AFFIRMED and Opinion Filed January 29, 2024 

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### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01309-CR, No. 05-22-01310-CR, No. 05-22-01311-CR, No. 05-22-01312-CR WILLIAM RAY MILLER, JR., Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause Nos. 20-50080-422 -F, 20-00317-422-F, 20-00318-422-F, 20-50011-422-F MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Garcia A jury convicted appellant of con tinuous sexual abus e of a child under fourteen and three counts of possession of child pornography. Punishment was assessed at life in prison on the sexual abus e charge and ten year s and a $10,000 fine on each of the child pornography charges. In two issues, appellant now argues th e trial court erred in admitting evidence over his article 39.14 objecti on and erroneously admitted extraneous evidence–2– concerning sexual abuse of the compla inant’s childhood friend. Finding no reversible error, we affirm the trial court’s judgment.
I. B ACKGROUND Appellant’s daughter, JG, outcried after her friend JL told the police that appellant sexually abused her when she visited JG’s house as a child. JG was examined by a SANE nurse who found tears to JG’s hymen consis tent with vaginal penetration. JG told the nurse that she was sexually abused by her father when she was four years old, and the abuse conti nued until she was fourteen. During that period, the abuse occurred a pproximately five times a week. JG reported that her father took pictures during the abuse. The police obtained a warrant and search ed appellant’s home. A black case containing CD’s and DVD’s was seized fro m the garage. A fore nsic investigator found child pornography on one of the disc s. A red blanket was present in the images, and the investigator believed that JG was the child depicted in the images. Prior to trial, the court held a 38.37 h earing to determine the admissibility of extraneous evidence concerning appellant ’s sexual abuse of JL, JG’s childhood friend. Defense counsel objected that the ex traneous offenses we re irrelevant and highly prejudicial. The objection was overrule d, and JL was perm itted to testify at trial. There were two trials in this case. The first began in March 2022. On the first day of trial, forensic investigator George York testified about State’s Exhibit 60,–3– images of pornography on a DVD recovere d from appellant’s home. York also mentioned supplements to his report a nd defense counsel objected. Outside the presence of the jury, the court determined that neither the State nor defense counsel had possession of or had viewed the supplemen ts. A records technician testified that the evidence had been properly submitted to the records department, but the records department erred by failing to send it to the District Attorney. Defense counsel moved for a mistrial and the State did not object. The trial court granted a mistrial. A new trial began on December 5, 2022. Prior to trial, the court heard argument on appellant’s motion to suppress E xhibit 60, or alternatively, to dismiss the charges based on the discovery error. The trial court denied the motion. The case was tried to a jury . JG and the SANE nurse te stified about appellant’s sexual abuse of JG and JL gave extr aneous offense testimony describing how appellant had sexually abused her. The forensic investigat or testified, and State’s Exhibit 60 was admitted into evidence. Appella nt testified in his own defense. Upon conclusion, the jury found appellant guilty of continuou s sexual abuse of a child under fourteen and three counts of possession of child pornography. Neither side presented opening statemen ts or witnesses during the punishment phase. The jury assessed punishment at life in prison on the sexual abuse charge and ten years with a $10,000 fine on each of th e child pornography ch arges. This timely appeal followed.–4– II. I SSUES A. The Article 39.14 Discovery Objection Appellant’s first issue argues the tria l court erred in overruling the article 39.14 objection he made prior to the second trial. According to appellant, the State’s “lack of due diligence,” and law enforcemen t’s “willful disregard of the discovery process” required exclusion of the ev idence. This argument lacks merit. We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Lerma v. State , 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). At the hearing on the motion, th e trial court is the sole factfinder and judge of the credibility of the witnesses and of the weight to be given their testimony. Id . at 190. We therefore afford almost co mplete deference to the trial court’s determinations of historical facts. Id . But we review de novo the legal significance of the facts found by the trial court. Ramirez-Tamayo v. State , 537 S.W.3d 29, 35 (Tex. Crim. App. 2017). It is well-established that “evidence w illfully withheld from disclosure under a discovery order should be excluded from evidence.” See Hollowell v. State , 571 S.W.2d 179, 180 (Tex. Crim. App. 1978). But the rules regarding criminal discovery were changed with the enactment of the Mi chael Morton Act in article 39.14(a). That statute requires that “as soon as practicab le after receiving a timely request from the defendant the state shall produce” certa in categories of items in discovery. See T EX
