AFFIRMED as MODIFIED and Opinion Filed November 1, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00812-CR
ANDREW YOUNGBLOOD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1942335
MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Garcia A jury convicted appellant of continuous sexual abuse of a child under
fourteen and assessed punishment at fifty years in prison. In a single issue, appellant
argues the trial court erroneously admitted extraneous evidence of appellant’s harsh
discipline of complainant’s siblings. In a cross-point, the State requests that we
reform the judgment to include an affirmative finding that the victim was younger
than fourteen at the time of the offense.
We modify the judgment and as modified, affirm. I. BACKGROUND
Appellant was charged by indictment with continuous sexual abuse of his
daughter, AY. The indictment alleged that appellant “on or about the 1st day of
December, 2019 … did then and there intentionally and knowingly, during a period
that was 30 or more days in duration, when the defendant was 17 years of age or
older, commit two or more-acts of sexual abuse against A.Y., a child younger than
14 years of age . . . by: the penetration of the complainant's female sexual organ by
the Defendant's finger AND by the contact and penetration of the complainant's anus
by the Defendant's sexual organ AND by contact between the mouth of the
complainant and the sexual organ of the Defendant.”
Prior to trial, the court held a hearing on the admissibility of extraneous
evidence of appellant’s harsh discipline of AY and her siblings. Defense counsel
objected that the proffered evidence was unduly prejudicial under TEX. R. EVID. 403.
The trial court concluded that the evidence was more probative than prejudicial,
overruled the objection, and admitted the proffered testimony at trial.
At trial, AY testified that the abuse began when she was three or four years
old and continued until she was nine. She provided details concerning the allegations
in the indictment and recounted specific instances of abuse in the locations she and
her family resided during the relevant time period. AY said that appellant would
spank the children in the family, herself included, on their bottom or feet if they did
not do their chores. She also said that appellant shot her in the eye, “butt,” and
–2– stomach with a BB gun. She explained that she delayed her outcry because she was
afraid appellant would hurt her or her family.
AY’s brother testified that appellant hit him with his fists, a paddle, and BB’s.
Although he could hear AY screaming and crying in appellant’s bedroom, he did not
check on her because he was afraid appellant would hurt him. He described how
appellant had mowed an area on the lawn where would make the children run in
circles and shoot them with a BB gun when they got in trouble.
One of AY’s aunts testified that she had observed appellant spank the children
with a belt, paddle, shoe, or whatever was at hand. Frequently, the punishment did
not fit the crime. She described appellant’s household as “strict, harsh, suffocating,”
and she could see that appellant terrified his children.
Another aunt testified that she observed appellant spanking his children and
leaving welts on them. This is why she was concerned that the children would not
be safe returning home after AY outcried to her.
There was also testimony about AY’s outcry to her aunt and her subsequent
interview at the Children’s Advocacy Center. AY’s forensic exam showed irregular
anal folds that appeared to be healed anal fissures that were consistent with AY’s
statements concerning abuse.
The jury also heard testimony about the family’s living arrangements. At one
point, appellant had a relationship with a fourteen-year-old girl and during that time,
he and his children lived with the girl and her parents.
–3– The jury convicted appellant of the charged offense and assessed punishment
at fifty years in prison. This timely appeal followed.
II. ANALYSIS
A. Admission of Extraneous Evidence
Appellant’s sole issue argues the trial court erred in admitting extraneous
evidence concerning appellant’s discipline of AY’s siblings because the evidence
was overly prejudicial. The State responds that the evidence was necessary to
provide context as to why AY delayed her outcry.
We review trial court decisions admitting or excluding evidence for an abuse
of discretion, and under this standard the trial court’s decision admitting or excluding
evidence will be upheld so long as it is within the “zone of reasonable disagreement.”
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). A reviewing court
must afford the decision “an especially high level of deference.” Robisheaux v. State,
483 S.W.3d 205, 218 (Tex. App.—Austin 2016, pet. ref’d).
Rule 401 provides that evidence is relevant if it has any tendency to make a
fact more or less probable than it would be without the evidence. TEX. R. EVID. 401.
“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d 235,
240 (Tex. Crim. App. 2009); TEX. R. EVID. 402. When determining whether
evidence is relevant, it is important for courts to examine the purpose for which the
evidence is being introduced. Layton, 280 S.W.3d at 240. “It is critical that there is
–4– a direct or logical connection between the actual evidence and the proposition sought
to be proved.” Id.
Rule 403 provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; Gonzalez v. State,
544 S.W.3d 363, 372 (Tex. Crim. App. 2018). “The probative force of evidence
refers to how strongly it serves to make the existence of a fact of consequence more
or less probable.” Id.
Relevant evidence is presumed to be more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence
against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 does not exclude all
prejudicial evidence; instead, it focuses on the danger of “unfair” prejudice. State v.
Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly
prejudicial if it has the capacity to lure the factfinder into declaring guilt on a ground
other than proof specific to the offense charged. Manning v. State, 114 S.W.3d 922
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AFFIRMED as MODIFIED and Opinion Filed November 1, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00812-CR
ANDREW YOUNGBLOOD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1942335
MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Garcia A jury convicted appellant of continuous sexual abuse of a child under
fourteen and assessed punishment at fifty years in prison. In a single issue, appellant
argues the trial court erroneously admitted extraneous evidence of appellant’s harsh
discipline of complainant’s siblings. In a cross-point, the State requests that we
reform the judgment to include an affirmative finding that the victim was younger
than fourteen at the time of the offense.
We modify the judgment and as modified, affirm. I. BACKGROUND
Appellant was charged by indictment with continuous sexual abuse of his
daughter, AY. The indictment alleged that appellant “on or about the 1st day of
December, 2019 … did then and there intentionally and knowingly, during a period
that was 30 or more days in duration, when the defendant was 17 years of age or
older, commit two or more-acts of sexual abuse against A.Y., a child younger than
14 years of age . . . by: the penetration of the complainant's female sexual organ by
the Defendant's finger AND by the contact and penetration of the complainant's anus
by the Defendant's sexual organ AND by contact between the mouth of the
complainant and the sexual organ of the Defendant.”
Prior to trial, the court held a hearing on the admissibility of extraneous
evidence of appellant’s harsh discipline of AY and her siblings. Defense counsel
objected that the proffered evidence was unduly prejudicial under TEX. R. EVID. 403.
The trial court concluded that the evidence was more probative than prejudicial,
overruled the objection, and admitted the proffered testimony at trial.
At trial, AY testified that the abuse began when she was three or four years
old and continued until she was nine. She provided details concerning the allegations
in the indictment and recounted specific instances of abuse in the locations she and
her family resided during the relevant time period. AY said that appellant would
spank the children in the family, herself included, on their bottom or feet if they did
not do their chores. She also said that appellant shot her in the eye, “butt,” and
–2– stomach with a BB gun. She explained that she delayed her outcry because she was
afraid appellant would hurt her or her family.
AY’s brother testified that appellant hit him with his fists, a paddle, and BB’s.
Although he could hear AY screaming and crying in appellant’s bedroom, he did not
check on her because he was afraid appellant would hurt him. He described how
appellant had mowed an area on the lawn where would make the children run in
circles and shoot them with a BB gun when they got in trouble.
One of AY’s aunts testified that she had observed appellant spank the children
with a belt, paddle, shoe, or whatever was at hand. Frequently, the punishment did
not fit the crime. She described appellant’s household as “strict, harsh, suffocating,”
and she could see that appellant terrified his children.
Another aunt testified that she observed appellant spanking his children and
leaving welts on them. This is why she was concerned that the children would not
be safe returning home after AY outcried to her.
There was also testimony about AY’s outcry to her aunt and her subsequent
interview at the Children’s Advocacy Center. AY’s forensic exam showed irregular
anal folds that appeared to be healed anal fissures that were consistent with AY’s
statements concerning abuse.
The jury also heard testimony about the family’s living arrangements. At one
point, appellant had a relationship with a fourteen-year-old girl and during that time,
he and his children lived with the girl and her parents.
–3– The jury convicted appellant of the charged offense and assessed punishment
at fifty years in prison. This timely appeal followed.
II. ANALYSIS
A. Admission of Extraneous Evidence
Appellant’s sole issue argues the trial court erred in admitting extraneous
evidence concerning appellant’s discipline of AY’s siblings because the evidence
was overly prejudicial. The State responds that the evidence was necessary to
provide context as to why AY delayed her outcry.
We review trial court decisions admitting or excluding evidence for an abuse
of discretion, and under this standard the trial court’s decision admitting or excluding
evidence will be upheld so long as it is within the “zone of reasonable disagreement.”
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). A reviewing court
must afford the decision “an especially high level of deference.” Robisheaux v. State,
483 S.W.3d 205, 218 (Tex. App.—Austin 2016, pet. ref’d).
Rule 401 provides that evidence is relevant if it has any tendency to make a
fact more or less probable than it would be without the evidence. TEX. R. EVID. 401.
“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d 235,
240 (Tex. Crim. App. 2009); TEX. R. EVID. 402. When determining whether
evidence is relevant, it is important for courts to examine the purpose for which the
evidence is being introduced. Layton, 280 S.W.3d at 240. “It is critical that there is
–4– a direct or logical connection between the actual evidence and the proposition sought
to be proved.” Id.
Rule 403 provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; Gonzalez v. State,
544 S.W.3d 363, 372 (Tex. Crim. App. 2018). “The probative force of evidence
refers to how strongly it serves to make the existence of a fact of consequence more
or less probable.” Id.
Relevant evidence is presumed to be more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence
against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 does not exclude all
prejudicial evidence; instead, it focuses on the danger of “unfair” prejudice. State v.
Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly
prejudicial if it has the capacity to lure the factfinder into declaring guilt on a ground
other than proof specific to the offense charged. Manning v. State, 114 S.W.3d 922,
928 (Tex. Crim. App. 2003). The trial judge has substantial discretion in balancing
probative value and unfair prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex.
