# /669/V

PDR# 

# ORIGINAL
APPEAL FROM THE 128TH JUDICIAL DISTRICT COURT TRIAL COURT CAUSE NUMBER 080508R 

### OF ORANGE COUNTY, TEXAS 

### Hon. Courtney Arkeen, Judge Presiding

TRANSFERRED FROM THE 9TH COURT OF



## APPEALS TO 14th Case # 14-13-00650-CR
MOTION FOR PETITION FOR DISCRETIONARY REVIEW 

# cRECEIVED IN PRO- SE MOTION BY ERIC WILLIAM^criminaiappeals P.O. Box 776 FEB 20 2015 

# Orange, Texas 77631-776 AtmiActm Ctok (409)728-3131 ,U** (337) 936-0773—Alternate 

# E-mail: ericwill86.ew@gmail.com FILED IN February 19,2015 C0UftTofcriminalappeals F£3 2 o 2015 Aocjj Acosta, ClerkIDENTITY OF PARTIES AND COUNSEL 

## Appellant: ERIC JARROD WILLIAMS
Trial Counsel: Joe Alford 105 S. Market Street 

## Orange, TX 77630 State Bar No. 1012500 

## Appellate COUNSEL: N/A
PRO-SE MOTIONS: Eric Jarrod Williams 

## Appellee: State ofTexas Counsel: Phillip C. Smith, Jr. 

## (Trial and Appeal) Orange County Assistant District Attorney 801 W Division Ave. 

## Orange, TX 77630 State Bar No. 797460IN THE COURT OF CRIMINAL APPEALS SUPREME JUDICIAL DISTRICT PDR #
ERIC JARROD WILLIAMS Appellant
V.
THE STATE OF TEXAS Appellee

TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS: Now comes EricJarrod Williams, appellant in the above-captioned cause, by and through, and submits this motion for Petition For Discretionary Review Background On May 15, 2013, Appellant was convicted by a Jury Panel ofthe offense Indecency With A Child By Exposure 21.11(a) (2) (A) Ofthe Texas Penal Code and given-a sentence of Ten years confinement in TDCJ and a $5,000 fine by the Bench

on June 14, 2013. The Bench ordered that the sentence be probated for a period of ten years with 180 days to be served as upfront time In the County Jail as a condition ofprobation and a $5000 fine.On September 23, 2014, the Honorable14th Court ofAppeals denied relieffor Appellant, and affirmed thejudgment ofthe trial court. The Motion for Petition for Discretionary Review is due on February 20, 2015. The sole issue on appeal was whether the trial court erred in denying the appellant a hearing on his motion for new trial. The opinion predicates its holding on two grounds: In two issues, appellant argues that (1) the trial court erred in admitting evidence ofextraneous offenses allegedly committed by appellant; and (2) the evidence presented at trial was legally and factually insufficient to establish that appellant committed the specific offense. Appellant believes the record demonstrates otherwise and prays to the court that this case is accepted and reviewed by the Court ofCriminal Appeals.
Presentment ofthe Motion The supplemental record filed by the trial court in this case contains case events submitted to the court of appeals of events were alleged to have taken place in violation of Rule 404(b) ofthe Texas Rules ofEvidence. Appellant contends in his first issue that the trial court violated Texas Rule of Evidence 404(b) by admitting evidence of extraneous offenses allegedly committed by appellant during the guilt-innocence phase of his trial. The extraneous offenses at issue were incidents in which appellant allegedly watched pornographic movies and exposed his genitals in front of and an incident in which appellant allegedly watched a pornographic movie and masturbated with Desmond Burnette. Appellant asserts that, because the incident upon which theState elected to base the indictment was a specific event. In fact the event in the indictment was not the event chosen to be the event used in the guilt phase to the jury panel. Thisevent contained a specificevent sworn by Detective Jefferson- Simon but not by Detective Davis, who was the initial Detective in the case. Evidence ofextraneous offenses committed by appellant against and an extraneous offense committed by appellant against Desmond Burnette and Chris Janice was inadmissible. After hearing testimony and arguments the issue, the trial court issued a letterruling that the extraneous offenses wouldbe admissible with a limiting instruction in the Court's charge. (C.R. 21). The following day, the court further explained that it was allowing the evidence for purposes of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident. (4 R.R. 12). Appellant's counsel then specifically assertedobjections to each of these grounds individually. (4 R.R. 13-15).Appellant's objections were noted and overruled. (4 R.R. 17). In this Case Appellantstates the trial court violated Rule 404(b) of the Texas Rules ofEvidence due to there was no mistaken identity in this case. This case, Appellant would urge that the State failed to establish that the various extraneous offenses alleged in this case were admissible under any ofthe exceptions enumerated in Rule 404(b). For example, the case reliedupon by the Stateat the pretrialhearing to showadmissibility of the evidence for purposesof identity," Segundo v. State, 270 S.W.3d79 (Tex. Crim. 

