In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-25-00360-CR
No. 07-25-00361-CR
CHRISTIAN CARMONA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 158th District Court
Denton County, Texas1
Trial Court No. F23-1157-158, F23-1156-158, Honorable Steve Burgess, Presiding
August 11, 2026
MEMORANDUM OPINION
Before DOSS and YARBROUGH and PRATT, JJ.
Appellant, Christian Carmona, appeals from two judgments of conviction for
indecency with a child by sexual contact.2 A jury found him guilty in each of two causes
tried together and assessed punishment at twelve years of confinement in each. The
1 This cause was originally filed in the Second Court of Appeals. It was transferred to this Court by
a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
2 See TEX. PENAL CODE § 22.11.
court ordered the sentences to run consecutively. In two issues, Appellant contends the
evidence is insufficient to support the convictions and that the trial court erred by admitting
an email in which a second teenage employee described other acts by the Appellant. We
affirm.
BACKGROUND
E.K., then 14, worked at a sandwich shop for two months during the summer of
2022. She took the job so she could buy a dog. Appellant, then thirty, was a shift lead
who trained employees and helped set schedules. E.K. testified that most of her
coworkers spoke Spanish, that she spoke only English and Russian, and that Appellant
was one of the first people at the shop she could talk to.
According to E.K., Appellant initiated physical contact that progressed over those
two months. Appellant began hugging her and kissing her forehead, then grabbed and
slapped her buttocks as she walked past, then hugged her from behind and kissed her
neck while she restocked the refrigerator. She also testified that she arranged for a
coworker, E.S., to walk past at a moment when Appellant was touching her, because she
wanted a witness.
Both indicted incidents occurred in the shop’s back office. E.K. testified that on
one occasion, she was leaning against the wall taking an unscheduled break while
Appellant sat at the office computer. He reached over, placed his hand over her vagina
through her jeans, and rubbed it. On a second occasion, E.K. was sitting on the floor
while Appellant rubbed her shoulder. He asked whether she was comfortable. When she
2
replied in the affirmative, he reached through the collar of her uniform shirt, under her bra,
and grabbed her left breast, skin to skin.
State’s Exhibit 2, admitted without objection, is a 340-page compilation of
messages E.K. identified as Appellant’s text exchange with her. Read into the record
were messages in which the sender called E.K. sweetheart and darling, referred to her
legs and her body, asked whether he had gone “too far” with her “physically,” wrote that
he had not realized he was “basically groping” her “in a more intimate way,” asked
whether she was “okay with the petting and the groping,” and proposed that they be
“friends with benefits.” Another described the sender cutting his finger on the zipper or
button of E.K.’s jeans. E.K. testified that this exchange referred to an occasion when
Appellant groped her through her clothing.3
E.K. did not report the conduct. Her mother discovered it during an argument on
July 21, 2022, after taking away E.K.’s iPad. A message appeared on the screen under
the contact name “Christian.” E.K.’s parents took her to the police that day.
Detective Evan Dostal investigated. He testified that he determined Appellant’s
cell number, compared it to the number appearing in the extraction of E.K.’s devices, and
found that the two matched. Asked whether he saw any indication that E.K. was
fabricating the allegations, he answered that he did not. Kim Kunz, a forensic interviewer,
testified that E.K. was calm and well-spoken during her interview and that she would have
reported any red flags to law enforcement.
3 She testified without objection about the incident that led to the message: “He was groping me
over my vagina again, over the clothes. This was the one in a millionth time he’s done this. And he cut himself on my zipper of my jeans. And that’s what he was discussing.”
3
Detective Dostal first attempted to contact Appellant in late August 2022. Appellant
was arrested late November. A search of Appellant’s phone produced messages with
other people but none with E.K. Dostal testified that it was possible for someone to
remove data from a phone over those three months without leaving a trace he could
detect.
Before opening statements, the trial court took up a motion by Appellant to
suppress evidence of extraneous offenses. The motion identified one item from the
State’s notice, an allegation that on or about June 2022 Appellant pressed his groin
against E.S., another minor employee of the shop. Pursuant to article 38.37, section 2-a, Appellant asked the court to conduct the hearing that provision requires and asked that
the State be barred from introducing any evidence of the incident. E.S., who was sixteen
that summer and had become friends with E.K. at the shop, testified outside the jury’s
presence. She said she was cutting a sandwich when Appellant came up behind her, put
his arms around her arms, and began cutting the sandwich with her hands. She told him
she could do it herself. He pressed against her back and breathed in her ear, and she
shoved him off, went to the restroom, and cried. Asked whether his groin was against
her back, she answered yes.
