Affirmed and Memorandum Opinion filed July 23, 2024. 

In The

Fourteenth Court of Appeals

NO. 14-23-00076-CR

NO. 14-23-00077-CR

THI NGUYEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 18-DCR-084900 & No. 18-DCR-084901 

MEMORANDUM OPINION

Appellant Thi Nguyen was convicted of the second-degree felony offenses 

of indecency with a child (trial-court cause number 18-DCR-084900; appellate 

case number 14-23-00076-CR) and sexual assault of a child (trial-court cause 

number 18-DCR-084901; appellate case number 14-23-00077-CR). See Tex. Penal 

Code Ann. §§ 21.11(a)(1); 22.011(a)(2). The jury assessed punishment at 

imprisonment for 10 years for the offense of indecency with a child and 20 years 
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for the offense of sexual assault of a child, to run concurrently. See Tex. Penal 

Code Ann. § 12.33.

In four issues, appellant challenges his conviction on appeal. He argues that 

the trial court made evidentiary errors by excluding evidence complainant was a 

commercial sex worker and admitting evidence of another alleged victim pursuant 

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

38.37. He further argues the trial court erred by excluding his objection to the

jury-charge instructions that allowed the jury to consider testimony of another

alleged victim for irrelevant purposes. Appellant also asserts he was denied 

effective assistance of counsel in the guilt-innocence stage of trial.

We affirm the judgments of the trial court as challenged on appeal.

I. BACKGROUND

Complainant Jane Doe alleged that when she was fifteen-years old her father 

began sexually abusing her. Although she testified that he had previously been her 

best friend, after moving to Houston in 2018, Jane Doe alleged that appellant

touched her genital area, specifically on one occasion when she was sleeping next 

to her father on the floor shortly after the family moved into a new home. She also 

alleged that on two separate occasions appellant sexually assaulted her by causing 

her to put her mouth on his sexual organ.

After Jane Doe made an outcry at school, appellant was arrested and charged

with indecency with a child and sexual assault of a child. At trial, Jane Doe 

testified to the allegations she made against appellant. Over appellant’s objection, 

the trial court also allowed the testimony of Jane Doe’s aunt, D.P., who alleged 

that appellant sexually assaulted her when he was visiting her family twenty years 

earlier and she was a minor.
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II. ANALYSIS

A. Exclusion of evidence regarding Jane Doe’s credibility

In issue one, appellant argues that the trial court erred by excluding evidence

in the guilt-innocence stage of trial that Jane Doe was an online commercial sex 

worker. 

Outside the presence of the jury, appellant requested the opportunity to 

examine Jane Doe about whether she was a commercial sex worker. Counsel for 

appellant told the trial court that he had a “good faith belief” that Jane Doe had a 

profile—and offered “web camming” services—on a “My Fans” website.1 Counsel 

then explained that he had reviewed Jane Doe’s bank account and concluded that 

her income was consistent with “either prostitution or somebody who’s doing 

commercial sex web camming.” Because Jane Doe testified that she worked as a 

barista, appellant asserted he was entitled to examine Jane Doe about her sources 

of income because it would be relevant to Jane Doe’s credibility and whether Jane

Doe was committing a crime of moral turpitude. The trial court did not allow 

appellant to examine Jane Doe about whether she was a commercial sex worker in 

front of the jury but told appellant he could make an offer of proof later in the 

proceedings. Appellant never made an offer of proof on this issue.

Appellant has not preserved error on this issue. See Tex. R. Evid. 103(a)(2)

(requiring offer of proof if evidence is excluded); Tex. R. App. P. 33.1(a). We 

overrule issue one.

B. Admission of D.P.’s testimony pursuant to article 38.37

In issue four, appellant argues that although the law allows the State to offer 

1 The State refers to the name of the website as an “OnlyFans.” However, the argument 

made before the trial court did not refer to “OnlyFans,” nor was there a substantive discussion of 

the website or its purpose. 
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extraneous-conduct evidence, it was error to admit such evidence because the 

evidence was substantially more prejudicial than probative. See Tex. Code Crim. 

Proc. Ann. art. 38.37; Tex. R. Evid. 403.

