Scott Edward Vanzandt v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00237-CR

Scott Edward Vanzandt,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2020-953-C1

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Scott Edward Vanzandt was charged with two counts of indecency with

a child for touching the genitals (count one) and the breast (count two) of his

neighbor, C.T., in 2019. See TEX. PENAL CODE ANN. § 21.11. After finding

Vanzandt guilty on both counts, a jury assessed his punishment at seventeen

years in prison on each count. The trial court ordered those sentences to be

served consecutively. In three issues on appeal, Vanzandt contends that the
evidence was insufficient to support his conviction in count two, that the trial

court erroneously admitted extraneous-offense testimony in violation of Texas

Rule of Evidence 403, and that the written judgments should be modified to

reflect that the complainant was sixteen years old at the time of the offenses.

We affirm.

Sufficiency of the Evidence – Count Two

In his first issue, Vanzandt argues that the evidence is insufficient to

support his conviction in count two for touching C.T.’s breast because C.T.

denied the charged conduct in her testimony, and the outcry testimony was

“not more than a generalized insinuation that a sexual offense had occurred.”

We disagree.

STANDARD OF REVIEW AND APPLICABLE LAW

The Court of Criminal Appeals has expressed our standard of review of

sufficiency issues as follows:

When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App.
2017). This standard requires the appellate court to defer “to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319, 99 S. Ct. 2781. We may not re-weigh the evidence or
substitute our judgment for that of the factfinder. Williams v.

Scott Edward Vanzandt v. The State of Texas Page 2
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court
conducting a sufficiency review must not engage in a “divide and
conquer” strategy but must consider the cumulative force of all the
evidence. Villa, 514 S.W.3d at 232. Although juries may not
speculate about the meaning of facts or evidence, juries are
permitted to draw any reasonable inferences from the facts so long
as each inference is supported by the evidence presented at trial.
Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing
Jackson, 443 U.S. at 319, 99 S. Ct. 2781); see also Hooper v. State,
214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the
factfinder resolved any conflicting inferences from the evidence in
favor of the verdict, and we defer to that resolution. Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because
the jurors are the exclusive judges of the facts, the credibility of
the witnesses, and the weight to be given to the testimony. Brooks
v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a
conviction so long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. Ramsey v.
State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214
S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the
offense as defined by the hypothetically correct jury charge for the
case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge is one that “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 tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The “law as authorized by the indictment” includes the
statutory elements of the offense and those elements as modified
by the indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

Scott Edward Vanzandt v. The State of Texas Page 3
Article 38.072 of the Code of Criminal Procedure permits testimony from

the first person eighteen years of age or older, other than the defendant, to

whom the child made a statement about the offense. TEX. CODE CRIM. PROC.

ANN. art. 38.072, § 2(a). A “statement” about the offense can include nonverbal

conduct intended by the person as a substitute for verbal expression. See TEX.

R. EVID. 801(a); see Cervantes v. State, 594 S.W.3d 667, 673-74 (Tex. App.—

Waco 2019, no pet.). Courts have construed a statement “about the offense” to

mean a statement that “in some discernible manner describes the alleged

offense” and is more than “a general allusion” of sexual abuse. Garcia v. State,

792 S.W.2d 88, 91 (Tex. Crim. App. 1990).

Outcry testimony admitted in compliance with article 38.072 is

considered substantive evidence, admissible for the truth of the matter

asserted in the testimony. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim.

App. 1991). Because this type of evidence is substantive evidence with some

probative value, it is, by itself, sufficient to support a jury’s verdict of

conviction. Id. When the requisites of article 38.072 are met, there is no

requirement that the testimony of the outcry witness be corroborated or

substantiated by the victim’s testimony or independent evidence. Id. at 874.

Scott Edward Vanzandt v. The State of Texas Page 4
RELEVANT FACTS

C.T.’s mother testified as the outcry witness at trial. See TEX. CODE

CRIM. PROC. ANN. art. 38.072.1 She recalled that shortly after C.T.’s sixteenth

birthday, she overheard C.T. on a phone call stating that she felt

uncomfortable walking down their street. C.T.’s mother questioned her about

the source of her discomfort. C.T. stated that Vanzandt invited her over to give

her a birthday gift, and “when she got there, he came up from behind her,

kissed her, and then touched her inappropriately in her private areas.” C.T.’s

mother explained that C.T. did not verbally identify her “private areas,” but

she used her “hands and motions” to indicate where she was touched. When

asked to describe C.T.’s hand gestures, her mother stated, “[h]er hands noted

it was in the upper region area around her breast location.” She described

C.T.’s demeanor during the conversation as “upset and crying” and noted that

she had to “calm her down.”

