NUMBER 13-18-00051-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

KODELL VALENTINO FOSTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 54th District Court

of McLennan County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Contreras and Benavides 

Memorandum Opinion by Justice Contreras

Appellant Kodell Valentino Foster appeals three convictions of sexual assault, 

each a second-degree felony. See TEX. PENAL CODE ANN. § 22.011 (West, Westlaw 

through 2017 1st C.S.). By three issues, appellant argues that: (1) he was denied his 

constitutional right to a speedy trial, (2) the trial court erred when it allowed the 
2

introduction of character evidence, and (3) the trial court erred when it allowed the 

introduction of hearsay evidence. We affirm. 

I. BACKGROUND1

Appellant was arrested in December of 2014. In January of 2015, a grand jury 

indicted appellant on three counts of sexual assault. See id. On March 10, 2016, 

appellant filed a motion for speedy trial and asked that the charges be dismissed with 

prejudice. However, no order setting a hearing on the motion was filed. 

On September 29, 2016, appellant’s defense counsel filed a motion to withdraw as 

attorney of record. The trial court held a hearing on the motion on October 21, 2016, and 

the following exchanged occurred: 

[Defense Counsel]: Mr. Foster, tell the Judge why you asked me to 

file the motion to withdraw. 

[Appellant]: Well, sir, with all due respect to the Court. 

[Counsel] and I, we get along great. I just feel 

like the process isn’t moving along as—as it 

should be. We filed a motion for a speedy trial 

on March the 1st, 2016. Also, there’s evidence 

that proves my innocence that—that’s came 

[sic] out, I believe, that we do have. And I just 

haven’t been able to get any answers up until 

now. I’ve been incarcerated for almost two 

years. I haven’t gotten absolutely any answers 

as far as why I’m still here, why I cannot get a—

a date to go to trial. Since, obviously, the case 

will not get dismissed, I would like to go to trial. 

But I can’t get a date to go to trial. And neither I 

or [Counsel] have been able to get an answer, 

so . . . . 

 

1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a 

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 

(West, Westlaw through 2017 1st C.S.). 
3

The trial court told appellant that, at that time, trial was set for November 7, 2016—

just over two weeks away. At the end of the hearing, the trial court asked, “anything else 

from the State or from the defense at this time?”, and defense counsel answered “No, 

sir.” The trial court responded: “Okay. Then at this time, I’m going to deny the Motion to 

Withdraw.”

Trial began on December 4, 2017.2 The complainant testified that she was 

seventeen years old when the offenses took place. She explained that, while under the 

influence of prescribed medication, she was walking down the street when appellant 

offered to give her a ride to her friend’s house. The complainant accepted his offer and 

got in the vehicle. Appellant, however, drove to his house and sexually assaulted her. 

After the assault was over, appellant drove the complainant away from his house, and 

she got out of the car once she recognized a gas station they had passed. Appellant had 

two roommates at the time of the assault: Estella and Elmer Sadler. Both Mr. and Mrs. 

Sadler testified at trial. 

The State called Mrs. Sadler as a witness during its case in chief. During crossexamination, appellant’s defense counsel asked Mrs. Sadler if she had any concerns 

about her children being around appellant when appellant was home, and she answered 

“No.” The State, on re-direct, asked Mrs. Sadler whether she knew appellant had recently 

been paroled and whether she was aware of his prior felony convictions. Defense counsel 

objected to this testimony under Texas Rules of Evidence 401, 402, 403, 404(b), and 802. 

The trial court overruled the objections. Mrs. Sadler testified that: she knew appellant 

had moved in with her and her husband shortly after being released on parole; she knew 

 

2 Appellant and the State filed agreed requests for a continuance on October 21, 2016; July 3, 

2017; and September 13, 2017.
4

appellant had been imprisoned for multiple years prior to his release on parole; and she 

did not know he had convictions for possession of cocaine, possession of a controlled 

substance with intent to deliver, and possession of a firearm by a felon. 

