we must assume the 

jury credited this testimony, we conclude that the jury, acting rationally, 

could have found Guevara guilty of the allegations in count five of the 

indictment.32

Next, we turn to the testimony supporting Guevara’s conviction 

under count six, which charges Guevara with indecency with a child by 

contact based on Luciana’s contact with Guevara’s genitals. At trial, the 

jury heard Luciana testify that Guevara had her put chocolate syrup on 

his penis. When she was asked what Guevara made her do with her 

hands, she testified he “made me touch his private.” The jury also heard 

Detective Arnold testify that when he interviewed Luciana, she told him 

31Id. § 21.11(a)(1), (c)(2).

32Id. § 21.11(a)(1). 
31

“her grandfather would take her hand and put it on his front private 

part[,]” a reference Luciana used to describe Guevara’s penis. And the 

detective told the jury that when Luciana was “talking about her hand 

being put on his penis[,] she would move her hand back and forth.” 

In evaluating Luciana’s testimony, it was up to the jury to decide 

whether the inconsistencies between the accounts Luciana gave the jury 

at trial and the accounts she told adults in earlier interviews were 

sufficient to make the jury believe she was not credible or that she was 

mistaken about what occurred. That said, the details Luciana provided 

about the incident of touching Guevara’s genitals—one that included 

Guevara’s use of chocolate syrup—allowed a rationale jury to decide that

Guevara made Luciana touch his genitals with her hands while intending 

to arouse or gratify his sexual desire when she was a child. As mentioned, 

it was up to the jury to decide which witnesses were credible and to decide 

how to weigh their testimony.33

For all the reasons explained above, we conclude the evidence 

allowed a rational jury to conclude that Guevara was guilty under counts 

two and three, the two counts charging Guevara with aggravated sexual 

33See Penagraph, 623 S.W.2d at 343.
32

assault of a child. We further conclude the evidence supports Guevara’s 

convictions under counts five and six of the indictment, the counts 

charging him with indecency with a child. For these reasons,we overrule 

Guevara’s first issue.

Evidence of Other Crimes, Wrongs, or Acts

In Guevara’s second issue, he complains the trial court erred in 

allowing the jury to hear testimony by witnesses about Guevara’s other 

alleged crimes, wrongs, or acts “because their testimony was not 

adequate to support a finding by the jury that [Guevara] committed the 

offense of indecency With a Child against [Luisa] and Aggravated Sexual 

Assault Of A Child against [Olivia] beyond a reasonable doubt as 

required by Article 38.37 of the Texas Code of Criminal Procedure.”34 In 

issue two, Guevara complains about the trial court’s admission of the 

testimony of four witnesses—Olivia, Luisa, Sara, and Detective Arnold.

In addition to arguing the evidence was inadmissible because the State 

34Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a. (West 2018 and West 

Supp. 2022). Although the Legislature amended Article 38.37 after 

Guevara committed the offenses made the subject of his six-count 

indictment, none of the changes made to the Article are relevant to the 

issues Guevara has raised in his appeal. For that reason, we cite the 

current version of the Article when referring to it in the opinion.
33

failed to present sufficient evidence to allow the jury to find he committed 

the extraneous offenses beyond reasonable doubt, Guevara argues that 

Olivia’s testimony about the alleged rape was more prejudicial than 

probative to proving his character given the remoteness a crime 

committed in 1983 in proving a defendant’s propensity to commit crimes 

alleged to have occurred over thirty years later. 

