In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-24-00161-CR ___________________________
BRUCE ALLAN TUCKER, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR14769
Before Sudderth, C.J.; Birdwell and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
A jury convicted Appellant Bruce Allan Tucker of continuous sexual assault of
a young child stemming from his years-long abuse of his granddaughter, K.M. (Kim).1
See Tex. Penal Code Ann. § 21.02. The jury assessed his punishment at life
imprisonment, and the trial court sentenced him accordingly. In two issues on appeal,
Tucker argues that (1) the trial court abused its discretion by allowing extraneous-
offense testimony from two witnesses—C.S. (Carla) and L.B. (Leslie)—over his
Article 38.372 objection and (2) the trial court erred by not including an instruction in
the jury charge that the evidence admitted under Article 38.37 could only be
considered if the jury found the offenses to have actually been committed beyond a
reasonable doubt. We will assume, without deciding, that the trial court erred by
admitting Carla’s and Leslie’s testimonies and by failing to include the jury instruction.
However, because Tucker was not harmed by the admission of Carla’s and Leslie’s
testimonies or egregiously harmed by the jury charge, we will affirm.
1 To protect the complainant’s anonymity, we use an alias to refer to her, to some of her family members, and to other alleged victims of Tucker’s abuse. See Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982). 2 See Tex. Code Crim. Proc. Ann. art. 38.37.
2 II. BACKGROUND
A. Kim’s Familial Relationship with Tucker
Kim is Tucker’s biological granddaughter. Kim’s mother (Mother) is Tucker’s
daughter. While growing up, Mother had a close relationship with Tucker and
maintained that relationship into adulthood. Kim was born in January 2008.3 Mother
and Kim lived with Tucker when Kim was “an infant up until toddler age.” Kim and
Mother moved out of Tucker’s home after Mother met and married Stepfather, who
was in the Navy and stationed in the State of Washington. The family lived on a naval
base there, and it grew with the birth of Kim’s two brothers.
Kim and her family spent summers and holidays visiting Texas, and they often
stayed with Tucker at his home in Cresson, Texas. Stepfather was often deployed
during the summer, but he would try to visit the family during the summer when he
could.4 Kim and her brothers had a close relationship with Tucker and called him
“Papa.” At Tucker’s house, Mother had her own room, and Kim shared a room and
a three-tiered bunk bed with her two brothers.
3 Kim was born premature and had to spend the first five months of her life in a neonatal intensive care unit. Kim had developmental issues as a result of being born premature, including issues walking—which necessitated surgery to correct—and had to be on oxygen for around two-and-a-half years after she was born.
Kim testified that Stepfather was on deployment most of the time during the 4
summers and would visit the family in Texas for “[m]aybe like a week or so.”
3 B. Tucker’s Abuse of Kim
At Tucker’s trial, Kim testified that Tucker began sexually abusing her when
she was around five or six years old. According to Kim, the first time it happened,
she and Tucker were alone in Mother’s room at Tucker’s house. Kim testified that
she was on the bed watching television when Tucker laid on the bed and started
rubbing her vagina with his fingers both over and under her clothes. Kim stated that
Tucker then told her that she should not tell anybody that it had happened.
Kim testified about another incident of abuse that occurred during a game of
“cops and robbers” with Tucker in her room when she was around five or six years
old. She recounted that while they were playing, she ran and hid behind the door in
Mother’s room, and Tucker found her and handcuffed her with a set of fake
handcuffs. She stated that Tucker then carried her to her youngest brother’s bed
where she fell asleep.5 According to Kim, when she awoke, she saw that Tucker had
pulled down her pants and underwear and that he was on his knees next to her with
his pants and underwear down. She then got up and went to the bathroom. She
recounted that in the bathroom, she discovered that her vagina was filled with a sticky
substance that appeared to be semen.6
5 When asked why she had fallen asleep during the game, Kim stated she had “no clue.” 6 Kim was sixteen years old when she testified at trial.
