Aguillen v. State of Texas

Jose Aguillen’s McClennan County¹ jury trial for two counts of indecency with a child by contact established pretty clearly that Aguillen had been physically abusive with various minors within his household, including E.O., his alleged victim of indecency. Over Aguillen’s repeated objections, a number of incidents of physical abuse of other minors in the home were admitted into evidence. The jury found Aguillen guilty of the two counts of indecency, and he was sentenced to twenty years’ imprisonment for each count, to run consecutively.²On appeal, Aguillen argues that the admitted evidence of his alleged extraneous acts of physical abuse was harmful error, as was the admitted outcry testimony. Because admitting the extraneous-offense evidence was harmful error, we reverse the judgment of the trial court and remand this case to the trial court for a new trial.In 2014, the State indicted Aguillen for two charges of indecency with E.O. by contact.^3,4 At trial, E.O.’s fourth-grade teacher, Amber Pearson, testified that E.O. was a good student, but that, when her grades fell, Pearson asked E.O. how things were at home. In response, E.O. “burst into tears and started crying and crying. . . .” According to Pearson, E.O. told her “that she was scared for her siblings and that she didn’t want to go home.”⁵ E.O. “was scared for her siblings because [Aguillen] hurt them sometimes.” E.O. told Pearson that, when her little sister refused to eat dinner and then later became hungry, Aguillen kicked her in her stomach. E.O. also told Pearson that, on another occasion, when her sister had been crying for a long period of time and refused to stop, Aguillen placed her sister against a heater until her sister “felt like she was burning.” Pearson stated, “[E.O.] said there were times when he hits them with metal objects like poles or bats. He pulls them by their hair in the house a lot of times when they wouldn’t eat or listen to him.” When Pearson asked E.O. if she had spoken to her mother about Aguillen’s behavior, E.O. told her that she had and that E.O.’s mother said it was “pretty normal in their culture, and that it would be okay.” Pearson was designated as an outcry witness to Aguillen’s alleged physical abuse of the other children in the household.Cynthia Cates, a school counselor at E.O.’s school, testified that, after learning of a series of communications between a student and another teacher, she also spoke with E.O. As a result of the conversation, Cates learned that there had been physical abuse in E.O.’s home. Cates contacted the Texas Department of Family and Protective Service’s (DFPS) hotline to make a report.⁶Nancy Dominguez, also a school counselor, testified that, on receiving information from a student named Mariah, she decided to speak to S.O., E.O.’s sister. Dominguez stated that, during their conversation, S.O. was “very quiet, sad, scared out of the ordinary” and was having problems making eye contact with her.⁷ Despite that, S.O. informed Dominguez that there were several other children living in the home and that, when the children refused to eat, Aguillen would hit them.⁸ Dominguez learned that, when one of the sisters, R.O., refused to eat, Aguillen “hit[] her with her shoe.” Dominguez continued with a description of Aguillen’s actions: “He kicks her to the point where she actually falls down, and he’s thrown her against the wall, and sometimes grabs her by the hair, throws metal pipes at them, and he throws baseballs at them . . . When [R.O.] cries before she goes to bed, [Aguillen] will hit her to get her to stop.” Dominguez repeated S.O.’s statement that E.O. wanted to run away from home and that S.O. told her they could run away together. Dominguez did not believe the children were in a safe environment. Based on her conversation with S.O., Dominguez contacted DFPS to make a report.Brittany Hagan, an investigator with the DFPS, was designated by the State as the outcry witness regarding E.O.’s allegation that she had been sexually abused by Aguillen. Hagan testified that she received a referral intake involving the physical abuse of E.O. On receiving the referral, Hagan went to E.O.’s school. While there, she initially discussed the information she had received with the counselor, the principal, and law enforcement. Not being aware of the alleged sexual abuse, they all confirmed the physical abuse outcries.Hagan then attempted to speak with E.O. and her sister, S.O. S.O. was hesitant to speak with Hagan, but E.O. agreed to talk to her.⁹ Hagan asked the sisters if “anybody ever touched [them] on [their] . . . private body parts?” According to Hagan, E.O. answered affirmatively. E.O. told Hagan that “her dad had touched her between her legs on her front middle part.” E.O. did not provide Hagan with any additional information relating to the alleged sexual abuse. E.O. did, however, inform Hagan that she had spoken to her mother about the alleged abuse and that, in response, her mother “cried but . . . didn’t address it further than that.”