Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00017-CR Gerardo A. Cerda, Appellant v. The State of Texas, Appellee On appeal from the 19th District Court of McLennan County, Texas Judge Thomas C. West, presiding Trial Court Cause No. 2021-1387-C1 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION A jury found Gerardo Cerda guilty of continuous sexual abuse of a young child and assessed his punishment at life in the penitentiary. See TEX. PENAL CODE ANN. § 21.02. In three issues, Cerda contends that the trial court abused its discretion by admitting testimony about an extraneous offense and that two court costs were assessed without statutory authority. We modify the judgment to correct the court costs and affirm the judgment as modified. I. Background Appellant Cerda was married to A.S.’s paternal grandmother. 1 A.S.’s 0F father lived with Cerda and A.S.’s grandmother, and A.S. visited them on weekends and school breaks. A.S., who was twenty at trial, testified that Cerda began touching her when she was about six years old and that the abuse continued until she was about ten, when her family moved away. She testified that the touching occurred in Cerda’s car on trips to H-E-B and in her grandparents’ bedroom, and that Cerda rubbed her genitals with his hand, both over and under her clothing. At trial, the State offered testimony from nine witnesses, including Dr. Soo Battle, who examined A.S.; CPS Investigator Ashley Utley; and forensic interviewer Heydi McKinney. The State also presented testimony from E.S., A.S.’s cousin and another of Cerda’s step-granddaughters. Cerda testified in his own defense. He denied touching either girl, suggested that the allegations arose after he asked his wife for a divorce, and testified that neither girl’s allegations were true. II. Admission of Extraneous-Offense Evidence In his first issue, Cerda contends that the trial court abused its discretion by admitting E.S.’s extraneous-offense testimony over his Rule 403 objection. 1 Because A.S. and E.S. were minors at the time of the offense, we refer to them by initials. See TEX. R. APP. P. 9.10(a)(3). Cerda v. State Page 2 Before E.S. testified, the trial court conducted a hearing outside the presence of the jury to hear her testimony, after which the trial court found that her account of an incident in the kitchen would support a jury finding that the incident occurred beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a. E.S. then testified before the jury that when she was about five years old, Cerda came up behind her in the kitchen of her grandmother’s house, put his hand inside her underwear, and touched her vagina. When the State began that line of questioning, Cerda objected under Rules of Evidence 401, 402, 403, and 404 that “any probative value was outweighed by the unfair prejudice.” The trial court overruled the objection and granted a running objection. On appeal, Cerda challenges the admission of E.S.’s testimony under Rule of Evidence 403. See TEX. R. APP. P. 33.1(a). A. Standard of Review We review a trial court’s ruling on the admission of extraneous-offense evidence for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). A ruling within the “zone of reasonable disagreement” is not an abuse of discretion. Id. at 343–44. B. Applicable Law Article 38.37, section 2(b) permits the admission of evidence that the defendant committed a separate sexual offense against a child “for any bearing the evidence has on relevant matters, including the character of the defendant Cerda v. State Page 3 and acts performed in conformity with the character of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Cerda does not challenge the admission of E.S.’s testimony under article 38.37. Evidence admitted under article 38.37, section 2(b) remains subject to Rule 403’s balancing test, which permits a trial court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403; see Deggs v. State, 646 S.W.3d 916, 925 (Tex. App.—Waco 2022, pet. ref’d). Even so, Rule 403 “should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in such ‘he said, she said’ cases.” Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). Rule 403 envisions exclusion of evidence only when there is a “clear disparity between the degree of prejudice of the offered evidence and its probative value.” Id. at 568. The Court of Criminal Appeals has described the relevant test for Rule 403 this way: [A] trial court, when undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been Cerda v. State Page 4 equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Of course, these factors may well blend together in practice. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote omitted). C. Analysis Cerda argues that the factors weigh against admission. He contends that E.S.’s account shared nothing with A.S.’s beyond the nature of the touching, that it was remote, that E.S. did not tell law enforcement that Cerda touched her until two months before trial, and that the State had little need for her testimony because other evidence corroborated A.S. 1. Probative Value The first two Gigliobianco factors, the inherent probative force of the evidence and the proponent’s need for it, together measure its probative value. See Gigliobianco, 210 S.W.3d at 641. The State needs evidence when it would prove a consequential fact that is unavailable from other sources. See Hart v. State, 688 S.W.3d 883, 892 (Tex. Crim. App. 2024). That need is often greater in sexual-assault prosecutions, which are frequently “‘he said, she said’ trials in which the jury must reach a unanimous verdict based solely upon two diametrically different versions of an Cerda v. State Page 5 event, unaided by any physical, scientific, or other corroborative evidence.” Hammer, 296 S.W.3d at 561–62. That was the case here. When the trial court overruled Cerda’s objection, the jury had heard from four witnesses: Dr. Soo Battle, Ashley Utley, A.S.; and Heydi McKinney. Dr. Battle testified that A.S.’s medical examination was normal. On cross- examination, Cerda had Dr. Battle, Utley, and McKinney each acknowledge that they