The State of Texas v. Willie Thomas Stobaugh

Opinion issued November 13, 2025.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00972-CR
———————————
THE STATE OF TEXAS, Appellant
V.
WILLIE THOMAS STOBAUGH, Appellee

On Appeal from the 482nd District Court
Harris County, Texas
Trial Court Case No. 1763097

MEMORANDUM OPINION

A grand jury indicted appellee Willie Thomas Stobaugh for the offense of

sexual assault of a child. TEX. PENAL CODE § 22.011(a)(2)(A). A jury convicted

appellee of the lesser-included offense of indecency with a child by sexual contact.

Id. § 21.11.
Appellee filed a motion for new trial on October 18, 2023. Appellee filed a

supplement to his motion for new trial on November 16, 2023, including affidavits

from his trial counsel, Carmen Roe and James Alston. The trial court granted

appellee’s motion for new trial and the State timely filed its notice of appeal.

In three issues, the State argues that: (1) the trial court erred in considering

the affidavits attached to appellee’s supplement to his motion for new trial because

the supplement was an untimely amendment, (2) the trial court erred by granting a

new trial in the interest of justice, and (3) the record does not evince that appellee

was entitled to a new trial on either of the grounds that appellee alleged in his

motion for new trial. We affirm.

Background

The indictment against appellee stated, in pertinent part, that:

[Appellee] heretofore on or about March 9, 2011, did then and there
unlawfully, intentionally and knowingly cause the penetration of the
sexual organ of K.S., hereinafter called the Complainant, a person
younger than seventeen years of age, by placing his penis into the
sexual organ of the Complainant.

Appellee pleaded not guilty to the allegations in the indictment.

K.S.1 is appellee’s daughter. As to the charged offense, K.S. alleges that,

when K.S. was 14 years old, and had just changed into her bathing suit to go

swimming, K.S. passed by appellee’s bedroom door in the hallway, and appellee

1
We use a pseudonym to refer to the minor complainant. See TEX. R. APP. P.
9.10(a)(3).
2
called her into the room. K.S. alleges that appellee had K.S. pull down her bathing

suit straps, pulled the bathing suit down onto the floor, and appellant “started

playing with, like [her] boobs and whatnot.” According to K.S., appellee then had

K.S. climb on top of appellee and “he just sort of put his penis inside [her] vagina.”

K.S. made her initial outcry2 in 2020, when she was 23 years old.

On August 9, 2023, 35 days before trial, the State filed its Notice of

Intention to Use Extraneous Offenses and Prior Convictions. In this notice, the

State notified the trial court and the defense of its intention to introduce evidence

of the following extraneous allegations at trial:

That in Harris County, Texas, on or about March 9, 2011 and
on other, multiple occasions, pursuant to a continuing course of
conduct, [appellee] did intentionally and knowingly cause the
penetration of the female sexual organ of K.S., hereinafter called the
Complainant, a person younger than fourteen years of age and not the
spouse of [appellee], by placing his sexual organ in the female sexual
organ of the Complainant.

That in Harris County, Texas, on or about March 9, 2011 and
on other, multiple occasions, pursuant to a continuing course of
conduct, [appellee] did intentionally and knowingly cause the sexual
organ of K.S., a person younger than fourteen years of age and not the
spouse of [appellee], to contact the sexual organ of the Defendant.

That in Harris County, Texas, on or about March 9, 2011 and
on other, multiple occasions, pursuant to a continuing course of
conduct, [appellee] did intentionally and knowingly engage in sexual

2
“Outcry” is a term of art used to describe the first disclosure statement that a child
complainant makes to an adult. TEX. CODE CRIM. PROC. art. 38.072; TEX. FAM.
CODE § 54.031.

3
contact with K.S., a child under the age of seventeen years and not the
spouse of [appellee], by touching the genitals of K.S. with the intent
to arouse and gratify the sexual desire of [appellee].

That in Harris County, Texas, on or about March 9, 2011 and
on other, multiple occasions, pursuant to a continuing course of
conduct, [appellee] did intentionally and knowingly engage in sexual
contact with K.S., a person younger than seventeen years of age and
not the spouse of [appellee], by touching through clothing the breast
of K.S. with the intent to arouse and gratify the sexual desire of
[appellee].

That in Harris County, Texas, on or about March 9, 2011 and
on other, multiple occasions, pursuant to a continuing course of
conduct, [appellee] did intentionally and knowingly, with intent to
arouse and gratify the sexual desire of [appellee], intentionally and
knowingly expose [appellee’s] genitals, knowing that K.S., a child
younger than seventeen years of age and not the spouse of [appellee]
was present.

On August 28, 2023, 19 days before trial, the State filed its Notice of

Intention to Use Child Abuse Victim’s Hearsay Statement.3 This instrument further

detailed the allegations of appellee touching K.S.’s breasts and appellee having

penetrative sex with K.S. The August 28 notice also significantly expanded the

date range of the abuse as “starting when [K.S.] was 13 years old and ending when

she left the home for good in 2018.”4

3
Although this notice was timely for the purposes of article 38.072 of the Texas
Code of Criminal Procedure, to the extent that it disclosed additional extraneous
allegations, it was untimely for the purposes of article 38.37 of the Texas Code of
Criminal Procedure.
4
K.S. was born in 1997.
4
Neither of the notices described allegations of appellee having K.S. touch

appellee’s genitals, or allegations alleged to have occurred in Polk County or

Galveston County. Notwithstanding this lack of notice, at trial, appellee’s trial

counsel did not object to the admission of these extraneous offenses for lack of

notice. Both lawyers stated in their later, post-trial affidavits that their failure to

object to the introduction of this evidence was not a tactical or strategic decision.