¹⁰E.O. testified that she did not remember anything about Aguillen moving into the home with her and her mother. When asked what she liked and what she disliked about Aguillen, E.O. responded, “I don’t know.” E.O. was then asked what would happen to her sister “when she would get into trouble.”¹¹ E.O. testified that she did not remember whether Aguillen disciplined her sister by giving her “spankings” or whether he ever used a belt when disciplining her. She also did not recall how Aguillen treated her sister. Eventually, E.O. stated that Aguillen “kicked [her sister's] butt” when she was around three years old. E.O. also recalled a time when Aguillen became upset with E.O., E.O.’s sister, and a neighborhood friend and threw a “long, plastic tube” at the girls. E.O. stated that she and her sisters would get “whippings” from Aguillen on the “butt” and that she remembered seeing marks on her lower back after Aguillen “whipped” her. According to E.O., the marks were not red marks, but were more like bruises.E.O. then recalled Aguillen being at the home computer, calling E.O. into the room, and placing her on his lap. E.O. explained that Aguillen first placed his hands on her thighs and then put them on the part of her body that she used to “pee.” She stated that Aguillen placed his hands over, not under, her clothing. According to E.O., Aguillen wanted her to go change her clothing to put on shorter short pants, but E.O. refused. E.O. stated that she believed Aguillen touched her on only one occasion when she was ten years old. She conceded, however, that, during her interview at the Child Advocacy Center (CAC), she told the interviewer that Aguillen touched her once when she was nine years old and then again at the end of 2013.¹²On cross-examination, E.O. continued to testify that Aguillen had touched her between her legs on only one occasion. She also stated that he had not been tickling her at the time and that he did not say anything to her during the incident. E.O. did not express any opinion as to whether Aguillen’s actions were intentional or accidental. She stated that he did not touch her for any length of time and that it happened “pretty quick.” According to E.O, during the incident, Aguillen did not remove his clothing or threaten her.S.O. testified that Aguillen “hit” R.O., another of the siblings in the home, but that he did it as “punishment and stuff, you know, like, a normal parent, I guess.” She explained that Aguillen hit R.O. “rather hard” when R.O. was two or three years of age. S.O. stated that, on one occasion, R.O. refused to eat and that Aguillen pushed her or kicked her, which resulted in a bruise to R.O.’s head. According to S.O., she was afraid of Aguillen “[b]ecause he always seemed mean,” but she added that it was not “all the time.” S.O. testified that she had also seen “marks” on E.O.’s lower back that resulted from Aguillen hitting E.O. with a belt. S.O. stated that Aguillen also hit her but that he never left marks on her body. S.O. agreed that, when she spoke to the CAC interviewer, she told her that Aguillen had picked her up by the throat when she was around seven years old and then dropped her on the porch, but that she could not recall the incident at trial. S.O. believed she was the first person E.O. spoke to about the alleged sexual abuse by Aguillen. S.O. explained that E.O. told their mother about the alleged incident and that their mother asked Aguillen about the accusation. Aguillen denied ever sexually abusing E.O.Aguillen presented one witness on his behalf, the mother of the girls, C.A. C.A. testified that E.O. did not speak to her about the allegations before the DFPS became involved in the case. She testified that Aguillen moved out of the residence because she would have been unable to have the children back in the home if he remained there. C.A. testified that, along with some of the children, she visited Aguillen while he was in custody before the commencement of trial. She stated she did not believe E.O.’s allegations against Aguillen. When asked why she did not believe E.O., C.A. stated, “Just little stuff that she does. She — she lies about stuff that she doesn’t have to lie about. Um, she denies stuff that she — she doesn’t have to deny. And it’s been like that since she was eight, nine years old and, um, I’m not sure.”According to C.A., E.O. was aware that she did not believe the allegations against Aguillen and that it was E.O.’s fault that he was in jail. As to Aguillen’s alleged physical abuse of her daughters, C.A. stated that she had never seen any bruises and that, when she would arrive home from work, “everybody’s like, oh, I miss you, Mommy, I love you, and that’s why it came from — to me as just a surprise.” C.A. stated that she may have told E.O. that, when Aguillen physically hit her as