In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-12-00132-CR

KEVIN LERAY HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th District Court

Upshur County, Texas

Trial Court No. 16,027

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
2

MEMORANDUM OPINION

Kevin Leray Henderson appeals his conviction for indecency with a child. See TEX.

PENAL CODE ANN. § 21.11 (West 2011). A jury found Henderson guilty, Henderson pled true to 

two felony enhancements, and the trial court assessed punishment at eighty years’ imprisonment. 

Henderson raises two issues on appeal challenging the legal sufficiency of the evidence 

and the admission of evidence concerning an extraneous offense at the guilt/innocence stage of 

trial. 

I. Sufficiency of the Evidence Standard 

In evaluating legal sufficiency, we review all the evidence in the light most favorable to 

the trial court’s judgment to determine whether any rational jury could have found the essential 

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. 

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency 

review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 

(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in 

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

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined 

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 
3

1997). The “hypothetically correct” jury charge is “one that accurately sets out the law, is 

authorized by the indictment, does not unnecessarily increase the State’s burden of proof or 

unnecessarily restrict the State’s theories of liability, and adequately describes the particular 

offense for which the defendant was tried.” Id. at 240.

Thus, the State had the burden to establish that (1) Henderson, (2) with intent to arouse or 

gratify the sexual desire of any person, (3) exposed his genitals, (4) knowing a child younger 

than seventeen years of age was present. TEX. PENAL CODE ANN. § 21.11. Henderson has only 

challenged the evidence of the last element—knowing a child was present. 

II. Facts 

Alisa Dearman is the assistant manager of the Hidden Bend Apartments where this 

incident took place. On September 30, 2011, Henderson was a maintenance man working at the 

apartment unit on the apartment directly above apartment 22 where R.A., mother of the child 

victim, and her family lived. Dearman was conversing with Henderson and a tenant, Crystal 

Weeks, outside on the grounds of the apartment unit while R.A. was loading her vehicle as the 

child sat in the front seat “waving and hollering.” Dearman spoke to the child and “everybody 

split up.” Dearman and Weeks went into their apartments, and Henderson “shot up the stairs” to 

apartment 46. 

R.A. testified when she returned after picking up her daughter, M.A., from prekindergarten classes, she saw Henderson working in the second floor apartment above her first 

floor apartment. After being in the apartment “a little bit of time,” R.A. and M.A. returned to the 

parking lot. R.A. testified that she needed to untangle some hangers before bringing them in the 
4

apartment. R.A. placed M.A. in the backseat, but testified, “She would be in the truck for a little 

while and then she would get out and I’d have to scoop her back in so I can keep an eye on her.” 

R.A. then described the following events:

Like I said, it was hard to keep her in -- intact in the Suburban. I kept having to 

go after her, but there for awhile, you know, I just got really occupied by 

untangling the hangers that there was just silence and, you know, with children if 

it’s quiet, they’re into something or they’ve run off and it worried me and I called 

out for [M.A.], she didn’t answer me. At that point I walked around my truck, the 

Suburban, and I said [M.A.], and I didn’t see her directly in front, she was on the 

other side in the parking area but at the corner of the passenger of my Suburban 

and I saw that she was looking up at the apartment and I looked up and I saw

Mr. Henderson, he was masturbating and she saw him and I screamed and I 

grabbed her and I took her in my apartment.

. . . .

He was standing at the door, the door was open and it was -- the way the door was 

open it was kind of in the kitchen area and he was standing there. It was wide 

enough and I saw what he was doing and my daughter saw. She’s -- I don’t know 

how long she saw but she saw him do that. She was paying attention to what he 

was doing.

On appeal and at trial, Henderson argued he was inside the apartment. R.A. testified 

Henderson was standing “at the door” and the door was open. After R.A. screamed, picked up 

her child, and went inside her apartment, Henderson ran down the stairs saying, “[Y]ou didn’t 

see anything, y’all didn’t see anything, nothing happened, I’m going to go talk to [Alisa].” 

The State introduced evidence of an extraneous offense. J.B., a child under seventeen 

years of age who resided at the apartment complex, testified that she observed Henderson 
5

masturbating in a doorway on two occasions.1 On the first occasion, J.B. saw Henderson 

“standing in the doorway with his hands in his pants and I just saw like his hands moving and 

stuff, but I didn’t know what he was doing for sure or whatever.” When asked, “Was he inside 

the apartment or outside,” J.B. responded, “He wasn’t like -- it was just in the doorway. I don’t

know like how to explain it . . . .” On the second occasion, Henderson “expos[ed] his genitals.” 

