In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00155-CR

___________________________

On Appeal from Criminal District Court No. 2

Tarrant County, Texas

Trial Court No. 1540729D

Before Kerr, Bassel, and Wallach, JJ.

Memorandum Opinion by Justice Wallach

MICHAEL EARL TRANSUE, Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Michael Earl Transue appeals from his conviction for aggravated

sexual assault of his five-year-old granddaughter, Chloe.

1 See Tex. Penal Code Ann. 

§ 22.021(a)(2)(B). In four issues, he challenges the trial court’s admission of 

extraneous offenses (issues one through three) and the trial court’s failure to submit a 

voluntariness instruction under Texas Penal Code Section 6.01. Because we hold that 

the trial court did not abuse its discretion in admitting evidence of some of the 

extraneous offenses, that Transue was not harmed by the admission of evidence of 

the other extraneous offenses, and that Transue was not entitled to a voluntariness 

instruction, we will affirm.

Background

Transue is Chloe’s grandfather. On a Monday in January 2018, Transue babysat 

for Chloe and her brother because it was a school holiday, and their father, Ethan,

had to work. Ethan had been married to the children’s mother, Grace, but by that 

time, they were divorced or in the process of finalizing their divorce. Grace had 

moved with the children from Bedford to College Station, and the children returned 

to Bedford on weekends to stay with Ethan. Transue and his wife also lived in 

Bedford.

1

To protect the complainant’s anonymity, we use an alias to refer to her and to 

some of her family members. See Tex. Const. art. I, § 30(a)(i); McClendon v. State, 

643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3

After the holiday weekend, Ethan returned the children to Grace, and they 

came back to Bedford the next weekend. That Saturday, Chloe told Ethan that when 

she and “Grampy” were in the bathtub, she “put [her] mouth on Grampy’s peepee.”

“Grampy” is Transue. Ethan told Chloe that what her grandfather had done was 

wrong, and Chloe responded, “[B]ut, Daddy, he said he liked it.”

Ethan immediately called Grace, and after a discussion, they called Child 

Protective Services. Ethan also contacted the Bedford police.

Soon thereafter, Chloe underwent two forensic interviews in College Station. 

During the first, on January 25, Chloe did not mention the sexual assault.2 Then, on

February 5, Chloe underwent a sexual-assault examination by a pediatric nurse 

practitioner. The exam took place at the advocacy center at which Chloe’s forensic 

interview had been conducted. Before that exam, Ethan and Grace had taken Chloe 

out to lunch, and during lunch Chloe had been very apprehensive. She told her 

parents that she was scared that the people at the advocacy center were going to laugh 

at her. Her parents assured her that she could trust them. During the exam that 

afternoon, Chloe told the nurse that one day she had been with Grampy and she had 

“put [her] mouth on his noodle.” Chloe also told the nurse that it had happened only 

once and that Transue did not touch her body.

2

The interviewer asked Chloe if anyone had touched her private parts or if she 

had ever told anyone that she had, and Chloe denied it, other than a time when she 

and her brother had played too hard. She also denied having ever seen anyone else’s 

private parts.
4

Based on Chloe’s statements to the nurse, the second forensic interview was 

arranged for the same day with the same interviewer who had conducted the previous 

interview. Once again, Chloe did not disclose any abuse to the interviewer.

3 Ethan

was not surprised that Chloe did not want to talk to the interviewer during either 

interview because he knew that she was anxious and uncomfortable. The video 

recordings of Chloe’s interviews were admitted at trial and published to the jury.

Bedford police detective Patrick Ripley interviewed Transue. At the interview, 

Transue provided a written statement in which he stated that while babysitting on the 

day in question, he had decided to take a hot shower because it helped with his pain 

from various medical issues. He claimed that Chloe had come into the bathroom 

without his noticing, grabbed his penis, and kissed it, and that when he chastised 

Chloe, she became angry and left the bathroom.

Grace told Ripley about improper sexual conduct that Transue had committed 

against her in 1990, when she was a child. According to Grace, when she was five, she 

3

During the interview, Chloe seemed distracted and had a hard time sitting still. 