a manner of “discipline,” it was just what happened in their culture. It was C.A.’s opinion that E.O. did not tell the truth.Admitting the Extraneous-Offense Evidence Was Harmful ErrorAguillen’s primary focus on appeal is on the admission of testimony from various witnesses relating to his alleged physical abuse of E.O.’s sisters. In admitting the challenged testimony, the trial court stated, among other reasons, that the “basis for letting in the extraneous conduct regarding the assaultive behavior is that[,] without getting into that[,] the jury has no context or understanding of how we got to the sexual assault that the Defendant is indicted for.”Aguillen argues that the trial court’s rationale for admitting the challenged evidence was flawed. The State maintains that the extraneous-offense evidence was admissible as evidence of prior bad acts pursuant to Article 38.37 of the Texas Code of Criminal Procedure, as contextual evidence in order to explain the circumstances of E.O.’s outcry, and to rebut Aguillen’s defensive theory of fabrication.¹³ For these reasons, the State contends, the trial court properly admitted the testimony relating to Aguillen’s physical abuse of E.O.’s sisters. We disagree with the State.A trial court’s ruling on the admissibility of extraneous offenses is reviewed for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). An appellate court must uphold a trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. An appellate court will not reverse a trial court’s ruling to admit evidence unless its ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).All relevant evidence is admissible unless it is excluded by law. TEX. R. EVID. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” TEX. R. EVID. 401. On the other hand, evidence of a person’s bad character is not admissible for the purpose of proving that he or she acted in conformity therewith on any specific occasion. TEX. R. EVID. 404(a). Evidence of other bad acts may be admissible, however, for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(2); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Extraneous-offense evidence may also be admitted in prosecutions in appropriate circumstances pursuant to Article 38.37 of the Texas Code of Criminal Procedure, addressed below. In any event, before the trial court admits evidence of an extraneous bad act, the State must show it is relevant to a contested fact of consequence in the case. Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996).Article 38.37. First, the State contends, and had convinced the trial court, that evidence of Aguillen’s physical abuse of E.O.’s sisters was admissible pursuant to Article 38.37 of the Texas Code of Criminal Procedure. Article 38.37 contains a rule of evidence applicable to certain types of sexual assault cases, including this one.(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:(1) the state of mind of the defendant and the child; and(2) the previous and subsequent relationship between the defendant and the child.TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b)(1), (2) (West Supp. 2016) (emphasis added). Before a trial court can admit such evidence, it must first, “determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt,”¹⁴ and then “conduct a hearing out of the presence of the jury for that purpose.” In this case, the trial court held the appropriate hearing before the commencement of trial and determined that the complained-of extraneous-offense evidence would be admitted.¹⁵Aguillen contends that Article 38.37 of the Texas Code of Criminal Procedure does not address a defendant’s nonsexual acts committed against persons other than the complaining witness. Article 38.37, Section 1, carves out an exception to Rule 404(b), but it does so in relation to a defendant’s extraneous bad acts against the victim in the case, not against others. The State maintains, however, that at least two courts have allowed such evidence, citing to Jones v. State, 119 S.W.3d 412, 420–21 (Tex. App.—Fort Worth 2003, no pet.),¹⁶ and Joseph v. State, No. 01-02-01109-CR, 2004 WL 637924 (Tex. App.—Houston [1st Dist.] Apr. 1, 2004, pet. ref’d) (mem. op., not designated for publication).¹⁷ Notably, the holdings in Jones and Joseph were decided before the Legislature’s amendment to Rule 38.37. In 2013, Sections 2 and 2-a were added to Article 38.37 to allow “evidence of other sexual-related offenses allegedly committed by the defendant against a child to be admitted in the trial of certain sexual-related offenses for any bearing the evidence has on relevant matters.” Bradshaw v. State, 466 S.W.3d 875 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting House Comm. on Criminal Procedure Reform, Select, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013)). Section 2(b) states,Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.TEX. CODE OF CRIM. PROC. ANN. art. 38.37, § 2(b) (West Supp. 2016) (emphasis added). The amendment thus allowed for, under appropriate circumstances, evidence of extraneous offenses alleged to have been committed by the accused against individuals other than the victim. However, subsections (a)(1) and (2) specifically delineated the types of extraneous offenses that might be admissible: sex trafficking of a child; continuous sexual abuse of a young child or children; indecency with a child; sexual assault of a child; aggravated sexual assault of a child; online solicitation of a minor; sexual performance by a child; possession or promotion of child pornography; and any attempt or conspiracy to commit any of these offenses. