Opinion issued July 17, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00593-CR ——————————— ALVARO JERONIMO JUAREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1674456
MEMORANDUM OPINION
In prosecuting Alvaro Jeronimo Juarez for the continuous sexual abuse of
L.C., a girl less than fourteen years of age at the time of the offense, the trial court
admitted evidence that Juarez sexually abused three other children in L.C.’s family.
Juarez appeals, contending the evidence of the extraneous offenses deprived him of due process and should have been excluded under Texas Rule of Evidence 403.
Because we conclude there was no due-process violation and the prejudicial effect
of the extraneous-offense evidence did not substantially outweigh its probative
value, we affirm the judgment of conviction.
Background
A grand jury indicted Juarez for continuous sexual abuse of L.C. for acts
occurring between February 2009 and February 2014, when L.C. was between the
ages of six and ten. During this time, L.C. stayed in two different homes with her
immediate and extended family—a red-brick duplex and a trailer. When she was
six or seven years old, L.C. stayed in the red-brick duplex with her grandparents, her
mother, her younger sisters L.Z. and A.Z., two uncles, and her niece M.G. (who was
close in age with L.C. and her sisters). Juarez, a family friend, stayed there too.
Juarez shared a bedroom with L.C.’s uncles and kept snacks L.C. and the other
children enjoyed in a closet. L.C. claimed that Juarez used the snacks to entice her
and the other children into his bedroom, which had a bunk bed. She recalled one
time when she and L.Z. entered the bedroom together, Juarez put L.Z. on the top
bunk and used a computer to distract her while, on the lower bunk, he pulled L.C.’s
pants down, kissed her, rubbed her vagina with his fingers, and then put his penis
“on top of [her] vagina” and rubbed it. After he stopped, Juarez grabbed a shirt from
2 his closet and used it to clean L.C. and himself. He then told L.C. to play on the
computer while he did something to L.Z., which L.C. did not see.
L.C. estimated that Juarez touched her inappropriately by rubbing her vagina
with his fingers more than fifteen times in the red-brick duplex. And the abuse
continued when Juarez moved with L.C. and her family into the trailer. She recalled
one occasion in the trailer, when she was about nine years old, Juarez entered the
room where she and L.Z. slept, pulled her pants down, sat her on top of his penis,
and rubbed her “front and back.” The abuse stopped when she got her period around
the age of ten.
L.C. did not tell anyone about the abuse because she feared getting in trouble.
But the abuse came to light several years later, in 2018, when L.C.’s younger sister
A.Z. revealed to their mother that she had been abused. Their mother called the
police to report a sexual assault, and the police investigated Juarez’s contact not just
as to A.Z. but also as to L.C., L.Z., and M.G. All four children went for
sexual-assault examinations and forensic interviews.
Before trial, the State notified Juarez of its intention to use evidence that he
had sexually abused L.Z., A.Z., and M.G.
Typically, the State cannot present evidence of extraneous offenses—prior
“crime[s], wrong[s], or other act[s]”—to show the defendant “acted in accordance
with [bad] character” or had a propensity to commit the crime. See TEX. R. EVID.
3 404(b). But when a defendant is on trial for certain sexual offenses, like continuous
sexual abuse of L.C. here, the law is different. Under Article 38.37, Section 2(b) of
the Code of Criminal Procedure, evidence that the defendant committed a separate
sexual offense may be admitted “for any bearing [it] has on relevant matters,”
including the defendant’s character and acts performed in conformity with the
defendant’s character. TEX. CODE CRIM. PROC. art. 38.37, § 2(b). Such evidence is
permitted “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,” which
govern character evidence, but the statute does not mention Rule 403. Id. Before
the evidence may be introduced, the trial court must hold a hearing out of the jury’s
presence and determine whether the evidence likely to be admitted will support a
jury finding “that the defendant committed the separate offense beyond a reasonable
doubt.” Id. § 2-a.
At the hearing on the extraneous offenses, L.Z., A.Z., and M.G. all testified
that Juarez had inappropriately touched them. Though there were some differences
in the events they described—for instance, the sexual abuse A.Z. alleged happened
four or five years after the sexual abuse L.C. alleged—they all testified that Juarez
abused them around the same age in either the red-brick duplex or the trailer, that he
enticed them into his bedroom with snacks, that he used electronic devices as a
distraction, that he removed their pants, and that he touched their genitals with his
fingers or penis. Like L.C., L.Z. testified that Juarez used a shirt to wipe her after
4 he finished. Both she and M.G. testified that Juarez had also penetrated their vaginas
with his penis.
