Opinion
03-23-00296-CR
05-23-2024
Lance Derias Hansen, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR2021-278, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING.
Before Byrne, Chief Justice, Smith and Theofanis, Justices.
MEMORANDUM OPINION
Rosa Lopez Theofanis, Justice.
Appellant Lance Derias Hansen was convicted by a jury of continuous sexual abuse of a young child and sentenced by the trial court to life imprisonment. See Tex. Penal Code § 21.02(b). In a single issue, which we treat as three substantively distinct issues, Hansen contends that the trial court abused its discretion by admitting testimony concerning two extraneous offenses under article 38.37 of the Texas Code of Criminal Procedure because (1) the State did not provide adequate notice for one of the offenses, (2) the danger of unfair prejudice substantially outweighed the testimony's probative value, and (3) the State failed to prove beyond a reasonable doubt that Hansen committed the offenses. See Tex. Code Crim. Proc. art. 38.37, §§ 1(b) (where defendant is charged with child sexual offense, allowing admission of evidence that defendant has committed other such offenses "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"), 3 (requiring State to give defendant notice of its intent to introduce extraneous offenses under article 38.37 at least 30 days before trial); Tex. R. Evid. 403 (allowing trial court to exclude relevant evidence if its "probative value is substantially outweighed by a danger of . . . unfair prejudice"). We affirm the trial court's judgment of conviction.
BACKGROUND
Lulu Jane, who was 14 years old at the time of trial, testified about multiple occasions on which Hansen abused her in 2017, when she was approximately eight or nine years old. From time to time, Jane's mother (Mother) would drop her off at Jane's grandmother's (Grandmother) property in Bracken, Texas, for a night or weekend. The property consisted of three residences: a "main house," in which Grandmother lived and Jane would stay, and two apartments in a converted garage. Jane's aunt (Aunt) and Aunt's boyfriend, Hansen, lived in one of the apartments.
Because Jane was a minor at the time of the offenses, we will refer to her by a pseudonym in the interest of privacy. See Tex. R. App. P. 9.10(a)(3).
When Jane stayed with Grandmother, Hansen would come over and ask if Jane wanted to play computer games in his gaming room. The first few times, he set up the games for Jane and left. She had a "good time" and played until she got bored. One morning, however, she was sitting in a chair playing when she suddenly felt "cold hands" come from behind, go inside of her pajama pants and underwear, and touch "inside of [her] vagina." The touching stopped when she left the room. She "didn't think much of it, again, because [she] was a child."
Jane testified regarding four other instances on which Hansen variously told her to undress, touched "[a]round" her vagina, showed her a pornographic video, masturbated in front of her, made her perform oral sex on him, and performed oral sex on her. On at least three occasions, she told him no, to stop, or that she did not want to undress; he replied that "it's going to be fine"; told her, "[Y]ou like this so stop acting like you don't"; and, when she tried to get away, "tugged onto her wrist really hard" and was "holding [her] there." Once, he told her "not to tell anyone or else something bad was going to happen to [her]." She did not remember how many times she was abused, but there were "[a]t least three times, or four." Aunt was not present most of the time, and Hansen had a monitor that displayed feed from a camera overlooking the driveway to "make sure that Aunt []wouldn't come."
In late November 2018, when Jane was nine years old, she told Mother what Hansen had done. Jane had waited to disclose the abuse because she feared that, if she told someone, Hansen would rape her and take away the computer games. She finally told Mother because it was "haunting" her, and she "got tired of living with it." Mother testified that Jane cried, told her that Hansen had "touched her down there" at his apartment, clarified that he had touched her "inside," and demonstrated her meaning by putting her hands in her pants. Mother gave her a week to consider the consequences of going to the police but eventually took her for a forensic interview and sexual assault forensic examination (SAFE).
Mother testified about Jane's mental state, living situation, and outcry as well as a dispute between Mother and Hansen. Jane is developmentally delayed and suffers from a "nervous condition." In 2015, she was diagnosed with ADHD, ADD, and Oppositional Defiant Disorder (ODD). She had been in special education since kindergarten, and when she was nine or ten, she was "probably almost three years behind [other children] sometimes in certain things." At the time of trial, she still had trouble with money, tying her shoes, social situations, and finding the right words to use.