The jury found appellant guilty of all three counts. The State sought to enhance 

appellant’s punishment due to a prior felony conviction, see id. § 12.42(b) (West, Westlaw 

through 2017 1st C.S.), and appellant pleaded true to the enhancement allegation. The 

jury assessed punishment at confinement for life and a $10,000 fine for each count, with 

the sentences to run concurrently. See id. § 12.32 (West, Westlaw through 2017 1st 

C.S.) (providing that a first-degree felony is punishable by imprisonment for a term 

between five to ninety-nine years and a fine not to exceed $10,000). This appeal followed. 

II. RIGHT TO SPEEDY TRIAL 

By his first issue, appellant argues that his right to a speedy trial was violated. 

A. Applicable Law and Standard of Review

A criminal defendant has the right to a speedy trial. See U.S. CONST. amends. VI, 

XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (West, Westlaw 

through 2017 1st C.S.); Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014); 

see also Dillingham v. U.S., 423 U.S. 64, 65 (1975) (noting that the right to a speedy trial 

is triggered by formal indictment or arrest). “This ensures that the defendant is protected 

from oppressive pretrial incarceration, mitigates the anxiety and concern accompanying 

public accusations, and ensures that the defendant can mount a defense.” Henson v. 

State, 407 S.W.3d 764, 766 (Tex. Crim. App. 2013) (citing Barker v. Wingo, 407 U.S. 514, 

532 (1972)). 
5

We analyze speedy trial claims “on an ad hoc basis,” weighing and balancing the 

factors set forth in Barker v. Wingo: (1) the length of the delay, (2) the reason for the 

delay, (3) the assertion of the right, and (4) the prejudice to the accused. Cantu v. State, 

253 S.W.3d 273, 280 (Tex. Crim. App. 2008); see Barker, 407 U.S. at 530. “While the 

State has the burden of justifying the length of delay, the defendant has the burden of 

proving the assertion of the right and showing prejudice.” Cantu, 253 S.W.3d at 280. 

“The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the State’s 

degree of culpability for the delay.” Id. 

We apply a bifurcated standard of review to a trial court’s ruling on a speedy trial 

claim. Id. at 282. We review the factual components for an abuse of discretion, while we 

review the legal components de novo. Id. Review of the individual Barker factors 

necessarily involves factual determinations and legal conclusions, but the balancing test 

as a whole is “a purely legal question.” Id. With regard to the trial court’s resolution of 

factual issues, we view all the evidence in the light most favorable to the trial court’s 

ultimate ruling. Id.

B. Preservation

Preservation requirements apply to speedy-trial claims. Henson, 407 S.W.3d at 

768. “Without a requirement of preservation, a defendant would have great incentive not 

to insist upon a speedy trial and then to argue for the first time on appeal that the 

prosecution should be dismissed because of delay.” Id. at 769. Thus, a defendant can 

“either fail to insist upon a speedy trial and reap the benefits caused by delay, or he can 

insist on a prompt trial, and if it is not granted, argue for a dismissal.” Id. 
6

To preserve a speedy-trial claim for appellate review, a defendant must: (1) raise 

the claim before trial begins, (2) present evidence of the claim to the trial court, and (3) 

obtain a ruling after presentation of evidence of the claim. See TEX. R. APP. P. 33.1; 

Gonzalez, 435 S.W.3d at 805–08; Henson, 407 S.W.3d at 768–69; Crocker v. State, 441 

S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Dean v. State, 995 

S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref’d). Appellate courts will generally find 

that a trial court made an implicit ruling on an objection when the objection was brought 

to the trial court’s attention and the trial court’s subsequent action clearly addressed the 

complaint. See James v. State, 102 S.W.3d 162, 169 (Tex. App.—Fort Worth 2003, pet. 

ref’d); State v. Kelley, 20 S.W.3d 147, 153–54 & n.3 (Tex. App.—Texarkana 2000, pet. 

ref’d). 

C. Analysis

Here, appellant filed a motion for speedy trial on March 10, 2016, but he did not 

obtain a hearing or an explicit ruling on the motion. On appeal, appellant points to the 

trial court’s hearing on the motion to withdraw in support of his speedy trial argument. 