4 In another incident described by Kim at trial, she asked Tucker if she could
play a game on his phone. She noticed that he was watching pornography on the
phone and asked him what it was. At first, he told her that she was too young for it,
but when she asked him again, he showed her multiple pornographic videos depicting
adults having sex. Kim testified that after Tucker showed her the pornographic
videos, he touched her vagina with his fingers.7
Kim stated that on another occasion, she was lying on her bunk bed when
Tucker came in to talk to her. Tucker told her that he would rub her feet because she
was having problems resulting from a surgery to correct her issues walking.
According to Kim, Tucker only rubbed her feet “for a little bit”; he then started
touching and rubbing her vagina under her clothes. Kim testified that after that
occurrence, Tucker frequently told Kim’s family that he was going to rub her feet, but
he would then rub and touch her vagina instead. She stated that he only actually
rubbed her feet if Mother walked in the room. Kim told the jury that Tucker rubbed
and touched her vagina “[a]lmost every day” during the summers that she and her
family stayed with him, but she said that Tucker did not abuse her on the days that
Stepfather was with the family in Texas.
Kim testified about another occasion that occurred when she was “older than
five or six.” She stated that on that occasion, Mother and her brothers were away
7 During her testimony at trial, Kim could not recall whether that contact had occurred over or under her clothing.
5 from the home, and she was left alone with Tucker. She said that she was asleep and
woke up to Tucker taking off her pants and underwear and touching her vagina with
his penis. She stated that she was too afraid to look, but she heard Tucker say, “I told
you I could make you fall asleep.”
Kim recounted that on another occasion, she was on her bunk bed and Tucker
got on the bunk with her. Kim stated that Tucker then took out his penis, forced it
into her mouth, and made her suck it. According to Kim, Tucker then took her pants
and underwear off, put his mouth on her vagina, and licked it. Kim stated that semen
came out of Tucker’s penis while he was doing this. She said that the incident lasted
around an hour and that it only stopped when her brothers started running around
near the bedroom door. She stated that she was “[o]ver five or six” when this
incident occurred.
Kim told the jury about another occasion when she and Tucker were watching
a movie on Tucker’s bed. According to Kim, during that occasion, Tucker grabbed
her hand and put it on his penis. Kim stated that Tucker then asked her if she wanted
to play dress-up, and he brought a bra and some tank tops out of his closet. Kim said
that she refused to put on the bra, but she did try on two of the tank tops. Kim stated
that Tucker told her that she could change in his closet so he would not see her, but
she believed that he watched her change.
Kim testified about other occasions when Tucker made her look at his penis.
She recounted that she once walked into Tucker’s bedroom to ask him for something
6 and saw him putting lotion on his penis with his hands and using a towel on it. She
stated that she tried to quickly walk out of the room, but Tucker told her to stay and
watch, so she did. She told the jury about another occasion when Tucker called her
into the bathroom while he was taking a shower. Kim stated that she had believed
that Tucker just wanted to talk with her through the closed shower curtain as he had
done on other occasions. She said that on this occasion, however, when she went in
the bathroom, Tucker got out of the shower and told her to look at his penis.
Kim also testified that when she was “[a]round six or seven,” Tucker touched
her anus with his penis and put his hand in her underwear and squeezed her “butt.”
According to Kim, Tucker told her that he would get in trouble if she told
anyone about the abuse and that they would not be able to see each other anymore.
She stated that he also told her that she would get in trouble and go to jail if she said
anything about the abuse, and she believed him. She said that Tucker also repeatedly
told her that no one in her family would believe her because she used to lie when she
was younger. Kim later told Mother that Tucker had said that he would kill Mother,
Kim’s brothers, and another family member if Kim told anybody about the abuse.
Kim also told Mother that Tucker said that what he did to her was just something that
grandfathers do to their granddaughters.
7 C. The Report of Tucker’s Abuse to Family Members and Law Enforcement, and the Forensic Interview in Washington
Tucker’s abuse came to light in August 2019 when Kim was eleven years old.