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. art. 39.14(a). The statute requires only a request, rather than–5– a court order, to trigger the State’s duty to produce discovery. However, the statute does not include a definition for what is “a s soon as practicable,” nor does it include any remedies for failure to comply with the request. State v. Heath , 642 S.W.3d 591, 596 (Tex. App.—Waco, 2022, pet. granted ). When determining the type of relief ava ilable for noncompliance with the Act, appellate courts have c oncluded that appropriate remedies include granting continuances or excluding evidence not timely produced. See Ex parte Highsmith , 652 S.W.3d 850, 858 (Tex. App. —Austin 2022, pet. ref’d); Heath , 642 S.W.3d at 597–98 (observing that trial courts may fash ion remedy for noncom pliance with Act, including granting continuance or ex cluding evidence not timely produced); In re State , 605 S.W.3d 721, 726, 727 (Tex. App. —Houston [1st Dist.] 2020, orig. proceeding) (observing that “exclusion of ev idence” is “sanction that is generally accepted as the remedy for viol ations of article 39.14.”). Here, appellant fails to explain how the evidence was untimely disclosed before the second trial or identify any ev idence in the record suggesting that law enforcement “willfully disregarded” the discovery process. Exhibit 60 was made available to and viewed by the defense prior to the first trial, and defense counsel so conceded during the hearing. Although th e supplements to Exhibit 60 were not produced prior to the first trial, they were made available after the mistrial and before the second trial began. Despite having timel y disclosed the supplements before the second trial, the State agreed not to use the supplements at trial.–6– Appellant requested and rece ived a mistrial at the end of his first trial when the article 39.14 error was di scovered, and the State’s agreement not to use the supplemental material in the second tr ial was the functional equivalent of suppression. Thus, the record reflects that appellant received both available remedies under article 39.14. See Highsmith , 652 S.W.3d at 858. There is nothing to establish the trial court erred in concluding that appe llant was not entitled to additional relief. Appellant’s first issue is resolved against him.
B. Admission of Extraneous Evidence JG’s childhood friend JL was nineteen when she testified at trial. She met JG when she was in second grade and the two were “pretty much inseparable” when they were young. Consequently, she sa w appellant almost every weekend. JL would sleep in the bottom bunkbed in JG’s bedroom when she spent the night. Appellant would touch her vagina, r ubbing on her shorts with his fingers when he believed she was asleep. JL estimated that this happened almost every weekend she spent with JG. She was nine when th e abuse began, and it stopped when she was eleven. Appellant’s second issue argues the tr ial court erred in overruling his Rule 403 objection to this extraneous evidence . According to appella nt, the evidence was not probative and was highly prejudicial. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Rhomer v. State , 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). This–7– standard of review also applies to a tr ial court’s decision to admit or exclude extraneous-offense evidence. De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Barron v. State , 630 S.W.3d 392, 410 (Tex. App.—Eastland 2021, pet. ref’d). We will not reverse a trial court’s decision to admit or exclude evidence, and there is no abuse of discretion, unless that decision lies outside the zone of reasonable disagreement. De La Paz , 279 S.W.3d at 343–44; Beham v. State , 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). Fu rthermore, we will uphold a trial court’s evidentiary ruling, even if the trial court’s reasoning is flawed, if it is correct on any theory of law that finds support in the record and is applicable to the case. Henley v. State , 493 S.W.3d 77, 93 (Tex. Crim. App. 2016). By enacting Article 38.37, the Legislatur e created an exception to the general exclusion of character evid ence in criminal trials. See T EX
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. art. 38.37 ; Swegheimer v. State , No. 02–17–00095–CR, 2018 WL 1528477, at *2 (Tex. App.—Fort Worth Mar. 29, 2018, pet. ref’d) (mem . op., not designated for publication); Harris v. State , 475 S.W.3d 395, 401 (Tex. A pp.—Houston [14th Dist.] 2015, pet. ref’d). Thus, at the trial of a defendant accused of, among other things, continuous sexual abuse of a child, eviden ce the defendant committed a separate sex offense against another child may be admissi ble 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.”