C.T. was twenty years old when she testified at trial. She recalled that

Vanzandt invited her over to give her a birthday gift in September of 2019,

shortly before her sixteenth birthday on October 2nd. She remembered that

some of the other neighborhood children were playing in the driveway when

1 Prior to testifying in front of the jury, the trial court held a hearing outside of the jury’s presence and

determined that C.T.’s statements to her mother were reliable based on the time, content, and
circumstances of the statement. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2).

Scott Edward Vanzandt v. The State of Texas Page 5
she walked through the door leading from the garage into Vanzandt’s home.

Once inside, Vanzandt hugged her and gave her $20. When C.T. turned around

to leave, she described that Vanzandt was standing behind her and his “left

arm was across my chest and his right arm was between my legs.”

When pressed to describe Vanzandt’s actions in more detail, C.T.

explained, “His left arm was more from elbow to wrist length was [sic] around

the top. And I’d say his hand was on my right shoulder […] Kind of like if you

were to like give someone a hug from behind.” The State directly asked

whether Vanzandt touched her breast when he was hugging her from behind,

and C.T. responded, “I don’t think so that I remember. I just remember his left

arm was like holding across my chest just like hand to shoulder.” C.T. did not

recall participating in a forensic interview, and she did not recall telling the

forensic interviewer that Vanzandt’s right hand squeezed her left breast

during the hug. She did, however, specifically recall that Vanzandt touched

her vagina over her clothes with his hand.

No additional testimony or other evidence was admitted at trial about

Vanzandt touching C.T.’s breast.

ANALYSIS

In support of his position, Vanzandt attempts to distinguish this case

from our unpublished opinion, Luttoschka v. State, No. 10-23-00168-CR, 2024

Scott Edward Vanzandt v. The State of Texas Page 6
WL 4457567, at *1-4 (Tex. App.—Waco Oct. 10, 2024, no pet.) (mem. op., not

designated for publication), and analogizes the outcry testimony in this case to

the complainant’s mother’s testimony in Ward v. State, No. 10-22-000367-CR,

2023 WL 3628107, at *3-4 (Tex. App.—Waco May 24, 2023, no pet.) (mem. op.,

not designated for publication). We are not persuaded.

In Luttoschka, the complainant testified at trial and denied the indicted

conduct of the defendant’s finger penetrating his anus. Luttoschka, 2024 WL

4457567 at *2. The child’s mother testified as the outcry witness. Id. She

testified that when she questioned the child about whether anyone had touched

his “no-no areas,” the child demonstrated with his hand what the defendant

had done to him by showing his “fingers going into his crack.” Id. Vanzandt

mistakenly argues on appeal that we found the evidence was sufficient to

sustain Luttoschka’s conviction based on the testimony from the outcry

witness and additional evidence. Rather, we held that

[The mother’s] testimony did not need to be corroborated or
substantiated. Because the jury is the sole judge of the credibility
and weight to be given the witnesses’ testimony, it could have
believed [the mother] rather than [the child] as to how Luttoschka
sexually assaulted [the child]. And because Luttoschka's
conviction can be supported by the testimony of [the mother] alone,
we find the evidence sufficient to support the challenged element.

Id. at *3. We then observed that other evidence of Luttoschka’s guilt existed

outside of the outcry witness’s testimony. Id. Our comments, however, did not

Scott Edward Vanzandt v. The State of Texas Page 7
modify our holding that the outcry witness testimony was sufficient on its own

to sustain the conviction. We performed this additional analysis in the event

that, “[i]f upon further review it is determined [the mother’s] testimony alone

is not otherwise sufficient, with this additional testimony, we find the evidence

sufficient to support the challenged element.” Id.