1. Standard of review and applicable law

We review a trial court’s ruling on the admissibility of evidence of 

extraneous offenses for an abuse of discretion. See Pawlak v. State, 420 S.W.3d 

807, 810 (Tex. Crim. App. 2013) (citing Montgomery v. State, 810 S.W.2d 372, 

391 (Tex. Crim. App. 1990 & 1991) (op. on reh’g)). We will affirm a trial court’s 

evidentiary ruling that is within the zone of reasonable disagreement and correct 

under any theory of law. See Pawlak, 420 S.W.3d at 810.

Generally, “an accused may not be tried for some collateral crime or for 

being a criminal generally.” Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. 

App. 1991) (quoting Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 

1983)). To that end, evidence of prior crimes, wrongs, or other acts that is 

otherwise relevant is typically inadmissible to show that the defendant “acted in 

accordance with the character” or had a propensity to commit the crime. Tex. R. 

Evid. 404(b) (character evidence generally inadmissible); see also Tex. R. Evid.

401, 402. However, at a trial for indecency with a child or sexual assault of a child, 

such as this one, the Code of Criminal Procedure does allow the admission of 

certain extraneous offenses. See Tex. Code Crim. Proc. Ann. art. 38.37.

Article 38.37 describes the circumstances in which certain extraneous-act 

evidence can be admitted:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and 

subject to Section 2-a, evidence that the defendant has committed a 

separate offense described by Subsection (a)(1) or (2) may be 

admitted in the trial of an alleged offense described by Subsection

(a)(1) or (2) for any bearing the evidence has on relevant matters, 
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including the character of the defendant and acts performed in 

conformity with the character of the defendant.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b).2 Before evidence of such offenses is 

admitted, the court must first “(1) 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; and (2) conduct a 

hearing out of the presence of the jury for that purpose.” Id. § 2-a. The State must 

also provide notice to the defendant of its intent to introduce evidence under article 

38.37. Id. § 3. The parties do not dispute that these statutory procedures were 

followed.

Extraneous-offense evidence is not exempt from the scope of Texas Rule of 

Evidence 403. Rule 403 states that the “court may exclude 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, 

or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. The court of 

criminal appeals has articulated a four-factor balancing test to determine whether 

unfair prejudice substantially outweighs the probative value of an extraneous 

offense under Rule 403:

(1) how compellingly the extraneous offense evidence serves to make 

a fact of consequence more or less probable—a factor which is related 

to the strength of the evidence presented by the proponent to show the 

defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury “in 

some irrational but nevertheless indelible way;”

(3) the time the proponent will need to develop the evidence, during 

which the jury will be distracted from consideration of the indicted 

2 Subsection (a)(1) lists eight specific offenses, including Penal Code sections 21.11

(indecency with a child), and 22.011(a)(2) (sexual assault of a child). Tex. Code Crim. Proc. 

Ann. art. 38.37, § 2(a)(1), (2).
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offense; and

(4) the force of the proponent’s need for this evidence to prove a fact 

of consequence, i.e., does the proponent have other probative 

evidence available to him to help establish this fact, and is this fact

related to an issue in dispute.

De La Paz v. State, 279 S.W.3d 336, 348–49 (Tex. Crim. App. 2009) (citing Wyatt 

v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)). The court also cautioned that 

Rule 403 “should be used sparingly to exclude relevant, otherwise admissible 

evidence that might bear upon 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). “[T]exas law, as well as the federal constitution, 

requires great latitude when the evidence deals with a witness’s specific bias, 

motive, or interest to testify in a particular fashion.” Id.

Although the court of criminal appeals has held that “sexually related bad 

acts and misconduct involving children are inherently inflammatory,” “the plain 

language of Rule 403 does not allow a trial court to exclude otherwise relevant 

evidence when that evidence is merely prejudicial.” Pawlak, 420 S.W.3d at 811 

(citing Tex. R. Evid. 403). “Indeed, all evidence against a defendant is, by its very 

nature, designed to be prejudicial.” Pawlak, 420 S.W.3d at 811. Rather, Rule 403 

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

substantially outweighed by a danger of . . . unfair prejudice[.]” Tex. R. Evid. 403

(emphasis added); see Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App.

2002) (trial court abuses its discretion in admitting otherwise relevant and 

admissible testimony “only if the danger of unfair prejudice substantially 

outweigh[s] the probative value of [the] testimony”). 

