Full Opinion

NUMBER 13-24-00595-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG LAQUITHA LASHAWN GABRIEL, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY, TEXAS MEMORANDUM OPINION Before Justices Silva, Peña, and Fonseca Memorandum Opinion by Justice Silva A jury found appellant Laquitha Lashawn Gabriel guilty of continuous sexual abuse of a young child, a first-degree felony. See TEX. PENAL CODE § 21.02(b), (h). The jury assessed Gabriel’s punishment at seventy-five years’ imprisonment. By three issues, Gabriel argues the trial court abused its discretion in admitting and refusing to admit certain evidence during her trial. We affirm. I. BACKGROUND 1 An amended indictment alleged by a single count that Gabriel committed one count of continuous sexual abuse of a young child. See id. § 21.02(b). Specifically, the amended indictment alleged that Gabriel, while seventeen years of age or older, committed two or more acts of sexual abuse against Jill, 2 a child younger than fourteen years of age, during a period that was thirty or more days in duration. See id. The specific acts of sexual abuse alleged were sexual assault of a child and indecency with a child. See id. §§ 22.011, 21.11. The amended indictment also alleged Gabriel committed five counts of sexual assault of a child against Jill and five counts of indecency with a child against Jill. See id. §§ 22.011, 21.11. Gabriel’s trial spanned three days. The jury heard testimony from Jill and Jill’s sister Jackie, who are both Gabriel’s biological daughters, among other witnesses. The evidence revealed that in May 2019, Jill, who was seventeen at the time, told a friend and that friend’s mother that she had been sexually abused by Ricky King, Gabriel’s boyfriend, for five years. Jill’s friend’s mother reported this to Child Protective Services, who then reported it to the Fort Worth Police Department (FWPD). Shortly after, Jill moved out of the home to live with her grandmother in Mesquite, Texas. Jill was interviewed at the 1 This case is before the Court on transfer from the Second Court of Appeals pursuant to a docket- equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3. 2 We use a pseudonym to protect the identity of the minor child. See TEX. CONST. art. 1, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”). Out of an abundance of caution, we will also use pseudonyms to identify her immediate family members. 2 Dallas Children’s Advocacy Center in June 2019 and spoke to a forensic interviewer about the abuse. A sexual assault nurse examiner with the Cook Children’s Medical Center examined Jill in July 2019 and Jill disclosed details of the sexual abuse. That same month, Gabriel voluntarily interviewed with police and denied having any knowledge of Jill’s sexual abuse. Jackie, who was nineteen at the time, also interviewed with police and initially denied that she had been sexually abused by King. FWPD subsequently executed a search warrant for King and Gabriel’s home and arrested them on the same day. Police took several photographs of the residence that were admitted into evidence, including some which depicted a bedroom that Jill and Jackie referred to as King’s “man cave.” Jackie spoke with police again in 2024 and disclosed King had sexually abused her for years. Jill was twenty-two years old at the time of trial. She testified King had sexually abused her since she was twelve. Jill stated she and King had vaginal intercourse a few times a week over a period of five years. Most of the sexual abuse occurred in King’s “man cave.” Jill explained prior to the first incident of sexual abuse that King and Gabriel had conversations with her about losing her virginity. According to Jill, [King] would say, “You should do it with someone you trust, a male figure that you trust,” and he would say, “Like myself. If you were to—if I were to take your virginity, I would make sure it wouldn’t hurt, and I would take care of you.” And [Gabriel] would be there as that conversation was happening, and she would be there sometimes during the conversation and be like, “Yeah, he wouldn’t do that. He wouldn’t hurt you if you were to have sex with him,” yeah. Jill stated King used a condom the first time they had sex, which took place in the master bedroom where King and Gabriel slept. Subsequently, Gabriel took Jill to the doctor to 3 get on birth control. According to Jill, Gabriel told her that King wanted Jill on birth control to prevent her from becoming pregnant. After Jill was on birth control, King never used a condom again. Jill described an incident where she, Jackie, Gabriel, and King were in the master bedroom. Jill testified, “Sometimes he would be laying on the bed with my