The interviewer asked her about her exam with the nurse. Chloe said the exam was so 

that the nurse could give her a check-up to make her healthy and strong. Chloe then 

started doing sit-ups on the beanbag chair in which she was sitting. The interviewer 

then asked if Chloe knew anyone who had been touched on their private parts. Chloe 

said, “Yes” and named someone not involved in this case. When asked to repeat what 

she had said, rather than answer, Chloe began doing a backbend on the beanbag chair.

The interviewer then asked Chloe if she had seen anyone else’s private parts or if 

anyone had asked her to touch their private parts, and Chloe, still lying on her back 

across the beanbag chair, said no.
5

and Transue were in the bathtub together, and Transue encouraged her to touch his 

penis.

When Grace talked about the case with her uncle Ryan, Transue’s younger 

brother, Ryan told her that Transue had also committed sexual acts against him when 

he was a child in the 1970s; Transue is almost seventeen years older than Ryan. Ryan

described three times when Transue performed oral sex on him. One of those 

incidents occurred in a bathtub, and during that encounter, Transue also tried to talk 

Ryan into performing oral sex on him.

The grand jury indicted Transue for intentionally or knowingly causing his 

sexual organ to contact the mouth of Chloe, a child under fourteen years of age. See id.

§ 22.021. The indictment further alleged that Chloe was under six years old at the time 

of the offense. See id. § 22.021(f)(1) (increasing the maximum penalty for an offense 

committed against a child under six years old).

The State filed a notice of intent to introduce extraneous offenses regarding the 

acts against Grace and Ryan. The State further noticed its intent to introduce

Transue’s 1974 conviction in California for aggravated sexual assault by “lewd acts”

with Alex Hopkins,4 a minor child. Transue had pled guilty to that offense. See Cal. 

Penal Code § 288.

4

Alex Hopkins is a pseudonym.
6

The California complaint charging Transue with the aggravated-sexual-assault 

offense also included fourteen other sexual offenses against three minor boys—Alex 

Hopkins, Harry Hopkins, and John Foster.5 The complaint further included three 

drug offenses: possessing drug paraphernalia, possessing amphetamines, and 

providing marijuana to John Foster, a minor. All of the offenses were alleged to have 

been committed in October 1974. The plea papers related to the complaint and to 

Transue’s guilty plea contain no indication that Transue had pled guilty to the other

offenses, and there is no indication in the record that he was ever tried for them.

Nevertheless, the State supplemented its notice to include them.

Transue filed a motion to exclude evidence of the extraneous offenses. After a 

hearing, the trial court overruled Transue’s objections.

During trial, Grace testified about the incident with Transue in the tub when 

she was a child. Ryan also testified about Transue’s actions toward him when he was a 

child, and he identified one of the complainants in the California complaint, John 

Foster, as “the nephew of a mutual friend of both my mother and my brother

[Transue], who had taken him into her home because, I guess, he had had trouble at 

home—at his own home.” Ryan did not know the other two boys named in the 

California complaint.

5

Harry Hopkins and John Foster are also pseudonyms.
7

During Ripley’s testimony about the investigation, the State sought admission 

of State’s Exhibit 2, which included the California complaint and the documents

related to his guilty plea. Transue’s attorney objected that “there’s no finding of guilt, 

there’s no plea, there’s no judgment, [and] [t]here’s no admission by [Transue]” related 

to any of the offenses in the complaint other than the one offense to which Transue

had pled guilty. He also objected on the basis of hearsay and Texas Rule of Evidence

403. The trial court overruled the objections. However, the State published to the jury 

only the plea documents related to the adjudicated offense against Alex Hopkins and 

did not question witnesses about the unadjudicated offenses or mention them in its 

opening or closing arguments.

The State also put on testimony from Lindsey Dula, who works as a forensic 

interviewer with Alliance for Children, a children’s advocacy center in Tarrant County.

Dula testified that Chloe’s failure to make an outcry statement in the forensic

interviews is “not a conclusive thing” and that the interview room had items in it that 

could distract a five-year-old child from making an outcry. Dula stated that some of 

the interviewer’s questions, such as, “[A]re you scared of anyone,” and “Has anyone 

hurt you,” might not lead to an outcry when a child was abused by someone the child 

knew, if the child was not hurt, or if the child did not understand that he or she had 

been sexually abused. Dula further stated that the questions asking Chloe if she had 

ever touched someone else’s private parts or if anyone had touched hers would not 

necessarily have elicited an outcry because children Chloe’s age do not understand 
8

that “touching” can include any kind of contact, not just touching with one’s hand, 

and so Chloe may not have understood that she was being asked if she had been told 

to put her mouth on someone’s penis.