### App. 2008), is distinguishable because "identity" was notatrue issue inthis case. This

case did not involve a situation where in a crime was committed and there was a genuine

### question of whatperson committed thecrime. Rather, Appellant's defense was simply that the events alleged never occurred at all. Thus, extraneous allegations do not show a modus operandi that links a particular 

### perpetrator to aknown crime; to thecontrary, they were used inthis case simply to bolster the idea for the jury that there were so many allegations againstAppellant that he 

### mustbeguilty of themall. SeeSegundo, 270S.W. 3d at 87-88. Theothercaserelied 

### upon by theState initiatives argument is also distinguishable.

In Schexnider v. State,943 S.W.2d 194 (Tex. App.—Beaumont 1997, no pet.), the court held that in the Defendant's capital murder trial, evidence ofthe dismemberment of 

### the corpse was admissible as anextraneous offense because itwas interwoven with the indicted offense to the extent that it was part ofthe same contextual transaction
The State/ Appellant Courts arguesthat the trial court did not abuse its discretion because the identity ofappellant was at issue. We disagree thatidentity was at issue. The 

### dispute attrial focused notonthe identity of theperson who exposed himselfto but on whether was credible and whether the incident occurred. However in any case where there is a questionof actual evidencethenreliability becomes the over 

### weighing factor beyond areasonable doubt. did state hehadanextensive criminal history along with State's other witness Desmond Burnette. (For FurtherSee C.R. v4 of 7page 58 Line and pg 181 Line 22DesmondBurnette.)Extraneous Offense against Desmond Burnette, the states alleges that Desmond Burnette testified/agreed to masturbating for money, which nowhere in his testimony does he state this or his written statement. The testimony includes this: THE STATE: OKAY. NOW, WHAT HAPPENED WHEN YOU GOT TO HIS GRAND MOTHER'S HOUSE IN CLAIRMONT?

DESMOND BURNETTE: WHEN HE GOT THERE, HE HAD HE HAD HE HAD GOT A TOWEL OUTAND STUFFANDA - ANDA LAPTOP, HIS LAPTOP. THEN WHEN THEYHAD PUT ONSOME PORNO AND THEYSTART—THEY START PLAYING WITH THEMSELVES (SIC) AND IHAD WALKED OUTBECAUSEI DON'T-1 TOLD THEM, "IDON'T DO THATSTUFF."
The actual "incident" upon which the Indictmentis based and conviction sought was a 

### single specific event alleged tohave taken place inthe bedroom ofAppellant, inthe presence of, Chris Janice. (C.R. 47 atf 5;5 R.R. 49). Nonetheless, the State offered testimonial evidence ofvarious other alleged events that purportedly took place in different locations, under different circumstances, and involving different people. For 

### example, Victim testified about apornography viewing and group masturbation event 

### that allegedly occurred inaparking lotacross the street from aunt's house (3 R.R. 

### 9-11); an eventthat occurred atAppellant's home while was skipping school, withno otherparticipants (4R.R. 78-79); and occurrences on two or threeoccasions in Vinton, Louisiana. (3R.R. 16; 4 R.R. 52, 79-80). also testified as to alleged acts or offenses that were different than the act 

### alleged in theindictment; specifically, testified that Appellant made requests for to masturbate him, to allow Appellant to masturbate and to perform 

### oral sexonAppellant, although none ofthose requests were fulfilled. (4R.R. 55). The 

### pornography alleged bythe victim to beshown was homemade and unfounded byanalyst research. Neither Burnette nor could identify or describe any ofthe videos and this evidence was excluded. Defense also submitted on Defense exhibit #4 a recorded conversation between the victim and Appellant to where victim admitted that none of these eventseverhappened. Thisexhibit was objected by Judge Arkeen from being 

### played in thetrial. When questioned about the recorded the victim stated, " Nohe didn't ever call and that he would have to hear it. Judge Arkeen reviewed the records and told 

### thejurythere was aconversation between Victim andAppellant. The Questionable fact ofthis is based offofhear say verses no evidence. Ifnone ofthe alleged homemade videos were found or allowed in the trial. The answer is where and how did the appellant expose his genitals to anyone?