mom next to him, and he would, like, stick my head underneath the covers and try to get me to give him oral sex.” Jill stated Gabriel observed this and did not say anything or try to stop King. Jill also described another incident where King became upset after Gabriel walked in on Jill and King having sex in the “man cave.” Jill stated Gabriel apologized and said, “I’ll come back when you guys are done” and left the room. Jill explained King would also have her use a silver vibrating massager, which he placed on her vagina, during intercourse. Jill further testified King called her his girlfriend and that he would get upset when she refused to have sex. She explained King would “punish” her by taking her clothes and belongings away from her and ignoring her. Jill testified Gabriel told her she didn’t have to be his girlfriend, that they could instead have a “friends with benefits relationship” and “all [Jill] had to do was just sleep with [King] so he wouldn’t be mad at [Jill] anymore.” Jill also explained King and Gabriel would sometimes get into arguments, and then King would go to the garage, sit in one of the cars, and threaten to leave and never move back. Gabriel would then talk to him and then tell Jill he wanted to talk to her. Jill went out to the garage and sat in the car with King, and he would say he wanted to have sex. They both would then leave the garage and go have sex in the “man cave.” Gabriel was present 4 when Jill and King went upstairs. Jill stated she believed Gabriel knew that Jill and King were going to have sex, and that was the reason Gabriel told her that King wanted to talk to her in the first place. In addition, Jill stated King had once urinated on her and her sister in a bathroom. Prior to Jackie’s testimony, the State requested a hearing outside the presence of the jury regarding her testimony. The trial court then conducted the hearing and heard arguments from the parties. At the hearing, Gabriel argued that Jackie’s testimony violated Texas Rule of Evidence 403, that the State could make its case without her testimony, and that her testimony was cumulative. See TEX. R. EVID. 403. Gabriel further argued “as extraneous conduct, [the Rule 403] balancing test is extremely important.” The State responded that Jackie’s testimony was admissible under Texas Code of Criminal Procedure Article 38.37, and because the jury could consider it “for any purpose, even propensity evidence,” her testimony was “more probative than it [was] prejudicial.” Gabriel then argued “[Article 38.37] does not mention [Rule] 403, and it would be extraordinarily prejudicial, and . . . that [Jackie’s testimony] will not pass the balancing test.” Gabriel also reiterated Jackie’s testimony would be cumulative because it would be similar to Jill’s testimony. The trial court overruled Gabriel’s objection, stating: All right. I’m referring both to [Articles] 38.37 and 38.371. [Article] 38.37 basically talks about evidence of extraneous offenses or acts, and it basically states: Notwithstanding [Rules] 404 and 405 of the Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against a child who’s the victim of the alleged offense shall be admitted for its bearing on relevant matters, including the state of mind of the defendant and the child, and the previous and subsequent relationship between the defendant and the child. I think that’s what [the prosecutor] is referring to when he calls this 5 witness also, but then [Article] 38.371 is evidence committed against a member of defendant’s family or household, which effectively relates to this case, of course. And the legislature included this in the Rules of Evidence, and basically it states that extraneous offense evidence may be relevant for a noncharacter-conforming purpose to prove the nature of the relationship between the defendant and the victim in this type of domestic violence case. So basically, the legislature has allowed this notwithstanding the test that the Court gives on whether or not evidence is probative and prejudicial, and, of course, any type of evidence that we’re dealing with, sexual assault of children, is going to be prejudicial. I mean, we know that, but I think the legislature took this in mind when they codified both [Articles] 38.37 and 38.371. So the Court’s going to allow it. Jackie was twenty-four years at the time of trial. She stated that when she was fourteen, King asked her to be his girlfriend and told her he had gotten permission from Gabriel to do so. When Jackie asked Gabriel about her giving King permission, Gabriel said “Yes, but that’s still your choice.” Jackie explained she and King had penetrative vaginal sex multiple times a week for seven years, from when