Opinion filed August 17, 2023

In The

Eleventh Court of Appeals __________

No. 11-22-00126-CR

__________

KEVIN BOYKIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR23294

M E M O R A N D U M O P I N I O N

In July 2014, Appellant, Kevin Boykin, was indicted for two counts of 

indecency with a child—enhanced as a repeat sexual offender. TEX. PENAL CODE 

ANN. §§ 21.11(a)(1), 12.42(c)(2) (West 2019). Appellant was later found to be 

incompetent to stand trial and was committed for inpatient mental health services. 

In March 2022, Appellant’s competency was restored, and the case proceeded to a 

jury trial. The jury convicted Appellant of the charged offenses. Appellant elected 
2

to have the trial court assess his punishment. The trial court subsequently found 

Appellant’s prior felony conviction “true” and sentenced Appellant to life 

imprisonment in the Institutional Division of Texas Department of Criminal Justice. 

In four issues, Appellant challenges his conviction and contends that: (1) the 

evidence is insufficient to support the jury’s finding that Appellant touched the 

complainant’s genitals as charged in Count Two of the indictment; (2) the trial court 

abused its discretion when it admitted extraneous-offense evidence concerning 

comments Appellant allegedly made that he desired to have sexual relations with a 

neighbor’s minor child; (3) the trial court erred when it overruled Appellant’s 

objection to the admission of the contents of Appellant’s notebooks because this 

evidence should have been excluded under Rules 403 and 404(b) of the Texas Rules 

of Evidence; and (4) the trial court abused its discretion when it admitted Appellant’s 

confession from a prior felony case in the guilt-innocence phase of his trial pursuant 

to Article 38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 38.37 (West Supp. 2022); see also TEX. R. EVID. 403, 404(b). 

I. Factual Background

On June 6, 2014, A.S. and T.B.

1 were staying overnight with their aunt and 

uncle, Stephanie and Corey Wishert, at the house that the Wisherts shared with 

Appellant. At the time, A.S. was seven years old and T.B. was five years old. The 

children were in the living room watching television while the adults were in the 

garage, except for Appellant who had gone to his room earlier that night. While the 

children were alone in the living room, Appellant entered the living room and asked

A.S. for a goodnight kiss. Appellant then pinned A.S. down, kissed her, moved his 

hands under her nightgown and panties, and touched her chest and vagina. Appellant 

then approached T.B. and touched T.B.’s penis and slapped his buttocks.

1

Pseudonyms are used for the children throughout the opinion to protect the children’s identities.
3

Appellant then left the living room and went into the garage. A.S. 

and T.B. followed and told Stephanie what had occurred. Stephanie confronted 

Appellant and asked “is this true?” to which Appellant responded “I don’t know.” 

The next day, Stephanie called the Brown County Sheriff’s Department and reported 

these incidents.

II. Procedural Background

During the trial, the trial court held multiple hearings outside the presence of 

the jury to determine the admissibility of certain evidence proffered by the State. 

A. Testimony Regarding Appellant’s Comments about the Neighbor’s Minor

Child

Prior to the presentation of witness testimony to the jury, the State proffered 

testimony from Timothy Savell. According to Savell, while he shared a room with 

Appellant, Appellant told Savell that he would like to have sex with the neighbor’s 

minor child. The State contended that this evidence was admissible under 

Rule 404(b). Appellant’s trial counsel objected to the admission of these comments

under Rule 403 and asserted that the probative value of Savell’s testimony was 

outweighed by its tendency to prejudice the jury regarding the charges filed against 

Appellant in this case. The State responded that the evidence is “probably some of 

the most probative evidence that I have in the entire case” because it indicated 

Appellant’s intent to commit the charged offense—indecency with a child. The trial 

court, after conducting the Rule 403 balancing test, overruled the objection.

B. Testimony Regarding the Contents of Appellant’s Notebooks

The State proffered two notebooks kept by Appellant in which he wrote about 

his sexual fantasies toward children. Appellant’s trial counsel objected to the 

admission of the notebooks on the grounds that (1) Rule 404(b) precluded the 

admission of the notebooks and (2) the thoughts and comments expressed by 

Appellant in the notebooks were prejudicial. The State responded that the notebook 
4

entries were indicative of Appellant’s motive and intent and were highly probative 

of both because the notebook entries (1) tended to show how Appellant’s behavior 

was sexual in this instance and (2) corroborated T.B.’s testimony that Appellant

spanked him because Appellant had noted fantasies aboutspanking young boys. The 

State then moved to admit only certain excerpts from the notebooks through witness

testimony and agreed not to offer the notebooks as exhibits for the jury’s 

consideration. Appellant’s trial counsel reasserted Rule 403 and 404(b) objections 

to the admission of the specific notebook excerpts offered by the State. The trial 

court overruled Appellant’s 404(b) objection and, after conducting the Rule 403 

balancing test, overruled Appellant’s 403 objection.

