Opinion issued October 2, 2026.
In the
Court of Appeals
for the
First District of Texas
NO. 01-24-00869-CR
NO. 01-24-00871-CR
ADIDDAS KINGSLEY JOHNSON, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 95192-CR, 95193-CR
MEMORANDUM OPINION
A jury convicted appellant Adiddas Kingsley Johnson of multiple counts of
the second-degree felony offense of indecency with a child by contact, see TEX.
PENAL CODE § 21.11, and assessed his punishment at two seven-year prison terms and one ten-year prison term, each to be served consecutively. In three issues on
appeal, Johnson argues that (1) the State failed to present sufficient evidence that
he engaged in sexual contact with the minor complainant, (2) the trial court erred
in its instructions to the jury, and (3) the trial court erred by admitting statements
appellant made to an investigator regarding his habit of walking around the house
nude in front of his children.
Appellant’s sufficiency challenge fails because a rational trier of fact could
have found beyond a reasonable doubt based on the testimony at trial that appellant
acted with the intent to arouse or gratify his sexual desire. We reject appellant’s
challenge to the trial court’s extraneous offense instruction because appellant has
failed to show that, by not using the word “intent” in listing the purposes for which
the jury could use extraneous offense evidence, the instruction was an incorrect or
misleading statement of law. We conclude further that, if the instruction had been
erroneous, it would have been harmless error. Finally, we hold that any error in the
admission of appellant’s statements to an investigator related to appellant’s habit of
walking around the house nude in front of his children was harmless given
appellant failed to object to the admission of similar evidence. We affirm the
judgment of the trial court.
2
Background
A jury convicted appellant of three counts of indecency with a child by
contact, each count involving his 14-year-old daughter, Zoey.1 The jury found that
appellant had, with the intent to arouse or gratify his sexual desire, engaged in
sexual contact with Zoey by touching her genitals, by touching her breast, and by
causing her to touch his genitals.
A. Alleged Assaults
Appellant and his former wife, Camille, have two daughters, Zoey and
Emily. At appellant’s trial, the State’s witnesses included Camille, Zoey, Emily, a
forensic interviewer who interviewed Zoey and Emily the morning after the
alleged assaults, and a detective with the Pearland Police Department who spoke
with appellant later that day, just before his arrest.
In February 2022, when Zoey was 14 years old and Emily was 13 years old,
the children spent the weekend at their maternal grandmother’s house, where the
children kept horses. On the night of February 21, 2022, Camille picked up her
daughters and brought them back to the Pearland apartment where the children
lived with their parents.
According to the testimony Camille, Zoey, and Emily gave at trial,
sometime after the children returned from their grandmother’s house, appellant
1
We refer to appellant’s wife and children using pseudonyms.
3
told Zoey to go take a shower. When Zoey did not comply, appellant picked Zoey
up and carried her into a bathroom. Zoey was screaming when appellant picked her
up, and appellant covered Zoey’s mouth.
Zoey testified that appellant locked the bathroom door and told her to take
off her clothes. When Zoey did not comply, appellant told her that, if she did not
take off her clothes, he would do it himself. Zoey took off her clothes and
attempted to “cover up” by crossing her arms and legs and leaning forward. She
was looking down. Appellant told Zoey “to remove [her] hands and to not cover
[herself] because there is no reason for [her] to do that.” When Zoey did not
comply, appellant “grabbed [her] hands and removed them and he held onto [her]
breast and told [her] that [she does not] own these and that [she] had no right to
cover it because these don’t matter. It don’t matter who looks at them.” Appellant
told Zoey to get in the shower and she got in. Appellant undressed and followed
her into the shower. Appellant told Zoey to put soap on a washcloth, which she
did. Appellant grabbed the washcloth from Zoey and “started washing [her] with
it.” Appellant “started washing around [her] chest area first,” from behind her,
running the washcloth over both of her breasts, then “kept on going down until he
reached more toward” her genitals, and continued halfway down her thigh.