she was fourteen to twenty-one years old. Jackie stated she told Gabriel many times over the years that she did not want to have sex with King, and Gabriel would reply that Jackie could stop it if she wanted to and that it was her choice. However, Jackie explained when she and Jill refused to have sex with King, Gabriel would try to persuade them to continue to have sex with him “just to please him and keep him to stay.” Jackie also stated that King, in Gabriel’s presence, once stated he wanted to urinate on Jackie and Jill. Gabriel said nothing nor objected to it. King told the girls to go to the bathroom, they did, and King urinated on them. Jackie explained she told FWPD in 2019 that she had not been sexually abused out of fear. She stated King told her not to say anything, that no one would believe her if 6 she said anything, and she would be harmed even if King went to prison. However, Jackie testified she was finally able to leave King and Gabriel’s home in 2024 and spoke to police about the sexual abuse she endured a few weeks after moving out. Jackie claimed King and Gabriel had removed all the “vibration things” that King used prior to the police executing the search warrant of the home. She testified the “vibration things” were kept in a dresser or closet in the “man cave.” After the jury heard Jackie and a few other witnesses testify, the trial court heard arguments outside the presence of the jury pertaining to the State’s request to present evidence that King and Gabriel attempted to commit suicide together and that King died as a result. The State argued this evidence showed consciousness of guilt and would rebut Gabriel’s defensive theories that the sexual abuse never happened and that she lacked knowledge of it. The prosecutor also argued that presenting only her suicide attempt without any information regarding his is substantially more prejudicial than it is probative on our end because it leaves a false impression from the jury. They may be left wondering that he’s out on the run, that we haven’t found him, and, you know, maybe she’s taking her life because for other reasons than her guilt. Gabriel’s counsel responded that evidence of King’s suicide presented a “confrontation problem because there’s no way to present any kind of rebuttal to what . . . King’s state of mind might have been.” Gabriel’s counsel also argued evidence of Gabriel’s attempted suicide would require the jury to “guess as to the reason,” that “[m]any people commit suicide who have done nothing wrong,” and that “[m]any people [who] have committed suicide have had multiple attempts regardless of any criminal pending case.” In addition, Gabriel’s counsel suggested “before you can make some kind 7 of inference like [consciousness of guilt], there should be an expert to say what was this specific suicidal person’s . . . state of mind.” The trial court permitted the State to present evidence of Gabriel’s suicide attempt as consciousness of guilt, but it would not permit evidence of King’s suicide, initially citing the Sixth Amendment’s Confrontation Clause. The State pointed out that the Sixth Amendment did not apply because they were not offering any testimonial statement from King. The trial court then stated “any testimony concerning [King] would be more, I believe, prejudicial than probative.” Thereafter, the following exchange occurred: [Gabriel’s counsel]: And as an ironic after note, Judge, certainly should my client still desire to testify, if it’s coming out in cross, I’m going to bring it out in direct. So just a little irony. THE COURT: You’re going to bring what out? [Prosecutor]: Yeah, I’m confused. [Gabriel’s counsel]: Well, if . . . the State can cross her about [King], I don’t want them to be the first ones to— THE COURT: No, they’re not going to question her about [King]. They’re going to question her about herself. [Prosecutor]: Well, Your Honor, if the door is open, though, I think is what [Gabriel’s counsel] is getting at, if I’m following correctly. [Gabriel’s counsel]: I understood [the Court] to say that, of course, if she testifies, it’s all fair game. THE COURT: No, no, no. It’s all fair game about her. [Gabriel’s counsel]: Thank you. THE COURT: But [the prosecutor] is right. If you open the door 8 because you ought to be—she would be your witness. So if you open the door and y’all get into any discussions about [King] or the fact that, you know, he might have committed suicide or attempted to consider suicide, then, of course, they can cross-examine her on that, but I think you know full well how the questions are concerning that. [Gabriel’s counsel]: Yeah, but it’s a door that could open quite easily, Judge. THE COURT: Well, but