C. Appellant’s Confession from a Prior Case

The trial court conducted an Article 38.37, Section 2-a hearing outside the 

jury’s presence during which the State proffered Appellant’s signed confession from 

a prior felony offense that occurred in 1993. Appellant’s trial counsel objected to 

the admission of Appellant’s signed confession claiming that Article 38.37 

precluded its admission. The State responded that the confession was admissible 

under Article 38.37 because Appellant had committed one of the statute’s 

enumerated offenses and the statute did not limit the admissibility of such evidence 

to only the conviction itself. The State also argued that the details of Appellant’s

confession were admissible under Rule 404(b) to show motive, intent to arouse, lack 

of mistake or accident, and common scheme or plan by discussing and comparing 

the similarities between the prior offense and the current offense—the ages of the 

victims, the acts committed toward minor children, and the gender of the children. 

Appellant’s trial counsel re-urged his Rule 404(b) objection regarding the 

confession’s admissibility. At the conclusion of this hearing, the trial court found 

that (1) Appellant’s confession would be adequate to support a finding by the jury 
5

that Appellant committed the prior felony offense beyond a reasonable doubt and 

(2) Appellant’s confession should be admitted. 

 III. Discussion

A. Sufficiency of the Evidence

In his first issue, Appellant challenges the sufficiency of the evidence to 

support his conviction as charged in Count Two. He alleges that there was 

insufficient evidence that he touched the complainant’s genitals.2

 Specifically, 

Appellant contends that evidence of T.B.’s original outcry is insufficient to sustain 

the conviction because T.B. could not recall the incident when he testified, there is 

no physical evidence to connect Appellant to the charged offense, and the eyewitness 

testimony offered by the State was brief and speculative.

1. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard 

of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 

(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all 

of the evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the essential elements of the charged offense 

beyond a reasonable doubt. Jackson, 443 U.S. at 319, Isassi v. State, 330 S.W.3d 

633, 638 (Tex. Crim. App. 2010).

In conducting a sufficiency review, we consider all of the evidence admitted 

at trial, including evidence that may have been improperly admitted. Winfrey v. 

State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 899; 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the 

2

Although Appellant was also convicted of indecency with a child as charged in Count One of the 

indictment, he does not challenge the sufficiency of the evidence to support his conviction for this offense.
6

factfinder’s role as the sole judge of the witnesses’ credibility and the weight their 

testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard is deferential 

and accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh 

the evidence, and to draw reasonable inferences from basic facts to ultimate facts. 

Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. We may not reevaluate the 

weight and credibility of the evidence to substitute our judgment for that of the 

factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Thus, if 

the record supports conflicting inferences, we presume that the factfinder resolved 

the conflicts in favor of the verdict, and we defer to that determination. Jackson, 

443 U.S. at 326, Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012); 

Clayton, 235 S.W.3d at 778. 

The evidence need not directly prove the defendant’s guilt; circumstantial 

evidence is as probative as direct evidence in establishing the defendant’s guilt, and 

circumstantial evidence alone can be sufficient to establish guilt. Carrizales v. State, 

414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 

9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently 

to the defendant’s guilt if the cumulative force of all incriminating circumstances is 

sufficient to support the defendant’s conviction. Hooper, 214 S.W.3d at 13. 

Therefore, in evaluating the sufficiency of the evidence, we treat direct and 

circumstantial evidence equally, and we must consider the cumulative force of all 

the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v. 

State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); Isassi, 330 S.W.3d at 638; 

Hooper, 214 S.W.3d at 13.

2. Analysis

A person commits the offense of indecency with a child if the person engages 

in sexual contact with a child younger than seventeen years of age. PENAL

§ 21.11(a)(1). Sexual contact means any touching by a person, including touching 
7

through one’s clothing, of the anus, breast, or any part of the genitals of a child if the 

act is committed with the intent to arouse or gratify the sexual desire of any person. 

Id. § 21.11(c)(1).

The record shows that four witnesses testified that T.B. made an outcry of 

being inappropriately touched by Appellant. T.B. made his initial outcry to 

Stephanie shortly after the incident occurred. Stephanie testified that T.B. told her 

that “[Appellant] had reached down his pants and touched his pee-pee.” Stephanie 

also testified that when she was told about this, initially she was very upset and tried 

to reconcile Appellant’s version of events with the children’s version. She stated 

that when she asked Appellant about the incident his only response was “I don’t 

know.” Stephanie testified that after she discussed what had occurred with both 

children and Appellant that she “absolutely” believed the children and did not 

believe Appellant “at all.” Stephanie also testified that later that same evening after 

she had reflected and calmed down from the initial shock, she asked the children 

again what had happened and T.B. told her again that Appellant had touched his 

“pee-pee.”

