### IN THE TENTH COURT OF APPEALS
No. 10
- 21
- 00181
- CR
MICHAEL TODD AUSTIN , Appellant v. THE STATE OF TEXAS , Appellee

From the 85th District Court Brazos County, Texas Trial Court No. 19
- 02612
- CRF
- 85

MEMORANDUM OPINION
Michael Todd Austin was convicted of aggravated sexual assault and sentenced to 63 years in prison. Because the trial court did not abuse its discretion in admitting extraneous offense evidence or in denying two requests for a mistrial, the trial court’s judgment is affirmed.
B ACKGROUND The victim in this case was 37 years old at the time of trial. In the 1990’s he lived in College Station. In 1992

- 1993, he met A ustin who lived across the street. A ustin beganAustin v. State Page 2 sexually abusing the victim from when the victim was about 8 years old until he was about 13 years old.
The v ictim ha s been to prison three times. While in jail before his last conviction,
he listened to sex offenders talk about their cases. He contacted a crime victims associate
who referred the victim to a counselor from the Sexual Assault Resource Center. The

v ic tim told the counselor what A ustin had done and attempted to provide locations and
dates of the incidents of abuse

. The v ictim testified at trial that he did not talk to the SARC counselor to charge A ustin with a crime; rather, he said, “the biggest thing was getting it off my chest. ” He also said he had not received any benefit in exchange for his testimony.
E XTRANEOUS O FFENSE E VIDENCE In his first two issues, Austin complains that the trial court erred by admitting

extran eous offense evide nce in violation of Rule 403 of the Texas Rules of Evidence during the guilt

- innocence stage of the trial

. Austin contends that the probative value of testimony by the victim’s brother regarding similar acts of sexual abuse by Austin and of State’s Exhibit 26, regarding a charge and judgment of indecency with a child, w as outweighed by the danger of unfair prejudice.
Evidence
I n its case

- in

- chief at the guilt

- innocence stage of the t rial, the State called the
victim's older brother, 1 who testified that A ustin began sexually abusing him , in a similar

1 Because of a similarity of initials between the victim and his brother, we use the references, victim or brother, rather than their initials

.Austin v. State Page 3 manner as the victim, when he was between the ages of eight and ten years old

. T he
abuse ended when brother was 14 years old “or so

. ” Brother testified the abuse occurred
“close to” 50 times.
T he State also introduced into evidence Exhibit No. 26, a six

- page document which
included an indictment, a plea agreement, and an order deferring adjudication for the offense of indecency with a child

. A former probation officer sponsored the exhibit and testified that he supervised A ustin in 1998 after Austin received deferred adjudication for
the offense. After hearing argument by the parties, t he trial court ruled brother’s testimony
and Exhibit 26 w ere admissible over Austin’s Rule 403 objection

. Article 38.37 At the trial of a defendant accused of, among other things, aggravated sexual assault of a child, evidence of certain extraneous offenses committed by the defendant, including aggravated sexual assault of a child and indecency with a child, is admissible under Section 2 of Article 38.37 "for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conf ormity with the
character of the defendant." T EX

. C ODE C RIM
. P ROC . art. 38.37, § 2 ; Fahrni v. State , 473 S.W.3d 486, 492 (Tex. App.

— Texarkana 2015 , pet ref’d )

. Before evidence under a rticle 38.37 is introduced, the trial judge must conduct a hearing outside of 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 off ense beyond a
reasonable doubt." T EX

. C ODE C RIM
. P ROC . art. 38.37, § 2

- a. Here, an article 38.37 hearingAustin v. State Page 4 was held, and the trial court determined the extraneous offense evidence to be admissible. Austin does not complain on appeal about those rulings.
U nder Article 38.37, evidence of extraneous offenses against other children is
admissible even if such evidence would be otherwise inadmissible under Rules 404 or
405 of the Texas Rules of Evidence. Id

. However, the admission of evidence under Article
38. 37 "is limited by Rule 403's balancing test, which permits admission of evidence as long as its probative value is not substantially outweighed by its potential for unfair prejudice." Bradshaw v. State , 466 S.W.3d 875, 882 (Tex. App.