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. 38.37, § 2(a)(B), 2(b); see also Kirk v. State , No.–8– 05-19-00768-CR, 2020 WL 5757338, at *5 (Tex. App.—Dalla s Sept. 28, 2020, pet. ref’d) (mem. op., not designated for publication); Strickland v. State , No. 05-18- 00170-CR, 2019 WL 2402983, at *3 (Tex. A pp.—Dallas June 7, 2019, no pet.) (mem. op., not designated for publication). The admission of extraneous evidence under Article 38.37, Section 2(b), does not require that the defendant have been ch arged with, tried for, or convicted of the separate offense. Castillo v. State , 573 S.W.3d 869, 880–81 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). But 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.” T EX
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. art. 38.37, § 2-a(1); see also Kirk , 2020 WL 5757338, at *5. In this case, as discusse d above, an article 38. 37 hearing was held, and the trial court ruled that the extr aneous offense evid ence was admissible. When evidence of a defenda nt’s extraneous acts is de termined to be relevant and admissible under Article 38.37, Secti on 2(b), this evidence nonetheless remains subject to exclusion under Rule 403 if a pr oper objection or request is presented to the trial court. Keller v. State , 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020, pet. ref’d) (citing Distefano v. State , 532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)); see T EX
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. 403. Rule 403 allows the exclusion of relevant evidence “if its probative value is substantially outwe ighed by a danger of–9– one or more of the following: unfair prej udice, confusing the issues, misleading the jury, undue delay, wasting time, or n eedlessly presenting cumulative evidence.” T EX

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. 403. Probative value is the measure of how strongly the evidence serves to make more or less probable the existence of a fact of consequence to the litigation, coupled with the proponent’s need for the evidence. Gigliobianco v. State , 210 S.W.3d 637, 641 (Tex. Crim. A pp. 2006). Unfair prejudice refers to a tendency to tempt the jury into finding guilt on an im proper basis, such as an emotional one. Id. Confusion of the issues refers to “a tendenc y to confuse or distract the jury from the main issue in the case.” Id. When undertaking a rule 403 analysis, a trial court balances: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for th at evidence against (3) any tendency of the evidence to suggest decisi on on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evid ence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gonzalez v. State , 544 S.W.3d 363, 372 (Tex. Cr im. App. 2018) (quoting Giglioblanco , 210 S.W.3d at 641–42); see also Baker v. State , No. 05-19-01051-CR, 2021 WL 1826829, at *2 (Tex. App.—Dallas May 7, 2021, pet. ref’d) (mem. op., not designated for publication). In practic e, however, “these factors may well blend together.” Giglioblanco , 210 S.W.3d at 642.–10– Appellant argues the extraneous evidence was not required to make a fact of consequence more or less probable be cause testimony from the SANE nurse corroborated JG’s testimony, rendering th e extraneous evid ence “cumulative and highly prejudicial.” We disagree. Evidence of a separate sexual offense against a child admitted under article 38.37, section 2(b) is probative of a defe ndant’s character or propensity to commit sexual abuses on children. See Bradshaw v. State , 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015, pet. re f’d). Moreover, the “plain language of Rule 403 does not allow a court to exclude otherwise re levant evidence when that evidence is merely prejudicial.” Pawlak v. State , 420 S.W.3d 807, 811 (Tex . Crim. App. 2013). Appellant testified at trial, and while he agreed that terrible things had happened to his daughter, he implied that JG was abused by her mother’s boyfriend and that his son brought the child por nography to the house. He denied taking pictures of JG or being in them. Therefore, the State’s ca se against appellant rest ed on JG’s testimony about the abuse. It was, in essence, appellant’s word against JG’s. See Robisheaux v. State , 483 S.W.3d 205, 220 (Tex. App. —Austin 2016, pet. ref’d); Gaytan v. State , 331 S.W.3d 218, 227 (Tex. App.—Aus tin 2011, pet. ref’d). In “he said, she said” sexual molestation cases such as this, “[r]ule 403 should be used sparingly to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the defendant or the complainant.” Hammer v. State , 296 S.W.3d 555, 562, 568 (Tex.