Robert Ramirez, a former deputy with the Brown County Sheriff’s 

Department, testified that T.B. outcried during his forensic interview. Similarly,

Investigator Chrisstena Nelson with the Texas Department of Family and Protective 

Services conducted T.B.’s forensic interview and testified that T.B. outcried during 

the interview. Investigator Nelson testified that, during the interview, T.B. stated 

that Appellant had touched T.B.’s anus and his penis. Investigator Nelson also 

testified that this statement was consistent with the outcry that T.B. made to his aunt.

In addition to the outcry evidence, there is other evidence that Appellant 

touched T.B.’s genitals. A.S. witnessed the acts of sexual misconduct that Appellant 

committed against T.B. A.S. testified that after Appellant had finished touching her, 

she was “kind of disassociating or zoning out” but she believed that Appellant had 
8

done “basically the same thing” to T.B. that he had done to her. A.S. clarified in her 

testimony that she remembered Appellant touching T.B. and she thought that 

Appellant had touched T.B.’s penis. 

Despite this evidence, T.B. and Appellant both testified that Appellant did not 

touch T.B.’s genitals. T.B. testified that he remembered Appellant picking him up 

and slapping his buttocks over his clothing. When asked if he was touched in any 

other way, T.B. answered “No.” Appellant testified that he did not touch T.B.’s 

genitals and claimed that another houseguest was the person who had touched the 

children inappropriately.

Consistent with the applicable standard, we have reviewed the evidence in the 

light most favorable to the jury’s verdict. Stephanie testified that T.B. told her, not 

just once, but twice, that Appellant touched his “pee-pee.” “A child victim’s outcry 

statement alone can be sufficient to sustain a conviction for a sexual offense.” 

Chavez v. State, 324 S.W.3d 785, 788 (Tex. App.—Eastland 2010, no pet.) (citing

Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)). Although T.B.

testified at trial that he had no recollection of being touched inappropriately by 

Appellant, the jury as the sole judge of the credibility of the witness was free to 

believe the outcry witness’s testimony and to disbelieve T.B.’s trial testimony on 

this issue. We presume that the jury resolved any evidentiary conflicts in favor of 

the verdict. Thus, considering the cumulative force of the evidence, we hold that the 

record before us contains sufficient evidence from which a rational jury could have 

logically inferred and found beyond a reasonable doubt that Appellant was guilty of 

indecency with a child as charged in Count Two of the indictment. Accordingly, we 

overrule Appellant’s first issue.

B. Evidentiary Issues

In his second and third issues, Appellant contends that the trial court abused 

its discretion when it admitted (1) comments Appellant made that he desired to have 
9

sexual relations with a neighbor’s minor child and (2) excerpt passages from

notebooks found in Appellant’s bedroom after his arrest.

In his fourth issue, Appellant contends that the trial court abused its discretion 

when it admitted Appellant’s confession from a prior case. Specifically, Appellant 

argues (1) that Article 38.37 does not allow for the admissibility of the details of the 

prior offense, but only that the prior offense occurred and (2) the Gigliobianco

factors weigh against the admission of his confession. See Gigliobianco v. State, 

210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

1. Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); 

Ruiz v. State, 631 S.W.3d 841, 855 (Tex. App.—Eastland 2021, pet. ref’d) (citing 

Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019)). This standard of 

review also applies to a trial court’s decision to admit or exclude extraneous-offense 

evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); 

Barron v. State, 630 S.W.3d 392, 410 (Tex. App.—Eastland 2021, pet. ref’d). We 

will not reverse a trial court’s decision to admit or exclude evidence, and there is no 

abuse of discretion, unless that decision lies outside the zone of reasonable 

disagreement. De La Paz, 279 S.W.3d at 343–44; Ruiz, 631 S.W.3d at 856 (citing 

Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018)); Barron, 630 S.W.3d 

at 410. Furthermore, we will uphold a trial court’s evidentiary ruling, even if the 

trial court’s reasoning is flawed, if it is correct on any theory of law that finds support 

in the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex. 

Crim. App. 2016); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 

2015, no pet.).
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2. Applicable Law

Generally, a party may not introduce evidence of a person’s specific past 

conduct to prove conformity of character. TEX. R. EVID. 404(b); Robbins v. State, 

88 S.W.3d 256, 259 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810 

S.W.2d 372, 386–88 (Tex. Crim. App. 1990)); Barron, 630 S.W.3d at 413.