In 2017, Jane's parents would leave her with Grandmother when they went to a concert or when Jane's father (Father), who was a musician, had a gig. Jane stayed with Grandmother "[m]aybe twice a month" for a period of several months. Mother identified four specific dates on which Jane spent the night at the Bracken property.
At some point in 2017, Hansen bought Jane a video game for her phone. He later told Mother that Jane had purchased "a whole bunch of games" on his account and that Mother owed him money in reimbursement. Mother testified that, at the time, Jane would not have been capable of purchasing items online; by the trial, she still had not done so and "probably wouldn't know how to do it."
Janie Mott, a sexual assault nurse examiner (SANE), performed a SAFE on Jane on January 9, 2019-when Jane was 10 years old. Jane was brought to the exam by Mother, and both provided histories to Mott. Asked why she was there, Jane answered, "You need to make sure that [Hansen] did not do any damage to me." Referring to her vagina as her "coo-coo" and a penis as a "weenie," she explained that he had made her watch pornographic videos, put his hands and mouth on her vagina, made her perform oral sex on him, and touched her inappropriately. Hansen threatened that she "better not tell anyone" and that he would hurt her, abuse her further, or not allow her to play games on his computer if she told anyone about the abuse. She "did not tell anyone for a long time, but then [she] told [her] momma."
The history provided by Mother corroborated Jane's. Mother stated that two months before the SAFE, Jane had come to her and, crying, said that Hansen touched Jane's vagina under her underwear. After a week to "think about what happened," Jane told Mother that she wanted to see him punished for what he did and for Mother to tell the police.
Mott testified that she did not note anything unusual about Jane's vagina, which "[a]bsolutely" did not mean that the abuse did not happen; that delayed outcries are common in child sexual abuse cases; that most children only outcry when they feel safe; and that grooming "is when a person does extra favors and extra things for a child," including "allowing them special time to play video games."
Garden Ridge Police Department Detective Keith Osborn testified about his investigation in the case, which he inherited from a colleague in 2019. The colleague had met with Mother, arranged Jane's SAFE and forensic interview, and obtained medical records from the family. Although Osborn believed that too much time had passed to obtain a search warrant for Hansen's computer, he considered the case to be old but "viable." Osborn testified that Jane's demeanor during the forensic interview was age-appropriate, that he saw evidence of grooming, that Hansen was nonresponsive or evasive when asked to discuss Jane's allegations, that he continued to be unforthcoming after his arrest, and that Osborn had no concerns that Jane's allegations were fabricated.
Following a hearing at which the trial court determined that their testimony was admissible, Charlotte Lee and Amy Jones testified about incidents in which they were assaulted by Hansen. He assaulted Lee, his half-sister, around 1988 at their house in Michigan, when she was 11 years old, and he was approximately 16. He was a "bully," and they did not get along. When their mother was not home, she would leave him in charge of Lee.
We will refer to Lee and Jones using pseudonyms in the interest of privacy. See id.
On one such occasion, Lee was naked in the bathtub, and Hansen came into the bathroom and refused to leave when asked. She got out of the tub and wrapped herself in a towel. He said that he had something to show her in his bedroom, and she went in to "keep the peace." When she entered, he "got [her] down on the bed and he penetrated . . . [her] vagina." She was able to flee downstairs, but he followed and "tried to get [her] to perform oral sex on him." She was sitting on the couch, and he grabbed her wrists, laid down, inserted his penis into her mouth, and held the back of her head. The assault lasted a couple of minutes and stopped when she refused to "suck it" and fought. She tried to escape, but he got on top of her and attempted to vaginally penetrate her with his penis. She managed to get away and ran out of the house, still wearing the towel. He caught up to her, forced her against a fence, and told her that "he wouldn't do it again, that [she] needed to come back to the house." Because she had nowhere else to go, she complied. When she finally told their mother three or four years later what Hansen had done, she replied "[t]hat boys will be boys and that her cousins did it to her and she turned out okay." Lee first reported the assault to police in 2010 or 2011.