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(a)(1)(A)–(H), (2) (West Supp. 2016).Whether we analyze the facts of this case in the pre-amendment context using cases such as Jones or we do so in light of the 2013 amendment to Article 38.37, the result is the same. Under either scenario, an extraneous offense committed by an accused against a third party must have some similarity to the charged offense; that is, it must at least involve sexual misconduct of some sort. Here, the State sought to introduce evidence that Aguillen physically abused E.O.’s sisters, which abuse had no connection to the charged offense. There is no evidence that the physical abuse against the sisters happened at or near the time of the alleged sexual abuse of E.O. or that the extraneous offenses against E.O.’s sisters somehow led to or explained the charged offenses. In other words, evidence of Aguillen’s physical abuse of E.O.’s sisters has no relevant bearing on whether Aguillen inappropriately touched E.O. on the two occasions he was alleged to have done so. Contrary to the State’s contention, the extraneous-offense evidence involving E.O.’s sisters was not admissible pursuant to Article 38.37 of the Texas Code of Criminal Procedure.Contextual Evidence. The State also contends that the complained-of evidence was admissible as contextual evidence. In addition to the explicit exceptions set out in Rule 404(b), extraneous-offense evidence may be admissible as contextual evidence. There are two types of contextual evidence: (1) “same transactional evidence,” which refers to other offenses connected with the primary offense, and (2) “background contextual evidence,” which includes all general background evidence. Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). Same-transaction evidence is admissible as an exception to Rule 404(b) when the evidence is essential for the State to rationally present evidence of the charged offense. Id. at 86 n.4. “Only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transactional evidence be admitted.” Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App. 1993) (op. on reh’g). Thus, extraneous- offense evidence may, when appropriate, be admissible as same-transaction contextual evidence. Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992). On the other hand, background contextual evidence “fill[s] in the background of the narrative and give[s] it interest, color, and lifelikeness.” Mayes, 816 S.W.2d at 87. Background contextual evidence is not admissible for one of the “other purposes” for which evidence may be admitted under Rule 404(b) if it includes an impermissible character component. Id. at 88.The State contends that the extraneous-offense evidence was necessary to show the circumstances surrounding E.O.’s outcry and, as such, was properly admitted as contextual evidence. We disagree. The charged offenses of indecency with a child by contact, as well as the facts and circumstances on which the charges were based, could be understood by the jury without the introduction of the complained-of extraneous-offense evidence relating to the physical abuse of E.O.’s sisters. In fact, it was E.O.’s conversation with Cates, the school counselor, that resulted in the involvement of the DFPS, which then led directly to E.O.’s outcry regarding the sexual abuse by Aguillen. The evidence regarding Aguillen’s physical abuse of E.O.’s sisters was superfluous, if the rationale for its admissibility was to show the circumstances of E.O.’s outcry or what led up to her outcry. Simply stated, the relevant events could have been explained adequately without the use of the extraneous-offense evidence at issue.In addition, the State contends that “a strict prohibition of testimony regarding inter-family violence would ignore the reality of family dynamics.”