Appellant touched the outside of Zoey’s vagina with both the washcloth and his
fingers.
4
According to Zoey, appellant then told Zoey to wash him, holding the
washcloth so that she had to turn around and face him to take it from him. Zoey
took the washcloth in her right hand, and washed appellant’s chest. Appellant then
“grabbed [Zoey’s] hand and he started making [her] make [her] hand go down to”
his genitals. Zoey “didn’t want to go around [appellant’s penis] so [she] was just
lightly going around the area” of his penis. Appellant “grabbed [Zoey’s] left hand
and told [her] to hold” his testicles, and she complied. Zoey’s right hand was on
appellant’s penis at the time, and she does not recall how long her right hand and
left hand were in those positions or if he told her to do anything else with her
hands. The next thing Zoey remembers appellant telling her was something she
understood to mean that appellant was going to do something similar to Emily.
Zoey told him “no, don’t go for her.” Appellant then got out of the shower, called
for Emily, and told Zoey to take her clothes and go to her room. When Camille
came to her room, Zoey could not speak.
Camille testified that, after appellant had taken Zoey in and shut the door
behind them, Camille calmed Emily, who was crying, and called 9-1-1. Camille
did not want appellant knowing she was calling 9-1-1. In the short 9-1-1 call,
which was played at trial, Camille told the 9-1-1 operator in a near-whisper that
she “needed[ed] someone to come now” and that appellant was “making my child
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take a shower.” No police came to the apartment that night in response to
Camille’s call.
Camille testified that, after making the 9-1-1 call, she banged on the
bathroom door. She could hear water running in the bathroom, but no voices.
Camille tried calming down Emily, who was hyperventilating. Camille then ran to
a bedroom, where there was a handgun. She had planned to “barge in” to the
bathroom, but then heard the bathroom door open and appellant call Emily’s name.
Camille ran toward the bathroom but, before she got there, appellant had closed the
door. Camille then found Zoey in her bedroom, fully clothed but covered in water.
Zoey “looked frozen” and, when Camille asked her what had happened, Zoey at
first did not want to respond. Zoey then told her that “daddy made her take off her
clothes, get in the shower, and was bathing her with a bar of soap and telling her
that you need to be comfortable.” Zoey told Camille that “then he gave her the bar
of soap and said now you can wash me so we can be comfortable. And that it was
okay.”
According to Emily’s testimony, when appellant opened the bathroom door
and Zoey went to her room, appellant pointed at Emily and said: “You come here.”
When Emily went into the bathroom, appellant told her to take her clothes off.
Emily complied. When Emily entered the shower, which was already running,
appellant entered the shower after her. Appellant was not wearing anything, and
6
the two faced each other in the shower. Appellant gave Emily a washcloth and
soap and told Emily to wash herself as “usual.” When she did, though, he told her
that she was “not doing a good enough job” and “grabbed the washcloth from
[her],” told her to turn around, and started washing [her] body.” Appellant washed
her back, her “butt, [her] thighs, and [her] calves. Just the backside.”
Emily testified that appellant then told Emily to turn around and face him.
Starting with her neck and moving down, appellant washed “the front side of [her]
body.” Appellant “move[d] down from [her] chest,” touching and massaging her
breasts in a circular motion with both of his hands, “to [her] stomach to [her] waist
and then to -- then he move[d] the washcloth from his hand.” Appellant told Emily
to “spread [her] legs”—to “open [her] legs like a starfish”—and then “use[d] his
hand to clean” Emily’s genitals. “He used his fingers and in a circular motion again
. . . just started putting his hand just down there.” When Emily tried “closing [her]
legs back together,” appellant “said don’t fight back because then in the real world
you can’t fight back in situations like this.” Appellant put his fingers inside the
“lips” outside her vagina, but not inside her vagina. Appellant eventually told her
to rinse off, get out of the shower, and get dressed. Later, appellant shoved Camille
into Emily’s room and told Camille to sleep with Emily that night.