In Ward, the trial court determined that the forensic interviewer was the

proper outcry witness at trial instead of the child’s mother. Ward, 2023 WL

3628107 at *4. Ward challenged that determination on appeal. We found no

abuse of discretion because the complainant’s statement to her mother that “he

did everything to me” was a generalized insinuation that an indiscernible

sexual offense occurred. Id.

Here, C.T.’s mother was designated as the outcry witness pursuant to

article 38.072, and her testimony was admitted without objection. Therefore,

her testimony constituted substantive evidence that did not need to be

corroborated or substantiated by C.T.’s testimony or other independent

evidence. See Rodriguez, 819 S.W.2d at 874. Further, C.T.’s mother’s

testimony is distinguishable from the statement in Ward and comparable to

the outcry testimony in Luttoschka. C.T.’s mother testified that in addition to

C.T.’s outcry that Vanzandt touched her “private areas,” she physically

demonstrated where Vanzandt touched her by gesturing with her hands and

Scott Edward Vanzandt v. The State of Texas Page 8
using motions “around her breast location.” C.T.’s outcry was accompanied by

other contextual evidence, such as C.T.’s indication that the contact was

“inappropriate,” her distraught demeanor while she demonstrated how

Vanzandt touched her, as well as Vanzandt kissing C.T. before touching her.

See Arroyo v. State, 559 S.W.3d 484, 487-89 (Tex. Crim. App. 2018); see also In

re J.P., No. 10-22-00122-CV, 2023 WL 1823442 at *2-3 (Tex. App.—Waco 2023,

pet. denied). Additionally, Dr. William Lee Carter, Psychologist, explained

that C.T.’s inability to recall that Vanzandt touched her breast at trial may

have been a trauma response to the sexual abuse.

As the reviewing court, our role “is restricted to guarding against the

rare occurrence when the factfinder does not act rationally.” Arroyo, 559

S.W.3d at 487. We find that the evidence, when considered in the appropriate

light and pursuant to the standard articulated above, supports a reasonable

finding by the jury that C.T. outcried to Vanzandt touching her breast as

charged in count two of the indictment. Because the jury is the sole judge of

the credibility and weight to be given the witnesses’ testimony, it could have

believed C.T.’s mother’s testimony in spite of C.T.’s inability to recall at trial

whether Vanzandt touched her breast.

Scott Edward Vanzandt v. The State of Texas Page 9
We find the evidence is sufficient for rational jury to have found the

essential elements of the offense alleged in count two beyond a reasonable

doubt. Accordingly, we overrule Vanzandt’s first issue.

Extraneous-Offense Evidence

In his second issue, Vanzandt contends that the trial court abused its

discretion in admitting the testimony of E.V. and B.C. over his Rule 403

objection. See TEX. R. EVID. 403. Both E.V. and B.C. testified pursuant to

article 38.37, section 2 of the Code of Criminal Procedure and alleged that

Vanzandt committed sexual offenses against them when they were children.

See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2. On appeal, Vanzandt contends

that the probative value of their testimony was outweighed by the danger of

unfair prejudice. We disagree.

STANDARD OF REVIEW AND APPLICABLE LAW

We review the trial court's decision to admit contested testimony under

an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex.

Crim. App. 2007). We will uphold the trial court's decision if it is within the

zone of reasonable disagreement. Id.

In prosecutions for sexual offenses against children,

article 38.37 permits the admission of evidence concerning certain extraneous

sexual offenses committed by the defendant “for any bearing the evidence has

Scott Edward Vanzandt v. The State of Texas Page 10
on relevant matters, including the character of the defendant and acts

performed in conformity with the character of the defendant.” See TEX. CODE

CRIM. PROC. ANN. art. 38.37, § 2(b). Even when evidence of a defendant's

extraneous acts is relevant under article 38.37, the trial court must still

conduct a Rule 403 balancing test upon proper objection or request. Distefano

v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

The balancing test is not required to be performed on the record. Id. When a

trial court conducts a Rule 403 balancing test, it must balance (1) the inherent

probative force of the evidence along with (2) the proponent's need for that

evidence against (3) any tendency of the evidence to suggest a 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 repeat evidence already

admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.

2006).