— Texarkana 2015, pet. ref’d) ;
T EX

. R. E VID . 403

. Rule 403
Rule 403 of the Texas Rules of Evidence allows the exclusion of relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

. T EX

. R. E VID . 403. Austin complains on appeal that the probative value of the extraneous offense evidence was outweighed only by the danger of unfair pr ejudice

. Probative value refers to the inherent probative force of an item of evidence

— that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation

— coupled with the proponent's need for that item of
evidence. Valadez v. State , No. PD

- 0574

- 19, 2022 Tex. Crim. App. LEXIS 217, at *11 (Crim. App. Mar. 30, 2022)

. Relevant evidence is presumed to be more probative than prejudicial. Santellan v. State , 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). However,Austin v. State Page 5 e vidence may be unfairly prejudicial if it prompts the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence. Valadez v. State , No.
PD

- 0574

- 19, 2022 Tex. Crim. App. LEXIS 217, at *11 (Crim. App. M ar. 30, 2022) (publish). In sum, as pertinent here, a court must balance the probative force of the proffered evidence and the proponent's need for it against any tendency of the evidence to suggest decision on an improper basis

. Id

. * 11

- 12. A trial judge has substantial discretion in balancing probative value and unfair prejudice. See Powell v. State , 189 S.W.3d 285, 288 (Tex. Crim. App. 2006). All testimony and physical evidence will likely be prejudicial to one party or the other. Jones v. State , 944 S.W.2d 642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value, in other words, the evidence is unfairly prejudicial, that Rule 403 is ap plicable. Hammer v. State , 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) ; Id

. When conducting a Rule 403 balancing test, courts should consider: (i) the evidence's probative force; (ii) the proponent's need for the evidence; (iii) the evidence's potential to suggest a decision on an improper basis; (iv) the evidence's tendency to distract the jury from the main issues; (v) any tendency for the jury to give the evidence undue weight because it has not been fully equipped to evaluate the evidence's probative
fo rce; and (vi) the likelihood that presenting the evidence will consume an inordinate
amount of time. See Gigliobianco v. State , 210 S.W.3d 637, 641

- 642 (Tex. Crim. App. 2006).
Because Austin complains on appeal only that the probative value of the
extraneous offense evidence was outweighed by the danger of unfair prejudic e , he limitsAustin v. State Page 6 his discussion to factors (i), (ii), (iii), and (vi). We, likewise, confine our review to those
same factors.
Review
Probative Force
E vidence of a separate sexual offense against a child admitted under a rticle 38.37
is generally probative of a defendant's character or propensity to commit sexual assaults
on children. See Bradshaw , 466 S.W.3d at 883. Austin initially asserts, however, that brother’s testimony and Exhibit 26 are too remote to be probative. Remoteness can signific antly lessen the probative value of extraneous

- offense evidence. See Gaytan v.
State , 331 S.W.3d 218, 226 (Tex. App.

— Austin 2011, pet. ref'd) ; Newton v. State , 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref'd). However, remoteness alone is not sufficient
to render an extraneous offense excludable under Rule 403. Gaytan , 331 S.W.3d at 226;
Price , 594 S.W.3d at 680 n.6. Rather, it is but one aspect of an offense's probativeness the trial court is to consider along with the other factors in the Rule 403 analysis. Gaytan , 331
S.W.3d at 226-227. We agree that the abuse against brother and the offense document ed in Exhibit 26

were re mote in time to Austin’s trial. However, they are not remote to the date s of the
abuse against the victim. The indictment in this case states the abuse against the victim
occurred in 1991. Testimony regarding the abuse against brother suggest ed the abuse began in 1990 or 1991, and the indictment in Exhibit 26 alleged the indecency offense
occurred in 1997. We do not believe, under these circumstances, that remoteness , if any, of the extraneous offenses rendered the probative value of this evidence so weak as toAustin v. State Page 7 render th e evidence inadmissible under Rule 403. See Harty v. State , 5 52 S.W.3d 928, 935 (Tex. App. —Texarkana 2018 , no pet. ). Austin also argues that the p robative value of brother’s testimony is weakened by
the strength of the victim’s testimony

. However, n o medical or physical evidence
corroborated the victim’s testimony , and there were n o other witnesses to the offense

. Without brother’s testimony, the State’s case would have been confined to the victim’s word against A ustin ’s. The v ictim’s credibility was a central issue in the case

