Affirmed and Opinion filed July 12, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00094-CR 

NO. 14-17-00095-CR

LOUIS H. WEST, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 180th District Court 

Harris County, Texas 

Trial Court Cause Nos. 1452365 & 1452366 

O P I N I O N 

Appellant Louis H. West appeals two convictions for indecency with a child, 

asserting that (1) the trial court abused its discretion in overruling appellant’s 

objection under Texas Rule of Evidence 403 to the admission of prior convictions 

during the guilt/innocence phase; (2) an assertion made by the State during its 

opening statement violated appellant’s due-process and due-course-of-law rights; 

and (3) the trial court erred by failing to give a limiting instruction when the State 
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made this assertion during its opening statement. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2014, two female cousins, one seven years old and one ten years old, 

and the sister of one of the cousins were playing at a convenience store where the 

mother of one of the cousins worked. Appellant was a regular customer at the 

store and knew the girls and the mother. After taking the girls to a nearby 

playground, appellant asked the mother if he could take the girls to his apartment 

to watch television, and the mother agreed. 

Appellant took the girls to his apartment. At some point during the visit 

appellant called the ten-year-old cousin into his room. Appellant touched her 

genitals and told her not to tell anyone. Appellant asked the seven-year-old cousin 

to enter his room, and he touched her genitals, over her underwear. Appellant then 

returned with the girls to the convenience store before the mother finished her 

shift. 

That evening, the seven-year-old cousin told her mother what had happened 

in appellant’s apartment, and her mother called the ten-year-old cousin’s mother 

and the police. Both cousins went to the Harris County Children’s Assessment 

Center, where they underwent a forensic interview and medical examinations. 

Appellant was charged in two indictments with offenses of indecency with a 

child. The two offenses were tried together to a jury. During the State’s case-inchief, both complainants testified and each of their mothers testified as outcry 

witnesses. Erika Gomez, a Children’s Assessment Center forensic interviewer, 

testified, as did Dr. Reena Isaac, a pediatrician who performed a medical 

evaluation of each complainant. The third child who went to appellant’s apartment 

also testified. In addition, the trial court admitted evidence that in 1988 appellant 
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was convicted in Louisiana of committing indecent behavior with a ten-year-old 

girl and of committing indecent behavior with an eight-year-old girl. A 

fingerprint-identification expert testified that the print of appellant’s left middle 

finger is identical to the print of the left middle finger of the Louis West convicted 

in Louisiana in 1988. The jury found appellant guilty as to each charged offense. 

II. ISSUES AND ANALYSIS

A. Did the trial court err in admitting evidence of the Louisiana 

convictions over appellant’s objection under Texas Rule of Evidence 

403? 

In his first issue appellant asserts that the trial court abused its discretion in 

concluding that the probative value of the Louisiana convictions was not 

substantially outweighed by a danger of unfair prejudice. Appellant contends the 

trial court erred in admitting evidence of the Louisiana convictions over his 

objection under Texas Rule of Evidence 403. Under article 38.37, section 2,

notwithstanding Texas Rules of Evidence 404 and 405, and subject to article 38.37, 

section 2-a, evidence that a defendant has committed certain offenses against a 

child may be admitted in the trial of a defendant for indecency with a child “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(b) (West, Westlaw through 2017 1st C.S.). 

Appellant does not complain on appeal that the trial court did not comply with 

article 38.37, section 2-a, that the trial court erred in applying article 38.37, section 

2 to the Louisiana convictions, or that the evidence of the Louisiana convictions 

was not relevant under article 38.37, section 2. Thus, we presume, without 

deciding, that the trial court complied with article 38.37, section 2-a, that the trial 

court did not err in applying article 38.37, section 2 to the Louisiana convictions, 

and that the evidence of the Louisiana convictions was relevant under article 38.37,
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section 2. 