RELEVANT FACTS

The trial court held a hearing outside of the jury’s presence to determine

the admissibility of extraneous-offense testimony from E.V. and B.C. pursuant

Scott Edward Vanzandt v. The State of Texas Page 11
to article 38.37. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a. Defense

counsel objected to their testimony as a violation of due process and as more

prejudicial than probative under Rule 403. The trial court found the testimony

was relevant and admissible under a Rule 403 balancing test and overruled

defense counsel’s objections.2

E.V.’s Testimony

Vanzandt’s niece, E.V., was twenty-nine years old at the time of trial.

She testified that in April of 2011, when she was sixteen years old, she spent

the night at her uncle’s house while her infant brother was in the hospital. The

next morning, E.V. sat on the bed in the room where she had slept. She was

wearing a t-shirt and shorts, but was not wearing a bra. Vanzandt entered the

room, sat on the bed with her, and began tickling her. E.V. testified that

Vanzandt got on top of her, put his hands under her shirt, and touched her

breasts, causing her to feel “extremely uncomfortable” and she stood up. She

recalled that Vanzandt became angry.

This incident caused E.V. to reexamine another uncomfortable situation

with Vanzandt that occurred when she was eight or nine years old. E.V.

recalled that she, her cousin, and her brother were spending the night at her

2 Defense counsel also filed a motion to declare article 38.37 unconstitutional, which the trial court

denied. On appeal, Vanzandt does not challenge the admissibility of the testimony pursuant to article
38.37, the constitutionality of article 38.37, or claim a due process violation.

Scott Edward Vanzandt v. The State of Texas Page 12
grandmother’s house. Vanzandt decided to spend the night as well. E.V. was

lying down on the couch when Vanzandt lay behind her and started “spooning”

her. She remembered Vanzandt smelling her neck and the back of her head as

he was holding her. E.V. felt uncomfortable and went to the bathroom. When

she returned, she recalled Vanzandt’s mood had changed and he had become

angry or upset.

E.V. explained that although she told her parents about what happened

in 2011, a report was not filed because her parents were so distraught from her

baby brother’s passing.3 In 2021, E.V. discovered C.T.’s report in this case and

spoke with a detective about her experiences with Vanzandt.

B.C.’s Testimony

In 2005, when B.C. was in the seventh grade, she was close friends with

Vanzandt’s daughter and spent a lot of time at the Vanzandt home. Vanzandt

was also friends with B.C.’s mother and would eat Sunday meals with B.C.’s

family. Though B.C. initially thought of Vanzandt as a “cool dad,” she

described how their relationship evolved to include sexual activity when she

was around thirteen years old.

B.C. remembered a time when she was watching a movie in Vanzandt’s

living room with a few other children. Vanzandt was lying on the couch and

3 E.V. indicated that her infant brother passed away from SIDS.

Scott Edward Vanzandt v. The State of Texas Page 13
B.C. was lying parallel to the couch on the floor. Vanzandt caressed B.C.’s arm

and back, which B.C. described as feeling “weird.” B.C. testified that she and

Vanzandt began texting and messaging each other online. She would message

Vanzandt about her “miserable childhood” and began to trust him.

She recalled that when she was thirteen years old, during a Sunday

meal with her family at which Vanzandt was present, Vanzandt said he needed

to “go get something” and asked B.C. to join him. They went to Vanzandt’s

house, where he held her while they lay on his bed. B.C. remembered that

Vanzandt pulled her tank top down to expose her breasts, which caused the

strap to break. Vanzandt then put on a condom and had intercourse with her.

B.C. estimated that Vanzandt would have intercourse with her

approximately once per month and testified that Vanzandt would also engage

in mutual oral sex with her. She further agreed with the State that Vanzandt

would sometimes hug her from behind, wrap his arms around her, touch her

“over [her] chest,” and reach his hand down to touch her vagina. Their physical

relationship ended when B.C. was “driving age” and she realized that her

activity with Vanzandt was wrong.

ANALYSIS

Under Rule 403, it is presumed that the probative value of relevant

evidence exceeds any danger of unfair prejudice. Hammer v. State, 296 S.W.3d

Scott Edward Vanzandt v. The State of Texas Page 14
555, 568 (Tex. Crim. App. 2009). The rule envisions exclusion of evidence only

when there is a “clear disparity” between the degree of prejudice of the offered

evidence and its probative value. Id.