. Because sexual assault cases frequently present such scenarios, Rule 403 should be used sparingly
to exclude evidence “ that might bear on the credibility of either the defendant or complainant in such ‘ he said, she said ’ cases. ” Hammer v. State , 296 S.W.3d 555, 562 (Tex.
Crim. A pp. 2009).
Austin further argue s the indecency offense reflected in Exhibit 26 lacked meaningful distinctive similarities to be probative

. However, the indecency offense
confirm ed what the victim and brother said about how some of the instance of abuse against them began

— as young boys being awakened in their sleep by Austin touching
them. Improper basis
Austin asserts the extraneous offense evidence was inherently inflammatory, especially when Exhibit 26 was admitted at the end of the State’s case and when the State emphasized brother’s testimony during both parts of its argument to the jury

. Austin is
correct that Exhibit 26 was introduced into evidence at the end of the State’s case. However, there was no testimony about the impact of the exhibit. The sponsoringAustin v. State Page 8 witness offered no interpretation of the documents included in the exhibit or elaborated upon the fact s of the offense

. Regarding brother’s testimony , no special emphasis was placed on it during the State’s argument . T he State generally reminded the j ury of brother’s testimony and informed them that they could take the testimony into
consideration if the y believed it beyond a reasonable doubt

. The State also generally explained why brother remembered more of what happened after the initial disclosure and that brother did not want to testify, but did, and told the truth. Further, any potential that the evidence had to suggest the jury decide d the case on an improper basis was negated by the fact that Exhibit 26 and brother’s testimony encompassed actions that were no more serious than the allegations forming the basis for
the charged allegation

. See Robisheaux v. State , 483 S.W.3d 205, 220 (Tex. App.

— Austin
2016 , pet. ref’d )

. The trial court also provided limiting instruction s in the court’s charge regarding both ext raneous offenses

. Time Both parties agree, as do we, that the extraneous offense evidence did not consume an inordinate amount of time during the trial. Need for the Evidence Austin asserts the State did not need the extraneous evidence, especially if the State was permitted to introduce one extraneous offense or the other. As we noted earlier,

n o medical or physical evidence corroborated the victim’s testimony , there were n o other
witnesses to the offense , and w ithout brother’s testimony, the State’s case would have
been confined to the victim’s word against A ustin ’s. The v ictim’s credibility was a centralAustin v. State Page 9 issue in the case

. Because sexual assault cases frequently present su ch scenarios, Rule 403 should be used sparingly to exclude evidence “ that might bear on the credibility of either the defendant or complainant in such ‘ he said, she said ’ cases. ” Hammer v. State , 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). Further, f abrication was part of a defensive theory . Specifically , Austin contended that the vi ctim enlisted brother to help set up
A ustin to get a few years shaved off of the victim’s prison time for his then

- pending charge for methamphetamine possessi on . Thus, the State had a need to introduce the
extraneous offenses. See Moses , 105 S.W.3d at 626 (noting that rebuttal of a defensive theory is one of the permissible purposes for which extraneous

- offense evidence may be admitted).
Conclusion
A fter our review of the record, we cannot say the trial court abused its discretion in determining the probative value of the extraneous offense evidence was not substantially outweighed by the danger of unfair prejudice. Accordingly, Austin’s first and se cond issues are overruled.
M OTION FOR M ISTRIAL In his third and fourth issues, Austin contends the trial court abused its discretion
when the trial court denied Austin ’s request s for a mistrial after the trial court sustained objections to argument by t he State in both the guilt/innocence and punishment phases
of the trial

. In Issue III , the offending statement occurred during argument on punishment

. D.V. was the victim who was the subject of Exhibit 26. During argument, the prosecutorAustin v. State Page 10 stated, “ [D.V.] was prior

- on a prior occasion molested. ” Austin objected , saying there
was no evidence in the record that DV had been “molested” a second time by Au stin. As the prosecutor was responding that she thought there was testimony about “ that, ” the trial court attempted to stop the response

. Austin’s objection was sustained, and upon request, the jury was instructed to disregard the prosecutor’s last state ment

. A ustin
moved for a mistrial which the trial court denied.
In Issue IV , Austin claims the State struck at Austin over the shoulders of counsel by stating in argument on guilt / innocence that , [Counsel ] has subpoena power. And he's right. True enough, we have the burden of proof in all these cases; but you as a jury get to consider and weigh the fact that when he does bother to get out of his chair and call a witness