According to Camille’s testimony, when Emily came out of the bathroom,
she was dressed but wet and it looked like she was crying.
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B. Appellant’s Arrest
Camille testified that, after appellant left for work the morning of February
22, 2022, she asked each of the children separately what had happened. Both told
her the same thing. Camille then called 9-1-1 again, and a detective from the
Pearland Police Department came and took the children for interviews. The
detective referred the children to a forensic interviewer at the Brazoria County
Alliance for Children and observed the interviews via a closed circuit camera.
After viewing the interviews, the detective made a recorded telephone call to
appellant. Appellant told the detective that he was at work and would call him back
later in the day. Appellant called the detective back later in the day and that call,
which lasted roughly 50 minutes, was also recorded.
On that second call, appellant stated among other things that his washing
Zoey in the shower was not a sexual thing. Appellant told the detective that he felt
that he and Zoey did not have a close bond, and that Zoey was too timid. He noted
that he was “very comfortable with” himself. He said that showering together was
in his mind a way for them to bond, to show affection for one another—as when he
bathed Zoey when she was younger and as one bathes an old person—and to show
Zoey that he would not hurt her. When the detective asked why appellant had Zoey
wash his penis, appellant responded in part:
I was just letting her know on that behalf. Like, I’m a boy. You just
got to get everywhere. It’s kind of if you washed your son. You got to
8
pull back. It’s like, uh, say, if you’re not circumcised, you got to pull
and clean. But I’m just letting you know, hey, you just got to pull, not
pull, but like lift up and clean.
When the detective turned the discussion to appellant’s washing Emily, appellant
contrasted Zoey, who he said was “oblivious,” to Emily, who he said “understands
things.” Appellant denied touching Emily’s vagina other than with a soapy towel.
Appellant also denied that his penis was erect during the showers or that the
touching that took place was for sexual gratification. Instead, appellant told the
detective the bathing was to show the children: “I got your back. . . . There’s
nothing wrong with being, you know what I’m saying, flesh to flesh. It’s kind of
like flesh in my flesh, blood in my blood.”
Later in the call, appellant described himself to the detective as a “naturist”
and “freeist” who likes to be “one with nature.” Appellant said that he “like[s] the
wind hitting [his] skin,” which is “a sense of nourishment” to him. When the
detective noted that the children had said that appellant would “normally walk
around the house naked,” appellant seemed to confirm the statement, but added:
“And that’s only because I almost died because I got too hot.” When the detective
asked what made appellant almost die, appellant stated that he had passed out once,
wearing his work clothes, and told himself he should not be wearing “all these
clothes”—that, if “ditching” the clothes was going to keep him alive, “I’m ditching
it.” He got in the shower with the children, he said, to show them that he was not
9
going to hurt them. “You’re playing me as a villain. I’m not doing anything to you.
You’re seeing me. That’s how I want the kids to see me. There’s nothing blocking
me, what you see, it’s me.” Still later in the conversation, appellant noted: “People
walk around. People are comfortable with their bodies, like nudist camps and stuff
like that. People are comfortable in their own homes. People are comfortable. If
that’s what makes them comfortable, that’s just, there’s nothing wrong with that.”
He added: “My daughter[s] they [don’t have to] do what I do . . . but to understand
why I am naked is, I’m, this is comfortable to me this is giving me a breath of—
fresh air this is my freedom.”
Appellant was taken into custody soon after the call ended.
C. Calls with Camille from Jail
Roughly 18 months later, while appellant was still being held in the county
jail, he had two back-to-back phone calls with Camille that were recorded by the
jail. Camille testified that, on a separate call, appellant had told her that he had
done what he did to try to show the children “how to clean themselves.”