Without objection, the jury heard K.S.’s testimony about alleged incidents of

abuse that were either not mentioned in the notices, or were listed in the untimely

August 28, 2023 notice. Specifically, K.S. testified that, beginning when she was

13 years old, appellee started commenting about whether K.S. was or was not

wearing a bra. K.S. and appellee would rough house and appellee would pin K.S.

down underneath him and grab her breasts through her t-shirt. K.S. estimated that

from age 13 to 14, appellee touched her inappropriately “well over a dozen times.”

K.S. stated that the inappropriate touching continued when she was 15 years old,

just not “as much.” K.S. described this touching as appellee playing with her

breasts and “finger[ing]”5 her while they were in Onalaska, in Polk County.6 K.S.

also recounted that when she was 16, she awoke to find appellee in bed with her

5
K.S.’s testimony did not elaborate as to whether “fingering” included digital
penetration.
6
According to K.S.’s testimony, she and appellee lived in Onalaska when she was
15 to 18 years of age.

5
and that he had pulled the back side of her pants down. According to K.S., when

she woke up appellee got off her, pulled up his pants, and left the room. K.S. also

testified regarding a trip to Galveston right after Hurricane Ike, when appellee had

K.S. touch him through his pants on his penis and appellee ejaculated.7

At the jury charge conference, appellee’s trial counsel objected to the

inclusion of a lesser-included offense of indecency with a child. The trial court

ultimately included the following instruction:

“Sexual contact” means the following acts, if committed with the
intent to arouse or gratify the sexual desire of any person: (1) any
touching by a person, including touching through clothing, of the
anus, breast, or any part of the genitals of a child; or (2) any touching
of any part of the body of a child, including touching through
clothing, with the anus, breast, or any part of the genitals of a person.

This definition of “sexual contact” is broader than that which would have been

constituted a lesser-included offense of the charged offense in that the application

paragraph for the charged offense authorizes a conviction based only on appellee’s

“causing the genitals of [K.S.], to contact the genitals of [appellee.]” Appellee’s

trial counsel did not object to this broad definition, and later stated in affidavits that

the failure to object was not a strategic decision.

The jury returned a guilty verdict as to the lesser-included offense of

indecency with a child by contact. The same jury assessed appellee’s punishment

7
The August 28, 2023 notice includes an allegation of similar conduct in Surfside,
Brazoria County, Texas, in which K.S. alleged that she and appellee had sexual
intercourse and appellee “ejaculated while penetrating her vagina.”
6
at eight years’ confinement in the Institutional Division of the Texas Department

of Criminal Justice and recommended that the sentence be suspended over a term

of community supervision. The trial court followed the jury’s recommendation and

placed appellee on a term of community supervision for 6 years.

Appellee timely filed a motion for new trial on October 18, 2023, exactly 30

days after the trial court entered its judgment on September 18, 2023. In appellee’s

motion for new trial, he alleged that (1) the evidence was legally insufficient to

support the jury’s verdict, and (2) he received ineffective assistance of counsel

because his counsel failed to object to the admission of evidence of unnoticed and

untimely noticed extraneous offenses, and to errors and omissions in the jury

charge. On October 23, 2023, the trial court set the motion for a hearing that took

place on November 17, 2023.

On November 16, 2023, appellee filed his “Supplement to Motion for New

Trial and Proposed Order.” This instrument did not raise any additional arguments

but attached an affidavit from each of appellee’s two trial attorneys, James Alston

and Carmen Roe. Roe’s affidavit attached and referred to two exhibits that were

represented to be interview notes from two of the prosecutors who handled the case

and interviewed complainant.

At the hearing on November 17, 2023, appellee offered as “Defendant’s

Exhibit 1” his motion for new trial with the attached exhibits and the affidavits of

7
Alston and Roe. The State objected to the admission of the affidavits based on “the

timeliness” of the disclosure of the affidavits, claiming to have received them at

around five o’clock the previous day. Alston was present in the courtroom during

the hearing and available to testify, and Roe made herself available to testify

subject to a hearing she had in a nearby courthouse. Neither appellee nor the State

elicited any live testimony from either Alston or Roe.

On November 29, 2023, the trial court granted appellee’s motion for new

trial. In doing so, the trial court struck through portions of appellee’s proposed

order and added additional text, causing it to read:

Having reviewed the motion for a new trial, the supplement to
the motion for a new trial, and the evidence presented at the motion
[sic] for a new trial, the Court finds that the arguments made in the
motion are meritorious and hereby ORDERS that the motion is
GRANTED.

The Court finds that, had a notice objection been made, it
would have been sustained and that the Defendant was prejudiced by
the introduction of these extraneous offenses during the guilt-
innocence phase of his trial.

This Court grants the Motion for New Trial in the interest of
justice.

