## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00477

- CR

___________________________

On Appe al from the 415th District Court Parker County, Texas Trial Cour t No. CR16

- 0091
Before Sudderth, C.J.; Bassel and W omack , JJ. Memorandum Opinion by Chief Justice Sudderth 

### F RANKL IN 

### T HOMAS 

### C ARROLL 

### , Appell ant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
In three point s, Appellant Franklin Th omas Carroll appeals his conviction for
inde cency with a child by conta ct
. See Tex. Penal Code Ann. § 21.11(a)(1). W e affirm
the trial court ’ s judgment

. Background
In 2015, School Resource Officer (SRO) and Sprin g town Police Officer Becky
Lacroix was c l eaning o ut a desk at Spr i ngtown High School when she found a sexually suggestive le tter t hat appeared to have been written by a female stud ent to Carroll,

w ho had been the S pringtown SRO before La cr oix

. Upon further investigation, law

en f orcement d etermin ed that A nna 1 had written the letter to Carroll when she was a freshman at Springto wn and that A nna alleged Carroll had touched her inap propriately while she was a freshman and he was the SRO

. Carroll was eventually charged wi th indecency with a chi ld by contact, and the case proceeded to trial in
October 2018.
I. Anna ’ s testimony at tri al
Anna , who was 19 at the time of trial, testified that she met Carrol l when she got into trouble in middle school, first for an i ncident involving sexua lly explicit
letters she wrote to another male student and a second time for bringin g alcohol to
scho ol

. Carroll , who oversaw all Spri ngtown public schools as SRO , wrote Anna a

1 We refer to the co mplainant s by aliases in an attempt to protect their privacy. See McClendon v. State , 6 43 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982 )

.3

citation for po ssessing alc ohol as a min or, a nd Anna had to do co mmunity service as a

res ult. Shortly after the alc ohol incident, Anna spent time in a n Arlington mental

health ho s pital and finished that school year at a different school. While in the
mental

- health hospital, A nn a wrote on a worksheet that Carroll ca used her “ stress ”
and that she considered him an “ external threat, ” but at trial sh e could not rememb er why sh e had w r

itte n down his name. She guessed that Carroll “ probab ly had made [her] uncomfortabl e ” because he “ seem[ed] c reepy to [her]. ”
When Anna returned to Sprin gtown High for her freshman ye ar, she sought

out Carroll ’ s help to obtain a pregnancy test based on anot her stude nt ’ s recommendation that C arroll was “ really co ol ” and p ro bably would not tell fa culty or her parents

. According to Anna , Carroll did obtain a pregnancy test for her , and after that, the pair developed a relationship. Anna described how Carr oll would check up on her and would call her in to his office through the school intercom , by text

mes sage, or in person whenever he sa w her in the school hallways. Anna described meeting with Carroll in his office

— always with the door closed , at his req ue st

— a nd confiding in Carroll ab ou t her “ emotional life, ” such as boyfriend issues.
Anna testified that the relationship escalate d : “ [A]fter a f ew vis its to his office, one time, after we got done t al king and just, you know, hang ing out, getting to talk , he
got up to wa lk me out of t he room lik e he would eve ry time and he ki ssed me. ” She
described the kiss as a “ peck ” on the lips, and th at she was “ just kind of in shock ”
afterward. According to Anna , they cont inued hugging and kissing at the end of t h e ir4

mee tings for a “ coup le of weeks ” and these meetings occurred “ [m]aybe three to four
times a week ” an d for about 10 to 15 minutes at a time. E ven tually, “ one t ime after the hugging and ki ssing had been going on for a while, he got up a nd

. . . was wa lking [ her] out of the room as usual and he grabbed [her] breast ” over he r clothes

. Anna
testified that she did not re port the inappropriate touching and kept r eturning to his
office because, as sh e put it, “ I d on ’ t know how to s a y no w henever it ’ s some on e in authority. ” According to her, t he over

- th e

- clothes groping of her breast happened

“ multiple tim es , ” and after “ maybe a month ” he started touching her breast s underneath her clothe s and squeezing them for a few sec on ds at a time

. Anna
testified that “ once or twice ” he “ put his hand do wn [her] pants and just i n between [her ] skin and [her

