In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-25-00200-CR
NO. 09-25-00201-CR
NO. 09-25-00202-CR
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BRIAN EDWARD HAWLEY, Appellant V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 252nd District Court Jefferson County, Texas
Trial Cause Nos. F19-32918, F19-32919, F19-32920
________________________________________________________________________
MEMORANDUM OPINION
Brian Edward Hawley was indicted in trial cause number F19-32918 for continuous sexual assault of a child, a first-degree felony, and in trial cause numbers F19-32919 and F19-32920 for two counts of indecency with a child, a second-degree felony. See Tex. Penal Code Ann. §§ 21.02 (continuous sexual abuse of a child), 21.11 (indecency with a child). The cases were consolidated for trial and heard by
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the same jury. The jury convicted Hawley on all charges and assessed sentences of fifty years on the continuous sexual assault of a child case and ten years on each indecency with a child by sexual contact case. The trial court ordered the sentences to run consecutively.
On appeal, Hawley challenges the sufficiency of the evidence to support the convictions in each cause and the trial court’s decision to allow two witnesses to testify about extraneous offenses in violation of article 38.37 of the Code of Criminal Procedure and Rule 403 of the Texas Rules of Evidence. We affirm the judgments in each case.
Background
Anne Anne testified that she is twenty-three years old, currently lives in Spring, and has an older sister named Amber and a younger brother named Tim. 1 Anne met0F
Hawley when she was around four years old when he was dating her mother. According to Anne her family “moved in with him pretty quickly after we met him.” Anne testified that she and her brother shared a room and that Amber had her own
1 We refer to the victims and their family members by pseudonyms to conceal their identity. See Tex. Const. art. I, § 30(a)(1) (protecting crime victims’ “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[]”).
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room. Hawley was a father figure in her life, and he treated her like part of the family, although he never adopted her. Anne’s mother was a bartender and worked at night, and Hawley acted as the caregiver for the children. Anne testified that Hawley began “touching [her] at a very young age[,]” when she was “4 or 5[]” years old. She stated that Hawley would come into her bathroom a lot before she started kindergarten and rub her vagina with his fingers while she was taking a bath. According to Anne, this abuse continued “my whole entire life until I was about 15.” Hawley would tell Anne that “he was allowed in any room of the house because it was his house.” Anne recalled Hawley touching her on “movie nights” at their house. “[W]e would have movie nights a lot as a family, and, um, whenever we would fall asleep, he would begin touching me like the same way in my private areas.” Hawley would assault Anne either on the couch or in the bedroom. She testified that he would take her into the bedroom, undress her and him and rub his fingers on the outside of her vagina. He would also touch his penis. Often, Hawley would ejaculate. Hawley attempted to put his penis in her vagina but stopped when she told him it hurt. According to Anne, he attempted to put his penis in her vagina “a few times over the course of it going on. I think he tried more when I started getting older.” She described the abuse as “continuous[]” and testified it would occur “almost every single time I was around him, it would happen.” According to Anne, the abuse escalated to oral sex in which
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Hawley would perform oral sex by placing his tongue on her vagina and he would have her perform oral sex on him. Anne testified that this started when she was “5 or 6 years old[]” and “seemed like it was kind of a game at first.” Hawley would blindfold her and stick things in her mouth, “popsicles and things in my mouth and then he would stick his genital area in my mouth, his penis, as well.” Hawley told Anne that she could not tell anyone because that he would “go away for a really long time if anyone ever found out[,]” and that her “life would not be the same.” Anne testified that during this time, she felt “scared to tell anybody, and I loved him a lot. I felt like he was my father, and I didn’t want to get him in trouble.” Anne recalled when she was ten years old, Hawley asked her if she was jealous of her sister. Anne told him “no[,]” and he told Anne that “he had to stop messing with [Amber]” because “she was getting too old for him to be messing with.” Amber Amber testified that she is twenty-eight years old and is living out of state.