Juarez objected at the hearing that L.Z., A.Z., and M.G. should not be allowed
to testify about the extraneous offenses because applying Article 38.37 would be
unconstitutional and deprive him of a fair trial. He also objected under Rule 403
that extraneous-offense evidence was unfairly prejudicial and risked confusing the
issues. The trial court excluded some of the evidence the State sought to introduce—
namely, testimony from L.Z. that Juarez had also abused her outside of the home, in
his truck. But the trial court otherwise overruled appellant’s constitutional and Rule
403 objections, allowing L.Z., A.Z., and M.G. to testify at trial.
The State’s other witnesses included L.C., her mother, the police officers who
responded to her mother’s 911 call and investigated the allegations against Juarez, a
forensic-interview expert who reviewed the children’s videotaped statements, a
clinical psychologist who testified about the effects of childhood sexual trauma, and
a Sexual Assault Nurse Examiner (SANE) who examined L.C., did not find anything
abnormal, and explained why DNA or other physical evidence is unlikely to be
found in a medical examination conducted more than a few days after a sexual
assault.1 The State also provided testimony from one of L.C.’s uncles who shared a
1 L.Z.’s, A.Z.’s, and M.G.’s sexual-assault examinations were more limited in scope and did not reveal any abnormalities. 5 bedroom with Juarez. He is older than L.C. but was still a child at the time. He
testified that when he was twelve or thirteen years old, he came home when the door
to the shared bedroom in the trailer was closed. He opened the door and saw Juarez
on his knees, with the top half of his body on the lower bunk bed. L.C. was on the
bed under Juarez. Juarez got up and told L.C. he did not want to play with her “like
this.” L.C.’s uncle explained that he was “confused” by what he saw, walked out of
the room, and thought “what the heck is going on.” He did not tell anybody what he
saw but asked Juarez not to let the younger girls in the bedroom.
Juarez testified in his own defense. He denied offering snacks to the children,
disrobing them, or touching any of them inappropriately at either the red-brick
duplex or the trailer. And he testified that L.C.’s uncle had lied about seeing him on
top of L.C.
After the close of evidence, the jury found Juarez guilty of continuous sexual
abuse of L.C. The trial court assessed punishment at forty years’ confinement.
Article 38.37, Section 2(b)
In his first issue, Juarez argues Article 38.37, Section 2(b) is unconstitutional
as applied to him because it deprived him of due process under the Fourteenth
Amendment to the United States Constitution. The constitutionality of Article
38.37, Section 2(b), as applied, is a question of law that we review de novo. Ex parte
6 Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Deggs v. State, 646 S.W.3d 916,
922 (Tex. App.—Waco 2022, pet. ref’d).
The Due Process Clause protects the defendant against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979)). The essential
guarantee of due process is “that the government may not imprison or otherwise
physically restrain a person except in accordance with fair procedures.” Long v.
State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987) (quotation omitted), overruled
on other grounds by Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990). A
defendant asserting a due-process violation must show “the challenged statute or
rule violates those ‘fundamental conceptions of justice which lie at the base of our
civil and political institutions and which define the community’s sense of fair play
and decency.’” Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—Tyler 2015, no
pet.) (quoting Dowling v. United States, 493 U.S. 342, 352–53 (1990)).
Generally, the defendant must be tried only for the charged offense and may
not be tried for a collateral crime or being a criminal generally. Stafford v. State,
813 S.W.2d 503, 506 (Tex. Crim. App. 1991). As we have already noted, however,
Article 38.37, Section 2(b) creates an exception to the general exclusion in criminal
trials of character or propensity evidence by proof of extraneous offenses. See TEX.
7 CODE CRIM. PROC. art. 38.37, § 2(b). By enacting Article 38.37, Section 2(b), the
Legislature made extraneous offenses admissible for any relevant purpose in a trial
for certain sex offenses against a child, including as proof of the defendant’s
character and propensity to commit such offenses. See id.
A statute’s constitutionality may be challenged in two ways: “on its face” or
“as applied.” Estes v. State, 546 S.W.3d 691, 697–98 (Tex. Crim. App. 2018). A
defendant raising a “facial” challenge asserts the statute is unconstitutional “on its
face,” meaning it operates unconstitutionally in all potential applications. Id. A
litigant making an “as-applied” challenge concedes the general constitutionality of
the statute but asserts it is unconstitutional as applied to his particular facts and
circumstances. Id. at 698.
Juarez complains that Article 38.37, Section 2(b) is unconstitutional as
applied to him in this case because the protections provided by Rule 403, which have
been used as a basis to find the statute facially constitutional, were illusory. See,
e.g., Robisheaux v. State, 483 S.W.3d 205, 210–12 (Tex. App.—Austin 2016, pet.
ref’d). That is, Juarez asserts the statute’s operation effectively prevented the trial
court from meaningfully considering whether evidence he sexually assaulted L.Z.,
A.Z., and M.G. should have been excluded under Rule 403 and lessened the State’s
burden in proving the charged offense against L.C. According to Juarez, because
the statute allows such evidence if it is “adequate” for a reasonable jury to find he
8 committed the extraneous offenses beyond a reasonable doubt, the trial court could
not fulfill its gate-keeping function, making due process a mere “mirage.”