As explained by Kim, her cousin was visiting the family at Tucker’s house, and the
girls were swimming in Tucker’s backyard swimming pool. After they were done
swimming, Mother took Kim’s cousin to take a shower and left Kim sitting on a
couch in the living room with Tucker. Kim was wearing a one-piece bathing suit and
a cover-up. Mother told the jury that she came out of the bathroom and saw that
Kim’s cover-up was pulled down and that Kim was “sitting with her legs open with
her crotch exposed to [Tucker], who was sitting on the other couch.” Mother stated
that she asked Kim several times to fix her cover-up and “sit like a lady,” but each
time Mother came into the living room, Kim’s cover-up was pulled down and her legs
were spread open.
When it was Kim’s turn for a shower, Mother brought her into the bathroom
and started asking her why she was sitting and acting inappropriately around Tucker.
Initially, Kim denied that anything inappropriate had occurred with Tucker.
However, after approximately an hour of Mother questioning her, Kim told Mother
that Tucker had been abusing her. Mother stated that when she opened the
bathroom door after Kim told her about the abuse, she saw Tucker standing outside
the door. Mother indicated that Tucker immediately questioned her about what was
8 wrong with Kim. Mother said that she told Tucker that Kim just had “some things
going on at school” and that Mother did not want to talk about it.
Mother and the children left Tucker’s house the next morning. They dropped
Kim’s cousin off at her house and went to Kim’s grandmother’s house. On the way
to the house, Kim told Mother about Tucker’s abuse. They stayed at Kim’s
grandmother’s house until it was time for them to go back to Washington. While
there, Kim told Mother, her grandmother, and her godmother about Tucker’s abuse.
When the family arrived back in Washington, Mother went to the Naval
Criminal Investigation Service (the NCIS) office on base and reported Tucker’s abuse.
The NCIS referred Kim to the Kitsap County8 Children’s Advocacy Center for a
forensic interview. Mother took Kim to the center, where she was interviewed by
Sasha Mangahas, a child forensic interviewer. During the recorded interview, Kim
described Tucker’s abuse to Mangahas.9 Kim described Tucker touching her vagina
with his hands and fingers, inserting his penis in her mouth, making her touch his
penis with her hands, putting his mouth on her vagina, and placing his penis against
her “butt.” Kim also described how she had seen “slimy” stuff come out of Tucker’s
penis. Kim told Mangahas that Tucker had said not to tell anyone about the abuse
because he would get in trouble. Kim also told Mangahas that some form of abuse
8 Kitsap County is in Washington. 9 Mangahas’s interview of Kim was admitted into evidence at trial and published for the jury.
9 had happened “every time” she went to Tucker’s house and that it had been occurring
for years.
The NCIS later contacted the Hood County District Attorney’s Office in Texas
to report the alleged abuse. Investigator Birt Wilkerson of the Hood County District
Attorney’s Office began investigating the alleged abuse.
D. Tucker’s Arrest and Search of His House
Wilkerson later arrested Tucker and searched his home pursuant to a search
warrant. Wilkerson testified that during the search of Tucker’s home, officers found a
trove of pornographic photos and materials, “little fancy dresses” for girls, and
“panties and lingerie for little girls.”10 Officers also discovered play handcuffs in one
of the bedrooms, a condom in the room that Kim shared with her younger brothers, a
set of handcuff keys on Tucker’s nightstand, chains and shackles in Tucker’s
bedroom, and a police badge inside one of the drawers of Tucker’s nightstand. One
of the pornographic magazines located in Tucker’s home was called Finally Legal.
Officers also found photographs of a scantily-clad teenage girl near the condom in the
children’s room.11 In two of the photographs, the girl was wearing a bikini swimsuit;
10 Many of the girls’ clothing items and undergarments were found in Tucker’s bedroom closet. As to those items, Wilkerson acknowledged that other children and women besides Kim and Mother had lived at Tucker’s house and that he was not certain that some of the clothing and lingerie was for children rather than a smaller adult woman. 11 Wilkerson estimated that the girl depicted in the photographs appeared to be fifteen or sixteen years old.