that would be on you. It’s not on the State. [Gabriel’s counsel] I know. THE COURT: Okay. All right. Just be aware of that. [Gabriel’s counsel]: I am, Judge. THE COURT: All right. Because I’ve already said that [the State] can’t get into it, but if you get into it, then the door’s open. It’s wide open. [The State] can get into anything they want if you bring it up. [Gabriel’s counsel]: Sure. I just wanted to clarify because I misunderstood. THE COURT: No, no, no. We’re good on that. They’re not going to get into anything about [King] unless the door is open. [Gabriel’s counsel]: Okay. Thank you, Judge. THE COURT: And that would be through her testimony if she decides to take the stand. The State thereafter presented the testimony of another witness and rested its case-in- chief. Gabriel testified in her own defense and generally disputed Jill and Jackie’s 9 testimony concerning King’s sexual abuse and her knowledge and role in it. Specifically, Gabriel stated her daughters’ story was “ridiculous.” According to Gabriel, King had several physical health conditions including chronic kidney disease, diabetes, high blood pressure, and high cholesterol. Gabriel also stated King had mental health conditions, including depression, anxiety, bipolar, and schizoaffective disorder. She testified King took more than one or two medications that caused him to have difficulty functioning sexually a majority of the time. She also stated his kidney disease affected his genital region and that he suffered pain. Gabriel explained King had a stent that was inserted through his penis in order to help him pass kidney stones, and that his recovery from this outpatient procedure involved lying in bed on medication and in a lot of pain. Gabriel indicated that some of the medication caused King to have erectile dysfunction and made him very sleepy. He had five stent procedures between 2016 to 2018, and each time the stent would be inserted for a few weeks and cause him discomfort. When asked whether it made sense that King “would have been physically able to have sex that many times a week,” Gabriel replied, “No, it does not.” On cross-examination, Gabriel suggested Jackie moved out of her home because she did not want to pay bills or follow her rules. Gabriel admitted she stayed with King for years after Jill moved out of the home. During a bench conference, the State requested permission to ask Gabriel about her suicide attempt and King’s suicide, arguing Gabriel had opened the door to both. The trial court granted the State’s request, and the following exchange occurred: [Gabriel’s counsel]: How was that door opened? 10 THE COURT: Well, it was opened when you said that [King] was not physically able to have sex. [Gabriel’s counsel]: What’s that got to do with suicide if he couldn’t— THE COURT: Consciousness of guilt. [Gabriel’s counsel]: Huh? THE COURT: It’s consciousness of guilt, and I told you to be careful about all of that. You opened the door. [Gabriel’s counsel]: I don’t know how. THE COURT: I can tell you how. When you said to the jury was [King] physically able to have sex, and she said no. [Gabriel’s counsel]: What’s that got to do with suicide? THE COURT: Well, it’s consciousness of guilt. [Gabriel’s counsel]: What’s that got to do with suicide? THE COURT: I’ve already told you. [Gabriel’s counsel]: Okay. After the bench conference, the State asked Gabriel if she was aware that King was set for trial on the same charges she was facing on June 24, 2024, and she responded, “Yes.” Gabriel stated she was with King on that day. The State then asked if she and King tried to kill themselves together, and Gabriel’s counsel lodged objections based on Texas Rules of Evidence 401, 402, 403, and 404. The trial court overruled the objections. Gabriel then affirmed she and King tried to commit suicide together on June 24, 2024, the same day a jury was supposed to be selected for King’s trial. When asked why they both tried to kill themselves, Gabriel replied, “Because of life and I have issues and 11 just stuff we’ve been dealing with throughout our lifetime.” Gabriel also affirmed the double suicide attempt had nothing to do with her or King’s trial. Gabriel admitted King’s suicide attempt was successful. Gabriel also affirmed she wrote a “suicide note” addressed to her sister, which was admitted into evidence, stating, “My health is declining, and I refuse to live behind jailhouse bars for something I didn’t do.” She indicated that she remained in the hospital after her suicide attempt until July 4, 2024. She also testified she had previously attempted to commit suicide in 2014. Darla Hallman, Gabriel’s friend, also testified during Gabriel’s case-in-chief. During