could not tell the jury that the abuse occurred, and Dr. Battle agreed that a normal examination could also mean that A.S. had never been abused. On cross-examination, Cerda challenged A.S.’s credibility by asking why she told no one about the abuse until she told her mother at sixteen, and on recross he confronted her with inconsistencies in her accounts of whether she had seen him touch E.S. Cerda argues that other evidence corroborated A.S., but the State’s other witnesses to that point could speak only to what A.S. had told them and to a medical examination that was normal; none of them was present for the abuse or could directly confirm its details. E.S.’s testimony, by contrast, rested on her own firsthand knowledge of Cerda’s conduct rather than on anything A.S. had said. The case thus turned largely on whether the jury believed A.S., which heightened the State’s need for evidence bearing on that question. See Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref ’d). The trial court could have reasonably concluded that the State’s need for the evidence was considerable. Cerda v. State Page 6 The inherent probative force of E.S.’s testimony was also a consideration for the trial court. Evidence of separate sexual offenses is “probative on the issues of intent and a defendant’s character or propensity to commit sexual assaults on children.” Deggs, 646 S.W.3d at 925; see also Rodriguez v. State, 738 S.W.3d 890, 904 (Tex. App.—Eastland 2026, no pet.) (explaining that “evidence of other acts of sexual abuse committed against children is especially probative of a defendant’s propensity to sexually assault them”). The parallels between the two accounts were significant. Both E.S. and A.S. were Cerda’s step-granddaughters who spent time at their grandmother’s house, where Cerda had access to them. Both were young children at the time. E.S. was about five, and A.S. was between about six and ten. Both described a similar act. Cerda put his hand inside E.S.’s underwear and touched her genitals, and he rubbed A.S.’s genitals with his hand, over and under her clothing. And E.S.’s incident, like some of A.S.’s, happened inside the grandmother’s house. The accounts differ in their details, but they share more than the nature of the touching: the family relationship, the girls’ ages, the setting, and the method. See Dials v. State, 717 S.W.3d 674, 679 (Tex. App.—Waco 2025, pet. ref ’d) (finding sufficient similarity where the defendant was an adult, the complainants were adolescent girls whom he reached through their adult family members, and both offenses involved the same kind of touching). Nor was the incident remote from the charged conduct. E.S. testified that her Cerda v. State Page 7 abuse happened during the same time period in which A.S. said she was abused. See id. at 680 (noting that remoteness is only one aspect of an extraneous offense’s probative value). On cross-examination, Cerda confronted E.S. with the differences between her trial testimony and her forensic interview, and the jury was able to weigh them, along with E.S.’s delay in reporting the incident to law enforcement. The trial court could have reasonably concluded that E.S.’s testimony was highly probative. These factors weigh strongly in favor of admission. 2. Unfair Prejudice The third factor concerns unfair prejudice, which refers to a “tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim. App. 2021). Evidence of extraneous sexual offenses against children is inflammatory by nature. See Newton, 301 S.W.3d at 320. E.S.’s testimony carried that risk: that the jury would convict Cerda out of revulsion rather than on the evidence of the charged offense. Three considerations limit that danger here. First, the improper basis that Rule 403 guards against is narrower than in the ordinary case, because article 38.37 explicitly permits the jury to consider the extraneous offense for its bearing on Cerda’s character and conduct in conformity with it. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b); Hammer, 296 S.W.3d at 562 Cerda v. State Page 8 (explaining that Rule 403 “should be used sparingly” in “‘he said, she said’ cases”); Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref ’d) (explaining that article 38.37 “recognizes that evidence of this type is, by definition, propensity or character evidence and that it is admissible notwithstanding those characteristics”); Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref ’d) (concluding that “[t]he special circumstances surrounding the sexual assault of a child victim outweigh normal concerns associated with evidence of extraneous acts”). Second, the jury charge lessened that danger by instructing the jury that it could consider evidence of an offense against a child other than the complainant only if it believed beyond a reasonable doubt that Cerda committed that offense. See Dials, 717 S.W.3d at 681. Third, the remaining concern that the jury would decide the case on emotion rather than on the evidence, was modest. E.S. described a single touching that was no more serious than the conduct alleged in the indictment, which lessened the risk of unfair prejudice. See Holland v. State, 702 S.W.3d 836, 842 (Tex. App.—Waco 2024, pet. ref ’d). E.S.’s testimony may have had some emotional impact on the jury, but nothing suggests that it exceeded, or even matched, the emotional impact of the evidence of the charged offense. The jury had already heard A.S. and other witnesses describe abuse that recurred over about four years. E.S. described one incident, involving the same kind of Cerda v. State Page 9 touching, with no aggravating feature the jury had not already heard. Her testimony may have added to the emotional response that the charged conduct was bound to produce, but it did not introduce a different or greater one. The danger of unfair prejudice was slight, and the trial court could have reasonably concluded that this factor favors admission. 