Opinion filed September 29, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-16-00043-CR

__________

TIMOTHY LEE MCKENZIE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Shackelford County, Texas

Trial Court Cause No. 2014F098

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

The jury convicted Timothy Lee McKenzie of continuous sexual abuse of a 

young child. The trial court assessed his punishment at confinement for life in the 

Institutional Division of the Texas Department of Criminal Justice. In five issues on 

appeal, Appellant contends that the trial court abused its discretion in (1) refusing to 

admit the entire SANE report into evidence, (2) refusing to admit the DNA report 
2

into evidence, (3) refusing to admit evidence of alleged prior false allegations by the 

victim, (4) refusing to admit a turkey baster into evidence, and (5) permitting

evidence of an extraneous offense committed by Appellant. We affirm.

Background Facts

The victim, A.V., is Appellant’s daughter. A.V. was born in 2001. According 

to A.V., Appellant had been molesting her since she was eight years old. On one 

occasion, Appellant crawled into bed with A.V. and attempted to unbutton A.V.’s 

pants. A.V. told Appellant “no,” and Appellant promised that the abuse would stop. 

On another occasion, Appellant digitally penetrated A.V.’s “female genitalia” on the 

living room couch. The abuse continued until May 2014.

On May 7, 2014, A.V. was living with Appellant at Appellant’s 

grandmother’s house in Albany. A.V. told her family that she was going to attend 

church that evening. Instead of attending church, A.V. met with friends. Appellant 

and A.V.’s stepbrother, D.C., found her and brought her home, and her family 

became angry with her for breaking the rules. Ten or fifteen minutes later, Appellant

drove A.V. to Albany Lake. During the trip to the lake, Appellant and A.V. were

alone in Appellant’s vehicle. A.V. testified that Appellant parked near the lake, 

climbed on top of her, removed her clothing, and “put his male genitalia inside [her] 

female genitalia.”

Later that night, A.V. ran away from home and went to a motel where her 

male friend, J.S., lived. The following morning, A.V.’s stepmother, Jessica 

McKenzie,

1

retrieved A.V. from J.S.’s motel room and took her back home, where 

there was “a lot of screaming and yelling.” After approximately twenty minutes, 

A.V. again ran away from home and became lost. At around 9:00 a.m., A.V. arrived 

at a welding shop owned by Danny Peacock. Peacock took A.V. to school.

 

1We will refer to Jessica McKenzie as “McKenzie” in this opinion.
3

Later that morning, A.V.’s maternal grandmother, Diane Sheffield, received 

a phone call that A.V. had run away from home and was found at school. Sheffield 

picked A.V. up from school and took her to Abilene Behavioral Health Clinic

(ABHC), where A.V. had previously been receiving treatment. During the trip to 

ABHC, A.V. told Sheffield that Appellant had raped her.

Suzie Striegler, a sexual assault nurse examiner (SANE), performed a SANE 

examination of A.V. Striegler testified from the SANE report, and page nine of the 

report was admitted as State’s Exhibit No. Three. A.V. told Striegler that Appellant 

had sexually assaulted her but that she did not remember whether or not Appellant 

had penetrated her. Striegler testified that there was redness around A.V.’s vagina

that could be consistent with penetration. Striegler collected vaginal swabs from 

A.V. to test for DNA. Carolyn Van Winkle performed a scientific analysis of the 

DNA swabs collected by Striegler. Van Winkle testified that DNA found on a 

vaginal swab and on A.V.’s panties matched Appellant’s DNA profile.

Appellant’s defensive theory was that A.V. was lying about the May 7 

incident at Albany Lake and that she had used a turkey baster to plant Appellant’s 

DNA in her vagina. Frances Hohenstein is Appellant’s grandmother. Hohenstein 

testified that, prior to May 7, she and A.V. had had a conversation about 

Hohenstein’s turkey baster. In August 2014, three months after the incident at 

Albany Lake, Hohenstein found a turkey baster hidden in the bathroom that she 

shared with A.V. 

Appellant testified in his own defense during the guilt/innocence phase of 

trial. Appellant denied ever sexually assaulting A.V. Instead, he stated that the 

purpose of the trip to Albany Lake was to allow everyone in the family time to calm 

down and to have a conversation with A.V. about her behavior. According to 

Appellant, A.V. was defiant throughout the car ride, which made Appellant angry, 

so Appellant pulled the car over and spanked her.
4

Analysis

In his first four issues, Appellant contends that the trial court abused its 

discretion and denied his “interrelated” Sixth Amendment rights to effectively crossexamine witnesses and to present a defense when it sustained the State’s objections 

to four items of evidence that he sought to offer at trial. Generally, the right to 

present evidence and to cross-examine witnesses under the Sixth Amendment does 

not conflict with the corresponding rights under state evidentiary rules. Hammer v. 