Inherent Probative Force – Factors One and Two

The first and second Gigliobianco factors help establish the inherent

probative force of the evidence, meaning how strongly the evidence 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 evidence. Gigliobianco,

210 S.W.3d at 641. Vanzandt acknowledges that extraneous sexual offense

evidence is probative of a defendant's character or propensity to commit sexual

assaults on children. See Deggs v. State, 646 S.W.3d 916, 925-26 (Tex. App.—

Waco 2022, pet. ref’d). However, he asserts that the first factor weighs against

admission of E.V. and B.C.’s testimony because the allegations were too remote

and dissimilar from the instant offenses. We disagree.

While remoteness of extraneous-offense evidence can lessen its probative

value, it is but one consideration in the analysis. See Newton, 301 S.W.3d 315,

319 (Tex. App.—Waco 2009, pet. ref’d). Here, the complained-of evidence was

probative of Vanzandt’s propensity to commit sexual offenses of a similar

nature against teenage girls of approximately the same age. See Deggs, 646

S.W.3d at 926. E.V. was sixteen years old at the time Vanzandt touched her

Scott Edward Vanzandt v. The State of Texas Page 15
breasts – the same sexual misconduct alleged in count two against C.T. just a

few weeks before her sixteenth birthday. B.C. was between the ages of thirteen

and “driving age; so, probably freshman, sophomore year” when Vanzandt

allegedly committed sexual offenses against her. While B.C.’s testimony

encompassed some sexual acts dissimilar from the allegations in this case, she

also agreed that “at the beginning,” Vanzandt would hug her from behind,

touched her over her chest, and touch her vagina – the same conduct described

by C.T. in this case. The extraneous-offense evidence further demonstrated

that Vanzandt had a propensity to normalize physical contact with each victim

in the presence of other children. E.V. and B.C. testified to instances of

Vanzandt holding or caressing them while other children were present.

Similarly, one of the witnesses who often spent time at Vanzandt’s home

testified that Vanzandt would touch and tickle C.T. in his presence, which the

witness felt was inappropriate.

Secondly, the proponent's need for the evidence must be taken into

consideration. Gigliobianco, 210 S.W.3d at 641. Though Vanzandt contends

otherwise, this was largely a “he-said/she-said” case. See Hammer, 296 S.W.3d

at 561-62; Holland v. State, 702 S.W.3d 836, 843 (Tex. App.—Waco 2024, pet.

ref’d). None of the children who were allegedly present in Vanzandt’s front

yard when the offenses occurred inside of the residence recalled seeing C.T.

Scott Edward Vanzandt v. The State of Texas Page 16
and Vanzandt enter the residence together. No physical or scientific evidence

was offered at trial. The trial court could have reasonably concluded that the

State had a considerable need for the extraneous evidence to rebut Vanzandt’s

thoroughly-developed defensive theory of fabrication and challenges to C.T.’s

credibility at trial. See Newton, 301 S.W.3d at 320; Holland, 702 S.W.3d at

843. Defense counsel cross-examined C.T. about experiencing vivid

nightmares of crimes committed against her or her family around the time of

the offense. Most of the defense witnesses testified to C.T.’s general reputation

for untruthfulness, with one witness calling her a “liar” and a “thief,” and

another specifically asserting that C.T. would fabricate a sexual abuse

allegation to avoid losing her phone as punishment from her parents. In cases

such as this, Rule 403 should be used sparingly to exclude relevant, otherwise

admissible evidence that might bear upon the credibility of either the

defendant or the complainant. See Hammer, 296 S.W.3d at 561-62.

We find that the first and second factors weigh in favor of admission.

Unfair Prejudice - Factors Three, Four, Five, and Six

The remaining Gigliobianco factors address the dangers enumerated

in Rule 403 that must substantially outweigh the probative value established

by the first and second factors in order for the evidence to be excluded.

Gigliobianco, 210 S.W.3d at 641-42.

Scott Edward Vanzandt v. The State of Texas Page 17
Vanzandt concedes, and we agree, that the fifth factor weighs in favor of

admission because the jury was equipped to properly evaluate the probative

force of the extraneous-offense evidence. However, he argues that the

remaining factors weigh in favor of exclusion because the extraneous offense

evidence was inherently inflammatory, increased the likelihood that the jury

would convict him out of “revulsion,” and took an inordinate amount of time to

develop.

