Clifton Allen, Jr. v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00151-CR

CLIFTON ALLEN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 53,869-B

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION

Clifton Allen, Jr., pled “not guilty” to indecency with a child, L.C.,1 by sexual contact, a

second-degree felony, see TEX. PENAL CODE ANN. 21.11(d), and the trial court denied his motion

to suppress. The trial court found Allen guilty and sentenced him to twenty years’

imprisonment.2 On appeal, Allen claims the trial court erred in failing to grant his motion to

suppress; the evidence was legally insufficient to support his conviction; and the trial court erred

in admitting evidence of extraneous offenses. Because we determine each of these issues against

Allen, we affirm.

I. Factual and Procedural Background

Allen was charged with engaging in sexual contact with L.C., a twelve-year-old child, at

a small church in Longview in July 2018. Allen was a deacon at the church, and the contact

between Allen and the child occurred during time periods when Allen was charged with

watching L.C. and other children in the church’s kitchen area while the children’s families

attended Bible studies and prayer meetings.

Officer Debra Stiles, a crimes-against-children investigator with the Longview Police

Department, began working the case in September 2018. After outcries were made by three

children during interviews, Stiles conducted interviews of a number of people as part of her

1
We use pseudonyms or relationships for minor children involved in this case and their family members. See TEX.
CONST. art. I, § 30(a)(1) (granting a “crime victim . . . the right to be treated with fairness and with respect for the
victim’s dignity and privacy throughout the criminal justice process”); TEX. R. APP. P. 9.10(a)(3).
2
In companion cause number 06-24-00152-CR, Allen appeals his conviction for indecency with a child by sexual
contact regarding a second child younger than seventeen years of age. With respect to a third child, in companion
cause number 06-24-00153-CR, Allen appeals his convictions for indecency with a child by sexual contact and
aggravated sexual assault of a child younger than fourteen years of age.
2
investigation, including Allen. Stiles interviewed Allen in her office on November 28, 2018,

with Allen coming in of his own free will. Allen was neither under arrest nor detained at any

time during the interview with Stiles. Allen did not admit to the allegations of sexual contact

with the children during his interview with Stiles.

In late 2018, Stiles brought in Officer Rusty Hughes, a special agent with the Criminal

Investigation Division at the Texas Department of Public Safety, to assist with the investigation

due to his experience as a polygraph examiner. Stiles arranged for Hughes and Allen to meet on

December 18, 2018. As during the interview with Stiles, Allen was neither under arrest nor

detained during his interview with Hughes. Ultimately, Hughes did not administer a polygraph

examination. During the interview, although Allen claimed several times that he did not

remember things, he admitted to touching the children.

Allen later waived his right to a jury trial and pled “[n]ot guilty” to the charge of

indecency with a child by sexual contact with respect to L.C. During the bench trial, the trial

court considered Allen’s motion to suppress the recording of his interview with Hughes. The

trial court denied Allen’s motion and admitted the recording into evidence. At the conclusion of

trial, the trial court found Allen guilty and sentenced him to twenty years’ imprisonment.

II. Motion to Suppress

In his first issue, Allen claims the trial court reversibly erred in failing to suppress his

statement entered into evidence at trial as State’s exhibit 10, the recording of Allen’s interview

with Hughes.

3
A. Standard of Review and Applicable Law

“A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of

discretion.” Irsan v. State, 708 S.W.3d 584, 609 (Tex. Crim. App. 2025) (parenthetically

quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). “When reviewing a trial

court’s ruling on a motion to suppress, we apply a bifurcated standard of review.” Ochoa v.

State, 707 S.W.3d 344, 360 (Tex. Crim. App. 2024). “The trial court is the sole trier of fact and

judge of the witnesses’ credibility and weight to be afforded their testimony.” Id. “Accordingly,

we defer almost totally to a trial court’s determinations of historical fact, so long as such

determinations are supported by the record, as well as to its rulings on mixed questions of law

and fact that hinge on credibility and demeanor.” Id. “We, however, review de novo the trial

court’s rulings on pure questions of law or mixed questions of law and fact that do not hinge on

credibility or demeanor.” Id. “The evidence and all reasonable inferences are viewed in the light

most favorable to the trial court’s ruling, and the trial court’s ruling must be upheld if it is

reasonably supported by the record and is correct under a theory of law applicable to the case.”