The Court also finds that the Defendant was prejudiced by the
inclusion of these errors in the charge.

Shortly after the trial court’s ruling, the State objected that the trial court’s

stated ground, “in the interest of justice,” was outside of the two grounds raised in

appellee’s motion for new trial (insufficient evidence and ineffective assistance of
8
counsel). When asked by the parties for clarification of its ruling, the trial court

explained that its ruling was:

based off of numerous errors that were done by all sides of the court,
including the court, the defense, as well as the State. And so in the
interest of justice, the Court has indicated that I don’t believe
[appellee] received a fair trial based off of those errors and those
errors being egregious towards what defense was putting out there as
their strategy. That was the Court’s ruling.

Appellee’s counsel requested “a finding on the record of ineffective assistance of

counsel, just to clarify that.” The trial court responded:

And here is my issue: I don’t think that they were ineffective. I don’t.
I think that there was a lot of errors that happened between them, the
State, and myself. I think those errors combined made it as if
[appellee] did not receive a fair trial. In terms of their errors alone,
taken apart, I think everybody makes errors during a trial; but I think
that they, in terms of what they did, were effective.

In response to a request for further clarification, the trial court explained that the

errors were made during the trial by the State and defense

[a]s well as the Court. Making the error of having a broad definition
of sexual contact. Those errors put together goes directly towards
what I think the defense’s strategy was in this case and could have led
to [appellee] not receiving a fair trial in this case.

The Supplement

On appeal, the State first argues that “[t]he trial court erred in considering

any content in [a]ppellee’s ‘supplement’ to the [a]ppellee’s motion for new trial

because the ‘supplement’ was actually an untimely amendment, to which the State

9
objected.” We agree as to the untimely amendment but hold that the affidavits

were properly admitted at the hearing.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Valadez v. State, 663 S.W.3d 133, 143 (Tex. Crim. App. 2022);

McDonnell v. State, 674 S.W.3d 694, 701 (Tex. App.—Houston [1st Dist.] 2023,

no pet.). We will not reverse the trial court’s ruling if it is within the zone of

reasonable disagreement. Valadez, 663 S.W.3d at 143; McDonnell, 674 S.W.3d at

701. We must uphold the trial court’s evidentiary ruling if it is correct under any

theory of law applicable to the case. Fish v. State, 609 S.W.3d 170, 181 (Tex.

App.—Houston [14th Dist.] 2020, pet. ref’d); Price v. State, 502 S.W.3d 278, 283

(Tex. App.—Houston [14th Dist.] 2016, no pet.).

B. Analysis

Appellee’s “supplement” was an out-of-time amendment to his motion for

new trial. A party may amend his motion for new trial within 30 days after the date

the trial court imposes or suspends sentence in open court but before the court

overrules any preceding motion for new trial. TEX. R. APP. P. 21.4(b). Filing

affidavits in support of a motion for new trial more than 30 days after sentencing is

considered an untimely attempt to amend the motion. Klapesky v. State, 256

S.W.3d 442, 455 (Tex. App.—Austin 2008, pet. ref’d). As such, the supplement

10
itself was an untimely amendment, and appellee was not entitled to consideration

of that document as an amended motion for new trial. Id. at 454-56.

The admission of the affidavits as evidence at the hearing on the motion for

new trial is a distinct question from the timeliness of the amendment. In a hearing

on a motion for new trial, “[t]he court may receive evidence by affidavit or

otherwise.” TEX. R. APP. P. 21.7. There is no requirement that a trial court take live

testimony as opposed to affidavits at a motion for new trial hearing. Cavitt v. State,

507 S.W.3d 235, 246 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (citing

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)). The trial court is

not required to believe the factual statements made in an affidavit, even when they

are uncontradicted by other affidavits. Proctor v. State, 319 S.W.3d 175, 186 (Tex.

App.—Houston [1st Dist.] 2010, pet. stricken by Proctor v. State, No. PD-1213-

10, 2011 WL 334197 (Tex. Crim. App. 2011)).

In this case, the trial court granted a hearing on appellee’s sworn motion for

new trial well before appellee filed his supplement. At the hearing, appellee

offered not only the two affidavits of trial counsel, as permitted by Rule 21.7, but

also the live testimony of both witnesses. Appellee’s counsel explained to the trial

court that he did not “have anything to elicit from [trial counsel] other than what

they have already stated in their affidavits, but they are available if the Court

would like to hear from them directly.” The trial court implicitly decided to admit

11
the affidavits in lieu of trial counsel’s testimony. The State apparently decided not

to cross-examine trial counsel, even after the trial court admitted the affidavits as

evidence at the hearing. We cannot say that the admission of the trial attorneys’

affidavits as evidence was error, where it is authorized by the Texas Rules of

Appellate Procedure. TEX. R. APP. P. 21.4(b).

The “Interest of Justice”

In the State’s second point of error, it argues that “[t]he trial court erred in

granting a new trial based on a sua sponte ‘interest of justice’ ground because

[a]ppellee did not allege that basis for relief, along with a valid legal reason, in

[a]ppellee’s motion for new trial.” We agree.

A. Standard of Review

The trial court’s decision to grant or deny a motion for new trial is reviewed

for an abuse of discretion. Becerra v. State, 685 S.W.3d 120, 127 (Tex. Crim. App.