her testimony, Hallman stated she had a conversation with Jackie concerning “the situation.” When Gabriel’s counsel asked Hallman what Jackie said, the State lodged a hearsay objection. The following exchange occurred: [Gabriel’s counsel]: This would be a statement against interest on [Jackie’s] part if it would expose her to potential . . . liability for making a false statement. THE COURT: That’s your legal— [Gabriel’s counsel]: In addition, with further exploration, if we need to lay a foundation for a prior inconsistent statement. THE COURT: No. That’s sustained. Hallman continued testifying and the State cross-examined her. Gabriel rested her case- in-chief, then made an offer of proof outside the presence of the jury concerning what Hallman would have testified to had she been permitted to do so. During this offer of proof, Hallman testified that around summer of 2019, Jackie told her, “‘Well, I made a statement to the police, and you know, I told them, you know, what I said—what I had to 12 say. I wrote out a statement.’ And then she said, ‘[Jill] is lying.’” Gabriel’s counsel then argued that this testimony concerning this statement was inconsistent with Jackie’s trial testimony, but Gabriel’s counsel admitted she needed “[Jackie] to lay the predicate for that.” The State responded that the statement was not inconsistent with Jackie’s testimony concerning her interview with police, and then the following exchange occurred: [Gabriel’s counsel]: Your Honor, I think the determination would be, is it inconsistent with what her testimony is today? [Jackie’s] testimony today did not say it was a lie. What she said to the detective was, “I don’t know if—I don’t think anything happened. I don’t really believe it. I don’t think anything happened. She just wants what she wants.” And this is of a different magnitude when she says, “It’s a lie. [Jill] is lying.” THE COURT: Well, I haven’t heard anything that she said to the detective at all. I mean, this is just something that you’re telling me. [Gabriel’s counsel]: There was testimony about her interview with the detective. [Prosecutor]: But we didn’t get into the statements because it would have been hearsay. THE COURT: Right. [Prosecutor]: When . . . [the other prosecutor] question[ed] the detective, like at most she went into was, like, did [Jackie] disclose any sexual abuse. We didn’t get into the statements because that would be hearsay. And then when I was questioning [Jackie] myself, I just asked her, “Did you tell you were not sexually abused?” I didn’t ask her any 13 questions about [Jill]. I just asked [Jackie], “Did you tell the police that you were not abused? Why did you do that?” “Because they told me to lie.” THE COURT: I mean, that’s how I heard it. That’s a fact issue for the jury to make those decisions on who’s telling the truth anyway. So I’m not going to allow anything else on that. Thereafter, the State informed the trial court it had no rebuttal witnesses it wished to present and rested. The next day, the trial court read its charge to the jury. The charge included an abstract instruction on the law of parties pursuant to Texas Penal Code Section 7.02(a). See TEX. PENAL CODE 7.02(a)(2) (“A person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or . . . having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.”). In addition, the charge included the law of parties in the application portion for each count. See id. After hearing closing arguments, the jury found Gabriel guilty of continuous sexual abuse of a young child and sentenced her to seventy-five years’ imprisonment. This appeal followed. II. EVIDENTIARY RULINGS A. Standard of Review and Applicable Law “We review a trial court’s evidentiary rulings for abuse of discretion.” Reyna v. State, No. 13-24-00207-CR, ___ S.W.3d ___, 2026 WL 842977, at *3 (Tex. App.—Corpus 14 Christi–Edinburg Mar. 26, 2026, no pet.) (citing Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021)). This standard of review applies to a trial court’s decision to admit or exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). There is no abuse of discretion unless a trial court’s decision to admit or exclude evidence lies outside the zone of reasonable disagreement. See id. at 343–44. “Furthermore, we will uphold a trial court’s evidentiary ruling, even if the trial court’s reasoning is flawed, if it is correct on any theory of law that finds support in the record and is applicable to the case.” Wishert v. State, 654 S.W.3d 317, 330 (Tex. App.