At trial, Olivia testified that Guevara raped her in 1983 when she 

was fifteen years old. Luisa testified that Guevara put his hand down her 

pants twice in 2004 when she was seven years old. Sara, Luisa’s mother, 

testified that Luisa told her about what Guevara did to her in 2004, and 

she testified she reported Guevara’s misconduct to the police. Detective 

Arnold testified he investigated the incident involving Luisa after it was 

reported to the Pearland Police Department, took statements from 

Luisa’s parents, and attended an interview that Luisa gave at the 

Children’s Assessment Center. He then explained that based on the laws 

available in Texas in 2004 and based on his investigation, the police 

decided there wasn’t a crime with which Guevara could be charged so the 

case was closed.
34

We determine whether a trial court erred in admitting evidence of 

other crimes, wrongs, or acts under an abuse of discretion standard.35 “As 

long as the trial court’s ruling is within the ‘zone of reasonable 

disagreement,’there is no abuse of discretion, and the trial court’s ruling 

will be upheld.”36 Generally, when challenged on appeal, rulings

admitting evidence of extraneous offenses will be found to fall within the 

zone of reasonable disagreement if “the evidence shows that 1) an 

extraneous transaction is relevant to a material, non-propensity issue, 

and 2) the probative value of the evidence is not outweighed by the 

danger of unfair prejudice, confusion of the issues, or misleading the 

jury.”37

The trial court conducted two hearings outside the presence of the 

jury before allowing any witnesses to testify about any extraneous 

crimes, wrongs, or bad acts. Olivia, Luisa, and Sara testified in the first 

hearing. Detective Arnold testified in the other. As to the extraneous 

crimes, wrongs, or acts discussed in the first hearing—the 1983 rape and 

35Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005);

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). 36De La Paz v. State, 279 S.W.3d 336, 342-43 (Tex. Crim. App. 2009).

37Id. at 344. 
35

the 2004 incidents involving Luisa—Guevara’s attorney made one 

objection. He argued the testimony about these extraneous acts shouldn’t 

have been admitted because none of the witnesses could remember how 

the reports made to the police were ultimately resolved and based on 

what the witness said happened the jury “can’t possibly get beyond 

reasonable doubt.” As to Detective Arnold’s testimony, Guevara’s 

attorney stated he had “no objection” to the detective’s testimony when 

the Article 38.37 hearing ended. 

When the extraneous offense is one of the offenses listed in 

subsections (a)(1) and (b) of section 2(b) of the statute, Article 38.37 § 2(b)

allows trial courts to admit evidence of a defendant’s commission of the 

extraneous wrong, crime, or act against a child “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.”38 But before allowing the jury to hear the evidence, the trial 

court must conduct a hearing outside the jury’s presence to “determine 

that the evidence likely to be admitted at trial will be adequate to support 

a finding by the jury that the defendant committed the separate offense 

38Id. art. 38.37, § 2(a)(1), (b). Tex. R. Evid. 404.
36

beyond a reasonable doubt.”39 If the evidence is admissible under Article 

38.37, the statute makes it admissible “[n]otwithstanding Rules 404 and 

405, Texas Rules of Evidence[,]” two rules that when Article 38.37 does 

not apply often prevent juries from hearing evidence that a defendant 

committed an extraneous crime, wrong, or act.40

The counts on which Guevara was tried included counts charging 

him with aggravated sexual assault of a child and indecency with a child. 

Before the trial court decided whether to admit the evidence addressing 

Guevara’s extraneous offenses, the court conducted the required Article 

38.37 hearing without the jury being present.41 The evidence the trial 

court considered in the hearing included testimony by Olivia and Luisa, 

both eyewitnesses to the respective extraneous offenses.At the end ofthe 

hearing,the trial court found the “evidence likely to be admitted at trial 

will be adequate to support a finding by the jury that [Guevara] 

committed the separate offenses beyond a reasonable doubt[.]” 

As to the 2003 offense involving Olivia, the State’s theory was that 

the testimony about the 1983 offense against Olivia was admissible to 

39Id. art. 38.37, § 2-a.

40Id. art. 38.37, § 2(b); Tex. R. Evid. 404, 405. 

41Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a(1). 
37

show Guevara’s character and to show the acts he committed against 

Luciana fit with Guevara’s character.42 From Olivia’s description of what 

Guevara did to her in January 1983, the State could have charged 

Guevara with the offense of rape of a child under the then existing 

version of the Penal Code, which applied to the offense Olivia described.43

To prove rape of a child under the 1983 Penal Code, the State had to 

prove the defendant had sexual intercourse with a female, not his wife, 

when the female was younger than seventeen years old.44 Today, section 

22.021(a)(1)(B) of the Penal Code, which defines the crime of aggravated 

sexual assault of a child, is the functional equivalent of rape of a child as 

that offense is described by the 1983 version of the Penal Code.45 Thus, 

assuming the evidence is relevant proving “the character of the defendant 

and acts performed in conformity with the character of the defendant[,]”

to prove Guevara committed the extraneous crime of rape of a child under 

42Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b).

43Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 21.09, 1973 Tex. 

Gen. Laws 883, 917-18 (current version at Tex. Penal Code Ann. §

22.021(a)(1)(B) (defining the offense of aggravated sexual assault of a 

child)).

44Id. 45Compare Tex. Penal Code Ann. § 22.021(a), with Act of May 24, 

1973, 63rd Leg., R.S., ch. 399, § 21.09, 1973 Tex. Gen. Laws at 917-18.
38

the 1983 Penal Code, the State needed to present evidence sufficient to 

allow the jury to find that Guevara raped Olivia a child who was not his 

wife to justify the trial court ruling admitting the testimony about that 

extraneous offense into the evidence in the case at issue in this appeal.46

Guevara’s claims the State didn’t present sufficient evidence to 

meet its Article 38.37 burden in the hearing to prove the evidence about 

Olivia’s rape was admissible.We disagree. During the hearing, the trial 

court heard Olivia testify that she was fifteen years old when Guevara 

raped her in 1983. The trial court heard Olivia testify that she didn’t 

consent to the sex—specifically, Olivia testified that when Guevara 

pulled her down on the floor and got on top of her while holding her arm 

behind her back, she “kept saying no, no, no, no.” While Guevara had her 

on the floor, Olivia told the trial court that he had “his hand over her 

mouth.” During the hearing, Olivia also testified that she and Guevara 

were never married. 

On appeal, Guevara argues that Olivia wasn’t a credible witness. 

He points to the fact that Olivia didn’t report she was raped until May 

1983, after it was obvious she was pregnant. He also complains the State 

46Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b).
39

failed to prove that the child Olivia testified she gave birth to in 

September 1983 was his child based on a paternity test. And Guevara 

suggests the State failed to exclude the possibility that the child Olivia 

gave birth to in 1983 was fathered by her boyfriend, a boyfriend Olivia

admitted having in January 1983. Olivia, however, testified during the 

Article 38.37 hearing that she and the boyfriend she had in January 1983 

never had sex. And even though a paternity test would have proven 

beyond question whether Guevara fathered Olivia’s child, the fact no test 

was presented by either party doesn’t show that the jury could not have 

reasonably chosen to believe Olivia’s testimony that Guevara raped her.

When a party wants to offer evidence of an extraneous crime, wrong 

or act, the trial court must first determine outside the jury’s presence 

whether the testimony about the offense would likely allow the jury to 

find beyond reasonable doubt that the “defendant committed the 

separate offense[.]”47 Rule 104(b) of the Texas Rules of Evidence provides 

the guiding rule trial courts must follow when the relevancy of the 

evidence depends on fulfilling a preliminary condition of fact.48 To decide 

47Tex. Code Crim. Proc. Ann. art. 38.37 § 2-a(1). 48Tex. R. Evid. 104(b); Montgomery v. State, 810 S.W.2d 372, 376 n. 

