Thi Nguyen v. the State of Texas

Affirmed and Memorandum Opinion filed July 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00076-CR
NO. 14-23-00077-CR

THI NGUYEN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 18-DCR-084900 & No. 18-DCR-084901

MEMORANDUM OPINION

Appellant Thi Nguyen was convicted of the second-degree felony offenses
of indecency with a child (trial-court cause number 18-DCR-084900; appellate
case number 14-23-00076-CR) and sexual assault of a child (trial-court cause
number 18-DCR-084901; appellate case number 14-23-00077-CR). See Tex. Penal
Code Ann. §§ 21.11(a)(1); 22.011(a)(2). The jury assessed punishment at
imprisonment for 10 years for the offense of indecency with a child and 20 years
for the offense of sexual assault of a child, to run concurrently. See Tex. Penal
Code Ann. § 12.33.

In four issues, appellant challenges his conviction on appeal. He argues that
the trial court made evidentiary errors by excluding evidence complainant was a
commercial sex worker and admitting evidence of another alleged victim pursuant
to Code of Criminal Procedure article 38.37. See Tex. Code Crim. Proc. Ann. art.
38.37. He further argues the trial court erred by excluding his objection to the
jury-charge instructions that allowed the jury to consider testimony of another
alleged victim for irrelevant purposes. Appellant also asserts he was denied
effective assistance of counsel in the guilt-innocence stage of trial.

We affirm the judgments of the trial court as challenged on appeal.

I. BACKGROUND

Complainant Jane Doe alleged that when she was fifteen-years old her father
began sexually abusing her. Although she testified that he had previously been her
best friend, after moving to Houston in 2018, Jane Doe alleged that appellant
touched her genital area, specifically on one occasion when she was sleeping next
to her father on the floor shortly after the family moved into a new home. She also
alleged that on two separate occasions appellant sexually assaulted her by causing
her to put her mouth on his sexual organ.

After Jane Doe made an outcry at school, appellant was arrested and charged
with indecency with a child and sexual assault of a child. At trial, Jane Doe
testified to the allegations she made against appellant. Over appellant’s objection,
the trial court also allowed the testimony of Jane Doe’s aunt, D.P., who alleged
that appellant sexually assaulted her when he was visiting her family twenty years
earlier and she was a minor.

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II. ANALYSIS

A. Exclusion of evidence regarding Jane Doe’s credibility

In issue one, appellant argues that the trial court erred by excluding evidence
in the guilt-innocence stage of trial that Jane Doe was an online commercial sex
worker.

Outside the presence of the jury, appellant requested the opportunity to
examine Jane Doe about whether she was a commercial sex worker. Counsel for
appellant told the trial court that he had a “good faith belief” that Jane Doe had a
profile—and offered “web camming” services—on a “My Fans” website. 1 Counsel
then explained that he had reviewed Jane Doe’s bank account and concluded that
her income was consistent with “either prostitution or somebody who’s doing
commercial sex web camming.” Because Jane Doe testified that she worked as a
barista, appellant asserted he was entitled to examine Jane Doe about her sources
of income because it would be relevant to Jane Doe’s credibility and whether Jane
Doe was committing a crime of moral turpitude. The trial court did not allow
appellant to examine Jane Doe about whether she was a commercial sex worker in
front of the jury but told appellant he could make an offer of proof later in the
proceedings. Appellant never made an offer of proof on this issue.

Appellant has not preserved error on this issue. See Tex. R. Evid. 103(a)(2)
(requiring offer of proof if evidence is excluded); Tex. R. App. P. 33.1(a). We
overrule issue one.

B. Admission of D.P.’s testimony pursuant to article 38.37

In issue four, appellant argues that although the law allows the State to offer
1
The State refers to the name of the website as an “OnlyFans.” However, the argument
made before the trial court did not refer to “OnlyFans,” nor was there a substantive discussion of
the website or its purpose.

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extraneous-conduct evidence, it was error to admit such evidence because the
evidence was substantially more prejudicial than probative. See Tex. Code Crim.
Proc. Ann. art. 38.37; Tex. R. Evid. 403.