The door was open and Henderson was standing “[i]n the doorway.” J.B. testified that she did 

not know whether Henderson knew she saw and Henderson had never spoken to her about the 

incident. 

III. Analysis of Evidence Sufficiency 

The State is required to prove that when Henderson exposed himself, he knew of the 

presence of the child; Henderson argues that the evidence is legally insufficient. What the 

accused knew often must be proven by inferences from the conduct and circumstances 

surrounding the acts committed by the accused. Turner v. State, 600 S.W.2d 927, 929 (Tex. 

Crim. App. [Panel Op.] 1980). Of course, in analyzing the sufficiency of evidence, we view it in 

the light most favorable to the verdict. Id. at 930. Many similar cases refer to evidence of the 

accused drawing attention to himself; that type of evidence might be highly persuasive that the 

defendant knew of the child’s presence, but it is not essential to prove that fact. Id. 

Henderson forcefully argues that R.A.’s testimony proves that Henderson did not know 

of the child’s presence. When asked by defense counsel if she could testify that Henderson knew 

 1

Henderson argues J.B.’s testimony is not credible because J.B. testified at trial she was playing basketball, but she 

had previously given a statement in which she claimed to have been sitting by the front door of her apartment. 

J.B.’s credibility was determined by the jury.
6

her daughter was present, she replied, “He knew she was present, he knew that she had -- . . .

[he] knew the whole time. From the moment that I got home to the moment that I went out for 

those hangers he saw me with my daughter, he saw that I kept going after her when she would 

get out of the truck.” 

When asked if she could testify “for certain” that Henderson knew of the child’s 

presence, she replied that she did not know “for certain.” We view this testimony as R.A.’s 

attempt to express her belief that even though she could not absolutely know the state of mind of 

Henderson, from all the facts and circumstances she believed that he was aware of the child’s 

presence. The issue is whether the evidence is sufficient to allow a reasonable jury to infer that 

Henderson knew of the child’s presence. 

Several other cases have dealt with similar situations. In Piazza v. State, No. 05-98-

00299-CR, 1999 Tex. App. LEXIS 3861 (Tex. App.—Dallas May 24, 1999, no pet.) (not 

designated for publication),

2 the child testified he was playing in his front yard (which was forty 

yards from the defendant) when he saw a naked man touching his private parts while sitting near 

a window in a house across the street. The evidence showed the defendant had an unobstructed 

view of the front yard where the child was located. The evidence was found legally sufficient to 

support a finding that the defendant knew the child was present. 

In Cantrell v. State, No. B14-92-00809-CR, 1994 Tex. App. LEXIS 838 (Tex. App.—

Houston [14th Dist.] Apr. 14, 1994, no pet.) (not designated for publication), children were 

 2

Although unpublished opinions by the courts of appeals have no precedential value, they may be cited with the 

notation “(not designated for publication).” TEX. R. APP. P. 47.7. A reviewing court may take guidance from 

unpublished opinions “as an aid in developing reasoning that may be employed . . . be it similar or different.”

Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
7

playing in the streets of the neighborhood where Cantrell had lived for a month. As Cantrell was 

walking down the street while his genitals were exposed, a child observed him. Cantrell claimed 

there was no evidence that he knew of the presence of children. The Houston court found it was 

logical for the jury to infer that Cantrell was aware of the playing habits of the children and 

“knew that children would be outside on a sunny, Sunday afternoon.” Id. at *5. There was 

evidence that children were noisy and, therefore, the jury could infer he heard the children 

playing outside even if he did not see them. The evidence that Cantrell knew of the presence of 

the child was sufficient.3

Here, the evidence showed that Henderson was conversing with Dearman outside the 

apartment unit while R.A. and her child were there. Dearman specifically noted the child waved 

and acknowledged her during that time. Henderson then went upstairs to the apartment directly 

above R.A.’s apartment. Photographs were introduced from the apartment door looking onto the 

area where the child was standing, a relatively short distance. From that location, Henderson 

was clearly in view while standing at the apartment door with the door open. After R.A. 

screamed, Henderson came down and said, “Y’all didn’t see anything.” 