The State argues that appellant did not preserve this complaint for our review. Assuming, 

without deciding, that appellant preserved error, we proceed to analyze the Barker 

factors. Cantu, 253 S.W.3d at 280.

1. The First Factor: Length of Delay

The length of the delay between an initial charge and the defendant’s demand for 

speedy-trial acts as a triggering mechanism. See Zamorano v. State, 84 S.W.3d 643, 

648 (Tex. Crim. App. 2002) (en banc); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. 

App. 1999) (en banc). Unless the delay is presumptively prejudicial, courts need not 
7

examine the other three factors. Zamorano, 84 S.W.3d at 648. Thus, any speedy trial 

analysis depends first upon whether the delay is more than “ordinary”; if so, the longer 

the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant. 

Gonzalez, 435 S.W.3d at 809; Zamorano, 84 S.W.3d at 649. 

Here, the delay of twenty-two months between appellant’s arrest and the denial of 

his motion for speedy trial is presumptively prejudicial and sufficient to trigger a Barker 

analysis. See Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992) (noting that a oneyear delay is presumptively prejudicial); Shaw v. State, 117 S.W.3d 883, 888–89 (Tex. 

Crim. App. 2003) (same). Because the delay of twenty-two months triggers judicial 

examination of the claim, this factor weighs against the State. See Gonzalez, 435 S.W.3d 

at 809; Zamorano, 84 S.W.3d at 649. 

2. The Second Factor: Reason for Delay

Once the length of time is found to be presumptively prejudicial, the burden of 

justifying the delay falls on the State. Smith v. State, 436 S.W.3d 353, 355 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d) (citing Cantu, 253 S.W.3d at 280); see Zamorano, 

84 S.W.3d at 649. Unjustifiable reasons for the delay count towards the “length of delay,” 

while justifiable reasons for delay do not. Gonzales, 435 S.W.3d at 810; see Munoz, 991 

S.W.2d at 822 (“A valid reason for the delay should not be weighed against the 

government at all.”). For example, 

A deliberate attempt to delay the trial in order to hamper the defense should 

be weighed heavily against the government. A more neutral reason such 

as negligence or overcrowded court should be weighed less heavily but 

nevertheless should be considered since the ultimate responsibility for such 

circumstances must rest with the government rather than with the 

defendant. Finally, a valid reason, such as a missing witness, should serve 

to justify appropriate delay. 

Zamorano, 84 S.W.3d at 649. 
8

This was a criminal prosecution for three offenses of sexual assault, where the 

stories from the accused and complainant were in conflict. The State explained at the 

hearing on appellant’s motion to withdraw that part of the delay occurred due to DNA 

testing that was ordered. The record indicates that the initial request for DNA testing was 

submitted on December 19, 2014 and that the initial report was issued on July 16, 2015. 

The report excluded appellant as the source of the DNA recovered from the complainant 

after the assault. 

In a sexual assault case, a delay due to pending DNA results that could favor either 

the State or the accused is a justifiable, valid reason for the delay. See Barker, 407 U.S. 

at 531–32; Brown v. Bobby, 656 F.3d 325, 333–34 (6th Cir. 2011); State v. Davis, 549 

S.W.3d 688, 702–03 (Tex. App.—Austin 2017, no pet.); Celestine v. State, 356 S.W.3d 

502, 507–08 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In the underlying hearing 

on appellant’s motion to withdraw, appellant conceded as much, stating that he believed 

the DNA results from July 16, 2015 proved his innocence. Thus, the delay of seven 

months between appellant’s arrest in December of 2014 and the initial DNA results issued 

on July 16, 2015 was a valid and justifiable delay. See Brown, 656 F.3d at 333–34; 

Celestine, 356 S.W.3d at 507–508; Davis, 549 S.W.3d at 702–03. 