On cross-examination, Appellant’s counsel took up an email E.S. had sent to the
shop’s owner where she gave her resignation. E.S. confirmed the email was hers, that it
was dated July 26, 2022, and that in it she had written Appellant’s stomach was against
her, not his groin. On redirect she testified that both could have been touching her.
4
The trial court overruled the motion and granted Appellant a running objection to
E.S.’s testimony. When E.S. took the stand before the jury, she could not identify
Appellant in the courtroom. Appellant renewed his objection and added that her inability
to identify him made her account irrelevant. The trial court sustained the renewed
objection, excused E.S. without permitting her to describe the incident, and instructed the
jury not to speculate about what she might have said. The jury heard nothing from E.S.
about the incident.
Appellant called the shop’s owner, Valarie Johnston. She testified that eight
cameras covered the store except the restrooms and the short hallway outside them, that
the office door could not obscure the office camera, that she monitored the cameras
frequently, and that she never saw inappropriate conduct between employees. She
described the office as roughly four feet square and too small to hold two people
comfortably. She testified that the system retained recordings for seven days and that no
footage was ever produced to the police. She further testified that she sent Appellant
home the day the police called her and that she later saw screenshots of messages
between Appellant and E.K., which she believed E.S. had shown her.
Later, during further cross examination, the State asked whether law enforcement
was the only source of what she had heard concerning Appellant, and she answered that
her general manager had also contacted her. The State then used Johnston to
authenticate State’s Exhibit 3, the email E.S. had sent to the store’s account in July 2022.
Appellant renewed his running objection. The trial court overruled the objection, admitted
the exhibit, and permitted Johnston to read it aloud. In the email, E.S. wrote that Appellant
called her weird names and was always touchy even when she asked him not to be, that
5
E.K. had told her Appellant was putting his hands on her waistline, kissing the back of her
neck, telling her she looked sexy, and asking her on dates. E.S. also wrote that the week
before, while E.S. was cutting a sandwich, Appellant came up behind her, put his stomach
against her back, put his hands over hers, and breathed in her ear. Johnston testified
that Appellant had already left the store by the time she received the email.
Appellant’s theory at trial was that the text messages did not come from him. He
called a digital forensics expert, who testified that his firm performed an extraction of
Appellant’s phone and that the exchange with E.K. did not appear in the phone’s deleted
space. The witness also demonstrated for the jury how a website can generate a
fabricated screenshot of a text message. On cross-examination, he could not recall the
phone’s age or storage capacity and could not recall the parameters he had been asked
to search.4 Asked whether he found any conversation between Appellant and E.K. in the
data that had not been deleted, the witness answered that he believed the firm did, but
that he could not say for certain.
ANALYSIS
A. Sufficiency of the Evidence
In his first issue, Appellant contends that the evidence is insufficient to prove
beyond a reasonable doubt he engaged in sexual contact with E.K. We disagree.
An appellate court reviewing the sufficiency of the evidence to support a conviction
considers all the evidence in the record, whether direct or circumstantial, and whether
4 The expert agreed that a phone’s age and storage capacity affect how far back an extraction can
reach and what information remains available.
6
properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all the
evidence in the light most favorable to the verdict and ask whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Chasco v. State, 568 S.W.3d 254,
257–58 (Tex. App.—Amarillo 2019, pet. ref’d). We defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the
weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Our task is to determine whether the inferences the jury drew are reasonable
in light of the cumulative force of the evidence. See Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012).
Next, the elements. A person commits indecency with a child if he engages in
sexual contact with a child younger than seventeen. See TEX. PENAL CODE § 21.11(a)(1).
“Sexual contact” includes any touching by a person of the genitals or breast of a child,
including touching through clothing, if committed with the intent to arouse or gratify the
sexual desire of any person. TEX. PENAL CODE § 21.11(c)(1). That intent may be inferred
from the defendant’s conduct, his remarks, and the surrounding circumstances.
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Bazanes v. State, 310
S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref’d). The testimony of a child victim,
standing alone, will support a conviction. See TEX. CODE CRIM. PROC. art. 38.07(a), (b)(1);
Chasco v. State, 568 S.W.3d 254, 257–58 (Tex. App.—Amarillo 2019, pet ref’d).