Jones, whose sister dated and lived with Hansen in 2009 or 2010 in Oklahoma, testified about an assault that occurred at the couple's residence around that time, when Jones was approximately 12 years old, and he was approximately 37 or 38. She was sleeping on the living room couch, and, although Jones's sister and nephew were also at the residence, each was asleep in a bedroom. Jones awoke to Hansen "licking [her] vagina" with his head between her legs. She told him "[n]o and stop," started crying, and tried to get up, but he put his hand over her mouth and pushed her back down on the couch. The assault continued for a few minutes. Jones did not know why, but he stopped and walked into his computer room. She first disclosed the abuse to her boyfriend in 2022 and had not told anyone earlier because she had been afraid that no one would believe her and that Hansen would hurt her sister or nephew.
Hansen testified in his own defense and denied Jane's, Lee's, and Jones's accusations. He first met Jane at Grandmother's property approximately a month after he moved there. Jane asked to use his computer to play games, and Aunt was present "[m]ost of the times" that Jane played games in his computer room. He acknowledged that he had sent Aunt a photograph of Jane playing computer games "to show that she was having fun" but did not recall whether Aunt had been in the room when he sent the photo.
Eventually, Hansen tired of Jane's asking and, one day in 2017, told her that he was busy and that she could not play. She became upset and left, but because it was close to her birthday, later that day he went to her house and told Mother that he wanted to buy a game for Jane's Amazon tablet. To buy the game, he entered his credit card information into Mother's account on the tablet. A couple of days later, he learned that he had over $1,000 in charges from Amazon and that someone had purchased "a whole bunch of movies" using his credit card. He confronted Mother about the charges on multiple occasions.
On cross-examination, he testified that he knew that Jane was developmentally disabled, that he told Mother that Jane was "like a five-year-old," that he did not know who had made the purchases, and that he was suggesting that the charges could have been motive for Jane to fabricate the allegations against him because she could have been subject to prosecution for fraud. He testified that Mother never paid the Amazon charges, that he never sued Jane's family for the amount, that he never pursued prosecution or made a police report, and that he knew that there would not be a fraud prosecution without police involvement.
Hansen testified that Jane, Lee, and Jones were all "liar[s]." Lee "hate[d him] very much," and he had been in a custody dispute with Jones's sister, with whom he "believe[d] he had a child." Alternatively, he suggested that Jones had fabricated the allegation "[p]robably because [he] caught her on [his] camera system meeting with her boyfriend." He testified that he had not met with Detective Osborn because he had been traveling to and from Oklahoma to care for his sick mother at the time, that Osborn only came to his house once, and that Osborn told him that it was "just a back burner thing."
The jury found Hansen guilty of continuous sexual abuse of a young child, and, following a punishment hearing, the trial court sentenced him to life imprisonment. This appeal followed.
DISCUSSION
Hansen contends that the trial court abused its discretion by admitting Lee's and Jones's extraneous-offense testimony because (1) Hansen did not receive adequate notice of the offense against Lee, (2) the probative value of Lee's and Jones's testimony was substantially outweighed by the danger of unfair prejudice, and (3) the State failed to prove that Hansen committed the extraneous offenses beyond a reasonable doubt. The State responds that his claims were not preserved for appeal or, alternatively, are without merit.
We address the issues out of order for the sake of structure and clarity.
I. Standard of Review
We review a trial court's decision to admit evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); see also Dabney v. State, 492 S.W.3d 309, 316 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words, we may not reverse the trial court's ruling unless the "decision falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); Henley, 493 S.W.3d at 83. An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93 (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009)).
II. Preservation
Preservation of error is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). If an issue has not been preserved for appeal, we should not address the merits of that issue. Id.
To preserve a complaint for appellate review, there must ordinarily be a timely, specific objection and a ruling by the trial court. Tex.R.App.P. 33.1(a). "To be timely, a complaint must be made as soon as the grounds for complaint [are] apparent or should be apparent." Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). To be sufficiently specific, an objection need not employ "hypertechnical or formalistic . . . words or phrases," Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018); "magic words," Ford, 305 S.W.3d at 533; or a citation to a particular statute, Laws v. State, 640 S.W.3d 227, 229 (Tex. Crim. App. 2022) (quoting Ford, 305 S.W.3d at 533). Rather, the objecting party must "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it." Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). "This gives the trial judge and the opposing party an opportunity to correct the error." Pena, 285 S.W.3d at 464 (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).