Excluding the time required for the initial DNA testing (seven months) from the total 

length of the delay at the time of the hearing on appellant’s motion to withdraw (twentytwo months), we are left with a delay of about fifteen months. The record does not contain 

an explanation for this delay, but part of it may have been due to further DNA testing 

requested by the State. In the absence of an explanation, the trial court could not 

presume either a deliberate delay by the State in order to prejudice the defendant or a 
9

valid reason for the delay. Huff v. State, 467 S.W.3d 11, 29 (Tex. App.—San Antonio 

2015, pet. ref’d) (citing Shaw, 117 S.W.3d at 889; Dragoo v. State, 96 S.W.3d 308, 314 

(Tex. Crim. App. 2003)). At most, the delay amounted to official negligence. See 

Zamorano, 84 S.W.3d at 649–50. Thus, we conclude that the delay of fifteen months 

weighs against the State, but not heavily.3 See Dragoo, 96 S.W.3d at 314; Zamorano, 

84 S.W.3d at 649 (“Although negligence is obviously to be weighed more lightly than a 

deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide 

between acceptable and unacceptable reasons for delaying a criminal prosecution once 

it has begun”); Huff, 467 S.W.3d at 29; Smith, 436 S.W.3d at 365.

3. The Third Factor: Assertion of Right

Appellant filed a motion for speedy trial and asked the court to dismiss the case, 

not to set a trial date. “If a defendant fails to first seek a speedy trial before seeking 

dismissal of the charges, he should provide cogent reasons for this failure.” Cantu, 253 

S.W.3d at 283; see State v. Davis, 549 S.W.3d 688, 704 (Tex. App.—Austin 2017, no 

pet.). Appellant provided no such reasons here. Also, “[r]epeated requests for a speedy 

trial weigh heavily in favor of the defendant, while the failure to make such requests 

supports an inference that the defendant does not really want a trial, he wants only 

dismissal.” Cantu, 253 S.W.3d at 283; see Henson, 407 S.W.3d at 769. Here, appellant 

only raised his speedy-trial complaint once, and it was raised fifteen months after being 

 

3 We note that appellant’s trial began almost fourteen months after the hearing on his motion to 

withdraw. Subsequent to that hearing, the State and appellant filed joint, agreed motions to reset the trial 

date on October 21, 2016; July 3, 2017; and September 13, 2017. Those actions “are inconsistent with a 

demand for a speedy trial,” see Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013), and we 

exclude agreed resets from our delay calculation. Lopez v. State, 478 S.W.3d 936, 942 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d) (quoting Celestine v. State, 356 S.W.3d 502, 507–08 (Tex. App.—

Houston [14th Dist.] 2009, no pet.)). The agreed resets covered the time frame from the hearing on the 

motion to withdraw until trial began.
10

arrested. “Under Barker, appellant’s failure to diligently and vigorously seek a rapid 

resolution is entitled ‘strong evidentiary weight.’” Cantu, 253 S.W.3d at 283 (quoting 

Barker, 407 U.S. at 531–32).

This factor weighs against appellant. 

4. The Fourth Factor: Prejudice

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ the fourth 

Barker factor examines whether and to what extent the delay has prejudiced the 

defendant.” Id. at 285. We analyze the prejudice to appellant in light of the interest the 

speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration, 

(2) to minimize the accused’s anxiety and concern, and (3) to limit the possibility that the 

accused’s defense will be impaired. Id. Prejudice to the accused’s defense is the most 

serious “because the inability of a defendant adequately to prepare his case skews the 

fairness of the entire system.” Id.

Appellant did not testify that he was anxious or concerned about the case or that 

his incarceration was oppressive. More importantly, appellant did not testify or argue that 

his defense was impaired in any way. Finally, appellant raised his speedy-trial complaint 

fifteen months after being arrested, and his silence for the entirety of that time suggests 

that any hardships he suffered were either minimal or caused by other factors. See United 

States v. Palmer, 537 F.2d 1287, 1288 (5th Circ. 1976) (concluding that appellant’s 

silence for thirty months after arrest worked against him); Cantu, 253 S.W.3d at 284–85

(similar). 

This factor weighs heavily against defendant. 

