Affirmed a nd M emorandum O pinion filed Ju ly 2 3 , 2 02 4

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 23

- 00076

- CR NO. 14

- 23

- 0007 7- CR

THI NGUYEN, Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 400th District Court Fort Bend County, Texas Tria l Co ur t Cause No. 18

- DCR

- 084900 & No. 18

- DCR

- 084 90 1

MEMORANDUM OPINION Appell ant Thi N gu yen was convicted of the second

- degree felony offenses of indecency with a child (trial

- court cause number 18 -DCR- 084900 ; appellate

case n umber 14

- 23

- 00076 -CR) and se xual a ss ault of a child (trial- court cause number 18

- DCR

- 084 90 1 ; appellate case n umber 14

- 23

- 0007 7-CR)

. See Tex. Penal Code Ann. § § 21.11(a)(1); 22. 011(a)( 2)

. The j ury assessed punishment at imprisonment for 10 year s for t he of fense of indecency with a ch i ld and 2 0 year s2 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 ar gues that the trial court ma de evidentiary errors by excluding e viden c e compl ainant was a commercial sex worker and admitting evidence of another alleged victim pursuant
to Code of Criminal Procedure article 3 8.37

. See Tex. Code Crim. Proc. An n. art. 38.37

. He further argues t he trial court erred by ex cluding his obje ction t o the jury

- charge instruction s that allowe d the jury to consider testi mony of another all eged victim for irrel evant purpo ses . Appellant also as serts he was denied effective assistance of counsel in the guilt

- innocence stage of trial

. We affirm the j u dgment s of the trial c ourt as challenged on ap peal.

I. B ACKGROUND
C omplain ant Jane Doe alleged that when s he was fifteen

- years ol d her father began sexually abusing her. Although she testified that he had previously been her best friend, after moving to Houst o n in 2018 , Ja ne Doe a lleged that appellant
to uched her gen ital area , specifically on one occasion whe n she was sleeping n ext to her father on the floor shortly after the family m oved into a new home . She also alleged that on two separate occasions appella n t sex ually assaulted her by causing her to pu t her m o uth on his sexual organ

. After Jane Doe made an outcry at school , appell an t was arrested and charge d with indecency with a child and sexual assault of a child

. At trial, Jane Doe testified to the alleg a tions she made again s t appellant . Over appell ant ’ s objection, the trial cour t also allowed the testimony of Jane Doe ’ s aunt , D.P., who alleged that appellant sexually assaulted her wh en he was visiting her family tw ent y years earlier and she was a minor.3 II. A NALYS IS
A. Exclusion of evidence regarding Jane Doe ’ s credibility In issue one, appe llant argues that the trial court erred by excluding evi dence in the guilt

- innocence stage of tri al that Jane Doe was an online c ommercial sex

wo r ker

. Outside the presence o f the ju ry, ap pellant requested the opportunit y 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

— o n a “ M y Fans ” website. 1 Counsel then ex plained that he had reviewed Jan e Doe ’ s bank account and conclude d that her income was consistent wi th “ either prostitution or someb o dy who ’ s doing

com mercial sex web camming. ” B ecause Jane Doe test ified that she work ed as a barista, appellant asse rted he was ent itled to examin e Jane Doe about her sources of income because it w ould be relevant to Jane Doe ’ s credi bility and whether Jane Doe was committing a crime of moral turpitude. The trial court did not allow appella nt to examine Jan e Doe about whether she was a commercia l sex worker in front of the jury but told appellant he could make an offer of proof later in the proceedings

. Ap p ell ant never made an offer of proof on this issue. Appellant ha s not preserved error o n this issue. See Tex. R. E vid. 103(a) ( 2) (req uiring offer of proof if evidence is excluded) ; Tex. R. App. P. 33.1(a). W e overrule issue one.