The complaint on appeal must also comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) ("An objection stating one legal theory may not be used to support a different legal theory on appeal." (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App. 1991))). When it does not, nothing is presented for review. Williams v. State, 191 S.W.3d 242, 255 (Tex. App.-Austin 2006, no pet.); see Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). In determining whether an issue on appeal comports with a trial objection, "we look to the context of the objection and the shared understanding of the parties at the time." Clark, 365 S.W.3d at 339 (citing Lankston, 827 S.W.2d at 911).
Pursuant to section 2-a of article 38.37, before evidence of extraneous offenses may be admitted under the article, the trial court must conduct a hearing to determine whether "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." Tex. Code Crim. Proc. art. 38.37, § 2-a. Following Jones's testimony regarding the assault in 2009 or 2010, defense counsel objected: "I believe that the age difference between [Jones] at the time and the age [of Jane] at the time, I don't believe that it's indicative of the same course of conduct, and I believe that the probative value is outweighed by the prejudicial value." The trial court overruled the objection.
Counsel's objections to Lee's hearing testimony were more varied. Counsel objected that he had received inadequate notice of the assault described by Lee because the notice provided by the State asserted that the incident occurred in 1976, and Lee testified that it occurred instead in approximately 1988. When the State explained that it had also provided counsel with Lee's written statement-in which she stated that the assault occurred when she was 11 years old, and Hansen was 16-counsel replied, "I'm still arguing that the notice, the actual notice that I got did not have that in it, your Honor. And I would also . . . object that . . . the probative value is outweighed by the prejudice in this case." He argued that the latter objection was based principally on Lee's and Hansen's ages at the time of the assault:
[I]f this happened at all, this was between a[] 16-year-old and an . . . 11-year-old. So this is not the same as between an adult and a child. So this - the lack - it is just wildly more prejudicial than probative. What someone does at 16 is not what someone does when they are an adult necessarily. So I don't think - I think the prejudicial value vastly outweighs the probative value.
The trial court ruled that Lee's testimony was admissible but that she could not testify that Hansen had penetrated her vagina with a foreign object or, on another occasion, told two friends that they could "do with [Lee] what they wanted" because those alleged facts were not "consistent with what we have in this case." "The other threats," the court ruled, "if she tells, these are allowable." The court also ruled that it was overruling defense counsel's objection "to the other part that we discussed."
The State argues that Hansen's objections during the hearing do not comport with his issues on appeal, that his Rule 403 objection was not preserved because of his "misstatement of the standard" and failure to track the Rule's language, and that his notice issue was waived because he failed to request a continuance.
The State is correct that Hansen did not object during the 38.37 hearing that the State had failed to prove that he committed either extraneous offense beyond a reasonable doubt. Thus, he has not preserved that issue for appellate review. See Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995) (noting that argument that evidence is inadmissible under one theory does not preserve error under different theory on appeal); see also Corporon v. State, 586 S.W.3d 550, 560 (Tex. App.-Austin 2019, no pet.) (holding that complaints regarding Article 38.37 hearing requirement must be preserved for review with timely specific objection); Tolbert v. State, No. 03-16-00505-CR, 2017 WL 6759145, at *4 (Tex. App.-Austin Dec. 22, 2017, no pet.) (mem. op., not designated for publication) (concluding that error was not preserved where defendant failed to complain "that the evidence presented at the 38.37 hearing was inadequate to support a jury finding that he committed the extraneous sexual offenses beyond a reasonable doubt").
Hansen did not object during Lee's and Jones's testimony before the jury.
The State is also correct that Hansen's failure to request a continuance waived his complaint of inadequate notice regarding the 1988 assault.
The purpose of article 3837's notice provision is to prevent surprise and allow the defendant sufficient time to prepare for the State's introduction of extraneous-offense evidence at trial Villarreal v State, 470 S.W.3d 168, 176 (Tex App-Austin 2015, no pet); Pena v State, 554 S.W.3d 242, 249 (Tex App-Houston [14th Dist] 2018, pet ref'd); cf Hayden v State, 66 S.W.3d 269, 272 (Tex Crim App 2001) ("[T]he purpose of Rule 404(b) notice is to prevent surprise") Accordingly, "failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise" Lindley v State, 635 S.W.2d 541, 544 (Tex Crim App 1982); see Oprean v State, 201 S.W.3d 724, 730 n10 (Tex Crim App 2006) (Cochran, J, concurring) ("[A]ny error in causing 'surprise' to the defense is forfeited on appeal unless the defendant has also requested a postponement or recess."); Martines v. State, 371 S.W.3d 232, 249 (Tex. App.-Houston [1st Dist.] 2011, no pet.) ("To preserve error regarding the State's failure to provide reasonable notice of its intent to use extraneous offense evidence, the defendant must request a continuance to mitigate the effects of surprise."); Martin v. State, 176 S.W.3d 887, 900 (Tex. App.-Fort Worth 2005, no pet.) (same). Although Hansen objected on the basis of inadequate notice during the hearing, his failure to request additional time to prepare upon learning of the discrepancies in the dates waived the issue on appeal. Because they were not preserved for appellate review, we overrule Hansen's first and third issues.