State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); see Miller v. State, 36 S.W.3d 

503, 507 (Tex. Crim. App. 2001) (“A defendant has a fundamental right to present 

evidence of a defense as long as the evidence is relevant and is not excluded by an 

established evidentiary rule.”). As noted by the Court of Criminal Appeals in 

Hammer, there are two scenarios in which rulings excluding a defendant’s evidence 

might rise to the level of a constitutional violation: (1) a state evidentiary rule that 

categorically and arbitrarily prohibits the defendant from offering otherwise 

relevant, reliable evidence that is vital to his defense and (2) a trial court’s clearly 

erroneous ruling excluding otherwise relevant, reliable evidence that “forms such a 

vital portion of the case that exclusion effectively precludes the defendant from 

presenting a defense.” Id. at 561 n.8 (quoting Potier v. State, 68 S.W.3d 657, 663–

65 (Tex. Crim. App. 2002)). Appellant’s first four issues constitute challenges under 

the “second category” because he asserts that the trial court made erroneous rulings 

under the rules of evidence that precluded him from effectively presenting his 

defensive theory. See id.

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

its discretion when it refused to admit the entire SANE report and the DNA report. 

Appellant asserts that the exclusion of this evidence under Rule 412 of the Texas 

Rules of Evidence constituted error. We disagree.
5

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

discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will 

uphold the trial court’s decision unless it lies outside the zone of reasonable 

disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). 

We will uphold an evidentiary ruling on appeal if it is correct on any theory of law 

that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim.

App. 2006); Dering v. State, 465 S.W.3d 668, 670–71 (Tex. App.—Eastland 2015, 

no pet.). 

Evidence regarding the sexual history or promiscuity of a sexual assault 

victim is generally inadmissible. TEX.R.EVID. 412(a); Hammer, 296 S.W.3d at 556. 

However, specific instances of past sexual behavior are admissible if “necessary to 

rebut or explain scientific or medical evidence offered by the prosecutor.” 

TEX. R. EVID. 412(b)(2)(A); Miles v. State, 61 S.W.3d 682, 686–87 (Tex. App.—

Houston [1st Dist.] 2001, pet. ref’d).2

Striegler testified that A.V. had redness inside her vagina that could be 

consistent with penetration. During her testimony, Striegler drew a diagram on a 

white board, indicating where the redness was located. The State offered Striegler’s 

white board diagram into evidence. However, the trial court expressed concern that 

the drawing could not be preserved for the jury’s later use. In response, the State 

offered page nine of the SANE report into evidence, which contained the same 

diagram as that drawn by Striegler on the white board. The trial court admitted page 

nine of the SANE report into evidence.

Appellant then offered the entire SANE report into evidence, arguing that it 

was necessary to explain the medical or scientific evidence under Rule 412 and that 

 

2Rule 412(b)(3) also provides a requirement that the probative value of the proffered sexual history

evidence outweighs the danger of unfair prejudice. Neither the parties nor the trial court addressed this 

requirement of the rule. Accordingly, we do not reach it. 
6

it fell within the rule of optional completeness. See TEX.R.EVID. 107, 412(b)(2)(A). 

The SANE report contained a statement from A.V. indicating that she had had sex 

with J.S. in the motel on the night of May 7. Appellant argued that this information 

was necessary to explain the redness on A.V.’s vagina. The trial court did not allow 

the SANE report to be admitted into evidence. However, the trial court did allow

Appellant to ask Striegler, “Now, based upon your examination and your -- the 

history that you took, do you have any knowledge that would lead you to believe 

that more than one person could have caused that redness?” Striegler responded, 

“Yes, sir.”

Van Winkle testified that DNA collected from A.V. matched Appellant’s 

DNA profile. In a subsequent hearing outside the presence of the jury, Van Winkle 

testified that the DNA swabs collected from A.V. contained three separate DNA 

contributors, including J.S.’s DNA profile. The trial court denied Appellant’s 

request to admit this testimony into evidence, relying on Rule 412. On crossexamination in front of the jury, Van Winkle testified that she could not say how 

Appellant’s DNA came to be found on the vaginal swabs or the panties.