Applied here, E.K.’s testimony supplies each element. She testified that while the
two were in the shop’s office, Appellant rubbed her vagina through her jeans, and on
7
another occasion reached under her shirt and bra and touched her bare breast. She was
fourteen. That testimony alone would carry both verdicts. TEX. CODE CRIM. PROC. art.
38.07(a), (b)(1).
The jury heard more. Messages attributed to Appellant, admitted without
objection, asked E.K. whether he had gone too far with her physically, acknowledged that
he had been groping her in a more intimate way, and asked whether she was okay with
the petting and the groping. A message describing a cut finger corresponded to E.K.’s
account of touching over her clothes. Those messages also supply the intent element,
because a jury may infer the intent to arouse or gratify from an actor’s words and conduct.
McKenzie, 617 S.W.2d at 216; Bazanes, 310 S.W.3d at 37. On the question whether the
messages came from Appellant, the detective testified that the sender’s number matched
Appellant’s, and E.K. testified that the message her mother saw appeared under
Appellant’s name.
Appellant’s arguments were presented to the jury: No coworker or customer came
forward to say they witnessed any touching. Johnston testified that she monitored the
cameras and saw nothing. The messages were absent from Appellant’s phone. These
describe conflicts in the evidence, and the jury had the proper authority to resolve them
and in light of the credibility of the witnesses who discussed them. We may not reweigh
the evidence or substitute our judgment for the factfinder’s, and we do not sit as a
thirteenth juror. Brooks, 323 S.W.3d at 899; Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Viewing the record in the light most favorable to the verdicts, we hold
that a rational jury could have found each element of indecency with a child beyond a
reasonable doubt in both causes. We overrule Appellant’s first issue.
8
B. Admission of the Email from E.S.
In his second issue, Appellant challenges the admission of State’s Exhibit 3, the
July 26, 2022 email from E.S. to the sandwich shop. He argues the trial court admitted it
without the hearing and the finding required by article 38.37 of the Texas Code of Criminal
Procedure, that the conduct the email describes is not indecency with a child, and that its
probative value was substantially outweighed by its prejudicial effect.
The admissibility of evidence is within the discretion of the trial court and will not
be overturned absent an abuse of discretion. Parker v. State, 727 S.W.3d 38, 65–66
(Tex. Crim. App. 2025); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
We will affirm if the admissibility ruling is within the zone of reasonable disagreement.
Parker v. State, 727 S.W.3d 38, 65–66 (Tex. Crim. App. 2025); Moses v. State, 105
S.W.3d 622, 627 (Tex. Crim. App. 2003). If the trial court’s evidentiary ruling is correct
on any theory of applicable law, we will not disturb that ruling even if the trial judge gave
the wrong reason. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
We begin with a brief observation about the objection before us. The running
objection the trial court granted pertained to E.S.’s testimony, and the court had sustained
it and excused E.S. from testifying. The State offered the exhibit through a different
witness, Johnston. Appellant stated it was renewing the running objection; he did not
state a ground directed at the email. A bench conference occurred during this exchange,
but we have no record of its contents. Therefore, we assume without deciding that the
renewal preserved a complaint about the exhibit. We nevertheless conclude the trial court
did not abuse its discretion in admitting State’s Exhibit 3 into evidence.
9
We conclude that article 38.37 does not govern this exhibit. Section 2(b) permits
the State to offer evidence that the defendant committed a separate offense listed in
section 2(a) against a child other than the complainant. TEX. CODE CRIM. PROC. art. 38.37,
§ 2(b). Section 2(a)(1)(C) lists indecency with a child among those offenses. TEX. CODE
CRIM. PROC. art. 38.37, §§ 2(a)(1)(C), 2(b). Article 38.37 conditions use of this evidence
on a hearing outside the jury’s presence and a determination that the evidence will
support a jury finding beyond a reasonable doubt. Id. § 2-a.
Article 38.37’s provision for a hearing and finding reach the offenses enumerated
in section 2(a). Here, we find evidence of no such offenses in State’s Exhibit 3. The
email describes Appellant putting his stomach against E.S.’s back and his hands over
hers. It does not describe the touching of an anus, breast, or genitals, and it does not
describe contact by any part of Appellant’s anus, breast, or genitals. TEX. CODE CRIM.
PROC. art. 38.37, § 2(a)(1)(C); TEX. PENAL CODE § 21.11(c).