2. Trial court did not abuse its discretion

Appellant argues that the trial court erred in admitting D.P.’s testimony 
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because it was inherently inflammatory and the probative value of her testimony 

was minimal. Appellant argues D.P.’s testimony addressed allegations remote in 

nature and dissimilar to those allegations made by Jane Doe. The State responds 

that the testimony was properly admitted and that, although prejudicial, D.P.’s 

testimony established appellant’s propensity to “prey upon young, teenage family 

members.” The State also argued that it needed D.P.’s testimony to rebut 

appellant’s defensive theory that Jane Doe made up her claims against appellant as 

revenge or retaliation.

The opinion of the court of criminal appeals in Wheeler v. State is 

instructive. 67 S.W.3d at 886–89. Wheeler was indicted for aggravated sexual 

assault of a child who was his daughter’s friend. Id. at 880. He presented various 

defensive theories at trial, including that the complainant had “made up” the 

allegations against him for profit, and that he lacked opportunity because he was 

never alone with the complainant or, alternatively, it was impossible to commit the 

offense “in a room full of people.” Id. at 887. At trial, the State called Wheeler’s 

niece to testify about an incident nine years earlier, when she was six years old, 

during which Wheeler inappropriately touched her in a “very similar” manner as 

he had touched the complainant: underneath her clothes while family members 

were nearby. Id. at 886–87. 

The court determined that the niece’s testimony was relevant to rebut 

Wheeler’s defensive theories, including by showing that the complainant was not 

motivated by greed in her allegations that Wheeler had sexually assaulted her. Id. 

at 887. “Extraneous sex offenses were and are still admissible if they fall into one 

of the proper ‘exceptions’ to the ‘general rule’ barring their admission.” Id. 

(citation omitted). The court further “recognized that in prosecutions for sexual 

offenses, a successful conviction ‘often depend[s] primarily on whether the jury 
8

believe[s] the complainant, turning the trial into a swearing match between the 

complainant and defendant.’” Id. at 888 (citation omitted). The niece’s testimony 

described an incident “quite similar to the charged event,” and it “provided, at a 

minimum, the ‘small nudge’ towards contradicting [Wheeler’s] defensive theories 

and towards proving that the molestation did indeed occur.” Id. (quoting 

Montgomery, 810 S.W.2d at 381). The court held that the trial court did not abuse 

its discretion in admitting the niece’s testimony under Rule 403. Id. at 889.

Here, appellant’s defensive theory was that the conduct and offenses alleged 

by Jane Doe were invented. Appellant tried to paint Jane Doe as a troubled 

teenager, who “lied with the precision of an adult.” He attempted to discredit her 

testimony by arguing that he never committed any of the alleged acts and that her 

allegations were intended to punish appellant for his parenting decisions. D.P’s 

testimony that she was abused by appellant is relevant to rebut appellant’s

defensive theory that complainant invented her allegations against appellant. See

Wheeler, 67 S.W.3d at 887; see also De La Paz, 279 S.W.3d at 348–49 (stating 

first factor of Rule 403 balancing test). It is also evidence of appellant’s character 

and propensity to act in conformity with his character, namely that he has a 

propensity to sexually abuse teenage women. See Tex. Code Crim. Proc. Ann. art.

38.37, § 2(b). Although the single incident described by D.P. occurred 

approximately 20 years before the offenses on trial, her testimony provided a

“small nudge” towards contradicting appellant’s defensive theories and in

supporting Jane Doe’s testimony that the abuse did occur. See Wheeler, 67 S.W.3d 

at 888. D.P.’s testimony did not take an inordinate amount of time at trial or 

distract the jury. While the testimony from D.P. was inflammatory, it was relevant 

to allegations against appellant and the State needed the evidence to rebut

appellant’s defensive theory and demonstrate complainant’s credibility.
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We conclude that the trial court did not abuse its discretion in admitting the 

extraneous-offense testimony from D.P. See Tex. R. Evid. 403; see also Hammer, 

296 S.W.3d at 562; Wheeler, 67 S.W.3d at 889.

We overrule issue four.

C. Jury instruction

In issue two, appellant argues the trial court erred by overruling his objection 

to the jury charges which permitted the jury to consider D.P.’s testimony to 

determine his “motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.”3 Tex. R. Evid. 404(b)(2). Character 

evidence is admissible under Texas Rule of Evidence 404(b) if it supports the 

foregoing permitted uses. However, appellant argues that the specifically identified

uses were irrelevant and the instruction was erroneous because it directed the jury

to consider irrelevant matters.