Id. (quoting State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App. 2023)). “The trial court’s

ruling on a motion to suppress will be reversed only if it is arbitrary, unreasonable, or outside the

zone of reasonable disagreement.” State v. Heath, 696 S.W.3d 677, 689 (Tex. Crim. App. 2024).

As was the case in Ochoa, the trial court here entered no factual findings. Ochoa stated

that the lack of findings “appears to be in error,” Ochoa, 707 S.W.3d at 360, because “where a

question is raised as to the voluntariness of a statement of an accused,” TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 6 (Supp.), the “trial court is required to make written findings on the

4
admissibility of an oral statement,” Ochoa, 707 S.W.3d at 360 (citing TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 6). Nonetheless, neither party has suggested that the appeal be abated for the

purpose of having the trial court enter findings, likely because, as in Ochoa, the complained-of

statements are contained in the recorded interview. See id. The facts surrounding the admission

of the recorded interview are uncontested. “When there are no written findings from the trial

court, we may infer the necessary findings that would support the trial court’s ruling if the record

(viewed in light most favorable to the ruling) supports these implied fact findings.” Id. (citing

Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013)).

“A statement of an accused may be used in evidence against him if it appears that the

same was freely and voluntarily made without compulsion or persuasion” and further adheres to

additional statutory mandates. TEX. CODE CRIM. PROC. ANN. art. 38.21.

B. The Interview

Allen’s mother and father brought him in for the interview with Hughes. Allen was not

detained and was not in handcuffs, and it was explained to him that the door was unlocked, he

was free to leave at any time, he was not being held against his will, and his being there was

completely voluntary. Allen indicated he understood those conditions.

Hughes and Allen talked very informally about their lives, but not about the allegations

against Allen, for about the first thirty minutes of the interview. At that point, Hughes

represented to Allen that polygraphs work by recording the body’s involuntary reactions to the

matter being discussed. Hughes then told Allen that they would go through a polygraph consent

form together. Hughes told Allen the consent form was completely voluntary and said he was

5
not going to read Allen his rights because he was not under arrest. Allen nodded his head in

agreement or understanding as Hughes said those things to him and continued nodding when

Hughes asked whether he understood. Hughes soon stopped and asked whether Allen had any

questions up to that point, and Allen indicated he did not.

Hughes later showed Allen the online polygraph examination consent form on his

computer screen, and he and Allen read through the consent form together. The form included

the following:

I hereby voluntarily consent to allow a Texas Department of Public Safety
examiner to administer a polygraph examination to me . . . . I voluntarily consent
to the examination of my own free will and state that no duress, threats, or
coercion have been placed upon me to take the examination. I have not been
promised anything of value, reward, or immunity to induce me to consent to this
examination. I understand that I have the right to stop my polygraph examination
at any time I desire. I understand the results of my examination will be available
to the Texas Department of Public Safety and I do authorize the Department to
disseminate criminal information acquired from the polygraph examination to
other law enforcement agencies for criminal investigative purposes.

Allen signed, indicating he was willing to take the examination.

Thereafter, rather than proceeding with a polygraph examination, Hughes asked Allen

about the allegations made by the children. For some time, Hughes and Allen discussed the

children who made the allegations and their relationships to Allen, his family, and the church.

After about another half hour, the following exchange took place:

Hughes: I want you to be 100% honest with me. Did you touch that girl?

Allen: [Brief stuttering]

Hughes: In a sexual way, did you touch that girl?

6
Allen: Naw, I might have touched her in that place, but not in a sexual
way.

Hughes: You may have touched her in her vagina but not in a sexual way?

Allen: Naw. Like if they’re jumping on me or something like that, I
might have grabbed them or something like that, but I wasn’t.

Hughes: Now, be honest with me. I can help you out as long as you’re
honest, but if you’re withholding information or not honest, we’ve
got a problem.

The interview continued, and Hughes asked Allen whether he thought the children he

touched would be angry when they grew up and reflected back on those incidents. Allen

responded, “I don’t think they’ll be angry ‘cause, I mean it wasn’t, I mean I don’t know where it

got blowed up at, is what I’m saying.” Hughes explained that the children were saying the

touches were deliberate, not accidental. Allen said, “I mean, like grabbing them on the butt and

touching between the legs, I didn’t aim for that. Naw. I mean, like I said, if I did it, I did it, but I

wasn’t aiming on, you know, like grabbing like that. I wasn’t aiming for that.” Hughes asked

whether Allen remembered ever touching any of the girls’ vaginas out of curiosity. Allen

responded, “Not out of curiosity, naw. Like I said, I probably touched them, but I didn’t touch

them, I didn’t touch them in a sexual motivation way.”