D. Balancing Test
11

In sum, the evidence in this case fully supports the trial court’s ruling. There was 

a delay of fifteen months that weighs in favor of finding a violation of appellant’s right to a 

speedy trial. However, from the record, we conclude that appellant did not really want a 

speedy trial; he wanted only a dismissal of the charges. The nature of the State’s delay 

and official negligence, the tardiness of appellant’s sole assertion of his speedy-trial right, 

and the lack of any substantial personal or defense prejudice resulting from the State’s 

delay convinces us that the trial court did not err in denying appellant’s motion for speedy 

trial. We conclude appellant was not denied his Sixth Amendment right to a speedy trial. 

See Barker, 407 U.S. at 534; Cantu, 253 S.W.3d at 286–87; Dragoo, 96 S.W.3d at 308. 

We overrule appellant’s first issue. 

III. CHARACTER EVIDENCE 

By his second issue, appellant argues that the trial court erred when it allowed the 

State to introduce character evidence because (1) defense counsel did not open the door 

to allow for its admission and (2) its probative value was substantially outweighed by the 

danger of unfair prejudice. Specifically, appellant complains of testimony elicited from 

Mrs. Sadler regarding appellant’s parole in December of 2014 and her knowledge of 

appellant’s prior convictions. 

A. Standard of Review and Applicable Law

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

discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge 

abuses his discretion when his decision falls outside the zone of reasonable 

disagreement. Id. If the trial court’s evidentiary ruling is correct under any applicable 
12

theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient 

reason for the ruling. Id. 

“In a criminal case, a defendant may offer evidence of the defendant’s pertinent 

trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.” TEX.

R. EVID. 404(a)(2). “A witness who testifies to the defendant’s good character may be 

cross-examined to test the witness’s awareness of relevant specific instances of conduct.” 

Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002) (internal quotations omitted) 

(citing TEX. R. EVID. 405(a)); see Harrison v. State, 241 S.W.3d 23, 27–28 (Tex. Crim. 

App. 2007). The purpose of the cross-examination is to demonstrate that (1) the 

character witness is not really familiar with the defendant’s character because he or she 

was unaware of prior incidents or (2) the character witness, who is familiar with this 

incident and nonetheless asserts that the defendant has a good character for this trait, 

has a very low threshold for “good” character. Wheeler v. State, 67 S.W.3d 879, 886 n.16 

(Tex. Crim. App. 2002) (en banc); see Wilson, 71 S.W.3d at 350. However, the incidents 

inquired about must be relevant to the character traits at issue. Wilson, 71 S.W.3d at 

351; Murphy v. State, 4 S.W.3d 926, 931 (Tex. App.—Waco 1999, pet. ref’d). 

Even when such rebuttal testimony is admissible, however, a court may still 

exclude it “if its probative value is substantially outweighed by a danger of one or more of 

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or 

needlessly presenting cumulative evidence.” TEX. R. EVID. 403. 

B. Analysis

Here, defense counsel asked Mrs. Sadler whether she had any qualms about 

having her children around appellant. Mrs. Sadler answered no. This communicated 
13

that, in her opinion, appellant possessed character good enough to live in the same house 

as her children. See Harrison, 241 S.W.3d at 25, 27–28; Pantoja v. State, 496 S.W.3d 

186, 191–92 (Tex. App.—Fort Worth 2016, pet. ref’d); Burke v. State, 371 S.W.3d 252, 

261 (Tex. App.—Houston [1st Dist.] 2011 pet. dism’d). Therefore, the door was opened 

for cross-examination of Mrs. Sadler regarding her awareness of specific instances of 

conduct by appellant. See TEX. R. EVID. 404(a)(2), 405(a); Harrison, 241 S.W.3d at 27–

28; Wilson, 71 S.W.3d at 350; Turner v. State, 4 S.W.3d 74, 78–79 (Tex. App.—Waco 

1999, no pet.). 