] underwear and just br iefly touched [her genitalia]. ” She testified
that he r reaction was, “ [l]ike all the ot he r times, it ’ s a shock and just ‘ why ? ’ ”
Anna did no t tel l anyone about Carroll ’ s inapp ropriate advances until
December 2 015 when confronted with the letter found by Officer La croix. I n an in terview with Lacroix and Investigator An gela Jay, Anna admitt ed that she had
written t he letter to Carroll upon his reque st. As she testified at trial, when Carroll
found a similar sexually explicit letter that Anna had written a male classmate

— which , according to Anna , contained desc ri ptions of sexually ex plicit activity that had not actually occurred

— Carroll asked he r, “ W hy don ’ t you wr ite me stuff like this? ” Anna
testified that Carroll also asked her if she would perform oral se x on him or touch
him

.5

By the ti me she started her so phomore year, Anna stopped going to Carroll ’ s office and avoided him by telling him that she “ was busy and trying to focus o n school. ”
II. Rule 404(b) t estimony
Du ring the trial, the State sough t to present testimony b y t wo add itional female former students of Sprin g town, Gina and Heather , and one teacher, Terri Massey.
After a hear ing, the trial court ruled that t he three wit nesses would be permitted to
testi fy.
A. Gina ’ s testimony
Gina was Anna ’ s clas sm ate who also met Carr oll when she was in middle
school. Gina and Carroll developed a friendship , complete with their own secret
hands h ake. When she moved on to high school, she continued talking to and
confid ing in Carroll during cl os ed

- d oor meetings in h is office, which sometimes took place “ multiple times a day ” and lasted between five to tw enty minutes. According to
Gina , Carr oll o ften compliment ed her , and on e time when she was tired, he told h er that she co uld tak e naps on the couch in his office

. Gina descri bed the offer to sleep
in his office during the scho ol day as “ w eird [and] uncomfortab le. ” Eventually, the meetings be gan to get in the way of her schooling . She told the jury th at “ [s] o meti m e s it woul d get to be too much

. . . . When it be came more frequent, then sometimes I would have to leave because I would be in t he middle of a test or actually t rying to learn so methin g . ” And at some point, Carroll star ted to give6

h er a side hug when sh e left his office. Gina t estified that Carroll ’ s compliments began to escalate , and she descr ib ed an instance when he allegedly commented on how good she looked wearing Spandex , a nd s he described another time when he said
sh e could always change clothes in his office if needed . Then came the “ unexpected ” touching . Gina descr

ibed a time whe n he held her han d unexpectedly when showing her how to check her pul se, making her feel “ aw kward ” and “ uncomfortable. ”
F in a lly, according to Gina , the inappro priate advances cul minated during h er sopho more year when he “ French kiss[ed] ” her : [ H ] e started telling me t hat if he would ever ha ve

- - he would have an aff air like with his wife with me [ 2 ] and things be came really pe rsonal and he

- - I was becoming reall y uncomf ortable and I asked to leave. And whenever I left, he asked me if I

- - if he could give me a hug. And he did. A n d when I went to leave, he grabbed my neck and grabbed my fac e and ki ssed me forcefully. A n d then I left.
Gina testified that this incident triggered a pa nic attack in class afterwards that
resulted in Massey ’ s taking her t o the school counselor and the schoo l nurse. Accor ding to Gina, s ometime l at er that day, Carrol l came to find her in class and told
her , “ I don ’ t want this to ruin our friendship

. ” He asked her for another hug , Gina obliged, they hugged, she returned to class , and she ne ver went back to Carroll ’ s office again.