Evidence is relevant ifit has a "tendency to make the existence ofany fact 

### that is ofconsequence to thedetermination of theaction more probable or lessProbable than it would be without the evidence." TEX. R. EVID., Rule 401. Evidence that is not relevant is inadmissible. TEX. R. EVID., Rule 402. Further, rule 404(b) ofthe Texas Rules ofEvidence reads, in pertinent part,

as follows: Evidence ofother crimes, wrongs or acts is not admissible to prove the Characterof a person in order to show action in conformity there with. It may, however, be admissible for other purposes, such a proofof Motive, opportunity, intent, preparation, plan,knowledge, identity, orAbsence ofmistake or accident.... TEX. R. EVID., Rule 404(b). This rule "incorporates the fundamental tenet ofour 

### criminaljusticesystem thatan accused maybe triedonlyfor theoffense forwhich he is 

### charged andnothiscriminal propensities." Rankin v. State, 91A S.W.2d 707,718 (Tex. Crim. App. 1998) (op. on reh'g). Uponobjection to extraneous offense evidence, theproponent of such evidence bears the burden ofshowing that the evidence has relevance apart from Its character conformity value. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997). "Ifthe evidence has no relevance apart from supporting the conclusion 11 that the defendant acted in conformity with his character, it is absolutely
Inadmissible." Id. In this case, Appellantwould urge that the State failed to establish that the various extraneousoffenses alleged in this case were admissible under any of the 

### exceptions enumerated inRule 404(b). Forexample, the case relied upon bythe State at thepretrial hearing to show admissibility of theevidence for purposes of

9"Identity," Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), is distinguishable because "identity" was not a true issue in this case. This case did not involve a situation where in a crime was committed and there was a genuine question ofwhat person committed the crime. Rather, Appellant's defense was simply that the events alleged

never occurred at all. Thus, extraneous allegations do not show a modus operandi that 

### links aparticularperpetratorto aknown crime; to thecontrary, theywere used in this case simplyto bolsterthe idea for thejury that there were so manyallegations against 

### Appellant that hemust beguilty ofthem all. See Segundo, 270 S.W. 3dat87-88. The other case relied upon by the State in its argumentis also distinguishable. In Schexnider
v. State, 943 S.W.2d 194(Tex.App.—Beaumont 1997, no pet.), the court held that in the Defendant's capital murder trial, evidence of the dismemberment of the corpse was admissible as an extraneous offense because it was interwoven with the indicted offense to the extent that it was part ofthe same contextual transaction. 943 S.W.2d at 201-202. That 12doctrine is not applicable in this case, however, as the various allegations made 

### against Appellant at the trialinvolved distinct andcompletely unrelated events, locations, and participants rather than a single continuous transaction. Further, the extraneous offenses could not be admissible under the "plan" 

### exception to Rule 404(b). As succinctly stated by theCourt ofCriminal Appeals: Repetition of thesame actorsame crime does notequal a "plan." It equals therepeated commission ofthe same criminal offense offered obliquely to show bad character and conduct in conformity with that badcharacter—"once athief, always a thief." Thisbadcharacter conformity purpose, whether express or not, is precisely what is barred

10by Rule404(b). Thus, if theproponent is unable to articulate exactly how an extraneous 

### act tendstoprove a steptoward anultimate goal oroverarching plan, theevidence is not admissible toprove part of a "plan"Daggettv. State, 187 S.W.3d 444,451-52 (Tex. 

### Crim. App. 2005). Just as inDagget, theevidence ofextraneous offenses herein were nothing more than the alleged repetition ofthe same actatdifferent times; there was no evidence ofan"ultimate goal oroverarching plan," thus theevidence was not admissible 

### toprovepart of aplan. Nor could the evidence have been admissible toprove opportunity,
asAppellantnever denied opportunity. See Powell vState, 63 S.W. 3d435,438- 40 (Tex. Crim. App. 2001). In sum, the testimony presentedthat Appellantallegedly committed various extraneous offenses at different times, in different locations, and with different individuals, constitutedcharacter-conformity evidence and nothing more. It was 

### 13 notprobative ofwhetherAppellant committed the specific offense alleged in the Indictment in this case, and it was offered only for a "bad-character-conformity purpose." 

### See Daggett, 187 S.W.3d at452. Such evidence isprohibited byRules 403 and404(b). Moreover, such evidence, particularly consisting exclusively of allegations that have


### never beenproven in a court of law on theirownmerit, unquestionably caused unfair 

### prejudice, confusion ofthe issues, and misleading ofthejury, as there was grossly more extraneous offense evidence than there was evidence pertaining to the specific event 

### alleged inthe Indictment. Thus, Appellanturges thatthe trial court abused its discretion in admitting this evidence.

11Harm Analysis The effect on appeal of the improperadmissionofevidence is governedby 

### Rule ofAppellate Procedure 44.2(b), which provides that"anonconstitutional error 'that does not affect substantialrights must be disregarded.'" Motilla v. State, 78S.W.3d352, 

### 355 (Tex. Crim. App. 2002) (quoting TEX. R. APP. P. 44.2(b)); Fowler v. State, 958 S.W.2d 853, 864-65 (Tex.App.-Waco 1997), affd, 991 S.W.2d258 (Tex. Crim. 