Appellant complains of two pieces of Mrs. Sadler’s testimony elicited by the State: 

(1) that she was aware he had been recently released on parole after multiple years of 

incarceration; and (2) that she was unaware he had prior felony convictions for 

possession of cocaine, possession of a controlled substance, and possession of a firearm 

by a felon. Appellant argues that the testimony does not “logically rebut [Mrs. Sadler’s] 

testimony that she was not concerned with her children being around appellant.” We 

disagree. The incidents inquired about show that appellant’s character might pose a risk 

of endangerment to Mrs. Sadler’s children. Cf. In re B.C.S., 479 S.W.3d 918, 926–27 

(Tex. App.—El Paso 2015, no pet.) (“Imprisonment alone does not constitute an 

endangering course of conduct, but it is a fact properly considered on the endangerment 

issue.”); In re A.L.H., 468 S.W.3d 738, 746–47 (Tex. App.—Houston [14th Dist.] 2015, no 

pet.) (noting that, for parental rights to be terminated, “a parent need not know for certain 

that the child is in an endangering environment; awareness of such a potential is 

sufficient”); In re S.T., 263 S.W.3d 394, 401–02 (Tex. App.—Waco 2008, pet. denied) 

(noting that criminal acts by a parent were evidence of endangerment). Here, the 
14

objected-to testimony demonstrated that: (1) Mrs. Sadler was not familiar with appellant’s 

character because she was unaware of three of his prior felony convictions; and (2) Mrs. 

Sadler, who was familiar with appellant’s recent incarceration for multiple years, has a 

low threshold for “good” character. See Wilson, 71 S.W.3d at 350; Wheeler, 67 S.W.3d 

at 886 n.16. Accordingly, we conclude the trial court did not abuse its discretion when it 

admitted the objected-to testimony. 

Nevertheless, appellant argues that, even if the testimony is admissible under Rule 

404, the testimony’s probative value was substantially outweighed by the danger of unfair 

prejudice. See TEX. R. EVID. 403; Tucker v. State, 456 S.W.3d 194, 206 (Tex. App.—San 

Antonio 2014, pet. ref’d). Again, we disagree. 

When the trial court exercises its discretion not to exclude evidence by finding that 

the probative value of the evidence is not outweighed by the danger of unfair prejudice, 

we give deference to that decision. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. 

App. 2003); Navarro v. State, 535 S.W.3d 162, 168 (Tex. App.—Waco 2017, pet. ref’d); 

Tucker, 456 S.W.3d at 206. Therefore, in determining whether the probative value of the 

evidence is substantially outweighed by the danger of unfair prejudice, we do not conduct 

a de novo review, and we “should reverse the judgment of the trial court rarely and only 

after clear abuse of discretion.” Tucker, 456 S.W.3d at 206 (quoting Moses, 105 S.W.3d 

at 627). In our review, we must 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 decision on an improper basis, (4) any tendency of 

the evidence to confuse or distract the jury from the main issues, (5) any tendency of the 

evidence to be given undue weight by a jury that has not been equipped to evaluate the 
15

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. 

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).

In this case, the trial court could have reasonably concluded that the objected-to 

testimony by Mrs. Sadler was probative because it showed Mrs. Sadler formulated her 

opinion while aware that appellant had recently been released on parole after being 

incarcerated for several years and without the knowledge that he had been previously 

convicted of three felonies. This factor weighs in favor of admission. See id. at 641; 

Navarro, 535 S.W.3d at 167–68; Turner, 4 S.W.3d at 78–79. 

We agree that Mrs. Sadler’s testimony was prejudicial. But, under Rule 403, mere 

prejudice will not render the evidence inadmissible; instead, the admission of the 

evidence must be unfairly prejudicial. See TEX. R. EVID. 403. Unfair prejudice “refers to 

a tendency to suggest decision on an improper basis, commonly, though not necessarily, 

an emotional one.” Tucker, 456 S.W.3d at 207 (quoting Gigliobianco, 210 S.W.3d at 641); 

Johnson v. State, 263 S.W.3d 405, 428 (Tex. App.—Waco 2008, pet. ref’d) (citing Casey 

v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007)). For example, evidence might be 

unfairly prejudicial if it invokes the jury’s hostility or sympathy for one side without regard 

to the logical probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. That is 

not the case here. Mrs. Sadler’s testimony was not so graphic or appalling that it would 

impress the jury in some irrational, but indelible way or suggest a decision on an improper 

basis. Cf. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (en banc) 

