## 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. M emorandum Opinion by Justice Wallach 

### M ICHAEL 

### E ARL 

### T RANSUE 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Michael Earl Transue appeals from his conviction for a ggravated
sexual assa ult of his five

- year

- old granddaughter , Chloe

. 1 See Tex. Pe nal Code Ann

. § 22.021( a )(2)(B). In four issues, he challenges the trial court ’ s admission of
extraneous offense s (is sues one through three) an d the trial court ’ s failure to submit a

vo lu ntariness instruction under Texas Penal Code Section 6.01

. Because we hold that

t he trial court did not abuse its discretion in admitting evidence of some of th e extraneous offenses, that T r ansue was not harmed by t he admission of evidence of
the other extran eous offenses , and that Transue was not entitled to a voluntarines s instructio n, we will affirm. Background
Transue is C hloe ’ s grandfather. O n a Monday in January 201 8 , Transue babysat
for Chloe and her brother because it was a school holid ay , and their fa t her , Ethan , had to work. Eth an had been married to the children ’ s mother , Gra ce , but by that time, they were div orced or in the process of finali z ing their d ivorc e . Grace had
moved with the children from Bedford to College Stat ion , and t he ch ildren return ed

to Be dford on weekends to stay with Ethan

. Transue and his w ife also lived in
Bed ford

.

1 To protect the comp lainant ’ s anonymity, we use an alias to refer to her and to some o f her family members. See Tex. Const. art. I, § 30(a)(i) ; M cClendon v. State , 643 S. W. 2 d 936, 936 n.1 (Tex. Crim. App. [P a nel Op.] 1 982).3 Afte r the holiday weekend, Ethan returned th e children to Grace , and they
came back to Be dford the nex t weekend

. That Saturday, Chloe told Ethan that when
she a nd “ Gr a mpy ” were in the bath tub , she “ p ut [her] mouth on G rampy ’ 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 discuss ion, th ey called Ch ild
Protective Serv ices

. Ethan also contacted the Be d ford poli ce. Soon there after, Chloe underwent two fore nsic 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 exam i nation by a pediatric nurse
pra ctitioner

. The exam took plac e at the advocacy center at which Chloe ’ s foren sic
i nterview had been conducte d. Before th at e xam, Ethan and Grace had taken Chloe
out to lunch , and during lunch C hloe had been very apprehensive

. She told her parents that she w as scared that the people at the a dvocacy center were going to laugh
at her. Her parents assured he r that she c ould trust them. During the exa m that
aftern oon, Chloe told the nurse that one day she h ad b een with Grampy and she ha d

“ put [her] mouth on his n oodle. ” Chloe also told the nurse that it had h appene d only

once and that Transue did not touc h her body.

2 The inte rviewer asked Chloe if a nyo ne had touched her private parts or if she had ever told anyone that sh e had, and Chloe denied it, other than a time when she and her brother had played too hard. She a l s o den i ed having ever seen anyo n e else’s priv ate parts.4 Based on Chloe ’ s statements to the nurse, the second forensic interview w as arranged for the same day with the same interviewer who had conducted the previous
inter view

. 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 anxiou s and uncomfortable. The vid eo

recor dings of Chloe ’ s interviews were a dmitted at trial and publis hed to the jury

. Bedford police detect ive Patrick Riple y interviewed Transue. At th e int erview,
Tr a nsue pr ovided a w ritten statement in which he stated that while ba b ysitting on the day in q ue sti on , he had decided to ta ke a hot shower because it hel ped with his pain
from various medical issues

. He claimed that Chloe had come i nto the bath room without his noti cing, grabbe d his penis , and kisse d it, and that when he cha stised
Chloe , she became angry and left the bathroom.
Grace told Ripl ey about improper sexual conduct that Transue had committed against her in 19 90 , when she w as a chil d

. According to Grace , when she was five, sh e

3 During the interview, Chloe se emed distracted and had a hard ti me sitting still. The interviewer asked her about her exam with the nurse. Chloe said the e xa m was so that the nurse could give her a c h e ck

- up to make her healt hy a nd strong. Chloe then start ed doing sit

- ups on the beanb ag chair in which she was si tting. The interviewer then asked if Chloe knew anyone who had been touched on their privat e parts
. Chloe said, “Yes” and named someone not inv o l ved in t h is case. When asked t o repeat what sh e had said, rather than answer, Chloe be gan doing a backb end on the beanbag chair

. The interviewer then asked Chloe if she had seen anyone els e’s pr iv ate parts or if anyone ha d asked her to to u ch their privat e parts, a n d Chloe, s till lying on her back
ac ro ss the beanbag chair , said no.5 and Transue were in the bath tub together, and Tra nsue encouraged h er to touch his penis.
When Grace talked about the case with her uncle Ryan , Tr ansue ’ s younger brother, Ryan told her that Transue had also committed s exual acts a gainst him when
he was a child in the 1970s ; Transue is almost seventeen years older than Rya n . Ry an described three times when Transue performed oral sex on him

