Comeaux, Mark Anthony v. State

• Court: Court of Appeals of Texas
• Decided: May 17, 2005
• Docket: 14-03-01225-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 17, 2005

Affirmed and Memorandum Opinion filed May 17, 2005.

In The

Fourteenth Court of Appeals

____________

NOS. 14-03-01223-CR

          14-03-01224-CR

          14-03-01225-CR

MARK ANTHONY COMEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 948,221; 948,222; & 962,578

M E M O R A N D U M   O P I N I O N

Appellant Mark Anthony Comeaux was indicted on three separate charges of aggravated sexual assault of a child.^[1]  A jury found him guilty of all three charges and assessed punishment for each charge at sixty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $500 fine.  The trial court sentenced appellant accordingly and denied the State=s motion to cumulate the sentences.  In two issues, appellant challenges the admission of (1) extraneous offense evidence and (2) expert testimony on common symptoms and behaviors of child sexual abuse victims.  We affirm.

I.  Factual and Procedural Background

Appellant was accused of three counts of aggravated sexual assault of his minor stepdaughter, K.S.  Two of the charges involved vaginal intercourse, and one involved oral contact.  Before trial, the State gave notice of its intent to offer extraneous offense evidence, which included appellant=s having Arequested and commanded@ J.W., a person younger than seventeen years of age, to engage in sexual intercourse with K.S. shortly before the first sexual assault alleged in the present case.  After the State completed its voir dire examination, appellant requested that the prosecutor not be permitted to question K.S. about this offense.  Appellant further objected that the prejudicial effect of the evidence outweighed its probative value.  The trial court overruled the objection and ruled the evidence would be admitted.

The next day, before the State opened, appellant objected to J.W.=s testimony on the grounds that it was being offered to show appellant=s criminal nature and its prejudicial effect outweighed its probative value.  The trial court indicated the record was clear from appellant=s earlier objection that appellant was objecting to J.W.=s testimony in its entirety and granted appellant a running objection except for matters of form.  Appellant also objected to the testimony of Lawrence Henderson, J.W.=s uncle, who would corroborate some of the details of J.W.=s account.  The trial court overruled the objection.

Henderson testified that one day in February 2003, J.W., Henderson=s fourteen-year-old nephew, was helping at Henderson=s scrap metal business.  Appellant, whom Henderson knew as the pastor of a church next to the shop, came over around 7:30 a.m. and asked whether J.W. could help appellant move some televisions at appellant=s house. According to Henderson, J.W. went with appellant and returned forty-five minutes or an hour later.

J.W. testified he knew appellant as the pastor of the church he attended.  One weekday in February 2003, when there was no school, at appellant=s request, he went to appellant=s house to help move televisions.  When they arrived at appellant=s house, about ten minutes away by car, appellant told J.W. the real reason he was there was because appellant=s stepdaughter had told him she wanted to experience sex and appellant wanted J.W. Ato be the one to do it.@  According to J.W., appellant gave him a condom and went to get K.S. from her school.^[2]  After K.S. arrived, she and J.W. eventually went upstairs to her bedroom.  They talked for a while, and J.W. told K.S. he did not want to have sexual intercourse with her.  Although J.W. could have walked away, he was scared appellant might do something to him if he did not have sexual intercourse with K.S.  J.W. testified that, after he had sexual intercourse with K.S., appellant drove him back to his uncle=s shop.  On the way back, appellant asked J.W. if he had done it.  Appellant gave J.W. $20, and told him not to tell anyone about the incident.

K.S. testified that, about a week before her thirteenth birthday, in February 2003, appellant came to her school, checked her out early, told her he had a surprise for her, and took her home.  When she arrived home, she saw J.W. there.  Because of questions appellant had asked her a week or two before, K.S. Akind of@ knew what was going to happen.  She and J.W. went upstairs to her room and talked for a while.  According to K.S., appellant came in the room at some point and said, AY=all know what y=all got to do.  Y=all better hurry up.  I don=t have all day.@  K.S. indicated she did not want to, but appellant responded if she did not, she was going to regret it.  According to K.S., after she and J.W. had sexual intercourse, appellant entered the bedroom, removed the bedcovers, pushed K.S.=s legs apart and took a photograph.^[3]  After J.W. went downstairs, appellant called K.S. into appellant=s room.  Appellant told her he wanted her to experience everything, pushed her down on the bed, and licked her between the legs.  Appellant then took J.W. back to the shop.