Nevertheless, extraneous evidence may be admissible for other purposes if it has 

relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457, 469 

(Tex. Crim. App. 2011); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 

2003); Hernandez v. State, 426 S.W.3d 820, 825 (Tex. App.—Eastland 2014, pet. 

ref’d). For instance, such evidence “may be admissible for another purpose, such as 

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Thus, although 

Rule 404(b) generally precludes the admission of character-conformity evidence, it 

does not necessarily prohibit the admission of such evidence if it is offered to 

establish some other purpose. See De La Paz, 279 S.W.3d at 342–43.

Article 38.37, Section 2(b), although similar to Rule 404(b), provides that 

character evidence, that would otherwise be inadmissible under the Texas Rules of 

Evidence or other applicable law, is admissible for any relevant purpose. There is a 

significant difference, however, between Article 38.37 and Rule 404(b) evidence. 

Article 38.37 evidence is admissible as proof of the defendant’s character as well as 

defendant’s propensity to act in conformity with such character, so long as the 

charged offense concerns one of the offenses enumerated in Article 38.37—

including indecency with a child. CRIM. PROC. art. 38.37 §§ 2(a)(1)(B), (b); see 

Wishert v. State, 654 S.W.3d 317, 330 (Tex. App.—Eastland 2022, pet. ref’d); 

Deggs v. State, 646 S.W.3d 916, 922 (Tex. App.—Waco 2022, pet. ref’d); Ryder v. 

State, 514 S.W.3d 391, 398–99 (Tex. App.—Amarillo 2017, pet. ref’d); Harris v.

State, 475 S.W.3d 395, 398–400 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). 
11

Article 38.37, Section 2(b) allows for the admission of evidence that the defendant 

has committed a separate offense of a sexual nature against a child; the “child 

victim” of the separate offense need not be the victim of the offense for which the 

defendant is currently on trial. Wishert, 654 S.W.3d at 330 (citing Deggs, 646 

S.W.3d at 922; Ryder, 514 S.W.3d at 398–99; Harris, 475 S.W.3d at 398–400; 

Belcher v. State, 474 S.W.3d 840, 844–47 (Tex. App.—Tyler 2015, no pet.)). 

For this type of evidence to be admissible under Article 38.37, Section 2(b), 

the defendant need not have been charged with, tried for, or convicted of the separate 

offense. Castillo v. State, 573 S.W.3d 869, 880–81 (Tex. App.—Houston [1st Dist.] 

2019, pet. ref’d). A no-billed sexual-assault offense committed against a child other 

than the victim of the offense on trial is admissible. Bradshaw v. State, 466 S.W.3d 

875, 880 (Tex. App.—Texarkana 2015, pet. ref’d). Moreover, Article 38.37, 

Section 2(b) provides that such evidence is admissible only if the extraneous offense 

is one of the specific offenses enumerated in its provisions, all of which involve 

sexual misconduct of some sort. CRIM. PROC. art. 38.37, § 2(a), (b).

Before extraneous-offense evidence may be admitted pursuant to 

Article 38.37, Section 2(b), the trial court must (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 jury’s presence for that purpose. Ryder, 514 S.W.3d 

at 399; see CRIM. PROC. art. 38.37, § 2-a. In this case, the nature of the challenged 

evidence would satisfy the admissibility requirements of Article 38.37, Section 2(b). 

When evidence of a defendant’s extraneous acts is determined to be relevant 

and admissible under Rule 404(b) or Article 38.37, Section 2(b), and a timely, proper 

Rule 403 objection is made, the trial court must make a Rule 403 balancing 

determination. Montgomery, 810 S.W.2d at 388–89; Keller v. State, 604 S.W.3d 
12

214, 228 (Tex. App.—Dallas 2020, pet. ref’d) (citing Distefano v. State, 532 S.W.3d 

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

“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d 

235, 240 (Tex. Crim. App. 2009) (citing TEX. R. EVID. 402). Evidence is relevant if 

it has any tendency to make a fact of consequence to the determination of the action 

more or less probable than it would without the evidence. TEX. R. EVID. 401; see 

Shuffield v. State, 189 S.W.3d 782, 786–87 (Tex. Crim. App. 2006). However, 

Rule 403 provides that relevant evidence may nonetheless be excluded “if its 

probative value is substantially outweighed by a danger of . . . unfair prejudice.” 

TEX. R. EVID. 403 (emphasis added).

“Rule 403 favors the admission of relevant evidence and carries a presumption 

that relevant evidence will be more probative than prejudicial.” Hayes v. State, 85 

S.W.3d 809, 815 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 376); 

see Martin v. State, 570 S.W.3d 426, 437 (Tex. App.—Eastland 2019, pet. ref’d). 