2024) (citing Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017)). “[W]e

do not substitute our judgment for that of the trial court; rather, we decide whether

the trial court’s decision was arbitrary or unreasonable.” Becerra, 685 S.W.3d at

127 (citing Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014)). An

abuse of discretion occurs when “no reasonable view of the record could support

[the trial court’s] ruling.” Id. (citing Burch, 541 S.W.3d at 820). The trial court is

the sole judge of the credibility of the evidence proffered in support of a motion for

12
new trial. Id.; see Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021)

(holding the reviewing court applies “a uniformly deferential standard of review to

a trial court’s finding in ruling on a motion for new trial”).

A trial court generally does not abuse its discretion in granting a motion for

new trial if the defendant: (1) articulated a valid legal claim in his motion for new

trial, (2) produced evidence or pointed to evidence in the trial record that

substantiated his legal claim, and (3) showed prejudice to his substantial rights

under the standards in Texas Rule of Appellate Procedure 44.2. State v. Herndon,

215 S.W.3d 901, 909 (Tex. Crim. App. 2007). The trial court cannot grant a new

trial based on mere sympathy, an inarticulate hunch, “or simply because [s]he

personally believes that the defendant is innocent or ‘received a raw deal.’” Id. at

907.

B. Analysis

A trial court can grant a motion for new trial “in the interest of justice.” State

v. Gonzalez, 820 S.W.2d 9, 12 (Tex. App.—Dallas 1991, pet. denied). However, a

trial court does not have the discretion to grant a new trial for that reason unless the

defendant demonstrates that his first trial was seriously flawed and that the flaws

adversely affected his substantial rights to a fair trial. State v. Sanders, 440 S.W.3d

94, 100 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). A trial court has no

13
authority to grant a motion for new trial on grounds not raised in the motion. State

v. Provost, 205 S.W.3d 561, 566 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

In State v. Thomas, the Texas Court of Criminal Appeals held that a trial

court could not grant a motion for new trial that was not based on a valid legal

claim. 428 S.W.3d 99, 107 (Tex. Crim. App. 2014). The appellee in Thomas

argued in the trial court that his motion for new trial should be granted “in the

interest of justice” because there was compelling evidence that had not been

presented at trial. Id. at 102. In support of his motion, appellee presented evidence

that there was a witness with exculpatory information available at trial and known

to trial counsel who did not testify. Id. Appellee maintained that he was not

advancing a claim of ineffective assistance of counsel or any other claim listed

under Texas Rule of Appellate Procedure 21.3. Id. At the hearing, when the State

attempted to ask trial counsel whether he had a strategy for not calling the witness,

he asserted attorney-client privilege. Thomas, 428 S.W.3d at 102-03. The trial

court granted the motion for new trial, which the Texas Court of Criminal Appeals

ultimately held was error. Id. at 107. The court reasoned that the failure of trial

counsel to call an exculpatory witness who was available at trial and known to the

defense was not, by itself, a valid legal claim. Id.

In a case similar to the instant case, the Austin Court of Appeals recently

reversed a trial court’s grant of a motion for new trial based on grounds not raised

14
in the defendant’s motion. State v. Gant, 709 S.W.3d 707, 718 (Tex. App.—Austin

2025, pet. ref’d). In Gant, the appellee filed a motion for new trial alleging that the

verdict was contrary to the law and evidence and that the punishment assessed was

excessive. Id. at 711. The trial court granted the motion but explained that it was

granting the motion on the ground of ineffective assistance of counsel, despite that

claim not having been raised in the motion. Id. at 711-12. The State objected. Id. at

715. The court of appeals reversed the trial court’s order, reasoning that a trial

court does not have the discretion to grant a motion for new trial if that motion is

litigated in a manner that circumvents the State’s ability to defend its verdict and

the State objects. Id. at 714.

In this case, appellee raised two grounds: sufficiency of the evidence and

ineffective assistance of counsel. The State filed no written response. This record

makes clear that the State prepared for the hearing based on the specific grounds

that appellee raised in his motion for new trial, and not the ground of “the interest

of justice.” The State’s arguments at the hearing first addressed the legal

sufficiency grounds raised in appellee’s motion for new trial and were based on

three cases the prosecutor researched in advance of the hearing. Next, the State

argued against appellee’s position that his trial counsel were ineffective due to

their failure to object to the jury charge, also providing a case that the prosecutor

researched before the hearing. Lastly, the State argued against the appellee’s

15
grounds that his trial counsel were ineffective for failing to object to the admission

of certain extraneous offenses, citing yet another case. As in Gant, the State

objected shortly after the trial court’s ruling to the trial court’s grant of the motion

for new trial on grounds not stated in the motion.

Applying the reasoning in Gant here, the trial court exceeded its authority in

granting the motion for new trial based on the “interest-of-justice” ground where

appellee did not raise it, and the State objected to the trial court’s granting the

motion on that basis. Provost, 205 S.W.3d at 566; Gant, 709 S.W.3d at 714-15.