We conclude, however, that he preserved his complaint under Rule 403. As noted above, when objecting, a "party need not use "magic words," and while references to a statute might help to clarify an objection that might otherwise be general or obscure, an objection is not defective merely because it does not cite a particular statute." Laws, 640 S.W.3d at 229. Hansen objected that "the probative value" of Lee's testimony was "outweighed by the prejudicial value." He likewise objected with respect to Jones's testimony that "the probative value is outweighed by the prejudice," that the testimony was "wildly more prejudicial than probative," and that its "prejudicial value vastly outweighs the probative value." These objections were sufficiently specific to let the trial court and State know the legal basis for the objections in time to act on them. See Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007) (concluding that objection that "the prejudicial effect outweighs any probative value to that particular thing" was "sufficiently specific to preserve" alleged Rule 403 error); Pena, 285 S.W.3d at 464; Carrillo v. State, No. 03-16-00538-CR, 2018 WL 895369, at *3 (Tex. App.-Austin Feb. 15, 2018, no pet.) (mem. op., not designated for publication) (finding that objection to admission of extraneous offense because it was not probative and "quite prejudicial . . . suggests an objection under Rule 403 that the probative value is substantially outweighed by the danger of unfair prejudice").
III. Rule 403
Although extraneous-offense evidence is admissible under subsection 2(b) of article 38.37 "[n]otwithstanding Rules 404 and 405" of the Texas Rules of Evidence, the trial court must still, upon proper objection or request, conduct a Rule 403 balancing test. See Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.-Austin 2001, pet. ref'd). Thus, the trial court may exclude otherwise admissible 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. The court's balancing test need not be performed on the record. Hitt, 53 S.W.3d at 706.
"Probative value" means more than relevance; rather, it "refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). "Unfair prejudice" refers to a "tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id.; see Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim. App. 2021). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Under the Rule, trial courts have "considerable freedom in evaluating proffered evidence's probative value in relation to its prejudicial effect," and there should be "a corresponding reluctance on the part of an appellate court to reverse trial court decisions which admit or exclude evidence." Montgomery, 810 S.W.2d at 378.
In conducting a Rule 403 analysis, the trial court must balance the claimed probative force of the proffered evidence along with the proponent's need for the evidence against:
(1) any tendency of the evidence to suggest that the case would be decided on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) 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 (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Henley, 493 S.W.3d at 93 (citing Gigliobianco, 210 S.W.3d at 641-42). These factors may blend together in practice. Gigliobianco, 210 S.W.3d at 642.
A. Inherent Probative Value
Because evidence of prior sexual abuse of children is "'especially probative of [a defendant's] propensity to sexually assault children,' the Rule 403 balancing test normally will not favor the exclusion of evidence of the defendant's prior sexual assaults of children." Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (quoting Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.-Tyler 2015, no pet.)); see Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.-Waco 2022, pet. ref'd) ("[E]vidence of a separate sexual offense against a child admitted under Article 38.37, Section 2(b) is probative of a defendant's character or propensity to commit sexual assaults on children.").
