Andrew Pete v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 21, 2024
• Docket: 01-22-00675-CR
• Status: Published

Opinion

Opinion issued March 21, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00674-CR NO. 01-22-00675-CR ——————————— ANDREW PETE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court Harris County, Texas Trial Court Case Nos. 1751814 & 1751815

MEMORANDUM OPINION A jury found appellant, Andrew Pete, guilty of two separate felony offenses

of aggravated sexual assault of a child1 and assessed his punishment at confinement

for life for each offense, to run concurrently. In three issues, appellant contends that

the trial court erred in admitting certain evidence, failing to hold a hearing on

appellant’s motion for new trial, and declaring a mistrial in appellant’s first trial.

We affirm.

Background

The complainant testified that she was born on February 4, 2002. The

complainant had two older brothers, an older sister, and a younger sister, and she

lived with her parents while growing up. The complainant graduated from high

school in 2020. During her childhood, the complainant attended church regularly

with her family.

The complainant further testified that when she was around seven to nine

years old, she met appellant and appellant’s wife, Elva Pete (“Elva”). Appellant and

Elva met the complainant’s family because Elva was the choir director at the

family’s church and the complainant’s mother sang in the choir. The complainant’s

father was also a musician at the church. The complainant’s mother and Elva

became “very close friends,” and appellant and the complainant’s father became

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B), (e); appellate cause no. 01-22-00674-CR, trial court cause no. 1751814; appellate cause no. 01-22-00675-CR, trial court cause no. 1751815.

2 close friends as well. The complainant’s parents trusted appellant and Elva, and one

of the complainant’s older brothers, Zachary, had a close relationship with appellant.

Appellant was considered to be Zachary’s godfather. Appellant attended Zachary’s

sporting events and spent a lot of time with Zachary.

When the complainant’s family would spend time with appellant and Elva,

they would all go out to eat, go to the movies, go bowling, and hang out at each

other’s houses. Appellant and Elva would attend the complainant’s family’s holiday

gatherings and birthday parties. According to the complainant, appellant bought her

and her older sister a gaming system, games, purses, and Nutella.

The complainant also explained that her family spent time with appellant and

Elva weekly, and they often saw appellant and Elva more than once a week. The

complainant would go to appellant and Elva’s house often. The complainant stated

that appellant and Elva were “pretty frequent people that were in [her] life.” And

there were times when she would talk and hang out with appellant alone. The

complainant told appellant things because he would listen and he gave the

complainant attention that she wanted and needed.

For instance, the complainant told appellant that when she was five or six

years old until she was about nine or ten years old, her older brothers would

“encourage [her] to touch their private parts and also explore [her] private parts.”

The complainant also told appellant that when she was five years old, she found her

3 brother Zachary “masturbating in the game room” of her home while pornography

was being played on the family’s computer. Because of her brothers, the

complainant continued seeing pornography in the home until she was about ten or

eleven years old. Additionally, the complainant told appellant that when she was in

kindergarten, she was seated on a school bus next to a boy and that boy made her

“put [her] mouth on his penis.” After the complainant would tell appellant such

things, appellant appeared to be proud of her for having told him.2

The complainant further testified that when she was eleven years old, she and

her siblings spent the night at appellant and Elva’s home. The complainant and her

two sisters slept in the guest bedroom together. At the time, the complainant had

“bed-wetting issues,” of which appellant was aware. During the middle of the night,

appellant woke up the complainant so that she could use the restroom. When the

complainant walked into the bathroom, appellant walked in behind her and locked

the door. While the complainant went to the bathroom, appellant sat on the sink.

Appellant had never come into the restroom with the complainant before, and she

felt uncomfortable by his presence. After the complainant finished using the

restroom, appellant asked if he could have a hug, and the complainant complied.

2 The complainant also testified that when she was about ten or eleven years old, she was sitting in appellant’s car alone with appellant, and she asked appellant “what pubic hair was.” In response, appellant asked the complainant to show him her vagina so that he could show her. The complainant did not show appellant her vagina at the time.

4 While the complainant hugged appellant, he groped her bottom outside of her

clothing, meaning he “squeez[ed] [her] cheeks with his fingers.” Appellant tried to

put his hands into the complainant’s shorts and grope her further, but the

complainant tapped appellant on the shoulder, and he said something like, “Okay.

Okay, . . . . Okay.” Appellant told the complainant not to tell anyone because it

would “ruin the relationship” appellant and Elva had with the complainant’s family,

which the complainant knew was an important relationship for the family.

A few weeks later, the complainant told her mother about what had happened

with appellant in the bathroom, and although her parents asked if she was telling the

truth, the complainant never said that the bathroom incident with appellant did not

happen. However, the complainant’s family continued to spend time with appellant

and Elva. They continued to see appellant and Elva at church, and appellant still

attended Zachary’s sporting events; appellant and Elva were still a part of the

complainant’s life, and appellant still had the ability to be around the complainant.

The complainant also explained that one day, when she was about twelve

years old, she was asleep in her bedroom at her house.3 The complainant’s bedroom

was located upstairs, and the complainant slept in the bottom bunk of a bunk bed in

her room. On that particular day, the complainant’s mother was in the kitchen

3 The complainant testified as to the address of her home and that her home was in Harris County, Texas.

5 downstairs making pancakes. The complainant woke up when appellant came into

her bedroom, and she stood up. Appellant then asked the complainant to see a frame

that he had made for her, which the complainant retrieved from her closet. She

handed the frame to appellant. At the time, the complainant was wearing shorts and

a t-shirt, and appellant put his hand in her shorts and in her underwear. Appellant

then stuck his fingers in the complainant’s vagina repeatedly. At some point,

appellant stopped, groped his penis, and said, “Look how hard you made me.”

Appellant licked his fingers and then went to wash his hands before going back

downstairs.4 The complainant stated that she did not tell initially anyone about what

had happened with appellant because she did not think anyone would believe her or

that anyone would do anything about it.

The complainant further recalled that another incident happened on a Sunday

after church when she was about thirteen years old. The complainant’s family,

appellant, and Elva left church at the same time to head to the complainant’s house.

The complainant left church in appellant’s car, just the two of them, because

appellant told her that he would take her to buy arch supports. The complainant sat

in the front passenger seat of the car, and appellant drove. According to the

complainant, although she and appellant were “supposed to go to Walgreens

4 The complainant stated that she was less than fourteen years old when the bedroom incident occurred.

6 [Pharmacy] to get [her the] arch supports,” they did not. Instead, appellant called

the complainant’s parents “to ask them if they wanted him to pick up some chicken.”

The complainant’s parents said they did, so appellant drove to a Popeyes Louisiana

Kitchen restaurant (“Popeyes”). After getting chicken from Popeyes, appellant

drove his car through a nearby neighborhood because he “wanted to touch [the

complainant] again.” Appellant said something like, “Let me show you how your

boyfriend could finger you while you’re in a car so no one could see.” Appellant

then told the complainant to turn her back toward him, so that she was facing the

front passenger side window. He told her to put her leg up on the car seat and to

unbutton the “bottom two buttons of [her] jumpsuit.” He then stuck his hand down

her pants and “started playing with [her] vagina.” Appellant put his fingers inside

her vagina.5 Appellant stopped when they got to the edge of the neighborhood

because “he didn’t want to risk being seen.”