Appellee’s Other Grounds

We must nevertheless uphold the ruling if it is correct on any other theory

raised to the trial court. Provost, 205 S.W.3d at 566 (“[W]e must still address the

grounds raised in appellee’s motion for new trial even though it is apparent the trial

court did not grant a new trial on those grounds.”); Gant, 709 S.W.3d at 715 (citing

Herndon, 215 S.W.3d at 905 n.4 (“We will nevertheless uphold the ruling [on a

motion for new trial] if it is correct on any applicable theory”)). In the State’s third

and final issue, it argues that “the trial court . . . abused its discretion in granting a

new trial . . .because the record does not establish that [a]ppellee was entitled to

relief on either of the grounds that [a]ppellee alleged, namely insufficient evidence

or ineffective assistance of counsel.”

16
In appellee’s motion for new trial, he alleged that (1) the evidence was

legally insufficient to support the jury’s verdict; and (2) appellee received

ineffective assistance of counsel who failed to object to the admission of evidence

of unnoticed and untimely noticed extraneous offenses, and to errors and omissions

in the jury charge. We first address the sufficiency of the evidence.

A. Sufficiency of the Evidence

When deciding a motion for new trial challenging the legal sufficiency of

the evidence, the trial court applies the appellate legal sufficiency standard of

review. Provost, 205 S.W.3d at 567. In a criminal trial, the State bears the burden

to persuade the factfinder that the defendant is guilty of the charged offense

beyond a reasonable doubt. Baltimore v. State, 689 S.W.3d 331, 340 (Tex. Crim.

App. 2024). Evidence is legally sufficient to support a conviction if a rational trier

of fact could have found that the defendant committed each element of the offense

beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U.S. 307, 319

(1979) (“[T]he relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”).

Reviewing courts measure the sufficiency of the evidence by comparing the

trial evidence to the essential elements of the charged offense as defined by a

hypothetically correct jury charge. Baltimore, 689 S.W.3d at 341. A hypothetically

17
correct jury charge accurately sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was charged. Id. The law authorized by the indictment

consists of the statutory elements of the offense as modified by the allegations in

the indictment. Id.

We consider the evidence in the light most favorable to the verdict and

determine whether, based on the evidence and reasonable inferences from it, a

rational juror could have found that the State had proven the essential elements of

the charged offense beyond a reasonable doubt. Id. The jury has “full

responsibility” to fairly resolve conflicts in witness testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id.

The jury may believe or disbelieve some or all of a witness’s testimony. Vernon v.

State, 571 S.W.3d 814, 820 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). A

reviewing court considers the cumulative force of all the evidence—both direct and

circumstantial—to determine whether sufficient evidence exists to establish each

element of the offense. Baltimore, 689 S.W.3d at 341; Vernon, 571 S.W.3d at 819.

The application paragraph in the jury instruction on the lesser-included

offense of indecency with a child read, in pertinent part, that the jury was

authorized to convict appellee of indecency with a child by contact if it found from

18
the evidence beyond a reasonable doubt that appellee “engaged in sexual contact

with K.S. a person younger than 17 years of age, by causing the genitals of K.S., to

contact the genitals of [appellee], with the intent to arouse and gratify the sexual

desire of [appellee.]” Thus, the application paragraph here was “hypothetically

correct.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc)

(explaining that the hypothetically correct jury charge is the one that accurately

sets out the law, as authorized by the indictment, does not unnecessarily increase

the the State’s burden of proof or unnecessarily restrict the state’s theories of

liability, and adequately describes the particular offense for which the defendant

was tried). K.S. was the sole testifying witness to the alleged incident. According

to K.S.’s testimony, appellee played with K.S.’s breasts and had K.S. climb on top

of appellee and “he just sort of put his penis inside [her] vagina.” (emphasis added)

Viewing this evidence in the light most favorable to the verdict, a rational juror

could have drawn the inference from the qualified “sort of” statement that

appellee’s penis contacted K.S.’s vagina in commission of the offense of indecency

with a child,8 but have a reasonable doubt regarding whether appellant achieved

penetration as would be required for the offense of sexual assault of a child.9

8
TEX. PEN. CODE § 21.11(c)(1).
9
Id. § 22.011(a)(2)(A).
19
The evidence was therefore legally sufficient to support the conviction for

indecency with a child. See, e.g., Arroyo v. State, 559 S.W.3d 484, 488-89 (Tex.

Crim. App. 2018) (holding that evidence was sufficient to support conviction for

indecency by touching breast where complainant said that appellant “rubbed her

chest”); Romano v. State, 612 S.W.3d 151, 157 (Tex. App.—Houston [14th Dist.]

2020, pet. ref’d) (holding that evidence was sufficient to support conviction for

attempted indecency with a child by contact where appellant moved massager up

complainant’s thigh toward genitals before complainant stopped appellant, and for

indecency with a child by contact where appellant spooned complainant and

complainant felt appellant’s penis on complainant’s back).

B. Ineffective Assistance of Counsel

In addition to complaining of insufficiency of the evidence, appellee’s

motion for new trial alleged that appellee received ineffective assistance because

his counsel failed to object (1) to the admission of evidence of unnoticed and

untimely noticed extraneous offenses, and (2) to errors and omissions in the jury

charge.

To prove that trial counsel provided ineffective assistance of counsel, an

appellant must show by a preponderance of the evidence that (1) trial counsel’s

performance was deficient and (2) that deficiency prejudiced him, meaning that

there is a reasonable probability that the result of the proceeding would have been

20
different but for his counsel’s deficient performance. Strickland v. Washington,

466 U.S. 668, 687 (1984); Martinez v. State, 449 S.W.3d 193, 204 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). Failure to satisfy one prong of the test

eliminates a court’s need to consider the other prong. Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009).