. One of those
inciden ts occurred in a bath tub, and during that encounter, Transue also tried to talk Ryan in to perform ing oral sex on him

. The grand jury indicted Transue for int entionall y or knowingly causi ng his sexual organ to con tact the mouth of Chloe , a ch ild under fo urteen years o f age. See id

. § 22.021

. The indictment further alleged that Chloe was under six yea rs old at the time
of the offense. See id. § 22.021 (f)(1) (increasing t he ma ximum pe nalty for an offense committed against a child under six years o ld ).
The State filed a notice of intent to introduce extraneous offenses regarding the acts against G race and Ryan

. The State further noticed its intent to introduc e Tr ansue ’ s 197 4 con viction in California for aggrava t ed sexual assaul t by “ le w d acts ”
with Alex Hopkins, 4 a minor chi ld

. T ransue had pled guilty to that offense

. See Cal. Penal Code § 288

.

4 Alex Hop kins is a pseudonym.6 The California co mplaint charging Transue with the aggravated

- sexua l

- a ssault
offe nse a lso included four t een other sexual offenses against three minor boys

— Alex Hopkins, Harry Hopkins, and John Foster. 5 T h e complaint further included three drug offenses : possessing drug paraphernalia, possessing ampheta mines, a nd
prov iding marijuana to John Foste r, a minor

. All o f the offenses were alleged to have
been committed in Oc tober 1974. The plea paper s related to the co mplai nt and t o Transue ’ s guilty plea contain no indication that Tran sue had pled guilty to the o t her
offenses , and there is no i nd ica tio n in the record tha t he was e ver tried for them

. N evertheless , the State supplemented its notice to include them

. Tr ansue filed a motion to exclude evidence of the extraneous offenses

. After a
he a ring , t he tri al court overruled Tr ansue ’ s obje ctions

. Dur ing trial, Grace testified about the incident with Transue in the tub when
she was a child

. Ryan also testified about Trans ue ’ s actions towar d him when he w as a child , and he identified one of the complai nants in the C alifornia c o mplaint , John Foster, as “ the nephew of a mutual friend of both my mother and my brother [Transue] , who ha d taken him into her home because, I guess, he had had trouble at
home

— at his o wn home

. ” Ryan did not know the other tw o boys named in the California complaint

.

5 H arry Hopkins and John Foster are also ps eudonyms.7 During Rip l ey ’ s t estimony about the investigation, the State sought admission
of State ’ s Exhibit 2, which inclu ded the California complaint and t he documents related to his guil ty plea

. Tran s ue ’ s attorney objected that “ there ’ s no finding of gui l t, there ’ s no p lea, there ’ s no judgment, [and] [t]he re ’ s no admission by [Transue] ” related

to any of the off enses in the complaint other t han the one offense to which Transue had pled guilty. He also objected on the basis of hearsay and Texas Rule of Evidence
403. T he trial court overruled the obj ection s . However, the State published to the jury only the plea documents rel ated to the adjudic ated offen se against Alex Hopkins and
did not question wi tnesses about the unadjudicated offens es or mention them in its opening or closi ng ar guments. T he S tate also put on testimony from Lindsey Dula, who works as a forens ic
interviewer with Alliance for Children, a children ’ s a d vocacy center in Tarrant County

. Dula testified that Chloe ’ s failure to make an outcry statem ent in the foren sic
inte rviews is “ not a conclusi ve thing ” and that the interview ro om had items in it that
coul d distract a five

- year

- ol d child from making an outcry

. Dul a stated that some of
the interviewer ’ s questions , such a s, “ [ A] re you s cared of anyone , ” and “ H as anyo ne hu r t you , ” might not lead to an outcr y when a c hild was abused by someone the child
knew , if the child was not hurt, o r if the child did not understand that he or she had been sexually abused

. Du la further stated that the que stions asking Chloe if she h ad

eve r touched someone else ’ s pr iva te pa rts or if anyone had touched hers would not necessarily have elicited an outcry b ecause children Chloe ’ s age do not understand8 that “ touching ” can include an y kind of contact , not just touching with one ’ s hand,
and so Chl oe 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 s o, Tra nsue 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 c onference, Tra n sue requested the following instruc tion und er Texas Penal Code Section 6.01 : [A] perso n com m its an offe nse onl y if he volunta rily eng ages in conduct [;] therefore, if you believe from the evidence beyo nd a reason able doubt that the Defendant ’ s sexual organ contact ed the mouth of [ Chloe ] , as alleg ed in the indictment, but you further believe from t he evidence or you have a reasona ble doub t the reof that the conduct act was not the vo luntary act or conduct of the Defe ndant, you wil l acquit the Defendant and say by your verdict not guilty

. The trial court overruled Tran sue ’ s request. The jury fou nd Tra nsue gu ilty.
D iscu s sion
Tra nsue ’ s first th ree issues cha llenge the trial court ’ s admission of the

extraneous

- off ense evidence. His first issue challenges the trial court ’ s admission of
the unadjudic ated s ex
- and