From 2008 to 2015, Amber lived with her mother and Hawley along with her two other siblings in Beaumont. Amber identified Hawley in court. Amber testified that she “felt something evil” from Hawley and that he was a “big, scary man[,]” but her brother and sister “loved him.” Amber stated that she was seven years old when her mother moved in with Hawley and that she lived in that home until she was about
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eleven years old. According to Amber, her mother worked as a bartender at night, and Hawley was the primary caregiver during that time. Amber testified the abuse “started pretty automatically once we moved in[,]” at the age of “7 or 8.” It started with roughhousing, and Amber thought it would be funny to put on her brother’s diaper and show Hawley as a joke. Hawley then placed Amber on the bed and asked Amber if “he could lick it.” Hawley then placed his tongue on her vagina. Hawley told Amber not to tell anyone or she would be in trouble. After this first assault, Hawley started to come into Amber’s room at night, lie next Amber and masturbate. According to Amber, this was “constant[,] and felt like it happened every day and “multiple times over the few years we lived with him at the old house. So, from 7 to 11.” During these times, Amber stated that she believed Hawley was “pumping drugs” into her, and that she felt “groggy and slow motion[,]” and did not understand why she was feeling that way. Although Amber “blocked out” some memories, she believed that he would touch her during these times because “sometimes I would wake up and my bottoms would be off.” Amber recalled times when she was in her living room at night, with Amber on one couch and Hawley on the other. Hawley would be on the couch “watching porn[,]” and then masturbate. Amber described mental abuse from Hawley, stating she was “terrified of him[,]” that he was angry, always yelling, inflicting fear, and that he isolated her from her mother and siblings.
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She stated that Hawley would “beat up my mom[,]” and she did not tell anyone because she was “petrified” of him. Eventually the sexual abuse stopped when she was “12 or 13[,]” when the family moved to Hawley’s parents’ house and she started distancing herself and not going to the home. Amber testified that she was “very depressed and suicidal for a long time from when I was very young.” Eventually, after years of professional success, around twenty years old, Amber told her family about the abuse because she was contemplating suicide, having constant panic attacks and in a “really dark depression[.]” After telling her mother, Amber found out that her sister, Anne, made an outcry of sexual abuse as well.
During cross-examination Amber was asked about a friend named Kim who accused Hawley of touching her in 2011 when she was fourteen years old. Amber agreed that she told the police that Hawley could not have abused Kim because she was with Kim the entire night. Amber stated she lied to the police that night to protect Hawley. According to Amber, Hawley gave her and her friends drinks that night. Her mother asked her if “something was going on[,]” but Amber did not want to talk about it. She testified that during that time Hawley had become more violent and angry, and she was still in fear of him and did not want to jeopardize her safety.
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Mark Hogge Mark Hogge testified that he is a detective with the Special Crimes Unit for the Beaumont Police Department until his retirement in 2020. Hogge detailed his educational and professional background and stated he was assigned this case in August 2017. Hogge recalled that Mother brought Anne, who was fifteen years old at the time, into the police station to report a sexual assault. Hogge testified that Mother had a phone call with Amber, and after the call Anne “ran and curled up in the corner and later told [Mother] something that had happened to her.” Hogge spoke to Anne in a recorded interview in which Anne accused Hawley of sexual abuse. Hogge explained why a person would have a delayed outcry and stated that “[a] lot of different things[]” could trigger an outcry. Hogge then interviewed Mother. After both interviews, Hogge determined he needed to speak to Amber and Hawley. Hogge attempted multiple times to speak to Hawley but was unsuccessful. According to Hogge, this investigation took sixteen to eighteen months, longer than “I would have liked.” Hogge never spoke in person to Amber due to her living out of state, but he talked to her on the phone and emailed her asking her for a statement about what had happened. He stated that Amber was cooperative and that he determined from their correspondence that a crime had occurred under the Texas