1. Standard of review and applicable law

A claim of jury-charge error is reviewed in two steps. See Cortez v. State, 

469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether there is 

error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If 

we find error, then we analyze that error for harm. Id. If a defendant does not 

properly preserve error by objection, any error in the charge “should be reviewed 

only for ‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513 

(Tex. Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1985)).

Code of Criminal Procedure article 36.14 provides that the trial court “shall 

3 Although the jury received two separate jury charges—one for the offense of indecency

with a child and one for sexual assault of a child—both written charges contained the identical 

language objected to by appellant.
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. . . deliver to the jury . . . a written charge distinctly setting forth the law 

applicable to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14. “The purpose of 

the jury charge is to inform the jury of the applicable law and guide them in its 

application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. 

Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.

1996)). 

2. The charges

As it relates to the testimony of D.P., both jury charges contained the 

following instruction:

You are further instructed that if there is any testimony before 

you in this case regarding the Defendant having committed a separate 

offense against another child victim, you cannot consider said

testimony for any purpose unless you find and believe beyond a 

reasonable doubt that the Defendant committed the separate offense, 

and even then you may only consider the same for the following

purposes:

1) to determine the Defendant’s motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident; or,

2) to determine the character of the Defendant and acts 

performed in conformity with the character of the Defendant.

Appellant concedes that the instruction in subpart 2 properly limited the jury’s 

consideration of D.P.’s testimony pursuant to article 38.37. Tex. Code Crim. Proc. 

Ann. art. 38.37 (“evidence that the defendant has committed a separate offense . . . 

may be admitted in the trial of an alleged offense . . . for any bearing the evidence 

has on relevant matter, including the character of the defendant and acts performed

in conformity with the character of the defendant.”). However, appellant argues 

that the instruction in subpart 1, was erroneous because it instructed the jury to 

consider D.P.’s testimony for irrelevant matters: motive, opportunity, intent, 
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preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

At the charge conference appellant objected to subpart 1 because “it gives 

the jury an opportunity to consider the evidence for things that aren’t relevant in 

this matter.” The State responded that the Rule 404(b) language was appropriate in 

the charges because the jury was entitled to consider D.P.’s testimony for the 

“normal lawful purposes and the 38.37 purposes.” In essence, the State argues that 

the Rule 404(b) language was appropriate to clarify that the jury could consider 

D.P.’s testimony for all purposes including character conformity and that subpart 1

was needed because language of article 38.37 begins with “Notwithstanding Rule[] 

404.” However, the State never responded to the part of appellant’s objection that 

the instruction in subpart 1 was not raised by the evidence. Neither in the trial court 

nor on appeal does the State offer an explanation of why D.P.’s testimony was

relevant to appellant’s motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident with respect to the charged

offenses.

Because the jury instruction unnecessarily called attention to D.P.’s 

testimony for an irrelevant purpose, we conclude the limiting instruction was 

erroneous. 

3. Harm

“[E]rror which has been properly preserved by objection will call for 

reversal as long as the error is not harmless.” Almanza, 686 S.W.2d at 171.

Therefore, we review the record to evaluate whether defendant “suffered some 

actual, rather than merely theoretical, harm from the error.” Warner v. State, 245 

S.W.3d 458, 462 (Tex. Crim. App. 2008). The harm analysis requires 

consideration of (1) the jury charge as a whole, (2) the arguments of counsel, 

(3) the entirety of the evidence, and (4) other relevant factors present in the record.
12

Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

Appellant argues that he suffered some harm from the error. First, appellant 

argues that the admission of extraneous offenses is inherently prejudicial and 

necessarily caused some harm to him. However, appellant’s claim of error here is 

not with admission of the evidence, but with the limiting instruction in the jury 

charges. Appellant next argues that the overly broad instruction improperly 

expanded the permissible reasons for which D.P.’s testimony should have been 

considered by the jury. 

The breadth of article 38.37, which allows the jury to consider evidence of 

extraneous offenses and acts of an other “relevant matter,” certainly includes and 

subsumes motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident with respect to the charged offense.4 While

there was nothing in the record suggesting that D.P.’s testimony supported any of 

these purposes, there is also nothing in the record that indicates any harm resulted 

from the jury’s possible consideration of D.P.’s testimony for purposes of motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident with respect to the charged offense. Therefore, the jury charges

weigh against a conclusion that appellant was harmed.