Chloe also testified at trial. Chloe told the jury that on the day of the offense, 

Transue asked her to go into the bathroom. When she did so, Transue told her to take 

her clothes off and get into the bathtub. She complied, and then Transue “put his 

private part in [her] mouth.”

At the charge conference, Transue requested the following instruction under 

Texas Penal Code Section 6.01:

[A] person commits an offense only if he voluntarily engages in 

conduct[;] therefore, if you believe from the evidence beyond a 

reasonable doubt that the Defendant’s sexual organ contacted the mouth 

of [Chloe], as alleged in the indictment, but you further believe from the 

evidence or you have a reasonable doubt thereof that the conduct act 

was not the voluntary act or conduct of the Defendant, you will acquit 

the Defendant and say by your verdict not guilty.

The trial court overruled Transue’s request. The jury found Transue guilty.

Discussion

Transue’s first three issues challenge the trial court’s admission of the 

extraneous-offense evidence. His first issue challenges the trial court’s admission of 

the unadjudicated sex-and-drug extraneous offenses in State’s Exhibit 2, the

1974 California complaint and related plea documents, because no evidence proves 

beyond a reasonable doubt that he committed them. In his second issue, Transue 

argues that the trial court erred by admitting in the guilt–innocence phase of the trial 
9

the three unadjudicated extraneous drug offenses in the California complaint because 

they are not one of the extraneous offenses allowed to be admitted under Texas Code 

of Criminal Procedure Article 38.37. See Tex. Code Crim Proc. Ann. art. 38.37. In his

third issue, he argues that the trial court erred by admitting all of the extraneous 

offenses—the offenses in the California complaint and the evidence about the abuse 

of Ryan and Grace—because they were too remote to be probative.

To simplify our analysis, rather than addressing Transue’s issues in order, we 

first address the part of his third issue challenging the admissibility of the testimony of 

Ryan and Grace and the evidence related to the adjudicated California offense. We 

then jointly address the parts of all three issues that relate to admission of the part of 

the California complaint setting out the unadjudicated California offenses.

I. The Offenses Against Ryan and Grace and the Adjudicated California 

Offense

A. Admission of Extraneous Sex Offenses—Remoteness

In a prosecution for a sexual offense against a child, Texas Code of Criminal 

Procedure Article 38.37 authorizes admission of extraneous sexual offenses, 

notwithstanding Texas Rules of Evidence 404 and 405. Id. art. 38.37 § 2. The article 

does not limit the admission of an extraneous offense based on when the offense was 

committed. However, Article 38.37 is subject to Texas Rule of Evidence 403. See Dies 

v. State, 649 S.W.3d 273, 284 (Tex. App.—Dallas 2022, pet. ref’d); Perez v. State, 

562 S.W.3d 676, 688 (Tex. App.—Fort Worth 2018, pet. ref’d). Under that rule, the 
10

trial court “may exclude relevant evidence 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.

A Rule 403 analysis includes consideration of four factors:

(1) “how compellingly the extraneous offense evidence serves to make a 

fact of consequence more or less probable—a factor [that] is related to 

the strength of the evidence presented by the proponent to show the 

defendant in fact committed the extraneous offense” and

(2) “the force of the proponent’s need for this evidence to prove a fact 

of consequence, i.e., does the proponent have other probative evidence 

available to him to help establish this fact, and is this fact related to an 

issue in dispute,” balanced against

(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 potential the other offense evidence has to impress the jury ‘in 

some irrational but nevertheless indelible way.’”6

6

The Court of Criminal Appeals has also phrased these factors differently to 

more closely reflect the language of Rule 403: (1) the inherent probative force of the 

proffered item of evidence; (2) the proponent’s need for that evidence; (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 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, 641–42 (Tex. Crim. App. 2006). 

However, the court still uses the phrasing set out in Mozon. See, e.g., Inthalangsy v. State, 

634 S.W.3d 749, 758 (Tex. Crim. App. 2021).
11

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Santellan v. State,

939 S.W.2d 155, 169 (Tex. Crim. App. 1997)); see also Sanders v. State, 422 S.W.3d 809, 

815 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Reese v. State, 33 S.W.3d 238, 

240–41 (Tex. Crim. App. 2000)). Because remoteness can lessen the probative value

of extraneous-offense evidence, it is an aspect that the trial court should consider in 

evaluating an offense’s probativeness. West v. State, 554 S.W.3d 234, 239–40 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.).