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Penal Code. Hogge also received an email from Tim, Amber and Anne’s younger brother, but he did not interview Tim. Kim Kim testified that she was twenty-eight years old at the time of trial. On June 11, 2011, when she was fourteen years old, Kim went to a home with Amber and a mutual friend to watch a fight on television. Kim described that night as the “most traumatizing day of my life.” Kim stated there were several people there at the house that night including Hawley. Later, the group went to Hawley’s house next door. Hawley gave the girls alcohol that night. Kim stated that this was her first time drinking and that she had a “few” drinks that night. According to Kim, they were drinking from 10:00 p.m. to 2:30 a.m. and she knew she was intoxicated because she was “throwing up[,]” and could not “stand upright.” Kim went to the bedroom to lay down and was sleeping for about 30 minutes when Hawley entered the room. Kim woke up and discovered Hawley’s “hands were inside my shorts.” Hawley put his hands inside her vagina. Kim pushed Hawley away and he left the room. She then went into the garage and told her friends about the assault. The girls then immediately made a plan to leave. According to Kim, Hawley, was lying on the floor talking through the crack under the door offering to buy the girls clothes if they would not tell. The girls attempted to climb out through the bedroom window but
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eventually were able to get out through the door and walked down the road to get help. After being picked up by a family friend, Kim called her mother and her mother “immediately took me to the courthouse to give my statement.” Charges were considered against Hawley, but Kim stated that she signed a non-prosecution affidavit in the case when she “was made aware that that was [her] only option, that it would not move forward.” During cross-examination, Kim acknowledged that Amber did not corroborate her version of the events that night, but Kim indicated she was alone when the assault happened. Mother Mother testified that she has three children, Amber, Anne, and Tim. Mother stated that Amber has a different father from Anne and Tim, and that neither father was involved in the children’s lives growing up. Mother recalled that her relationship with Hawley started in 2005 and that she, Hawley and her children lived together in a house that Hawley’s family owned during their relationship. Mother worked as a bartender and Hawley watched her children while she worked. Mother testified that the children appeared to like Hawley, called him “Pop[,]” and that he “was the only father that they really ever knew.” When Mother and Hawley eventually broke up, she moved out of his house. She stated that Hawley “begged me to please stay in their lives, you know, because he wanted to be there for them and stuff[,]” and she
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thought it was “great” that he wanted to stay in their lives. Hawley stayed in contact with the children and bought them gifts through the years after they separated. The children continued to have a relationship with Hawley and go over to his house. Mother had no concerns about the children being alone with Hawley. Mother confirmed that she had an addiction to alcohol and pills but stated she had been sober for five years at the time of trial.
In 2017, the family went to visit Amber out of state. The vacation was cut short due to an argument between Mother and Amber, which Mother found “very odd[,]” because “my daughter -- obviously we had a rocky relationship. I would just say normal teenager, mom and daughter kind of stuff, you know, but this was something more, you know. I knew that something was not right.” After the trip, Mother called Amber to apologize, and Amber told Mother that “[Hawley] had molested her.” Mother went to get her other children and after Anne spoke to Amber, Anne “threw the phone down and ran into her room and locked the door. So, I knew right then that something was wrong.” Anne told Mother Hawley had “done things to her, as well.” Mother took Anne to the police station, and Anne gave a recorded statement to law enforcement.
During cross-examination, Mother testified it was “completely shocking to me[,]” when the children told her about the abuse. She also recalled that after Kim
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made her allegations, she continued to let the children go to Hawley’s house because she did not believe them. Tim Tim testified that he is twenty-one years old and the younger brother of Amber and Anne. Tim stated that growing up, Hawley lived with his family and after their relationship ceased, he split his time between Mother’s home and Hawley’s home. He lived with Hawley starting at age “2 or 3 years old.” He recalled that Hawley was the caregiver for the children because his mother worked. According to Tim, he was “[o]ften in fear[,]” living with Hawley and “didn’t really prefer being alone with him.” He described Hawley as an “authority figure[,]” who was strict with them. Tim testified to an incident during bath time with Hawley, himself, and Anne:
So, um, when me and [Anne] -- I want to say I was probably 3 -- maybe 2 or 3 -- we were -- we were sharing a bath together. And Brian was the only person home. And, um, we had been bathing and stuff and we get out of the bathtub and he was claiming that we had soap down near our genitalia that we hadn’t cleaned all the way. And he, um, took [Anne]
and brought her to the back room, and I walked around the corner and saw that he had her bent over the bed, and I didn’t know what I was looking at and was scared, so I walked away.