–11– Crim. App. 2009). In this instance, the ev idence was probative and the State’s need for the evidence was great . These factors weigh in favor of admission. As for the third factor, we recognize th at evidence of previous child sexual abuse is inherently inflammatory by na ture and, hence, can be prejudicial. Pawlak 420 S.W.3d at 811; Newton v. State , 301 S.W.3d 315, 320 (T ex. App.—Waco 2009, pet. ref’d). Yet this potentia l was somewhat diminished in this case by the fact that the offense against JL was less severe b ecause appellant touc hed JL through her clothing and there was no penetration of any kind. Further, unlike the ten-year period appellant abused his daughter , appellant’s abuse of JL lasted three years. The prejudicial factor weighs slightly against admission. Regarding the fourth factor, the ultim ate issue in this case was whether appellant committed the offense against comp lainant as alleged in the indictment. The trial court mitigated the tendency of th e extraneous offense evidence to confuse or distract the jury from the main issues at trial by instructing them to use it for the limited purpose of “determining the motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or l ack of accident of the defendant, if any, in connection with the offense, if any, alleged against him . . . in this case, and for no other purpose.” The jury is presumed to have followed the court’s instruction. Resendiz v. State , 112 S.W.3d 541, 546 (Tex. Crim. A pp. 2003). Therefore, this factor weighs in favor of admission.–12– The fifth factor refers to evidence su ch as highly technical or scientific evidence that might mislead the jury because it is not equipped to weigh the probative force of the evidence. Gigliobianco , 210 S.W.3d at 641. In the present case, however, the evidence in question was ne ither scientific nor technical in nature, and it pertained to matters, including vic tim credibility, that could easily be understood by a jury. We conclude the fift h factor weighs in favor of admission. Concerning the sixth and final factor, JL’s testimony about the abuse comprised twenty pages out of 344 page s of the guilt/innocence phase in the reporter’s record. See, e.g., Gaytan , 331 S.W.3d at 228 (disputed testimony was thirteen pages out of a 200-page trial tran script, and it was not repetitive of other evidence); Kimberlin v. State , No. 05-18-00018-CR, 2019 WL 1292471, at * 4 (Tex. App.—Dallas Mar. 21, 2019, no pet.) (comprising thirty -two pages of two volume reporter’s record). Moreover, JL’s testim ony was not repetitive a nd was an important component of the State’s case. Thus, this f actor also weighs in favor of admission. We conclude that the trial court, af ter balancing the rule 403 factors, could have reasonably concluded that the probati ve value of the evidence in question was not substantially outweighed by the danger of unfair prejudice and the other rule 403 factors. Accordingly, the trial court di d not abuse its discretion in admitting the extraneous offense evidence.–13– III. C ONCLUSION Having resolved all of appellant’s issu es against him, we affirm the trial court’s judgments.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RAY MILLER, JR., Appellant
No. 05-22-01309-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 20-50080-422- F. Opinion delivered by Justice Garcia. Justices Partida-Kipness and Pedersen, III participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered January 29, 2024–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RAY MILLER, JR., Appellant
No. 05-22-01310-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 20-00317-422- F. Opinion delivered by Justice Garcia. Justices Partida-Kipness and Pedersen, III participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered January 29, 2024–16– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RAY MILLER, JR., Appellant
No. 05-22-01311-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 20-00318-422- F. Opinion delivered by Justice Garcia. Justices Partida-Kipness and Pedersen, III participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered January 29, 2024–17– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM RAY MILLER, JR., Appellant
No. 05-22-01312-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 20-50011-422- F. Opinion delivered by Justice Garcia. Justices Partida-Kipness and Pedersen, III participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered January 29, 2024