At the beginning of Appellant’s case-in-chief, he reoffered both the entire 

SANE report and the DNA report into evidence under Rule 412 and his “right to 

present evidence in his own defense.” The trial court denied Appellant’s request and 

refused to admit either the entire SANE report or the DNA report into evidence.

On appeal, Appellant contends that the entire SANE report and the DNA 

report were necessary to rebut or explain the State’s medical evidence. We agree

with Appellant’s contention that the entire SANE report and the DNA report rebutted 

or explained the State’s medical evidence. However, we disagree that these matters 

were necessary to rebut or explain the State’s medical evidence as required by 

Rule 412(b)(2)(A). 
7

The State relied on two pieces of scientific or medical evidence to convict 

Appellant: (1) evidence that Appellant’s DNA profile was found in A.V.’s vagina 

and on her panties and (2) evidence that there was redness around A.V.’s vagina. 

We focus our attention on the evidence of redness noted by Striegler.3 Appellant

attempted to explain the redness by offering evidence that A.V. had had sex with 

J.S. on the night of May 7, less than twenty-four hours prior to her SANE exam. 

A.V.’s statement in the SANE report that she had had sex with J.S. on the night of 

May 7 would have provided an explanation for the State’s medical evidence that 

there was redness around A.V.’s vagina on May 8. Furthermore, evidence that there 

was DNA from another male on the vaginal swabs would have rebutted or explained 

the evidence of redness. 

We disagree that the entire SANE report and the DNA report were necessary 

because the trial court permitted Appellant’s counsel to ask Striegler “based upon 

your examination and your -- the history that you took, do you have any knowledge 

that would lead you to believe that more than one person could have caused that 

redness?” By permitting counsel to obtain an affirmative response to this question, 

the trial court struck a balance between Rule 412’s general prohibition against 

evidence of the victim’s previous sexual conduct and the exception provided for 

evidence necessary to rebut or explain scientific evidence. Accordingly, we cannot 

conclude that the trial court abused its discretion by refusing to admit the entire 

SANE report and the DNA report into evidence. 

Moreover, even if the trial court erred in denying the admission of the entire 

SANE report and the DNA report, we conclude that the error was harmless. 

Appellant contends that the exclusion of the SANE and DNA reports was 

 

3Appellant attempted to explain the DNA evidence with testimony from Hohenstein implying that 

A.V. used a turkey baster to plant Appellant’s DNA in her vagina. 
8

constitutional error because it deprived him of his Sixth Amendment right to present 

a defense. The United States Constitution guarantees criminal defendants “a 

meaningful opportunity to present a complete defense.” Holmes v. S. Carolina, 547 

U.S. 319, 324 (2006); Crane v. Kentucky, 476 U.S. 683 (1986). However, the 

erroneous exclusion of evidence generally constitutes nonconstitutional error and is 

reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Walters v. 

State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007); Potier, 68 S.W.3d at 663 

(“Erroneous evidentiary rulings rarely rise to the level of denying fundamental 

constitutional rights to present a meaningful defense.”). The improper exclusion of 

evidence may only establish a constitutional violation when the trial court 

erroneously excludes relevant evidence that is a vital portion of the case and 

effectively precludes the defendant from presenting a defense. Wiley v. State, 74 

S.W.3d 399, 405 (Tex. Crim. App. 2002); Potier, 68 S.W.3d at 659–62. In that 

situation, the more stringent harm standard in Rule 44.2(a) is applied. 

TEX. R. APP. P. 44.2(a); Simpson v. State, 119 S.W.3d 262, 269 n.5 (Tex. Crim. App. 

2003).

Appellant was not precluded from presenting his defense to Striegler’s finding 

of redness. Appellant questioned Striegler about her belief that, based on the history 

that she took from A.V., more than one person could have caused the redness on 

A.V.’s vagina. Because Appellant was allowed to present evidence in support of his 

defensive theory rebutting the redness finding, we cannot say that the trial court’s 

exclusion of the SANE and DNA reports was constitutional error. Accordingly, any 

error would be subject to a nonconstitutional harm analysis under Rule 44.2(b). See 

Potier, 68 S.W.3d at 666; see also TEX. R. APP. P. 44.2(b).