1. Standard of review and applicable law

We review a trial court’s ruling on the admissibility of evidence of
extraneous offenses for an abuse of discretion. See Pawlak v. State, 420 S.W.3d
807, 810 (Tex. Crim. App. 2013) (citing Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1990 & 1991) (op. on reh’g)). We will affirm a trial court’s
evidentiary ruling that is within the zone of reasonable disagreement and correct
under any theory of law. See Pawlak, 420 S.W.3d at 810.

Generally, “an accused may not be tried for some collateral crime or for
being a criminal generally.” Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim.
App. 1991) (quoting Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App.
1983)). To that end, evidence of prior crimes, wrongs, or other acts that is
otherwise relevant is typically inadmissible to show that the defendant “acted in
accordance with the character” or had a propensity to commit the crime. Tex. R.
Evid. 404(b) (character evidence generally inadmissible); see also Tex. R. Evid.
401, 402. However, at a trial for indecency with a child or sexual assault of a child,
such as this one, the Code of Criminal Procedure does allow the admission of
certain extraneous offenses. See Tex. Code Crim. Proc. Ann. art. 38.37.

Article 38.37 describes the circumstances in which certain extraneous-act
evidence can be admitted:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a, evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) may be
admitted in the trial of an alleged offense described by Subsection
(a)(1) or (2) for any bearing the evidence has on relevant matters,

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including the character of the defendant and acts performed in
conformity with the character of the defendant.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b).2 Before evidence of such offenses is
admitted, the court must first “(1) determine that 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; and (2) conduct a
hearing out of the presence of the jury for that purpose.” Id. § 2-a. The State must
also provide notice to the defendant of its intent to introduce evidence under article
38.37. Id. § 3. The parties do not dispute that these statutory procedures were
followed.

Extraneous-offense evidence is not exempt from the scope of Texas Rule of
Evidence 403. Rule 403 states that the “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. The court of
criminal appeals has articulated a four-factor balancing test to determine whether
unfair prejudice substantially outweighs the probative value of an extraneous
offense under Rule 403:

(1) how compellingly the extraneous offense evidence serves to make
a fact of consequence more or less probable—a factor which is related
to the strength of the evidence presented by the proponent to show the
defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in
some irrational but nevertheless indelible way;”
(3) the time the proponent will need to develop the evidence, during
which the jury will be distracted from consideration of the indicted
2
Subsection (a)(1) lists eight specific offenses, including Penal Code sections 21.11
(indecency with a child), and 22.011(a)(2) (sexual assault of a child). Tex. Code Crim. Proc.
Ann. art. 38.37, § 2(a)(1), (2).

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offense; and
(4) the force of the proponent’s need for this evidence to prove a fact
of consequence, i.e., does the proponent have other probative
evidence available to him to help establish this fact, and is this fact
related to an issue in dispute.

De La Paz v. State, 279 S.W.3d 336, 348–49 (Tex. Crim. App. 2009) (citing Wyatt
v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)). The court also cautioned that
Rule 403 “should be used sparingly to exclude relevant, otherwise admissible
evidence that might bear upon the credibility of either the defendant or
complainant in such ‘he said, she said’ cases.” Hammer v. State, 296 S.W.3d 555,
562 (Tex. Crim. App. 2009). “[T]exas law, as well as the federal constitution,
requires great latitude when the evidence deals with a witness’s specific bias,
motive, or interest to testify in a particular fashion.” Id.

Although the court of criminal appeals has held that “sexually related bad
acts and misconduct involving children are inherently inflammatory,” “the plain
language of Rule 403 does not allow a trial court to exclude otherwise relevant
evidence when that evidence is merely prejudicial.” Pawlak, 420 S.W.3d at 811
(citing Tex. R. Evid. 403). “Indeed, all evidence against a defendant is, by its very
nature, designed to be prejudicial.” Pawlak, 420 S.W.3d at 811. Rather, Rule 403
only authorizes a court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice[.]” Tex. R. Evid. 403
(emphasis added); see Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App.
2002) (trial court abuses its discretion in admitting otherwise relevant and
admissible testimony “only if the danger of unfair prejudice substantially
outweigh[s] the probative value of [the] testimony”).