### App. 1999). "Asubstantial right is affected when the errorhad a substantial and injurious effect or influence in determining thejury's verdict." King v. State, 953 S.W.2d 266, 271 

### (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66S.Ct. 1239,1253, 90L.Ed. 1557 (1946)). "In assessing thelikelihood thatthejury's decision
wasadversely affected by theerror, 14theappellate courtshould consider everything in the record, including anytestimony ofphysical evidence admitted for thejury's consideration, the nature of the evidence supporting the verdict, the character ofthe 

### alleged error and how itmightbeconsidered inconnection with other evidence inthe case." Moralesv. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). If, after reviewing the entire record, the appellate court has grave doubts about the effectofthe improper evidence on the outcome, it should require a new trial. See Fowler, 958 S.W.2d at
866.

The evidence introduced at trial that supported the verdict included the 

### testimony of Toni Hardin (mother), Chris Janice., and Officer Sarah Jefferson Simon. Victimtestified thatappellant masturbated in front of him on multiple

12occasions and he agreed to this and was paid over $500. Chris Janice testified that he watched the movies on his own free will and was never paid any money as part ofany scam, agreement, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake by the appellant. Chris states that appellant "kind ofsort of masturbated with ofthem, but appellant was out ofsight on the floor away from everyone else. He wasn't even sure ifthe appellant was doing anything or not cause he was on the floor sitting out ofsight ofanyone else in room. In this incident Appellant was to have never taken his clothing off. This incident only had taken place one time with the victim Present. During this event was on the floor on left side ofbed, and Appellant was on right of bed on the floor out ofeyesight ofeveryone in the darkroom. Further, the State introduced a prior written statement signed by Chris, who stated: we were at appellant's house about four or five times while I was there. Appellant would be on one side ofhis bed. He would be pleasuring himself" Chris Janice then testified he only agreed to this statement because he was threatened by Detective Jefferson- Simon. When crossed examined by Defense Chris agreed that he wrote a corrected statement to the appellant. (Entered as Defense exhibit #2) The trial testimony includes this:
THE STATE: SO YOU ARE SAYING YOU NEVER TOLD THESE THINGS TO SARAH JEFFERSON? CHRIS: I TOLD YOU SHE ASKED ME QUESTIONS, I GAVE HER ANSWERS. SHE ASSUMED HER OWN SCENARIOS. THE STATE: SHE ASSUMED IT. DID SHE READ THIS STATEMENT TO YOU BEFORE YOU SIGNED IT SWEARING THAT IT WAS THE TRUTH?

13CHRIS: YEAH. THE STATE: AND DID YOU FIND IT TO BE THE TRUTH WHEN YOU SIGNED IT AND SWORE TO IT? CHRIS: NOPE. I HAD TO SIGN IT THE STATE: YOU HAD TO SIGN IT. WHY DH) YOU HAVE TO SIGN
IT? CHRIS: BECAUSE SHE STATED THAT EVERYBODY IN THE CASE SAID MY NAME, THAT IF I WOULDN'T CORROBRATE, I WOULD BE BROUGHT UP ON CHARGES. Chris: SHE ASKED. I TOLD YOU SHE OUT IT INTO HER OWN WORDS The potential harm for a verdict based on extraneous offenses in this case, rather than evidence ofthe event upon which the Indictment was based, is highlighted by the absolute absence ofevidence produced at trial that Appellant exposed his genitals on the event in question. Specifically, although testified that he saw Appellant's penis on theoccasion of the first "groupmasturbation" eventthatoccurred in Appellant's car the first night they met, that was not the incident upon which the State based its Indictment and witnesses Chris Janice denied knowledge ofthis event. (4 R.R. 49). The only testimony offered about the pornography and masturbation event that included both and Chris, which was the incident chosen by the State to be the incident upon whichconviction was sought, was offered not by but by Chris himself. In thattestimony, however, Chris deniedthatAppellant's genitals wereexposed. 

### (4R.R. 115-119). Infact, Chris stated thathe didnoteven know whether Appellantwas

14masturbating at the same timeeveryone else was or what he was doing. (4 R.R. 117-127). whoprovided veryfewdetails about any of his allegations or couldremember the events he testified to the day before when cross examined by defense counsel. offered no testimonyregarding a specific occurrence in Appellant's bedroom 

### withChris present. Accordingly, thejury couldonlyhave found thatAppellant showed 

### hisgenitals onthat specific occasionby assuming that, because testified that Appellant hadexposed himselfbefore, hemust have done so on thatoccasion, even 

### though there was absolutely noevidence whatsoever tothat effect. This constitutes no evidence, or nothing more than a "modicum" ofevidence, probativeof an essential element of the offense; accordingly, the evidence is insufficient to supportAppellant's conviction in this case. Gonzalez, 337 S.W.3d at 479. 