- dr ug extrane ous offenses in S tate ’ s E xh ibit 2 , the
1974 Ca l ifor nia complaint and rela ted plea documents , because no evidence proves beyond a reasonable doubt that he committed them

. In his second issue, Transue
argue s that the trial court erred by admitting in the guilt

–

innocen ce phase of the tr ial9 t he thr ee unadj udica ted extraneous drug offenses in the Cal iforn ia comp laint because they ar e n ot one of the extraneou s offenses allowed to be admitted under Texas Code
of Criminal Procedure Article 38.37

. See Tex. Code Crim Proc. Ann. art. 38.37. In h is
th ird is sue, he argue s that the trial court erred by admitting all of the extraneous offens es

— the offe nses in the Cal ifornia complaint and the evidenc e about the abuse
of Ry an and Grace

— because they were too remote to be probative

. To s implify our analy sis, rather than ad dress ing Transue ’ s issue s in order, we
first address the part of his third i ssue challengin g the admissibility of th e testimony o f Ryan and Grace and the evi dence related to the adjudicated California offense . W e then jointly address the part s of a ll three issu es that relate to admission of the part of the California compla int setting out the una dju dicated Cali fornia offenses

. I. The Offenses Against Ryan and Grace and the Adjud icat ed California Offense A. Admission of Extraneous Sex Offe nses — Remo teness
In a pro secution for a sexual offense agains t a child, Texas Code of Criminal
Procedure Arti cle 38.3 7 authorizes admission of extraneous sexual offenses ,
not with sta nding Texas Rules of Evid e nce 404 and 405

. Id

. art. 38. 37 § 2 . Th e a rticle
d oes n ot l imit the admi ss ion of an extraneous offense based on when the offense was committed. However, Article 38.37 is subject to Texas Rule of Evide nce 403

. Se e Dies
v. Sta te , 649 S.W.3d 273, 284 (Tex. App.

— Dallas 2022, pet. ref ’ d) ; Perez v. State , 562 S .W.3d 676 , 688 (T ex. A pp . — Fort Worth 2018, pet. ref ’ d)

. Under that rule, t he10 trial court “ may exclude relevant evidence if its probative value is subs tantially

o utweighed by a danger of o ne or more of the following: unfair prejudice, confusing the issues, misle adin g the ju ry, u nd ue delay, or needlessly presenting cumulative
evidence

. ” Tex. R. Evid. 403. A Rule 403 analysis includes consideration of four factors: (1) “ how comp el lingly the extraneous offense evidence serves to make a fact of conseq uence more or le ss probable

— a fa cto r [th at] is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the ex traneous of fense ” and (2 ) “ the force of the proponent ’ s need for this evidence to prove a fact of consequen ce, i .e. , does t he p r opo nent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in disp ute , ” balan ced against ( 3) “ the time the proponent will need to develop the evidence, during which the jury will be distrac ted f rom consideration of the indicted offense ” ; and (4) “ the potential the other offense evidence has to impress the jury ‘ in some i rrational b ut neverthele ss indelible wa y . ’ ” 6

6 The Court of Criminal Appea ls has a lso phrased these factors differentl y to more closely refle c t the lang uage of Rule 403: (1) the inhe rent probative force of t he proffered item o f e vidence ; ( 2) the proponent ’ s need for that evidence ; (3) any tendency of the evidence to sugges t deci si on on an improper basis ; (4) any tendency of the evidence to con f u s e or dist ract the jury from th e main is sues ; (5 ) any tendency of the evidence to be gi ven undue weight by a jury that has not been equipped to evaluate the probative force of the ev idence ; and (6) the likelihood that presentation
o f the evidence will co n s u me an ino rdinate amount of tim e or mere ly re peat evidence already admitted

. Gigliob ian co v. Stat e , 210 S.W.3d 637, 641

– 42 (Tex. Crim. App. 2006)

. However, the court still uses the p hrasin g set out in Mozon

. See, e.g. , Inthalangsy v . State , 634 S.W.3d 74 9 , 75 8 (Tex. Crim. App. 2021)

.11 Mozon v. State , 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quo ting San tellan v . Sta te , 939 S.W.2d 155, 169 (Tex. Crim. Ap p. 1997) ); see also S anders v. State , 422 S.W.3d 809, 815 (Tex. App.

— Fort Worth 2014, pet. ref ’ d) (ci ting Reese v. S tate , 33 S.W.3d 238,
240

– 41 (Tex. Crim. App. 2000) ). Because r emoteness can lesse n th e pr obative value
of extraneous

- offense evidence , it is an aspect that the trial court should con sider in
evaluati ng an offense ’ s probativeness

. West v. Sta te , 554 S.W.3 d 234, 239

– 40 (Tex. App.

— Houston [14th Dist.] 2018, no pet.)

.