Hansen argues that the extraneous offenses had little probative value because they were "extremely remote" and dissimilar to the facts underlying the charged offense. We disagree with the latter conclusion; there are compelling similarities between Hansen's abuse of Jane and his assaults against Lee and Jones. The three victims-approximately 8, 11, and 12 years old-were close in age and in particularly vulnerable positions in relation to Hansen. Jane was developmentally delayed and enticed by his offer of computer games. Lee was placed in his care by their mother. And Jones was asleep when he began performing oral sex on her. All three were in a room alone with him during the offenses. The abuse against each victim likewise escalated. Hansen first asked Jane to undress and only on subsequent visits progressed to forcing her to perform oral sex on him. Similarly, the assault against Lee began with Hansen walking in on her in the bathroom, and when Jones woke up to his head between her legs, he clamped his hand over her mouth and pushed her against the couch. Indeed, he used force against all three: shoving Lee onto the bed, grabbing her and Jane's wrists, and holding the back of Lee's head. He forced both Jane and Lee to perform oral sex on him and performed oral sex on both Jane and Jones. All three victims resisted: Jane pushed him away and told him to stop, Lee fought him off and ran out of the house, and Jones begged him to stop and tried to escape. Jane and Jones both delayed disclosing the abuse out of fear that he would hurt them or a loved one, and he threatened Jane and Lee with physical harm if they told anyone.
Against these similarities, we find Hansen's emphasis that only Jane alleged grooming and that his age varied during the assaults unpersuasive, particularly given that his defense at trial was largely grounded in the theory that all three victims' testimony was fabricated. See Castaneda v. State, --- S.W.3d. ---, ---, No. 14-22-00206-CR, 2023 WL 3743316, at *7 (Tex. App.-Houston [14th Dist.] June 1, 2023, pet. ref'd) ("Testimony that appellant sexually assaulted two other children in a similar manner and at a similar age was highly probative to rebut appellant's defense that Complainant fabricated her allegations.").
The assaults against Lee and Jones occurred approximately 29 and 7 years, respectively, before the abuse against Jane. A substantial gap in time between an extraneous offense and the charged offense will weaken the probative value of the extraneous-offense evidence "because, logically, the passage of time allows things and people to change." Gaytan v. State, 331 S.W.3d 218, 226-27 (Tex. App.-Austin 2011, pet. ref'd). However, remoteness is "but one aspect of an offense's probativeness" and alone "is not sufficient to render an extraneous offense excludable under Rule 403." Id. Moreover, similarities between the extraneous offense and charged offense may offset any loss of probative value resulting from the extraneous offense's remoteness. See, e.g., Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.-Austin 2016, pet. ref'd) (concluding that although remoteness of extraneous offenses "undermined their probative value," trial court could have reasonably determined that "remarkable similarities" between extraneous offenses and charged offense "strengthened the probative value of the evidence," such that first factor was therefore "neutral" or "at most . . . somewhat favors exclusion" (quoting Gaytan, 331 S.W.3d at 227)).
Although the extraneous offenses in this case occurred well before the charged offense, their remoteness does not fully undermine their probative value. See, e.g., Guedea v. State, 683 S.W.3d 549, 553 (Tex. App.-Waco 2023, no pet.) (concluding that evidence relating to extraneous offenses from 1990 was "probative of [defendant]'s character or propensity to sexually abuse young female children" and that first factor "weigh[ed] strongly in favor of admission"); Deggs, 646 S.W.3d at 925 (finding that first factor weighed strongly in favor of admission where extraneous offense allegedly occurred more than 20 years before trial); Dies v. State, 649 S.W.3d 273, 286 (Tex. App.-Dallas 2022, pet. ref'd) (finding that first factor weighed strongly in favor of admission and that extraneous-offense evidence was probative of defendant's character or propensity where extraneous offense occurred approximately 19 years before trial and 12 years before abuse of complainant); Gaytan, 331 S.W.3d at 227 (finding that first factor at most "somewhat" favored exclusion because although extraneous offenses occurred 24 and 28 years before charged offense, they were "remarkably similar" to complainant's, and trial court could have reasonably found that their inherent probative force was "significantly bolstered"); Newton v. State, 301 S.W.3d 315, 320 (Tex. App.-Waco 2009, pet. ref'd) (concluding that first factor weighed slightly in favor of admissibility despite 25-year gap between extraneous offense and charged offense). Thus, we conclude that the first factor weighs somewhat in favor of admission despite the extraneous offenses' remoteness.