2 Later in he r t estimony, s he stated that the aff air conversation occurr e d on a different day than the kiss.7

Even tually, Gin a confided in A nna ab out the incident . At trial, Gina testified
that the idea of reporting these incidents to authorities was “ terrifying ” until Carroll left his posi tion as SRO.
B. M assey ’ s testimony
Masse y testified t ha t she had developed a clos e rel ationship wi th Gin a when
Gina was a high

- school sophomore and that Gina often confi de d in her

. She
recounted one morning when Gina returned to M assey ’ s class from the counselor ’ s

o ffice and appeared upset and was c rying and shaking i n class but did not want to talk

a bout i t. When Massey offered to take Gina back to the counselor, Gina d eclined. Massey said that Gina was q uieter after that incident, and sh e was not talking to her
fri ends as m uch as usual. When she attempted to talk to Gina about it again, Gina again decli ned . According to Massey, Gina did not report the incident with Carroll to her until the ne xt year
. C. Heather ’ s testimon y Heather was older th an Anna an d Gina

. S he attended Springtown High for her senior year in 2012 , when she was 17 years ol d

. He ather testified that she met Carroll
about a month before her sen ior year began, when she filed a police re port against her stepfath er “for holding [her] down. ” So when Heather started school and saw Carroll, she recognized him and began talking to him, a nd then she s tarted going to
his office at least two or three times a week. She testified t hat she reveale d to hi m that she had been involved in a relationship with a teacher at the high school . After8

that revelation, the “dynamic changed ” such tha t Heat her “could te ll that he was going to use that [against her]

. ” About a week later , Carroll sent her a te xt message asking th at she send nude pictures of herself to him

. D espi te her reservations, she
sent him ten or so nude photos of herself, res pond ing to his requests fo r “certain poses, certain body part s . ” According to He at her , he also reque st ed v ideos, but she
lied and told him that her phone could not record v ideos. A fter sending him the n ude photo s , s he continued communicating with Car roll , bu t soon she dropped out of
school

. According to Heathe r, their final interac tion was a 30

- minute meeting at a park , where Carrol l asked her to show hi m her breasts but she “kind of made it into a jok e ” and left.
III. Carr oll ’ s defense witness es A. R hond a Ribb le
Rhonda Ribble was the assistant p rincipal of the midd le school when Anna got in trouble for writin g sexually explicit letters t o a male classmate

. She described a meeting between her , Carroll, and Anna in which Carroll “ chewed [ Anna ] out ” f or h er beh avior. Ribble te stified, “ It was a r oyal ch ewing out. It was actually really hurtful, I felt like, toward the girl. You know, I ’ ve listened to Officer Carroll chew out a lot of kids, and it was what they did, but i t wasn ’ t so pers onal as it w as i n this situation proba bl y. ” She lab eled Carroll ’ s language as “ emotionally . . . bel ittling , ”

“ humiliating , ” “ over the top, ” an d “ excessive. ” According to Ribble, Anna initially9

reacted by c rying , but then she “ just kin d of stiffened up and was just look ing s t raight
ahead. ” B. Dr. Alexandria Doyle
Car roll called Dr. Alexandria Doyle , a licensed cl inical psycholo g ist who se practice inclu ded forensic psyc hology, to testify in his defense. Dr. Doyle testified

t hat she reviewed Anna ’ s med ic al record s fr om the mental

- health hospital, the r apy records from a separate counseling facility, a recording of “ her initial int erview, ” CPS reports, and school records. According to D r. D oyle, Anna had be en diagnosed in the eighth grade with ma jor depressive diso r der , glob al anxiety or general an xiety disorder, and borderline personalit y tenden cies. She described a person with

“ border line personality tendencies ” as having a more “ expressiv ely dr amatic ” personality “ cha racterized by mo od problems and prob lems seei ng t h ings clearly or seeing things the way other people do. ” Dr. Doyle testified that detail s of Anna ’ s medical records just

ified that diagnosis, including that Anna had “ a lo t of relationship problems , ” “ premature s exual acti vity , ” and “ boundary problems , ” a nd tha t she got

“ too involved and then h a [d ] fights with [people]. ”
Dr . Doyle characterized Anna ’ s sexually explicit letters as consiste nt with her
dia gnosis of borderline personality disorder , be ca use such a diagnosis “ often involves problems with

. . . sexu ally excessive behavior. ” Regarding Anna ’ s sexually expli cit letter to Carroll, Dr. Doyle opined that Anna was acting o ut her imp ulses to be in a10

relationship with Carrol l through a “ s eductive, kind of in

- you r

- face letter to him, really a p rovoc ativ e lett er . ” She tes tified that t he letter was a “ fantasy. ” Dr. Doyle also hypothesized t hat Anna might no t have remembered the very

ten se meeting described by Ribble be ca use Anna might ha ve “ blocked it out because it was so unpleas ant, it was so pain ful. ” She also tes tified that, in addition to memory
supp ression, a person w ith borderline personali ty trai ts may al so ex perience “ memory confab ulation , ” in which m e mories of expe rien ce s become altered

