In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-21-00074-CR
DEMARCUS DEWAYNE LATIMORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F1384-102
Before Morriss, C.J., Stevens and Carter,* JJ. Memorandum Opinion by Chief Justice Morriss
______________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION
Following his conviction by a jury of indecency with a child by sexual contact, Demarcus
Dewayne Latimore was sentenced to five years’ confinement.1 On appeal, Latimore claims that
the trial court erred in admitting extraneous-offense evidence under Rule 403 and that this Court
should modify the judgment to reflect a plea of “not guilty” instead of “guilty.” Although we
modify the judgment to reflect Latimore’s “not guilty” plea, we find no error in the admission of
the complained-of evidence and therefore affirm Latimore’s conviction.
The Trial Court Did Not Abuse Its Discretion by Admitting Extraneous-Offense Evidence
The evidence at trial showed that Latimore engaged in indecent sexual contact with P.B.2
when she was a child. At trial, P.B. was fifteen years old. P.B. lived with her mother and
Latimore in approximately 2015 when she attended a local elementary school. P.B. testified that
she awakened one morning to discover that Latimore was touching her as she laid on her back in
bed. Latimore was bending over P.B. as he touched her vagina under her clothes. P.B. testified
that Latimore also touched inside her vagina. When P.B. moved, Latimore ran out of the room.
P.B. testified that Latimore touched her vagina on the inside a second time a couple of months
later. P.B. was eleven or twelve years old on both occasions. A couple of years later, P.B. told
her aunt about Latimore’s assaultive behavior.
1 The indictment returned against Latimore charged him with sexual assault of a child. Although the jury found Latimore not guilty of sexual assault of a child as charged in the indictment, it found him guilty of indecency with a child by sexual contact. 2 Because various individuals were minors at the time the offense was committed, we refer to them by initials. See TEX. R. APP. P. 9.10. 2 The extraneous-offense evidence in question involved D.C., who was twenty-two years
old at trial. D.C. testified that she met Latimore when she was in the eighth grade. At some
point while she was still in school, D.C. lived with Latimore and her sister, L.B. According to
D.C., Latimore dated L.B. for a long time, and L.B. put Latimore before her family. When D.C.
was sixteen, she was staying with L.B., her niece P.B., and Latimore in Texarkana, Arkansas.
D.C. shared a room with P.B. As D.C. was lying in bed one night, she felt someone rub her leg.
D.C. testified that she was sleeping in the same bed with P.B. and thought P.B. had rubbed
against her. Then D.C. noticed the rubbing—as she described it—start again. That time D.C.
woke up to discover Latimore’s hand moving up her leg close to her sexual organ. When D.C.
woke up, Latimore left the room.
Latimore complains that the trial court erred in admitting D.C.’s testimony over his Rule
403 objection,3 claiming that D.C.’s testimony lacked probative value and was highly prejudicial.
See TEX. R. EVID. 403.
We review rulings on the admissibility of extraneous offenses for an abuse of discretion.
Bradshaw v. State, 466 S.W.3d 875, 878 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). There is no abuse of discretion if
the trial court’s ruling is within the “zone of reasonable disagreement.” Id. (quoting Marsh v.
State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref’d)). If the record supports the
3 The trial court conducted an Article 38.37 hearing outside the presence of the jury at which D.C. offered the same testimony as she did at trial. Latimore objected on the basis of Rule 403 on both occasions. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (Supp.); TEX. R. EVID. 403. 3 ruling, the trial court has not abused its discretion and will not be reversed. Id. (quoting Marsh,
343 S.W.3d at 478).
Evidence of prior sexual assaults may be admitted “for any bearing the evidence has on
relevant matters, including the character of the defendant and acts performed in conformity with
the character of the defendant.” Bradshaw, 466 S.W.3d at 882 (quoting TEX. CODE CRIM. PROC.
ANN. art. 38.37, § 2(b)). This rule of admission is constrained by a balancing test under Rule
403, asking whether the probative value of the evidence is substantially outweighed by its
potential for unfair prejudice. Id. (citing TEX. R. EVID. 403). “The 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. Under Rule 403, the trial court
must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The amendments to
Article 38.37 of the Texas Code of Criminal Procedure were intended “to remove the propensity
bar to the admissibility of certain evidence.” Bradshaw, 466 S.W.3d at 882.
The charged offense involves a claim that Latimore sexually assaulted P.B. when P.B.
was asleep in her room when she was eleven or twelve years old. When P.B. moved, Latimore
ran out of the room. That conduct took place when P.B. lived with Latimore and L.B., P.B.’s 4 mother, in 2015. D.C. described similar conduct by Latimore that took place while D.C. was
living with Latimore, L.B., and P.B. D.C. testified that Latimore entered her room while she was
sleeping and placed his hand on her thigh, close to her sexual organ. When D.C. woke up,
Latimore left the room.