This distinction matters because the State’s proffer changed. What Appellant
originally moved to suppress, and what the trial court heard outside the jury’s presence,
was E.S.’s account that Appellant pressed his groin against her back. What the jury
received was the email, in which E.S. wrote stomach. In that regard, we agree with
Appellant that the conduct the email describes is not indecency with a child. The
consequence is that section 2-a’s hearing and finding requirements were never triggered
as to the exhibit; article 38.37 supplied neither the vehicle for its admission nor the
obstacle to it. Notably, the statute does not limit the admissibility of evidence of
extraneous crimes, wrongs, or acts under any other applicable law. TEX. CODE CRIM.
PROC. art. 38.37, § 4.
10
Admissibility of State’s Exhibit 3, then, turns on the ordinary rules of evidence.
Rule 404(b)(1) provides that 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 that character. TEX. R. EVID. 404(b)(1). Such evidence may be
admitted for another purpose, however, including proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake. TEX. R. EVID. 404(b)(2).
The listed purposes are neither mutually exclusive nor exhaustive, and the rule operates
as one of inclusion rather than exclusion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.
Crim. App. 2009). “Rule 404(b) is a rule of inclusion rather than exclusion.” Parker v.
State, 727 S.W.3d 38, 65 (Tex. Crim. App. 2025). Among the permitted uses is rebuttal
of a defensive theory of fabrication. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App.
2008). A defense opening statement can open the door to the State using rebuttal
evidence without waiting until the defense rests. Dabney v. State, 492 S.W.3d 309, 317
(Tex. Crim. App. 2016).
These authorities demonstrate how State’s Exhibit 3 meets the requisites of Rule
404(b)(2) in two independent ways. The first, to permit the State to rebut Appellant’s
theory that the text messages had been fabricated. From opening statement forward,
Appellant maintained that the messages did not come from him. He cross-examined E.K.
and the detective on the origin of the messages and called an expert who demonstrated
how a text message can be fabricated. The email admitted in Exhibit 3, however, was
written on July 26, 2022, by a different teenage employee, to the owner of the same shop,
three years before trial. A trial court could reasonably conclude the exhibit tended to rebut
Appellant’s theory rather than merely to show character. Bass, 270 S.W.3d at 563.
11
The second purpose is impeachment. Johnston, the shop’s owner, testified that
she monitored the store’s cameras frequently and never saw inappropriate conduct
between employees. On redirect, she testified that she sent Appellant home out of an
abundance of caution based on what she heard from law enforcement. That testimony
left the impression that nothing occurring at the store had generated a complaint to her.
The email showed that another employee had reported concerns about Appellant to her.
Impeachment by contradiction is a recognized form of impeachment, Michael v. State,
235 S.W.3d 723, 726 (Tex. Crim. App. 2007), and a party who leaves a false impression
opens the door to evidence correcting it, Daggett v. State, 187 S.W.3d 444, 453–54 (Tex.
Crim. App. 2005). On either ground, the ruling falls within the zone of reasonable
disagreement. Parker, 727 S.W.3d at 65–66.
Relevance under Rule 404(b) does not end the inquiry. Relevant evidence may
still be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury. TEX. R. EVID. 403. The rule
carries a presumption favoring admission. Montgomery v. State, 810 S.W.2d 372, 389
(Tex. Crim. App. 1990) (op. on reh’g). Evidence is unfairly prejudicial only when it has an
adverse effect beyond its tendency to prove the fact that justifies its admission. Chaparro
v. State, 505 S.W.3d 111, 116 (Tex. App.—Amarillo 2016, no pet.). Here, the email
carried real probative force on the fabrication defense and on Johnston’s account of what
she knew and when. See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim.
App. 2006). It carried little capacity to draw the jury toward a decision on an improper
basis, to confuse or distract the jury, to give undue weight, or to consume an inordinate
12
amount of time. Id. The ruling admitting State’s Exhibit 3 fell within the zone of
reasonable disagreement.5 The trial court did not abuse its discretion.
We overrule Appellant’s second issue.
CONCLUSION
Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
Lawrence M. Doss
Justice
Do not publish.
5 Even assuming error, reversal would not follow. The improper admission of an extraneous act is nonconstitutional error, which we disregard unless it affected a substantial right. TEX. R. APP. P. 44.2(b). The jury had E.K.’s account of both charged incidents, 340 pages of messages admitted without objection in which the sender acknowledged groping and petting, and the detective’s testimony matching the sender’s number to Appellant’s. Against that record, a one-paragraph email describing weird names and unwelcome touching gives fair assurance of no more than slight effect.
13