According to K.S., between the incident with J.W. and K.S.=s March 6, 2003 birthday, appellant had sexual intercourse with K.S. Atwo, maybe three@ times.  On March 6, appellant called K.S. into his room.  When she started crying, he told her this was her Abirthday surprise.@   He then licked her between her legs and penetrated her vagina with his penis.  K.S. also testified about another specific incident around the end of April 2003, when appellant again called her into his bedroom and licked her between her legs and penetrated her.  Although something like this would happen two or three times a week, K.S. did not say anything until shortly after the April 2003 incident, when she told her best friend and people at her school.  She did not tell her mother when this first started happening because she was scared appellant might hurt her mother or her sisters.

The State also presented testimony from Allen Glass, Dr. Sheela Lahoti, Officer Kelly Wallace, and Dr. Judy Rambur.  Glass, K.S.=s school counselor, testified about changes he observed in K.S.=s behavior from January 2003 to April 2003.  Dr. Lahoti, a University of Texas pediatrician, testified about her examination of K.S. at the Children=s Assessment Center Clinic and the injury she observed on K.S.=s hymen.  Dr. Lahoti testified, without objection, that K.S. told her, AMy dad, my stepdad, first he made me do it with this boy and then he molested me.@  Wallace, a Houston Police Department juvenile sex crimes investigator, testified briefly about the investigation of K.S.=s allegations.  Finally, over appellant=s objection, Rambur, a clinical psychologist, testified in general about the behaviors or symptoms commonly seen in sexually abused children and about sexual predators= Agrooming@ of potential victims.

Appellant testified in his own defense.  He denied paying J.W. to have sexual intercourse with K.S. and denied having any type of sexual contact with K.S.  He contended K.S. was fabricating these allegations because appellant discovered she was being tardy for class.  Appellant=s common-law wife, K.S.=s mother, also testified for the defense.  In closing, appellant=s counsel implied the injury to K.S.=s hymen was caused by the sexual intercourse with J.W., arguing J.W. was Athe only person we know that [K.S.] really had sex with . . . because [J.W.] said they had sex together.  There was no physical evidence whatsoever that [appellant] had any type of sex with [K.S.].@

II.  Issues Presented and Standard of Review

In two issues, appellant challenges the trial court=s decision to admit evidence of (1) appellant=s solicitation of a juvenile to have sexual intercourse with K.S. before the sexual abuse alleged in the present cases, and (2) expert testimony describing common symptoms and behaviors of child sexual abuse victims.  We review a trial court=s decision to admit or exclude evidence for an abuse of discretion.  Mozon v. State, 991 S.W.2d 841, 846B47 (Tex. Crim. App. 1999).  An appellate court applies this standard to the admission of other crimes evidence under Texas Code of Criminal Procedure article 38.37 and Texas Rule of Evidence 403 and to the determination of the relevance of expert testimony under Texas Rule of Evidence 702.  See Jones v. State, 119 S.W.3d 412, 420B22 (Tex. App.CFort Worth 2003, no pet.) (applying abuse-of-discretion standard in determining admissibility under Article 38.37 and Texas Rule of Evidence 403); Trimboli v. State, 817 S.W.2d 785, 792 (Tex. App.CWaco 1991) (holding, under relevancy test of Texas Rules of Evidence 401, 402, and 702, no abuse of discretion in denying motion to exclude expert testimony), aff=d, 826 S.W.2d 953 (Tex. Crim. App. 1992); see also Kelly v. State, 824 S.W.2d 568, 575 n.2 (Tex. Crim. App. 1992) (Clinton, J., concurring) (stating whether proffered evidence of specialized knowledge will add to the jury=s comprehension is a matter of trial court=s discretion).

In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules and principlesCthat is, whether the court acted arbitrarily or unreasonably.  Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).  We must uphold the trial court=s ruling so long as it is Awithin the zone of reasonable disagreement.@  Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

                                                                III.  Analysis

A.        Did the trial court err in admitting evidence regarding appellant=s solicitation of a juvenile to engage in sexual intercourse with K.S.?