10 in one of the photographs, the girl was wearing black shorts and a white bra; in the
last photograph, the girl was wearing pink shorts and a white bra. The photographs
of the teenage girl appeared to Wilkerson to have been taken in Tucker’s bedroom.
E. The Pretrial Hearing
As Tucker’s case moved toward trial, the State gave notice that it was planning
to introduce evidence of Tucker’s prior bad acts, listing an incident involving Tucker
and Carla in or around 2004 and an incident involving Tucker and Leslie in or around
2001. Tucker filed a motion for a hearing regarding those incidents under
Article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37. The trial court later held a
preliminary hearing to determine whether Carla’s and Leslie’s potential testimonies
met the requirements of Article 38.37 and were therefore admissible during trial.
1. Carla’s Testimony at the Pretrial Hearing
Carla was thirty-five years old at the pretrial hearing; she testified about an
incident with Tucker that occurred when she was sixteen or seventeen years old.
Carla stated that Tucker was the father of two of her friends, that she had been to his
house “about a hundred times,” and that he had provided her with alcohol on
multiple occasions and had offered to provide her with cocaine. She testified that on
the day of the incident, she had gone to Tucker’s house to ask him for cocaine and
was alone with him. She said that Tucker told her that he could not get her any
cocaine but that he could get muscle relaxers. She stated that Tucker then gave her
muscle relaxers, and she took them. After taking the pills, Carla left the house with
11 Tucker. While out, they went to a liquor store, where Tucker bought rum. Carla
stated that she drank the bottle of rum, and Tucker took her back to his house.
According to Carla, once they arrived back at Tucker’s house, Tucker’s dog
jumped on her and got her clothes muddy, so Tucker told her to take off her clothes
and put them in the washing machine. Carla took off her pants, put them in the
washing machine, and put on some boxer shorts. Then she sat on a couch next to
Tucker. Carla testified that while on the couch, Tucker “put his hand between [her]
thighs and he licked [her] neck.” Carla stated that she then jumped up and ran out of
the house. On cross-examination, Carla recalled that she had been seventeen years
old when the incident had occurred and that Tucker’s contact with her thighs was
over her clothing.
2. Leslie’s Testimony at the Pretrial Hearing
Leslie was thirty-six years old at the time of the pretrial hearing; she testified
about an incident with Tucker that occurred when she was thirteen. Tucker was the
father of Leslie’s first boyfriend. She said that the incident had occurred after a fight
with her father, when she had called her boyfriend to come pick her up because she
was “running away.” Since her boyfriend was not old enough to drive, Tucker drove
him to Leslie’s house, picked her up, and brought her to Tucker’s house. Leslie
stayed at Tucker’s house for several days. According to Leslie, on her last day at
Tucker’s house, Tucker called her into his bedroom. Leslie stated that after he called
her into the bedroom, Tucker grabbed both of her arms and kissed her on the lips.
12 Leslie said that she then left Tucker’s bedroom. A few hours later, Leslie’s father
came to Tucker’s house and took Leslie home.
3. The Trial Court’s Ruling at the Pretrial Hearing
After Carla and Leslie testified, the State argued that their testimonies showed
that Tucker had attempted to commit one of the enumerated acts under Article 38.37
and showed conduct that consisted of “more than mere preparation,” so Carla and
Leslie should be allowed to testify at the guilt–innocence phase of the trial.
The defense argued that although Tucker may have committed several criminal
acts, he did not commit any of the enumerated acts under Article 38.37 against either
woman, so Carla’s and Leslie’s testimonies were not sufficient to prove that Tucker
had committed any of the enumerated offenses and were thus inadmissible during the
guilt–innocence phase of Tucker’s trial.