Appellant then drove to an abandoned strip center and stopped. He asked the

complainant to “see and suck on [her] breasts.” The complainant was shocked and

froze. When appellant saw that she was scared, he said, “never mind” and told the

complainant to button up her pants. Appellant then drove her home. When they

arrived at the complainant’s house, the complainant got out of the car and started

5 The complainant testified that this incident happened in Harris County, and she was less than fourteen years old when it occurred.

7 “walking funny.” Appellant laughed and said, “You better stop walking like that.”

The complainant did not tell anyone what happened that day.

Additionally, the complainant testified that on Mother’s Day in May 2015,

she went out to eat at a restaurant with her mother’s family. That day, the

complainant told her maternal grandmother that she needed to talk, and they went to

the restroom in the restaurant. The complainant then told her grandmother about the

bedroom incident and the Popeyes incident with appellant. The complainant’s

grandmother comforted her, but she was adamant that the complainant needed to tell

her mother. Later that night, the complainant told her mother about the bedroom

incident and the Popeyes incident, while she, her mother, and her grandmother stood

in the driveway at the complainant’s cousin’s house. The complainant’s mother was

hurt, disappointed in herself, and frustrated. She cried and squeezed the

complainant.

The next day, the complainant’s mother took the complainant to see her

therapist, Dr. Maria Peters.6 The complainant told Dr. Peters everything that she had

6 Dr. Peters testified that she began seeing the complainant in April 2015 when the complainant was thirteen years old. At the time, the complainant was getting into fights, being aggressive, and sexually acting out, which according to Dr. Peters, were behaviors consistent with a child that was being sexually abused. In May 2015, the complainant disclosed the sexual abuse to Dr. Peters after she told her mother. The complainant continued seeing Dr. Peters for two years, and during that time, the complainant was consistent with her story of about what had happened to her.

8 told her grandmother and her mother. The complainant also thought that her parents

had reported appellant to law enforcement or Child Protective Services.

The complainant’s maternal grandmother testified that the complainant was

born in February 2002. On Mother’s Day in May 2015, she and the complainant

were seated together at a restaurant, along with other family members. The

complainant was thirteen years old at the time. According to the complainant’s

grandmother, the complainant was not acting like herself; she was eating very fast,

and she was not happy. The complainant’s grandmother was concerned and asked

the complainant “what[] [was] going on.” The complainant responded that

“[s]omething did happen,” and then the complainant and her grandmother went to

the restroom to talk.

Inside the restroom, the complainant began to cry, and the complainant’s

grandmother hugged her. The complainant told her grandmother that she and

appellant “were going to get some chicken” at Popeyes, and when appellant “drove

around and found a spot.” Appellant then put his fingers in the complainant’s

vagina. The complainant’s grandmother told the complainant that they needed to

tell the complainant’s mother, but the complainant did not want to.

Upon leaving the restaurant, the complainant’s mother, the complainant’s

grandmother, and the complainant got in a car together. The complainant was very

quiet. When they arrived at the place where the complainant’s grandmother was

9 staying, the complainant’s grandmother told the complainant’s mother that the

complainant needed to tell her something. They all got out of the car, and the

complainant told her mother about the Popeyes incident.

The complainant’s mother testified that she had five children, and the

complainant was born in February 2002. The complainant’s mother met appellant

and Elva through the family’s church because she sang in the choir with Elva. The

complainant’s mother and Elva quickly formed a friendship, and appellant and the

complainant’s father became friends. At the time, the complainant was about ten or

eleven years old.

The complainant’s mother further explained that her family’s relationship

with appellant and Elva was “very close.” The complainant’s mother was very open

with appellant and Elva about things going on with her children. The families also

went places together, spent time at each other’s houses, went bowling, and “hung

out a lot.” Appellant and Elva would watch the complainant and her siblings at

times, and because appellant and Elva lived close to the children’s school, they

would occasionally pick up the children from school. The complainant’s older

brother, Zachary, was appellant’s godson, and appellant became a big part of

Zachary’s life. Appellant and Elva participated in the children’s lives quite a bit.

According to the complainant’s mother, the complainant knew that she and the

complainant’s father trusted appellant and Elva. The complainant liked appellant

10 when they first met, and she would talk to appellant about personal things. Appellant

would do nice things for the complainant; he gave the complainant and her older

sister a gaming system, and he made a stage for the complainant’s birthday party.

He also made a display case for the complainant’s medals. In general, appellant had

a giving nature toward the complainant and her siblings.

The complainant’s mother further testified that one night, when the

complainant was about eleven years old, she spent the night at appellant and Elva’s

home. At the time, the complainant was “having issues with bedwetting,” and

appellant and Elva were aware of those issues. Sometime after the night when the

complainant stayed with appellant and Elva, the complainant told the complainant’s

mother about some inappropriate touching that had occurred. The complainant’s

mother spoke to appellant and Elva about it, and appellant acted “shocked that [she]

knew or that [she had] found out about it.” Appellant denied any inappropriate

touching of the complainant and said that the complainant was lying. But the

complainant told her mother that she was telling the truth, and her story stayed the

same. The complainant’s mother did not contact law enforcement officers though

because she was not sure “if [anything] actually happened.”

Following the inappropriate touching allegation, the complainant’s family still

spent time with appellant and Elva, and appellant was still allowed to be around the

11 complainant, but not alone. Appellant was also still Zachary’s godfather, and the

complainant’s mother still thought of appellant and Elva as family friends.

The complainant’s mother further explained that on Mother’s Day in May

2015, she went to a restaurant with some of her family members, including the

complainant, who was thirteen years old at the time, and the complainant’s maternal

grandmother. Later in the night, when the complainant’s mother dropped the

complainant’s grandmother off at the house where she was staying, the

complainant’s grandmother told her that the complainant needed to talk. The

complainant appeared nervous and anxious, and she told her mother that appellant

had stuck his finger in her vagina more than once. The complainant told her mother

about the Popeyes incident, and she also told her that once when the complainant

was upstairs in her bedroom at their house, appellant put his finger in her vagina

while the complainant’s mother was downstairs in the kitchen.7 The complainant

said that appellant had told her that “he wanted to show her how it was supposed to

feel when a boy would do that to her.” The complainant cried as she told her mother

about the Popeyes incident and the bedroom incident, which, according to the

complainant’s mother, would have occurred before the complainant turned fourteen

years old.

7 The complainant’s mother testified as to the address of the family’s home and that the home was in Harris County.

12 As to the bedroom incident, the complainant’s mother noted that she

remembered a time when appellant came over to the family’s house and went

upstairs to the complainant’s bedroom while the complainant’s mother stayed

downstairs. At the time, appellant told the complainant’s mother that he was going

upstairs to look at a display case that he had previously made for the complainant

that was broken. Appellant was upstairs in the complainant’s bedroom for about

five minutes.

As to the Popeyes incident, the complainant’s mother explained that she

remembered that there was a day when the complainant was alone with appellant

after the family left church. On that day, the complainant’s mother and the

complainant’s younger sister left church to go home and begin cooking. Elva also

left and came to the complainant’s house. When the complainant’s father arrived

home, he told the complainant’s mother that the complainant was with appellant and

Zachary. But the complainant’s mother told the complainant’s father that Zachary

had gone to visit another church member, which meant that the complainant was

alone with appellant. This caused the complainant’s mother to be concerned.