2. Trial court did not abuse its discretion

Appellant argues that the trial court erred in admitting D.P.’s testimony

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because it was inherently inflammatory and the probative value of her testimony
was minimal. Appellant argues D.P.’s testimony addressed allegations remote in
nature and dissimilar to those allegations made by Jane Doe. The State responds
that the testimony was properly admitted and that, although prejudicial, D.P.’s
testimony established appellant’s propensity to “prey upon young, teenage family
members.” The State also argued that it needed D.P.’s testimony to rebut
appellant’s defensive theory that Jane Doe made up her claims against appellant as
revenge or retaliation.

The opinion of the court of criminal appeals in Wheeler v. State is
instructive. 67 S.W.3d at 886–89. Wheeler was indicted for aggravated sexual
assault of a child who was his daughter’s friend. Id. at 880. He presented various
defensive theories at trial, including that the complainant had “made up” the
allegations against him for profit, and that he lacked opportunity because he was
never alone with the complainant or, alternatively, it was impossible to commit the
offense “in a room full of people.” Id. at 887. At trial, the State called Wheeler’s
niece to testify about an incident nine years earlier, when she was six years old,
during which Wheeler inappropriately touched her in a “very similar” manner as
he had touched the complainant: underneath her clothes while family members
were nearby. Id. at 886–87.

The court determined that the niece’s testimony was relevant to rebut
Wheeler’s defensive theories, including by showing that the complainant was not
motivated by greed in her allegations that Wheeler had sexually assaulted her. Id.
at 887. “Extraneous sex offenses were and are still admissible if they fall into one
of the proper ‘exceptions’ to the ‘general rule’ barring their admission.” Id.
(citation omitted). The court further “recognized that in prosecutions for sexual
offenses, a successful conviction ‘often depend[s] primarily on whether the jury

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believe[s] the complainant, turning the trial into a swearing match between the
complainant and defendant.’” Id. at 888 (citation omitted). The niece’s testimony
described an incident “quite similar to the charged event,” and it “provided, at a
minimum, the ‘small nudge’ towards contradicting [Wheeler’s] defensive theories
and towards proving that the molestation did indeed occur.” Id. (quoting
Montgomery, 810 S.W.2d at 381). The court held that the trial court did not abuse
its discretion in admitting the niece’s testimony under Rule 403. Id. at 889.

Here, appellant’s defensive theory was that the conduct and offenses alleged
by Jane Doe were invented. Appellant tried to paint Jane Doe as a troubled
teenager, who “lied with the precision of an adult.” He attempted to discredit her
testimony by arguing that he never committed any of the alleged acts and that her
allegations were intended to punish appellant for his parenting decisions. D.P’s
testimony that she was abused by appellant is relevant to rebut appellant’s
defensive theory that complainant invented her allegations against appellant. See
Wheeler, 67 S.W.3d at 887; see also De La Paz, 279 S.W.3d at 348–49 (stating
first factor of Rule 403 balancing test). It is also evidence of appellant’s character
and propensity to act in conformity with his character, namely that he has a
propensity to sexually abuse teenage women. See Tex. Code Crim. Proc. Ann. art.
38.37, § 2(b). Although the single incident described by D.P. occurred
approximately 20 years before the offenses on trial, her testimony provided a
“small nudge” towards contradicting appellant’s defensive theories and in
supporting Jane Doe’s testimony that the abuse did occur. See Wheeler, 67 S.W.3d
at 888. D.P.’s testimony did not take an inordinate amount of time at trial or
distract the jury. While the testimony from D.P. was inflammatory, it was relevant
to allegations against appellant and the State needed the evidence to rebut
appellant’s defensive theory and demonstrate complainant’s credibility.

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We conclude that the trial court did not abuse its discretion in admitting the
extraneous-offense testimony from D.P. See Tex. R. Evid. 403; see also Hammer,
296 S.W.3d at 562; Wheeler, 67 S.W.3d at 889.

We overrule issue four.

C. Jury instruction

In issue two, appellant argues the trial court erred by overruling his objection
to the jury charges which permitted the jury to consider D.P.’s testimony to
determine his “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” 3 Tex. R. Evid. 404(b)(2). Character
evidence is admissible under Texas Rule of Evidence 404(b) if it supports the
foregoing permitted uses. However, appellant argues that the specifically identified
uses were irrelevant and the instruction was erroneous because it directed the jury
to consider irrelevant matters.