“ If judicial restrain t is ev er desir able, it is when a Rule 403 analysis of a trial

co urt is reviewed by an appellate tribunal. ” Montgomery v. State , 810 S.W.2d 372,
379 (Tex. Crim. App. 1 99 0) ( quoting United States v. Long , 574 F.2d 761, 7 6 7 ( 3 d Cir. 1978)). Thus, w hen the ba la nc e is c lose, th e revi ewing court “ should favor admission, in keeping with the presumption of admissibility of relevant evidence

. ” Sanders , 422 S.W.3d a t 815. We rev erse a trial court ’ s determination under a Rule
403 balancin g test “ rarely and only after a c lear a buse of discre tion

. ” M ontgomery , 810 S.W.2d at 392 (op. on re h ’ g) ( quoting United States v. Maggitt , 784 F.2d 590,
597 ( 5th Cir. 1986) )

. “ Considering that th e t rial court has the best vi ew of the evidence, an ap pellate court will uphold a trial c ou rt ’ s rul ing o n a dmissi bility so long
as it is with in the ‘ zone of reasonable disagreement. ’ ” Inthalangsy , 634 S.W.3d at 754

. B
. Rule 403 Application Transue argues in h is third issue that the ex trane ous offenses were not probative and should not have bee n ad mi tte d und er Rule 40 3

. His brief focuses12 primarily on the gap in time between t he offense alleged in this case and the
extraneous offenses . He also a rgues under this is sue that the offenses agai nst Ryan and the Califo rnia adjudicated offens e ar e to o di s sim ilar from the offens e against
Ch loe to be probative because those extraneous offenses (1) involved a male complainant and (2) involved hi s touching t he penis of the c omplainant, rather than
th e complainant ’ s tou ching his penis

. 1. Probat ive Value of th e Ex traneous Sex Offense s We disagree that the extraneous sex offenses are too dissimilar to the offense against Chloe to be probative

. Th e offenses against Ryan , the one against Grace , and the one again st Chloe all inv olved a minor family member

. As the S tate points out, the adj u dicated Cali fornia offense, the act involving Grace , and Transue ’ s acts against Ryan al l involved “ not
. . . pe netrative sex but

. . . pe nile manipulation

— either
Transue’s or the [compla in ant ’ s]

. ” The offense s against Grace and Chl o e i nvolved
Transue ’ s be ing in a bath tub, as did on e of the incidents de scribed by Ryan

. Further, Ryan ’ s testi mony included a descriptio n of an instance when Transue asked Ryan to perfo rm or al sex on him

. Although t he jury did not h ear evidence about the d etai ls of the adjudicate d California offense o ther than that i t involved Tr ansue ’ s committing “ a lewd and las civious act upon and with the body and certain parts ” of a young male , th e offense also involved a minor , and Transue pled guilty to that offense

. Rega rding T ransue ’ s seco nd and primary argument regard ing pr obativ eness , we further disagree that the off enses were too remote. Rem oteness of an extraneous13 o ffense d oes n ot , by itself, require exclusion of extr aneous

- offense evidence

. Dies , 649 S.W.3d at 2 85

. “Ra ther, remoteness is but one aspect of an offense ’ s probativ eness the trial court is to consider al ong with the other factors in the Rule
403 analysis. ” Id. (q uotin g W est , 554 S.W.3d at 239

– 40 ).
The adjudicated California offense and the offenses aga inst Ryan occurred in
th e 1970s, around forty

- eight years before t rial. The offense c ommitted against Grace occurred around thirty

- two years before trial. We held in a pr evi ous case that

extraneous acts were too remote from the time of tr ial to be probativ e be ca use they
had occur red fifty years before and had not resulte d in convictions , and because there
had been n o intervening mis conduct t o narrow the time g ap . See Perez , 562 S.W.3d at 690 . We reach a dif ferent conclus ion here. For one thing, t h e California o ffense

resu lt ed in a conviction , unlike the extraneous ac ts in Perez

. For another, the offense against Grace n arrow s s omewhat the time gap between the acts against Ryan and the offense against Chlo e . F urther, the adjudicated California offense , the acts ag ainst Ryan , and the act against Grace have similarities to the offense against Ch lo e that strengthen t he proba tive val u e of the ext raneous offenses. See Dies , 649 S.W.3d at 285

. This factor weighs in f avor of ad missib ility.
2 . State ’ s Need for the Evidence Regarding the second factor , the St ate needed the evi dence. The State had littl e evidence to establi sh the o ffens e o ther than Chloe ’ s testi mony and the testimony of
the two witnesses to whom she had m ade her o utcry statement s. Although forensic14 interviewe r Dula tes tified that Chloe ’ s failure to make outcry statements in her
f

orensic interview s did not co nclusive ly es tab l ish that the assault had no t occurred,
Dula ’ s testimony was not evidence that the a ssault did occur. Transu e ’ s story was not to deny the i ncident bu t to cl aim that he had been a passiv e and unwilling participan t in what happened