Shortly thereafter, Elva received a telephone call from appellant, who asked if

anyone needed chicken, and Elva said yes. Appellant then went to a Popeyes near

the complainant’s home. At some point, appellant and the complainant arrived back

at the complainant’s house, with the complainant sitting in the front passenger seat

13 of appellant’s car. The complainant did not tell her mother that anything happened

while she was alone with appellant.

The complainant’s mother further testified that after the complainant’s

disclosures in May 2015, the complainant’s mother contacted the complainant’s

therapist, Dr. Peters, immediately.8 Dr. Peters told the complainant’s mother to bring

the complainant to see her the next day, and she would show the complainant’s

mother how to file a report with Child Protective Services. The complainant’s

mother ended up filing a report that night.

C.R. testified that she grew up in Temple, Texas, and during her childhood,

she lived with her mother and brother. C.R. met appellant when she was eleven

years old, and he was her mother’s boyfriend. After C.R. met appellant, he moved

into C.R.’s home. He also became involved in C.R.’s activities and school, and he

helped her with volleyball and track. He would take C.R. to her activities to help

her mother, and he would buy C.R. things. C.R.’s mother used to work long hours

so often appellant, C.R., and C.R.’s brother were alone together. C.R.’s mother

trusted appellant, and C.R. felt like she could trust appellant.

C.R. further explained that when she was about twelve years old, appellant

was laying down in his bedroom when C.R. and her friend got home from school

8 According to the complainant’s mother, the complainant had been seeing a therapist because she was depressed and had been cutting herself. The complainant was also very angry and lashing out.

14 one day. Appellant called C.R. and her friend to come lay down in bed with him

and talk with him. Appellant “put [C.R.] on his chest to hold [her] and [she] could

feel his private area” “moving a little bit.” This made C.R. feel uncomfortable, so

she got up. C.R. “blew . . . off” the incident because “maybe [appellant] didn’t mean

it.”

Next, when C.R. was still twelve years old, C.R. had a dream in which she

was laying down in the family room watching television with appellant. Appellant

then “lifted up [her] leg and started playing with [her] vagina with his fingers.”

When C.R. woke up, she was “real wet down there,” and she “felt like [she] had

been touched down there.” She waited for appellant to go to work so that she could

tell her mother that “something [had] happened last night.”

While C.R. was talking to her mother, appellant called, and C.R.’s mother told

appellant, “Hold on, my baby needs to talk to me.” (Internal quotations omitted.)

C.R. then told her mother that she believed that appellant had touched her the night

before, but she “wasn’t sure if it was reality or a dream.” Right after C.R. finished

speaking with her mother, appellant came home. C.R.’s mother then asked

appellant, in front of C.R., if appellant had touched her, and appellant denied it. This

made C.R. feel embarrassed, and like she was alone.

A few days later, appellant made C.R.’s mother look at C.R.’s vagina “to

check her out to see if she[] [was] lying or if she[] [had been] doing anything”

15 sexually. C.R.’s mother then looked at C.R.’s vagina while appellant was in the

same room and watching. C.R.’s mother told appellant that C.R.’s vagina “looked

normal.” C.R. felt embarrassed, like she was “a bad person,” and that she had “done

something wrong.” C.R. believed that appellant forced C.R.’s mother to look at her

vagina.

The next day, appellant called C.R. into his bedroom and said that C.R.’s

mother said that “he could look at [her vagina] because [she] shouldn’t be getting

that wet or whatever.” C.R.’s mother was at work at the time. C.R. asked if they

could call her mother, but appellant said, “No, she already knows what’s going on,

she’s busy, she’s already annoyed. Just let me check you out.” (Internal quotations

omitted.) C.R. felt alone.

In appellant’s bedroom, C.R. sat on the bed, and appellant told her to take off

her underwear so that he could “check” her vagina because she “shouldn’t be getting

th[at] wet if [she was] not doing anything” sexually with someone. C.R. then took

off her pants and underwear, and appellant “opened [her vagina] up with his

thumbs.” Appellant then licked C.R.’s vagina before “retreat[ing] back to his

knees.” He then said, “Oh, my God, why did I just do that? Why’d I just do that?”

(Internal quotations omitted.) C.R. was shocked and could not move. Appellant

then opened C.R.’s vagina again with his hands and “said [that] it looked like a

grown man could fit [her].” He then put his penis in her vagina. It took C.R.’s

16 breath away. When appellant got off C.R., he went to the bathroom. He told C.R.

to come to the bathroom and wash up. He made C.R. “use [her] mo[ther’s] douche

bottle to clean [her]self.” C.R. did not tell her mother about the incident because she

thought her mother “would ask [appellant about it] in front of [her]” and she did not

think that she could trust her mother or that anything would be done.

C.R. further explained that after the incident, appellant continued to put his

penis in her vagina until she was fourteen years old. When C.R. was twelve and

thirteen years old, appellant put his penis in her vagina daily, and it sometimes

happened two or three times a day. C.R. recalled that one Christmas day, when she

was in the eighth grade, her home was full of people. There was moment during that

day when she went to the bathroom. When she walked out of the bathroom,

appellant “grabbed [her] real fast” and took her to his bedroom. Appellant “opened

the closet and bent [her] over and took [her] pants down.” He put his penis in her

vagina for less than a minute and then “ejaculated on the floor, pulled [her] pants up,

and sent [her] back out to [her] family.”

C.R. also testified that appellant put his penis in C.R.’s mouth many times.

One night, when C.R. was thirteen years old, C.R.’s mother was asleep, and C.R.’s

brother was in the bathroom. Appellant made C.R. sit on the floor with him and

“suck his penis while [her] mom was literally a few feet away and [her]

brother . . . could open the door and [see] everything from the bathroom across the

17 hall.” Additionally, appellant put his mouth on C.R.’s vagina many times, and one

time his finger touched her anus.

According to C.R., appellant would often tell C.R. that she should be happy

“[b]ecause while [her] peers [were] making names for themselves being fast, having

sex with boys at school, [she] was not.” She “was lucky to have it at home so the

rest of the world could still think [she] was a virgin.” Appellant also told C.R. that

he was teaching her things about sex. And he would tell C.R. things that would

make her feel like she could not tell anyone about what was happening to her.

For instance, one time, C.R. argued with appellant and told him that she was

“fixing to let it be known.” (Internal quotations omitted.) Appellant then put her in

his car and started driving “dangerously fast.” He told C.R. that he would “put [her

family] 6 feet under.” This alarmed C.R. because appellant was “a big man” and he

could overpower C.R.’s mother, C.R.’s brother, and C.R.

C.R. further testified that appellant moved out of her house when she was

fourteen years old, but appellant was still involved in her life. He would still take

C.R. to activities and bring her to his apartment to go swimming. Appellant would

want C.R. and her brother to stay the night at his apartment, but C.R.’s mother would

only let them go over to appellant’s apartment for a little while. According to C.R.,

even after appellant moved out C.R.’s home, he still sexually abused her. For

instance, when C.R. was fourteen years old, her mother let her go on a three-hour

18 drive with appellant in appellant’s truck. During the drive, appellant stopped at a

truck stop and had sexual intercourse with C.R. in the truck.