In his first issue, appellant contends the trial court Areversibly erred@ when it admitted evidence that appellant had committed the extraneous offense of criminal solicitation of a minor by allegedly instigating an aggravated sexual assault of K.S. by J.W. before appellant committed the offenses for which he was on trial.^[4]  Appellant contends the evidence was inadmissible under Texas Rule of Evidence 404(b).

                 Admissibility Under Texas Code of Criminal Procedure Article 38.37

The offenses in these cases were sexual assaults against a victim under seventeen years of age.  For such cases, Texas Code of Criminal Procedure article 38.37 provides:

Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1)       the state of mind of the defendant and the child;  and

(2)       the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, sec. 2 (Vernon 2005).  In cases in which it applies, this provision supersedes Texas Rule of Evidence 404.  See DeLeon v. State, 77 S.W.3d 300, 311 n.5 (Tex. App.CAustin 2001, pet. ref=d); Hinds v. State, 970 S.W.2d 33, 35 (Tex. App.CDallas 1998, no pet.).^[5]

In the present case, there was evidence K.S. bled when she had sexual intercourse with J.W., but did not bleed after that time, thus suggesting K.S. was sexually inexperienced before the incidents with J.W. and appellant.  Appellant photographed K.S. immediately after K.S. had sexual intercourse with J.W. and did not begin abusing K.S. until after that encounter.

The State argued to the jury that appellant arranged for J.W. to have sexual intercourse with K.S. because appellant planned to be having sex with her and A[h]e needed to have something to protect him so that if there was medical evidence, like there was, he=d have somebody to blame it on.@  The trial court instructed the jury they could use any evidence of appellant=s Acommitting other crimes, wrongs, or acts against the child who is the victim of the alleged offense . . . only . . . in determining its bearing on relevant matters, including:  (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child, and for no other purpose.@

The present case compares more than favorably with two cases in which appellate courts upheld the admission of extraneous offense evidence.  In Jones v. State, the defendant was charged with indecency with a child based on his having touched her in her vaginal area. 119 S.W.3d at 416B17.  During its case in chief, the State introduced evidence which included the defendant=s having (1) previously paid money to the victim and other underage girls to remove part or all of their swimsuits, (2) provided alcohol to the victim and other underage girls, (3) offered underage girls money to run naked down the beach, and (4) attempted to untie the swimsuits of the victim and her friends.  Id. at 417.  The State contended the evidence was admissible under article 38.37 because it had a bearing on relevant matters, including the defendant=s and the victim=s states of mind and the previous relationship between them.  Id. at 420.  The defendant agreed the evidence showing his conduct with the victim was relevant; but he disputed, under article 38.37, the relevance of the evidence of his conduct with the other girls.  Id.  He contended these acts had very little, if any, relevance regarding whether he was indecent with the victim of the charged offense and only tended to establish he acted in conformity with his bad character.  Id.  The appellate court disagreed, reasoning:

Here, it would have been extremely difficult for the girls who testified to separate [the defendant=s] actions toward [the victim of the charged offense] from his actions toward them because his actions and words were directed at all the girls simultaneously.  Even if the girls could have somehow distinguished [the defendant=s] conduct toward the group from [the defendant=s] conduct specifically toward [the victim], this distinction would have given the jury an inaccurate picture of [the defendant=s] relationship with [the victim].  Accord Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (indicating jury is entitled to know all relevant surrounding facts and circumstances of charged offense).  [The defendant=s] prior relationship with [the victim] was developed through group activities that included [the other girls].  Their testimony was relevant to give an accurate picture of [the defendant=s] prior relationship with [the victim].  Moreover, the trial court=s charge instructed the jury that it could consider these acts only in determining the state of mind of [the defendant] and [the victim] and the previous or subsequent relationship between [the defendant] and [the victim].  We hold that the trial court did not abuse its discretion by determining that the extraneous offenses involving [the victim] were relevant under article 38.37 to prove the charged offense.

Id.