“If judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial 

court is reviewed by an appellate tribunal.” Montgomery v. State, 810 S.W.2d 372, 

379 (Tex. Crim. App. 1990) (quoting United States v. Long, 574 F.2d 761, 767 (3d Cir. 

1978)). Thus, when the balance is close, the reviewing court “should favor admission,

in keeping with the presumption of admissibility of relevant evidence.” Sanders, 

422 S.W.3d at 815. We reverse a trial court’s determination under a Rule 

403 balancing test “rarely and only after a clear abuse of discretion.” Montgomery, 

810 S.W.2d at 392 (op. on reh’g) (quoting United States v. Maggitt, 784 F.2d 590, 

597 (5th Cir. 1986)). “Considering that the trial court has the best view of the 

evidence, an appellate court will uphold a trial court’s ruling on admissibility so long 

as it is within the ‘zone of reasonable disagreement.’” Inthalangsy, 634 S.W.3d at 754.

B. Rule 403 Application

Transue argues in his third issue that the extraneous offenses were not 

probative and should not have been admitted under Rule 403. His brief focuses 
12

primarily on the gap in time between the offense alleged in this case and the 

extraneous offenses. He also argues under this issue that the offenses against Ryan

and the California adjudicated offense are too dissimilar from the offense against 

Chloe to be probative because those extraneous offenses (1) involved a male 

complainant and (2) involved his touching the penis of the complainant, rather than 

the complainant’s touching his penis.

1. Probative Value of the Extraneous Sex Offenses

We disagree that the extraneous sex offenses are too dissimilar to the offense 

against Chloe to be probative. The offenses against Ryan, the one against Grace, and 

the one against Chloe all involved a minor family member. As the State points out, the 

adjudicated California offense, the act involving Grace, and Transue’s acts against

Ryan all involved “not . . . penetrative sex but . . . penile manipulation—either 

Transue’s or the [complainant’s].” The offenses against Grace and Chloe involved 

Transue’s being in a bathtub, as did one of the incidents described by Ryan. Further, 

Ryan’s testimony included a description of an instance when Transue asked Ryan to 

perform oral sex on him. Although the jury did not hear evidence about the details of 

the adjudicated California offense other than that it involved Transue’s committing “a 

lewd and lascivious act upon and with the body and certain parts” of a young male,

the offense also involved a minor, and Transue pled guilty to that offense.

Regarding Transue’s second and primary argument regarding probativeness, we 

further disagree that the offenses were too remote. Remoteness of an extraneous 
13

offense does not, by itself, require exclusion of extraneous-offense evidence. Dies, 

649 S.W.3d at 285. “Rather, remoteness is but one aspect of an offense’s 

probativeness the trial court is to consider along with the other factors in the Rule 

403 analysis.” Id. (quoting West, 554 S.W.3d at 239–40).

The adjudicated California offense and the offenses against Ryan occurred in 

the 1970s, around forty-eight years before trial. The offense committed against Grace

occurred around thirty-two years before trial. We held in a previous case that 

extraneous acts were too remote from the time of trial to be probative because they 

had occurred fifty years before and had not resulted in convictions, and because there 

had been no intervening misconduct to narrow the time gap. See Perez, 562 S.W.3d at

690. We reach a different conclusion here. For one thing, the California offense 

resulted in a conviction, unlike the extraneous acts in Perez. For another, the offense 

against Grace narrows somewhat the time gap between the acts against Ryan and the 

offense against Chloe. Further, the adjudicated California offense, the acts against 

Ryan, and the act against Grace have similarities to the offense against Chloe that 

strengthen the probative value of the extraneous offenses. See Dies, 649 S.W.3d at 285. 

This factor weighs in favor of admissibility.