### Accordingly, Appellant's conviction should bereversed and ajudgment ofacquittal given by Appellant Court. 

### Specifically, Thejury wasgiven specific instructions to avoid violating rule 404(b) was to use the giventestimony ONLYfrom ChrisJanice whichthey failedto do. Now in any causethereliability is to be the swornfactor beyond areasonable doubtto 

### prove innocence orguilt. Ifthe testimony isunreliable then itshall bethrown out. The factors relied only on the testimonyof states witness Chris Janicewho was treated as a 

### hostile witness by the state andcalled "Suborning witness by state. (C.R. V4 OF V7 page 146-147 line 25)

15THE STATE: I HAVE NO FURTHER QUESTIONS OF THIS LYING, SUBNORING WITNESS. Officer Simon testified that she found the accounts given by the juveniles to be consistent. However Detective Jefferson-Simon was not the initial detective who investigated this case the proven sworn statement was given to Detective Davis not Detective Jefferson-Simon. gave three different statements to Officer Melancon, Detective Davis and Detective Jefferson- Simon. Officer Melancon states that the statement he taken was to be the first and the events Detective Jefferson- Simon wrote up were not consistent to his.

The Court ofCriminal Appeals has held that "a rigorous and proper application" oftheJackson legalsufficiency standard is "theonly standard that a reviewing court shouldapply in determining whether the evidence is sufficient to 

### support eachelement of a criminal offense thattheState is required toprove beyond

a reasonable doubt". Brooks v. State, 323 S.W.3d 893, 902-03, 906, 912 (Tex. Crim. App. 2010) (citingJackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 16 61 L.Ed.2d 560(1979)). To determine the sufficiency of the evidence undertheJackson standard, an appellate court mustreview all of the evidence in the light mostfavorable to the verdict to determine whether any rational tier offact could have found the essential elements of 

### thecrime beyond areasonable doubt. Brooks, 323 S.W.3d. at 898-99." [Ejevidence is insufficientto supporta conviction ifconsidering allrecord Evidence in the light most

16favorable to the verdict, a fact finder could not have rationally found that each essential element ofthe charged offense was proven beyond a reasonable doubt." Gonzalezv. State, 337 S.W.3d 473,478 (Tex.App.- Houston [1st Dist] 2011, pet. refd); Lasterv. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). "Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative ofan element ofthe offense; (2) the record contains a mere 'modicum' ofevidence probative ofan element ofthe offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged." Gonzalez, 337 S.W.3d at 479.

Ifan appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order ofacquittal.Id. (citing Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982)).An appellate court "determine^] whether the necessary inferences are reasonable based upon the combined and cumulative force ofall the evidence viewed in the light most favorable to the verdict." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quotingHooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).

17CERTIFICATE OF SERVICE I delivered a copy of the above andforegoing Motion to the Orange County District Attorney's Office on February 20, 2015 /s/Eric Jarrod Williams 

# ~^ f^t:

18WHEREFORE, PREMISES CONSIDERED, Appellant prays that the court grant/AcceptAppellant motion in this case,andthereafterremand the case on appellant's motion for acquittal vacating the trial courtjudgment and sentence.
RESPECTFULLY SUBMITTED 

# £-x) <?^j?

19Affirmed and Memorandum Opinion filed September 23, 2014.

In The 

### iKnurtccntl| Court at Appeals

NO. 14-13-00650-CR ERIC JARROD WILLIAMS, Appellant
V. THE STATE OF TEXAS, Appellee On Appealfrom the 128th District Court Orange County, Texas Trial Court Cause No. A-080508-R

MEMORANDUM OPINION 

### Appellant Eric Jarrod Williams appeals his conviction for indecency with a child. See Tex. Penal Code Ann. § 21.11 (Vernon 2011). In two issues, appellant argues that 

### (1) the trial court erred in admitting evidence of extraneous offenses allegedly 

### committed by appellant; and (2) the evidence presented at trial was legally and 

### factually insufficient to establish that appellant committed the specific offense

### alleged in the indictment. We affirm.1 Background 

### Appellant was indicted for indecency with a child younger than 17 years of age by exposure. See Tex. Penal Code § 21.11 (a)(2). The complainant, J.L., was 

### 13 years old at the time of the incident. J.L. testified that he and appellant masturbated together while watching pornographic movies. J.L. testified that he 

### agreed to do so because appellant paid him. J.L. stated thatthis conduct occurred between 10 and 16 times. Another minor, D.B., testified that he also agreed to 

### masturbate with appellant whilewatching apornographic movie for money. 

### On May 15, 2013, a jury found appellant guilty ofindecency with a child by 

### exposure. Appellant elected to have the trial court determine punishment, and the case was reset until June 14, 2013. The trial court assessed punishment on June 