First, it must be established whether trial counsel’s performance fell below

an objective standard of reasonableness. Martinez, 449 S.W.3d at 204 (citing

Robertson v. State, 187 S.W.3d 475,483 (Tex. Crim. App. 2006)). There is a strong

presumption that trial counsel’s conduct falls within a wide range of

reasonableness and constitutes a “sound trial strategy.” Strickland, 466 U.S. at 689;

Martinez, 449 S.W.3d at 204. Unless appellant provides a record that affirmatively

demonstrates that counsel’s performance was not a product of sound trial strategy,

a reviewing court will presume that counsel’s performance was constitutionally

adequate. State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008).

However, trial counsel’s performance may still fall below an objective standard of

reasonableness when no reasonable trial strategy would justify trial counsel’s

conduct, even when trial counsel’s subjective reasoning is adequately reflected in

the record. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

Under the second prong of the Strickland test, the appellant establishes

prejudice by showing that there is a reasonable probability, sufficient to undermine

21
confidence in the outcome, that the result of the proceeding would have been

different. Strickland, 466 U.S. at 687. When the appellant demonstrates that his

counsel’s errors were so serious that they deprived the appellant of a fair trial, the

second prong is satisfied. Id.

To succeed on an ineffective-assistance-of-counsel claim based on counsel’s

failure to object, one must show that the trial judge would have committed error in

overruling the objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.

App. 2011).

1. Failure to Object to Jury Charge Error

We cannot say that appellee was prejudiced by trial counsel’s failure to

object to the jury charge, where the inclusion of the full statutory definition in the

abstract portion of the charge did not constitute reversible error.

In Crenshaw v. State, the Texas Court of Criminal Appeals held that the jury

charge did not expand the allegations against the appellant, where the abstract

portion of the charge included an expanded definition of the term “intoxication.”

378 S.W.3d 460, 468 (Tex. Crim. App.). In Crenshaw, the State charged appellant

with driving while intoxicated, alleging in the information that appellant was

intoxicated by not having the normal use of his mental or physical faculties by

reason of the introduction of alcohol—or alcohol, a controlled substance, a drug, a

dangerous drug, or a combination of two or more of these substances—into his

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body. Id. at 462. The jury charge, in the definition section of the abstract portion,

included the per se definition of “intoxication” of having an alcohol concentration

of 0.08 or more. Id. at 463. However, the application paragraph only authorized a

conviction if the jury found beyond a reasonable doubt that appellant was

intoxicated by the definitions alleged in the information and did not incorporate the

per se definition from the abstract portion. Id. at 464, 467. The court found no error

in the jury charge, as it specifically authorized a conviction only where the State

proved intoxication as alleged in the charging instrument. Crenshaw, 378 S.W.3d

at 467-68.

Similarly, in the instant case the jury charge included the full, statutory

definition of “sexual contact” in the abstract portion. But the application paragraph

only authorized a conviction on the specific contact that comprised the lesser-

included offense of indecency with a child, i.e., “causing the genitals of [K.S.], to

contact the genitals of [appellee.]” As such, the jury charge did not expand the

allegations against appellee. Crenshaw, 378 S.W.3d at 467-68.

In his brief, appellee cites another Texas Court of Criminal Appeals case,

Burnett v. State, 541 S.W.3d 77 (Tex. Crim. App. 2017), for the proposition that

the inclusion of the full, statutory definition of “sexual contact” was jury charge

error. However, Burnett is distinguishable from both the instant case and Crenshaw

in that the jury charge in Burnett included the expanded definition of

23
“intoxication” in both the abstract and application sections. Id. at 78. We cannot

say that the instant case is analogous to Burnett, as the jury charge in the instant

case did not expand the allegation by authorizing a conviction using the expanded

definition in the application paragraph. The jury is presumed to have understood

and followed the court’s charge, absent evidence to the contrary. Crenshaw, 378

S.W.3d at 467 (citing Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App.

1996)).

Therefore, where the trial court would not have committed reversible error

in overruling appellant’s objection to the statutory definition in the abstract portion

of the jury charge, appellee was not prejudiced by trial counsel’s failure to object.

Martinez, 330 S.W.3d at 901.

2. Failure to Object to Extraneous Offenses

Appellee argued in his motion for new trial that trial counsel rendered

deficient performance in failing to object to the extraneous offense evidence

regarding alleged incidents when K.S. was 13 and 19 and in Polk and Galveston

Counties, and appellee suffered prejudice as a result.

“It is a well established and fundamental principle in our system of justice

that an accused person must be tried only for the offense charged and not for being

a criminal (or a bad person) generally.” Templin v. State, 711 S.W.2d 30, 32 (Tex.

Crim. App. 1986).