1. Preservation of Error 

At a hearing outside the presence of the jury, just before opening statements, 

the State indicated that it wanted to mention the Louisiana convictions in its 

opening statements and that the State intended to introduce evidence of the 

Louisiana convictions during its case-in-chief in the guilt/innocence phase under 

article 38.37 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 

38.37 (West, Westlaw through 2017 1st C.S.). Appellant’s counsel stated that 

appellant’s argument against the admission of this evidence was the argument set 

out in the brief appellant filed. In his brief, appellant had asserted that evidence of 

the Louisiana convictions should be excluded under Texas Rule of Evidence 403. 

The trial court stated that it understood appellant’s argument and that the court was 

going to allow admission of this evidence. The trial court did not expressly 

overrule any objection or complaint regarding the admission of the Louisiana 

convictions. During the State’s case-in-chief, the trial court admitted evidence of 

the Louisiana convictions, and appellant did not voice any objection. Shortly 

thereafter, appellant appears to have renewed his objection from the earlier 

hearing. The trial court stated that the evidence already had been admitted without 

objection and suggested that appellant’s objection might be untimely. 

Nonetheless, the trial court overruled appellant’s objection. We presume, without 

deciding, that appellant preserved error in the trial court and that he timely raised 

an objection to the admission of evidence of the Louisiana convictions under Texas 

Rule of Evidence 403 and obtained an adverse ruling.

2. Applicable Law 

We review the trial court’s decision to admit evidence for abuse of 
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discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). 

When evidence of a defendant’s commission of one of the offenses listed in article 

38.37, section 2(a) is relevant under article 38.37, the trial court still must conduct 

a Rule 403 balancing test upon proper objection or request. Distefano v. State, 532 

S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). Rule 403 

authorizes a trial court to exclude relevant evidence if its probative value is 

substantially outweighed by a danger of unfair prejudice, confusing the issues, 

misleading the jury, undue delay, or needlessly presenting cumulative evidence.

Tex. R. Evid. 403; Distefano, 532 S.W.3d at 31. In overruling a Rule 403 

objection, a trial court is presumed to have performed a Rule 403 balancing test 

and to have determined that the evidence was admissible. See Distefano, 532 

S.W.3d at 31. We presume that the probative value of relevant evidence 

substantially outweighs the danger of unfair prejudice from admission of that 

evidence. See id. at 32. It is therefore appellant’s burden to demonstrate that the 

danger of unfair prejudice substantially outweighs the probative value. See id. 

In reviewing the trial court’s balancing determination under Rule 403, we 

are to “reverse the trial court’s judgment rarely and only after a clear abuse of 

discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); 

Distefano, 532 S.W.3d at 32. In determining whether the trial court abused its 

discretion in admitting the evidence, we balance the inherent probative force of the 

proffered item of evidence along with the proponent’s need for that evidence 

against (1) any tendency of the evidence to suggest decision on an improper basis; 

(2) any tendency of the evidence to confuse or distract the jury from the main 

issues; (3) any tendency of the evidence to be given undue weight by a jury that 

has not been equipped to evaluate the probative force of the evidence; and (4) the 

likelihood that presentation of the evidence will consume an inordinate amount of 
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time or merely repeat evidence already admitted. Gigliobianco v. State, 210 

S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These factors may well blend 

together in practice. Id. at 642.

3. Inherent Probative Force of the Evidence

The evidence of the Louisiana convictions consists of testimony by a 

fingerprint-identification expert showing that appellant is the same Louis West 

convicted in Louisiana in 1988 and documents from the Criminal District Court for 

the Parish of Orleans, Louisiana showing that (1) appellant was convicted in 1988 

of committing indecent behavior with a juvenile, by committing a lewd or 

lascivious act upon a ten-year-old girl in May 1988; and (2) appellant was 

convicted in 1988 of committing indecent behavior with a juvenile, by committing 

a lewd or lascivious act upon an eight-year-old girl between January 1, 1987 and 

May 23, 1988. The evidence at trial did not provide any additional details 

regarding the conduct that formed the basis for either of these convictions. 

Appellant notes that the conduct underlying the Louisiana convictions 

occurred approximately twenty-nine years before the trial in this case. Remoteness 

can lessen significantly the probative value of extraneous-offense evidence. See 

Gaytan v. State, 331 S.W.3d 218, 226 (Tex. App.—Austin 2011, pet. ref’d). 