1. Standard of review and applicable law

A claim of jury-charge error is reviewed in two steps. See Cortez v. State,
469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether there is
error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If
we find error, then we analyze that error for harm. Id. If a defendant does not
properly preserve error by objection, any error in the charge “should be reviewed
only for ‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513
(Tex. Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985)).

Code of Criminal Procedure article 36.14 provides that the trial court “shall
3
Although the jury received two separate jury charges—one for the offense of indecency
with a child and one for sexual assault of a child—both written charges contained the identical
language objected to by appellant.

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. . . deliver to the jury . . . a written charge distinctly setting forth the law
applicable to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14. “The purpose of
the jury charge is to inform the jury of the applicable law and guide them in its
application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.
Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.
1996)).

2. The charges

As it relates to the testimony of D.P., both jury charges contained the
following instruction:

You are further instructed that if there is any testimony before
you in this case regarding the Defendant having committed a separate
offense against another child victim, you cannot consider said
testimony for any purpose unless you find and believe beyond a
reasonable doubt that the Defendant committed the separate offense,
and even then you may only consider the same for the following
purposes:
1) to determine the Defendant’s motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident; or,
2) to determine the character of the Defendant and acts
performed in conformity with the character of the Defendant.
Appellant concedes that the instruction in subpart 2 properly limited the jury’s
consideration of D.P.’s testimony pursuant to article 38.37. Tex. Code Crim. Proc.
Ann. art. 38.37 (“evidence that the defendant has committed a separate offense . . .
may be admitted in the trial of an alleged offense . . . for any bearing the evidence
has on relevant matter, including the character of the defendant and acts performed
in conformity with the character of the defendant.”). However, appellant argues
that the instruction in subpart 1, was erroneous because it instructed the jury to
consider D.P.’s testimony for irrelevant matters: motive, opportunity, intent,

10
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

At the charge conference appellant objected to subpart 1 because “it gives
the jury an opportunity to consider the evidence for things that aren’t relevant in
this matter.” The State responded that the Rule 404(b) language was appropriate in
the charges because the jury was entitled to consider D.P.’s testimony for the
“normal lawful purposes and the 38.37 purposes.” In essence, the State argues that
the Rule 404(b) language was appropriate to clarify that the jury could consider
D.P.’s testimony for all purposes including character conformity and that subpart 1
was needed because language of article 38.37 begins with “Notwithstanding Rule[]
404.” However, the State never responded to the part of appellant’s objection that
the instruction in subpart 1 was not raised by the evidence. Neither in the trial court
nor on appeal does the State offer an explanation of why D.P.’s testimony was
relevant to appellant’s motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident with respect to the charged
offenses.

Because the jury instruction unnecessarily called attention to D.P.’s
testimony for an irrelevant purpose, we conclude the limiting instruction was
erroneous.

3. Harm

“[E]rror which has been properly preserved by objection will call for
reversal as long as the error is not harmless.” Almanza, 686 S.W.2d at 171.
Therefore, we review the record to evaluate whether defendant “suffered some
actual, rather than merely theoretical, harm from the error.” Warner v. State, 245
S.W.3d 458, 462 (Tex. Crim. App. 2008). The harm analysis requires
consideration of (1) the jury charge as a whole, (2) the arguments of counsel,
(3) the entirety of the evidence, and (4) other relevant factors present in the record.
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Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

Appellant argues that he suffered some harm from the error. First, appellant
argues that the admission of extraneous offenses is inherently prejudicial and
necessarily caused some harm to him. However, appellant’s claim of error here is
not with admission of the evidence, but with the limiting instruction in the jury
charges. Appellant next argues that the overly broad instruction improperly
expanded the permissible reasons for which D.P.’s testimony should have been
considered by the jury.

The breadth of article 38.37, which allows the jury to consider evidence of
extraneous offenses and acts of an other “relevant matter,” certainly includes and
subsumes motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident with respect to the charged offense. 4 While
there was nothing in the record suggesting that D.P.’s testimony supported any of
these purposes, there is also nothing in the record that indicates any harm resulted
from the jury’s possible consideration of D.P.’s testimony for purposes of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident with respect to the charged offense. Therefore, the jury charges
weigh against a conclusion that appellant was harmed.