. Transue ’ s attorney emphasized in closing arguments that even if the jury accept ed Chloe ’ s outcry sta tements , all she had said was tha t she had put her
mouth on Tran s ue ’ s penis, not that he ha d made her do it or had told her to d o so . He als o questioned the investigating detective abou t the fact that in Chloe ’ s

sta tem ents to her f ather and to the pediatric nurse p ractition er , she never s aid that
Transue had made h er p ut her mouth on his pe nis or ha d asked her to do it

. Further , Transue ’ s attorney repeatedly brought up the fact that Chloe had not reported any abuse b y Transue in either forensic interview. His att orn ey asked Chloe about the forensic inter views and whethe r she had tol d the t ruth during t hem

. The
attorney a sked multiple witnesses questions about t he fact that in her inte rviews,
Chloe had made st atements sugg esting possible i nappropriate touching of her by her younger brother , 7 w hereas she had not reporte d a nything of the kind against T rans ue

7 C hloe ’s b r other was three years old at the time. In Tr ans ue ’s attorney ’s opening statement, he told the j ury me mb ers that they would be watching Chloe ’s forens ic i nterviews and that “ [n ] ob o dy else did anything sex

— she d oes me n t ion her [younger brother] had done something sexu ally with her [,] and I ’ m not reall y c oncerned. He ’ s a young man. I ’ m not concerned ab out th at . But no one else did anything, no one. ”15 in the interviews

. He also emphasized this fact in opening statement and closing argument s . In summary, w ithout the extraneous

- offense evi dence, “ the S tat e’s case

es sentially would come dow n to the word of [the] complain ant against [Tr ansue ’ s]

. ”
West , 554 S.W.3 d at 240

. “ T here was no physical evidence or eyewitness testimony supporting [Chlo e ’ s] allegations,

. . . several of the State’s witn esses . . . b asi cally
repea ted what [Chlo e had ] tol d them , ” see id. , and Transue ’ s attorney th oroug hly challenged the credibi lity of her outcry statements. T hus, the State had a definite need for this evidence, an d this factor w eighs in f avor of its admiss ibility.
3. Tim e Spent Deve loping the Evide nce We d isagree with Transue that the t ime spent on the evidence , during which the jury was not consideri ng the offense a gainst Chloe w eighs against admi ssibility.
The State and Transue agree that the challenged evidence was d ev eloped over
42 pages out of 3 24 page s of testi mony, or just under t hirtee n percent of the total tri al testimony. That figure includes no t only the ti me that the S tate spent on devel oping the evidence but also th e time that T ra nsue spen t on cro ss
- ex aminatio n. See , e.g. , Inthalangsy , 634 S.W.3 d at 75 9 (holding that the Stat e did not spend an inordinate

a mount of time on evidence relating to the death of a kidnapping vict im , in a case char ging def endan t with c ommitting murder of another person in the cour se of the kidnapp ing , when four out of th e State ’ s sixteen witnes ses tes ti fied partially or exclusively about the kidnapp ed person ’ s death )

. Th e development o f the extraneous

-16 offense eviden ce di d n ot ta ke up an inordinate amount of time. This factor w eighs in
favor of admi s sibility. See i d. ; Drew v. Sta te , No. 03

- 21

- 00392

- CR, 20 23 WL 2718452, at *9 (Tex. Ap p.

— Austin Mar. 31, 2023, no pet. ) (mem. op., not d esignated for publication).
4. Effec t on the Jury
With th e final factor, a lthough “ evidence of previous child sexual abu se i s inherently inflamm ator y by nature, ” Grace ’ s alle g ation of abuse was similar to C hloe ’ s . See Dies , 649 S.W.3d at 286. On th e other hand, Ryan ’ s allegations involved ac ts on

mo re th an one o ccasion . However, we do not believe that the evidence relating to Grace , Ryan , or Al ex Ho pkins was un fai rly prejudi cia l. See Wells v. State , 558 S.W. 3d 661, 670 (Tex. App.

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

e viden ce was p rejudici al, “ but not unfairly so ” because “ its prejudicial nature [aros e]
from the fact that it was esp ecially probati ve of [t he a] ppel lant ’ s propensity to p rey on underage members of his household ” ). T he effect of the evidence on the jury may
have be en in delible, but if so it was not irrational, given the similari ty of the n ature of
the offenses an d that the leg islature has auth orized ev ide nce of unadjudicate d sexual
offenses in sexual

- assault cases. See Sanders , 422 S.W.3 d at 815 ; see also Te x. Co de Crim
P roc. An n. art
. 38.37. We see n o indication that the challenged evidenc e confused or
distracted the jury from the main issue i n the cas e , was given undue wei ght by the jury , or suggested a decision on an improper basis. The evidence presented was n ot17 the k ind of e vidence that the jury was un equipped to evaluate

. Th erefore, th is factor does not weigh against admissi bility

. C . Conc lusion

“ Because Rule 40 3 permit s the exclusion of admittedly probative evidence, it is a remedy that should be used s parin gly , esp ecially in ‘ he said, she said ’ sexual

molestation cases that must be r esolved solely on the ba sis of the testimony of th e comp lainan t and the defe nda nt. ” Ham mer v. State , 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)

. The testimony of Grace an d R yan a nd the a djudicat ed California offense

were highly relevant “ as compelling prop ensity evidence ” and thu s needed to rebu t Transue ’ s atta cks on the credibility of C hloe ’ s outcry statements
. See Turpen v. State , No. 05

- 22

- 00284

- CR, 2023 WL 3674600, at *4 (Tex. Ap p.