24
To avoid surprises during trial, rule 404(b) of the Texas Rules of Evidence

requires the prosecutor to give reasonable notice before trial begins if the

prosecution intends to introduce evidence—other than that arising from the same

transaction—in its case-in-chief. TEX. R. EVID. 404(b); Rodriguez v. State, 546

S.W.3d 843, 863 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Worthy v. State,

312 S.W.3d 34, 37 (Tex. Crim. App. 2010). The notice requirement under rule

404(b) is triggered by a timely request by the accused. See Webb v. State, 995

S.W.2d 295, 298 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding that

defendant’s failure to ask State to give notice of its intent to introduce extraneous

offense evidence precluded any complaint about sufficiency of notice he was

given); see also Hernandez v. State, 914 S.W.2d 226, 235 (Tex. App.—Waco

1996, no pet.) (holding three days’ notice was untimely where defendant filed

request for notice of extraneous bad-act evidence). When a defendant requests

notice of extraneous offense evidence, it triggers the State’s duty to provide

reasonable notice. Webb v. State, 36 S.W.3d 164, 176-77 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d).

Likewise, article 38.37 of the Texas Code of Criminal Procedure requires at

least 30 days’ notice of the State’s intent to introduce evidence of extraneous

offenses or acts. TEX. CODE CRIM. PROC. art. 38.37 § 3. The notice requirement

under article 38.37 is automatic and does not require a request from the accused to

25
trigger it. Id. Upon proper notice, notwithstanding rules 404 and 405 of the Texas

Rules of Evidence, evidence of any crimes, wrongs, or acts committed by the

defendant against the complainant of the alleged offense shall be admitted for its

bearing on relevant matters, including the state of mind of the defendant and the

complainant, and the previous and subsequent relationship between the defendant

and complainant. Id. art. 38.37 § 1. Without proper notice, it is error to admit

extraneous offense evidence at trial. See, e.g., Dominguez v. State, No. 04-04-

00902-CR, 2005 WL 3533047 at *2 (Tex. App.—San Antonio 2005, no pet.)

(mem. op., not designated for publication) (holding that it was error–albeit

harmless–to admit extraneous offense evidence without notice); Garcia v. State,

No. 04-06-00449-CR, 2007 WL 3084671 at *2 (Tex. App.—San Antonio 2007, no

pet.) (mem. op., not designated for publication) (same); Hernandez v. State, No.

13-97-00675-CR, 1998 WL 34202539 at *2 (Tex. App.—Corpus Christi 1998, no

pet.) (mem. op., not designated for publication) (same).

In Dryer v. State, we held that trial counsel rendered ineffective assistance

for failing to object to certain extraneous offense evidence during the guilt-

innocence phase of trial. 674 S.W.3d 635, 653 (Tex. App.—Houston [1st Dist.]

2023, pet. ref’d). In Dryer, the defendant’s trial counsel failed to object to

extraneous offense evidence pertaining to a second complainant, which the State

26
sought to admit under section 2 of article 38.37.10 Id. at 639. The State specifically

sought to admit testimony from the extraneous complainant that, when she was 17

years old, the defendant touched her upper thigh and moved his hand toward her

“private area.” Id. The defendant’s trial counsel made a general objection on the

grounds that the testimony was irrelevant or that its relevance was substantially

outweighed by the danger of unfair prejudice. Id. at 639-40. The trial court ruled

that the extraneous incident was admissible. Id. at 640. We reversed, reasoning that

the evidence was inadmissible where the extraneous complainant was not a “child”

for the purposes of admissibility on the theory that the defendant committed an

offense enumerated in section 2 of article 38.37. Id. at 647-48. As such, the

defendant’s trial counsel rendered deficient performance by failing to object on

that basis, as “no competent lawyer would have failed to make this objection.” Id.

at 648. We found that the appellant suffered prejudice from trial counsel’s error,

where the extraneous offense corroborated the testimony of the complainant of the

charged offense. Id. at 652.

In this case, appellee timely requested notice of extraneous offense evidence

and discovery of the same. Notwithstanding the notice provisions of article 38.37

and rule 404(b), the State presented evidence of three extraneous offenses that

10
Section 1 of article 38.37 of the Texas Code of Criminal Procedure concerns
evidence regarding the same complainant as the charged offense. Section 2 of
article 38.37 concerns evidence regarding a separate complainant than the
complainant in the charged offense. TEX. CODE CRIM. PROC. art. 38.37.
27
were noticed untimely or not at all. Specifically, the State presented evidence that

(1) when K.S. was 13 years old, the defendant touched her butt and breasts through

her clothing (untimely notice); (2) in Onalaska appellee “fingered” K.S. and

touched K.S.’s breasts when she was 16 years old (no notice); (3) in Onalaska

when K.S. was 16 years old she awoke to find her pants pulled down and appellee

getting off of her and pulling his pants up (no notice); (4) in Galveston, appellee

made complainant touch him “through the pants on his penis” causing him to

“ejaculate through his pants” (no notice); and (5) when K.S. was 19 years old, the

defendant put his hands up her sweatshirt and played with her breasts through her

bra (untimely notice). Indeed, the notice does not include any mention of

extraneous offenses alleged to have occurred outside of Harris County or

extraneous offenses involving appellee having K.S. touch his penis.