The last time that appellant sexually abused C.R., appellant picked C.R. up

from school during lunch. They went home, and appellant had sexual intercourse

with her. When appellant brought C.R. back to school, appellant grabbed C.R.’s

face and kissed her on the mouth. Because C.R.’s paternal grandfather had come to

school to bring C.R. some food, he saw appellant kiss C.R. Although C.R.’s

grandfather told her that she was “safe with him and [that she could] talk to him

about anything,” she did not tell him about the sexual abuse.

When C.R. was about sixteen years old, she told her mother about what

appellant had done to her. C.R.’s mother reported the sexual abuse to law

enforcement officers. Although her allegations were investigated by law

enforcement, about a year later, “they had to close” the case because “they didn’t

have enough evidence.” C.R. was told that if she “f[ound] anything else or f[ound]

anything else that could help, [to] be sure to come and bring it” forward. Appellant

was never charged with an offense based on C.R.’s allegations of sexual abuse, and

the investigation was closed because “there[] [was] not enough evidence.”

Additionally, C.R. testified that when she was about twenty-three years old, a

district attorney from Dallas County, Texas reached out to her and told C.R. that she

was investigating appellant. The district attorney asked C.R. to tell her what she

19 remembered about appellant sexually abusing her. In 2015, C.R. testified at a trial

against appellant that involved a complainant named J.W.

During trial, the trial court admitted into evidence copies of three indictments

from 2012 related to appellant. The first indictment alleged that on or about October

15, 2003, in Dallas County, appellant “did unlawfully then and there intentionally

and knowingly cause the penetration of the female sexual organ of [J.W.], a child

who was not then the spouse of [appellant], by an object, to-wit: the finger, of

[appellant], and, at the time of the offense, [J.W.] was younger than 14 years of

age.”9 The second indictment alleged that on or about April 1, 2004, in Dallas

County, appellant “did unlawfully then and there intentionally and knowingly cause

the contact and the penetration of the female sexual organ of [J.W.], a child who was

not then the spouse of [appellant], by an object, to-wit: the sexual organ, of

[appellant], and, at the time of the offense, [J.W.] was younger than 14 years of

age.”10 The third indictment alleged that on or about March 1, 2003, in Dallas

County, appellant “did unlawfully then and there intentionally and knowingly cause

the contact and penetration of the mouth of [J.W.], a child, who was not then the

9 See TEX. PENAL CODE ANN. § 22.021 (aggravated sexual assault of child). 10 See id.

20 spouse of [appellant], by the sexual organ of [appellant], and, at the time of the

offense, the child was younger than 14 years of age.”11

The trial court also admitted into evidence copies of three judgments of

conviction related to appellant. The first judgment, from the 292nd District Court

of Dallas County, trial court cause number F-1233559-V, shows that appellant was

found guilty of the felony offense of aggravated sexual assault of a child and the trial

court assessed his punishment at confinement for eight years. The second judgment,

from the 292nd District Court of Dallas County, trial court cause number

F-1233560-V, shows that appellant was found guilty of the felony offense of

aggravated sexual assault of a child, and the trial court assessed his punishment at

confinement for eight years. The third judgment, from the 292nd District Court of

Dallas County, trial court cause number F-1233561-V, shows that appellant was

found guilty the felony offense of aggravated sexual assault of a child, and the trial

court assessed his punishment at confinement for eight years. The judgments also

indicate that appellant’s three sentences would run concurrently, and they were

assessed against him in 2017.12

11 See id. 12 See Pete v. State, Nos. 05-18-00573-CR to 05-18-00575-CR, 2018 WL 3062507, at *1 (Tex. App.—Dallas June 21, 2018, no pet.) (mem. op., not designated for publication) (explaining appellant was convicted for three separate felony offenses of aggravated sexual assault of a child, and on November 15, 2017, trial court assessed his punishment at confinement for eight years for each offense); see also Ex parte Pete, 517 S.W.3d 825, 827 (Tex. Crim. App. 2017) (explaining jury found 21 Admission of Evidence

In his first issue, appellant argues that the trial court erred in admitting the

testimony of C.R. because it constituted extraneous offense evidence and “the State

had previously declined to seek an indictment related to the [extraneous offense]” as

“there was insufficient evidence to support [C.R.’s] allegations.” Appellant also

argues that the trial court erred in admitting C.R.’s testimony because “any probative

value was outweighed by the danger of unfair prejudice.”

A trial court’s ruling on the admission of evidence is reviewed for an abuse of

discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Tillman

v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial court abuses its

discretion if it acts arbitrarily, unreasonably, or without reference to any guiding

rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). A trial court’s decision to admit evidence will be upheld if it is “within the

zone of reasonable disagreement.” Fowler v. State, 544 S.W.3d 844, 848 (Tex.

Crim. App. 2018); Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996)

(internal quotations omitted). A trial court’s ruling on the admission of extraneous

appellant guilty of three separate felony offenses of aggravated sexual assault of child, but during punishment phase of trial, appellant requested mistrial, which the trial court granted only as to punishment phase of trial; appellant then filed pretrial application for writ of habeas corpus before new punishment hearing commenced and after appeals were complete, Texas Court of Criminal Appeals remanded case to trial court to conduct new punishment hearing).

22 offense evidence is generally within the zone of reasonable disagreement “if the

evidence shows that 1) an extraneous transaction is relevant to a material,

non-propensity issue, and 2) the probative value of that evidence is not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). We

will uphold a trial court’s evidentiary ruling if it is correct on any theory of law

applicable to that ruling, even if the trial court gives the wrong reason for the right

ruling. Id.

“An extraneous offense is any act of misconduct, whether resulting in

prosecution or not, which is not shown in the charging instrument and which was

shown to have been committed by the accused.” Martinez v. State, 190 S.W.3d 254,

262 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (internal quotations omitted).

Generally, Texas Rule of Evidence 404(b) prohibits the admission of extraneous

offense evidence to prove a person’s character or to show that the person acted in

conformity with that character. See TEX. R. EVID. 404(b). But when a defendant is

being prosecuted for the offense of aggravated sexual assault of a child, evidence

that the defendant has committed one or more of the enumerated sexual offenses

against a child, including the offense of indecency with a child, sexual assault of a

23 child, or aggravated sexual assault of a child,13 “may be admitted . . . for any bearing

the evidence has on relevant matters, including the character of the defendant and

acts performed in conformity with the character of the defendant.” TEX. CODE OF

CRIM. PROC. ANN. art. 38.37, § 2; see also Jeansonne v. State, 624 S.W.3d 78, 94–

95 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (“Essentially, article 38.37 is an

evidentiary rule applicable to certain types of sexual abuse cases . . . that supersedes

the application of Texas Rule of Evidence 404(b), and makes admissible certain

extraneous offense evidence that [r]ule 404(b) does not.”); Belcher v. State, 474

S.W.3d 840, 844 (Tex. App.—Tyler 2015, no pet.) (article 38.37, section 2(b) allows

admission of evidence that defendant had previously committed certain sexual

offenses against non-victims of charged offense).