“Rule 403 requires exclusion of evidence only when there exists a clear disparity 

between the degree of prejudice of the offered evidence and its probative value.” 

Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). Therefore, in 

reviewing a trial court’s Rule 403 determination, we will reverse the trial court’s 

ruling only if a clear abuse of discretion is shown. Mozon v. State, 991 S.W.2d 841, 

847 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 392; Martin, 570 S.W.3d 

at 437.

When undertaking a Rule 403 analysis to determine whether to admit or 

exclude evidence, a trial court must consider several factors (the Gigliobianco

factors) and balance:

(1) the inherent probative force of the proffered item of evidence along 

with (2) the proponent’s need for that evidence against (3) any tendency 

of the evidence to suggest [a] decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 
13 

issues, (5) any tendency of the evidence to be given undue weight by a 

jury that has not been equipped to evaluate the probative force of the 

evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence 

already admitted.

Garcia v. State, 630 S.W.3d 264, 268 (Tex. App.—Eastland 2020, no pet.) (citing 

Gigliobianco, 210 S.W.3d at 641–42). These factors guide our analysis.

3. Savell’s Testimony and Appellant’s Notebook Excerpts

Appellant’s second and third issues raise Rule 403 and 404(b) arguments 

concerning (1) Savell’s testimony that detailed Appellant’s desire to have sex with 

the neighbor’s minor child and (2) excerpts from Appellant’s notebooks that detailed

Appellant’s pedophilic fantasies. Turning first to Appellant’s Rule 404(b) argument, 

he contends that his statements to Savell and his fantasies as contained in his

notebooks are not relevant for any purpose except to prove character conformity. 

The State argues that this evidence is relevant to show that Appellant’s sexual 

contact with the children was made with the requisite intent to arouse or gratify 

Appellant’s sexual desire. 

At the outset, we note that Appellant has not preserved for our review his 

Rule 404(b) argument as it relates to Savell’s testimony. For a complaint to be 

properly preserved for appellate review, a party must present a specific, timely 

objection to the trial court that articulates and makes the trial court aware of the 

specific grounds for the ruling that the complaining party seeks. See TEX. R.

APP. P. 33.1(a)(1)(A); Burg v. State, 592 S.W.3d 444, 448–49 (Tex. Crim. App. 

2020); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). Further, the 

complaint raised on appeal must correspond to and comport with the objection made 

at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). 

Appellant objected under Rule 403 that the probative value of Savell’s

testimony was outweighed by its tendency to prejudice the jury regarding the charges
14 

pending against Appellant in this case. As we have said, an objection asserted at 

trial on one ground cannot support a different contention on appeal. Rezac v. State, 

782 S.W.2d 869, 870 (Tex. Crim. App. 1990). As such, the arguments raised on 

appeal must comport with the objections made at trial, or they are waived. TEX. R.

APP. P. 33.1(a)(1)(A); Dominguez v. State, 474 S.W.3d 688, 699 (Tex. App.—

Eastland 2013, no pet.). Therefore, Appellant has not preserved his Rule 404(b) 

argument for our review. 

Nevertheless, even if Appellant’s complaint had been preserved for our 

review, we conclude that the trial court did not abuse its discretion when it admitted 

Savell’s testimony. Evidence that Appellant expressed a desire to have sexual 

contact with the neighbor’s minor child was not offered to show that Appellant acted 

in conformity with the conduct leading to his conviction; rather, the evidence was 

relevant to establish an element of the charged offense—that the contact was made 

with the intent to arouse or gratify Appellant’s sexual desire. See PENAL

§ 21.11(c)(1). 

Similarly, the trial court did not abuse its discretion when it overruled

Appellant’s Rule 404(b) objection to the admission of the notebook excerpts. The 

notebooks similarly contained statements made by Appellant of his desire to have 

sexual contact with minor children. In this instance, the admitted notebook excerpts 

were relevant to a material, non-propensity issue—Appellant’s intent with respect to 

his sexual misconduct with A.S. and T.B. See PENAL § 21.11(c)(1). 

Because we have concluded that the above evidence had relevance apart from 

character conformity, we now turn to Appellant’s Rule 403 objections. Appellant 

argues that the probative value of the admitted evidence was substantially

outweighed by the danger of misleading or prejudicing the jury because Savell’s 

testimony and the admitted notebook passages were unfairly prejudicial because

they described the most heinous acts—including bondage, aggravated assault, 
15

pedophilia, spanking, anal intercourse, oral sex, and torture. The State contends that 

(1) this evidence was highly probative because it describes Appellant’s intent to seek 

sexual gratification from a minor child—an element of the charged offense—and 

(2) the evidence is only prejudicial because it describes various manners in which to 

sexually abuse a minor child—the same type of conduct that Appellant was currently 

on trial for.