 3

Other similar cases are Casper v. State, 634 S.W.2d 39 (Tex. App.—Tyler 1982, no pet.) (standing in front of open 

window and exposing genitals in open view of child playing outside found as sufficient evidence from which 

knowledge and intent could be inferred), and Vann v. State, No. 05-10-00451-CR, 2011 Tex. App. LEXIS 3417, *4 

(Tex. App.—Dallas, May 6, 2011, no pet.) (not designated for publication) (Vann knew child lived across street, 

mother testified she and child had been outside when Vann walked around naked, mother testified he “knew we 

were outside,” child saw him naked through window, and jury could have inferred Vann could see child).
8

Based on this evidence, a reasonable jury could infer that Henderson exposed his genitals 

knowing that a child was present. 4

 The evidence is sufficient for a reasonable jury to conclude, 

beyond a reasonable doubt, that Henderson was guilty of indecency with a child. 

IV. The Extraneous Offense Evidence 

In his second issue, Henderson argues the trial court erred in admitting the extraneous 

offense and bad act5 testified to by J.B. Henderson responds that intent was never placed in 

issue and, alternatively, argues the prejudicial value of the extraneous offense substantially 

outweighed any probative value. The State argues the incident was admissible to prove intent. 

A trial court’s decision to admit or exclude evidence is reviewed under an abuse of 

discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover 

v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion 

so long as the decision to admit evidence is within the “zone of reasonable disagreement.” 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). An appellate 

court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 

622, 627 (Tex. Crim. App. 2003). 

Rule 404(b) of the Texas Rules of Evidence provides, “Evidence of other crimes, wrongs 

or acts is not admissible to prove the character of a person in order to show action in conformity 

therewith.” TEX. R. EVID. 404(b). However, evidence of “other crimes, wrongs or acts” may be 

admissible if it has relevance apart from its tendency “to prove the character of a person in order 

 4

No argument is presented that he did not expose his genitals with intent to arouse or gratify sexual desire. 

5

Although no exposure of Henderson’s genitals occurred during the first incident testified to by J.B., the act 

nevertheless was a bad act.
9

to show action in conformity therewith.” Id. The permissible “purposes” to which evidence of 

“crimes, wrongs or acts” may be put include “proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident.” Id. Extraneous offense evidence 

that logically serves any of these purposes is “relevant” beyond its tendency “to prove the 

character of a person in order to show action in conformity therewith” provided its probative 

value substantially outweighs the danger of unfair prejudice. TEX. R. EVID. 403, 404(b). 

An accused must be tried only for the offense with which he is charged. He may not be 

tried for a collateral crime or for being a criminal generally. Stafford v. State, 813 S.W.2d 503, 

506 (Tex. Crim. App. 1991). The Texas Court of Criminal Appeals has stated,

Generally, evidence of extraneous offenses may not be used against the accused 

in a criminal trial. While such evidence will almost always have probative value, 

it forces the defendant to defend himself against uncharged crimes as well as the 

charged offense, and encourages the jury to convict a defendant based upon his 

bad character, rather than proof of the specific crime charged.

Daggett v. State, 187 S.W.3d 444, 450–51 (Tex. Crim. App. 2005) (footnotes omitted). “Rule 

404(b) sets out an illustrative, not exhaustive, list of exceptions to the prohibition against 

admitting evidence of extraneous offenses including ‘proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.’” Id. at 451 n.13 

(citing TEX. R. EVID. 404(b)). 

Extraneous offense evidence is admissible only if the evidence satisfies a two-pronged 

test: (1) the extraneous offense evidence must be relevant to a fact of consequence in the case 

aside from its tendency to show action in conformity with character, and (2) the probative value 

of the evidence must not be substantially outweighed by the danger of unfair prejudice. Page v. 
10

State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006). Unfair prejudice does not arise from the 

mere fact that evidence injures a party’s case. Unfair prejudice may result from the tendency of 

the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions 

against the defendant. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). 

Evidence is admissible under the first prong if it is relevant to a “fact of consequence”

other than character conformity and remains free of any other constitutional or statutory 

prohibitions. Smith v. State, 314 S.W.3d 576, 591 (Tex. App.—Texarkana 2010, no pet.); see

Segundo v. State, 270 S.W.3d 79, 88 n.19 (Tex. Crim. App. 2008). Henderson correctly argues 

the issue of whether Henderson acted with intent to arouse or gratify the sexual desire of any 

person was never disputed and the extraneous offense evidence was not admissible to prove 

intent to arouse. See Jackson v. State, 320 S.W.3d 873, 885 (Tex. App.—Texarkana 2010, pet. 

ref’d) (when State’s evidence is uncontradicted, extraneous offense evidence not relevant). 

We disagree, though, with Henderson’s argument that the extraneous offense evidence 

was not admissible. Extraneous offense evidence is admissible to “rebut a defensive issue that 

negates one of the elements of the offense.” De La Paz v. State, 279 S.W.3d 336, 343 (Tex. 