Just as the defendant in Jones developed a prior relationship with the victim through activities that included other parties, appellant developed his prior relationship with K.S. through an activity involving a third party, i.e., by soliciting J.W. to have sexual intercourse with K.S.  The testimony about the incident with J.W. was relevant to give an accurate picture of appellant=s prior relationship with K.S.  And, as in Jones, the trial court instructed the jury that it could use evidence of appellant=s having other crimes or bad acts against the victim only in determining state of mind and the previous or subsequent relationship between appellant and K.S.

In McCulloch v. State, the defendant was charged with the aggravated sexual assault of his eight-year-old stepdaughter.  39 S.W.3d 678, 679 (Tex. App.CBeaumont 2001, pet. ref=d).  Pursuant to article 38.37, the State offered evidence of other sexual assaults the defendant allegedly committed against his stepdaughter both before and after the charged assault.  Id. at 680.  According to the stepdaughter, the defendant would take her into her bedroom on the pretense of disciplining her, and while there, sexually assault her.  He would then talk to her or spank her to make her cry so her mother would think he was disciplining her.  Id.  The defendant told his stepdaughter any disclosure would hurt her mother and her brothers and would break up the family.  Id.  On appeal, the defendant argued the testimony was not relevant under article 38.37.  The appellate court disagreed, explaining:

The testimony concerning the prior and subsequent Aacts@ is relevant to [the stepdaughter]=s and [the defendant]=s state of mind.  [The stepdaughter]=s account of the Aacts@ reveals [the defendant]=s dominance over her and her fear of him.  The evidence also shows [the defendant]=s Anecessary intent and ability@ to commit the offense and further demonstrates that [the stepdaughter] was Acompelled to acquiesce.@  See Poole v. State, 974 S.W.2d 892, 898 (Tex. App.CAustin 1998, pet. ref=d).  The prior and subsequent Aacts@ reveal the nature of their relationship both before and after the charged offense.  See Ernst v. State, 971 S.W.2d 698, 700B701 (Tex. App.CAustin 1998, no pet.).  In the absence of evidence of how the step‑father misused his position of authority as the disciplinarian in the family to create an unnatural relationship, the jury may have been led to believe it Aillogical and implausible@ that the charged act could have occurred.  Id. (quoting Johns v. State, 155 Tex. Crim. 503, 236 S.W.2d 820, 823 (1951)).  The evidence not only explained how the step‑father was able to commit the assault without being apprehended for nine years, an issue in dispute at trial, but it also explained to the jury that the single charged offense simply did not occur in an otherwise healthy relationship.  If the jurors were not told of the pattern of sexual assault, they may well have been persuaded that the absence of such evidence was proof that the one assault did not occur in this step‑father and child relationship.  Whether the jury believed the evidence we do not know;  but we cannot say the evidence was irrelevant under article 38.37 to the charged offense.

Id. at 681.

As in McCulloch, the evidence of the J.W. incident showed appellant=s necessary intent and ability to commit the charged offenses.  Evidence of the J.W. incident showed how K.S. was gradually compelled to acquiesce in appellant=s sexual assault of her.  Finally, evidence of the J.W. incident showed the charged offenses did not occur in an otherwise healthy relationship.  Just as the Aacts@ evidence was admissible under article 38.37 in McCulloch, it was admissible under article 38.37 in the present case.

Probative Value in Relation to Potential for Unfair Prejudice

Appellant also contends, as he did in the trial court, that the evidence was inadmissible under Texas Rule of Evidence 403 because the danger of unfair prejudice substantially outweighed the evidence=s probative value.  See Tex. R. Evid. 403.  When evidence of a defendant=s extraneous acts is relevant under article 38.37, the trial court is still required to conduct a Rule 403 balancing test if the defendant makes a proper objection.  Poole v. State, 974 S.W.2d 892, 897 (Tex. App.CAustin 1998, no pet.).^[6]

Because Rule 403 favors admissibility of relevant evidence, the presumption is that relevant evidence will be more probative than prejudicial.  See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh=g).  The Court of Criminal Appeals has listed the following factors for a trial court to consider in conducting a Rule 403 balancing test: 

(1)       the probative value of the evidence;

(2)       the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way;

(3)       the time the proponent needs to develop the evidence; and

(4)       the proponent=s need for the evidence. 

McCulloch, 39 S.W.3d at 681 (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)); see also Jones, 119 S.W.3d at 422 (citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)).