Hughes again told Allen to just tell the truth. Hughes said, “I’m not going to go out here

and talk to your family about anything we talked to. This is all confidential. I’m not gonna do

that. So, anything, anything that happened or anything that needs to be talked about, just feel

free to speak about it, okay. Don’t hold anything in.”

7
Allen continued to admit possibly touching the girls but continued to deny that he did so

in a sexual manner. Allen said he did not even want to be home with his children because people

were saying he was doing things with his own children. Allen said his accusers put it on his

mind because they brought it up.

Later, about two hours into the interview, Hughes told Allen, “I’m going to believe

everything you tell me until your body tells me that you’re not telling me the truth.” Hughes said

regarding the polygraph exam, “If you fail this thing and you don’t provide any explanation as to

what happened, they’re just going to believe what they believe. . . . I want to give you every

opportunity to pass this test.”

Hughes said later, “You’ve admitted you touched them, but you’re saying it wasn’t in a,

for a sexual purpose.” Allen replied,

I don’t know how to say it ‘cause it don’t sound right for one. You know, I don’t
know how to, I don’t even know even how to digest it, really. But, if I say I
touched them then I’m saying to myself, hey, you, you touched them kids. And
because I know I touched them, but then if I say on the test that naw, I didn’t
touch them, these kids, then it’s over with.

Hughes told Allen, “The only way you’d fail the test is if you touched them for a sexual

purpose.” Hughes again encouraged Allen to tell the truth and told him that he was not going to

go out of there and tell people what they had talked about, that he was not going to tell Allen’s

parents what they were talking about.

Hughes soon said to Allen that he believed Allen knew he had those bad thoughts in his

mind, and he felt bad about it and knew he should not be thinking those things. Hughes said,

“And there was a time or two when you did touch probably one of these girls and you did it

8
probably intentionally, but you didn’t mean nothing by it, it’s just—you know, it just happened.

Am I right or wrong?” Allen responded, “You’re probably right.” Hughes asked, “Probably?”

Allen responded, “You’re right.”

Allen later said he did not fantasize about the girls; he just touched them. Allen said it

only happened maybe once. Allen said in the following exchange that he was “pretty sure” he

did get aroused when he touched the girls:

Hughes: Did you get an erection? Or, did you kinda feel something you
know when you touched them, kind of a, kind of a nice feeling,
kinda give you a little bit of an arousal when you touched them?

Allen: . . . . You know what I’m saying. I’m pretty sure, I’m pretty sure I
did.

Hughes called Stiles to come to the interview. Hughes told Allen, “Just be real open, real

honest with her like you have been with me.” Hughes again said, “I’m not going to go out there

and talk to your mom and dad. I’m not going to be talking to your wife. This is just between

us.” Hughes continued, “Based on what you’ve told me and where we’re at now, there’s no need

in taking that test. Do you agree?” Allen nodded yes. Hughes then said, “Cause you wouldn’t

pass it, not based on what information we’ve shared. . . . What are you thinking now, are you

scared, how are you feeling? Allen responded, “Everybody probably knew I touched them

anyway.”

After a few more minutes, Stiles entered the room. Speaking to Stiles, Hughes said,

I’ll let him tell you, but just in a synopsis version, there was some touching that
occurred between he and these girls and at first it wasn’t really something that
maybe he did intentionally, but it happened. And then maybe curiosity or
something--he really can’t explain it, then he kinda would take the opportunity to

9
do it after that where he would touch them when he had the opportunity. But it
didn’t start out that way. Am I right, is that right?

Allen responded, “Yeah.”

C. Analysis

Allen argues that his statements were involuntary because they were made in response to

“Hughes’ promise of confidentiality,” which “overbo[re] the will” of Allen, “inducing him to say

something that ordinarily someone would not say.”

“[F]or a promise to render a confession invalid under Article 38.21, the promise must be

positive, made or sanctioned by someone in authority, and of such an influential nature that it

would cause a defendant to speak untruthfully.” Martinez v. State, 127 S.W.3d 792, 794 (Tex.