Crim. App. 2009). The extraneous offense evidence was admissible to prove the sole disputed 

issue at trial—knowledge that a child was present. 

Henderson’s sole defense at trial was that he lacked knowledge of the child’s presence. 

The extraneous offense and bad act evidence was relevant to prove Henderson’s knowledge of 

the child’s presence. See Bass v. State, 270 S.W.3d 557 (Tex. Crim. App 2008) (extraneous 

offenses of sexual assault admissible to rebut defensive theory of fabrication and that defendant, 
11

a pastor, would not engage in such conduct); Richardson v. State, 328 S.W.3d 61 (Tex. App.—

Fort Worth 2010, pet. ref’d) (extraneous offense evidence of “dumpster diving”—searching trash 

cans to obtain identifying material—was admissible in trial for fraudulent use or possession of 

identifying information to rebut defensive theory that Richardson had no knowledge of 

identifying information). Here, it is at least subject to reasonable disagreement that the 

extraneous evidence testimony by J.B. made less probable Henderson’s defensive theory that he 

did not know of the child’s presence. Therefore, the trial court did not abuse its discretion in 

admitting the evidence.6

 

In the second step of our analysis, we must determine whether the probative value of the 

offense is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. 

Our analysis is guided by the following factors, known as the Montgomery factors: (1) how 

compellingly the extraneous offense evidence serves to make a fact of consequence more or less 

probable, (2) the potential the extraneous offense evidence has to impress the jury “in some 

irrational but nevertheless indelible way,” (3) the time the proponent will need to develop the 

evidence, during which the jury will be distracted from consideration of the indicted offense, and 

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

does the proponent have other probative evidence available to him to help establish this fact, and 

 6

The evidence might also be admissible under the “doctrine of chances” theory. “The ‘doctrine of chances’ tells us 

that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” De La Paz, 279 

S.W.3d at 347. The event in this case—that a child would inadvertently be present while Henderson masturbates in 

a doorway—is something that is unlikely to occur by happenstance. Under the “doctrine of chances,” evidence of 

such a highly unlikely event being repeated suggests that Henderson knew the child was present. We emphasize this 

doctrine is available only in repeated instances of the same or very similar “highly unusual events.” Segundo, 270 

S.W.3d at 88. 
12

is this fact related to an issue in dispute. Montgomery, 810 S.W.2d at 389–90; see De La Paz, 

279 S.W.3d at 349; Jackson, 320 S.W.3d at 885. 

The first factor weighs slightly in favor of the admission of the extraneous offense. 

Although there are naturally differences between the incidents, J.B.’s testimony allows a jury to 

infer a lack of mistake when an unlikely event is repeated. While the extraneous offense 

evidence is not overwhelming evidence of Henderson’s knowledge of the child’s presence, it is 

some evidence of this vital fact. Thus, the evidence is significant in aiding the jury to determine 

a fact of consequence. 

We next consider whether the extraneous offense evidence had the potential to 

improperly influence the jury. Rule 403 does not exclude all prejudicial evidence, but only 

evidence where the probative value is substantially outweighed by the danger of unfair prejudice. 

The extraneous offense evidence informed the jury that Henderson had acted inappropriately in 

the past which, if not offered for a proper purpose, could have the potential to impress the jury in 

some irrational but indelible way. Here, the jury was instructed it could consider the evidence 

only in connection with “lack of mistake or accident as to the defendant.” Since we have found 

this evidence was admissible and the jury instruction limited its use, we cannot find this evidence 

influenced the jury in an improper manner. 

The time needed to develop the evidence was inconsequential. The transcript of J.B.’s 

testimony consists of approximately twelve pages. This minor foray into an extraneous offense 

would not have significantly distracted the jury from the main issue of whether Henderson 

committed the crime charged.
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The need for this evidence also weighs heavily in favor of its admission to prove 

knowledge. Whether Henderson knew the child was present was the sole significant dispute at 

trial. By its very nature, proof of another’s knowledge of a particular fact is difficult; the use of 

circumstantial evidence was certainly not conclusive in proving Henderson knew the child was 

present. The State had significant need for this evidence to prove a fact of consequence.

Because the decision is within the zone of reasonable disagreement, the trial court did not 

abuse its discretion in admitting the extraneous offense evidence. Henderson’s second issue is 

overruled.

For the reasons stated, we affirm the judgment of the trial court.

Jack Carter

Justice 

Date Submitted: April 5, 2013

Date Decided: April 10, 2013

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