Appellant first argues that the trial court erred in admitting, under Texas Code

of Criminal Procedure article 38.37, C.R.’s testimony concerning extraneous

offenses committed by appellant because “C.R.’s testimony was not adequate to

support a finding that [appellant] assaulted C.R. beyond a reasonable doubt.”14

13 See Wishert v. State, 654 S.W.3d 317, 330 (Tex. App.—Eastland 2022, pet. ref’d) (“Article 38.37, [s]ection 2(b) allows for the admission of evidence that the defendant has committed a separate offense of a sexual nature against a child; the ‘child victim’ of the separate offense need not be the victim of the offense for which the defendant is currently on trial.”). 14 The State, in its briefing, asserts that appellant did not preserve his complaint under Texas Code of Criminal Procedure article 38.37 because appellant did not raise the complaint in the trial court. Due to our disposition of appellant’s first issue, we need not address the State’s preservation assertion. See TEX. R. APP. P. 47.1; 24 Before extraneous offense evidence may be admitted under Texas Code of

Criminal Procedure article 38.37, the trial court must determine whether “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.”

See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a. “Adequate” under article 38.37,

section 2-a means legally sufficient. See Romano v. State, 612 S.W.3d 151, 159

(Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) (internal quotations omitted)). A

complainant’s testimony alone is sufficient to establish the offense of aggravated

sexual assault of a child, sexual assault of a child, or indecency with a child beyond

a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Tear v. State, 74

S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d); see also Gutierrez v. State,

No. 01-19-00718-CR, 2021 WL 2931358, at *3 (Tex. App.—Houston [1st Dist.]

July 13, 2021, pet. ref’d) (mem. op., not designated for publication).

At the article 38.37 hearing in the trial court, C.R. testified that she was born

in June 1987. When she was eleven years old, appellant moved into the

complainant’s home. Appellant continued living with the complainant until the

summer after her eighth-grade school year, right before the complainant turned

fourteen years old.

Cruz-Escalante v. State, 491 S.W.3d 857, 860 n.3 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

25 C.R. further testified that when she was twelve years old, she and her friend

came home after school one day. At the time, appellant was in his bed, and he called

C.R. and her friend “to come in bed with him.” C.R. and her friend “laid in bed with

[appellant].” They gave him a hug. Appellant then “put [C.R.] on top of him,” and

C.R. could feel appellant’s penis through his clothing.

Another time, when C.R. was twelve years old, she “woke up kind of feeling

unusual.” After appellant left for work, C.R. decided to talk to her mother. She told

her mother that in a dream she had appellant “lifted [C.R.’s] leg and

started . . . fondl[ing] [her] with his fingers.” C.R. could not move and could not

breathe. When C.R. awoke, she was the only person in her bed. She went to the

bathroom, and her vagina was wet. C.R. told her mother that she was not sure “if it

[had] really happen[ed] or if it was a dream.” As soon as C.R. finished telling her

mother about her dream, appellant appeared at the door. C.R.’s mother asked

appellant if he had touched C.R., and appellant denied it.

C.R. also explained that a few days after the dream, appellant waited for

C.R.’s mother to go to work and came and got C.R. out of her bedroom. Appellant

told C.R. that “he wanted to talk to [her] and . . . asked [her] [if she had] been sexual

before because the way [that she had] described th[e] dream, a young lady who’s

26 never done anything before shouldn’t get that wet.” C.R. told appellant that she and

her boyfriend had previously had sexual intercourse.15

Appellant then told C.R.’s mother that C.R. had sexual intercourse, and one

night, C.R.’s mother and appellant brought C.R. into their bedroom. C.R.’s mother

told her that she “wanted to look at [C.R.’s] private parts in front of [appellant].”

C.R.’s mother looked at C.R.’s vagina and said that she “look[ed] normal.” But a

few days or weeks later, appellant told C.R. that he wanted to look at her vagina

again. C.R. asked if they could call her mother, but appellant said no and that “he

wanted to look at [her].” Appellant then made C.R. take down her underwear and

used his thumbs to look at and touch her vagina. Appellant also licked C.R.’s vagina.

Appellant next said, “Oh, God, why’d I do this? Why’d I do this?” But also told

C.R. that “it looked like a grown man could fit in” her vagina. Appellant then put

his penis inside C.R.’s vagina.16

After that incident, appellant putting his penis inside C.R.’s vagina became “a

daily routine”; it happened multiple times before she turned fourteen years old. And

it continued happening while she was fourteen years old. Appellant also made C.R.

put her mouth on his penis and touch his penis with her hand. C.R. was younger

15 During the article 38.37 hearing, C.R. explained that when she was twelve years old, she was confused about what sexual intercourse was, so although she told appellant that she had sexual intercourse with her boyfriend, she had not actually had sexual intercourse before. 16 C.R. stated that she was twelve years old when this happened.

27 than fourteen years old when appellant made her put her mouth on his penis, and it

happened more than one time. Appellant also put his mouth on C.R.’s vagina more

than one time. Further, appellant touched C.R.’s breasts more than one time, and he

put his finger in her anus once. Appellant threatened to put C.R.’s mother and

brother “6 feet under” if C.R. told anyone about what was happening.

C.R. also testified that when she was fourteen years old and in the ninth grade,

appellant came to get her at school during lunch time and “had [her] sexually” at his

apartment. When appellant dropped C.R. back off at school, appellant made C.R.

kiss him on the mouth. C.R.’s paternal grandfather happened to be nearby at the

time and saw appellant kiss C.R. When C.R.’s grandfather asked her about what

had happened, she told him that she had “endured . . . something that [she did not]

want to talk about right [then].”

When she was sixteen years old, C.R. told her mother about appellant sexually

abusing her, and they reported the abuse to law enforcement officers. Officers

investigated until the “investigator passed away.” This caused C.R.’s case to get

“lost in the system for a while.”

At the article 38.37 hearing, C.R.’s testimony about the extraneous offenses

committed against her by appellant was clear and unequivocal. And it was adequate

to support a finding that appellant had committed multiple sexual offenses against

28 C.R., such as aggravated sexual assault of a child,17 sexual assault of a child,18 and

indecency with a child,19 beyond a reasonable doubt. See TEX. CODE CRIM. PROC.

ANN. art. 38.07; Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet.

ref’d) (testimony of child victim alone is sufficient to support conviction for sexual

offense); cf. Barrios v. State, No. 13-22-00613-CR, 2024 WL 379521, at *8 (Tex.

App.—Corpus Christi–Edinburg Feb. 1, 2024, no pet. h.) (mem. op., not designated

for publication); Martinez v. State, No. 05-21-01032-CR, 2023 WL 4229542, at *3

(Tex. App.—Dallas June 28, 2023, pet. ref’d) (mem. op., not designated for

publication) (evidence was sufficient to support finding that extraneous offense

occurred beyond reasonable doubt where child witness testified that defendant

committed sexual offense against her baby sister); Romano, 612 S.W.3d at 159

(holding child victim’s testimony about extraneous offense adequate to support

finding that defendant committed offense of indecency of child).

To support his assertion that “C.R.’s testimony was not adequate to support a

finding that [appellant] assaulted C.R. beyond a reasonable doubt,” appellant focuses

not on C.R.’s testimony during the trial court’s article 38.37 hearing, but on her

testimony before the jury in which she stated that the State ultimately did not decide

17 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B). 18 See id. § 22.011(a)(2). 19 See id. § 21.11(a).