— Da llas May 26, 2023, no pet. ) (mem. op. )

. After considering t hose and the oth er rele vant factors, we co nclude
that Trans ue f a ile d to rebut the presumption of admissibility

. Accordingly, the trial

court did not abuse it s dis cretion in admitting the evidence.
II
. The Unadjudicated Cali fornia Se x - and

- Drug Offenses
In the trial court , Tran sue also ch allenged the admi ssion of the una dju dicated
Califor nia offen ses. On appeal, in addition to complaining about the remoteness of
the offe ns es, T ran sue c ites Cod e of Criminal Proc edure Article 38.03 to as sert that because a charging ins trument give s r ise to no inference of gu ilt at a defenda nt ’ s trial , the C a lifornia complaint was “evidence of nothing

. ” S ee Tex. Code Crim Proc. An n.

a r t. 38.03 ( provid ing that “ [ t]h e fact that [a defendant] has been arreste d, confined, or18 indicted for, or otherwise c harged with, th e offense gives rise to no in feren ce of gui lt
at his [or her] trial ”) ; c f. Mendiola v. State , 21 S.W.3d 282, 286

– 87 (Tex . Cri m. App. 2000) (K eller, J. , dissenting) (noting that the court had never consider ed whether the
rule in Article 38.03 applies to e xt raneous offenses but that app lic at ion of the rule to
such offenses “ seem[ed] logical ” because “ being accused is no evide nce o f g uilt ” ). As
Tr ansue notes , t he plea documents contained in St ate ’s Exh ibit 2 do not state that any of the unadjudi cated counts h ad been waived as pa rt of a plea ag reement , and they contain no acknowledgement by Transue of his guilt of those offenses

. The on ly

ev idence offered by the State relating to the California complaint ’s allegations about
the unadjud icated offen ses was the co mplaint itself

. 8 That is, the Sta te offered no
evidence to show that Transue had committed those offenses

. B ut c. f. Tanas h v. Sta te , 468 S.W.3d 772, 775 (Tex. App.

— Houston [14th Dist.] 2015, no pet. ) (upholding
admi ssion in guilt

–

innocence st age of testimony from arresting poli ce o ffic er regarding the appellant’s prior arrest ). We will assume for purposes of thi s opi nio n that admitt ing the California complaint without redacting the unadjudicated offe nses

8 The State cites s eve ral cases for the proposition that evidence that u nc harged or unadjudicated extran eous offe nses may be introduced in the guilt

–

innocenc e s tage. The State is corr ect , b ut each case that it cite s involve d a witness te s tifying abou t 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 526 518 7, at *1 (Tex. App.

— For t Wort h Dec. 18, 2008, pet. ref’d ) (mem. op., not designated for publication) ; Beasl ey v. State , 8 38 S.W.2d 69 5, 7 01 (Tex. App.

— Dallas 1992, pet. r ef’d ). It cite s no case involv ing the admission of only a charging instrument in an at tempt to prove an unadj udicat ed offense during the guilt

–

innocence stage.19 was an abuse of discretio n. See, e.g. , Tex. Code Crim

. Proc. Ann. a rt. 38. 37 § 2

- a ( pr oviding that before admi tting extraneous sexual

- of fense ev idenc e , the t r ial court must hold a hearing to determine that the evidence likely to be admitted at trial w ill be adequate to support a fin ding by the jury that t he defe ndant committed the separa te offense beyond a reasonable doubt ); Inthalangsy , 6 34 S. W.3 d at 757 (re c ognizing that
the standard of proof require d to admi t evidence of ext raneous offenses is beyon d a
reasonable doubt )

. We will t herefore rev iew the rec ord to determine if the error 9 is

re ver sible. See Tex. R. App. P. 44.2

. A . S t andard of Revi ew Becau se a tri al court ’ s erroneous admission of evidence is nonconstitutional

error , our review of t he error is governed by R ule 44.2(b) of the Texas Ru les of Appe llate Procedure

. Patterson v. Sta te , 508 S.W.3d 432, 440 (Tex. App.

— Fort Worth 2015, n o pet .)