¹⁸ The State asserts that the “assault of one child in the presence of others carries with it an implied threat — If you don’t do what I demand of you, you’re next.” Assuming that it is the State’s rationale that the extraneous-offense evidence against E.O.’s sisters was necessary to show the jury that the charged offense did not happen in a vacuum, that Aguillen’s household was an otherwise “unhealthy” one, or that Aguillen controlled E.O., the evidence of Aguillen’s physical abuse against E.O., alone, would have adequately served that purpose. To include the extraneous-offense evidence involving E.O.’s sisters shows merely that it was a part of Aguillen’s bad character to physically assault the other children living in the home; but it has little, if any, relevance to the matter of whether Aguillen committed the offense of indecency with a child by contact against E.O. on the two occasions he was alleged to have done so. This is the precise purpose of Rule 404(b)’s prohibition against the use of character evidence.¹⁹Rebutting a Defensive Theory. The State argues further that the extraneous-offense evidence was necessary to rebut Aguillen’s defensive theory that E.O. lacked credibility and that she had fabricated the charges against him. Specifically, the State reasons that, because the children’s mother, C.A., testified that E.O. had been dishonest about the charged offenses, the consistent testimony from E.O. and S.O. regarding Aguillen’s physical abuse of the children would show that E.O. was being truthful about the charged offenses. We disagree again.In support of its argument, the State references Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). Bass was a pastor who had been accused of sexually assaulting a teenager on church property. Id. at 563. In Bass’ opening statement to the jury, he claimed that the teenager’s allegations were “pure fantasy” and “pure fabrication.” Id. at 557. Bass also asserted that he was the “real deal” and a “genuine article” who would never engage in that sort of behavior. Id. at 558. After the victim testified, the trial court permitted the State to present extraneous-offense evidence during its case-in-chief to show that Bass had sexually assaulted two other young girls who attended Bass’ church. Id. at 558–59. As his defense, Bass presented evidence in the form of opinion and reputation testimony that the victim was not considered to be a truthful person. Id. at 559. Bass also testified, denying that he committed the charged offenses and the two extraneous offenses. Id. In addition, Bass presented evidence of his good character and reputation for being a truthful person. Id. at 560. Moreover, in his closing jury argument, Bass commented on the victim’s credibility by referring to her claim against him as a “bizarre, silly accusation.” Id. He continued by commenting on the complainant’s failure to present more than one character witness and stating that, if any other individuals testified on her behalf, the State “can line them up, bring them up, let you hear.” Id. In further support of Bass’ defense, the jury heard that “[Bass] spends his life from 12:00 to 1:00 every day doing what? He’s in prayer.” Id. at 560–61. “He doesn’t have time to be out stalking girls. You saw his two sons. Do those look like two boys raised by a pedophile?” Id. at 561.In affirming the trial court’s decision to admit the extraneous-offense evidence, the Texas Court of Criminal Appeals stated,In this case, it is at least subject to reasonable disagreement whether the extraneous-offense evidence was admissible for the noncharacter-conformity purpose of rebutting appellant’s defensive theory that the complainant fabricated her allegations against him and of rebutting the defensive theory clearly suggesting that appellant, as a “real deal” and “genuine” pastor, would not engage in the type of conduct alleged in the indictment.Id. at 563.²⁰Although the Texas Court of Criminal Appeals has held that extraneous-offense evidence is admissible to rebut a defensive theory raised in opening statement or raised by the State’s witnesses during cross-examination, the fact that the State’s witnesses are cross-examined does not, in and of itself, authorize the introduction of extraneous-offense evidence. Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994) (finding trial court did not err in admitting evidence to rebut defensive theory raised on cross-examination of State’s witnesses); Caldwell v. State, 477 S.W.2d 877, 879 (Tex. Crim. App. 1972). Likewise, a challenge to the complainant’s credibility on cross-examination does not automatically open the door to extraneous-offense evidence. Id. Instead, the response elicited from the State’s witnesses on cross-examination must be sufficient to construct a defensive theory before the State may introduce extraneous-offense evidence in rebuttal. Walker v. State, 588 S.W.2d 920, 922–23 (Tex. Crim. App. 1979).In this case, Aguillen’s opening statement amounted to nearly one page of the transcript of a multi-volume trial record and included the following paragraph:You’ve already given — been given an indication of what the children, perhaps, think of this man. They probably don’t like him. There’s going to be evidence to that effect. I believe, and so there’s going to be some evidence as to why these children would be making up allegations of Indecency with a