Crim. App. 2004); see Ochoa, 707 S.W.3d at 363 (stating that untrue assertions that “d[o] not

rise to the level of an express promise of favorable treatment in exchange for Appellant’s

confession” “may be perfectly acceptable in many cases”); Harty v. State, 229 S.W.3d 849, 856

(Tex. App.—Texarkana 2007, pet. ref’d) (“The promise must be: 1) of some benefit to the

defendant, 2) positive, 3) made or sanctioned by a person in authority, and 4) of such character as

would be likely to influence the defendant to speak untruthfully.” (quoting Sossamon v. State,

816 S.W.2d at 340, 345 (Tex. Crim. App. 1991))). “Whether the statement was obtained by

coercion or improper inducement must be determined under the totality of the circumstances.”

Harty, 229 S.W.3d at 855 (citing Frazier v. Cupp, 394 U.S. 731, 739 (1969); Haynes v. State of

Wash., 373 U.S. 503, 513 (1963); Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App.

10
1997)). We consider Allen’s argument, then, in the context of the totality of the circumstances

of his interview with Hughes.3

Allen had been accused of improper contact with several children while they were in his

care at church. Allen came to meet with Stiles voluntarily. Stiles conducted an approximately

two-hour interview with Allen during which he did not confess to inappropriate contact with the

children.4

The challenged interview, Allen’s interview with Hughes, was significantly shorter than

the excluded interview Allen points to in State v. Cielencki, 706 S.W.3d 634, 637 (Tex. App.—

Austin 2025, pet. ref’d). The Cielencki interview was approximately eight hours long, followed

immediately by a two-hour polygraph examination for a combined time of approximately ten

hours. Id. Allen argues that, when making the comparison to Cielencki, we should include both

his interview with Stiles and his interview with Hughes. Allen, though, has not complained on

appeal of the admission of the recorded interview with Stiles. While Allen’s interview with

Stiles is properly considered within the totality of the circumstances for all voluntariness

purposes, we note regarding duration that the two interviews were almost three weeks apart.

3
In a footnote, Allen asserts, without citation, that “[t]he [interrogation] videos of Appellant depict someone whose
will was not strong enough to prevail against the repeated insistence of his interlocutors at getting the result they
wanted.” We consider that as an argument included within and in furtherance of Allen’s challenge to the
voluntariness of his confession. In the same footnote, Allen questions the conclusion of a Ph.D. psychologist who
opined that Allen was competent to stand trial. To the extent, if at all, that amounts to an appellate challenge of the
trial court’s competency finding, it is unavailing. The recording was before the trial court when it rendered
judgment against Allen, plus, the trial court had the benefit of observing Allen as he testified during trial. The trial
court’s judgment infers that it found Allen to be competent to stand trial. We will not substitute our judgment for
that of the trial court in its determination of Allen’s competency. See Timmons v. State, 510 S.W.3d 713, 718 (Tex.
App.—El Paso 2016, no pet.). Nor do we determine that the trial court abused its discretion in determining Allen to
be competent to stand trial. See id.
4
Allen does not complain of the admission of his interview with Stiles.
11
Further, the interview with Stiles lasted about two hours and eleven minutes, while the interview

with Hughes was about two hours and forty-two minutes.

As recounted in the summary of Hughes’s interview above, Hughes proposed that Allen

take a polygraph examination before Allen admitted to anything. No exam was administered,

though. Regarding voluntariness, we consider the possibility that a polygraph examination might

be administered in the totality of the circumstances. We do not, however, draw an inference

from that to the truth or falsity of the confession itself. See Ex parte Bryant, 448 S.W.3d 29, 40

(Tex. Crim. App. 2014) (orig. proceeding) (“Polygraph evidence is generally excluded from

courtrooms because the reliability of such tests remains unproven and jurors could attach undue

credibility to a test that purports to sort truth from fiction, a role for which a factfinder is more

properly suited.”).

We turn then to Allen’s complaint regarding the promise of confidentiality.

Allen had admitted to having touched the children before Hughes made any promise to

him regarding confidentiality. At that point, though, Allen denied that the touching had any

sexual purpose.

Thus, it was after touching had been established that Hughes told Allen several times that

he would not be sharing the information they talked about. Hughes specifically stated once that

he would not share information with “people,” while several times he said he would not share

information with Allen’s mom and dad or with his wife. Hughes also told Allen the only way he

would fail the polygraph test is if he touched the children for a sexual purpose.