Crim. App. 2006).
–5– A rule 403 balancing test includes, but is not limited to, the following factors:
(1) the probative value of the evidence; (2) the potential to impress the jury in some
irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4)
the proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324
(Tex. Crim. App. 2012). A rule 403 analysis may also consider whether there is any
tendency of the evidence to confuse or distract the jury from the main issues as well
as 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. See Gigliobianco v. State,
210 S.W.3d 637, 641 (Tex. Crim. App. 2006). As the court acknowledged, however,
“these factors may well blend together in practice.” Id. at 641-42.
In the present case, there was a delayed outcry. AY testified that she did not
report the abuse earlier because she feared appellant would harm her or her family.
Evidence of an extraneous bad act is “admissible to explain why a victim of sexual
assault did not make a prompt outcry.” Wilson v. State, 90 S.W.3d 391, 394 (Tex.
App.—Dallas 2002, no pet.) (citing Brown v. State, 657 S.W.2d 117, 119 (Tex.
Crim. App. 1983). Therefore, the evidence was probative and the State’s need for
the evidence significant.
Appellant argues that the extraneous-offense evidence was prejudicial
because it was graphic and cumulative. This evidence however, juxtaposed against
the charged offense—continuous sexual abuse of a child under fourteen—was not
particularly egregious, certainly not enough to constitute unfair prejudice. See
–6– Norwood v. State, No. 03-13-00230-CR, 2014 WL 4058820, at *5 (Tex. App.—
Austin Aug. 15, 2014, pet. ref’d) (mem. op., not designated for publication) (“When
the extraneous offense is no more heinous than the charged offense, evidence
concerning the extraneous offense is unlikely to cause unfair prejudice.”);
Robisheaux, 483 S.W.3d at 220 (finding that any tendency of evidence of extraneous
acts to suggest a decision on an improper basis was ameliorated by the fact that those
acts “were no more serious than the allegations forming the basis for the
indictment”). The jury heard graphic testimony about appellant’s abuse of AY and
the physical injuries that may have resulted from that abuse. The extraneous
evidence concerning harsh punishment methods was no more heinous than
appellant’s continuous sexual assault of his young daughter.
Moreover, the extraneous evidence did not consume an inordinate amount of
time at trial. Although three witnesses other than AY testified about appellant’s
disciplinary methods, the testimony of AY, her brother, and one of her aunts was
contextual— explaining why AY did not outcry earlier, why her brother did not
come to her aid, and why her aunt was concerned about the children returning home.
While evidence that appellant committed extraneous acts of violence against
his other children was “undoubtedly prejudicial” to appellant, it was “not unfairly
prejudicial” compared to its probative value. See Mechler, 153 S.W.3d at 440.
Weighing the appropriate factors, we cannot conclude that the trial court’s rule 403
–7– balancing falls outside “the zone of reasonable disagreement.” See Beham, 559
S.W.3d at 478. Appellant’s sole issue is resolved against him.
B. Modifying the Judgment
The State’s cross-point requests that we modify the judgment to include the
statutorily required special finding that the victim was under fourteen years of age
at the time of the offense. We are authorized to reform a judgment to make the record
speak the truth when we have the necessary information to do so. Bigley v. State,
865 S.W.2d 26, 27 (Tex. Crim. App. 1993).
Aggravated sexual assault is considered a “sexually violent offense” when, as
here, it is committed by a person seventeen years of age or older. TEX. CODE CRIM.
PROC. ANN. art. 62.001(6)(a). Consequently, the trial court was required to “make
an affirmative finding of fact and enter the affirmative finding in the judgment in the
case if the judge determines that the victim or intended victim was younger than 14
years of age at the time of the offense.” TEX. CODE CRIM. PROC. ANN. art. 42.015(b);
Vasquez v. State, No. 05-20-00116-CR, 2022 WL 2951667, at *8 (Tex. App.—
Dallas July 26, 2022, no pet.) (mem. op., not designated for publication). The finding
is particularly important because it triggers the prohibited employment provisions of
the sex offender registration program. See TEX. CODE CRIM. PROC. ANN. art.
62.063(b).
The record reflects that the victim was under the age of fourteen at the time
of the offense. The judgment, however, does not include that affirmative finding.
–8– We therefore sustain the State’s cross-point and modify the judgment to include the
following special finding: “The Court affirmatively finds that the victim or intended
victim was younger than fourteen years of age at the time of the offense.”
As modified, the trial court’s judgment is affirmed.
/Dennise Garcia/ DENNISE GARCIA JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 220812F.U05
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANDREW YOUNGBLOOD, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1942335. No. 05-22-00812-CR V. Opinion delivered by Justice Garcia. Justices Goldstein and Miskel THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to include the following special finding: “The Court affirmatively finds that the victim or intended victim was younger than fourteen years of age at the time of the offense.” As REFORMED, the judgment is AFFIRMED.
Judgment entered November 1, 2023
–10–