 Pursuant to Rule 44.2(b), we must disregard nonconstitutional error that does 

not affect a defendant’s “substantial rights,” i.e., if upon examining the record as a 

whole, there is a fair assurance that the error did not have a substantial and injurious 
9

effect or influence in determining the jury’s verdict. TEX. R. APP. P. 44.2(b); 

Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Here, there was other

indirect evidence in front of the jury that A.V. had sex with J.S. on the night of 

May 7. As we have previously noted, Striegler testified that, based on the history 

she took from A.V., she believed that more than one person could have caused the 

redness on A.V.’s vagina. Further, A.V. testified that, on the night that Appellant 

sexually assaulted her, she ran away to J.S.’s motel room. McKenzie testified that, 

the next morning, she found A.V. in bed with J.S. in his motel room. Error in the 

exclusion of evidence is rendered harmless where the same evidence is admitted 

elsewhere without objection. See, e.g., Preston v. State, 481 S.W.2d 408, 409 (Tex. 

Crim. App. 1972) (“This Court has consistently held reversal is not required by 

exclusion of evidence where same testimony was later admitted without 

objection.”); Montgomery v. State, 383 S.W.3d 722, 727 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.) (“Although the trial court may have initially excluded this 

evidence, the later admission renders harmless any possible error.”). We overrule 

Appellant’s first and second issues.

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

and denied Appellant his Sixth Amendment right to present a defense when it 

refused to admit evidence of A.V.’s allegedly prior false allegations of sexual abuse. 

Appellant further contends that the exclusion of this evidence deprived him of due 

process of law and was admissible under Texas Rule of Evidence 412.

Prior to opening statements, the trial court held a hearing on the State’s oral 

motion in limine regarding prior false allegations of sexual abuse by A.V. At the 

hearing, Appellant’s trial counsel stated, “[W]e intend to introduce evidence that she 

has made two false outcries previously.” Counsel argued that A.V. had made 

“[o]utcries of sexual molestation by two different individuals, both of which she has 

recanted on and said they were untruthful.” He continued, “There was an outcry 
10

against [D.C.]. We’ve got evidence of that. There was an outcry against [L.M.] and 

she then later denied that those were true.” Counsel argued that the prior false 

allegations were admissible because “I think this goes to credibility of the witness.” 

The trial court granted the State’s motion in limine.

Later during trial, the trial court held a hearing outside the presence of the jury 

regarding the prior false allegations. The trial court instructed Appellant’s trial 

counsel to “make your offer of Defendant’s Exhibit 3 In Camera.” Appellant’s 

counsel replied, “My specific offer is to show that an outcry of prior sexual 

molestation was made.”4 The State objected to the admission of this evidence under 

Texas Rule of Evidence 608(b), and the trial court sustained the State’s objection.

See TEX. R. EVID 608(b). The trial court then asked Appellant’s counsel, “Does that 

complete your proffer?” Appellant’s counsel responded, “That’s it.”

The Court of Criminal Appeals in Hammer addressed the admission of 

evidence of prior false accusations in “sexual assaultive cases.” 296 S.W.3d at 564. 

“There is an important distinction between an attack on the general credibility of a 

witness and a more particular attack on credibility that reveals ‘possible biases, 

prejudices, or ulterior motives of the witness as they may relate directly to issues or 

personalities in the case at hand.’” Id. at 562 (quoting Davis v. Alaska, 415 U.S. 

308, 316 (1974)). A defendant does not have “an absolute constitutional right to 

impeach the general credibility of a witness in any fashion that he chooses.” Id. 

However, the exposure of a witness’s motivation in testifying is proper to show the 

witness’s possible motives, bias, and prejudice. Id. at 562–63.

Rule 608(b) provides that “a party may not inquire into or offer extrinsic 

evidence to prove specific instances of the witness’s conduct in order to attack or 

support the witness’s character for truthfulness.” Unlike some jurisdictions, Texas

 

4As noted, Appellant tendered an in camera exhibit in support of his contention. It consists of a

series of text messages discussing an allegation of sexual assault against L.M. 
11

has not created a per se exception to Rule 608(b)’s general prohibition against 

impeachment with specific instances of conduct to admit evidence of a sex-offense 

complainant’s prior false allegations of abuse or molestation. Id. at 564 (citing 

Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000)). Thus, evidence of 

prior false allegations are not admissible if offered to attack the victim’s credibility

in general. Id. at 565. “If, however, the cross-examiner offers evidence of a prior 

false accusation of sexual activity for some purpose other than a propensity attack 

upon the witness’s general character for truthfulness, it may well be admissible 

under our state evidentiary rules.” Id.