With respect to the third factor, we recognize that extraneous-offense

evidence of this nature can have a tendency to suggest a verdict on an improper

basis because of the inherently inflammatory and prejudicial nature of crimes

of a sexual nature committed against children. See Newton, 301 S.W.3d at

320. The third factor weighs in favor of exclusion.

Vanzandt argues that the fourth factor should weigh in favor of exclusion

because the trial court did not give a limiting instruction prior to admitting the

extraneous-offense testimony. Vanzandt’s trial counsel did not request a

limiting instruction when the extraneous-offense evidence was offered, and he

objected to the inclusion of an article 38.37 limiting instruction in the jury

charge. Even so, the trial court overruled the objection and included an

instruction that admonished the jury about the purpose and scope for which

Scott Edward Vanzandt v. The State of Texas Page 18
they could consider the extraneous evidence.4 The jury charge also identified

the specific elements the State was required to prove in each count, thereby

redirecting the jury to the main issues in the case. The fourth factor weighs in

favor of admission.

As to the final factor, Vanzandt engages in page counting to argue that

the State spent an inappropriate amount of time (approximately one-third of

its case) developing the extraneous evidence.5 See Russell v. State, 113 S.W.3d

530, 546 (Tex. App.—Fort Worth 2003, pet. ref'd) (factor weighed in favor of

exclusion where extraneous-offense evidence amounted to about 30% of

testimony). The State argues that nothing in the record suggests that the time

needed to present the evidence was so out-of-the-ordinary as to distract the

jury from the indicted offenses and classifies this as a neutral factor. Even

assuming this final factor weighs in favor of exclusion, Rule 403 envisions

exclusion of evidence only when there is a “clear disparity” between the degree

4 The jury charge limiting instruction stated:

You are further instructed that if there is any evidence before you concerning an
alleged offense or offenses, if any, against a child under seventeen (17) years of age,
other than the complainant alleged in the indictment, such offense or offenses, if any,
may only be considered if you believe beyond a reasonable doubt that the Defendant
committed such other offense or offenses, if any, then you may consider said evidence
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.

5 See Newton, 301 S.W.3d at 322 (Gray, CJ, concurring with a note) (explaining the inherent dangers

in relying upon page counting in assessing this factor, namely, that “counting pages is dangerous
because it tends to encourage inappropriate behavior and allows us to second guess the trial court
based upon information not before the trial court at the time it made its ruling.”).

Scott Edward Vanzandt v. The State of Texas Page 19
of prejudice of the offered evidence and its probative value. Hammer, 296

S.W.3d at 568. There exists no “clear disparity” here. We cannot say that the

trial court abused its discretion in overruling Vanzandt’s Rule 403 objection.

Accordingly, we overrule Vanzandt’s second issue.

Reformation of Judgments

When, as here, a defendant is convicted of an offense requiring sex

offender registration under Chapter 62 of the Code of Criminal Procedure, the

written judgment must include a statement of the age of the victim at the time

of the offense. See TEX. CODE CRIM. PROC. ANN. arts. 42.01, §1(27),

62.001(5)(A). Here, the written judgments state that C.T. was fifteen years old

at the time of the offense. The indictment, however, states that each offense

was committed on or about October 10, 2019, when C.T. was sixteen years old.

In his third issue, without citation to authority, Vanzandt argues that the

judgments should be modified to reflect that C.T. was sixteen years old because

“[u]sually, the age reflected in the judgment is based on the date alleged in the

indictment.”

However, “[t]he date an offense was committed cannot be determined by

looking at an indictment, it must be determined by looking at the evidence

presented at trial.” Allen v. State, 620 S.W.3d 915, 921 (Tex. Crim. App. 2021).

Here, the evidence at trial did not conclusively establish an exact date on which

Scott Edward Vanzandt v. The State of Texas Page 20
these offenses were committed; however, C.T.’s testimony that Vanzandt

inappropriately touched her in September of 2019, at which time she was

fifteen years old, supports the complained-of statements in the judgments.

Accordingly, we overrule Vanzandt’s third issue.

Conclusion

Having overruled all of Vanzandt’s issues on appeal, we affirm the

judgments of the trial court.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: September 18, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

Scott Edward Vanzandt v. The State of Texas Page 21