D.C.’s testimony is clearly probative as it describes circumstances similar to the assaults
described by P.B. Latimore nevertheless claims that this evidence is unfairly prejudicial “for the
very reason the statute—and the documented legislative history—allows for its admissibility.”
Id. at 883. As in Bradshaw, Latimore claims that this is propensity evidence and therefore
should be excluded. As we recognized in Bradshaw, “The statute recognizes that evidence of
this type is, by definition, propensity, or character evidence. It is admissible notwithstanding
those characteristics” if it survives the balancing test. Id.
Although D.C.’s testimony was prejudicial to Latimore’s case, “the plain language of
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-21-00074-CR
DEMARCUS DEWAYNE LATIMORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F1384-102
Before Morriss, C.J., Stevens and Carter,* JJ. Memorandum Opinion by Chief Justice Morriss
______________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION
Following his conviction by a jury of indecency with a child by sexual contact, Demarcus
Dewayne Latimore was sentenced to five years’ confinement.1 On appeal, Latimore claims that
the trial court erred in admitting extraneous-offense evidence under Rule 403 and that this Court
should modify the judgment to reflect a plea of “not guilty” instead of “guilty.” Although we
modify the judgment to reflect Latimore’s “not guilty” plea, we find no error in the admission of
the complained-of evidence and therefore affirm Latimore’s conviction.
The Trial Court Did Not Abuse Its Discretion by Admitting Extraneous-Offense Evidence
The evidence at trial showed that Latimore engaged in indecent sexual contact with P.B.2
when she was a child. At trial, P.B. was fifteen years old. P.B. lived with her mother and
Latimore in approximately 2015 when she attended a local elementary school. P.B. testified that
she awakened one morning to discover that Latimore was touching her as she laid on her back in
bed. Latimore was bending over P.B. as he touched her vagina under her clothes. P.B. testified
that Latimore also touched inside her vagina. When P.B. moved, Latimore ran out of the room.
P.B. testified that Latimore touched her vagina on the inside a second time a couple of months
later. P.B. was eleven or twelve years old on both occasions. A couple of years later, P.B. told
her aunt about Latimore’s assaultive behavior.
1 The indictment returned against Latimore charged him with sexual assault of a child. Although the jury found Latimore not guilty of sexual assault of a child as charged in the indictment, it found him guilty of indecency with a child by sexual contact. 2 Because various individuals were minors at the time the offense was committed, we refer to them by initials. See TEX. R. APP. P. 9.10. 2 The extraneous-offense evidence in question involved D.C., who was twenty-two years
old at trial. D.C. testified that she met Latimore when she was in the eighth grade. At some
point while she was still in school, D.C. lived with Latimore and her sister, L.B. According to
D.C., Latimore dated L.B. for a long time, and L.B. put Latimore before her family. When D.C.
was sixteen, she was staying with L.B., her niece P.B., and Latimore in Texarkana, Arkansas.
D.C. shared a room with P.B. As D.C. was lying in bed one night, she felt someone rub her leg.
D.C. testified that she was sleeping in the same bed with P.B. and thought P.B. had rubbed
against her. Then D.C. noticed the rubbing—as she described it—start again. That time D.C.
woke up to discover Latimore’s hand moving up her leg close to her sexual organ. When D.C.
woke up, Latimore left the room.
Latimore complains that the trial court erred in admitting D.C.’s testimony over his Rule
403 objection,3 claiming that D.C.’s testimony lacked probative value and was highly prejudicial.
See TEX. R. EVID. 403.
We review rulings on the admissibility of extraneous offenses for an abuse of discretion.
Bradshaw v. State, 466 S.W.3d 875, 878 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). There is no abuse of discretion if
the trial court’s ruling is within the “zone of reasonable disagreement.” Id. (quoting Marsh v.
State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref’d)). If the record supports the
3 The trial court conducted an Article 38.37 hearing outside the presence of the jury at which D.C. offered the same testimony as she did at trial. Latimore objected on the basis of Rule 403 on both occasions. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (Supp.); TEX. R. EVID. 403. 3 ruling, the trial court has not abused its discretion and will not be reversed. Id. (quoting Marsh,
343 S.W.3d at 478).
Evidence of prior sexual assaults may be admitted “for any bearing the evidence has on
relevant matters, including the character of the defendant and acts performed in conformity with
the character of the defendant.” Bradshaw, 466 S.W.3d at 882 (quoting TEX. CODE CRIM. PROC.