. T hat r ule requ ires us to disregard any n onconstitutional error that does
not affect an appellant’s substan tial rights. Tex. R. App . P. 44. 2(b). A subs tantial right is affected when the error had a “substan tial and inju rious ef fect or influence in determining the jury’s ver dict

. ” 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 . 199 7) (cit ing Kotteakos v.
United States , 328 U.S. 750 , 7 76, 66 S

. Ct. 12 39, 1 253 (194 6)). Conversely, a n error

9 We agree with Transue that the three drug offenses in the co m plaint were not admissibl e under A rticle 38.37, and we ca nnot s e e how they hav e relevance to proving the offense agai nst Chloe unless used as prohib it ed character e vidence. See Tex. R. Evid. 404 (b) ; see also Tex. Code Crim . Pr oc. Ann. a rt. 38 .37.20 does not affect a sub stantial right if the appe llate court has a fair assurance from an
examination of the rec ord as a whol e that the error di d no t influe nce the jury or that it had but a slight eff ect
. Macedo v. S tat e , 62 9 S.W.3d 237, 240 (Tex. Crim. App. 2021)

. In deciding t hat question, we consider (1) the character of the alleged error and how it might be cons idered in con nection with other evidence , (2 ) the nature of the evidence supporting the ver dict , (3 ) the ex isten ce and d egree of additional evidence indicating guilt , and (4) whether the State emphasized the co mplained

- of error. Id. ; Motilla v.
State , 78 S .W.3d 352, 35 5 (Tex. Cri m. App. 2002). We ma y also consider the jury instructions, the S tat e’s theo ry , a ny defen sive the ories, closing arguments, and even voir dire, i f applicable. Haley , 173 S .W.3d at 518

– 19; Motilla , 78 S.W.3d at 355

– 56.
B . Analysis Rega rding the evi dence in the case , t he jury had before it Chloe ’ s testimony , which was suff ici ent by i tself to supp ort a co nviction

. See Gonzales v. State , 477 S.W.3d 475, 480 (Tex. App.

— Fort Worth 2015, pe t. ref’d)

. But t he jury al so learned that
Chloe had p articipated i n two foren sic inte rviews and t hat in both interviews, she said nothing abo ut the inci dent. On the other ha nd, Chloe ’ s father and the pe diatric nurse practitioner both testified about outcry statements that Ch loe had made to them. T he jury a ls o heard the p robative testimony of Grace and Ryan about similar past sexual abuse by Tra nsu e and th at T r ans ue ha d pled g uilty to another se xual offense against a
minor , Alex Hop kins, in California

. The nature of the unadjudicated se xual offenses21 were not m ore serious t han the offenses th at the jury heard Transue had committed against his fami ly members, and the drug offense s were even less serious

. As for the State ’ s emphasis of the evidence, a lthough the Sta te asked Ryan during his testi mony if he knew Joh n , Alex , or Harry , the State did not ask any witness about the unadj udicated offenses

. T he S tat e did not men tion the unadjudicated
offense s in its opening or closing arguments. When the State published State ’ s Exhibit
2 to the jury , it read alou d only the p lea documents associated with t hat offense

. As for the jury charge , we note th at a n ins tru c tion regarding extraneous offense
evidence can minimize any harm resulting from the admitting the evidence of th e offense

. See Clifford v. State , 653 S.W.3d 1, 13 ( Tex. App.

— Austin 2022, pet. ref’ d) (citing B eam v. State , 447 S.W.3d 40 1, 40 5 ( Tex. App.

— Ho u ston [14th Dist.] 2014, no pet .) , and noting that jury instruction can minimize harm from extraneous offense
evidence )

. Here, the trial court instruct ed the j ury th a t it could consider the offense s committed a ga inst Grace , Ryan , and Ale x Hop k in s (the c omp la inant for the adjudicated California offense and some of the unadjudicated offenses ) on ly if i t believed the acts occurred beyond a reasonable doubt

. T hat instruct i on was not specific to the sing le adjudicate d offense agai nst A lex and therefor e also m iti gated any
effect from the admission of the c omplaint as to the unadjudicated offense s allegedly
committed against him

. However, the charge did not include any reason a ble

- doubt
instruction specific to the acts c ommitted ag ai n st Ha rry Hopkins or J ohn Fost er , the other two complainants in the California complaint , perhaps because , as the record22 reveals , Transue did not request an y instruction r elated to the unadjudi cated offenses

o r object t o the failu re to provide one . 10 See , e.g. , De lgado 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 ext r aneous offense

at guilt

–

inno ce n ce stage , bu t onl y w hen requested by defendant )

. Neverth ele ss , even without the instruction, the record as a wh ole does not show harm. The charge
included an instruction to the jury that the fact that a person has been arres t ed for or charged with an offen se gives ris e to no inference of guilt

. Given that instr uct ion , the
state of t he evidence , and the fact t hat the State did not question any witness about
the una djudicated offenses , did not publish them to the jury, and did n ot mention
them in its open ing or closing a r guments, we conclude that the admission of the

una djudicated offenses could not have had mor e t han a slight effect on the jury

. See
M acedo , 629 S.W. 3d at 240

. We overr ule the remainder of Transue ’ s first three i s sues . II I
. D eni al of V olunt ar i n es s Instruc t i on In Tran sue ’ s f our th and f inal issue, he com plains that th e trial court erred by
den ying h is requested instruction that he says w ould have “ proper ly informed the jury
of the requirements of voluntariness ” unde r Section 6.01 of the T exas Pen a l C ode.