D. Trial
During the guilt/innocence phase at trial, in addition to calling as witnesses
Camille, Zoey, Emily, the forensic interviewer, and the detective, the State played
for the jury portions of the recording of the detective’s call with appellant and
portions of the recordings of two of the calls Camille had with appellant while
10
appellant was in jail. Appellant did not testify at trial. The defense did not call any
witnesses in the guilt/innocence phase of the trial.
The jury convicted appellant of all three counts of indecency with a child by
contact on which he had been indicted. As noted above, the jury assessed
appellant’s punishment at two seven-year prison terms and one ten-year prison
term, each to be served consecutively. This appeal followed.
Sufficiency of Evidence
In his first issue, appellant claims that the State failed to present sufficient
evidence to support the conviction. Appellant argues that the evidence was
insufficient to show that he touched Zoey’s breast or any part of her genitals with
the intent to arouse or gratify his sexual desire.
A. Standard of Review
When assessing whether sufficient evidence supports a conviction, we
consider the evidence in the light most favorable to the verdict and determine
whether, based on the evidence and reasonable inferences from the evidence, a
rational factfinder could have found the essential elements of the offense beyond a
reasonable doubt. Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under this standard, the
factfinder has “full responsibility” to resolve conflicts in the testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. We
11
consider “the cumulative force of all evidence” in determining whether the
evidence was sufficient to establish each element of the offense. Id.; Hacker v.
State, 389 S.W.3d 860, 873 (Tex. Crim. App. 2013) (stating that appellate courts
may not use “a ‘divide and conquer’ strategy for evaluating sufficiency of the
evidence”).
The factfinder is the sole judge of the credibility and weight to be attached to
the testimony of witnesses. Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim.
App. 2023). We may not “sit as the thirteenth juror” and substitute our judgment
for that of the factfinder by reevaluating the weight and credibility of the evidence.
Edwards v. State, 666 S.W.3d 571, 574 (Tex. Crim. App. 2023). When the record
supports conflicting inferences from the evidence, we presume that the factfinder
resolved the conflicts in favor of the verdict and defer to that determination.
Dunham, 666 S.W.3d at 482. The jury may draw reasonable inferences from
evidence presented at trial, and jurors may “use common sense, common
knowledge, personal experience, and observations from life when drawing
inferences.” Edwards, 666 S.W.3d at 574. The jury may not, however, “come to
conclusions based on mere speculation or factually unsupported inferences or
presumptions.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
Direct evidence and circumstantial evidence are equally probative. David v.
State, 663 S.W.3d 673, 678 (Tex. Crim. App. 2022). Circumstantial evidence alone
12
may be sufficient to uphold a conviction. Id. “The evidence need not negate every
conceivable alternative to a defendant’s guilt to be sufficient.” Id.
B. Analysis
Section 21.11(a) of the Texas Penal Code provides that a person commits the
offense of indecency with a child if, with a child younger than 17 years of age, the
person:
(1) engages in sexual contact with the child or causes the child to
engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s
genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the
child’s genitals.
For the purposes of section 21.11(a), “sexual contact” means “the following acts, if
committed with the intent to arouse or gratify the sexual desire of any person”:
(1) any touching by a person, including touching through clothing, of
the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including
touching through clothing, with the anus, breast, or any part of
the genitals of a person.
TEX. PENAL CODE § 21.11(c).
Appellant argues that the evidence at trial was insufficient to show that he
touched Zoey’s breast or any part of her genitals with the intent to arouse or gratify
13
his sexual desire. Appellant does not deny “physically carrying” Zoey into the
bathroom, and admits that, “[w]hile in the shower,” he “grabbed a washrag and
began washing her body, as well as her breasts and private areas.” But he claims
that “there is nothing in the record to support anything other than this being done to
clean” Zoey’s body. Appellant notes that there is no evidence he had an erection or
ejaculated or “made any sexual statements.”2
The uncorroborated testimony of a child complainant alone is sufficient to
support a conviction for the offense of indecency with a child. TEX. CODE CRIM.