The arguments of counsel similarly do not reflect any harm to appellant. The 

State referenced D.P.’s testimony with respect to appellant’s character: “That’s the 

kind of person that this defendant is. That’s the kind of person this defendant

4 There is no restrictive rule regarding the admission of evidence relating to a criminal 

defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident with respect to the charged offense. Tex. R. Evid. 401 (evidence is 

relevant if “it has any tendency to make a fact more or less probable than it would be without the 

evidence”). Rule 404(b) is an exception to the general prohibition of evidence about crimes, 

wrongs and other acts, but it is not applicable here as D.P.’s testimony was admitted based on 

article 38.37 which allowed the jury to consider D.P’s testimony as to appellant’s character, as 

well as any other “relevant matter.”
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always has been. And when someone shows you who they are repeatedly, you 

should believe them.” The State’s argument asked the jury to use D.P.’s testimony 

as character evidence, and nothing else.

The evidence similarly weighs against the conclusion of harm. D.P’s 

testimony played a relatively small part at appellant’s trial. As discussed above, 

D.P.’s testimony addressed only an alleged incident between D.P. and appellant

that occurred approximately 20 years earlier. Her testimony offered relevant 

information as to appellant’s character and did not have any tendency to make any

fact relating to appellant’s motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident with respect to the 

offenses against Jane Doe any more or less probable.

With no other relevant factors in the record and the three applicable Almanza

factors weighing against a conclusion of harm, we conclude appellant was not 

harmed by the inclusion of a jury instruction not raised by the evidence.

We overrule appellant’s issue two.

D. Ineffective assistance of counsel

In issue three, appellant argues that he received ineffective assistance of 

counsel because his trial counsel did not request an appropriate limiting instruction 

for D.P.’s testimony both before she testified and in the jury charges.

Evaluating claims of ineffective assistance of counsel under the Sixth 

Amendment involves a two-pronged test: (1) whether counsel was deficient and 

(2) whether the defendant suffered prejudice as a result of counsel’s error. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a 

“defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.
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at 694. In assessing prejudice, courts “must consider the totality of the evidence 

before the judge or jury.” Id. at 695.

In his motion for new trial, the appellant complained that defense counsel 

did not: (1) request a limiting instruction before D.P. testified and (2) request a

narrow, tailored instruction to be included in the jury charge limiting the use of 

D.P’s testimony specifically to character evidence, and not for any other purpose. 

At the hearing on the motion for new trial, appellant’s trial counsel stated that he 

was aware D.P.’s testimony should have been subject to a limiting instruction, but 

because the trial court stated it would provide an appropriate instruction,

appellant’s trial counsel did not follow up. He admitted it was an oversight. With 

respect to the jury charge, trial counsel stated that he objected to the charge

because of the inclusion of the Rule 404(b) language. However, he did not file or 

request a specific instruction with the trial court limiting the jury’s consideration of 

D.P.’s testimony to character-evidence purposes only. 

We need not decide whether trial counsel’s oversight in not requesting the 

limiting instructions described above was deficient. Even if trial counsel were 

deficient, appellant must also show prejudice, which he cannot on this record. We 

have already concluded that the error in the jury charges, which allowed the jury to

consider D.P.’s testimony for irrelevant purposes did not harm appellant. The jury 

charges did contain an instruction that limited the jury’s consideration of D.P.’s 

testimony. Payton v. State, 830 S.W.2d 722, 730 (Tex. App.—Houston [14th Dist.] 

1992, no pet.) (“Even if the trial court erred in failing to give a limiting instruction 

when the evidence was offered, the error was cured by the inclusion of a proper 

limiting instruction in the charge.”). Further, the jury received testimony from Jane 

Doe and D.P. regarding their allegations against appellant. Both witnesses 

presented strong testimony against appellant, which the jury found credible as 
15

evidenced by their finding of appellant’s guilt. The more-tailored instruction that

appellant suggests his trial counsel should have requested would still have

permitted the jury to consider D.P.’s testimony for purposes of determining 

appellant’s character, which was the only probative purpose it offered at trial.

Given the ample evidence against appellant, an instruction limiting D.P’s 

testimony to character-evidence purposes would not have had any effect on the 

outcome. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (failure to request 

limiting instruction about earlier acquittal or conviction was not reasonably likely 

to have made any difference in outcome).

We overrule issue three.

III. CONCLUSION

Having overruled appellant’s four issues, we affirm the judgments of the

trial court as challenged on appeal.

/s/ Charles A. Spain

Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

Do Not Publish—Tex. R. App. P. 47.2(b).