2. State’s Need for the Evidence

Regarding the second factor, the State needed the evidence. The State had little 

evidence to establish the offense other than Chloe’s testimony and the testimony of 

the two witnesses to whom she had made her outcry statements. Although forensic 
14

interviewer Dula testified that Chloe’s failure to make outcry statements in her 

forensic interviews did not conclusively establish that the assault had not occurred, 

Dula’s testimony was not evidence that the assault did occur. Transue’s story was not 

to deny the incident but to claim that he had been a passive and unwilling participant 

in what happened. Transue’s attorney emphasized in closing arguments that even if

the jury accepted Chloe’s outcry statements, all she had said was that she had put her 

mouth on Transue’s penis, not that he had made her do it or had told her to do so.

He also questioned the investigating detective about the fact that in Chloe’s 

statements to her father and to the pediatric nurse practitioner, she never said that 

Transue had made her put her mouth on his penis or had asked her to do it.

Further, Transue’s attorney repeatedly brought up the fact that Chloe had not 

reported any abuse by Transue in either forensic interview. His attorney asked Chloe 

about the forensic interviews and whether she had told the truth during them. The

attorney asked multiple witnesses questions about the fact that in her interviews, 

Chloe had made statements suggesting possible inappropriate touching of her by her 

younger brother,

7 whereas she had not reported anything of the kind against Transue 

7

Chloe’s brother was three years old at the time. In Transue’s attorney’s 

opening statement, he told the jury members that they would be watching Chloe’s 

forensic interviews and that “[n]obody else did anything sex—she does mention her 

[younger brother] had done something sexually with her[,] and I’m not really 

concerned. He’s a young man. I’m not concerned about that. But no one else did 

anything, no one.”
15

in the interviews. He also emphasized this fact in opening statement and closing 

arguments.

In summary, without the extraneous-offense evidence, “the State’s case 

essentially would come down to the word of [the] complainant against [Transue’s].”

West, 554 S.W.3d at 240. “There was no physical evidence or eyewitness testimony 

supporting [Chloe’s] allegations, . . . several of the State’s witnesses . . . basically 

repeated what [Chloe had] told them,” see id., and Transue’s attorney thoroughly 

challenged the credibility of her outcry statements. Thus, the State had a definite need 

for this evidence, and this factor weighs in favor of its admissibility.

3. Time Spent Developing the Evidence

We disagree with Transue that the time spent on the evidence, during which 

the jury was not considering the offense against Chloe weighs against admissibility. 

The State and Transue agree that the challenged evidence was developed over 

42 pages out of 324 pages of testimony, or just under thirteen percent of the total trial 

testimony. That figure includes not only the time that the State spent on developing 

the evidence but also the time that Transue spent on cross-examination. See, e.g.,

Inthalangsy, 634 S.W.3d at 759 (holding that the State did not spend an inordinate 

amount of time on evidence relating to the death of a kidnapping victim, in a case

charging defendant with committing murder of another person in the course of the 

kidnapping, when four out of the State’s sixteen witnesses testified partially or 

exclusively about the kidnapped person’s death). The development of the extraneous-
16

offense evidence did not take up an inordinate amount of time. This factor weighs in 

favor of admissibility. See id.; Drew v. State, No. 03-21-00392-CR, 2023 WL 2718452, at 

*9 (Tex. App.—Austin Mar. 31, 2023, no pet.) (mem. op., not designated for 

publication).

4. Effect on the Jury

With the final factor, although “evidence of previous child sexual abuse is 

inherently inflammatory by nature,” Grace’s allegation of abuse was similar to Chloe’s. 

See Dies, 649 S.W.3d at 286. On the other hand, Ryan’s allegations involved acts on

more than one occasion. However, we do not believe that the evidence relating to 

Grace, Ryan, or Alex Hopkins was unfairly prejudicial. See Wells v. State, 558 S.W.3d 

661, 670 (Tex. App.—Fort Worth 2017, pet. ref’d) (holding that extraneous offense 

evidence was prejudicial, “but not unfairly so” because “its prejudicial nature [arose]

from the fact that it was especially probative of [the a]ppellant’s propensity to prey on 

underage members of his household”). The effect of the evidence on the jury may

have been indelible, but if so it was not irrational, given the similarity of the nature of 

the offenses and that the legislature has authorized evidence of unadjudicated sexual 

offenses in sexual-assault cases. See Sanders, 422 S.W.3d at 815; see also Tex. Code Crim 

Proc. Ann. art. 38.37. We see no indication that the challenged evidence confused or 

distracted the jury from the main issue in the case, was given undue weight by the 

jury, or suggested a decision on an improper basis. The evidence presented was not 
17

the kind of evidence that the jury was unequipped to evaluate. Therefore, this factor 

does not weigh against admissibility.