B. Admission of D.P. ’ s testimony pursuant to article 38.37
In issue four , appellant argu e s that although the law al lows t he Stat e to offer

1 The State r efers to the name o f the website as an “ OnlyFans

. ” However, the argument made before the trial court did not refer to “ OnlyFans , ” nor w as there a substa ntive disc u ssion of the web site or i t s purpose.4 extr an eous
- co nduct ev i dence , it was error to admit such evidence becaus e the evidence was substantially more prejudi c ial th an probative

. See Tex. Code Crim. Proc. An n. art. 38.37 ; Tex. R. E vid. 403.

1. Standard of review and applicable law

W e review a t rial cour t ’ s ruling on t he a dm iss ibility of evidence of extraneous of fenses f or an abuse of discretion. See Pawlak v. State , 420 S.W.3d 807, 810 (Tex. Cri m. App. 2013) (c it ing Montgomery v. Stat e , 810 S.W.2d 372, 391 (Tex. C rim. App. 1990 & 199 1 ) (op . on reh ’ g)) . We will affi rm a tri al cour t ’ s

ev ide ntiary ruling that is with in the zon e of reasonable disagreement and correct under any theo ry of law. Se e Pawla k , 420 S.W .3d at 810

. Ge nerally, “an ac c used may not be tried for some collateral c rime o r for being a criminal gene rally.” S taff ord v. St at e , 813 S. W.2d 503, 506 (Tex. Crim. App. 1991) (quoting Williams v. State , 662 S.W.2d 344, 346 (T ex. Crim. App

. 1983) ) . To that end, eviden ce of prior crime s , wrongs, or other acts that is otherwise r elevan t is t ypically inadmissible to show that the defe nd an t “ a cte d in accordance with the character ” or had a propensity to commit the crime. Tex. R. Ev id. 404(b) (c haracter evidenc e generally i n admissible ) ; see al so Tex. R. Evid. 401, 402 . However, at a trial for indecency with a child or sexual ass ault of a child , such as t hi s on e, the Code of Criminal Procedure does allow the admission of certain extraneous offen se s. See Tex. Code Crim. Proc. Ann. ar t. 3 8 .37.

A rticle 38.37 describ es the circumstanc es in which certain extraneous

- act evi dence can be admitted:
Notwi thstanding Rule s 404 and 405, Te xas Rules of Evidence, and
s ubject to Section 2

- a, evidence that the de fe ndant has committed a separate offen se d e scrib e d by Subsection (a)( 1) or (2) may be
a dmitt ed in the trial of an alleged off ense describe d by Subs ection (a)(1) or (2) fo r an y b earing t he eviden ce has on relevant matters,5 including the character of the def en dant and acts performed in conformit y wi t h the character of the def endant.
Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). 2 Before eviden ce of suc h o ffenses is admi tt ed, the court m ust first “( 1) determine tha t the evidence likely to be admitted at trial wi ll be adequate to support a findi ng by the jur y t hat the defenda nt committed the s e parate offens e beyond a reasonable doubt ; and (2) con duct a he ari ng out of the p re senc e o f the ju ry for that purpose.” Id. § 2

- a . The State must also provide notice to the d efenda nt of its intent to introdu ce evidence u n d e r article 38.37

. Id. § 3. T he parties do not di spute that these statutory procedures we re follow ed.

Extraneous

- off en se e vid ence is not exempt f ro m the scope of Texas Rule of Evidence 403 . Rule 403 states tha t the “court may exclude relevant evidence if i t s probative value is substantially outw eig hed by a danger of one or more of the followin g: unfair pr ejudice, confus in g th e i ssues, misleading th e jury, und ue de lay, or needlessly presenting cumulative evidenc e.” Te x. R. Evid. 403. The court of criminal a p p e als has articulated a four

- factor balanc i ng te s t to determine whether unfa ir prejudice substanti all y outweighs the p roba tiv e value of an extran eous of fense und er Rule 403: (1) how compellingly the extraneous offen se evidence serves to make a fact of con s e q uence more or less probable