Child.Aguillen continued by asking the jury to consider him “innocent at this point.” During trial, Aguillen chose not to testify and presented only one witness on his behalf, the mother of the girls.There are several differences between the facts contained in Bass and the facts of this case. First, Bass staked out his own righteous character and explicitly asserted that he would never sexually abuse a child who attended his church because he was not that type of man. In addition, Bass testified as to his own credibility by claiming he was the “real deal,” and therefore, the victim was merely orchestrating “pure fantasy.” As a result, the State was allowed to show that Bass had, in fact, acted in a very similar manner towards other victims who were comparably situated as the victim in the charged case. Moreover, Bass’ testimony at trial was consistent with the assertions he had made in his opening statement.In this case, Aguillen’s brief opening statement consisted of a simple assertion that the children in the household “probably [didn't] like [Aguillen]” and that he believed the evidence would show why they would “ make up” the allegations against him. Moreover, Aguillen chose not to testify and presented only one witness, E.O.’s mother, who testified that she believed E.O. was being untruthful about the charged offenses. Aguillen did not claim a generally righteous character nor advance a fabrication theory as forcefully as Bass did; nonetheless, he relied on a defensive theory that E.O. had not been telling the truth when she accused Aguillen of the charged offenses. As we stated above, the fact that E.O.’s testimony appeared consistent with S.O.’s testimony regarding the physical abuse of the sisters does not rebut Aguillen’s defense that E.O. was being dishonest about the charged-offenses. It shows only that the girls were most likely telling the truth about Aguillen physically assaulting them.Rule of Evidence 403. Even assuming evidence regarding the physical assaults of E.O.’s sisters was admissible either to rebut a defensive theory or to provide the jury with contextual evidence, a trial court should nonetheless exclude such evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.²¹ See TEX. R. EVID. 403;²² Moses, 105 S.W.3d at 626; Montgomery, 810 S.W.2d at 387. Under a Rule 403 analysis, courts should balance the following factors: (1) the strength of the evidence in making a fact more or less probable; (2) the potential of the extraneous offense evidence to impress the jury in some irrational but ineffaceable manner; (3) the amount of time the proponent needed to develop the evidence; and (4) the strength of the proponents need for this evidence to prove a fact of consequence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).Here, the State charged Aguillen with two counts of indecency with a child. A person commits the offense of indecency with a child “if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person: (1) engages in sexual contact with the child . . . .” TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). “‘[S]exual 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 . . . [or] any part of the genitals of a child. . .” TEX. PENAL CODE ANN. § 21.11(c)(1) (West 2011).These are the elements the State was required to prove to convict Aguillen of the charged offenses. That said, evidence that Aguillen physically assaulted E.O.’s sisters is of little, if any, relevance in proving that Aguillen inappropriately touched E.O. in a sexual manner on two separate occasions. The complained-of extraneous-offense evidence does not make any element of the charged offense more or less probable. In addition, evidence that Aguillen kicked his young daughters, threw things at them, placed them against heaters, hit them until they were bruised, choked them, and physically abused them for merely refusing to eat likely left a lasting impression with the jurors and unfairly prejudiced them. Moreover, the State spent a disproportionate amount of time presenting the jurors with evidence of Aguillen’s physical abuse of E.O.’s sisters as compared to the amount of time it spent presenting evidence relating to the charged offenses, thereby confusing the real issue in the case; that is, whether Aguillen was guilty of committing the offense of indecency with a child. It has long been held that “an accused is entitled to be tried on the accusation made in the state’s pleading and that he should not be tried for some collateral crime or for being a criminal generally.” Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). Here, the extraneous-ffense evidence of Aguillen’s physical assaults of E.O.’s sisters was substantially more prejudicial than probative and, thus, harmful when erroneously admitted.²³We reverse the trial court’s judgment and remand this case to the trial court for a new trial.Date Submitted: August 10, 2017Date Decided: October 31, 2017Publish