As discussed above, the J.W. incident was probative because it demonstrated the relationship between K.S. and appellant and provided a context for the jury to understand how appellant led up to compelling K.S. to acquiesce in his sexual assaults of her.  The incident showed that, by arranging for K.S. to lose her virginity with J.W., appellant could subsequently violate K.S. more easily, both mentally and physically, and would have an explanation for her sexual injury.  Moreover, the strength of the evidence connecting appellant with the J.W. incident is a consideration supporting the probative value of the evidence.  See Jones, 119 S.W.3d at 423.

Although the incident with J.W. undoubtedly carried some emotional weight, it was different from, and less heinous than, appellant=s repeated sexual assaults of K.S.  The incident, therefore, was not likely to create such prejudice in the minds of the jurors that they would have been unable to limit their consideration of the evidence to its proper purpose.  See Jones, 119 S.W.3d at 423 (citing Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996)).  In addition, the trial court gave a limiting instruction, and such an instruction minimized any impermissible inference of character conformity.  See Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).

The amount of time devoted to the J.W. incident weighs to some extent against its introduction.  The State required the testimony of three witnessesCHenderson, J.W., and K.S.Cto develop the incident.  Nevertheless, most of this testimony described the events leading up to and following the act of sexual intercourse itself.  Given the other factors weighing in favor of admissibility, this factor is not dispositive.

Finally, the State needed the evidence.  Appellant denied having any type of sexual contact with K.S. and contended K.S. was fabricating the allegations against him because appellant discovered K.S. was being tardy for class.  Appellant was K.S.=s stepfather.  Whether the offense was believable depended, in part, on the context of the offense in the relationship between appellant and K.S.  See McCulloch, 39 S.W.3d at 682.

We conclude the trial court did not abuse its discretion in admitting evidence of appellant=s having solicited J.W. to have sexual intercourse with K.S.  We overrule appellant=s first issue.

B.        Did the trial court abuse its discretion by admitting Dr. Judy Rambur=s expert testimony on the common symptoms and behaviors of child sexual abuse victims?

In his second issue, appellant contends the trial court Areversibly erred@ by admitting Dr. Judy Rambur=s testimony on the common symptoms and behaviors exhibited by child victims of sexual abuse.  Appellant contends the evidence was not admissible under Texas Rule of Evidence 702, regarding expert testimony, because Dr. Rambur did not tie pertinent facts of the case to the scientific or expert principles that were the subject of her testimony.  Appellant contends the expert opinion did not sufficiently Afit@ the facts of the case.

To preserve error, the complaint on appeal must comport with the objection lodged in the trial court.  Long v. State, 130 S.W.3d 419, 429 (Tex. AppCHouston [14th Dist.] 2004, no pet.); see Tex. R. App. P. 33.1(a).  Appellant=s objection in the trial court consisted of the following: 

AI=d say it=s irrelevant.  This doctor has never treated or consoled or counseled the victim in this case, [K.S.].  She=s not a treating physician of hers.  It will all be hearsay, whatever she=s going to say.  It=s not relevant to any part of the guilt/innocence of this case.@

Lack of relevance based on the expert=s not having examined the victim is not the same as lack of relevance based on a lack of a sufficient Afit@ with the facts of the case.  Assuming, however, appellant=s objection was sufficient to apprise the trial court and the State of the nature of appellant=s complaint^[7], appellant still does not prevail on the merits of his complaint.

Texas Rule of Evidence 702 provides: AIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.@  Tex. R. Evid. 702.  Evidence admissible under Rule 702 may include testimony comparing general or classic behavioral characteristics of a certain type of victim with the specific victim=s behavior patterns.  Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.CSan Antonio 1997, no pet.) (citing Fielder v. State, 756 S.W.2d 309, 321 (Tex. Crim. App. 1988)).

The Court of Criminal Appeals has indicated the preferred practice is Anot to have a non‑diagnostic expert personally examine an alleged child abuse victim, lest [her] testimony become tainted by personal reference to the credibility of the child victim=s claims.@  Duckett, 797 S.W.2d at 906 n.18; see also Perez v. State, 113 S.W.3d 819, 831B35 (Tex. App.CAustin 2003, pet. ref=d) (upholding admission of testimony from non-examining expert under Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999)).  Nevertheless, for the expert=s testimony to be relevant, the testimony must be A>sufficiently tied to the facts to meet the simple requirement that it be Ahelpful@ to the jury.=@  Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000) (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)).