B. State's Need for Evidence
The State's need for the extraneous-offense evidence was great. Without the evidence, the State's case would in essence have come down to Jane's word against Hansen's. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) ("Rule 403 . . . should be used sparingly, especially in 'he said, she said' sexual-molestation cases that must be resolved solely on the basis of the testimony of the complainant and the defendant."). There were no corroborating eyewitnesses or physical or biological evidence of the abuse against Jane, and Hansen's principal defense was a challenge to her credibility. Other State witnesses, including Mott and Mother, largely repeated what Jane had told them. This factor therefore weighs strongly in favor of admission. See Robisheaux, 483 S.W.3d at 220 (determining that State's need for evidence "weighs strongly in favor of admission" because without evidence, State's case would have amounted to complainant's word against defendant's); Price v. State, 594 S.W.3d 674, 681 (Tex. App.-Texarkana 2019, no pet.) ("Because there was no biological evidence and there were no third-party eyewitness to the alleged incidents, and because Price challenged Tammy's credibility and memory, the State had a considerable need for the evidence.").
C. Tendency of Evidence to Suggest Decision on an Improper Basis
Evidence of the assaults against Lee and Jones may have tended to suggest a decision on an improper basis because sexual misconduct involving children is inherently inflammatory and prejudicial. See Gigliobianco, 210 S.W.3d at 641 (stating that evidence might encourage decision on improper basis if it arouses jury's sympathy or hostility "without regard to the logical probative force of the evidence"); Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (recognizing that "sexually related bad acts and misconduct involving children are inherently inflammatory"). Yet Rule 403 does not allow a trial court to exclude otherwise relevant evidence that is merely prejudicial; rather, the Rule protects defendants against unfair prejudice. See Pawlak, 420 S.W.3d at 811. Moreover, potential prejudice may be mitigated if, as here, the extraneous acts are no more serious than the allegations forming the basis for the indictment. Robisheaux, 483 S.W.3d at 220. For these reasons, this factor is at most neutral regarding admission or exclusion.
D. Tendency of Evidence to Confuse or Distract Jury
Confusion of the issues "refers to a tendency to confuse or distract the jury from the main issues in the case." Gigliobianco, 210 S.W.3d at 641 (citing S. Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence § 403.2 at 165 (3d ed. 2002)). Testimony concerning the extraneous offenses was straightforward, non-technical, and directly relevant to the jury's determination of guilt for the charged offense. See Tex. R. Evid. 401 (providing that evidence is relevant if it makes material fact more or less probable); Caston v. State, 549 S.W.3d 601, 612 (Tex. App.-Houston [1st Dist.] 2017, no pet.) ("[E]vidence that a defendant has sexually abused another child is relevant to whether the defendant sexually abused the child-complainant in the charged case." (citing Robisheaux, 483 S.W.3d at 220-21; Gaytan, 331 S.W.3d at 228)). This factor weighs in favor of admission.
E. Tendency of Evidence to Be Given Undue Weight by Jury
This factor concerns "a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. For example, 'scientific' evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence." Gigliobianco, 210 S.W.3d at 641 (internal citation omitted); see Gaytan, 331 S.W.3d at 228. Here, the evidence was not scientific or technical and pertained to matters including victim credibility that could be easily comprehended by laypeople. See Gaytan, 331 S.W.3d at 228; Deggs, 646 S.W.3d at 927. This factor weighs in favor of admission.
F. Likelihood that Evidence Will Be Too Time-Consuming or Repetitive
This factor concerns whether "the jury would be distracted from consideration of the charged offense." State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005). We consider only time spent developing the evidence and exclude jury argument and hearings outside the presence of the jury. Dennis v. State, 178 S.W.3d 172, 181 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd).
Lee and Jones's testimony amounted to around 24 pages out of an approximately 300-page trial transcript. Cf. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (concluding that factor weighed in favor of admission where extraneous-offense testimony amounted to "less than one-fifth" of trial testimony). Their testimony was unrepetitive, important to the State's case, and unlike other evidence presented. See Gaytan, 331 S.W.3d at 228. Consequently, this factor weighs in favor of admission.
G. Summary of Factors
In summation, one factor weighed strongly in favor of admission, three weighed in favor of admission, one weighed somewhat in favor of admission, and one was at most neutral. Given the Court of Criminal Appeals' warning to be cautious in excluding relevant evidence under Rule 403 in cases such as this, see Hammer, 296 S.W.3d at 568, the trial court did not abuse its discretion by admitting Lee's and Jones's extraneous-offense testimony. Hansen's second issue is overruled.
CONCLUSION
Having overruled each of Hansen's issues, we affirm the trial court's judgment of conviction.
Affirmed