12
After that point, Allen admitted he got aroused when he touched the girls. Hughes again

said that he would not be talking to Allen’s mom and dad or his wife, and Allen admitted there

was no need in him taking the test, stating, “Everybody probably knew I touched them anyway,”

and that touching occurred, perhaps unintentionally at first, but later, intentionally.

In Harty, we addressed the situation of the effect of an allegedly improper promise on the

voluntariness of a confession. The allegedly false representation there was an interviewer’s

statement that he would only disclose the accused’s statements to the accused’s therapist. Harty,

229 S.W.3d at 851. We determined in Harty, “The promise in this case is not such as would be

likely to influence the defendant to speak untruthfully.” Id. at 856.

We find Harty persuasive on this point. As was true with the defendant in Harty, Allen

“did not have anything to gain by making false statements.” Id. Falsely inculpating himself,

even if that information was not shared with Allen’s family members, would clearly be against

his interest if disclosed to authorities. And, Allen admitted to Stiles, the investigating officer

who had earlier interviewed Allen and who attended the last portion of Allen’s interview with

Hughes, that he touched the girls when he had the opportunity.

By determining that Allen’s statements made during his interview with Hughes were

admissible, the trial court implicitly determined that the statements were not involuntary and that

Hughes’s promises of confidentiality did not influence Allen to speak untruthfully. Based on

this record, we cannot conclude that the trial court abused its discretion in making those

determinations and thus admitting Allen’s recorded interview with Hughes.

We overrule Allen’s first issue.

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III. Legal Sufficiency

In his second and third issues, Allen challenges the sufficiency of the evidence to support

his convictions for indecency by sexual contact and aggravated sexual assault of a child,

respectively. Because the conviction addressed in this appeal was only for indecency by sexual

contact of L.C., we do not address Allen’s third issue.

A. Standard of Review

“We assess legal sufficiency by viewing the evidence in the light most favorable to the

verdict and asking whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Bittick v. State, 707 S.W.3d 366, 368 (Tex. Crim. App.

2024) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This standard accounts for the

factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Bohannan v. State, 546 S.W.3d 166,

178 (Tex. Crim. App. 2017). “In performing our sufficiency review, we may not re-evaluate the

weight and credibility of the evidence or substitute our judgment for that of the fact finder.” Id.

“We resolve inconsistencies in the evidence in favor of the verdict.” Id. “We determine whether

the necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Id.

“We compare the trial evidence to ‘the elements of the offense as defined by a

hypothetically correct jury charge for the case.’” Bittick, 707 S.W.3d at 369 (quoting Zuniga v.

State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018)).

14
B. Analysis

The indictment alleged that Allen engaged in sexual contact with L.C. by touching her

genitals. As relevant here, a person commits the offense of indecency with a child, “if, with a

child younger than 17 years of age, . . . the person . . . engages in sexual contact with the child.”

TEX. PENAL CODE ANN. § 21.11(a)(1). “[S]exual contact” includes, “if committed with the intent

to arouse or gratify the sexual desire of any person[,] . . . any touching by a person, including

touching through clothing, of the anus, breast, or any part of the genitals of a child.” TEX. PENAL

CODE ANN. § 21.11(c)(1).

Allen complains of the sufficiency of the evidence in two respects: (1) he “never

conceded to any sort of intentional touching,” and (2) the testimony establishing that the

committed indecency was “incapable of belief.”

L.C. testified that Allen touched her private part with his hand on the outside of her

clothes. She said it happened on a Monday night when the women of the church were meeting.

L.C. and another girl were with Allen, and he told them to be quiet. As Allen touched her, L.C.

heard her granny and the other girl’s mother calling for them. Allen told the other girl to run out

the front, but he told L.C. to go out the back through the kitchen. L.C. said she did not tell her

granny right then because she was afraid her granny would not believe her. Instead, she told her

older sister. L.C. told her grandmother about a week later.

As recounted above, Allen himself admitted several times during his interview with

Hughes to touching the girls, though numerous times he denied that he touched them in any

sexual manner. While Allen never explicitly stated during his interview with Hughes that he

15
touched the girls with the intent to arouse or gratify himself, Allen did admit that he touched the

girls intentionally and that he was “pretty sure” he got aroused when he touched them.

Although Allen complains on appeal that he never conceded intentional touching, his

intent need not be established through direct evidence. “By its nature, a culpable mental state

must generally be inferred from the circumstances.” Romano v. State, 610 S.W.3d 30, 35 (Tex.