— Eastland 2022, pet. ref’d) (first citing Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016); and then citing Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.)). Rule 404(b) of the Texas Rules of Evidence limits character evidence, but it is nevertheless a rule of inclusion. TEX. R. EVID. 404(b); De La Paz, 279 S.W.3d at 343. Rule 404(b) precludes the admission of evidence of a crime, wrong, or act solely to prove a person’s character to show that he acted in conformity with that character on a particular occasion, but the rule allows for such evidence to be admitted for other purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Those listed purposes “are neither mutually exclusive nor collectively exhaustive.” De La Paz, 279 S.W.3d at 343. Notwithstanding Rule 404(b), Article 38.37 permits the admission of evidence of prior sexual offenses 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 15 defendant,” when the charged offense concerns continuous sexual abuse of a young child. TEX. CODE CRIM. PROC. art. 38.37, § 2(b); see also id. art. 38.37, § 2(a)(1)(B); TEX. R. EVID. 404(b). Thus, extraneous offense evidence admitted under Article 38.37 “is, by definition, propensity character evidence” that the Legislature has deemed “admissible notwithstanding those characteristics.” Harris v. State, 475 S.W.3d 395, 402 (Tex. App.— Houston [14th Dist.] 2015, pet. ref’d). “Article 38.37, Section 2(b) allows for the admission of evidence that the defendant has committed a separate offense of a sexual nature against a child; the ‘child victim’ of the separate offense need not be the victim of the offense for which the defendant is currently on trial.” Wishert, 654 S.W.3d at 330 (emphasis in original). “For this type of evidence to be admissible under Article 38.37, Section 2(b), the defendant need not have been charged with, tried for, or convicted of the separate offense.” Id. at 331 (citing Castillo v. State, 573 S.W.3d 869, 880–81 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d)). Before admitting such evidence, the trial court “must” conduct a preliminary hearing outside the presence of the jury to “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.” TEX. CODE CRIM. PROC. art. 38.37, § 2-a. A trial court may exclude evidence admissible under Article 38.37 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. TEX. R. EVID. 403; see TEX. CODE CRIM. PROC. art. 38.37, § 2(b) (excepting evidence admitted under Article 38.37 from the application of Rules 404 and 405 but not 16 Rule 403). However, to trigger a balancing test under Rule 403, the defendant must make a timely objection or request. Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 2015, no pet.) (“When evidence of a defendant’s extraneous acts is relevant under Article 38.37, Section 2(b), the trial court is still required to conduct a Rule 403 balancing test upon proper objection or request.”); see also Killinger v. State, No. 13-17-00016-CR, 2020 WL 728305, at *4 (Tex. App.—Corpus Christi–Edinburg Feb. 13, 2020, pet. ref’d) (mem. op., not designated for publication) (discussing the procedures for admitting evidence under Article 38.37 and noting that, “[u]pon proper objection, the trial court must also conduct a balancing test under Rule 403”); White v. State, No. 03-17-00504-CR, 2019 WL 2518755, at *13 (Tex. App.—Austin June 19, 2019, no pet.) (mem. op., not designated for publication) (“Once a Rule 403 objection is asserted, the trial court must engage in the balancing test required by that rule.”). A proper Rule 403 analysis includes consideration of the following non-exclusive factors: “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and, (4) the proponent’s need for the evidence.” Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005). B. Analysis 1. Jackie’s Testimony In her first issue, Gabriel argues the trial court abused its discretion in admitting Jackie’s testimony of sexual abuse committed against her because it “failed to apply the proper statutory provisions in conducting its Article 38.37 hearing and further failed to apply [Rule] 403 in making its decision.” Specifically, Gabriel points to the trial court’s 17 pronouncement of its ruling on her objections to argue the trial court by its “own words . . . appear[ed] to have refused to consider [Rule] 403, and further relied on Section 1 of Art[icle] 38.37 rather than on Section 2” when admitting Jackie’s testimony. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a(1)–(2); TEX. R. EVID. 403. The record demonstrates Gabriel’s sole objection to Jackie’s testimony during the trial court’s Article 38.37 hearing was that said testimony violated Rule 403. See TEX. CODE CRIM. PROC. art. 38.37, § 2- a(1)–(2); TEX. R. EVID. 403. In other words, Gabriel did not object that Jackie’s testimony was not admissible under Article 38.37. See TEX. CODE CRIM. PROC arts. 38.37. To preserve a complaint for appellate review, the point of error raised on appeal must comport with the objection made at trial, or error is not preserved. Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). While appellate courts “have long eschewed hyper-technical requirements for error preservation” and that one “need not employ ‘specific words or technical considerations’ to avoid forfeiting their complaints,” the objecting party must “let the trial court know what he wants and why he feels himself entitled to it clearly enough for the judge to understand him.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016). “[A] general or imprecise objection will not preserve error for appeal unless ‘the legal basis for the objection is obvious to the court and to opposing counsel.’” Id. (emphasis in original) (quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006)). To the extent Gabriel complains the trial court erred in admitting Gabriel’s testimony pursuant to Article 38.37, we conclude she failed to preserve that issue because she did not object to the admission of her testimony on that basis. See Thomas, 18 505 S.W.3d at 924; TEX. R. APP. P. 33.1(a). Regarding her Rule 403 complaint, we note a trial court is required to conduct a 403 balancing test to determine whether evidence should be excluded upon a proper objection or request. See Belcher, 474 S.W.3d at 847; see also Killinger, 2020 WL 728305, at *4; White, 2019 WL 2518755, at *13. But the trial court is not required to conduct a formal Rule 403 hearing or announce that it is conducting the balancing test, and it “is not required to place the results of its balancing test on the record.” Colvin v. State, 54 S.W.3d 82, 85 (Tex. App.—Texarkana 2001, no pet.) (citing Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997)). “Rather, the trial court is presumed to engage in the required balancing test once a party objects on the ground of Rule 403 and the trial court rules on the objection, unless the record indicates otherwise.” Id.; see also Williams, 958 S.W.2d at 195–96; Maldonado v. State, 452 S.W.3d 898, 906 (Tex. App.— Texarkana 2014, no pet.). Here, upon admitting the complained-of testimony, the trial court expressly stated in relevant part: So basically, the [L]egislature has allowed [extraneous offense testimony] notwithstanding the test that the Court gives on whether or not evidence is probative and prejudicial, and, of course, any type of evidence that we’re dealing with, sexual assault of children, is going to be prejudicial. I mean, we know that, but I think the [L]egislature took this in mind when they codified both [Articles] 38.37 and 38.371. So the Court’s going to allow it. (emphasis added). The trial court’s comments indicate it believed Articles 38.37 and 38.371 served as categorial exceptions to Rule 403, which is incorrect because evidence admitted under those articles are excepted from application of Rules 404 and 405, not Rule 403. See TEX. CODE CRIM. PROC. arts. 38.37, 38.371. Under these circumstances, 19 we conclude the record affirmatively indicates the trial court did not perform the balancing test, and thus, the presumption the trial court engaged in the required balancing test does not apply. See Colvin, 54 S.W.3d at 85. Because such failure was error, we must assess whether Gabriel suffered harm. See id. at 85–86 (applying the Rule 403 balancing test and concluding that the trial court’s failure to conduct the balancing test did not affect the appellant’s substantial rights); see also Wishert, 654 S.W.3d at 332 (same); Daraghmeh v. State, No. 05-13-01127-CR, 2014 WL 7269924, at *4–5 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op., not designated for publication) (same). “[A] trial court’s erroneous admission of evidence does not result in constitutional error; therefore, it will be disregarded if the error did not affect the defendant’s substantial rights.” Wishert, 654 S.W.3d at 332 (first citing TEX. R. APP. P. 44.2(b); then citing Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); and then citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). A substantial right is implicated when the trial court’s error had a substantial or injurious effect or influence in determining the jury’s verdict. See Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In assessing the likelihood the jury’s decision was adversely affected by the error, we must consider the entire record, including all the evidence presented at trial, the nature of the evidence supporting the jury’s verdict, the character of the alleged error and how it might be considered together with the other evidence in the case, the trial court’s instructions to the jury, and whether the evidence o