— “ S o if . . . somebody says something to you that sou n ds l ike a good aspect of it, you may
in corporate that into your story because you ’ re so impressionabl e and it ’ s suggestive

. ”
C. C ar roll
Car roll elected t o testify in his own defense. Carroll explained that he often met with students in his office as p art of his role as SRO. Carroll recalled meeting
Anna when s he was in m iddle school and he w as called in to meet with Anna and
Ribble ab out the sexu ally exp licit letters Anna had written to a classmate. Carroll
testified that he was “ firm ” when he b egan talk ing to Anna , but when he perceived
that Anna was not respo ndin g he be came “ more direct and more verbal. ” He ag re ed
with Ribble ’ s des cription and that his dem eanor and language could have been perceived as humil iating and embarrassing for Anna

. Carro ll a dmitte d that Anna came to his office frequen tly and that they
dis cu ssed some of Anna ’ s pers onal issues , in cluding her parents ’ divorce and

“ extremely a lot about her boyfriend

. ” He alleged that Anna generally initiated their11

contact, testifyin g that “ [

T ] h ere [w ere] times where she would request for me to cal l
for her , for which might be once ev ery three to four weeks , to w here she would want to come into the office a couple o f times a week. ” Carroll adamantly denied ever buying Anna a pregnancy test , aski ng her to write the sex u ally e xplicit letter addressed to him, or havin g any ina p p ropriate contact with o r k issing her. According to Carroll,
h e found the sexually explicit letter sitting on his desk one day , but he never confronted A nna about it beca use he tho u ght such a confrontat ion might “ set her
bac k ” when s he had pro gressed so far since the eight h

- grade incident

. Car roll told t he jury that , s ometime after that, another student informed him that Anna “ had the hots for [him] ” and “ wan ted to be wit h [h im] , ” so he “ kept his dis tance from [ Anna ]

. ” He
d id not report the letter or Anna ’ s alleged crush t o an yone. Similarly, w hen asked about Gina , Carroll denied any inappropriate contact, and he denied ever p ropositioning her for a sexual af f air

. As for Heath er, C arroll explained that he met her when he was on patrol and
had been dispatched to a local park in response to a report of a woman sleeping in a
truck. Carroll testified that Heather appeared to be living in he r truck at the time , so he prov ided h er w

ith a contac t for a local women ’ s shelter and assisted her in making a police report about her father

. Later, Carroll heard rumors that Heather was involved in a relationship with another school employe e , and he informed th e principal of th ose r umor s. He testified that h e al so told Heather that h e had heard the

rumor but that Heather denied any such relationship. And w hen h e confronted her12

about the rumor a second time in the presence of the principa l, she a gain de ni ed it

. He testified that, a part from s e eing her in the hallway from time to time, the meeting with the principal was the last time he ever spoke to Heather

. Carroll den ied ever attempting to blackmail Heat her by asking her for nude p i cture s of herself o r having any i nappropriate co ntac t with her

. I V . Th e jury ’ s verdict The jury found Carroll guilty of ind ecen cy with a child by contact and asses sed

a 12

- year sentence. The trial c ourt entered judgm ent and sente n c e d Carroll
accordin gly.
Discus sion
Carroll brings thr ee point s o n ap peal. He complains in his first two point s of

t he trial court ’ s decision to allow Gina , Massey, and Heather to testify , and in his thi rd point he argue s that the tr ial cour t err e d by denying his mot ion to transfer ven ue. I. Admissibility of Gina ’ s , Mas sey ’ s, and Heather ’ s testimony
Carroll cha lle nged the admissibility of Gina ’ s , Massey ’ s , and He ather ’ s testimony on t

wo grounds: as improper extra neous

- off e nse evid ence and as u n f

air ly prejudicial. See Tex. R. Evid. 403, 404(b). I n recogni tion of t h e tr ial co urt ’ s superio r position to gauge the i mpact of evidence , we will reverse its decision on the admissibility of evidence “ rarely and only after a clear a buse of discretion. ” L ums den v.
State , 56 4 S.W.3 d 858, 877 (Tex. App.