4 (Tex. Crim. App. 1990)(citing Huddleston v. U. S., 485 U.S. 681 (1988) 
40

whether the State has introduced sufficient evidence to meet a 

preliminary condition under Rule 104(b)—which in Guevara’s case was 

does the evidence in the Article 38.37 hearing show the evidence likely to 

be admitted at trial would be adequate to support the jury’s finding that 

the defendant committed the separate offense beyond reasonable doubt—

“the trial court neither weighs credibility nor makes a finding that the 

[State] has proved the conditional fact[.]”49 Instead, the court acts as a 

gatekeeper, examines the evidence introduced in the hearing, and 

decides whether the evidence, if admitted before the jury, would support 

the jury’s finding of the conditional fact.50

With exceptions that do not apply here, the general rule is that the 

testimony of an eyewitness alone is sufficient to support a defendant’s 

conviction.51 The trial court knew that when Olivia testified before the 

for the proposition that “Rule 104(b) applies to all preliminary issues of 

relevancy including the admission of extraneous offenses under Tex. R. 

Evid. 404(b).”). 

49See Huddleston, 485 U.S. at 690; Tex. Code Crim. Proc. Ann. art. 

38.37 § 2-a(1). 

50Id. 51Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Price 

v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no 

pet.); Vernon v. State, 571 S.W.3d 814, 820 (Tex. App.—Houston [1st 

Dist.] 2018, pet. ref’d); Smith v. State, 421 S.W.3d 161, 164 (Tex. App.—

San Antonio 2013, no pet.); Thomas v. State, No. 09-12-00458-CR, 2013 
41

jury, the jury could observe her demeanor and in its role as the factfinder 

reconcile any discrepancies in her testimony—discrepancies such as 

whether she was being truthful about sleeping with the boyfriend in 

January 1983 and whether the child she claimed Guevara fathered was 

his child.52 We conclude the trial court did not abuse its discretion in

allowing Olivia to testify about the 1983 rape. Olivia’s testimony, if the 

jury as the factfinder chose to believe it, offers reasonable support for a 

finding under a standard of proof beyond reasonable doubt that Guevara 

raped Olivia, a female not his wife, when Olivia was younger than 

seventeen years old.53

For similar reasons, we conclude the trial court didn’t abuse its 

discretion by concluding that if the jury chose to believe Luisa’s 

testimony, her testimony would reasonably support the jury’s conclusion 

that Guevara engaged in the two extraneous crimes, wrongs, or acts that 

she described—indecency with a child by contact and attempted 

Tex. App. LEXIS 11765, at *3 (Tex. App.—Beaumont Sept. 18, 2013, pet. 

ref’d) (mem. op., not designated for publication).

52See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 

1991).

53Tex. R. Evid. 104(b); Tex. Code Crim. Proc. Ann. art. 38.37, § 2-

a.(1).
42

indecency with a child by contact.54 As discussed, with exceptions not 

applicable here, the testimony of a single eyewitness can support a 

defendant’s conviction.55 During the Article 38.37 hearing, Luisa testified 

that on one occasion, when she was walking by the couch, Guevara 

grabbed her hand, pulled her onto his lap, and slipped his hand in her 

pants. Luisa testified she grabbed his hand and stopped him before he 

touched her sexual organ. According to Luisa, on another occasion, she 

was playing with her siblings in Guevara’s bedroom when Guevara 

tackled her, put his hands down her pants, and touched her sexual organ. 

According to Luisa, the conduct she described occurred in 2004 

when she was seven years old. While the section of the Penal Code that 

describes the elements the State must prove to convict a defendant of 

indecency with a child has been amended since 2004, the changes the 

legislature made to the statute are not relevant to Guevara’s appeal.56

Previously, we discussed the elements the State must prove to convict a 

54Tex. Penal Code Ann. § 21.11(a)(1).

55Aguilar, 468 S.W.2d at 77. 