10 Transue did not request a limiting instr u c tion when the unadjudic ated of fense evidence was offered and did not re quest any li mit ing or bu rden

- of

- p roof instr uc tion in the jury charge

. Transue does not compl ain on appeal that an instruction should have been included in the charge as to the una djud i c ated offenses against Harry Ho pkins or John Foster or that he was harmed by its exc lu s i on . See Delgado , 235 S.W.3d at 251.23 Secti on 6.01 provi des that “ [a] person commits a n o ffense only if he [or she]
vol un tarily engages in co nduct, including an act, an omissi on , or possessi on . ” Tex.
Pen al Code Ann. § 6.01

. Tran sue asserts the evidence t h at Chl oe h a d , on her own an d
wi thout Transue ’ s notice , put her mouth on his pe nis , r ais ed the issue of voluntariness
and entitled him to an instruction under Section 6.01

. In response , the State asserts that the voluntariness in Sec t ion 6.01 “ refers o n ly

t o one ’ s own physical body movem ents. ” The St ate fu rther a rgues that Transue was
not ha r med beca use , given the evidence and the jury charge

— which required the jury

to convict Transue only if it found beyond a re asonabl e doubt tha t Tr ansu e had
intention a lly or knowingly caused the cont act

— the jury cou ld not hav e conv icted
Transu e if it believ e d t hat Chloe caused the contact
. For purposes of Section 6. 01, a per son ’ s bodi l y movement s are not voluntary if
th ey “ are the nonvolit ional result o f someone else ’ s act , are set in motion by some inde pendent non

- h uman forc e, are caused by a ph ysical refl ex or convulsion, or are the product of unconsciousness, hy pnosis [,] or other nonvolitional impetus

. ” Roger s v. State , 105 S.W.3d 630, 638 (Tex. Crim. Ap p. 2003)

. Volunt arin e ss in this context

“ r efers only to one ’ s own physical body movement s . ” Febus v. Stat e , 542 S.W.3d 568, 574 (Tex. Crim. App. 2018 )

. As t he Court of Criminal Appeals explained i n Rogers ,

“ W h en a person claims the involuntary

- act defense [,] he is conced ing t h at his own body made the motio n b ut deni es responsibility for it. ” S anford H. Kadis h , Excusing Crime , 75 Cal. L.Rev. 257, 259 (1987 ) . As one co mmentator observes,24 Professor Kadish ’ s poin t can be seen if one considers the diffe rence in meaning of th e foll o w ing two sentences: (1) “ I rais e d my ar m; ” a nd (2) “ My arm came up. ” Both statements su ggest that a bodily movement has occurred. Yet, the diffe rence in language expresses o ur intuitive
u nderstanding of the difference between a volunta ry act (as des cr ibed i n the first senten ce) and an i n volunta ry on e (the second sentence). Joshua Dressl er , U nderstanding Criminal Law § 9.02[C] at 72 (2d ed. 1995). I n the first, the actor consci ously performe d a volitional act. In the second, the a ctor per formed no cons ci ous o r volitional conduc t

— the arm m ay have “ come up ” because someone else moved it; it j er k ed upward as a reflex reaction when someone hit the elbow; the actor moved his arm whil e asleep or un conscious; or, more esoterically, the ar m moved as a result of h ypn o t i c suggestion or so me other no n

conscio us, n on

- volitional physical i mpetus. 105 S.W .3 d at 639 n.30 ; see also Trujillo v . State , 227 S.W.3d 164, 169

– 70 (Tex. App.

— Hou ston [1st Dist .] 2006, pet. ref ’ d) (holding that defendant was not ent itled to
volunta rin e s s instr uction becaus e he di d n ot admit to co mmitting the act charged).
Transue ’ s de f en sive th eory was not that he made some sort of involuntary
movement that re sulted in his penis ’ s contact ing Chloe ’ s mouth , and there was no

t rial evi de nc e of an invo lunt a r y act of that kind . Instead, h is arg ument wa s that he
made no mov ement at all and t h at Chloe , on h er own, caused her mouth to contact his penis before he knew what was happ ening

. We agree with the S t ate that under the
circumst ances, T ransu e was not e ntit l e d to a volun tariness instructi on . See Peavey v. State , 248 S.W.3 d 455, 465 (Tex. Ap p.

— A ustin 2 008, pet. ref ’ d) ; Trujillo , 227 S.W.3d at 170; se e also Rogers , 105 S.W.3d at 640 (hold in g that defendant ’ s testimony “ did not unambigu ously de velop the the ory t h at
. . . some how, his finger h a d been made t o25 exert the r equisite

. . . force to sq uee z e the trigger and fire the gun ” ). We overrule
Transue ’ s fourth issue.
C onclusion Having overru led Transue ’ s four issues, we affirm the trial c ourt ’ s j udgmen t.

/s/ Mike Wallach Mi k e W a l l ach Justice Do Not Publish T ex. R. App. P. 47.2(b)
Delivered : August 10, 2023