— Fort Worth 2018, pet. re f ’ d) , ce rt . denied , 139 S. Ct. 2018 (2019).13

A. Rule 404(b) Rule 404(b) (2) allows the use of extran eous

- offense evidence for purposes
other than to show char acter co nformity

. Te x . R. Evid. 404(b) (2)

. The rule lis ts as

ex amples of other purp oses : “ mo tive , oppo rtunity , intent, preparation, plan, knowledge, identity, absence of mistake, or lack o f ac cident. ” Id. In addition, the
court of criminal appeals ha s held t hat extraneou s

- off ense evidence ma y be admissible

to rebut a defe ns ive theory such as f abri cation

. Bass v. State , 270 S.W.3d 557, 563 (Tex. Crim. App. 2008)

. The State relies upon Bass in arguing that Gina ’ s, Massey ’ s , and Heather ’ s te s ti mon y w as admissi ble to rebut C a r roll ’ s theory of f abrication. We agree with t he Sta te. Carroll ’ s defens e te am pre s ented a theory that Anna fabricated her all egations
to get back at Carroll f

or rebuking her when she was caught writing sex ually explicit
l e tters in middle sc hool and citi n g her for possessing alcohol in eighth grade. In
d efense cou nsel ’ s openi ng a rgumen t, he laid a foundation for their fabrication defense by c haracterizin g Carrol l ’s citation of Anna for minor in possession of a lcohol as

c a using he r remova l fro m school and h er mental

- health ho spitalization. Defense
counsel then emphasized that Anna was “ a very troubled teenager [who] was wrestling with many issues ” and described the sexually explicit letter to Carroll as “ a continuati o n of sim ilar activity that sh e had had in the 8th grade and was one way of
her d eal ing with many of t he problems tha t she faced at the time. ” Counsel a l s o emphasized the changing nat ure of Anna ’s story and its inconsistencies.14

During its cros s

- exam ination of Anna , t h e defense continued to establish the
fabrication de fense

. First , counsel emphasized that Anna ’ s s ex ua lly ex plicit letter was just a “ fantasy , ” a t one point arguing to the trial court that “ t he motive is, i s that no ne of this is meant to be real, but the r e is a motive not to be credible an d not to tell the
truth . She ’ s goi ng

- - she ’ s angry at my clie nt. ” Then , the defense offered records
from the mental

- health hospital an d elicit ed testimony fro m Anna he rself that she was
int erested in or att r a cted to girls

. Carro ll ’ s counsel argued, “ The fact, if proven,
there ’ s an attraction to girls

. . . . Well , it underm ines the legitima cy of these

s tatements that they are

- - that she ’ s writi n g to boy s at the same time. A nd there ’ s a clea r contradiction, Your Hon or. ” The defen se argued that her sexual orientation was
relevant because it “ would clearly go to cred ibility

. ” The trial court allowed the questioning and ad m itted th e evidence. In one particula r line of ques tioning , defense counsel painted a picture of petty
revenge: Q. Officer Carroll had c aused you stress in your life before 9th gra de, right? A . A ppar ent ly so, according to [ records from the men t al

- healt h hospit al], yes, sir. Q. You held a g r udge against him, r ight? A. I don’t think so, no. Q. [ Anna ], this never happened, did it? He never touched you inappropriately, di d he? A. Yes, he did

.15 . . . . Q. When he had you in his office, he was telling you about the alcohol. Did you feel he w as judging you? A. No. Q. He wrote you a tick et, right?

. . . . A. Correct. Q . And you ended up getting taken out of school in part because of th at, righ t? A. Correct. Q

. So with all those reasons there, yo u would h ave had a reason to ma ke up a s t o ry about him, right? A

. Th er e would have been a reason to, but that ’ s not something I would have done, no. Q. But you admit that would have given y ou a rea son, ri ght? A. To any normal reason, yes , correct, that would be a reason for somebody to hold a grudge again st somebody

.