— a fact or whi c h is r elated to the strength of t he evidence p resented by the proponent t o show th e defendant in fact committ ed the ex traneous offense; (2) the potential the other of fense evidence has to impress the jury “in
som e i rrational but nevertheless indelib le way ; ” (3) the time the proponent will need to deve lop the e vid ence, during wh ic h th e j ury will be distract ed from consider ation of the indicted

2 Subsect ion (a)(1) lists eight specific offenses, in cluding Penal C ode se ctions 21. 11 (indecency with a child), a nd 22.0 11 (a)( 2 ) ( sexual assault of a child). Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a)(1), (2).6 offense; and (4) the force of the proponent ’ s need for this evidence to pro ve a fact of consequence, i.e. , do es the propon ent have other probative
ev idence availa ble to hi m t o help establis h this fa ct, and is this fact relate d to an i ssue in dispute.
De La Paz v. State , 279 S.W.3d 336, 3 48

– 49 (Tex. Crim. App. 2009 ) (citing Wya tt

v. State , 23 S.W.3d 18, 26 (Tex. C rim. A p p. 200 0))

. The court also caution ed that Rule 403 “shou ld be used sparing ly to exc lude relevant, otherwise admissible evidence that might bear upon the credi bil ity of eithe r the defendant or complain ant in such ‘ he said, she said’ cases.” Hammer v. State , 296 S. W.3d 555, 56 2 (Tex. Crim. A pp. 2009) . “ [ T] exas la w, as well as the fe de ral con stitutio n, require s great latitude when the evidence deals with a witness ’ s specific bia s, motive, or interest to testify in a p art icular fashion.” Id. Although the court o f crim inal appeals has held that “sexually rel ated bad
acts and misconduct in volving childre n are inhe rently inflammatory,” “the plain language of Rule 403 does not a llow a trial court to exclude otherwise r eleva nt evidence when t ha t evidence is merely pre judici al.” Pawlak , 420 S.W.3d at 811 (citing T ex. R. Ev id. 4 03 ) . “Indeed, a ll eviden ce again st a defen dant is, by its ve ry nature, designed to be prejudicial.” Pawlak , 420 S.W.3d at 811 . Rather, Rule 4 03 onl y autho rizes a court to “exclude releva nt evide nc e if i ts probative value i s substantially outw eighed by a danger of

. . . u nf air prejudice [.] ” Tex. R. Evid. 403 (emphasis added); se e Wh eeler v. State , 67 S .W.3d 879 , 888 (Tex. Crim. App. 2002) (trial court abus es its discretion in ad mitt ing otherwise rel evant and admissible testimony “ o nly if the da nger of u nfair prejudice substantially outweigh[s] the p robativ e valu e of [the] testimony” ).

2. Trial court did not abuse it s di s cretion Appellant argues that the trial cour t erred in adm itting D. P. ’ s testimony7 becaus e it was inherently inflam matory and the proba tive valu e of her testimony was minimal. Appellant argue s D.P. ’ s testimony addressed allegations rem ote in nature and dissimilar to those allegations made by Jane Doe

. T he State responds that the testimony was pr operly admitte d and that , alt hough prejudici al , D.P. ’ s testimony established appellant ’ s pro pensity to “ prey upon young , teenage family

m embers

. ” The State also argued that it needed D.P. ’ s tes timony to rebut

ap pellant ’ s defensive theory that Jane Doe ma de up her claims against appellant as revenge or retali ation.