Had trial counsel objected, the trial court could have excluded the

extraneous allegation due to the State’s untimely notice or lack of notice. See

Distefano v. State, 532 S.W.3d 25, 36 (Tex. App.—Houston [1st Dist.] 2016, pet.

ref’d) (holding that article 38.37 did not violate separation of powers where trial

court retained discretion to exclude evidence); see Hernandez v. State, 176 S.W.3d

821, 824 (Tex. Crim. App. 2005) (“[s]ince the notice requirement of Rule 404(b) is

a rule of evidence admissibility, then it is error to admit Rule 404(b) evidence

28
when the State has not complied with the notice provision of Rule 404(b)”). 11 In

the alternative, the trial court could have granted a continuance to reduce the

surprise. See Hernandez, 176 S.W.3d at 824.12

Had the trial court excluded the extraneous offense evidence, the jury would

have heard only about the charged offense and not about an allegedly yearslong

campaign of child abuse by appellee against K.S. Evidence of extraneous offenses

can be inherently prejudicial. See Williams v. State, 662 S.W.2d 344, 346 (Tex.

Crim. App. 1983) (acknowledging evidence of extraneous robbery bolstered

circumstantial evidence of appellant’s being merely present during subsequent

robbery of same location).

In Dryer, we held that the erroneous admission of extraneous conduct

caused Strickland prejudice under similar circumstances. 674 S.W.3d at 652-53.

The admission of the extraneous offense in Dryer expanded the presentation of

evidence from the charged offense alone to multiple allegations. Id. at 652. We

11
The trial court, in its order granting the motion for new trial, found that “had a
notice objection been made, it would have been sustained.”
12
Neither party appears to suggest the possibility that the remedy for the lack of
notice could have been a continuance. Had trial counsel had more time, she could
have fulfilled her duty to investigate the extraneous allegations. See Rompilla v.
Beard, 545 U.S. 374, 383-84 (2005) (holding that counsel had duty in capital
murder trial to investigate the accused’s prior conviction for rape). Such
investigation might have revealed other witnesses who were present at the time of
the alleged incidents, or prior inconsistent statements by K.S. regarding the alleged
incidents. However, without timely notice, there was likely no opportunity for
such investigation.
29
reasoned that, because the extraneous offense evidence bolstered the complainant’s

testimony about the abuse, there was a reasonable probability that the outcome of

the trial would have been different. Id. In doing so, we noted several cases in

which the accused suffered Strickland prejudice, i.e., there was a reasonable

probability that the outcome of the trial would have been different. See, e.g., Ex

parte Menchaca, 854 S.W.2d 128, 132-33 (Tex. Crim. App. 1993) (holding that

lawyer’s failure to prevent admission of inadmissible prior conviction for rape in

drug prosecution was both deficient and prejudicial in significant part because it

permeated entire guilt-innocence phase of trial and outcome rested entirely on

credibility of witnesses, and prior conviction undermined defendant’s credibility

and thus heart of his defense); Garcia v. State, 308 S.W.3d 62, 66-69, 75-76 (Tex.

App.—San Antonio 2009, no pet.) (holding that lawyer’s opening door to rebuttal

evidence of defendant’s sexual assault of second victim in prosecution for sexual

assault was, among other failings, deficient and prejudicial given that sole viable

defense depended on defendant’s credibility); Stone v. State, 17 S.W.3d 348, 352-

54 (Tex. App.—Corpus Christi 2000, pet. ref’d) (holding lawyer’s introduction of

otherwise inadmissible murder conviction during trial’s guilt-innocence phase in

drug prosecution was both deficient and prejudicial because it diminished

defendant’s credibility, which was critical to his defense, and corroborated

prosecution evidence about his behavior); Ramirez v. State, 873 S.W.2d 757, 762-

30
63 (Tex. App.—El Paso 1994, pet. ref’d) (holding lawyer’s failure to prevent

admission of evidence of remote murder conviction during trial’s guilt-innocence

phase was deficient and prejudicial in that defendant claimed self-defense and his

prior conviction both harmed his credibility and was used by the prosecutor to

argue that he had propensity to commit murder).

In the instant case, this testimony and argument considerably expanded the

narrative from the charged allegation into an entire adolescence of sexual abuse, all

without the requisite notice under article 38.37 and rule 404(b). K.S.’s testimony

about the charged offense comprises less than three pages of the trial transcript. By

contrast, K.S.’s testimony about extraneous allegations comprises almost seven

pages of the trial transcript. This battery of allegations permeated the trial and

significantly undermined the defense’s theory that K.S. had fabricated the charged

allegation because she was upset with appellee. In closing arguments, the State

highlighted the unnoticed extraneous allegations, characterizing the incident of

K.S.’s touching appellee’s penis as “her prize for doing this,” and recounting the

out-of-county “fingering” incident with vivid detail. As such, where the extraneous

offense evidence permeated the entire trial and expanded K.S.’s testimony from

one isolated allegation to a yearslong campaign of sexual abuse, appellee suffered

prejudice. Dryer, 674 S.W.3d at 652-53.

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Because appellee received ineffective assistance of trial counsel for failing

to object to the unnoticed extraneous offenses, and there is a reasonable probability

the outcome would have been different without this evidence, this ground was

sufficient to warrant a new trial. Id.

Conclusion

Having found that there was a sufficient ground for the trial court to grant

appellee’s motion for new trial, we affirm the trial court’s order.

Amparo “Amy” Guerra
Justice

Panel consists of Justices Guerra, Guiney, and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).

32