3. Confusion of the Issues and Misleading the Jury The fourth and fifth factors address related dangers. “Confusion of the issues” refers to “a tendency to confuse or distract the jury from the main issues in the case,” and “misleading the jury” refers to “a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds.” Gigliobianco, 210 S.W.3d at 641. Evidence that consumes an inordinate amount of time to present or answer may confuse or distract the jury, and “scientific” evidence may mislead a jury that is not properly equipped to judge its probative force. See id. E.S.’s account was brief, and it concerned the same kind of conduct the jury was already considering, so it was unlikely to distract the jury from the charged offense or to leave the jury uncertain that Cerda was on trial for the abuse of A.S., not E.S. Nor was her testimony the kind of technical or scientific evidence that a jury might be ill-equipped to evaluate. Cerda questioned E.S.’s credibility on cross-examination, and the charge’s instruction guided the jury in how it could consider her testimony. See Dials, 717 S.W.3d at 681. The trial Cerda v. State Page 10 court could have reasonably concluded that E.S.’s testimony posed little danger of confusing the issues or misleading the jury. These factors favor admission. 4. Undue Delay and Needless Presentation of Cumulative Evidence The sixth factor asks whether presenting the evidence consumed an inordinate amount of time or merely repeated evidence already admitted. See Gigliobianco, 210 S.W.3d at 641–42. The time needed to develop the evidence includes cross-examination and any responsive testimony. Hart, 688 S.W.3d at 893. E.S. was only one of the nine witnesses the State called, and her testimony at the article 38.37 hearing and before the jury, including cross- examination, occupies about thirty-six pages of a guilt-innocence record that runs more than 400 pages. See Inthalangsy, 634 S.W.3d at 759 (concluding that the State did not spend an inordinate amount of time on extraneous- offense evidence when four of its sixteen witnesses testified partially or exclusively about it). Cerda would also have us count the testimony of E.S.’s father, along with parts of A.S.’s testimony and his own. But most of the father’s testimony concerned the family generally, the trips to H-E-B, and the report to police. Even counting all of the evidence Cerda contends is relevant to this issue, the trial court could have reasonably concluded that the evidence did not consume an inordinate amount of time or merely repeat evidence already admitted. This factor favors admission. Cerda v. State Page 11 5. Balancing the Factors E.S.’s testimony was highly probative, and the dangers that Rule 403 guards against were slight. Considering all of the factors, we cannot say that there is a clear disparity between the danger of unfair prejudice posed by E.S.’s testimony and its probative value. See Hammer, 296 S.W.3d at 568. The trial court’s ruling was within the zone of reasonable disagreement; accordingly, the trial court did not abuse its discretion by overruling Cerda’s Rule 403 objection. We overrule Cerda’s first issue. III. Court Costs In his second and third issues, Cerda contends that two of the court costs assessed in the bill of costs attached to the judgment were not authorized by statute on the date of his offense, which the judgment lists as September 24, 2011. He argues that we should delete the $25 County Specialty Court Account cost and reduce the Courthouse Security Fee from $10 to $5. The State agrees as to both costs. A. Standard of Review A trial court may assess only those court costs that are authorized by statute. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Whether a cost is statutorily authorized turns on statutory construction, which is a question of law that we review de novo. See id. at 394. An appellant may challenge court costs for the first time on appeal when the costs were not Cerda v. State Page 12 imposed in open court and the judgment does not itemize them. London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016). When a cost is assessed without statutory authority, we may modify the judgment to correct it. See TEX. R. APP. P. 43.2(b). B. Analysis 1. The County Specialty Court Account Cost The bill of costs assesses $25 for “THE COUNTY SPECIALTY COURT ACCOUNT.” The Legislature added that cost in 2019, effective January 1, 2020. Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.05, 2019 TEX. GEN. LAWS 3982 (codified at TEX. LOC. GOV’T CODE ANN. § 134.101(b)(6)). The Act’s changes apply only to an offense committed on or after its effective date; an offense committed before that date is governed by the law in effect when the offense was committed. Id. § 5.01, 2019 TEX. GEN. LAWS at 4035–36. Although the indictment alleged a period extending to December 1, 2021, an offense is committed before the Act’s effective date “if any element of the offense occurred before that date.” Id.; see Willingham v. State, 692 S.W.3d 772, 775 (Tex. App.—Waco 2024, no pet.). A.S. testified that the abuse ended when she was about ten years old, and the judgment lists the date of the offense as September 24, 2011. Because Cerda’s offense was committed before the effective date, the $25 cost was not authorized, and it must be removed from the bill of costs. Cerda v. State Page 13 2. The Courthouse Security Fee The bill of costs assesses $10 for the “COURTHOUSE SECURITY FEE.” On the alleged date of the offense, article 102.017(a) of the Code of Criminal Procedure authorized a $5 security fee upon conviction of a felony in a district court. Act of May 22, 1993, 73d Leg., R.S., ch. 818, § 1, 1993 TEX. GEN. LAWS 3258 (amended 2019) (current version at TEX. CODE CRIM. PROC. ANN. art. 102.017). The $10 fee assessed exceeds the authorized amount by $5, so it must be reduced to $5. We sustain Cerda’s second and third issues. III. Conclusion We modify the trial court’s judgment to delete the $25 County Specialty Court Account cost and to reduce the Courthouse Security Fee from $10 to $5. As modified, we affirm the judgment. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: October 29, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed as modified Do not publish CRPM Cerda v. State Page 14