T he opinion of the c ourt of criminal ap peals in Wheeler v. S ta t e is instruc tive. 67 S.W.3d at 886

– 89. Wheeler was indicted f or a ggravated sexual

assa u lt of a child who was his daugh ter ’ s friend

. Id

. at 880. He p resented various defensi ve t he ori es a t trial, inc luding that the complainant had “ma de up” the alleg at ion s against him for profit, and that he lacked opportunity becaus e he was never alone with t he compl ainant or, alternativel y, it was im po ssible to commit the offense “in a room full o f p eopl e.” Id . at 8 87. At tria l, the State called Whee ler ’ s niece to t es tif y about an incident nine years earlier, when she was six years o ld, during which Wheeler i nappropr iately touched her in a “very simil ar ” manner as he h ad touched the complaina nt: under neat h her clo thes while fam ily members were nearby. Id . at 886

– 87

. The court de termined that th e niece ’ s testimony was relevant to reb u t Wheeler ’ s defensive the o ries, in cluding by showing th at the complai na nt wa s not
mot ivate d by greed in her a llegat ions that Wheeler had sexually assaulted her. Id

. at 887

. “ E xtraneous se x off enses we re and are still admissible if they fall into o ne of th e proper ‘e xceptions’ to t h e ‘gener al rule’ barring thei r admission.” Id

. (citation omitted). T he court furth er “recog nized that in prosecutions for sexual offenses, a suc ce ssful convi ct ion ‘often depend [s] primarily on wh ether the jury8 believe[s] t h e complainant , turning th e trial i nto a swearin g match between the

co mplai nan t and defendant.’ ” Id

. at 888 ( citatio n omitted ). The niece ’ s testi mony described an incident “quite simila r to the char ge d event,” and it “provided, at a mi nimum, the ‘small nud g e’ towards contradicting [ Wheeler ’ s] defensive theorie s and towards p roving th at the molestation did indeed occur.” Id . (quo ting Montgomery , 810 S.W.2d at 381)

. The court held that the t rial c ourt d i d not abuse its discretion in admitting the niece ’ s test i mony under Rule 403. Id

. a t 889.

H ere, appellant ’ s defens ive th eory w as that t he conduct and offenses alleged by Ja ne Doe we re invented. Appellant tried to paint Jane Doe as a troubled teenager, who “ lied with the precision of an ad ult. ” H e attempted to discredit her testimony by a rgui ng that he never committed any of the a lleged ac ts and that her allegations were inte nded to p u nish appellant for his parenting de cisions. D. P ’ s
test imony that she was abus ed by appellant is relevant to rebut appellant ’ s defensive theory that c omplain a nt in ve nted her allegations against appel lant

. See W heeler , 67 S.W.3d at 88 7 ; see also De La Paz , 279 S. W.3d at 348

– 49 (stating first factor of R ule 403 balan cing t est). It is also evidence of appellant ’ s character and propensity to a ct in conformit y with his character, namely that he has a
prope ns ity to se xually abuse teenage wo men

. See Tex. Code Cri m . Proc. Ann. art. 38.37 , § 2(b). Although the s ingle incident des cribed by D.P. occurred
app roximately 20 years before the offenses on trial , her test i mony pr ovide d a

“ small nudge ” towards contradictin g ap pella nt ’ s defens ive theories and in
suppor ting Jan e Doe ’ s testimony that the abuse did occur

. See Wheeler , 6 7 S.W.3d
at 8 88

. D. P. ’ s tes timony did not take an in ordinate amoun t of time at trial or distr a ct the j ury. While the test imony from D.P. was inf lammatory , it was relev ant to allegations agai nst appel lant and the State neede d t he evidence to rebut
app ellant ’ s defensive theory and demonstrate co mplainant ’ s credi b ility.9 We conclude that the trial co u rt d id not abuse its discretion i n admi tting the

e xtraneous

- offense testi mony from D.P. See Tex. R. Ev id. 403 ; see also Hamme r , 296 S.W.3d at 56 2 ; W heel er , 67 S .W.3d at 889

. We overrule issue four

. C. Jury instruction In issue two, appellant argues th e trial court erred by overruling his objection to the jur y charge s which permitted the jury to consider D.P. ’s t esti mony to determin e his “ motive, op portunity, 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 R ule of Evidence 404 (b) if it supports the foregoin g permitt ed uses. However, appellant argue s that the spe cifically identified

uses were irrelevant and the instruc tion was erroneous because it directed the jur y to consider irrelevant mat ter s