The first two Gigliobianco factors focus on the probative value of the 

evidence. “Probative value” refers to (1) how strongly an item of evidence serves 

to make more or less probable the existence of a fact of consequence to the litigation, 

(2) coupled with the proponent’s need for that item of evidence. Gigliobianco, 210 

S.W.3d at 641. First, Appellant’s desire to have sexual relations with minor children 

makes it more likely that he would have pursued some form of inappropriate

interaction with A.S. and T.B. in this instance with the intent and purpose of arousing 

his sexual gratification. Second, with respect for the State’s need for the evidence, 

the State’s case pitted the outcry witnesses and victim’s version of the events against 

Appellant’s denials. Appellant testified and denied that any conduct of a sexual 

nature ever occurred between him and the children. Thus, Savell’s testimony and 

the notebook excerpts rebutted Appellant’s denials and was relevant to show

Appellant’s intent. Therefore, we conclude that the first two Gigliobianco factors 

weigh in favor of admission of this evidence.

The final four Gigliobianco factors focus on the potential negative effects of 

the proffered evidence. The third factor addresses the tendency of the evidence to 

suggest a decision on an improper basis. Indeed, evidence of a sexual nature that 

involves children or family members is inherently inflammatory and prejudicial. See 

Montgomery, 810 S.W.2d at 397; Roe v. State, 660 S.W.3d 775, 785 (Tex. App.—

Eastland 2023, pet. ref’d). This case is no exception. Savell’s testimony and the 

notebook excerpts were undoubtedly inflammatory given their graphic nature. 
16

However, we note that the trial court limited the admission of both Savell’s 

testimony and the notebook excerpts to those portions that the trial court found were 

most relevant to Appellant’s desire to have sexual relations with minor children. 

Thus, the trial court took adequate measures to mitigate and ensure that the 

challenged evidence would not improperly influence the jury. See Roe, 660 S.W.3d 

at 785; Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d); 

Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d).

The fourth factor focuses on the potential of the proffered evidence to confuse 

or distract the jury from the main issues in the case. This factor weighs in favor of 

admission because the evidence was probative of the nature of the sexual contact 

between Appellant and the children and his intent to arouse his sexual gratification

when engaging in the charged conduct. The fifth factor focuses on the potential of 

the proffered evidence to mislead the jury. While the proffered evidence did not 

pertain to the children who were the victims of the charged offense, as discussed 

previously, it speaks to Appellant’s desire to attain sexual gratification from minor 

children and assists in contextualizing Appellant’s conduct in this case. Finally, the 

sixth factor focuses on the amount of time that was needed to present the proffered 

evidence and whether it was cumulative of other admitted evidence. Savell’s 

testimony concerning Appellant’s comments about the neighbor’s minor child 

spanned just over a page in the reporter’s record. Further, the references to the 

notebook excerpts spanned only four pages of the reporter’s record. 

In short, Savell’s testimony and the notebook excerpts were certainly 

prejudicial. But, to be excluded, the evidence must be unfairly prejudicial. See Ruiz, 

631 S.W.3d at 865 (to be violative of Rule 403 the admitted evidence must be

unfairly prejudicial); see also TEX. R. EVID. 403. Under Rule 403, the probative 

value of relevant evidence is presumed to substantially outweigh the danger of unfair

prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (citing 
17

McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim. App. 1992), overruled on 

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994); Green v. 

State, 840 S.W.2d 394, 410 (Tex. Crim. App. 1992)). It is only when there is a “clear 

disparity” between the prejudice and the probative value of the offered evidence that 

Rule 403 envisions exclusion. Hammer, 296 S.W.3d at 568 (quoting Conner v. 

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). 

Considering the standard of review, the applicable presumptions, and the 

Gigliobianco factors, we cannot conclude that the trial court abused its discretion 

when it overruled Appellant’s Rule 403 objections and admitted this evidence. See 

Hammer, 296 S.W.3d at 568 (“Because Rule 403 permits the exclusion of admittedly 

probative evidence, it is a remedy that should be used sparingly.”). Accordingly, we 

overrule Appellant’s second and third issues.

4. Appellant’s Prior Case Confession

In his fourth issue, Appellant raises an Article 38.37 argument regarding the 

admission of his confession from a prior case that resulted in his prior 

felony conviction. Specifically, Appellant argues that the purpose and scope of 

Article 38.37 is satisfied by evidence of the conviction alone and that the statute does 

not expressly authorize the admission of the underlying details of the prior 

conviction. The State contends that the plain text of the statute supports the 

admission of the details of the prior offense when offered in a subsequent 

prosecution.