PROC. art. 38.07; Rodriguez v. State, ___ S.W.3d ___, No. 01-23-00721-CR, 2025
WL 1373693, at *7 n.7 (Tex. App.—Houston [1st Dist.] May 13, 2025, pet. ref’d);
Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—Amarillo 2017, pet. ref’d). We
liberally construe testimony given by a child victim of sexual assault. Jones v.
State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Intent to arouse or gratify a person’s sexual desire may be inferred from the
person’s conduct, remarks, and all the surrounding circumstances. Rodriguez, 2025
WL 1373693, at *9; McDonald v. State, 148 S.W.3d 598, 600 (Tex. App.—
Houston [14th Dist.] 2004), aff’d, 179 S.W.3d 571 (Tex. Crim. App. 2005).
Although the offense of indecency with a child requires proof of the intent to
2
In addition, despite acknowledging that he physically carried 14-year-old Zoey
into the bathroom, appellant argues that there is no evidence “to indicate any type
of coercive behavior” on his part. Coercion is not an element of the offense of
indecency with a child. See TEX. PENAL CODE § 21.11(a).
14
arouse or gratify sexual desire, it does not require proof that arousal or gratification
actually occurred. Rodriguez, 2025 WL 1373693, at *9; Caballero v. State, 927
S.W.2d 128, 130 (Tex. App.—El Paso 1996, pet. ref’d). No oral expression of
intent or visible evidence of sexual arousal is necessary. Rodriguez, 2025 WL
1373693, at *9; Keller v. State, 604 S.W.3d 214, 226 (Tex. App.—Dallas 2020,
pet. ref’d).
Here, the jury heard evidence that Zoey was screaming when appellant
picked her up, and that appellant covered Zoey’s mouth. Zoey testified that
appellant locked the bathroom door before telling her to take off her clothes. She
told the jury that, after appellant told her to get in the shower, he undressed himself
and got in the shower with her. Zoey testified that appellant began washing her by
running a soapy washcloth over both of her breasts, continued down in the
direction of her genitals, continued halfway down her thigh, and then touched the
outside of her vagina—not just with the washcloth, but also with his fingers. She
said that appellant then told her to wash him and, when she began washing his
chest, “grabbed” her hand and made her hand go down to his genitals. When she
then began “just lightly going around the area” of appellant’s penis, Zoey told the
jury, appellant “grabbed” her left hand and told her to hold his testicles. Zoey
complied.
15
Viewing all the evidence in the light most favorable to the jury’s verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt
that appellant acted with the intent to arouse or gratify his sexual desire. See
Rodriguez, 2025 WL 1373693, at *9 (noting that child’s description of sexual
conduct is sufficient evidence from which factfinder may infer intent-to-gratify
element of indecency with child, citing Blair v. State, No. 13-02-709-CR, 2004
WL 593694, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 25, 2004, no pet.)
(mem. op., not designated for publication), and that jury could infer that element
from defendant’s touching child’s genitals, citing Abbott v. State, 196 S.W.3d 334,
340 (Tex. App.—Waco 2006, pet. ref’d)); Griffin v. State, No. 05-01-00549-CR,
2003 WL 77090, at *5 (Tex. App.—Dallas Jan. 10, 2003, no pet.) (mem. op., not
designated for publication) (holding that jury could infer intent element of
indecency with child offense from complainant’s testimony regarding how
appellant touched her breasts while she was in shower). We thus overrule
appellant’s first point of error and hold that the evidence is legally sufficient to
support his conviction.
Charge Error
In his second issue, appellant claims that the trial court’s extraneous offense
instruction to the jury was erroneous because, in listing the purposes for which an
extraneous offense could be considered, the instruction made no reference to
16
appellant’s “intent.” Appellant argues that the instruction thus permitted the jury to
consider extraneous offense evidence for the purpose of ascertaining appellant’s
intent in bathing his daughters regardless of whether it believed beyond a
reasonable doubt that appellant had committed the extraneous offense.