Crim. App. 2020). And, because “[w]e cannot read an accused’s mind, . . . we must infer his

mental state from his acts, words[,] and conduct.” Id. Moreover, Allen’s self-serving statements

regarding his intent need not be considered at all. “The testimony of a child victim alone is

sufficient to support a conviction for . . . indecency with a child.” Scott v. State, 202 S.W.3d

405, 408 (Tex. App.—Texarkana 2006, pet. ref’d) (citing TEX. CODE CRIM. PROC. ANN. art.

38.07).

As regards Allen’s assertion that he never conceded intentionally touching the girls, it is

apparent from the trial court’s judgment of guilt that it resolved any conflicts in the evidence in

favor of the victims. A rational trier of fact could have found the intent element beyond a

reasonable doubt without Allen’s admission on this point.

Allen’s second argument on this issue invites us to re-evaluate the credibility of the

evidence. Under the applicable standard of review stated above, we are prohibited from doing

so. See Bohannan, 546 S.W.3d at 178.

Viewing all the evidence in the light most favorable to the trial court’s verdict of guilt,

we conclude that a rational trier of fact could have found the essential elements of indecency

with a child beyond a reasonable doubt.

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We overrule Allen’s second issue.

IV. Extraneous-Offense Evidence

In his fourth issue, Allen contends the trial court reversibly erred in admitting extraneous-

offense evidence, specifically, A.H.’s testimony accusing him of inappropriate sexual conduct.

A. Standard of Review and Applicable Law

“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in accordance with the character.”

Irsan, 708 S.W.3d at 616 (quoting TEX. R. EVID. 404(b)(1)). “But ‘[t]his evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.’” Id. (alteration in original)

(quoting TEX. R. EVID. 404(b)(2)). “That said, ‘a court may exclude’ otherwise admissible

evidence ‘if its probative value is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative

evidence.’” Id. (quoting TEX. R. EVID. 403).

“One well-established rationale for admitting evidence of uncharged misconduct is to

rebut a defensive issue that negates one of the elements of the offense.” Id. (quoting De La Paz

v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009)). “That is, ‘a party may introduce

evidence of other crimes, wrongs, or acts if such evidence logically serves to make more or less

probable an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or

defensive evidence that undermines an elemental fact.’” Id. (quoting De La Paz, 279 S.W.3d at

343). “Further, the defendant’s opening statement may open the door to the admission of

17
extraneous offense evidence to rebut opening statement defensive theories.” Id. (citing

De La Paz, 279 S.W.3d at 344–45).

“[A] trial judge’s ruling on the admissibility of extraneous offenses is reviewed under an

abuse-of-discretion standard.” Id. (alteration in original) (quoting De La Paz, 279 S.W.3d at

343). “So, too, is a ruling on the balance between probative value and the counter factors set out

in Rule 403, although that balance is always slanted toward admission, not exclusion, of

otherwise relevant evidence.” Id. (quoting De La Paz, 279 S.W.3d at 343). “[W]e presume that

probative value outweighs prejudicial value ‘unless in the posture of the particular case the trial

court determines otherwise.’” Id. (quoting Montgomery v. State, 810 S.W.2d 372, 388 (Tex.

Crim. App. 1991) (op. on reh’g)). “Accordingly, as long as the judge’s ruling is within the ‘zone

of reasonable disagreement,’ there is no abuse of discretion, and the ruling will be upheld.” Id.

(quoting De La Paz, 279 S.W.3d at 343–44). “Further, if the trial judge’s ruling is correct on any

applicable legal theory, the ruling will stand.” Id. (citing De La Paz, 279 S.W.3d at 344).

Specifically relevant to trials on charges of sexual offenses against a child, the

Legislature has limited the prohibitive effect of Rules 404 and 405 of the Texas Rules of

Evidence on the admission of separate sexual offenses against another child. When the charged

offense is indecency with a child, notwithstanding Rules 404 and 405, “evidence of prior sexual

assaults may be admitted ‘for any bearing the evidence has on relevant matters, including the

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

defendant.’” Bradshaw v. State, 466 S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref’d)

(quoting TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b)). “This broad allowance for admission

18
is limited by Rule 403’s balancing test, which permits admission of evidence as long as its

probative value is not substantially outweighed by its potential for unfair prejudice.” Id. (citing

TEX. R. EVID. 403). “In reviewing the trial court’s admission of this evidence for an abuse of

discretion, we recognize that the amendments to Article 38.37 reflect the stated intent to remove

the propensity bar to the admissibility of certain evidence.” Id.