He testified it was unusual because at that age he and his sister could clean themselves during bathtime. Tim did not feel “safe telling anybody[,]” because Hawley was “really aggressive[.]” After Mother and Hawley broke up and Hawley was living at his parents’ home, when Tim was twelve or thirteen, he recalled trying
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to get into a bedroom that Hawley and Anne were in but a chair was jamming the door shut. Tim testified he was “scared of what he might see[,]” and told no one. Staci Landor Staci Landor is a detective with the Beaumont Police Department. Landor detailed her educational and professional background and stated she currently is assigned to the Special Crimes Unit investigating “Crimes against children, whether it’s physical or sexual abuse, crimes committed by or against juveniles, as well as all sexual assault.” In 2022, she was asked to help on the case after Hogge retired. Landor took statements from Amber and Tim in 2024. Ronald Dischler Ronald Dischler was called as a defense witness. Dischler testified that he is a Lieutenant with the Beaumont Police Department. He stated that he has worked for the Beaumont Police Department for twenty-five years and has over forty-three years of law enforcement experience. According to Dischler he has investigated “several thousand” criminal allegations. Dischler reviewed the records in this case concerning Kim’s allegations. He recalled that Kim and her mother came into the police department to file a report. After taking Kim’s statement, he attempted to contact the suspect and any other witnesses in the case. Hawley and his attorney at the time came in and gave a statement to Dischler. He also interviewed the other
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girls at the house that night and stated each girl gave a different statement. Dischler testified that what the girls “saw…basically the timeline[]” did not match. Dischler stated that he told Kim and her Mother about the lack of corroborating evidence but denied instructing them to sign a non-prosecution affidavit other than telling them that “if they wish to drop charges that we would have -- they would need to sign the non-prosecution because that’s what’s policy for us to clear cases.”
Evidentiary Sufficiency
We begin our review with the issue that would afford Hawley the greatest relief on appeal — his third issue challenging the sufficiency of the evidence supporting his convictions for continuous sexual assault of a child and indecency with a child.
The jury is the exclusive judge of the credibility of the evidence and the weight to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). As such, the jury is responsible for resolving conflicts in the testimony, is free to believe some, all or none of a witness’s testimony, and may assign as much or as little weight to a witness’s testimony as it sees fit. Id. Jurors may also draw reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) “[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them.” Id. at 16.
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When examining whether a criminal conviction is supported by legally sufficient evidence, we compare the evidence to the elements of the offense as defined by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We consider all the evidence, viewed in the light most favorable to the verdict, along with the inferences that could reasonably be drawn from the evidence. Hooper, 214 S.W.3d at 13. We do not assess the credibility of the evidence, reweigh the evidence, nor substitute our judgment for that of the jury. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The evidence is legally sufficient to support the conviction if any rational trier of fact could have found each of the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “Each fact need not point directly and independently to a defendant’s guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citation omitted); see also Garcia v. State, 667 S.W.3d 756, 761-62 (Tex. Crim. App. 2023) (citation omitted) (“A proper review of evidentiary sufficiency considers the cumulative force of the evidence.”).
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A person commits the offense of continuous sexual abuse of a child if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is . . . a child younger than 14 years of age[.]
Tex. Penal Code Ann. § 21.02(b)(1), (2)(A).
Section 21.02 of the Penal Code defines “act of sexual abuse” as including, among other things, an act that constitutes the offense of indecency with a child. Id. § 21.02(c)(2), (4). A person commits the offense of indecency with a child if he
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the child’s genitals.
Id. § 21.11(a)(1), (2).
“Sexual contact” is defined as the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
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(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
Id. § 21.11(c).
The State need not prove the exact dates of the abuse, only that “there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration.” Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.); Lane v. State, 357 S.W.3d 770, 773-74 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
With respect to the alleged continuous sexual abuse, Anne’s testimony alone was sufficient evidence from which a jury could convict Hawley because she described two or more incidents of sexual abuse at least thirty days apart, and it was the jury’s function to decide whether she was credible. See Tex. Code Crim. Proc. Ann. art. 38.07(b). Anne testified about several instances of sexual abuse, including digital and oral penetration of her genitals and mouth by Hawley. These instances of sexual abuse described by Anne took place after September 1, 2007, were “continuous[]” and “happened almost every single time [she] was around him,” based on her recollection of her age at the time. See Tex. Penal Code Ann. § 21.11(c). Anne further testified that the sexual abuse “lasted pretty much [her] whole entire life until [she] was about 15.” The jury, as trier of fact, could accept this testimony
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in satisfaction of the statutory requirement that there be evidence of two acts of sexual abuse at least thirty days apart. See id. § 21.02(b).