. 1. Standard of revi ew and applicable law

A c laim of jury

- charge e rror is r eviewed in two steps. See Cortez v. State , 469 S.W.3d 593, 598 (Tex

. Crim. App. 2015). We fi rst determin e whether there is error in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 20 05). If we fin d error, th en w e analyz e that error for harm. Id

. I f a def endant does not properly pre serve er ror by obj ect ion , any erro r in the cha rge “ should b e re viewed only for ‘ e gre gious harm ’ under Alma nza

. ” Madden v. St ate , 242 S.W.3d 504, 513 (Tex. C rim. Ap p. 2007) (citing A lm an za v. St ate , 686 S. W. 2d 157, 1 71 (Te x. C rim

. App. 1985) )

. Code of Criminal Pr ocedure article 36.14 provid es that t h e trial court “shal l

3 A l though the jury received t w o separate jury charges

— one for the offense of indecency with a child and one fo r sexu al assault of a child

— both written charg es contained the identical lan guage objecte d to by appellant.10 . . . deliver to the jury

. . . a written ch a rge distinctly setting forth the law applicabl e t o the case[.]” Tex. Co de C r i m. Pro c. Ann. art. 36.14. “T he purpose of the jury charge is to inform the jury of the applicable law a nd guide t he m in its applicat ion to the case

. ” Beltran De La Torre v. State , 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (q uot i ng Hutch v. State , 92 2 S. W

. 2d 166 , 170 (T ex. C rim. App. 1996)).

2. The charge s
As it relates to the test imony of D.P., both jury charge s contained the following inst ruction :
You are further instructed that i f there is any testimony before yo u in this cas e re gard ing the Defendant having comm itted a separ ate offen se against another child victim, you cannot con sider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Def e ndant committed the separate offe nse, and even the n yo u may only consider the same for the follo wing purp oses: 1) to determine the Defendant ’ s motive, o pportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident; or , 2) to determine the character o f the Defendan t an d a cts performed in conformity wi th the charac ter of t he Defendant.
A ppellant concedes that the instr uction in subpart 2 properly lim ited the jury ’ s consideration of D.P. ’ s testimony pursuant to article 3 8 .37

. Tex. Code Crim. Proc. Ann. art. 3 8.37 ( “ e vide nce that the defendant has commit ted a separ at e offens e

. . . may be admitted in the trial of an alleg ed offense . . . for any bearing the evidence has on relevant matter, including the character of the de f endant and acts performed in conformity with t he c haracter of the defend ant. ” ). Ho w ever, appel la nt argue s that the instruction in subpart 1, was erroneo us because it instructed the jury to

c onsider D.P

. ’ s testimony for irrelevant matters : motive, op portun i ty, intent,11 preparation, plan, knowledge, ide n tity , absence of mistake, or lack of accident

. At the cha rg e confere nc e appellant ob jected to subpart 1 b ecause “ it gives the jury an opportunity to consider the evidence for things that aren ’ t relevant in th i s matter

. ” The State responded that the Rule 4 04 (b ) language was appropriate in the cha rge s beca use the jury was entit led to consider D.P. ’ s testimony f or 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 jur y could consider
D.P. ’ s testimony for all purp oses in c luding ch aracter conf ormity and that subpart 1 was needed because language of article 38.3 7 be gins with “ Notwith standing Rule [] 404. ” However, th e S t ate never r esponded to the part of appellant ’ s ob j ection that the instruction in su bpart 1 was n ot raise d by the evidence. Neither in the trial court

no r on appeal does the State offer an explanation of why D.P

. ’ s testimony was relevant to appel lant ’ s mot i ve, op portunity, intent, prepara tion, plan, knowl e dge, identity, absence of mistake , or lack of accident with respect to the charged offense s