### 14, 2013, at 10 years' confinement probated for 10 years and a fine of $5,000. 

### Appellant was ordered to serve 180 days in the Orange County Jail as a term and condition ofprobation. This appeal followed. Analysis I. Admission ofExtraneous Offenses 

### Appellant contends in his first issue that the trial court violated Texas Rule of Evidence 404(b) by admitting evidence of extraneous offenses allegedly 

### committed by appellant during the guilt-innocence phase of his trial. The extraneous offenses at issue were incidents in which appellant allegedly watched 

### pornographic movies and masturbated in front ofJ.L., and an incident in which appellant allegedly watched a pornographic movie and masturbated in front of 1Appellant initially appealed to the Ninth Court ofAppeals in Beaumont. Pursuant to a 

### docket equalization order, this appeal was transferred to this court. See Tex. Gov't Code Ann. § 73.001 (Vernon 2013).D.B. Appellant asserts that, because the incident upon which the State elected to base the indictment was a specific event, evidence of extraneous offenses committed by appellant against J.L. and an extraneous offense committed by appellant against D.B. was inadmissible. We review a trial court's ruling on admission of evidence for an abuse of discretion. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). The 

### trial court's ruling will be upheld as long as it falls within the zone ofreasonable 

### disagreement and is correct under any theory of law applicable to the case. Id.; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An appellate court must review the trial court's ruling in light ofwhat was before the trial court 

### at the time the ruling was made. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). A. Extraneous Offenses Against the Complainant 

### Evidence of other crimes, wrongs, or acts generally is not admissible to 

### prove the character of a person to show action in conformity therewith. Tex. R. Evid. 404(b). Nevertheless, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, 

### preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon a timely request by the defendant, the State gives reasonable notice in advance oftrial ofintent to introduce such evidence. Id. 

### The State argues that the trial court did not abuse its discretion because the 

### identity of appellant was at issue. We disagree that identity was at issue. The 

### dispute at trial focused not on the identity ofthe person who exposed himselfto J.L., but on whether J.L. was credible and whether the incident occurred. Thus, 

### identity does not serve as a proper basis for admitting evidence of extraneous offenses in this case. See Eubanks v. State, 113 S.W.3d 562, 566 n.l (Tex. App.—
3Dallas 2003, no pet.) (identity not at issue in case in which main issue at trial was whether sexual assault occurred and victim testified that she had been sexually assaulted by appellant). This conclusion does not end the analysis. In cases involving prosecution of a defendant for an offense under Chapter 21 of the Penal Code against a child 

### under 17 years of age, article 38.37 of the Texas Code of Criminal Procedure 

### provides that evidence of crimes, wrongs, or acts committed by the defendant against a child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including the state of mind and relationship between the child and defendant. Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 

### 2014). Article 38.37 is an evidentiary rule and supersedes Rule 404 in 

### prosecutions for indecency with a child. Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin 2001, pet. refd); Morgan v. State, Nos. 14-01-00809-CR & 14-01- 00810-CR, 2002 WL 1438680, at *3 (Tex. App.—Houston [14th Dist.] July 3, 

### 2002, pet. refd) (not designated for publication). Under article 38.37, the extraneous offenses at issue were admissible 

### because they pertained to appellant's state of mind and the nature of appellant's relationship withJ.L. SeeTex. Code Crim. Proc. Ann. art. 38.37; Sarabia v. State, 227 S.W.3d 320, 325 (Tex. App.—Fort Worth 2007, pet. refd) (pornographic 

### photograph defendant showed victim was admissible because it was relevant to defendant's relationship with victim); McCulloch v. State, 39 S.W.3d 678, 681 

### (Tex. App.—Beaumont 2001, pet. refd) (evidence of prior sexual assaults committed by defendant against victim was relevant to victim's and defendant's state of mind, defendant's dominance over victim, and defendant's misuse of his 

### position offamily disciplinarian to commit abuse); Hinojosa v. State, 995 S.W.2d 955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (evidence that appellantfondled victim's breasts and private parts at least once a week for 10 years was relevant to the defendant's relationship with the victim); see also Peters v. State, No. 07-01-0430-CR, 2002 WL 31439482, at *1 (Tex. App.—Amarillo Oct. 31, 

### 2002, pet. refd) (per curiam) (not designated for publication) (evidence ofprior 

### indecency with a child offense committed by defendant against victim was relevant to defendant's relationship with victim). 