ANN. art. 38.37, § 2(b)). This rule of admission is constrained by a balancing test under Rule
403, asking whether the probative value of the evidence is substantially outweighed by its
potential for unfair prejudice. Id. (citing TEX. R. EVID. 403). “The 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. Under Rule 403, the trial court
must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The amendments to
Article 38.37 of the Texas Code of Criminal Procedure were intended “to remove the propensity
bar to the admissibility of certain evidence.” Bradshaw, 466 S.W.3d at 882.
The charged offense involves a claim that Latimore sexually assaulted P.B. when P.B.
was asleep in her room when she was eleven or twelve years old. When P.B. moved, Latimore
ran out of the room. That conduct took place when P.B. lived with Latimore and L.B., P.B.’s 4 mother, in 2015. D.C. described similar conduct by Latimore that took place while D.C. was
living with Latimore, L.B., and P.B. D.C. testified that Latimore entered her room while she was
sleeping and placed his hand on her thigh, close to her sexual organ. When D.C. woke up,
Latimore left the room.
D.C.’s testimony is clearly probative as it describes circumstances similar to the assaults
described by P.B. Latimore nevertheless claims that this evidence is unfairly prejudicial “for the
very reason the statute—and the documented legislative history—allows for its admissibility.”
Id. at 883. As in Bradshaw, Latimore claims that this is propensity evidence and therefore
should be excluded. As we recognized in Bradshaw, “The statute recognizes that evidence of
this type is, by definition, propensity, or character evidence. It is admissible notwithstanding
those characteristics” if it survives the balancing test. Id.
Although D.C.’s testimony was prejudicial to Latimore’s case, “the plain language of
Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence
is merely prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). We also
recognize that this evidence was important to the State in light of the fact that this case presented
a “he said, she said” scenario. Because sexual assault cases frequently present such scenarios,
“Rule 403 should be used sparingly to exclude relevant, otherwise admissible evidence that
might bear on the credibility of either the defendant or complainant in such ‘he said, she said’
cases.” Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009).
As for the tendency of D.C.’s testimony to confuse or distract the jury from the main
issue at trial—whether Latimore sexually assaulted P.B.—the trial court’s instructions mitigated
5 against any such tendency. The trial court’s instructions to the jury provided that it could not
consider D.C.’s testimony regarding the extraneous offense unless it found, beyond a reasonable
doubt, that Latimore committed the extraneous offense. Even in that circumstance, the jury was
instructed only to consider the evidence for its bearing on matters relevant to determining
whether Latimore committed the acts alleged in the indictment.4
Finally, the record reflects that the presentation of D.C.’s testimony regarding the
extraneous offense did not consume an inordinate amount of time and was not repetitive of other
testimony. Such testimony comprised less than fifteen pages of the record of a trial that lasted
two days.
Considering the foregoing, we conclude that the trial court acted within its discretion in
concluding that the probative value of the extraneous-offense evidence was not substantially
outweighed by the danger of unfair prejudice and the other factors in the rule. We overrule this
point of error.
Modification of the Judgment
Despite the fact that Latimore pled not guilty to the charge leveled against him in the
indictment, the judgment indicates that Latimore pled guilty. Latimore therefore asks that we
modify the judgment to reflect his plea of “not guilty.” The State agrees that the judgment
should be so modified. “We have the authority to reform the judgment to make the record speak
the truth when the matter has been called to our attention by any source.” Rhoten v. State, 299
4 The fifth Gigliobianco factor “refers to evidence such as highly technical or scientific evidence that might mislead the jury because it is not equipped to weigh the probative force of the evidence” and thus does not apply here. Price v. State, 594 S.W.3d 674, 681 (Tex. App.—Texarkana 2019, no pet.) (citing Gigliobianco, 201 S.W.3d at 641). 6 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.) (citing French v. State, 830 S.W.2d 607,
609 (Tex. Crim. App. 1992)). “Our authority to reform incorrect judgments is not dependent on
the request of any party, nor does it turn on a question of whether a party has or has not objected
in trial court; we may act sua sponte and may have a duty to do so.” Id.; Asberry v. State, 813
S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d); French, 830 S.W.2d at 609. “The Texas
Rules of Appellate Procedure also provide direct authority for this Court to modify the trial
court’s judgment.” Id. (citing TEX. R. APP. P. 43.2).
The judgment incorrectly indicates that Latimore pled “guilty” to the alleged offense,
while the record is clear that Latimore pled “not guilty.” As a result, we modify the judgment to
reflect Latimore’s plea of “not guilty” to the charged offense.
We affirm the trial court’s judgment, as modified.
Josh R. Morriss, III Chief Justice
Date Submitted: February 24, 2022 Date Decided: March 17, 2022
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