. . . . Q. All of those reasons I gave you, your having bad vibe s with him, him admonishing you in his office, his writing you a ti cket fo r the alcohol, you being withdrawn from school be c ause o f t hat incident, those a ll were r e a sons

- - those were all

- - could be reasons for making up a s tory about him, right ? A. Potentially for somebody else, yes

. Q. Now , did you come up with thi s story on your own? A. I did not come up with the stor y .16

After the Sta te rested , Carroll ’ s team called Rhond a Ribble to testif y to Carroll ’ s “ royal chewin g out ” of Anna in eighth grade, which she characterized as

“ really hurtful, ” “ emotionally .

. . belittl ing, ” “ humiliating, ” “ over the top, ” a nd

“ exce ssive. ” This d ep i c t ion strengthened Carroll ’ s attempts to frame Anna ’ s allegations as retaliation. And finally, Carroll ’ s t e am called Dr. Doyle, who testified to
Anna ’ s mental

- illness diagnoses and sur mised t hat Anna may have e xperie nced

“ me mory confabulation , ” r esulting i n Anna ’ s creation of memorie s of inappropriate
advances by Carroll. We find this situation similar to that presented in Bass

. In that case , the State ’ s

case against former pas tor B ass of indecency w it h a ch ild rest ed on the comp lainant ’ s

t estimony to his molestation of her on ch urch property and on extraneous

- offense
evidence that Bass molested t wo other girls on church property. Id. at 557

. Bass ’ s defense team promulgated a fabr ication the ory from the sta rt , argu ing in his ope ning

stat e m ent that the complainant ’ s allegations were “ pure fanta sy ” and “ pu re fabrication ” and that the alle gations were contrary to Bass ’ s character and “ not wort hy
of belief. ” I

d. Bass ’ s counsel al so a ttacked the complai nant ’ s c redibility on

cross

- ex amination b y emphasizing that the comp lainant ’ s famil y did not believe her

accusa tions and that the complainant waited a deca de to report the abuse to police

. Id. at 558. In closing argument , Bass ’ s de fens e couns el claimed t hat “ the Stat e propped up the untrustwo r t hy complainant ’ s ‘ bizarre, silly accusation ’ against [Bass]17

with the extraneous

- offense evidence ” and criti cized the complainant ’ s reputation as

“ not good

. ” Id. at 560.
In ho lding that the e xtra neous

- o ffense testi mony was properly admitted by the
trial c ourt, the court of criminal appeals agreed with the State ’ s argument that [i] t seems obvious that , if the State can show that a defendant has committed s i milar s exual assaults against unrelate d an d uncon nected child ren, an affirmative defense al legation t h at the victim of the charge d offense fabricated her claim s is less likely to be true. By showing that the vi ctim ’ s allegations are less likely to be fabricat ed, the evidence directly re buts t he d efens iv e claims and has log ical relevance aside f

rom chara c t er conformity. Id. at 562

– 63.
L ike Bass , Carroll opened the door to extraneous

- offe n se testimony from Gina
and Heather

— and that o f Terri Massey to the exten t it corroborated Gina ’ s testimo ny

— b y prese nting a fa bric ation defen se . See id. at 5 63 n.7 (n o t ing that the State may rea sonably rely on the defensive opening statement as to what evidence the
defense intends to present and rebut th is anticipated defensive evidence during it s

case

- in

- ch ief)

. Gina ’ s and Heathe r ’ s testimony suggested that Carroll h a d developed a practice of b efriending troubled teen gi rls and then making inappro priate advances
toward them , thereby lending credibility to Anna ’ s testimon y. See id. at 562

– 63 ; Daggett v. Sta te , 187 S.W

. 3d 444, 453

– 54 (Tex. Crim. App. 2005) ( holdi ng in

c h ild

- sexual

- assault pro secution that defendant ’ s direct

- examination testimony disavowing any sexual misconduct wi th minors op ened the door to admission of

r ebuttal extran eous

- offense evidence o f d e fendant ’ s s exual misconduct with a no ther18

minor) ; Powell v. S tate , 63 S.W.3d 435, 438

– 40 (Tex. Crim. A pp. 2001) ( hol ding in
indecen cy

- with

- a

- child pro secu tion that defen d ant ’ s opening statement that he lac ked the opportunity to molest the complainant op ene d the do or to rebuttal extraneous

offense evidence that def e n dant had molested others un der almost ide ntical
circums tances)