Assuming without deciding that Juarez preserved his as-applied challenge for
appellate review, we conclude the record does not support his complaint. After L.Z.,
A.Z., and M.G. testified at the pretrial hearing, Juarez objected that the evidence
should be excluded not just on constitutional grounds but also under Rule 403
because its probative value was substantially outweighed by the danger of unfair
prejudice and confusion of the issues. See TEX. R. EVID. 403. The trial court allowed
the State and Juarez to argue the evidence’s utility and costs and then excluded some
evidence (that Juarez had sexually assaulted L.Z. in his truck, which was a different
location than the charged offense). The trial court otherwise overruled Juarez’s
objections and allowed the evidence. The trial court instructed the jury not to
consider the extraneous offenses unless it believed beyond a reasonable doubt that
Juarez committed them, and it instructed the jury on the State’s burden to prove each
element of the charged offense beyond a reasonable doubt.
The trial court thus followed the statute’s requirements and, after hearing
evidence and arguments, determined that the evidence was enough for a reasonable
jury to find that Juarez committed the extraneous offenses beyond a reasonable doubt
and that the evidence’s probative value was not substantially outweighed by the
danger of unfair prejudice or confusion of the issues. Accordingly, the trial court
9 held an evidentiary gate-keeping hearing during which both sides actively
participated; due process was not a “mirage” for Juarez. Although Juarez disagrees
with the trial court’s conclusions as we discuss more below, we cannot conclude that
Article 38.37, Section 2(b) is unconstitutional as applied to him. See, e.g., Deggs,
646 S.W.3d at 923–24 (rejecting similar complaint that Article 38.37, Section 2(b)
was unconstitutionally applied because it rendered Rule 403 illusory).
We overrule Juarez’s first issue.
III. Rule 403
In his second issue, Juarez argues the trial court erred by overruling his
objection to the evidence that he sexually assaulted L.Z., A.Z., and M.G. under Rule
403. We review the trial court’s ruling for an abuse of discretion and will uphold it
if it is within the zone of reasonable disagreement. Hart v. State, 688 S.W.3d 883,
891 (Tex. Crim. App. 2024).
Rule 403 gives the trial court discretion to exclude otherwise relevant
evidence when the costs of admission outweigh its utility. In “he said, she said”
sexual-assault cases like this one, where the credibility of both the complainant and
the defendant is central, the rule should be used “very sparingly.” Johnson v. State,
490 S.W.3d 895, 911 (Tex. Crim. App. 2016); see also Robisheaux, 483 S.W.3d at
218 (recognizing trial courts are given “especially high level of deference” for Rule
403 determinations). The test is whether the probative value of the relevant evidence
10 “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 (emphasis added). To
determine whether the test is met, courts balance four non-exclusive factors:
“(1) how probative the evidence is[;] (2) the potential of the evidence to impress the
jury in some irrational, but nevertheless indelible way; (3) the time the proponent
needs to develop the evidence; and (4) the proponent’s need for the evidence.”
Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019). Applying these
factors, we conclude the trial court did not abuse its discretion by allowing the
evidence of the extraneous offenses against L.Z., A.Z., and M.G.
Under the first factor, probative value “means more than simply relevance.”
Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). It instead
“refers to the inherent probative force of an item of evidence—that is, how strongly
it serves to make more or less probable the existence of a fact of consequence to the
litigation—coupled with the proponent’s need for that item of evidence.” Id.
This Court and others have recognized evidence of separate sexual offenses
against other children as probative of a defendant’s character or propensity to
commit the charged sexual offense against a child complainant. See, e.g., Alvarez v.
State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016, pet ref’d);
Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.).
11 Considering Juarez denied touching L.C. and accused her of lying, the extraneous
offenses were especially probative because of their similarity to the charged offense
against L.C. The sexual abuse of L.Z. and M.G. happened in the same location and
around the same time as the charged offense, against similarly situated and aged
complainants, and involved many of the same details, such as Juarez using snacks
to draw them into his bedroom, using electronic devices to distract them, and
cleaning up with a shirt. At various times, L.C., L.Z., and M.G. were together in the
room when the sexual abuse of one or the other of them took place. While the sexual
abuse of A.Z. happened a few years later, the similarity of age, location, and method
makes that offense highly probative, too. See Bargas v. State, 252 S.W.3d 876, 893
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (addressing similarity of
extraneous offense in Rule 403 analysis). The first factor thus weighs in favor of
admissibility.