### Although the State did not specifically invoke article 38.37 below, it stated in closing argument that the extraneous offenses committed by appellant against 

### J.L. were probative of appellant's attempt to groom J.L. to be a victim. This evidence had a bearing on the nature of the relationship between appellant and J.L., and therefore, it was admissible. See Sarabia, 227 S.W.3d at 325; McCulloch, 39 

### S.W.3d at 681; Hinojosa, 995 S.W.2d at 958; see also Peters, 2002 WL 31439482, at*l. 

### Article 38.37 may be considered for the firsttime on appeal as a basis for the admission ofthe evidence at issue. See Hitt, 53 S.W.3d at 706; McCoy v. State, 10 

### S.W.3d 50, 53 (Tex. App.—Amarillo 1999, no pet.) ("The fact that the benefit of the statute was notspecifically invoked by the State at trialdoes notprevent itfrom 

### being applicable inour consideration ofthe challenge before us."). A defendant is entitled to notice from the State ofits intent to use such evidence ifthe defendant 

### makes a specific request for such information pursuant to article 38.37. See Act of April 21, 2011, 82nd Leg., R.S., ch. 1, § 2.05, 2011 Tex. Sess. Law Serv. 6, 6, amended by Act ofJune 14, 2013, 83rd Leg., R.S., ch. 387, § 3, 2013 Tex. Sess. Law Serv. 1168, 1168-69 (current version at Tex. Code Crim. Pro. Ann. art. 38.37 

### (Vernon Supp. 2014)).2 Appellant's request for notice ofextraneous offenses did 2We apply the statute in effect at the time ofthe conviction, which was the statute as amended effective September 1, 2011. See Act ofApril 21, 2011, 82nd Leg., R.S., ch. 1, § 2.05, 2011 Tex. Sess. Law Serv. 6 (amended 2013). ("The change in law made by thisAct applies to

### not specifically request notice under article 38.37. Appellant nonetheless had notice ofthe extraneous offenses. Before the guilt-innocence phase oftrial began, 

### the court held a hearing during which the State revealed the extraneous offenses it intended to introduce during trial. We conclude that the trial court did not abuse its discretion by allowing 

### testimony of extraneous offenses committed against J.L. because it is probative of the appellant's state of mind and relationship between appellant and J.L. See Weatherred, 15 S.W.3d at 542 (trial court's ruling will be upheld as long as it is correct under any theory oflaw applicable to the case). B. Extraneous Offense Against D.B. 

### Appellant also contends that the trial court erred by allowing testimony of D.B. that D.B. agreed for money to masturbate with appellant while watching a 

### pornographic movie. Article 38.37 does not apply tothis evidence because article 38.37 applies only to "evidence ofother crimes, wrongs, or acts committed bythe defendant against the child who is the victim of the alleged offense . . . ." 

### Assuming the trial court erred by allowing the testimony of D.B. with regard to appellant's conduct, we conclude that the asserted error was harmless. Error in admitting evidence concerning extraneous offenses is a nonconstitutional error and is reviewed under Texas Rule of Appellate Procedure 

### 44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Rule 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Tex. R. App. P. 

### 44.2(b); Sandoval v. State, 409 S.W.3d 259, 304 (Tex. App.—Austin 2013, no the admissibility ofevidence in a criminal proceeding that commences on or after the effective 

### date [Sept. 1, 2013] ofthis Act. The admissibility ofevidence in a criminal proceeding that commences before the effective date of this Act is covered by the law in effect when the 

### proceeding commenced, and the former law is continued in effect for that purpose.").pet.). An error affects a defendant's substantial rights when the error has a substantial and injurious effect or influence in determining thejury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal conviction will not be reversed for non-constitutional error ifthe appellate court, after examining the record as a whole, "has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. 

### App. 1998); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The evidence introduced at trial that supported the verdict included the 

### testimony of J.L., J.L.'s mother, J.L.'s cousin, C.J., and Officer Sarah Jefferson Simon. J.L. testified that appellant masturbated in front of him on multiple 

### occasions. J.L.'s mother, an outcry witness, testified that J.L. told her that 

### appellant masturbated in front ofhim. C.J. testified that appellant showed J.L. and C.J. pornographic movies and stated that appellant "kind of sortof masturbated in front of them. Further, the State introduced a prior written statement signed by 

### C.J., which stated: "[N.] and [J.L.] were at [appellant's] house about four or five 

### times while I was there. [Appellant] would be on one side of his bed. He would 

### be pleasuring himself." Officer Simon testified that shefound the accounts given by thejuveniles to be consistent. 

### Considering the evidence introduced at trial, we cannot conclude the extraneous offense testimony affected a substantial right of appellant. See Matthews v. State, 979 S.W.2d 720, 723 (Tex. App.—Eastland 1998, no pet.) 