Article 38.37, Section 2 states that “. . . 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.” CRIM. PROC. art. 38.37 § 2(b) (emphasis 

added). The inclusion of the word “evidence” in Article 38.37, Section 2 is 

inherently broad. Certainly, if the legislature had intended to limit the admissibility
18

of evidence of a prior conviction to only the conviction or the conviction’s 

corresponding judgment, without any reference to the underlying facts or details of 

the prior offense, the legislature would have instead included the words “conviction” 

or “judgment” in the statute rather than “evidence.” 

Further, the purpose of Article 38.37, Section 2 is to “provide prosecutors 

with a much needed tool to assist them in showing a defendant’s propensity for 

committing these types of crimes.” Senate Rsch. Ctr., Bill Analysis, Tex. S.B. 12, 

83rd Leg., R.S. (2013). In enacting this statute, the legislative commentary states

that “[b]ecause of the nature of child sex offenses, there is typically very little 

evidence to assist prosecutors with proving their cases.” Id. Thus, the legislature 

found it necessary to expand the scope of admissible evidence in these types of cases 

to include evidence of other incidents of sexual abuse that involve a different child 

or multiple children, so that a jury can get a complete picture of the abuse that 

occurred during the guilt/innocence phase of a defendant’s trial. See id. Given the 

plain language and the legislative history of the statute, as well as existing precedent, 

we conclude that the admission of evidence under Article 38.37 is not limited to only

the conviction itself.3

3

We have consistently held that Article 38.37, Section 2(b) provides for the admissibility of such 

extraneous-offense evidence, including both the conviction itself and the underlying facts that resulted in

the defendant’s conviction. See Wishert, 654 S.W.3d at 333-34 (the defendant was convicted of continuous 

sexual abuse of a young child and evidence of defendant’s sexual abuse of his adult children when they

were minors was properly admitted); Rojo v. State, No. 11-17-00225-CR, 2019 WL 3731382 (Tex. App.—

Eastland Aug. 8, 2019, pet. ref’d) (mem. op., not designated for publication) (the defendant was convicted 

of several counts of indecency with a child and evidence of other sexual offenses committed by the 

defendant against other children who were not the alleged victim at trial was properly admitted); Perez v. 

State, No. 11-17-00206-CR, 2019 WL 3227575 (Tex. App.—Eastland July 18, 2019, no pet.) (mem. op., 

not designated for publication) (the defendant was convicted of one count of continuous sexual abuse of a 

child and two counts of sexual assault and evidence of other acts of a sexual nature committed by the 

defendant against a child victim was admissible); Jimenez v. State, No. 11-17-00065-CR, 2018 WL 

3580879 (Tex. App.—Eastland July 26, 2018, no pet.) (mem. op., not designated for publication) (the 

defendant was convicted of continuous sexual abuse of a child and evidence of other sexual offenses 

committed by the defendant against the child victim and other children was admissible); Cornett v. State, 

No. 11-16-00124-CR, 2018 WL 2437132 (Tex. App.—Eastland May 31, 2018, pet. ref’d) (mem. op., not 
19

Appellant further argues that even if the statute is construed to authorize the 

admission of the underlying details of the prior offense, the details of Appellant’s

prior felony offense were dissimilar in magnitude and thus too prejudicial to be 

admitted in the present case. The State contends that these details provided the jury 

with a glimpse of Appellant’s thought processes in having previously committed

similar offenses, which is probative of Appellant’s intent to arouse his sexual 

gratification in this case. 

Appellant objected to the admission of this evidence, consistent with the first 

part of his argument on this issue, on the ground that Article 38.37 is satisfied by the 

admission of the judgment of conviction only. Appellant did not, however, make a 

Rule 403 objection to the admission of this evidence. As we have said, to preserve 

a complaint for appellate review (1) a party must have made a timely, specific 

objection, request, or motion to the trial court that stated the specific grounds for the 

ruling sought by the complaining party, unless the specific grounds were apparent 

from the context, and (2) the trial court must have either ruled on or refused to rule 

designated for publication) (the defendant was convicted of continuous sexual abuse of a child; the 

defendant had a history of violent behavior toward his wife and children and had been investigated by CPS; 

this evidence was relevant and admissible to “paint a full picture” of the family dynamic, the child victim’s 

state of mind, and the relationship between the defendant and the child victim; the evidence also survived 

a Rule 403 challenge); Shimp v. State, No. 11-16-00234-CR, 2017 WL 6395520 (Tex. App.—Eastland 

Dec. 14, 2017, no pet.) (mem. op., not designated for publication) (the defendant was convicted of 

indecency with a child and solicitation of prostitution and evidence of prior acts of indecency committed 

by the defendant, although remote, were admissible to show the defendant’s propensity to commit sexual 

offenses; the evidence was probative and survived a Rule 403 challenge); McKenzie v. State, No. 11-16-

00043-CR, 2017 WL 4440306 (Tex. App.—Eastland Sept. 29, 2017, pet. ref’d) (mem. op., not designated 

for publication) (the defendant was convicted of continuous sexual abuse of a child and evidence that the 

defendant had committed and was arrested for the offense of online solicitation of a minor was admissible 

to show the defendant’s bad character); Luvano v. State, No. 11-14-00122-CR, 2016 WL 1725455 (Tex. 