With respect to extraneous conduct, a trial court must consider the following factors in

conducting a Rule 403 balancing test:

(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 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.

Irsan, 708 S.W.3d at 617 (quoting De La Paz, 279 S.W.3d at 349); see Price v. State, 594

S.W.3d 674, 680 (Tex. App.—Texarkana 2019, no pet.).

B. Analysis

From his opening statement, Allen’s counsel urged a defensive theory that

all of these allegations came out as a result of a dispute between a couple of
families at the church. Nothing came up before that. It was a fight between Mr.
Allen’s wife and another member of the church. All the victims are related to this

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church member. All of these allegations came out after this physical altercation
broke out at the church.

Allen’s counsel questioned each of the victims and the one mother who testified about the

dispute between the families at the church or the familial relationship between the victims. Each

of those witnesses testified before the State called A.H. as a witness.

Over Allen’s Rule 403 and 404(b) objections, A.H. testified that, “[a]bout five” times,

starting when she was eleven, Allen touched her inappropriately. A.H. said the first time was on

an occasion when she was sleeping in the bed with Allen, his wife, and three more of his

children. A.H. said Allen took off her underwear, contacted her vagina with his hand, and tried

to insert himself inside her. A.H. said that caused “a lot of pain and pressure.”

A.H. recounted another time when she was sleeping on the floor in her sister’s room. She

said Allen came and got her and took her to where he was laying and then tried to insert himself

in her. Yet another time, A.H. said, he tried to insert himself again, and it was really, really

painful.

A.H. said she did not tell anyone about Allen’s actions at that time because she was

embarrassed. She told her boxing coach seven years later, and then her stepdad, a detective, and

eventually her mom. After that point, Allen’s family members stopped talking to her. She later

found out that other girls had made outcries against Allen, as well. A.H. did not know his other

victims.

While Allen denies that his trial tactics amounted to a defensive theory of “fabrication,”

on this record, we conclude the trial court could have rationally determined that he urged a

fabrication defense during trial and further determined that A.H.’s testimony was highly
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probative in contesting that point. We conclude that the trial court’s determination to admit

A.H.’s testimony regarding Allen’s extraneous sexual offenses against her was within the zone

of reasonable disagreement. See TEX. R. EVID. 404(b)(2); TEX. CODE CRIM. PROC. ANN. art.

38.37 (Supp.); Irsan, 708 S.W.3d at 616.

Further, Allen’s arguments on appeal ignore the existence of Article 38.37 of the Texas

Code of Criminal Procedure. While admission of extraneous sexual offenses against a child

must still be governed by a Rule 403 balancing test, Bradshaw, 466 S.W.3d at 882, this case

presents exactly the situation the Legislature anticipated in passing Article 38.37.

Under the considerations of the four-point Rule 403 balancing test that must be employed

in entering evidence under Article 38.37, again the trial court could rationally conclude that

A.H.’s testimony was highly probative against Allen’s defensive theory that the victims’s

recounts of his actions against them were fabricated. The fact that A.H. claimed he attempted to

engage in sexual contact and sexual assault upon her when she was eleven years old is especially

probative of Allen’s propensity to sexually assault children. The trial court could have made

certain inferences about Allen’s behavior based on A.H.’s testimony. Those inferences would

not have been irrational, as A.H.’s testimony and the circumstances of Allen’s offenses against

her were rationally related to the offenses he committed against the other victims in the relative

ages of the victims, Allen’s methods of assault, and his tendency to act even when others were

present. The time the State spent developing this evidence with A.H. was comparable to that

spent with another of the victims and not disproportionate to the remainder of the time the State

spent developing its case. And, given Allen’s suggestion in his opening statement that the

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accusations against him were fabricated in retaliation for a dispute at the church, the trial court

could rationally conclude that the need for the evidence was substantial to disprove that

defensive theory.

On this record, we conclude the trial court did not abuse its discretion in admitting

evidence of Allen’s extraneous acts of sexual misconduct against A.H.

We overrule Allen’s fourth issue.

V. Conclusion

We affirm the trial court’s judgment.

Jeff Rambin
Justice

Date Submitted: April 16, 2025
Date Decided: June 30, 2025

Do Not Publish

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