29 to prosecute appellant for the extraneous offenses she alleged he had committed

against her because “there[] [was] not enough evidence.” But the admission of

extraneous offense evidence under Texas Code of Criminal Procedure article 38.37

does not require a defendant to have been charged with, tried for, or convicted of the

extraneous offenses. Castillo v. State, 573 S.W.3d 869, 880–81 (Tex. App.—

Houston [1st Dist.] 2019, pet. ref’d); see also Miller v. State, Nos. 05-22-01309-CR

to 05-22-01312-CR, 2024 WL 322265, at *3 (Tex. App.—Dallas Jan. 29, 2024, no

pet.) (mem. op., not designated for publication); Berg v. State, No. 01-22-00248-CR,

2023 WL 5616200, at *12 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet.

ref’d) (mem. op., not designated for publication); Romano, 612 S.W.3d at 159

(although jury did not indict defendant for extraneous offense, that did not render

child victim’s testimony inadequate under article 38.37). Instead, the fact that the

State ultimately did not charge appellant for the offenses committed against C.R.

goes to the weight of C.R.’s testimony, not to its admissibility. Romano, 612 S.W.3d

at 159; see also Bradshaw v. State, 466 S.W.3d 875, 880 (Tex. App.—Texarkana

2015, pet. ref’d) (fact that grand jury did not indict defendant for extraneous offense

was “of no consequence” to question of whether evidence of that offense was

admissible under Texas Code of Criminal Procedure article 38.37).

Based on the foregoing, we conclude that the trial court properly determined

that C.R.’s testimony about the extraneous offenses committed by appellant was

30 adequate to support a finding by the jury that appellant committed the separate

offenses beyond a reasonable doubt.

Appellant next argues that the trial court erred in admitting the testimony of

C.R. because “any probative value was outweighed by the danger of unfair

prejudice.” See TEX. R. EVID. 403.

Even if extraneous offense evidence is admissible under Texas Code of

Criminal Procedure article 38.37, a trial court has a nondiscretionary obligation to

weigh the probative value of the evidence against any unfair prejudice of its

admission when, as here, a defendant objects to the admission of extraneous offense

evidence based on Texas Rule of Evidence 403. Allen v. State, 01-13-00784-CR,

2015 WL 5076288, at *9 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, pet. ref’d)

(mem. op., not designated for publication); Martines v. State, 371 S.W.3d 232, 246–

47 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When conducting a rule 403

analysis, a trial court must balance the probative force of and the proponent’s need

for the evidence against: (1) any tendency of the evidence to suggest decision on an

improper basis; (2) any tendency of the evidence to confuse or distract the jury from

the main issues; (3) 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 (4) the

likelihood that presentation of the evidence will amount to undue delay.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Gorman v.

31 State, No. 01-18-00316-CR, 2019 WL 610739, *5 (Tex. App.—Houston [1st Dist.]

Feb. 14, 2019, no pet.) (mem. op., not designated for publication). A rule 403

analysis favors admissibility of relevant evidence, and a trial court’s conclusion that

the danger of unfair prejudice does not substantially outweigh the evidence’s

probative value is entitled to deference. See Wilson v. State, 473 S.W.3d 889, 900

(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).

Here, we will presume, without deciding, that the trial court erred in admitting

C.R.’s testimony because, as appellant asserts, “any probative value was outweighed

by the danger of unfair prejudice.” But even if we make such a presumption, we

must still perform a harm analysis to determine if the trial court’s purported error

requires reversal of the trial court’s judgment. See Petriciolet v. State, 442 S.W.3d

643, 653–55 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (even if trial court

improperly admitted evidence, appellate court must still determine whether

defendant was harmed by erroneous admission).

The erroneous admission of evidence constitutes non-constitutional error.

Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v. State, 49

S.W.3d 356, 365 (Tex. Crim. App. 2001). Non-constitutional error requires reversal

only if it affects the substantial rights of the defendant. See TEX. R. APP. P. 44.2(b);

Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). A defendant’s

substantial rights are affected “when the error had a substantial and injurious effect

32 or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997). We will not overturn a criminal conviction for

non-constitutional error if, after examining the record, we have fair assurance that

the error did not influence the jury or had but a slight effect. Barshaw, 342 S.W.3d

at 93–94.

We review the entire record to determine the effect or influence of the

wrongfully admitted evidence on the jury’s decision. Id.; Motilla v. State, 78 S.W.3d

352, 355–56 (Tex. Crim. App. 2002). In assessing the likelihood that the jury’s

decision was improperly influenced, we consider the testimony and physical

evidence, the nature of the evidence supporting the verdict, and the character of the

alleged error and how it might be considered in connection with other evidence in

the case. Barshaw, 342 S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight of

evidence of the defendant’s guilt is also relevant in conducting the harm analysis.

Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); see also Motilla, 78

S.W.3d at 355–60. And we may consider closing statements and voir dire, jury

instructions, the State’s theory, any defensive theories, and whether the State

emphasized the alleged error. Motilla, 78 S.W.3d at 355–56; Hankins v. State, 180

S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref’d).

Notably, in his briefing, appellant fails to conduct a harm analysis under Texas

Rule of Appellate Procedure 44.2(b) to show that he was harmed by the admission

33 of C.R.’s testimony at trial. See, e.g., Cardenas v. State, 30 S.W.3d 384, 393 (Tex.

Crim. App. 2000) (holding defendant waived complaint on appeal because he

inadequately briefed issue by failing to address whether alleged error was harmless);

Chaves v. State, 630 S.W.3d 541, 556–58 (Tex. App.—Houston [1st Dist.] 2021, no

pet.) (holding defendant waived complaint trial court erred in admitting certain

evidence because he “failed to adequately brief his assertion that he was harmed by

the admission of” complained-of evidence); Wilson, 473 S.W.3d at 900–01 (“Here,

we do not address whether the trial court erred in admitting the complained-of

extraneous-offense evidence because even were we to conclude that the trial court

erred in admitting such evidence, appellant, in his brief, does not argue that he was

harmed by its admission.”).

To assert an issue on appeal, an appellant’s brief must contain “a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal

if he does not adequately brief that issue by not providing supporting arguments,

substantive analysis, and appropriate citations to authorities and to the record. See

id.; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011); Busby v. State,

253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Chaves, 630 S.W.3d at 555, 557–58.

As the Texas Court of Criminal Appeals has emphasized, an appellate court has no

obligation to construct and compose issues, facts, and arguments with appropriate

34 citations to authorities and the record for the appellant. See Wolfe v. State, 509

S.W.3d 325, 342–43 (Tex. Crim. App. 2017); Busby, 253 S.W.3d at 673; see also

Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“We will not make

appellant’s arguments for him . . . .”).

