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.

BACKGROUND

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 Austin who lived across the street. Austin began 
Austin 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 victim has 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 

victim told the counselor what Austin had done and attempted to provide locations and 

dates of the incidents of abuse. The victim testified at trial that he did not talk to the 

SARC counselor to charge Austin 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.

EXTRANEOUS OFFENSE EVIDENCE

In his first two issues, Austin complains that the trial court erred by admitting 

extraneous offense evidence 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, was 

outweighed by the danger of unfair prejudice. 

Evidence

In its case-in-chief at the guilt-innocence stage of the trial, the State called the 

victim's older brother,1 who testified that Austin 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. The 

abuse ended when brother was 14 years old “or so.” Brother testified the abuse occurred 

“close to” 50 times. 

The 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 Austin in 1998 after Austin received deferred adjudication for 

the offense. 

After hearing argument by the parties, the trial court ruled brother’s testimony 

and Exhibit 26 were 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 conformity with the 

character of the defendant." TEX. CODE CRIM. PROC. art. 38.37, § 2; Fahrni v. State, 473 

S.W.3d 486, 492 (Tex. App.—Texarkana 2015, pet ref’d). Before evidence under article 

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 offense beyond a 

reasonable doubt." TEX. CODE CRIM. PROC. art. 38.37, § 2-a. Here, an article 38.37 hearing 
Austin 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.

Under 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); 

TEX. R. EVID. 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. TEX. R. EVID. 403. Austin 

complains on appeal that the probative value of the extraneous offense evidence was 

outweighed only by the danger of unfair prejudice.

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

evidence 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. Mar. 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 applicable. 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 

force; 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 prejudice, he limits 
Austin 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

Evidence of a separate sexual offense against a child admitted under article 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 

significantly 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 documented in Exhibit 26 

were remote in time to Austin’s trial. However, they are not remote to the dates 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 suggested 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 to 
Austin v. State Page 7 

render the evidence inadmissible under Rule 403. See Harty v. State, 552 S.W.3d 928, 935 

(Tex. App.—Texarkana 2018, no pet.). 

Austin also argues that the probative value of brother’s testimony is weakened by 

the strength of the victim’s testimony. However, no medical or physical evidence 

corroborated the victim’s testimony, and there were no other witnesses to the offense. 

Without brother’s testimony, the State’s case would have been confined to the victim’s 

word against Austin’s. The victim’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. App. 2009). 

Austin further argues the indecency offense reflected in Exhibit 26 lacked 

meaningful distinctive similarities to be probative. However, the indecency offense

confirmed 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 sponsoring 
Austin v. State Page 8 

witness offered no interpretation of the documents included in the exhibit or elaborated 

upon the facts of the offense. Regarding brother’s testimony, no special emphasis was 

placed on it during the State’s argument. The State generally reminded the jury of 

brother’s testimony and informed them that they could take the testimony into 

consideration if they 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 decided 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 instructions in the court’s charge

regarding both extraneous 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, 

no medical or physical evidence corroborated the victim’s testimony, there were no other 

witnesses to the offense, and without brother’s testimony, the State’s case would have 

been confined to the victim’s word against Austin’s. The victim’s credibility was a central 
Austin v. State Page 9

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. App. 2009). Further, fabrication was part of a defensive 

theory. Specifically, Austin contended that the victim enlisted brother to help set up

Austin to get a few years shaved off of the victim’s prison time for his then-pending 

charge for methamphetamine possession. 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

After 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 second issues are overruled.

MOTION FOR MISTRIAL

In his third and fourth issues, Austin contends the trial court abused its discretion 

when the trial court denied Austin’s requests for a mistrial after the trial court sustained 

objections to argument by the 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 prosecutor 
Austin 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 Austin. 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 statement. Austin

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 

witnessThe trial court sustained Austin’s objection as it was being raised. The jury 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). The 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 argument 
Austin v. State Page 11

on punishment or on guilt/innocence, we will address these two issues 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 Austin 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. The trial court promptly 

gave an instruction to the jury to disregard the State’s statement, which the jury was 

presumed to follow. 

Moreover, after a review of the punishment record, we find that the punishment 

assessed was just as certain absent the statement for several reasons. In addition to the 

evidence introduced at guilt/innocence, there 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 probation officer was 
Austin 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 sentenced 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 argument was an insupportable attack on 

counsel’s efforts to defend Austin and because the evidence 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 State’s comment was inappropriate;

however, taken in context, Austin’s counsel had argued about how the State had the 

burden of proof and did not 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 who the defense chose not to call as well. The total evidence 

supporting Austin’s conviction, including extraneous offense evidence regarding similar 
Austin 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. Thus, the State’s comment did 

little, if anything, to increase the certainty of Austin’s conviction.

Accordingly, balancing 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 fourth issue is 

overruled.

CONCLUSION

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 18, 2022

Do not publish 

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