App.—Eastland Apr. 21, 2016, no pet.) (mem. op., not designated for publication) (the defendant was 

convicted of indecency and evidence of prior acts of sexual misconduct committed by the defendant was 

probative and admissible to show the defendant’s previous and subsequent relationship with the child

victim); Molinar v. State, No. 11-14-00302-CR, 2016 WL 1072641 (Tex. App.—Eastland Mar. 17, 2016, 

no pet.) (mem. op., not designated for publication) (the defendant was convicted of indecency with a child

and evidence of other crimes of sexual misconduct committed by the defendant against “children other than 

the victim” at trial was probative under Rule 403 and admissible).
20

on the request. TEX. R. APP. P. 33.1(a); Burg, 592 S.W.3d at 448–49. Here, neither 

occurred. Therefore, Appellant has not preserved his Rule 403 argument for our 

review.

Nevertheless, even if Appellant had preserved his complaint for our review, 

we conclude that the trial court did not abuse its discretion when it admitted

Appellant’s 1993 confession. The first two Gigliobianco factors, the probative value 

and the proponent’s need for the evidence, weigh in favor of admission. The 

evidence of Appellant’s extraneous conduct as contained in his 1993 confession was 

highly probative because the State was required to prove that Appellant committed 

the charged offense with the intent to arouse or gratify his sexual desire. Moreover, 

Appellant’s confession detailed Appellant’s sexual assault of two young boys, ages

six and eight, by penetrating the children’s anuses and buttocks. While the nature 

of the acts detailed in this confession are of a more extreme nature, the similarity 

between the victims—young boys—and the similarity of the area on which the boys 

were violated—the anus and the buttocks—are probative of the nature of the sexual 

acts that Appellant committed against the children in this case. Further, the State’s 

need to show Appellant’s character of being a child molester, which is a permissible 

use of evidence under Article 38.37, is greater when Appellant claims that his 

conduct was merely an innocent gesture that was misinterpreted. See CRIM. PROC.

art. 38.37, § 2(b). Contrary to Appellant’s assertion, this evidence showed that 

Appellant’s contact with the children was neither innocent nor accidental. 

The final four Gigliobianco factors—the potential negative effects of the 

proffered evidence—do not outweigh the factors that support the admission of this 

evidence. While the sexual acts contained in Appellant’s 1993 confession are of a 

greater magnitude and a more graphic nature than the sexual acts for which 

Appellant was charged in this case, we conclude that these prior acts do not reach 

the level of unfair prejudice such that it would have confused, distracted, or misled 
21

the jury. None of the permissible uses of this proffered evidence under the applicable 

evidentiary rules—namely Rule 403 and Article 38.37, Section 2(b)—weigh in favor 

of a finding of unfair prejudice; Rule 403 only protects a criminal defendant against 

unfair prejudice, not just any prejudice. See James v. State, 623 S.W.3d 533, 549 

(Tex. App.—Fort Worth 2021, no pet.) (“Evidence is not excludable under Rule 403 

if it is merely prejudicial; ‘all evidence against a defendant is . . . designed to be 

prejudicial.’” (alteration in original) (quoting Pawlak v. State, 420 S.W.3d 807, 811 

(Tex. Crim. App. 2013))); Ruiz, 631 S.W.3d at 865 (to be violative of Rule 403 the 

admitted evidence must be unfairly prejudicial); see also TEX.R.EVID. 403. Finally, 

the time needed to develop and admit the proffered evidence was not overly 

burdensome and spans only six pages of the reporter’s record (which totals nine 

volumes). 

Because the proffered evidence was highly probative and carried a low 

likelihood of unfair prejudice, we conclude that the trial court would not have abused 

its discretion if it had performed a Rule 403 balancing analysis and in turn admitted 

this evidence over a Rule 403 objection. Accordingly, we overrule Appellant’s

fourth issue.

IV. This Court’s Ruling 

We affirm the judgment of the trial court. 

W. STACY TROTTER

JUSTICE

August 17, 2023

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.