C. Conclusion

“Because Rule 403 permits the exclusion of admittedly probative evidence, it is 

a remedy that should be used sparingly, especially in ‘he said, she said’ sexualmolestation cases that must be resolved solely on the basis of the testimony of the 

complainant and the defendant.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. 

App. 2009). The testimony of Grace and Ryan and the adjudicated California offense 

were highly relevant “as compelling propensity evidence” and thus needed to rebut 

Transue’s attacks on the credibility of Chloe’s outcry statements. See Turpen v. State, 

No. 05-22-00284-CR, 2023 WL 3674600, at *4 (Tex. App.—Dallas May 26, 2023, no 

pet.) (mem. op.). After considering those and the other relevant factors, we conclude 

that Transue failed to rebut the presumption of admissibility. Accordingly, the trial 

court did not abuse its discretion in admitting the evidence.

II. The Unadjudicated California Sex-and-Drug Offenses

In the trial court, Transue also challenged the admission of the unadjudicated

California offenses. On appeal, in addition to complaining about the remoteness of 

the offenses, Transue cites Code of Criminal Procedure Article 38.03 to assert that 

because a charging instrument gives rise to no inference of guilt at a defendant’s trial,

the California complaint was “evidence of nothing.” See Tex. Code Crim Proc. Ann. 

art. 38.03 (providing that “[t]he fact that [a defendant] has been arrested, confined, or 
18

indicted for, or otherwise charged with, the offense gives rise to no inference of guilt 

at his [or her] trial”); cf. Mendiola v. State, 21 S.W.3d 282, 286–87 (Tex. Crim. App. 

2000) (Keller, J., dissenting) (noting that the court had never considered whether the 

rule in Article 38.03 applies to extraneous offenses but that application of the rule to 

such offenses “seem[ed] logical” because “being accused is no evidence of guilt”). As 

Transue notes, the plea documents contained in State’s Exhibit 2 do not state that any 

of the unadjudicated counts had been waived as part of a plea agreement, and they 

contain no acknowledgement by Transue of his guilt of those offenses. The only 

evidence offered by the State relating to the California complaint’s allegations about

the unadjudicated offenses was the complaint itself.

8 That is, the State offered no 

evidence to show that Transue had committed those offenses. But c.f. Tanash v. State, 

468 S.W.3d 772, 775 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (upholding 

admission in guilt–innocence stage of testimony from arresting police officer 

regarding the appellant’s prior arrest). We will assume for purposes of this opinion 

that admitting the California complaint without redacting the unadjudicated offenses 

8

The State cites several cases for the proposition that evidence that uncharged 

or unadjudicated extraneous offenses may be introduced in the guilt–innocence stage.

The State is correct, but each case that it cites involved a witness testifying about the

extraneous offense. See Castillo v. State, 573 S.W.3d 869, 879 (Tex. App.—Houston [1st 

Dist.] 2019, pet. ref’d); Curry v. State, No. 2-07-359-CR, 2008 WL 5265187, at *1 (Tex. 

App.—Fort Worth Dec. 18, 2008, pet. ref’d) (mem. op., not designated for 

publication); Beasley v. State, 838 S.W.2d 695, 701 (Tex. App.—Dallas 1992, pet. ref’d). 

It cites no case involving the admission of only a charging instrument in an attempt to 

prove an unadjudicated offense during the guilt–innocence stage.
19

was an abuse of discretion. See, e.g., Tex. Code Crim. Proc. Ann. art. 38.37 § 2-a 

(providing that before admitting extraneous sexual-offense evidence, the trial court 

must hold a hearing to 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); Inthalangsy, 634 S.W.3d at 757 (recognizing that 

the standard of proof required to admit evidence of extraneous offenses is beyond a 

reasonable doubt). We will therefore review the record to determine if the error9 is

reversible. See Tex. R. App. P. 44.2.