. Bec a use the jury instruction unnecessarily call ed attention to D.P. ’ s testimony for an irrele vant p urpose , we c o nclude the limiting instr uction w as

erroneous.
3. H a rm

“ [E ] r ror w h ich has be en proper ly p reserved b y objec tion wi ll c all for reversal as long as the error is not harmless. ” Al manza , 686 S.W.2d at 171

. Th erefore, we review the r ecord to evaluate whether def e n dant “suffered some
actua l, rather th an merely th e ore tic al , har m from the er ror .” W arne r v. Sta t e , 245 S .W.3d 4 58, 462 (Tex. Crim. App. 2008)

. The harm analysis requires consider ation of (1 ) the ju ry c harge as a whole, (2) th e arguments of counsel, (3) t h e entirety of the evidence , and (4) ot her relevant fac tor s prese n t in the r ec ord.12 Re eves v. Stat e , 420 S. W.3d 81 2, 816 (Tex. Crim. App. 2013)

. Appellant argues that he suffered som e harm from the error. First, appellant argues that the admission of extrane o us offens es is i nherently prejudicial and

necessa r il y caused some harm to him. Howeve r, appellant ’ s c laim of error here is not with admission of the evide nce, but with the limiting instruction in the jury charge s

. Appellant next argues that the overly broad instr uction im properly
exp anded t he permissible re asons for which D.P. ’ s testimony should have b een

cons i dered by the j ury.
The breadth of article 38.3 7 , which allows the jury to consider evidence of
extraneous offenses and acts of an other “ relevant mat t er, ” certainly includes and subsumes mo tive, op por tunity, intent, preparation, plan , knowledge, identity , absen ce of mistake, or lack of accident with r espect to the charged offense. 4 While there was nothing in the record suggesting that D.P. ’ s testimony s upported any of the se purposes , there is also n oth ing in the record that indicates any harm resu lted fro m the jury ’ s possibl e consideration of D. P. ’ s te stimony for pur poses of mo tive,
op portunity, intent, preparation, plan, knowledge, identity, absen ce of mistake, or lack of accident with respect to th e c harged offense . Therefore, the ju ry charge s

we igh agai nst a conclusion that appellant was harmed.
The arguments o f counsel similarly do not reflect any harm to appellant. The State referen ced D.P. ’s testim o ny with respe ct to appellant ’s ch ara cter: “ That ’ s the kind of person that this defe ndant is. Tha t ’ s the kind of person this defendant

4 There is no restrictive rule regarding the admission of evidence r elating to a criminal defendant’s motive, opportunity, intent, p reparatio n, plan , know ledge, identity, absence of mistake, or lack of accident with respect to the charged offense. Tex. R. Evid. 401 (evidence is relevant if “it h a s any tendenc y to make a f a ct more or less probable than it would be without the evidence”) . Rule 40 4(b) is an ex ception to the general prohibition of ev idence about crimes, wrongs an d other acts , but it is not applicable here as D.P.’s testimony was admi t ted based on
a rticle 38.37 which allowed the jury to consider D.P’s testimony as to appellan t’s char acter, as wel l as any other “relevant matter.”13 always has been. A nd when someone shows you who they are repeat edly, you should believe them. ” The State ’ s argument ask ed t he jury to use D.P. ’ s testimony as ch aracter e vide nce, an d nothing else

. The eviden ce similarly weighs a gainst the conclusion of harm. D.P ’ s testimony p layed a relativel y small part at a ppellant ’ s t rial . A s discussed above,
D.P. ’ s testimony addressed only an alleged incident between D.P. and appellan t tha t occu rred approximately 20 years earlier. Her tes timony offered re levant information as to a ppellant ’ s character and did not have any te ndency to make any fact relating to appellant’s mo tive, o p portunity, intent, preparation, plan, knowledge, identit y , absen ce of mistake, or lack of accident wit h re spect to the offenses against Jane Doe any more or less probable

. With no other relevant factors in the record and t he three applicable A lmanza factor s weighing against a conclusion of harm , we co nclude app ellant was not harm e d by th e inclusion of a jury instruction not rais ed by th e evidence

. We overrule appellan t ’ s issue two.