Although in his briefing, appellant argues that the trial court erred in admitting

C.R.’s testimony because “any probative value was outweighed by the danger of

unfair prejudice,” his brief contains no argument, substantive analysis, or citation to

authorities to show that he was harmed by the trial court’s purported erroneous

admission of the evidence.20 See Wyatt, 23 S.W.3d at 23 n.5 (“We will not make

appellant’s arguments for him . . . .”); see also Wilson v. State, No. 01-22-00361-CR,

2024 WL 86505, at *7–11 (Tex. App.—Houston [1st Dist.] Jan. 9, 2024, pet. filed)

(mem. op., not designated for publication) (although appellant argued that trial court

erred in admitting certain testimony, holding complaint waived because appellant’s

brief contained no argument, substantive analysis, or citation to authorities to show

that he was harmed by purported erroneous admission of testimony). Thus, we

conclude that appellant waived, due to inadequate briefing, his complaint that the

trial court erred in admitting C.R.’s testimony about extraneous offenses because

20 Appellant’s brief does not contain a citation to Texas Rule of Appellate Procedure 44.2. Cf. Wilson v. State, No. 01-22-00361-CR, 2024 WL 86505, at *9 n.16 (Tex. App.—Houston [1st Dist.] Jan. 9, 2024, pet. filed) (mem. op., not designated for publication) (noting appellant did not cite to Texas Rule of Appellate Procedure 44.2).

35 “any probative value was outweighed by the danger of unfair prejudice.” See, e.g.,

Cardenas, 30 S.W.3d at 393 (holding issue inadequately briefed where “appellant

d[id] not address the question of whether the alleged error . . . was harmless”);

Wilson, 2024 WL 86505, at *7–11 (holding appellant waived, due to inadequate

briefing, his complaint that trial court erred in admitting certain testimony in

violation of the Texas Rules of Evidence); Chaves, 630 S.W.3d at 557–58 (holding

defendant waived complaint trial court erred in admitting certain evidence because

appellant’s brief “contain[ed] no argument, explanation, substantive analysis, or

citation to authorities to show that he was harmed by the trial court’s purported

erroneous admission of the [complained-of evidence]”); Wilson, 473 S.W.3d at 900–

01 (defendant waived complaint trial court erred in admitting extraneous offense

evidence where he failed to “identify[] the harm that he suffered as a result of the

admission of the complained-of evidence”).

Based on the foregoing, we hold that the trial court did not err in admitting

into evidence C.R.’s testimony about certain extraneous offenses committed by

appellant.

We overrule appellant’s first issue.

Motion for New Trial Hearing

In his second issue, appellant argues that the trial court erred in not granting

him a hearing on his motion for new trial because appellant “raised a claim [in his

36 motion] that the trial court abused its discretion in admitting C.R.’s testimony when

[the State] had not sought an indictment and when no additional evidence was

presented at . . . trial beyond what was known by the . . . prosecutors who declined

charges.”

A defendant in a criminal case “may file a motion for new trial before, but not

later than [thirty] days after, the date when the trial court imposes or suspends

sentence in open court.” TEX. R. APP. P. 21.4(a). But a defendant does not have an

absolute right to a hearing on the motion. Washington v. State, 394 S.W.3d 39, 42

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The purpose of a hearing on a

motion for new trial is (1) to determine whether the case should be retried or (2) to

complete the record for presenting issues on appeal. Id.

A hearing on a motion for new trial is not required when the matters raised in

the motion are subject to being determined from the record. Smith v. State, 286

S.W.3d 333, 338 (Tex. Crim. App. 2009). Conversely, a trial court abuses its

discretion in failing to hold a hearing on a motion for new trial when that motion

raises matters which are not determinable from the record. Id. But, while

recognizing that an unrestricted requirement of a hearing on matters not

determinable from the record could lead to “fishing expeditions,” the Texas Court

of Criminal Appeals has also held that even a defendant who has raised such matters

is not entitled to a hearing on his motion for new trial unless he establishes the

37 existence of reasonable grounds showing that he could be entitled to relief. Id. at

339 (internal quotations omitted). Thus, as a prerequisite to a hearing when the

grounds in the motion are based on matters not already in the record, the motion

must be supported by an affidavit, either of the defendant or someone else,

specifically setting out the factual basis for the claim. Id. The affidavit need not

establish a prima facie case, or even reflect every component legally required to

establish relief. Id. It is sufficient if a fair reading of it gives rise to reasonable

grounds in support of the claim. Id. But affidavits that are conclusory in nature and

unsupported by facts do not provide the requisite notice of the basis for the relief

claimed; thus, in that circumstance, no hearing is required. Id.

We review a trial court’s decision to deny a hearing on a motion for new trial

for an abuse of discretion. Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App.

2010). We will reverse “only when the trial [court]’s decision was so clearly wrong

as to lie outside that zone within which reasonable persons might disagree.” Id.

(internal quotations omitted). Our review is limited to the trial court’s determination

of whether the defendant has raised grounds that are both undeterminable from the

record and reasonable, meaning they could entitle the defendant to relief. Smith, 286

S.W.3d at 340. This is because the trial court’s discretion extends only to deciding

whether these two requirements are satisfied. Id. If the trial court finds that the

38 defendant has met the criteria, the trial court has no discretion to withhold a hearing.

Id.

Although appellant filed a motion for new trial, no affidavit accompanied his

motion. An accompanying affidavit is “an absolute prerequisite to obtain[] a

hearing” on a motion for new trial. See Cooksey v. State, No. 07-21-00191-CR, 2022

WL 1012757, at *1 (Tex. App.—Amarillo, Apr. 1, 2022, no pet.) (mem. op., not

designated for publication) (internal quotations omitted); see also Smith, 286 S.W.3d

at 339 (as prerequisite for hearing when grounds in motion for new trial are based

on matters not already in record, motion must be supported by affidavit, either of

defendant or someone else, specifically setting out factual basis for claim); Crowell

v. State, 642 S.W.3d 885, 889 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d).

A trial court does not abuse its discretion if it denies a hearing on a timely motion

for new trial that is not supported by an affidavit. See Brooks v. State, No.

12-22-00174-CR, 2023 WL 4898652, at *2 (Tex. App.—Tyler July 31, 2023, no

pet.) (mem. op., not designated for publication); Medina v. State, No.

05-19-01116-CR, 2021 WL 247965, at *1 (Tex. App.—Dallas Jan. 26, 2021, pet.

ref’d) (mem. op., not designated for publication).

Further, as noted above, to be entitled to a hearing on his motion for new trial,

appellant was required to establish the existence of reasonable grounds showing that

he could be entitled to relief. In his motion for new trial, appellant argued that he

39 was entitled to a new trial because the trial court erred in admitting C.R.’s testimony

about extraneous offenses under Texas Code of Criminal Procedure article 38.37

because the district attorney’s office which investigated C.R.’s allegations against

appellant “found that the evidence was not sufficient to bring to trial” and the State

“fail[ed] to develop and present additional evidence supporting C.R.’s allegation[s].”

On appeal, we have addressed this complaint by appellant and concluded that

the trial court properly determined that C.R.’s testimony about the extraneous

offenses committed by appellant was adequate to support a finding by the jury that

appellant committed the separate offenses beyond a reasonable doubt. And the trial

court did not err by admitting C.R.’s testimony pursuant to Texas Code of Criminal

Procedure article 38.37. Thus, we cannot say that appellant’s motion for new trial

established reasonable grounds showing that he could potentially be entitled to relief,

and he was not entitled to a hearing on his motion for new trial. See Rodriguez v.

State, No. 01-22-00295-CR, 2023 WL 8262839, at *15 (Tex. App.—Houston [1st

Dist.] Nov. 30, 2023, no pet.) (mem. op., not designated for publication); Chapa v.