The record does not reflect that Appellant had any purpose for offering the 

prior false allegations other than to attack A.V.’s credibility in general. As noted in 

Hammer, this is not a proper purpose for admitting a prior false allegation. “A sexual 

assault complainant is not a volunteer for an exercise in character assassination.” Id. 

at 564. Accordingly, the trial court did not abuse its discretion in denying admission 

of the prior false allegations. We overrule Appellant’s third issue.

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

and denied Appellant his Sixth Amendment right to present a defense when it 

refused to admit the turkey baster allegedly found in A.V.’s bathroom as an item of 

physical evidence. Both Hohenstein and McKenzie identified the turkey baster as 

the one that was hidden in A.V.’s bathroom. Appellant attempted to offer the turkey 

baster into evidence as Defense Exhibit No. 11 during McKenzie’s testimony. The 

State objected on the ground that McKenzie could not properly authenticate it. 

Appellant responded to the State’s authentication objection, but he did not raise a 

Sixth Amendment claim in seeking the admission of the turkey baster.

As a prerequisite to presenting a complaint for appellate review, the record 

must show that the appealing party “stated the grounds for the ruling that [he] sought 

from the trial court with sufficient specificity to make the trial court aware of the 
12

complaint.” TEX. R. APP. P. 33.1(a)(1)(A). To complain on appeal about the trial 

court’s exclusion of evidence, the proponent “must have told the judge why the 

evidence was admissible” and must have brought to the trial court’s attention the 

same complaint that is being made on appeal. Reyna v. State, 168 S.W.3d 173, 177 

(Tex. Crim. App. 2005). 

Because Appellant did not explain to the trial court why the exclusion of the 

turkey baster infringed on his right to present a defense, he has not preserved this 

issue for review. See Reyna, 168 S.W.3d at 177. Furthermore, the record contains 

numerous references to the turkey baster and Appellant’s contention that A.V. used 

it to plant his DNA in her vagina. Accordingly, the record does not support a 

showing of harm from the trial court’s exclusion of the turkey baster as an item of 

physical evidence. We overrule Appellant’s fourth issue.

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

by admitting evidence that Appellant committed the extraneous offense of online 

solicitation of a minor because the State failed to prove that Appellant committed 

the offense beyond a reasonable doubt and because it was irrelevant. Appellant 

further contends that a ruling on this issue should await a final decision by the Court 

of Criminal Appeals in Leax v. State, No. PD-0517-16. See Leax v. State, No. 09-

14-00452-CR, 2016 WL 1468042 (Tex. App.—Beaumont Apr. 13, 2016, pet. 

granted) (mem. op., not designated for publication).

Taylor County Deputy Sherriff John Graham testified during the 

guilt/innocence phase that he arrested Appellant in October 2013 for online 

solicitation of a minor in Abilene. Deputy Graham created a Craig’s List 

advertisement, posing as a thirteen-year-old prostitute named “Nikki.” Appellant 

responded to the advertisement. Deputy Graham and Appellant exchanged 

numerous sexually explicit text messages, which included two pictures. During his 

communication with Deputy Graham, Appellant began to question whether “Nikki” 
13

was a real person and insisted on setting up a meeting. Posing as Nikki, Deputy 

Graham agreed to meet with Appellant. When Appellant arrived at the meeting 

location, investigators arrested him.

We will first address Appellant’s assertion that the trial court abused its 

discretion in admitting testimony regarding the extraneous offense because it “had 

no relevance apart from the tendency to prove character conformity.” Evidence of 

an individual’s bad character is generally not admissible to show that he acted in 

conformity therewith. TEX. R. EVID. 404; Montgomery v. State, 810 S.W.2d 372, 

386–88 (Tex. Crim. App. 1991). However, under Article 38.37, section 2(b) of the 

Texas Code of Criminal Procedure, in trials for certain offenses, including 

continuous sexual abuse of a young child, “evidence that the defendant has 

committed a separate offense described by Subsection (a)(1) or (2) may be admitted

. . . for any bearing the evidence has on relevant matters, including the character of 

the defendant and acts performed in conformity with that character.” TEX. CODE 

CRIM. PROC. ANN. art. 38.37, § 2(a)(1), (b) (West Supp. 2016) (emphasis added). 