The arguments of counsel similarly do not reflect any harm to appellant. The
State referenced D.P.’s testimony with respect to appellant’s character: “That’s the
kind of person that this defendant is. That’s the kind of person this defendant
4
There is no restrictive rule regarding the admission of evidence relating to a criminal
defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident with respect to the charged offense. Tex. R. Evid. 401 (evidence is
relevant if “it has any tendency to make a fact more or less probable than it would be without the
evidence”). Rule 404(b) is an exception to the general prohibition of evidence about crimes,
wrongs and other acts, but it is not applicable here as D.P.’s testimony was admitted based on
article 38.37 which allowed the jury to consider D.P’s testimony as to appellant’s character, as
well as any other “relevant matter.”

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always has been. And when someone shows you who they are repeatedly, you
should believe them.” The State’s argument asked the jury to use D.P.’s testimony
as character evidence, and nothing else.

The evidence similarly weighs against the conclusion of harm. D.P’s
testimony played a relatively small part at appellant’s trial. As discussed above,
D.P.’s testimony addressed only an alleged incident between D.P. and appellant
that occurred approximately 20 years earlier. Her testimony offered relevant
information as to appellant’s character and did not have any tendency to make any
fact relating to appellant’s motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident with respect to the
offenses against Jane Doe any more or less probable.

With no other relevant factors in the record and the three applicable Almanza
factors weighing against a conclusion of harm, we conclude appellant was not
harmed by the inclusion of a jury instruction not raised by the evidence.

We overrule appellant’s issue two.

D. Ineffective assistance of counsel

In issue three, appellant argues that he received ineffective assistance of
counsel because his trial counsel did not request an appropriate limiting instruction
for D.P.’s testimony both before she testified and in the jury charges.

Evaluating claims of ineffective assistance of counsel under the Sixth
Amendment involves a two-pronged test: (1) whether counsel was deficient and
(2) whether the defendant suffered prejudice as a result of counsel’s error.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a
“defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.

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at 694. In assessing prejudice, courts “must consider the totality of the evidence
before the judge or jury.” Id. at 695.

In his motion for new trial, the appellant complained that defense counsel
did not: (1) request a limiting instruction before D.P. testified and (2) request a
narrow, tailored instruction to be included in the jury charge limiting the use of
D.P’s testimony specifically to character evidence, and not for any other purpose.
At the hearing on the motion for new trial, appellant’s trial counsel stated that he
was aware D.P.’s testimony should have been subject to a limiting instruction, but
because the trial court stated it would provide an appropriate instruction,
appellant’s trial counsel did not follow up. He admitted it was an oversight. With
respect to the jury charge, trial counsel stated that he objected to the charge
because of the inclusion of the Rule 404(b) language. However, he did not file or
request a specific instruction with the trial court limiting the jury’s consideration of
D.P.’s testimony to character-evidence purposes only.

We need not decide whether trial counsel’s oversight in not requesting the
limiting instructions described above was deficient. Even if trial counsel were
deficient, appellant must also show prejudice, which he cannot on this record. We
have already concluded that the error in the jury charges, which allowed the jury to
consider D.P.’s testimony for irrelevant purposes did not harm appellant. The jury
charges did contain an instruction that limited the jury’s consideration of D.P.’s
testimony. Payton v. State, 830 S.W.2d 722, 730 (Tex. App.—Houston [14th Dist.]
1992, no pet.) (“Even if the trial court erred in failing to give a limiting instruction
when the evidence was offered, the error was cured by the inclusion of a proper
limiting instruction in the charge.”). Further, the jury received testimony from Jane
Doe and D.P. regarding their allegations against appellant. Both witnesses
presented strong testimony against appellant, which the jury found credible as

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evidenced by their finding of appellant’s guilt. The more-tailored instruction that
appellant suggests his trial counsel should have requested would still have
permitted the jury to consider D.P.’s testimony for purposes of determining
appellant’s character, which was the only probative purpose it offered at trial.

Given the ample evidence against appellant, an instruction limiting D.P’s
testimony to character-evidence purposes would not have had any effect on the
outcome. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (failure to request
limiting instruction about earlier acquittal or conviction was not reasonably likely
to have made any difference in outcome).

We overrule issue three.

III. CONCLUSION

Having overruled appellant’s four issues, we affirm the judgments of the
trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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

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