### (admission of evidence of extraneous offense of assault was harmless in child abuse case, and did not affect defendant's substantial rights, in light of 

### overwhelming evidence ofhis guilt). Therefore, the asserted error is not reversible underRule44.2(b). Accordingly, we overrule appellant's firstissue.II. Sufficiency ofthe Evidence 

### Appellant contends in his second issue that the evidence presented at trial was legally and factually insufficient to establish that appellant committed the specific offense alleged in the indictment. We disagree. A. Standard ofReview 

### We review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden ofproofunder the single legal 

### sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App. 2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). 

### When reviewing the sufficiency of the evidence, we view all of the evidence 

### inthe light most favorable tothe verdict and determine, based onthat evidence and any reasonable inferences from it, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 

### 743, 746 (Tex. Crim. App. 2011); see also Jackson, 443 U.S. at 319. Thejury is 

### the exclusivejudge ofthe credibility ofwitnesses and theweight to begiven tothe evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We 

### defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw all reasonable inferences from the evidence in favor ofthe verdict. Id. B. Applicable Law 

### To support aconviction for indecency with achild, the State was required to 

### prove beyond a reasonable doubt that: (1) the child was within the protected age group and not married to the accused; (2) the child was present; (3) the accused had the intent to arouse orgratify someone's sexual desire; (4) the adult knew thata child was present; and (5) that the accused exposed his anus or genitals. See Tex. Penal Code Ann. § 21.11(a)(2)(A). Further, because the State presented evidence ofmore than one act, it was required to elect the specific indictment upon which it 

### sought conviction. The jury charge indicated that the State elected "to rely on the allegation that occurred at the defendant's home, in the presence of [C.J.]" C. Analysis 

### Appellant argues that the only evidence regarding the specific incident elected by the State was C.J.'s testimony, which was insufficient to support 

### appellant's conviction because C.J. "denied that [appellant's] genitals were exposed at that time." We disagree. 

### J.L. testified that he first met appellant when he was 14 years old at his 

### aunt's house.3 On that occasion, appellant asked J.L. and two of J.L.'s male 

### cousins, including C.J., to masturbate in front of him. J.L. stated that appellant 

### promised to pay each ofthe males $10 and promised to pay an extra $10 to the 

### person who "finished first." J.L. testified that appellant drove J.L. and his cousins to aparking lot where appellant took out his laptop and turned on apornographic movie. J.L. stated that the males, including appellant, masturbated together. J.L. 

### stated that he and appellant masturbated together between 10 and 16 times in 

### Orange County, Texas and Vinton, Louisiana. J.L. indicated that sometimes he was alone with appellant and sometimes other boys were present. J.L. stated that 

### he "went to [appellant's] house a couple oftimes" to masturbate. J.L. stated that, when he went to appellant's house, 

### [Appellant] would put a —like when we was at his house, he would put the laptop on the bed where we both could see itand he would put a blanket on the floor. He would grab some lotion and stuff like that; 3Later testimony indicated that J.L. was 13 years old atthe time ofthe incident.

9but I told him, T ain't — I ain't want none.' And, you know, he will just put — he would get naked sometimes; and Ijust pulled my pants down. After J.L. testified, the State called C.J. to testify. C.J. provided testimony that was contrary to a previous written statement that he signed; the State requested that C.J. be designated as a hostile witness. The relevant testimony included this exchange: THE STATE: Okay. Was there an instance where you masturbated at his house? C.J.: Yeah. THE STATE: Was there an instance, at least one occasion, where your cousin, [J.L.], was there? C.J.: Yeah. THE STATE: And y'all watched [a] sex tape? C.J.: Yeah. THE STATE: And he masturbated? C.J.: Yeah. THE STATE: And [appellant] masturbated with y'all? C.J.: Kind of sort of. THE STATE: Okay. C.J.: But he wasn't like in plain sight. 

### To impeach this testimony, the State presented a sworn statement by C.J. stating: "[N.] and [J.L.] were at [appellant's] house about four or five times while I was there. [Appellant] would be on one side of his bed. He would be pleasuring himself." 

### The jury is the solejudge of the credibility of the witness and the weight to 

### be given to the witness's testimony. Spearman v. State, 307 S.W.3d 463, 469 

### (Tex. App.—Beaumont 2010, pet. refd). Based on the inconsistencies between C.J.'s testimony at trial and in his written statement, reasonablejurors could have

10disregarded his testimony at trial. See id. J.L. testified that appellant masturbated in front of him and others at 

### appellant's house. C.J. testified that he saw J.L. masturbate at appellant's house. C.J. also testified that he saw appellant "kind of sort of masturbating in J.L.'s 

### presence. C.J.'s priorstatement indicated that appellant masturbated in front of the boys in appellant's house. Viewing the evidence in a light most favorable to the verdict, a reasonable jury could have concluded that appellant was guilty of indecency with a child. See Gear, 340 S.W.3d at 746. 

### We conclude that the evidence is legally sufficient to support appellant's conviction. Accordingly, we overrule appellant's second issue.
Conclusion 

### Having overruled appellant's two issues on appeal, we affirm the trial court's judgment.

/s/ William J. Boyce Justice

Panel consists ofJustices Boyce, Busby, and Wise. Do not Publish —Tex. R. App. P. 47.2(b).

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