A. Standard of Review

Because a trial court’s erroneous admission of evidence is nonconstitutional 

error, our review of the error is governed by Rule 44.2(b) of the Texas Rules of 

Appellate Procedure. Patterson v. State, 508 S.W.3d 432, 440 (Tex. App.—Fort Worth 

2015, no pet.). That rule requires us to disregard any nonconstitutional error that does 

not affect an appellant’s substantial rights. Tex. R. App. P. 44.2(b). A substantial right 

is affected when the error had a “substantial and injurious effect or influence in 

determining the jury’s verdict.” Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 

2005); see King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. 

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error 

9

We agree with Transue that the three drug offenses in the complaint were not 

admissible under Article 38.37, and we cannot see how they have relevance to proving 

the offense against Chloe unless used as prohibited character evidence. See Tex. R. 

Evid. 404(b); see also Tex. Code Crim. Proc. Ann. art. 38.37.
20

does not affect a substantial right if the appellate court has a fair assurance from an 

examination of the record as a whole that the error did not influence the jury or that it

had but a slight effect. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). In 

deciding that question, we consider (1) the character of the alleged error and how it 

might be considered in connection with other evidence, (2) the nature of the evidence 

supporting the verdict, (3) the existence and degree of additional evidence indicating 

guilt, and (4) whether the State emphasized the complained-of error. Id.; Motilla v. 

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury 

instructions, the State’s theory, any defensive theories, closing arguments, and even 

voir dire, if applicable. Haley, 173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56.

B. Analysis

Regarding the evidence in the case, the jury had before it Chloe’s testimony, 

which was sufficient by itself to support a conviction. See Gonzales v. State, 477 S.W.3d 

475, 480 (Tex. App.—Fort Worth 2015, pet. ref’d). But the jury also learned that 

Chloe had participated in two forensic interviews and that in both interviews, she said 

nothing about the incident. On the other hand, Chloe’s father and the pediatric nurse 

practitioner both testified about outcry statements that Chloe had made to them. The 

jury also heard the probative testimony of Grace and Ryan about similar past sexual 

abuse by Transue and that Transue had pled guilty to another sexual offense against a 

minor, Alex Hopkins, in California. The nature of the unadjudicated sexual offenses 
21

were not more serious than the offenses that the jury heard Transue had committed 

against his family members, and the drug offenses were even less serious.

As for the State’s emphasis of the evidence, although the State asked Ryan

during his testimony if he knew John, Alex, or Harry, the State did not ask any witness 

about the unadjudicated offenses. The State did not mention the unadjudicated 

offenses in its opening or closing arguments. When the State published State’s Exhibit 

2 to the jury, it read aloud only the plea documents associated with that offense.

As for the jury charge, we note that an instruction regarding extraneous offense 

evidence can minimize any harm resulting from the admitting the evidence of the 

offense. See Clifford v. State, 653 S.W.3d 1, 13 (Tex. App.—Austin 2022, pet. ref’d)

(citing Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2014, no 

pet.), and noting that jury instruction can minimize harm from extraneous offense 

evidence). Here, the trial court instructed the jury that it could consider the offenses 

committed against Grace, Ryan, and Alex Hopkins (the complainant for the 

adjudicated California offense and some of the unadjudicated offenses) only if it

believed the acts occurred beyond a reasonable doubt. That instruction was not 

specific to the single adjudicated offense against Alex and therefore also mitigated any

effect from the admission of the complaint as to the unadjudicated offenses allegedly 

committed against him. However, the charge did not include any reasonable-doubt 

instruction specific to the acts committed against Harry Hopkins or John Foster, the 

other two complainants in the California complaint, perhaps because, as the record 
22

reveals, Transue did not request any instruction related to the unadjudicated offenses 

or object to the failure to provide one.

10 See, e.g., Delgado v. State, 235 S.W.3d 244, 246, 

251 (Tex. Crim. App. 2007) (holding that trial court must include a reasonable-doubt 

instruction in jury charge when prosecution offers evidence of an extraneous offense 

at guilt–innocence stage, but only when requested by defendant). Nevertheless, even 

without the instruction, the record as a whole does not show harm. The charge

included an instruction to the jury that the fact that a person has been arrested for or 

charged with an offense gives rise to no inference of guilt. Given that instruction, the 

state of the evidence, and the fact that the State did not question any witness about 

the unadjudicated offenses, did not publish them to the jury, and did not mention 

them in its opening or closing arguments, we conclude that the admission of the

unadjudicated offenses could not have had more than a slight effect on the jury. See

Macedo, 629 S.W.3d at 240. We overrule the remainder of Transue’s first three issues.