A. Standard of Review
The purpose of the trial court’s jury charge is to inform jurors of the law
applicable to the case and guide them in its application. TEX. CODE CRIM. PROC.
art. 36.14; Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App.
2019). Abstract paragraphs serve as a glossary to help the jury understand the
meaning of concepts and terms used in the charge’s application paragraphs, and
application paragraphs apply the pertinent law, definitions, and legal principles to
the particular facts and indictment allegations at issue. Alcoser v. State, 663
S.W.3d 160, 165 (Tex. Crim. App. 2022). Reversible error in the giving of an
abstract instruction generally occurs only when the instruction is an incorrect or
misleading statement of law that the jury must understand in order to implement
the commands of the application paragraph. Id. The failure to give an abstract
instruction is reversible only when it is necessary to a correct or complete
understanding of concepts or terms in the application part of the charge. Id.
While appellant does not argue that the extraneous offense instruction is
ambiguous, jury instructions that are not legally erroneous but might be
17
ambiguous, and therefore subject to an erroneous interpretation or application, are
reviewed to determine whether there is a reasonable likelihood that they were
applied in an erroneous way. Luquis v. State, 72 S.W.3d 355, 367 n.37 (Tex. Crim.
App. 2002).
B. Analysis
The extraneous offense instruction at issue read as follows:
You are instructed that there is testimony before you in this
case regarding that the defendant committed alleged criminal acts,
other than the offense alleged against him in the indictment in this
case. These are called extraneous offenses.
You cannot consider testimony of extraneous offenses for any
purposes unless you find and believe beyond a reasonable doubt that
the defendant committed any such extraneous offense. Even then you
may only consider the same as it relates to the motive of the defendant
OR the opportunity of the defendant OR preparation of the defendant
OR plan of the defendant OR knowledge of the defendant OR the
identity of the defendant OR absence of mistake by the defendant OR
lack of accident by the defendant OR the rebuttal of a defensive
theory OR the state of mind of the defendant and the child OR the
previous and subsequent relationship between the defendant and the
child OR the character of the defendant and acts performed in
conformity with the character of the defendant OR same-transaction
contextual evidence, if any, in connection with the offense alleged
against the defendant in the indictment in this case and for no other
purpose.
Appellant’s argument fails on multiple independent grounds. First, the
charge language instructs the jury that it cannot “consider testimony of extraneous
offenses for any purposes unless you find and believe beyond a reasonable doubt
that the defendant committed any such extraneous offense.” That language
18
forecloses any reasonable likelihood that the extraneous offense instruction was
interpreted by the jury in the manner appellant suggests. See Luquis, 72 S.W.3d at
367 n.37.
Second, the next sentence in the court’s charge—the sentence that appellant
argues should have listed the determination of appellant’s “intent” as a purpose for
which extraneous offense evidence could be considered—imposes an additional
limitation on the jury’s use of extraneous offense evidence by listing the only
purposes for which the jury may consider such evidence. The omission of a given
purpose from that list would narrow rather than expand the jury’s ability to use
extraneous evidence. In other words, assuming arguendo the instruction limited the
jury’s use of extraneous offense evidence to purposes that did not include the
determination of appellant’s intent, the effect would be that the jury could not
consider extraneous offense evidence for the purpose of determining appellant’s
intent—not that the jury could consider such evidence for the purpose of
determining appellant’s intent even if it did not believe beyond a reasonable doubt
that the defendant committed the extraneous offense.
Third, in listing the purposes for which extraneous evidence can be
considered, the instruction states that it may be considered in determining the
“preparation of the defendant,” the “plan of the defendant,” the “absence of
mistake by the defendant,” the “lack of accident by the defendant,” or the “state of
19
mind of the defendant.” The instruction thus in no way excluded a determination of
appellant’s intent from its list of purposes for which the jury was permitted to use
extraneous offense evidence. See Hernandez v. State, No. 01-16-00741-CR, 2018
WL 1473990, at *2 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem.
op., not designated for publication) (noting that, under rule 404(b)(2) of Texas
Rules of Evidence, extraneous offense evidence may be admitted to prove
“defendant’s motive, intent, plan, preparation, or other state of mind”); cf. TEX. R.