Logically, the passage of time allows things and people to change. See id. Still,

remoteness alone does not require the trial court to exclude evidence of an 

extraneous offense under Rule 403. See id. Rather, remoteness 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. See id. at 226–27.

The evidence shows that appellant committed a lewd or lascivious act upon 

a ten-year-old girl about twenty-nine years before the trial and that appellant 
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committed a lewd or lascivious act upon an eight-year-old girl twenty-nine to thirty 

years before trial. The remoteness in time of these extraneous offenses weighs in 

favor of excluding the evidence of them. On the other hand, appellant was charged 

in the present cases with indecency with a ten-year-old girl and indecency with a

seven-year-old girl, and appellant concedes that “[t]he prior conviction in a similar, 

although remote, case as involved here certainly exerts an inherent probative force 

strongly serving to make more or less probable the existence of a fact of 

consequence to the litigation.” See id. at 227 (stating that trial court reasonably

could have found that evidence of similar extraneous offenses had inherent 

probative force).

4. The State’s Need for the Evidence

As to the State’s need for the evidence of the Louisiana convictions, without 

proof of them, the State’s case essentially would come down to the word of each 

complainant against appellant’s.1 See id. There was no physical evidence or 

eyewitness testimony supporting either complainant’s allegations, and several of 

the State’s witnesses (e.g., each of the outcry witnesses, the forensic interviewer, 

and the medical doctor) basically repeated what one or both of the complainants 

told them. See id.; Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—Austin 

2016, pet. ref’d). 

Appellant asserts that the State’s need for this evidence was slight because 

the State had the testimony of the outcry witnesses and Dr. Isaac’s testimony 

regarding the complainants’ answers to questions during his interview about what 

appellant had done. Appellant also asserts that the State had in its possession three 

 

1 We presume that when the trial court admitted evidence of the Louisiana convictions, appellant 

had not yet asserted any defensive theory. Nonetheless, appellant had pleaded that he was not 

guilty of each offense. 
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video recordings of interviews with each of the three children. Again, the relevant 

portions of this evidence essentially repeat all or part of each complainant’s 

account of what appellant did to them. None of this evidence changes the lack of 

physical evidence or the absence of an eyewitness testifying as to what appellant 

did to the complainants. See Gaytan, 331 S.W.3d at 227. Appellant also asserts 

that the State’s need for the evidence was slight because the responses of venire 

members to questions during voir dire show that the jurors would believe or 

strongly believe the testimony of a child that she was sexually abused. Presuming 

for the sake of argument that this is what the responses of venire members showed, 

the State posed these questions to the venire members in the abstract, and the 

responses do not change the lack of physical evidence or the absence of an 

eyewitness who could testify as to what appellant did to either complainant. See

id. We conclude that the State’s need for the evidence weighs in favor of 

admission. 

5. The Tendency to Suggest Decision on an Improper Basis 

Evidence that appellant previously committed a lewd or lascivious act upon 

a ten-year-old girl and upon an eight-year-old girl had a tendency to suggest a 

decision on an improper basis because that type of evidence is inflammatory and 

can be unfairly prejudicial. See Robisheaux, 483 S.W.3d at 220. Nonetheless, we 

note that this potential was ameliorated somewhat by the nature of the Louisiana 

convictions, the evidence of which showed sexual misconduct that was no more 

serious than the allegations forming the basis for the indictments against appellant 

in today’s case. See id.

6. The Tendency to Confuse or Distract the Jury from the Main Issues 

Appellant does not assert that the evidence of the Louisiana convictions had 
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any tendency to confuse or distract the jury from the main issues. This evidence 

was not confusing, and it was relevant to whether appellant committed the offenses 

charged in the indictments in today’s case. Thus, we conclude that this factor 

weighs in favor of admission. See Robisheaux, 483 S.W.3d at 220–21. 