III. Denial of Voluntariness Instruction

In Transue’s fourth and final issue, he complains that the trial court erred by 

denying his requested instruction that he says would have “properly informed the jury 

of the requirements of voluntariness” under Section 6.01 of the Texas Penal Code.

10Transue did not request a limiting instruction when the unadjudicated offense 

evidence was offered and did not request any limiting or burden-of-proof instruction 

in the jury charge. Transue does not complain on appeal that an instruction should

have been included in the charge as to the unadjudicated offenses against Harry 

Hopkins or John Foster or that he was harmed by its exclusion. See Delgado, 

235 S.W.3d at 251.
23

Section 6.01 provides that “[a] person commits an offense only if he [or she] 

voluntarily engages in conduct, including an act, an omission, or possession.” Tex. 

Penal Code Ann. § 6.01. Transue asserts the evidence that Chloe had, on her own and 

without Transue’s notice, put her mouth on his penis, raised the issue of voluntariness

and entitled him to an instruction under Section 6.01.

In response, the State asserts that the voluntariness in Section 6.01 “refers only 

to one’s own physical body movements.” The State further argues that Transue was 

not harmed because, given the evidence and the jury charge—which required the jury 

to convict Transue only if it found beyond a reasonable doubt that Transue had 

intentionally or knowingly caused the contact—the jury could not have convicted 

Transue if it believed that Chloe caused the contact.

For purposes of Section 6.01, a person’s bodily movements are not voluntary if 

they “are the nonvolitional result of someone else’s act, are set in motion by some 

independent non-human force, are caused by a physical reflex or convulsion, or are 

the product of unconsciousness, hypnosis[,] or other nonvolitional impetus.” Rogers v. 

State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). Voluntariness in this context 

“refers only to one’s own physical body movements.” Febus v. State, 542 S.W.3d 568, 

574 (Tex. Crim. App. 2018). As the Court of Criminal Appeals explained in Rogers,

“When a person claims the involuntary-act defense[,] he is conceding 

that his own body made the motion but denies responsibility for it.”

Sanford H. Kadish, Excusing Crime, 75 Cal. L.Rev. 257, 259 (1987). As 

one commentator observes,
24

Professor Kadish’s point can be seen if one considers the 

difference in meaning of the following two sentences: (1) “I 

raised my arm;” and (2) “My arm came up.” Both 

statements suggest that a bodily movement has occurred. 

Yet, the difference in language expresses our intuitive 

understanding of the difference between a voluntary act (as 

described in the first sentence) and an involuntary one (the 

second sentence).

Joshua Dressler, Understanding Criminal Law § 9.02[C] at 72 (2d ed.

1995). In the first, the actor consciously performed a volitional act. In 

the second, the actor performed no conscious or volitional conduct—

the arm may have “come up” because someone else moved it; it jerked 

upward as a reflex reaction when someone hit the elbow; the actor 

moved his arm while asleep or unconscious; or, more esoterically, the 

arm moved as a result of hypnotic suggestion or some other nonconscious, non-volitional physical impetus.

105 S.W.3d at 639 n.30; see also Trujillo v. State, 227 S.W.3d 164, 169–70 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (holding that defendant was not entitled to 

voluntariness instruction because he did not admit to committing the act charged).

Transue’s defensive theory was not that he made some sort of involuntary

movement that resulted in his penis’s contacting Chloe’s mouth, and there was no 

trial evidence of an involuntary act of that kind. Instead, his argument was that he 

made no movement at all and that Chloe, on her own, caused her mouth to contact 

his penis before he knew what was happening. We agree with the State that under the 

circumstances, Transue was not entitled to a voluntariness instruction. See Peavey v. 

State, 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet. ref’d); Trujillo, 227 S.W.3d at 

170; see also Rogers, 105 S.W.3d at 640 (holding that defendant’s testimony “did not 

unambiguously develop the theory that . . . somehow, his finger had been made to 
25

exert the requisite . . . force to squeeze the trigger and fire the gun”). We overrule 

Transue’s fourth issue.

Conclusion

Having overruled Transue’s four issues, we affirm the trial court’s judgment.

/s/ Mike Wallach

Mike Wallach

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 10, 2023