. The trial court did not abuse its discretion by allowing the testimony
of Gina , Massey, and Heather to rebut the fabrication de fens e. We therefore ove rrule
Carrol l ’ s f irst point

. B. Rul e 403
In his second point , C arroll argues that the trial court erred by allowing the testimony of Gina , Massey , and Heather because any probative value was substantially outweighed by the testim on ie s ’ unfa i rly prejudic ial impact. See Tex . R. Evi d. 403.
R u le 403 allows a trial cour t to exc lude otherwise relevant evidence if its probative value is substantially outweigh ed by the danger of unfair prejudice,

c onfu sion of the issues, misleading the jur y, undu e delay, or n eedlessly presenting
cumulat ive eviden c e . Id. Admission of relev ant evidence is favored , and we theref ore presume that relevant evidence will be more probative than prejudicial. Hayes v. State , 85 S.W.3d 809, 815 (Tex. Crim. App. 2002 ). Evi dence that is unfairly prejudicia l has

an undue ten d e ncy to suggest an improper ba sis for reaching a decision. R e ese v. State , 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). When a rule 403 objection is made, the trial court must balanc e (1) the inhe rent
pr obative force of the proffered item of evidence alo n g with (2) the propo nent ’ s need19

for that evide nce against (3) any t endency of th e evidence to suggest a decision on an improper basis, (4) any tendenc y of the evidence to confuse or distract th e ju ry from the main issues, (5) any tendency of the evidence t o be given undue weight by a jury that has not been equipped to evaluate the probative force of the e vidence, and (6) the
likel ihood that presentation of the evidence will consum e an inordinate amo unt of time or merely re peat evidence already admitted. G i g liobianco v. State , 210 S.W. 3d 637,
64 1

– 42 (Tex. C rim. App. 2006). We have already explained the releva nce of the extraneou s

- offens e te stimony to undermin i ng Carroll ’ s f

abrication defense

. Gina ’ s and Heather ’ s testimony len t support to Anna ’ s de script i o n of Carroll ’ s efforts to bu ild a relationship with Anna
and then inappropriately take advan tage of tha t relationshi p
. T he State ’ s n eed f or the testimony is a pparent. Wi thout the extraneou s

- offe nse tes timony, the State had little

to counter Carroll ’ s a s s ert ions that Anna was a troubled teen girl who had ma de up

a llegations of sexual contact to retaliate against him for receiving a ste rn, perhaps abusive, lecture and a ci t ation for minor in po sses sion of alcohol. T he State had no physical evidence of Ca r r oll ’ s groping and kissing of Anna

. But with the aid of Gina ’ s and Heather ’ s testimony, the State was able t o show that Carroll had th e opportunity

to abuse and a history o f abusing his positi on o f power within the high sch ool to take advantage of teen g

i r ls. The trial court therefore d id not abuse its discretion by
det er mining t hat th ese f

actors weigh ed in fa vor of ad mitting the t esti mony.20

While we do not ignore the inheren tly inflammatory natu re of a llegations of

s exua l misconduct involving children , a nd we recognize that the te stimony of Gina , Massey, and Heather , was likely indelible , s ee Montgomery v. S tate , 810 S.W.2d 37 2 , 397 (T e x. Crim. App. 1990) ( op. on reh ’ g ) , we d isagree with Carroll ’ s as ser ti on that the testimony influenced the jury in an irration a l way. The trial court included a proper limiting instruction in the jury charge, 3 and without evi dence otherwise, we presume

t he jury followed the instructions of the trial court. See Th rift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). We th e r efore view th is factor as also weighing in favor of admitting the testimony.
T he State ’ s examinatio n of the ext raneous

- offense w it nesses constituted just

over a third o f its case

- in

- chief. T hi s f actor weigh s against admission of the testimony, but it does not e clipse the other factors we have already de termined weigh ed in f

avor of i ts admission.