T he t rial court sustained Austin’s objection as it was being raised. The ju r y was told to disregard the prosecutor ’s statement , and the trial court denied Austin’s motion for
mistrial.
Law When the trial court sustains a defendant's objection, grants a requested instruction to disregard, but denies a motion for mistrial, the issue is whether the refusal to grant the mistrial was an abuse of discretion. Hawkins v. State , 135 S.W.3d 72, 76

- 77 (Tex. Crim. App. 2004). T he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis

. Id . at 77. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Id

. Thus, regardless of whether the mistrial was requested during argumentAustin v. State Page 11 on punishment or on guilt/innocence, we will address the se two issue s by applying the
three

- factor balancing test articulated in Mosley v. State , 983 S.W.2d 249 , 259 (Tex. Crim. App. 1998) : (1) severity of the misconduct; (2) measures adopted to cure any harm from the misconduct; and (3) certainty of conviction absent the misconduct. See Hawkins , 135
S.W.3d at 77 (punishment argument) ; see also Archie v. State , 340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (guilt/innocence argument).
Prior Molestation of D.V. Although Austin claims that the State’s argument served no legitimate purpose
and injected new facts harmful to A ustin by unsworn testimony outside the record , the investigator for the offense committed against D.V. was asked by Austin’s counsel at punishment whether “ there was a situation where D. [V]. woke up,

... – said that [Austin]
touched him over the clothing then went back to sleep and then later same thing? ” The investigator replied, “yes.” That exchange could have been interpreted as evidence
Austin touched D.V. more than one time. Further, nothing more was said about this
situation. Thus, the misconduct did not appear to be severe. T he trial court promptly
gave a n instruction to the jury to disregard the State’s statement , which the jury was presumed to follow. Moreover, a f ter a review of the punishment record, w e find that the punishment
assessed was just as certain absent the statement for several reasons. I n addition to the evidence introduced at guilt/innocence, t here was evidence at punishment that Austin
had entered and remained in a child safety zone while he was on deferred adjudication , for which his probation was extended one year , and that his pro b ation officer wasAustin v. State Page 12 concerned Austin still had issues with viewing pornography during his probationary period. There was also evidence that Austin was befriending teenagers

— buying clothing and alcohol for them, letting them spend the night in his parents’ vacant house , picking them up from school

— after he was released from deferred adjudication

. And although Austin argued the sentence the jury gave him , 63 years in prison, was a consequence of the State’s argument, the jury actually sentence d Austin to less than what the State had requested , life in prison

. Balancing the required factors, we find that the trial court did not abuse its discretion by denying Austin’s motion for mistrial due to improper argument by the State at the punishment phase of Austin’s trial. Austin’s third issue is overruled. Striking over the Shoulders In this issue, Austin contends the State’s ar gument was a n insupportable attack on
counsel’s efforts to defend Austin and because the evi de nce of Austin’s guilt was not overwhelming, the harmful effects of the State’s argument were not cured by the trial court’s instruction to disregard. We agree the S tate’s comment was inappropriate ; however, taken in context, Austin’s counsel had argued about how the State ha d the burden of proof an d did n o t talk to or bring all the witnesses it could have . The trial court promptly instructed the jury to disregard the statement by the State, which, again, the jury was presumed to have followed. After the denial of the motion for mistrial, the State more appropriately responded to Austin’s argument by informing the jury that it was entitled to consider wh o the defense chose not to call as well. The total evidence supporting A ustin ’s conviction , including extraneous offense evidence regarding similarAustin v. State Page 13 abuse to the victim’s brother and a guilty plea to indecency with a child charge , absent any alleged improper misconduct, was overwhelming . Th us, th e State’s comment did little, if anything , to increase the certainty of Austin’ s conviction. Accordingly, b alancing the required factors, we find that the trial court did not
abuse its discretion in denying Austin’s motion for mistrial due to improper argument by the State at the guilt/innocence phase of Austin’s trial. Austin’s fou rth issue is
overruled.
C ONCLUSION Having overruled each of Austin’s issues on appeal, we affirm the trial court’s judgment.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed May 1 8 , 2022 Do not publish [CRPM]