Anne’s testimony alone was also sufficient to support Hawley’s convictions for indecency with a child by contact, which she testified occurred when Hawley touched her genitals and mouth with his genitals, fingers and mouth during sexual assaults spanning several years. See id. § 21.11; Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); Cantu v. State, 366 S.W.3d 771, 775-76 (Tex. App.—Amarillo 2012, no pet.).
Viewing the evidence in the light most favorable to the verdict and deferring to the jury the responsibility of determining the weight and credibility of the evidence, we conclude that a reasonable factfinder could have found Hawley guilty of continuous sexual assault of a child under fourteen and two counts of indecency with a child by sexual contact beyond a reasonable doubt. See Tex. Penal Code Ann. §§ 21.02; 21.11(d); see also Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper, 214 S.W.3d at 13. We overrule Appellant’s third issue.
Testimony of Extraneous Offenses or Bad Conduct In his final two issues, Hawley argues the trial court abused its discretion during the guilt phase of the trial in admitting evidence of extraneous offenses or
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bad conduct by Hawley against Amber and Kim—child victims other than the child named in the indictments for which he was tried. According to Hawley, the trial court erred under Texas Code of Criminal Procedure article 38.37, and any probative value of each child victim’s testimony was significantly outweighed by the extreme prejudicial effect such that the testimony was erroneously admitted under Texas Rule of Evidence 403.
During trial, the State indicated it was proffering Amber and Kim’s testimony under article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37. The court held an admissibility hearing outside the presence of the jury to determine whether Hawley’s alleged extraneous offenses or bad conduct against Amber were admissible, and the following colloquy occurred:
THE COURT: […] For purposes of 38.37 and the testimony of [Amber]
and whether or not I will allow her to testify, any – [Defense Counsel], any issue? Would you like to make any argument with regard to that, or do you just want me to go ahead and make my ruling?
[DEFENSE COUNSEL]: I think you can just rule without argument, Judge.
THE COURT: I believe based on her testimony that I -- there is adequate information that she would bring based on the nature of the offense that Mr. Hawley is charged with in the three cases that we’re going on based on her testimony with regard to what happened to her, that there is sufficient evidence for me to allow her to testify under Article 38.37 and I will do so.
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The trial court held a separate hearing regarding Kim’s testimony, and ruled as follows:
THE COURT: So, at this time, based on the factors in Article 38.37, I am going to make the finding that there is adequate support to -- for a finding by a jury that this incident did happen, and, so, I am going to allow [Kim] to testify.
Generally, the State cannot introduce evidence of prior bad acts, wrongs or other acts to show that the defendant had a tendency to commit the crime or acted in accordance with such a tendency. Tex. R. Evid. 404(b). However, “[i]n a trial of the sexual assault of a child, there are special circumstances that ‘outweigh normal concerns associated with evidence of extraneous acts.’” Howell v. State, No. 09-16- 00441-CR, 2018 Tex. App. LEXIS 5190, at *7 (Tex. App.—Beaumont July 11, 2018, no pet.) (mem. op., not designated for publication) (quoting Alvarez v. State, 491 S.W.3d 362, 367 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)); Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d). At the trial of a defendant accused of, among other things, continuous sexual abuse of a child, evidence the defendant committed a separate sex offense against another child may be admissible under section 2 of article 38.37 “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 Crim. Proc. Ann. art. 38.37, § 2(a)(1)(B), (b). Hawley was charged with continuous sexual abuse of a child
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and indecency with a child under sections 21.02 and 21.11 of the Penal Code, both of which are offenses to which article 38.37 applies. See Tex. Code Crim. Proc. Ann. art. 38.37, §§ 1(a)(1)(A), 2(a)(1)(A); 2(a)(1)(B); 2(a)(1)(C); Tex. Penal Code Ann. §§ 21.02; 21.11. Article 38.37 “allows for the admission of evidence of extraneous offenses committed by the defendant against individuals other than the victim.” Howell, 2018 Tex. App. LEXIS 5190, at *7-8 (citing Aguillen v. State, 534 S.W.3d 701, 711 (Tex. App.—Texarkana 2017, no pet.)). We conclude the trial court acted within its discretion in determining the evidence was admissible under article 38.37.