At the conclusion of the hearing, the trial court ruled that Carla and Leslie
could both testify at trial regarding their respective incidents with Tucker. Specifically,
the trial court stated,
I’m going to make a finding that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the Defendant committed the separate attempted offenses, many of which are listed, beyond a reasonable doubt. These would be attempted offenses under Section 2, whether it be attempted indecency with a child, sexual assault of a child, sexual performance by a child. That one in particular would be for [Carla] who may have been 17 years of age. Okay. And we conducted a hearing for that purpose, and so I will allow that testimony.
13 F. Tucker’s Trial
Tucker’s trial was held over four days in April 2024. At the outset of trial,
Tucker asked for and was granted a running objection to all testimony concerning the
acts that Tucker had allegedly committed against Carla and Leslie.
The State presented testimony from Kim, Mother, an NCIS agent, Mangahas,
Wilkerson, Carla, and Leslie.12 The defense presented one witness.13 At the close of
evidence, a jury charge was prepared and submitted to the trial court. Neither side
had any objections to the charge.
The jury ultimately found Tucker guilty of the offense of continuous sexual
abuse of a young child and assessed his punishment at life imprisonment. The trial
court sentenced him accordingly. Tucker later filed a motion for a new trial, which
the trial court denied after an evidentiary hearing. This appeal followed.
12 The pertinent evidence from these witnesses has been set out in our earlier discussion of the facts. Carla’s and Leslie’s testimonies largely mirrored their testimonies from the pretrial hearing. 13 The defense witness was H.K. (Helen), Tucker’s former daughter-in-law. Helen testified that Tucker was the father of her deceased husband and the grandfather of her two children. Helen said that she frequently visited Tucker at his house and even lived with him while she was pregnant with her oldest child. She stated that in August 2019, Mother and Kim’s grandmother informed her that Tucker had been abusing Kim. Helen said that Mother had told her that she was “going to get Tucker” and “take him for everything he had.” Helen also testified that a very petite woman with small breasts had lived with Tucker and could have fit into smaller- sized bras.
14 III. DISCUSSION
A. The Admission of Carla’s and Leslie’s Testimonies
In his first issue, Tucker argues that the trial court abused its discretion by
allowing Carla’s and Leslie’s testimonies over his Article 38.37 objection. Specifically,
he argues that “[t]here was insufficient evidence for the trial court to conclude that a
reasonable jury could find beyond a reasonable doubt that [he] committed the
separate offenses alleged by the prosecution” and that he suffered harm as a result of
the trial court’s admission of Carla’s and Leslie’s testimonies.
1. Standard of Review
We review the trial court’s decision to admit evidence for an abuse discretion.
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). Because the trial court
“has the best view of the evidence,” an appellate court will not find error in a trial
court’s ruling if it falls within the zone in which reasonable minds may differ.
Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021); Jumper v. State, No. 02-
22-00286-CR, 2024 WL 3059060, at *2 (Tex. App.—Fort Worth June 20, 2024, pet.
ref’d) (mem. op., not designated for publication). However, if the trial court’s
decision falls outside the “zone of reasonable disagreement,” it has abused its
discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g).
15 2. Applicable Law
Generally, an accused may be tried only for the offense for which he is charged
and may not be tried for an uncharged crime or for being a criminal generally.
Gusman v. State, No. 02-18-00157-CR, 2018 WL 3060213, at *2 (Tex. App.—Fort
Worth June 21, 2018, pet. ref’d) (mem. op., not designated for publication) (citing
Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991)). “Evidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.” Tex.
R. Evid. 404(b)(1). However, Article 38.37 provides an exception to this general rule
in cases in which the defendant is on trial for certain sexual offenses involving a child,
including the offense of continuous sexual abuse of a young child. See Tex. Code
Crim. Proc. Ann. art. 38.37, § 2(a)(1)(B). “Notwithstanding Rules 404 and 405,”
evidence that a defendant has committed a separate offense described by Subsection
(a)(1) or (2) “may be admitted in the trial of an alleged offense described by
Subsection (a)(1) or (2) 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.” Id. § 2(b).