7. The Tendency of the Jury to Give the Evidence Undue Weight 

Appellant does not assert that there was any tendency for the evidence of the 

Louisiana convictions to be given undue weight by a jury that was not equipped to 

evaluate the probative force of the evidence. This evidence was not confusing and 

it was relevant to whether appellant committed the offenses charged in the 

indictments in today’s case. The jury was equipped to evaluate the probative force 

of this evidence. We conclude that this factor weighs in favor of admission. See 

id. 

8. The Likelihood that the Presentation of the Evidence Would 

Consume an Inordinate Amount of Time or Merely Repeat Evidence 

Already Admitted 

Appellant does not assert that there was a likelihood that the presentation of 

the evidence of the Louisiana convictions would consume an inordinate amount of 

time or merely repeat evidence already admitted. The testimony of the fingerprintidentification expert consumed eleven pages of the reporter’s record, and the 

exhibits were not voluminous. This evidence did not duplicate other evidence 

already admitted. Nor did the evidence go into the details of the conduct on which 

either of the Louisiana convictions was based. We conclude that this factor weighs 

in favor of admission. See id. at 221. 

9. The Conclusion 

Under the applicable standard of review, we conclude that the trial court did 

not abuse its discretion in determining that a danger of unfair prejudice, confusing 
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the issues, misleading the jury, undue delay, or needlessly presenting cumulative 

evidence did not substantially outweigh the probative value of the Louisiana 

convictions evidence. See Distefano, 532 S.W.3d at 31–34; Robisheaux, 483 

S.W.3d at 217–21; Gaytan, 331 S.W.3d at 226–28. Accordingly, we overrule 

appellant’s first issue.

B. Did appellant preserve error as to his second and third issues?

During opening statements, the State told jurors that they would hear 

evidence that appellant committed the charged offenses. The State further stated 

that “this is not the first time this defendant has done something like that, and 

you’ll hear evidence about that.” In appellant’s second issue, appellant complains 

about this reference to the Louisiana convictions during opening statements and 

asserts that this reference violated appellant’s right to due process under the United 

States Constitution and his right to due course of law under the Texas Constitution. 

In his third issue, appellant complains that he was entitled to a limiting instruction 

during opening statements after the State referred to the Louisiana convictions and 

that the trial court’s failure to give a limiting instruction at this time violated 

appellant’s right to due process under the United States Constitution and his right 

to due course of law under the Texas Constitution. 

The State responds that appellant failed to preserve error in the trial court on 

each of these issues. To preserve a complaint for appellate review, a party must 

present to the trial court a timely, specific request, objection, or motion, and obtain 

a ruling. Tex. R. App. P. 33.1(a). An appellate contention must comport with the 

specific objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. 

App. 2002). Even constitutional errors may be waived by failure to object at trial. 

Broxton v. State, 909 S.W.2d 912, 917–18 (Tex. Crim. App. 1995). 

The record reflects that appellant did not voice any objection when the State 
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referred to the Louisiana convictions during opening statements. Appellant has not 

cited, and we have not found, any place in the trial court record in which appellant 

timely objected to the State’s reference to the Louisiana convictions during 

opening statements as violating his right to either due process under the United 

States Constitution or due course of law under the Texas Constitution. Appellant 

asserts that he preserved error through the same trial brief that he asserts as his 

basis for preserving error on the first issue. Nowhere in that brief does appellant 

raise any objection to any statement by the State during opening statements. 

Appellant has not cited, and we have not found, any place in the trial court 

record in which appellant (1) timely requested a limiting instruction during 

opening statements regarding the State’s reference to the Louisiana convictions or 

(2) timely objected to the trial court’s failure to give a limiting instruction during 

opening statements regarding the State’s reference to the Louisiana convictions. 

The record reflects that appellant did not timely voice in the trial court any 

of the complaints he raises in his second and third issues. We conclude appellant 

failed to preserve error as to these issues. See id. Accordingly, we overrule 

appellant’s second and third issues. 

We affirm the trial court’s judgment. 

 

 /s/ Kem Thompson Frost

 Chief Justice

Panel consists of Chief Justice Frost and Justices Busby and Wise 

Publish — Tex. R. App. P. 47.2(b).