State, 407 S.W.3d 428, 434–35 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(“Because none of appellant’s allegations were sufficient to require the trial court to

hold a hearing on the motion for new trial, the trial court did not abuse its discretion

in refusing to hold a hearing.”).

40 Based on the foregoing, we hold that the trial court did not err in not holding

a hearing on appellant’s motion for new trial.

We overrule appellant’s second issue.

Mistrial

In his third issue, appellant argues that the trial court erred in declaring a

mistrial during his first trial and double jeopardy barred appellant’s subsequent

prosecution for the two felony offenses of aggravated sexual assault of a child

because “the mistrial was not justified” and appellant was improperly led to consent

to a mistrial.21

We review a trial court’s decision to grant a motion for mistrial for an abuse

of discretion. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); State

v. Doyle, 140 S.W.3d 890, 893–94 (Tex. App.—Corpus Christi–Edinburg 2004, pet.

ref’d). A trial court does not abuse its discretion when its decision is at least within

the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391.

Initially, a Harris County grand jury returned a true bill of indictment, alleging

that appellant, on or about May 1, 2014 through on or about April 19, 2015, “did

21 The State, in its briefing, asserts that appellant did not preserve his complaint that the trial court erred in granting a mistrial in his first trial and double jeopardy barred his subsequent prosecution for two felony offenses of aggravated sexual assault of a child related to the complainant. Due to our disposition of appellant’s third issue, we need not address the State’s preservation assertion. See TEX. R. APP. P. 47.1; Cruz-Escalante, 491 S.W.3d at 860 n.3.

41 then and there unlawfully, during a period of time of thirty or more days in duration,

commit at least two acts of sexual abuse against a child younger than fourteen years

of age, including an act constituting the offense of aggravated sexual assault of a

child, committed against [the complainant] on or about May 1, 2014, and an act

constituting the offense of aggravated sexual assault of a child, committed against

[the complainant] on or about April 1, 2015, and [appellant] was at least seventeen

years of age at the time of the commission of each of those acts.” See TEX. PENAL

CODE ANN. § 21.02(b) (offense of continuous sexual abuse of young child). In

November 2021, a jury trial was held. At the conclusion of the guilt phase of trial,

the trial court read the charge to the jury. After the jury deliberated and reached a

verdict, but before the trial court read the verdict aloud, the trial court noticed that

the copy of the jury charge that the jury used in its deliberation “contain[ed] the

wrong instructions” concerning the lesser included offense of aggravated sexual

assault of a child.

At that point, the trial court held a hearing outside the presence of the jury.

During the hearing, the jury foreman explained that the jury considered in its

deliberations the jury charge that contained the incorrect instruction for the lesser

included offense of aggravated sexual assault of a child. The State then expressed

certain options that it believed the trial court could take in light of what had

happened: (1) the trial court could declare a mistrial; (2) the trial court could provide

42 the jury with the correct jury charge and ask the jury to redeliberate relying on the

correct jury charge; or (3) the trial court could “move forward with th[e] verdict”

despite the incorrect instructions. The State did not request a mistrial and stated that

it would “like to move forward with th[e] verdict” as is. Appellant, however, stated

that he would “have no problem with [the trial court] declaring a mistrial” and

specifically asked the trial court “to declare this a mistrial.” And in response to the

State’s request to “move forward,” appellant objected and again requested a mistrial.

The trial court granted appellant’s request for a mistrial after finding that “the jury

charge that the jury reviewed ha[d] the wrong language on the application

paragraph” related to the lesser included offense of aggravated sexual assault of a

child.

“The Fifth Amendment to the United States Constitution prohibits a [s]tate

from twice putting a defendant in jeopardy for the same offense.” Ex parte Brown,

907 S.W.2d 835, 838 (Tex. Crim. App. 1995). Jeopardy attaches once a jury has

been impaneled and sworn. Id. at 839. “Consequently, as a general rule, if, after the

defendant is placed in jeopardy, the jury is discharged without reaching a verdict,

double jeopardy will bar retrial.” Id.; see also Ex parte Herrington, 643 S.W.3d 255,

258 (Tex. App.—Tyler 2022, no pet.) (“[T]he premature termination of a criminal

prosecution via the declaration of a mistrial, if it is against the defendant’s wishes,

ordinarily bars further prosecution for the same offense.”).

43 However, when a defendant consents to a mistrial, double jeopardy does not

bar his retrial. See Harrison v. State, 767 S.W.2d 803, 806 (Tex. Crim. App. 1989);

Sullivan v. State, 874 S.W.2d 699, 701 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d) (double-jeopardy protections do not prohibit new trial following mistrial

where defendant requested mistrial); see also United States v. Scott, 437 U.S. 82, 93

(1978) (noting defendant’s motion for mistrial constitutes “a deliberate election on

his part to forgo his valued right to have his guilt or innocence determined before

the first trier of fact” and “the Double Jeopardy Clause is not offended by a second

prosecution” when “a defendant successfully” pursues “a motion for mistrial”

(emphasis omitted)). Instead, a retrial is generally permitted because the defendant

himself elected to terminate the proceedings and to begin anew. See Harrison, 767

S.W.2d at 806; see also Ex parte Jackson, Nos., 09-14-00138-CR to

09-14-00140-CR, 2014 WL 3845780, at *1–3 (Tex. App.—Beaumont Aug. 6, 2014,

pet. ref’d) (mem. op., not designated for publication) (defendant impliedly consents

to mistrial if he does not object to the trial court’s sua sponte declaration of mistrial,

despite adequate opportunity to do so).

On appeal, appellant asserts that the State led him to believe that he had no

other option other than to request a mistrial. But, as the Texas Court of Criminal

Appeals has explained, “[o]nly when the prosecutor intends to provoke the

defendant’s mistrial motion can it be said that the prosecutor, rather than the

44 defendant, . . . exercised primary control over the decision to seek the trial[’s]

termination.” Ex parte Lewis, 219 S.W.3d 335, 358–59, 371 (Tex. Crim. App.

2007). Here, the State specifically stated that it was “not asking for a mistrial” and

explained at the hearing that, based on case law, it “would like to move forward with

th[e] verdict” despite the incorrect instructions included in the jury charge.

In contrast, appellant specifically requested that the trial court declare a

mistrial more than once during the hearing in which the parties and the trial court

discussed what to do in light of the incorrect instructions included in the jury charge.

See Torres v. State, 614 S.W.2d 436, 441–42 (Tex. Crim. App. [Panel Op.] 1981)

(consent to mistrial can be expressed or implied “from the totality of circumstances

attendant to a declaration of mistrial”); see also Whitley v. State, No.

05-91-00547-CR, 1992 WL 76546, at *1 (Tex. App.—Dallas Mar. 31, 1992, no pet.)

(not designated for publication) (concluding defendant expressly consented to

mistrial where State moved for mistrial and defendant stated, “We’re going to go

along with the mistrial” (internal quotations omitted)). Because appellant requested

that the trial court grant a mistrial in his first trial, we hold that the trial court did not

err in granting the mistrial and double jeopardy did not bar appellant’s prosecution

for the two felony offenses of aggravated sexual assault of a child in the underlying

trial court cases.

We overrule appellant’s third issue.

45 Conclusion

We affirm the judgments of the trial court. We dismiss any pending motions

as moot.

Julie Countiss Justice

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.

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