Before a trial court admits such evidence, the court must “(1) determine that
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;
and (2) conduct a hearing out of the presence of the jury for that purpose.” Id. § 2-a;
16 see Davis v. State, No. 02-23-00119-CR, 2024 WL 976501, at *4 (Tex. App.—Fort
Worth March 7, 2024, pet. ref’d) (mem. op., not designated for publication). The
State, as the proponent of extraneous-offense evidence, bears the burden of showing
the admissibility of the evidence under Article 38.37. See Gamble v. State, No. 2-07-
174-CR, 2009 WL 806879, at *3 (Tex. App.—Fort Worth Mar. 27, 2009, pet. ref’d)
(per curiam) (mem. op., not designated for publication) (citing Rankin v. State,
974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh’g)).
3. Tucker’s Complaint
Tucker argues that the trial court erred by admitting Carla’s and Leslie’s
testimonies because the evidence was insufficient to support the trial court’s
determination that a reasonable jury could find beyond a reasonable doubt that he
committed the separate offenses the prosecution alleged and that the actions alleged
by the prosecution cannot, as a matter of law, sustain a conviction for any of the
offenses required by Article 38.37, Section 2.
Tucker contends that since there was no evidence he actually committed any of
the enumerated crimes listed in Article 38.37, the State offered Carla’s and Leslie’s
testimonies to prove he committed an attempted crime. Specifically, he argues that
the trial court admitted Carla’s testimony on the basis that it would be adequate to
support a finding that Tucker had committed attempted sexual performance by a
child and admitted Leslie’s testimony on the basis that it would be adequate to
support a finding that Tucker had committed attempted indecency with a child or
17 attempted sexual assault of a child. He contends that because an attempted crime
requires specific intent, the State was required to prove that he had the specific intent
to commit one of the offenses listed in Article 38.37. Tucker maintains that the State
failed to show that he did any act that amounted to more than mere preparation and
failed to show that he had the specific intent to have either sexual contact or sexual
intercourse with Carla or Leslie. Tucker argues that because there was no evidence of
his specific intent, the trial court abused its discretion by allowing the jury to hear
Carla’s and Leslie’s testimonies.
4. Analysis
Assuming, without deciding, that the trial court erred by admitting Carla’s and
Leslie’s testimonies, we find no harm that requires reversal. The erroneous admission
of extraneous offenses generally does not constitute constitutional error. Pyle v. State,
No. 02-24-00155-CR, 2025 WL 728111, at *7 (Tex. App.—Fort Worth Mar. 6, 2025,
pet. ref’d) (mem. op., not designated for publication); Perez v. State, 562 S.W.3d 676,
691 (Tex. App.—Fort Worth 2018, pet. ref’d); see also Patterson v. State, No. 02-23-
00012-CR, 2024 WL 1207306, at *12 (Tex. App.—Fort Worth Mar. 21, 2024, pet.
ref’d) (mem. op., not designated for publication) (stating that error in the admission of
evidence in violation of Rule 404 is generally not constitutional error).
Because the error is not constitutional, we apply Rule 44.2(b). Tex. R. App.
P. 44.2(b). That rule requires us to disregard any nonconstitutional error that does
not affect the appellant’s substantial rights. Id. A substantial right is affected when
18 the error had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S.
750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a
substantial right if the appellate court has a fair assurance from an examination of the
record as a whole that the error did not influence the jury or that it had but a slight
effect. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). In deciding that
question, we consider (1) the character of the alleged error and how it might be
considered in connection with other evidence, (2) the nature of the evidence
supporting the verdict, (3) the existence and degree of additional evidence indicating
guilt, and (4) whether the State emphasized the complained-of error. Id.; Motilla v.