In the present case, Dr. Rambur testified she never examined K.S. and had no personal knowledge of her.  Dr. Rambur discussed Agrooming@ and explained that children may not question authority figures when asked to do something of a sexual nature.  She indicated that withdrawal from family and friends may occur after sexual abuse and that a sexually abused child may experience shame, guilt, and ambivalence toward the perpetrator.  According to Dr. Rambur, children are not likely to disclose right after the abuse has occurred,  and a child=s feeling she will not be believed may be a factor in whether the child feels she can disclose the abuse.  Increases in sleep and eating problems and nightmares are common.

K.S. testified she Ahad sex@ with J.W. at appellant=s instruction even though she did not want to do so.  Although appellant began sexually abusing K.S. in late February or early March 2003, and sometimes abused her two or three times a week, K.S. did not disclose the abuse until the end of April 2003.  From January 2003 to April 2003, K.S.=s school counselor noticed a marked change in K.S.=s behavior, including avoidance, which was unusual because K.S. was very outgoing.  K.S. testified she always had Aan attitude@ toward appellant, but it got worse after the sexual abuse.  She testified that, sometimes at night, she would dream about the sexual abuse or just be awake thinking about it.

Dr. Rambur=s testimony was tied to the facts of the case.  The trial court did not abuse its discretion in admitting this testimony.  We overrule appellant=s second issue.

Having overruled appellant=s two issues, we affirm the judgment of the trial court.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 17, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In trial court cause number 948,221, appellant was charged with penetrating K.S.=s sexual organ with his sexual organ on March 6, 2003; in trial court cause number 962,578, appellant was charged with causing K.S.=s sexual organ to contact his mouth on March 6, 2003; and in trial court cause number 948,222, appellant was charged with penetrating K.S.=s sexual organ with his sexual organ on April 23, 2003.

^[2]  J.W. and K.S. did not attend the same school.  J.W. thought he did not have school that day because of a teacher preparation day.

^[3]  The photograph was never found.  J.W. testified appellant never came into the room to see whether they had Adone it.@

^[4]  The State contends appellant waived this point because, although the trial court overruled his objections to K.S.=s and Henderson=s testimony, the trial court did not rule on appellant=s objection to J.W.=s testimony regarding the same incident.  In support, the State cites Texas Rule of Appellate Procedure 33.1(a) (1) and (2).  Under that rule, error is preserved if the trial court rules on the objection Aeither expressly or implicitly.@  Tex. R. App. P. 33.1(a)(2)(A).  The record is clear that, in permitting J.W.=s testimony, the trial court implicitly overruled appellant=s objection.

^[5]  AOn timely request by the defendant, the state shall give the defendant notice of the state=s intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence.@  Tex. Code Crim. Proc. Ann. art. 38.37, sec. 3 (Vernon 2005).  In its notice of intent to use extraneous offense evidence, the State did not refer to Texas Code of Criminal Procedure article 38.37, but did refer to Texas Rule of Evidence 404.  See McCoy v. State, 10 S.W.3d 50, 53B54 (Tex. App.CAmarillo 1999, no pet.) (observing defendant made no request for notice of extraneous offense evidence under article 38.37, and no notice given by the State specified notice was given to comply with article 38.37, but further observing the State did give notice of intent to use evidence of other acts in response to a Rule 404(b) request).  Appellant does not complain of the adequacy of the State=s notice.

^[6]  In a sentence appellant complains Athere is nothing in the record to indicate that the trial court engaged in the required balancing of the probativeness and prejudice of the extraneous offense under Rule 403.@  The trial court heard appellant=s Rule 403 objection and ruled the evidence was admissible.  In overruling appellant=s objection, the trial court is assumed to have applied a Rule 403 balancing test and determined the evidence was admissible.  Hinojosa v. State, 995 S.W.2d 955, 957 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

^[7]  See Ex parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994) (stating objection may be phrased in any manner which sufficiently apprises trial court and opposing counsel of nature of the complaint).