3 The limiting instruction read as follows: You are instructed if there is a n y testimony be fore you in this case regarding the Defendant ’ s commit ting offen ses ot her than the offense alleged against him in the indictment in this case, you cannot c onsider said testimony for any purpose un less you find and beli eve beyond a re asonable d oubt that the Defendant committed such other offenses , if any were comm itted, and e ven then you may only consider the same in dete r mining the state of the mind of the D efendant and the child and the previous and subsequent relationship between the Defend a n t and the child or in determining the mo tive , op portunity, intent, know ledge, abs en ce of mistake or lack of accident of the Defend a nt, if any, in connection with the of fenses, if any, all eged against him in the indictment in this case.21

W e hold that the trial court acted within its discretion b y denying Carroll ’ s Rule
403 o b jectio n to th e testimony of Gina , Massey, and Heather

. We overrule Carroll ’ s second po int.
II. Motion to transfer v en ue In his third and final point, Carroll argues that the trial court erred by denying
his motion to transfer venue

. We review the tri a l court ’ s d eci sion to deny the motion
for an abuse of discretion and will uphold the de c i sion so long as it falls within the

zone o f reasonable disagreement. Gonzalez v . State , 222 S. W.3d 446, 4 4 9 (Tex. Crim. App. 2007). To justi fy a change of venue bas e d on me dia att ention, a defendant must show t hat the publicity was “ pervasiv e , prejudici al, an d inflammatory. ” I d. Widespread pub licity is not considered inherently pr ejudicial

— even extensive knowledge of the case or defendant in the community as a resu l t of pr etri al publicity is not sufficient if there is not also some showing of prejudici al or inflammatory
coverage . I

d. “ The mer e existence of media attention or publ i city is not en ough, by
itself , to merit a change of venue. ” Id. Ordinarily, we con s i der th e vo ir dire record in a case where venue was challenged on p ervasive

- publicity gr ounds, but the voir d ire in this case is no t part of
the re cord before us. See i d. at 449. We will therefore consider the motion and hearing , which w er e filed and de c i ded mo re t han two yea rs before trial

. 4 Carroll urged

4 The mo t i on was filed and heard in Jul y 2016; the trial was held in late October 2018.22

that he could not receive a f air trial in Parker County “ due to multiple articles wr itten
in local papers and on local social media sites such as Facebook ” and a letter written

to pare n t s of Spring town I S D st uden ts
. At trial, Carroll offered and the trial cou rt admitted six local newspaper articles
discu ssin g the allegations against Carroll

— including that people had complained of
his se xually inappropriate behavior prior to h i s work within the s chool distr ict

— and a letter sent to pare nts of Springtown ISD stud ents addressing the allegations. Carroll
called his sister

- in

- law as a witness, and she testified to her opinion that he would not

re ceive a fair trial in Pa r k er County because of the publicity surrou ndin g t he case. He
also called a Sprin gtown High School teacher , who testifie d that the letter se nt home
to parents was a topic of discussion around the campus.
The State offered four af f i davits in which Parker County residents att ested to
their lack o f a ny knowledge of Carroll or the allegations against him. And t he tria l

cou rt took judicial notice that Parker County in clude d at least two school districts in
addition to Sprin g t own ISD and ha d an appro ximate po pulation o f 125,000.
On this rec ord, Carr oll did not meet his burden to establish “ pervasive, prejudicial, and inflam mat ory ” publicity . At most, he established the exist ence of
some media attention two yea r s prio r to the trial. S ee id. at 459. Nor did he estab lish that any of the news repo rts wer e inaccurate and thereby prejudicial

. See id. at 451. ( “ News stories , be it from print, radio, or television, that are accurate and objective in their coverage, a r e generally considered by th is Court not to be prejudic ial or23

inflammatory. ” ). We ho ld t hat t he trial court did not abuse its dis cretion by den ying
Carroll ’ s motion to transfer venue , and w e overrule his third point.
C o nclusion
Havi ng overruled each o f Carroll ’ s t hree point s , we affirm the trial court ’ s judgment. /s/ Bonnie Sudderth Bonnie Sudderth Chie f Ju st ice
Do No t Publish Tex. R. App. P. 47. 2(b )
D e livered : February 27, 2020