State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
Here, the evidence of Tucker’s guilt is overwhelming. Kim testified at length
and provided the jury with a detailed account of Tucker’s years of abuse and
recounted many specific instances of abuse. Specifically, she stated that Tucker had
touched her vagina with his hands, had put his mouth on her vagina and licked it, had
touched her vagina with his penis, had forced his penis into her mouth and made her
suck it, had grabbed her hand and put it on his penis, had touched her anus with his
penis, and had squeezed her “butt.” She said that these events had begun when she
was five or six years old and that Tucker had rubbed and touched her vagina “[a]lmost
19 every day” during the summers that she and her family stayed with him until she
reported the abuse in 2019.
Kim testified that Tucker had forced her to look at his penis, had shown her
pornography, and had asked her to try on a bra and watched her change into tank
tops. Kim also described seeing semen come out of Tucker’s penis and finding a
sticky substance that appeared to be semen in her vagina. Kim also explained that she
had not told anyone about the abuse for years because Tucker had told her that they
would both get into trouble if she talked about the abuse.
Kim also described Tucker’s abuse in detail during the forensic interview with
Mangahas. Kim told Mangahas about instances in which Tucker had touched her
vagina with his hands and fingers, inserted his penis in her mouth, made her touch his
penis with her hands, put his mouth on her vagina, and placed his penis against her
“butt.” Kim described seeing “slimy” stuff come out of Tucker’s penis during at least
one of these occurrences. Kim relayed to Mangahas that some form of abuse had
happened “every time” she went to Tucker’s house and that it had been occurring for
years.
Kim’s allegations against Tucker were also supported by the physical evidence
and photos that were discovered by Wilkerson during the search of Tucker’s house.
Among other things, the jury saw photos of the clothes and lingerie for girls that
Tucker kept in his closet, the handcuffs and shackles that Tucker kept in his bedroom,
20 Tucker’s collection of pornographic materials, and Tucker’s photographs of a scantily-
clad teenage girl that appeared to have been made in Tucker’s bedroom.
Compared to the rest of the witness’ testimonies and the evidence, Carla’s and
Leslie’s testimonies were only a minor part of the State’s case against Tucker. Carla’s
and Leslie’s combined testimonies constituted approximately nineteen pages of
testimony in the three volumes of the reporter’s record containing the guilt–innocence
phase of Tucker’s trial. Moreover, while the State briefly mentioned Carla’s and
Leslie’s testimonies in its opening statement, it did not overly emphasize them. The
State’s opening statement took up approximately 138 lines of the reporter’s record,
but the State’s reference to the expected testimony from Carla and Leslie took up
approximately four lines of the reporter’s record.14 The State did not mention Carla’s
and Leslie’s testimonies in its closing argument.
Based on our review of the record, assuming that the trial court abused its
discretion by admitting Carla’s and Leslie’s testimonies, we conclude that, in the
context of the entire case against Tucker, any error in admitting their testimonies did
not have a substantial or injurious effect on the jury’s verdict and did not affect
Tucker’s substantial rights. See Macedo, 629 S.W.3d at 240; Haley, 173 S.W.3d at 518;
Carrillo v. State, No. 08-14-00174-CR, 2016 WL 4447611, at *7 (Tex. App.—El Paso
14 The State told the jury, “But you’re also going to hear from two other young ladies: [Carla and Leslie]. And they’re going to tell you about the things that [Tucker] did to them when they were young girls, when they were teenagers.”
21 Aug. 24, 2016, no pet.) (not designated for publication) (holding that any error in the
admission of extraneous-offense evidence was harmless given the overwhelming
evidence of the appellant’s guilt). We overrule Tucker’s first issue.
B. Jury Instructions
In his second issue, Tucker argues that the trial court erred by not including an
instruction in the jury charge that the evidence admitted under Article 38.37 could
only be considered if the jury found the offenses to have actually been committed
beyond a reasonable doubt. He further argues that as a result, he suffered egregious
harm that warrants reversal.
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Peralez v.
State, No. 02-23-00218-CR, 2024 WL 1792403, at *5 (Tex. App.—Fort Worth
Apr. 25, 2024, pet. ref’d) (mem. op., not designated for publication). When reviewing
a jury charge, we first determine whether error occurred; if not, our analysis ends.