Once a trial court determines that extraneous offense evidence is admissible under article 38.37 or Rule 404(b), the trial court must, upon proper objection by the opponent of the evidence, weigh the probative value of the evidence against its potential for unfair prejudice. See Clark v. State, No. 09-20-00083-CR, 2021 Tex. App. LEXIS 9500, at *30-31 (Tex. App.—Beaumont Nov. 24, 2021, no pet.) (mem. op., not designated for publication) (“Although admissible under Rule 404(b), evidence may still be excluded under Rule 403[.]”); Howell, 2018 Tex. App. LEXIS 5190, at *8-9 (trial court must undertake Rule 403 balancing test if defendant timely objects on grounds that extraneous offense evidence admissible under article 38.37 is more prejudicial than probative); Favorite, 2017 Tex. App. LEXIS 5656, at *33 (same).
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To preserve error for appellate review, a complaining party must make a timely and specific objection. See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). To preserve a Rule 403 challenge to extraneous offense evidence, a defendant must timely raise a Rule 403 objection. Clark, 2021 Tex. App. LEXIS 9500, at *31-32. Texas courts require that points of error on appeal correspond to objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (op. on reh’g); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154 S.W.3d at 241 (citations omitted); see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).
On appeal, Hawley argues that under Rule 403, the trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. However, we need not consider whether the evidence was admissible under Rule 403, because the evidence was admissible under 38.37, and Hawley did not raise a Rule 403 objection at trial. See Tex. Code Crim. Proc. Ann. art. 38.37. Because
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Hawley’s 403 complaint on appeal does not comport with his article 38.37 objection made in the trial court, Hawley failed to preserve the Rule 403 complaint for appellate review. See Tex. R. App. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Ibarra, 11 S.W.3d at 197; Dixon, 2 S.W.3d at 273; Wright, 154 S.W.3d at 241. We overrule Hawley’s first and second issues.
Due Process Claims
Though not briefed as a separate issue, Hawley argues that allowing Amber to testify violated his due process rights because “at the time of Voir Dire in picking the jury, [Amber] was a complainant in Cause Number 23DCCR0069 and up until the testimony started was one of the cases that was going to be presented.” Instead, the State opted not to proceed on the indictment but still called Amber as a witness under article 38.37. Hawley argues this “created a prejudicial effect that violated the Defendant’s Due Process Protection but allowed evidence that appears would not rise to the burden of proof necessary to determine if Mr. Hawley committed the extraneous offense beyond a reasonable doubt.”
Hawley, however, did not preserve this complaint for our review. To preserve error, the record must show that there was a timely request, objection, or motion that “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless
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the specific grounds were apparent from the context[.]” Tex. R. App. P. 33.1(a). Further, “[t]he point of error on appeal must comport with the objection made at trial.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Even constitutional errors may be forfeited if no proper objection is made at trial. Id.; Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
Here, Hawley did not object to the challenged portions of Amber’s testimony on the basis that it violated his right to due process, and he did not raise his due process complaint at the trial court level. Further, nothing in the record indicates that either the trial judge or the prosecutor understood Hawley’s objections to the challenged testimony to complain of a denial of due process. We therefore conclude that Hawley failed to preserve a due process complaint for appellate review. See Tex. R. App. P. 33.1(a); Clark, 365 S.W.3d at 339-40 (concluding that defendant’s evidentiary objections did not preserve error relating to alleged violation of due process where the defendant did not object on due process grounds and nothing in the record put the trial judge or prosecutor on notice that the defendant was complaining about a due process violation). We overrule Hawley’s due process argument.
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Conclusion
Having overruled all of Hawley’s issues on appeal, we affirm the trial court’s judgments.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on March 20, 2026 Opinion Delivered August 26, 2026 Do Not Publish
Before Golemon, C.J., Johnson and Chambers, JJ.