The second factor considers the potential for the evidence to impress the jury
in some irrational but nevertheless indelible way. See Hart, 688 S.W.3d at 894. It
compels us to consider whether the evidence has a “tendency to suggest [a] decision
on an improper basis,” usually emotional in nature. Valadez v. State, 663 S.W.3d
133, 142 (Tex. Crim. App. 2022).
Juarez contends “the acts recounted by L.Z., A.Z., and M.G. by their very
nature ‘tend to inflame.’” Undoubtedly that is true—perhaps even more so when, as
12 here, the jury hears from multiple other children. See, e.g., Martin v. State, 176
S.W.3d 887, 897 (Tex. App.—Fort Worth 2005, no pet.) (evidence of sexual
misconduct involving children is inherently inflammatory). But the testimony
Juarez complains of is prejudicial for the very reason Article 38.37 allows its
admission—it indicates a propensity to commit sexual assaults on children. Juarez
has not identified any specific facts about the other sexual assaults that make them
uniquely or unfairly prejudicial. Additionally, the trial court equipped the jury with
an instruction to consider the other sexual assaults only if the jury believed beyond
a reasonable doubt that Juarez committed them. See Abdnor v. State, 871 S.W.2d
726, 738 (Tex. Crim. App. 1994) (“A manner of lessening the prejudice from the
extraneous offense is to give a limiting instruction to the jury.”). The second factor
thus weighs only slightly against admission or is neutral.
The third factor focuses on the time needed “to develop the evidence, during
which the jury [is] distracted from consideration of the indicted offense.” State v.
Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005). Evidence that consumes an
inordinate amount of time to present or answer, for example, may confuse or distract
the jury from the main issues. See Gigliobianco, 210 S.W.3d at 641.
The State acknowledges the time spent at trial on extraneous sexual assaults
was not insignificant. The State’s case in chief took two days and is transcribed in
about 600 pages. L.C.’s testimony about the charged offense occupies about eighty
13 of those pages. Collectively, L.Z.’s, A.Z.’s, and M.G.’s testimony is almost double
the number of pages, or roughly twenty-five percent of the entire transcript. And
they were not the only witnesses to testify about the other sexual assaults. For
instance, experts testified about the forensic interviews and medical examinations of
the other children. It is fair to say that a significant portion of the trial—at least one-
quarter to one-third—was spent on the extraneous sexual assaults. Because a
significant portion of the evidence related to the extraneous sexual assaults, we
conclude the third factors weighs against admission. See McGregor v. State, 394
S.W.3d 90, 121–22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (factor
weighed in favor of exclusion when evidence of extraneous offenses amounted to
one-third of the trial); Newton v. State, 301 S.W.3d 315, 321 (Tex. App.—Waco
2009, pet. ref’d) (factor weighed in favor of exclusion when evidence of extraneous
offenses was twenty-seven percent of trial testimony).
On the fourth factor, the State showed great need for the extraneous-offense
evidence. In adopting Article 38.37, the Legislature recognized “there is typically
very little evidence to assist prosecutors with proving” child sex offenses. Bradshaw
v. State, 466 S.W.3d 875, 884 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting
Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg. R.S.
(2013)). Child victims may be “so scarred by the physical and emotional trauma of
the event that there are often long delays in the reporting of the crime, and these
14 delays can lead to the destruction or deterioration of what little physical evidence
exists.” Id. That dynamic played out here.
The ultimate issue was whether Juarez committed the charged offense of
continuous sexual abuse of a young child against L.C. L.C. did not tell anyone about
her allegations until 2018, more than eight years after the abuse started and about
four years after it ended. There was no physical evidence or DNA evidence to
support the charged offense because of the time that had passed. Although L.C.’s
uncle witnessed something “confusing” between Juarez and L.C., Juarez strongly
contested both L.C.’s and her uncle’s credibility, making the extraneous offenses
necessary to counter his theory that the allegations were fabricated. The fourth factor
thus weighs in favor of admissibility.
Considering all four factors together under the abuse-of-discretion standard,
we cannot say the trial court’s decision to admit the evidence of the extraneous
offenses against L.Z., A.Z., and M.G. fell outside the zone of reasonable
disagreement. See Schiele v. State, No. 01-13-00299-CR, 2015 WL 730482, at *8
(Tex. App.—Houston [1st Dist.] Feb. 19, 2015, pet. ref’d) (mem. op., not designated
for publication) (trial court did not abuse its discretion by admitting extraneous-
offense evidence when one half of the Rule 403 factors weighed against
admissibility and the other half weighed in favor of it).
We overrule Juarez’s second issue.
15 IV. Conclusion
We affirm the trial court’s judgment.
Andrew Johnson Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).