Kirsch, 357 S.W.3d at 649; Peralez, 2024 WL 1792403, at *5. If error occurred, whether
it was preserved determines the degree of harm required for reversal. Kirsch,
357 S.W.3d at 649; Peralez, 2024 WL 1792403, at *5.
Because Tucker failed to object to the jury charge during trial, we can only
overturn the conviction if the error “was so egregious and created such harm that
appellant did not receive a fair and impartial trial[—]in short, that ‘egregious harm’ has
22 occurred.” Burnett v. State, No. 2-00-171-CR, 2003 WL 1948696, at *4 (Tex. App.—
Fort Worth Apr. 24, 2003, no pet.) (not designated for publication) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). To make such a
determination, we consider the actual degree of harm in light of (1) the entirety of the
jury charge; (2) the nature of the evidence, including the contested issues and weight
of probative evidence; (3) the arguments of counsel; and (4) any other relevant
information revealed by the trial record as a whole. Almanza, 686 S.W.2d at 171;
Burnett, 2003 WL 1948696, at *4.
The purpose of this review is to determine the actual, not just theoretical, harm
that the error caused to the defendant. Almanza, 686 S.W.2d at 174; Chiodo v. State,
No. 2-06-096-CR, 2007 WL 1952375, at *1 (Tex. App.—Fort Worth July 5, 2007, pet.
ref’d) (mem. op., not designated for publication). “Egregious” harm is present when
the error made the case for conviction clearly and significantly more persuasive.
Chiodo, 2007 WL 1952375, at *5; see Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim.
App. 1991). Egregious harm is a difficult standard to prove and must be determined
on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002);
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Chiodo, 2007 WL 1952375,
at *1.
2. Analysis
Assuming, without deciding, that the trial court erred by not including an
instruction in the jury charge that the evidence admitted under Article 38.37 could
23 only be considered if the jury found the offenses to have actually been committed
beyond a reasonable doubt, we find no egregious harm.
As to the entirety of the charge, with the exception of the missing instruction
regarding extraneous offenses, the jury charge was substantially correct, and Tucker
makes no argument to the contrary. The jury charge correctly instructed the jury on
the standard of proof for Tucker’s alleged continuous sexual abuse of Kim and
instructed the jury on the law concerning continuous sexual abuse of a child along
with the underlying offenses that constitute continuous sexual abuse of a child.
Turning to the state of the evidence, as detailed above, the evidence against
Tucker is strong and compelling. As noted above, Kim gave lengthy and detailed
testimony describing Tucker’s continuous sexual abuse, and that testimony is
supported by the statements she made during the forensic interview and by the
photographs and items seized from Tucker’s home.
With regard to the arguments of counsel, as detailed above, the State did not
emphasize Carla’s and Leslie’s testimonies at trial and did not mention them during
closing arguments. Instead, the State used its closing argument to discuss the jury
charge and Tucker’s abuse of Kim. And neither party argued nor suggested an
improper burden of proof for the extraneous offense.
Thus, based on the appropriate harm standard and taking all of the above-
mentioned factors into account, we hold that that any omission of the instruction did
not affect the very basis of the case, deprive Tucker of a valuable right, unduly affect a
24 defensive theory, or make a case for his conviction clearly and significantly more
persuasive. See Garcia v. State, 710 S.W.3d 361, 365–66 (Tex. App.—Fort Worth 2025,
pet. ref’d) (stating that errors that result in egregious harm are those that affect the
very basis of the case, deprive the defendant of a valuable right, vitally affect a
defensive theory, or make a case for conviction clearly and significantly more
persuasive). Thus, even if we assume error, Tucker has not been egregiously harmed.
See Almanza, 686 S.W.2d at 171; Chiodo, 2007 WL 1952375, at *5; Burnett, 2003 WL
1948696, at *4. We overrule Tucker’s second issue.
IV. CONCLUSION
Having overruled both of Tucker’s issues, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: July 24, 2025