(concluding that offense of abuse of a corpse could potentially affect the jury in an 

emotional way); Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009 pet. ref’d) 
16

(noting that extraneous-offense evidence of previous sexual assault of a child can “have 

a tendency to suggest a verdict on an improper basis because of the inherently 

inflammatory and prejudicial nature of crimes of a sexual nature committed against 

children”). This factor weighs in favor of admission. See Tucker, 456 S.W.3d at 207. 

“Confusion of the issues” refers to a tendency to confuse or distract the jury from 

the main issues in the case. Gigliobianco, 210 S.W.3d at 641. For example, evidence 

that consumes an inordinate amount of time to present or answer might tend to confuse 

or distract the jury from the main issues. Tucker, 456 S.W.3d at 207 (citing Gigliobianco, 

210 S.W.3d at 641). Here, Mrs. Sadler’s testimony was straightforward and did not take 

an inordinate amount of time; therefore, this factor favors admission of the evidence. See 

Gigliobianco, 210 S.W.3d at 641.

“Misleading the jury” refers to a tendency of an item of evidence to be given undue 

weight by the jury on other than emotional grounds. Id. at 641; Tucker, 456 S.W.3d at 

207. For example, scientific evidence might mislead a jury that is not properly equipped 

to judge the probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. Mrs. 

Sadler’s testimony was not prone to this tendency because it concerned matters easily 

comprehensible by lay people. See id.; Tucker, 456 S.W.3d at 207. Appellant also does 

not discuss or elaborate how the complained-of testimony would have misled the jury or 

how the jury was likely to give the testimony undue weight. This factor weighs in favor 

of admission. See Gigliobianco, 210 S.W.3d at 641; Tucker, 456 S.W.3d at 207.

Finally, “undue delay” and “needless presentation of cumulative evidence” concern 

the efficiency of the trial proceeding rather than the threat of an inaccurate decision. 

Gigliobianco, 210 S.W.3d at 641; Tucker, 456 S.W.3d at 207. Here, the testimony in 
17

question was very narrowly limited, constituted a very brief section of the record, and was 

not repetitive. See Tucker, 456 S.W.3d at 208; Greer v. State, 436 S.W.3d 1, 9 (Tex. 

App.—Waco 2014, no pet.). Therefore, this factor weighs in favor of admission. 

In sum, balancing the Rule 403 factors, we conclude the trial court did not abuse

its discretion when it overruled appellant’s objection. See TEX. R. EVID. 403; Hammer v. 

State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009); Gigliobianco, 210 S.W.3d at 642–

43; Newton, 301 S.W.3d at 321–22.

We overrule appellant’s second issue. 

IV. HEARSAY

By his third issue, appellant challenges the same testimony by Mrs. Sadler on the 

basis that it was hearsay. 

Hearsay is an out of court statement offered to prove the truth of the matter 

asserted in the statement, and it is inadmissible unless otherwise provided by statute or 

the rules of evidence. See TEX. R. EVID. 801(d), 802; Willover v. State, 70 S.W.3d 841, 

845 (Tex. Crim. App. 2002). 

In his brief, appellant claims that “Ms. Sadler’s testimony about [appellant’s] parole 

status and his criminal record could only have been based on what she had been told, 

presumably by her husband, Mr. Sadler, who had been [appellant’s] best friend for 

seventeen years.” However, Ms. Sadler never stated at the trial court that she learned 

these facts from Mr. Sadler, and appellant does not point us to any out-of-court assertion 

in Mrs. Sadler’s testimony. On this record, Mrs. Sadler’s testimony did not contain an outof-court statement, and there is no basis for determining that her statements were 

hearsay. 
18

We overrule appellant’s third issue. 

V. CONCLUSION

We affirm the trial court’s judgment. 

DORI CONTRERAS

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 19th

day of December, 2018.