56Compare Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 3, 1973 

Tex. Gen. Laws 1463-64, with Tex. Penal Code Ann. § 22.11 (Indecency 

With a Child).
43

defendant of the offense of indecency with a child by contact.57 To convict 

the defendant of the offense of attempted indecency with a child by 

contact, the State must prove the defendant, with the specific intent to 

commit the offense of indecency with a child by contact, did an act 

amounting to more than mere preparation that tends but fails to effect 

the commission of the offense.58 

When Luisa testified in the trial, the trial court knew that the jury 

could observe her demeanor and as the factfinder had the right to resolve 

any discrepancies in her testimony.59 It was proper for the trial court to 

leave the credibility decisions about what Luisa claimed occurred up to 

the jury, since as the gatekeeper in the Article 38.37 hearing it was not 

the trial court’s role to weigh Luisa’s credibility.60 We conclude the trial 

court did not abuse its discretion by concluding that, should the jury 

choose to believe Luisa’s testimony, her testimony would reasonably 

support findings by the jury that Guevara touched Luisa’s sexual organ 

and that he attempted to touch her sexual organ based on her testimony 

57Tex. Penal Code Ann. 21.11(a)(1). 58Id. § 15.01(a); id. § 21.11(a).

59See Chambers, 805 S.W.2d at 461.

60See Huddleston, 485 U.S. at 690; Tex. R. Evid. 104(b). 
44

about the two incidents she described.61 And when considering the 

testimony as a whole, the jury could also reasonably conclude both of the 

incidents Luisa described occurred with the intent to arouse or gratify 

Guevara’s sexual desire.62

Last, Guevara argues that he “objected to the admission of these 

extraneous offenses because their prejudicial effect would outweigh their 

probative value under rule 403 of the Texas Rules of Evidence[.]”

According to Guevara, he raised his Rule 403 objection to the evidence at 

volume 4, page 41 of the Reporter’s Record during the Article 38.37 

hearing. We disagree Guevara preserved his Rule 403 objection for the 

purpose of his appeal. 

During the Article 38.37 hearing, Guevara made but one objection 

to the evidence of the extraneous crimes, wrongs, or acts the witnesses 

discussed—he claimed the evidence the State presented wouldn’t allow 

the jury to “possibly get beyond reasonable doubt. So this stuff, I submit, 

is not proper – or not properly proven or developed extraneous items that 

should be included.” When Olivia, Luisa, Sara, and Detective Arnold 

61Tex. Penal Code Ann. § 21.11(a); Tex. Code Crim. Proc. Ann. art. 

38.37, § 2-a.(1).

62Id.
45

testified before the jury, Guevara didn’t object to their testimony about 

the extraneous offenses and claim it was not relevant or that it was 

prejudicial.63

To preserve an issue for appellate review, a party must lodge a 

timely objection, stating the specific basis for the objection.64

Preservation is a “systemic requirement[,]” meaning that when an issue 

isn’t “preserved for appeal, neither the court of appeals nor [the Court of 

Criminal Appeals] should address the merits of that issue.”65 “Ordinarily, 

a court of appeals should review preservation of error on its own 

motion[.]”66 Once a trial court decides to admit the extraneous offense 

evidence under Article 38.37, it conducts a Rule 403 balancing test only 

“upon proper objection or request.”67 No such objection or request was 

made here. We conclude that the complaints Guevara raised in his brief 

claiming for the first time that the trial court’s admission of the evidence 

63Tex. R. Evid. 402, 403.

64Tex. R. App. P. 33.1(a)(1).

65Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

66Id. at 533. 

67Keller v. State, 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020, pet. 

ref’d) (emphasis in original) (quoting Distefano v. State, 532 S.W.3d 25, 

31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)); see also

Montgomery, 810 S.W.2d at 388-89.
46

about the extraneous crimes was more prejudicial than probative was not 

properly preserved for the purposes of his appeal.68

Conclusion

For the reasons explained above, Guevara’s issues are overruled. 

The trial court’s judgment is

AFFIRMED.

_________________________

HOLLIS HORTON

Justice

Submitted on October 14, 2022

Opinion Delivered April 12, 2023

Publish

Before Golemon, C.J., Horton and Wright, JJ.

68Tex. R. App. P. 33.1.