Subsection (a)(1) enumerates the extraneous offenses that may be offered pursuant 

to section 2(b) and includes online solicitation of a minor. Id. § 2(a)(1)(F). 

Therefore, under Article 38.37, the State was entitled to offer evidence that 

Appellant committed the extraneous offense of online solicitation of a minor in order 

to show Appellant’s bad character and that he acted in conformity with that 

character.

Additionally, Appellant asserts that the State failed to prove beyond a 

reasonable doubt that he committed the extraneous offense of online solicitation of 

a minor.

Before evidence described by Section 2 may be introduced, the trial 

judge must: 

(1) determine that the evidence likely to be admitted 

at trial will be adequate to support a finding by the jury 
14

that the defendant committed the separate offense beyond 

a reasonable doubt; and

(2) conduct a hearing out of the presence of the jury 

for that purpose.

CRIM. PROC. art. 38.37, § 2-a. A trial court’s ruling on the admissibility of 

extraneous offenses under Article 38.37, section 2 is reviewed under an abuse-ofdiscretion standard. Bradshaw v. State, 466 S.W.3d 875, 878 (Tex. App.—

Texarkana 2015, pet. ref’d) (citing Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011)).

Under Section 33.021(c) of the Texas Penal Code, a person commits an 

offense if he “over the Internet, by electronic mail or text message or other electronic 

message service or system, or through a commercial online service, knowingly 

solicits a minor to meet another person, including the actor, with the intent that the 

minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse 

with the actor or another person.” TEX. PENAL CODE ANN. § 33.021(c) (West 2016). 

At the time Appellant was arrested for this offense, the statute defined “minor” as 

“an individual who represents himself or herself to be younger than 17 years of age; 

or an individual whom the actor believes to be younger than 17 years of age.” 

Former TEX. PENAL CODE § 33.021(a)(1) (2007).

At the Article 38.37 hearing, Deputy Graham testified that, in August 2013,

he created a Craig’s List advertisement, posing as a teenage female prostitute. 

Appellant initiated communication with Deputy Graham in response to the 

advertisement. Deputy Graham reminded Appellant that the advertisement was for 

a thirteen-year-old prostitute. Appellant responded by asking for a picture of the

girl. Deputy Graham sent Appellant a picture, and Appellant responded that the girl

had on too many clothes. Appellant sent Deputy Graham a nude image of himself. 
15

Appellant asked for additional pictures of the girl, but Deputy Graham refused. 

Appellant asked Deputy Graham, “[S]o for the right price I can f--k you?” 

Upon learning that the girl was being prostituted by her stepfather, Appellant 

responded, “tell him to name his price.” Appellant then began asking where the girl

lived and indicated that he wanted to drive by the girl’s house to confirm that she 

was a real person. Posing as the girl, Deputy Graham agreed to meet with Appellant 

in Abilene. Appellant appeared anxious to “hurry up and to be able to meet” because 

he had to return to work. Investigators met Appellant at the meeting place in Abilene 

and arrested him.

When taken in the light most favorable to the trial court’s ruling, the evidence 

showed that Appellant communicated via text message with an individual 

representing himself to be under the age of seventeen with the intent that the minor 

will engage in sexual intercourse with Appellant. We conclude that the trial court 

did not abuse its discretion in determining that the evidence of the extraneous offense 

was adequate to support a finding by the jury that the defendant committed the 

separate offense beyond a reasonable doubt.

Lastly, Appellant contends that a final ruling on this issue should await the 

Court of Criminal Appeals’ decision in Leax v. State, No. PD-0517-16. In Leax, the 

defendant is challenging the constitutionality of subsection (c) of the online 

solicitation of a minor statute. See Petition for Discretionary Review, Leax, No. PD0517-16. Appellant contends that, if section 33.021(c) is declared unconstitutional, 

then “it is beyond dispute [that] Appellant will be entitled to a new trial.” We note, 

however, that the Court of Criminal Appeals recently held that section 33.021(c) is 

not unconstitutionally overbroad. See Ex parte Ingram, No. PD-0578-16, 2017 

WL 2799980, at *9 (Tex. Crim. App. June 28, 2017). Therefore, we decline 

Appellant’s invitation to postpone disposition of his appeal pending the Court of 

Criminal Appeals’ decision in Leax. We overrule Appellant’s fifth issue.
16

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY 

JUSTICE

September 29, 2017

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

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.