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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-14-00307-CR

____________________

HOWARD JAY LILLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________ ______________________ 

On Appeal from the 411th District Court 

Polk County, Texas

Trial Cause No. 22324 

____________________________________________ ____________ 

MEMORANDUM OPINION 

A jury convicted Howard Jay Lilley of indecency with a child, D.L., by 

sexual contact and sentenced Lilley to eighteen years in prison. In two appellate 

issues, Lilley challenges the admission of extraneous-offense evidence and the trial 

court’s jury instruction on extraneous-offense evidence. We affirm the trial court’s 

judgment. 

In issue one, Lilley contends that the trial court abused its discretion by 

allowing testimony regarding a 2003 incident involving T.H. Evidence of other 
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crimes, wrongs, or acts may be admissible as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. 

Evid. 404(b). Even relevant evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. We 

review a trial court’s admission of extraneous-offense evidence under an abuse of 

discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998)

(op. on reh’g). Error may not be predicated upon a ruling which admits evidence 

unless a party’s substantial rights are affected. Tex. R. Evid. 103(a); see Tex. R. 

App. P. 44.2(b). We will not reverse if, after examining the entire record, we have 

fair assurance that the error did not influence the jury or had but slight effect. 

Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).

At trial, the State sought to admit evidence of an incident that occurred in 

2003. At a hearing outside the jury’s presence, Lilley argued that the remoteness of 

the offense rendered the evidence more prejudicial than probative and that the 

evidence was inadmissible under Texas Code of Criminal Procedure Article 38.37.

The trial court found the evidence admissible. 

T.H. subsequently testified that in 2003 Lilley had been following her at a 

high school basketball game and, at some point, Lilley approached her, touched her 

breast, and grabbed her bottom when she walked away. Lilley told T.H., “You are 
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getting so big. I bet all the boys like you now.” K.F. testified that she saw Lilley

touching the side of T.H.’s breast. A.C., T.H.’s mother, testified that T.H. did not 

want to pursue charges because Lilley was related to T.H.’s paternal family 

members, Lilley’s wife worked at T.H.’s school, and T.H. was afraid. In the jury 

charge, the trial court included the following limiting instruction:

Evidence has been introduced that the defendant committed 

offenses, wrongs or acts, other than that for which he is on trial. You 

are instructed that you cannot consider such evidence for any purpose 

unless you first find from the evidence presented beyond a reasonable

doubt that the defendant did commit those other offenses, wrongs or 

acts, if any. Therefore, if the State has not proven the defendant’s guilt 

of those other offenses, wrongs or acts, if any, beyond a reasonable 

doubt, or if you have a reasonable doubt of the defendant’s guilt of 

those other offenses, wrongs or acts, if any, you shall not consider 

such evidence for any purpose.

If you find that the State has proven, beyond a reasonable 

doubt, the defendant's guilt of those other offenses, wrongs or acts, if 

any, you may consider such evidence for its bearing on matters 

relevant to the offense for which the defendant is on trial, including 

the character of the defendant and acts performed in conformity with 

the character of the defendant, and you may not consider those 

offenses, wrongs, or acts, if any, for any other purpose.

Assuming, without deciding, that the trial court abused its discretion by 

admitting the complained-of evidence, we conclude that Lilley’s substantial rights 

were not affected. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(b). 

Given the evidence before the jury, it is unlikely that the admission of the 
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complained-of evidence had a substantial effect on the jury’s verdict. See Ladd v. 

State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). The jury heard evidence that in 

2011, D.L. told her mother that Lilley placed his hand under D.L.’s bra towards her 

breast and asked to touch D.L.’s breasts. She also told her mother that Lilley would 

bring his hands toward her breasts during hugs. D.L. testified that Lilley touched 

her inappropriately by placing his hand inside her bra and touching her breast and 

that, on another occasion, he asked to touch her breasts. She also testified that 

Lilley would “kind of touch” her breasts during hugs. When D.L. told her 

grandmother that Lilley had asked to touch her breasts, her grandmother told her 

not to tell anyone and that she would speak with Lilley. Detective Christi Allen 

testified that when she called Lilley to inform him that a warrant had been issued, 

Lilley replied, “Oh, f---. I messed up” or “Oh, hell, I messed up[]” before hanging 

up on Allen. The State discussed the offense against T.H. and argued that “[t]his is 

a pattern[,]” but focused its arguments on the charged offense against D.L.

Even absent the complained-of evidence, the testimony of D.L. alone

supports Lilley’s conviction for indecency with a child. See Cantu v. State, 366 

S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); see also Navarro v. State, 

241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). After 

examining the record as a whole, we have fair assurance that the error, if any, did 
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not influence the jury, or had but slight effect. See Ladd, 3 S.W.3d at 568; see also 

Taylor, 268 S.W.3d at 592. We overrule issue one.

In issue two, Lilley contends that the trial court’s limiting instruction failed 

to correctly advise the jury on the law applicable to extraneous offenses. During 

the trial conference, Lilley had no objections to the trial court’s jury charge. An 

affirmative denial of objection is the equivalent to a failure to object; thus, we may 

not reverse unless the error, if any, is ‘“so egregious and created such harm’” that 

the defendant did not receive a fair and impartial trial. Sakil v. State, 287 S.W.3d 

23, 26 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 

(Tex. Crim. App. 1985)); Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 

2004). We consider (1) the entire jury charge, (2) the state of the evidence, (3) the 

parties’ arguments, and (4) any other relevant information found in the record as a 

whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

Assuming, without deciding, that the trial court’s jury charge was erroneous, 

we conclude that harm, if any, was not egregious. The State briefly mentioned the 

limiting instruction during closing arguments, but also told the jury that it could 

find Lilley guilty if it believed D.L.’s testimony alone; and defense counsel 

reminded the jury that the case on trial was the offense against D.L. The jury 

charge tracked the language of the indictment and instructed the jury that the State 
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bore the burden of proving Lilley’s guilt beyond a reasonable doubt. The charge 

also instructed the jury that it could only find Lilley guilty if it found he committed 

the offense of indecency with a child beyond a reasonable doubt or acquit Lilley if 

it could not so find. The trial court instructed the jury that Lilley was presumed 

innocent and was not required to prove his innocence and advised the jury that it 

was the exclusive judge of the credibility of the witnesses and the weight to be 

given their testimony. Moreover, as previously discussed, even without the 

extraneous-offense testimony, the evidence of the charged offense supports

Lilley’s conviction. The record does not suggest that the extraneous-offense 

instruction confused the jury or caused the jury to convict on less than beyond a 

reasonable doubt. Based on the record before us, we conclude that Lilley was not 

denied a fair and impartial trial. See Sakil, 287 S.W.3d at 26. We overrule issue 

two and affirm the trial court’s judgment.

AFFIRMED.

 ___________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on December 8, 2014

Opinion Delivered January 14, 2015

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.