D. Ine ffective assistance of counse l In issue three, a ppellant ar gues that he received ineffec tive assistance of counsel because his tr ial counsel did not request an appropriate limiting instruction for D .P

. ’ s te stimony both before she testified and in the j ury charge s

. E valuating claims of ine ffe ctive assistance of counsel under the Sixth Amendment involves a two

- pronged test: ( 1) whethe r co u ns el was deficient and (2) whether the def endant suffered pr ejudice as a r esult of counsel ’s error. Str ick land v. Washington , 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show that there is a reasonable probabi lity that, but for co u nsel ’ s unprofessional errors, the result of the pr oceeding would have been different.” Id

.14 at 694 . In as ses sing prejudi ce, courts “must consider the totali ty of the evidence before the judge or jury.” Id

. at 695

. In his motion for new trial, the appell ant complained that defense counsel did not : (1) reque st a limiting instruction before D.P . t estified and (2) request a

narrow , tailored instruction to be in cluded in the jury charge limiting the use of
D.P ’ s testimony specific ally to character evidence, a n d not for any other purpose. At the hearing on the motion f or new trial, appellant ’ s trial c ounsel s tated th at he

was aware D.P. ’ s testimony should have bee n subject to a limiting instruc tion, but be cause the trial court stated it would provide an appropr i a te instruction , appellant ’ s tr ial counsel did not follow u p . He admitted it was an oversigh t. With
resp e ct t o the jur y charge , trial counsel stated that he objected to the charge because of the inclusion of the Ru l e 404(b) l anguage. However, he did not f i l e or request a specific instruction with th e trial court l imiting the jur y ’ s consideration of
D.P. ’ s tes timo ny to character

- evidence purpo ses only.

We nee d not decide whether trial counsel ’ s oversight in not requesting the limiting instructions describe d above was deficient. Even if trial cou n sel we re deficien t, appellant must also show prejudi ce , which he can not on this record. We have already concluded th at the error in the jury ch arge s , which allowed the jury to consider D.P. ’ s testimony fo r irrelevan t purpo s es did not harm appella nt. The jury charges did contain an instruction that limited the jur y ’ s considera tio n of D.P. ’ s testimony. Payton v. State , 830 S.W. 2d 722, 730 (Tex. App.

— Houston [14th Dis t.] 1992, no pet.) ( “ Even if the trial court erred in failin g to give a limiting instruction when the evidence was offe red, the error was cured by the i nclusion of a pr oper limiting instruction in the charge. ” ). Furt her, the jury received te stimony from Jane Doe and D.P. regarding their allegati ons against a ppellan t

. Both witnesses presented strong testimony against appell ant, which the jury found credibl e as15 evidence d b y their finding of appellant ’ s guilt

. T he more
- t ailored instruction that appellant suggests his trial cou nsel should have requested would sti ll have
p ermitted the jury to consider D.P

. ’ s testimony for purpos es of determining appellan t ’ s cha racter , which wa s the only probative purpose it offered at trial

. Given the ample evidence against appe llant , an instruction limiting D.P ’ s testimony to char acter

- evidence purposes would not have had an y effect on the
outco me. See Berghuis v. Thompk ins , 56 0 U.S. 370, 3 90 (2 010) (failure to reques t limiting instruction about earlier acquittal or conviction was not reason ably likely to have made any difference i n outcome).
We overrule issue three.

III. C ONC LUSION Having overrule d a ppellant ’ s four issues , we a ffirm the judgment s of the trial court as chall enged on appeal.

/s/ Charles A. S pain Justi ce

P a n e l c on sist s of J us t i ce s Bourliot , Zimmere r , and Spain

. Do Not Pu blish

— T ex. R. App. P. 47.2(b).