EVID. 803(3) (listing “motive, intent, or plan” as encompassed by term “state of
mind”).
We conclude that the trial court’s extraneous offense instruction, by not
using the word “intent” in listing the purposes for which the jury could use
extraneous offense evidence, did not permit the jury to use extraneous offense
evidence to determine appellant’s intent without believing beyond a reasonable
doubt that appellant had committed the extraneous offense, and was not an
incorrect or misleading statement of law. See Alcoser, 663 S.W.3d at 165.
C. Harm
Appellant’s second point of error would fail even if the charge had been
erroneous because appellant did not object in the trial court to the alleged error and
the record does not show that the alleged error caused him “egregious harm.” See
id. at 165 (noting that appellant who did not timely object to alleged charge error
20
can obtain relief only if record shows egregious harm). Harm is assessed in light of
the entire jury charge; the state of the evidence, including the contested issues and
weight of the probative evidence; the argument of counsel; and any other relevant
information revealed by the record of the trial as a whole. Id.
Appellant argues the alleged charge error permitted the jury to consider
extraneous offense evidence for the purpose of ascertaining appellant’s intent in
bathing his daughters regardless of whether it believed beyond a reasonable doubt
that appellant had committed the extraneous offense. As discussed above, though,
the jury charge expressly prohibited the jury from using extraneous offense
evidence for any purpose unless it found beyond a reasonable doubt that appellant
had committed the extraneous offense. In addition, Zoey’s uncontradicted
testimony was on its own sufficient to support the jury’s intent finding, minimizing
the significance of the extraneous offense evidence. Further, the prosecution
mentioned the extraneous offense evidence in argument only once, as part of a
closing argument that otherwise focused heavily on Zoey and Emily’s testimony,
and at no point in the trial suggested that the evidence could be considered for the
purpose of ascertaining appellant’s intent in bathing his daughters regardless of
whether the jury believed beyond a reasonable doubt that appellant had committed
the extraneous offense. We thus conclude that, even if the jury charge had been
21
erroneous, the alleged error did not cause appellant egregious harm. We overrule
appellant’s second point of error.
Admission of Extraneous Portions of Phone Call
In his third issue, appellant claims that the trial court erred in admitting
statements appellant made during his phone call with the detective related to
appellant’s habit of “walk[ing] around the house naked” in front of his children
because, under rule 403 of the Texas Rules of Evidence, any probative value the
statements may have had was substantially outweighed by the danger of unfair
prejudice and jury confusion.
A. Applicable Law and Standard of Review
“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. We review a trial court’s
ruling on the admissibility of evidence for an abuse of discretion. Inthalangsy v.
State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021); Buxton v. State, 526 S.W.3d
666, 687 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (applying abuse of
discretion standard in reviewing admissibility of extraneous-offense evidence). A
trial court abuses its discretion when it acts without reference to any guiding rules
and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d
22
664, 669 (Tex. Crim. App. 2019). We will uphold a trial court’s ruling on
admissibility so long as it is within the zone of reasonable disagreement.
Inthalangsy, 634 S.W.3d at 754.
B. Analysis
Appellant notes that, during his call with the detective, appellant “discussed
. . . numerous . . . things about his lifestyle, stating how he was a ‘naturist,’ [and] a
‘freeist.’” Appellant “stated that he is very comfortable with himself” and that “he
normally would walk around the kids naked in the house.”3 Appellant went on to
say that he liked the feeling of the wind hitting his skin, that it was “a sense of
nourishment.” Appellant noted that some “people are comfortable with their
bodies, like nudist camps and stuff like that,” and that, “to understand why I am
naked . . . this is comfortable to me this giving me a breath of - fresh air this is my
freedom.”
Appellant argues on appeal that “walking around naked in front of one’s
teen aged daughters, even without an erection, is most certainly an act that many in
society would consider to be deplorable, and the prejudice created by the
admission of the same is extremely high, while [its] probative value is very small.”
Appellant contends that his discussion of his “nudity on other occasions not only
3
Also, as noted above, when the detective said to appellant that “the kids talk about
you will normally walk around the house naked, but that’s normal,” appellant
answered, “Right.”
23
operated to confuse the issues,” but also “would have undoubtedly inflamed the
passions of the jurors due to their disagreement with his parenting style and
lackadaisical, laissez-faire notions of modesty, thereby creating the very real
danger that they would convict him based on their dislike of his attitude and
choices rather than sexual perversion.”
Appellant cites as support the Texas Court of Criminal Appeals’ decision in
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990). In Montgomery,
the Court of Criminal Appeals held that the trial court had abused its discretion in
admitting testimony that a defendant charged with counts of indecency with a child
committed against two of his three young daughters had frequently walked around
nude in front of his children despite having an erection. Id. at 393-97. The Court of
Criminal Appeals rejected each of the State’s arguments as to its need for the
testimony, concluding that the testimony had “marginal probative value.” Id. at
397. The Court of Criminal Appeals continued:
Inherent probativeness and inherent prejudice also weight in favor of
exclusion. Though relevant, such evidence has only marginal
probative value. By contrast, the danger of unfair prejudice from such
testimony is substantial. Both sexually related misconduct and
misconduct involving children are inherently inflammatory. Many in
our society would condemn appellant for his conduct whether they
believed it showed sexual arousal directed at his children, an
undifferentiated sexual arousal imprudently displayed, or simply an
incidental erection coupled with a damnable nonchalance. In any
event there was a grave potential for decision on an improper basis, as
jurors may have lost sight of specific issues they were called upon to
decide and convicted appellant out of a revulsion against his parental
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demeanor. A substantial portion of the State’s case was devoted to
showing such extraneous misconduct, and most of appellant’s
evidence was responsive to it. Under these circumstances a jury
instruction would not likely have neutralized the danger. We conclude
that probativeness was minimal while the potential for prejudice was
great.
Id. The Court of Criminal Appeals in Montgomery thus held that the probative
value of the testimony was substantially outweighed by the danger of unfair
prejudice. Id.
Unlike in Montgomery, here, the State argues that appellant waived his
objection by failing to object when Emily testified, in response to a question
regarding whether appellant was naked in the shower with her, that appellant
“walks around the house naked so he was already naked.” See Wharton v. State,
711 S.W.3d 92, 121 (Tex. App.—Houston [1st Dist.] 2024) (“Improper admission
of evidence is not reversible error if the same or similar evidence is admitted
without objection at another point in the trial.”), cert. denied, 146 S. Ct. 902
(2025).
“To preserve error, a complaining party must make a timely and specific
request, objection, or motion and obtain an express or implied ruling on that
request, objection, or motion.” Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim.
App. 2008). “Moreover, an objection must be made each time inadmissible
evidence is offered unless the complaining party obtains a running objection or
obtains a ruling on his complaint in a hearing outside the presence of the jury.” Id.;
25
Rodriguez, 2025 WL 1373693, at *12. Because appellant did not object to Emily’s
testimony regarding appellant’s habit of walking around the family home naked,
any error in the admission of the similar evidence was harmless. See Wharton, 711
S.W.3d at 121 (rejecting complaint regarding admission of evidence on grounds
that similar evidence was admitted at another point in trial without objection).
We overrule appellant’s second point of error.
Conclusion
Having overruled each of appellant’s points of error, we affirm the judgment
of the trial court.
Amparo “Amy” Guerra
Justice
Panel consists of Justices Rivas-Molloy, Guerra, and Gunn.
Do not publish. TEX. R. APP. P. 47.2(b).
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