JOSEPH v. STATE (2026)

OPINION

In this appeal from a conviction for sexual assault of a child, we consider three issues arising out of the trial court's admission and exclusion of evidence. For the reasons explained below, we find no error with any issue.

BACKGROUND

The allegation in this case was that appellant had sexually assaulted the complainant when the complainant was under the age of fourteen, but the evidence at trial focused more heavily on assaults that occurred later, particularly after the complainant had already reached the age of adulthood.

The complainant testified that he was appellant's nephew and that appellant had assumed a father-like role after the complainant's own father had become incarcerated. When the complainant got into trouble at school, his mother would send him to stay with appellant. One time, when the complainant was eleven or twelve years old, appellant called him into the bedroom and taught him something he called “butt breaking,” which involved appellant digitally penetrating the complainant's anus. Later, when the complainant was sixteen years old, appellant penetrated the complainant's anus with his finger and his penis. The complainant testified that appellant gave him five hundred dollars after this assault and that he was told to never tell anyone else about it.

When he was eighteen years old, the complainant visited family in Louisiana and found himself in need of transportation back to Houston, where he had been staying with a friend. Appellant also happened to be in Louisiana and offered to drive the complainant back, since appellant likewise lived in Houston. They stopped at a hotel along the way, and the complainant testified that appellant tried to sexually assault him again, but the complainant resisted and appellant eventually gave up.

The next day, appellant refused to drive the complainant back to his friend's house in Houston. Appellant opined that the friend was a bad influence and that the complainant would need to stay at appellant's house instead.

Later at appellant's house, two assaults happened over the course of a weekend. Appellant called the complainant into his bedroom and told him to take off his clothes. When the complainant resisted, appellant forcefully hit him until the complainant complied. Appellant then penetrated the complainant's anus with his finger and penis. The same thing happened the very next day.

Shortly after that final assault, the complainant contacted relatives in Louisiana and made his first outcry that he had been raped by appellant. The relatives immediately drove to Houston and contacted police just before they arrived.

The complainant was taken to a hospital, where he submitted to a sexual assault examination. His SANE nurse found two areas of tenderness around the anus. The nurse also swabbed various parts of the complainant's body, and the swabs were later submitted for DNA analysis.

A forensic analyst testified that a perianal swab contained a DNA profile that was 76 quadrillion times more likely to have originated from appellant than from an unknown individual, which meant that there was “very strong support” that appellant was the contributor of that DNA. Another swab from the complainant's perineum contained the DNA profiles of two individuals, and the mixture was 87 trillion times more likely to have originated from the complainant and appellant than from the complainant and an unknown third party. The analyst explained that this statistic also provided “very strong support” that appellant was a contributor in that mixture of DNA.

The complainant's cousin, who was also one of appellant's nephews, testified about two extraneous bad acts. The cousin said that when he visited appellant at the age of thirteen, appellant called him into the bathroom and told him to remove his pants and underwear to see whether he had any pubic hair. This incident did not involve any touching or contact.

Later, when the cousin was fifteen years old, he and appellant were at a family gathering, and appellant offered to take the cousin to a different relative's house. The cousin left the gathering with appellant, but they went to a Walmart instead, where appellant bought the cousin some new underwear. Appellant also gave the cousin one hundred dollars to keep, and then they checked in to a hotel, where appellant asked the cousin to take off all of his clothes. When the cousin declined, appellant offered to double the money, or in the alternative, he threatened to take it all back.

Appellant briefly left the hotel to go to a bar. When he returned, he got into bed, put his arms around the cousin, and said that if they were both cellmates in prison, then the cousin would be his bitch. Though appellant was clothed, the cousin could feel from an imprint that appellant was erect.

The cousin angrily responded that appellant needed to get off him. Appellant then tried to pressure the cousin by saying that the complainant “would have happily took it off and be like, okay, Unc, and took it off, took his clothes off.” Appellant also threatened that he could take the cousin's life if he wanted. The cousin did not respond to that threat, and nothing else came of it. Appellant simply gave up and drove the cousin back home.

Appellant did not testify in his own defense. His only witness was a relative who testified that appellant did not move into the area until a few years after the complainant had already turned fourteen.

During the charge conference, the prosecution requested the submission of the lesser-included offense of sexual assault of a child between the ages of fourteen and seventeen. Appellant opposed that submission, but the trial court granted it. There was no additional submission for the sexual assaults that allegedly occurred when the complainant was an adult.

In closing statements, defense counsel argued that the charged offense was problematic. Counsel pointed out that the complainant could not remember exactly when the alleged assault happened. Counsel also pointed to evidence showing that appellant did not even live in the area until after the complainant had already turned fourteen.

As for the lesser-included offense, counsel argued that the complainant was not credible. Counsel explained that if an assault had actually happened when the complainant was sixteen years old, then he would have been old enough to speak out about it.

And as for the uncharged assaults that allegedly happened after the complainant had reached adulthood, counsel argued that the complainant had a motive to lie about them. Counsel referred to evidence that the complainant had been charged with an aggravated robbery at around the same time as his outcry for the sexual assaults. Counsel suggested that the complainant fabricated the story of the sexual assaults because appellant possessed incriminating information that could have been used in the prosecution for aggravated robbery. Counsel also discounted the DNA evidence, pointing out that it was all collected externally, not internally, and that the forensic analyst could not testify as to how the DNA was deposited. Counsel suggested that the DNA could have come from skin cells that were indirectly transferred from the laundry.

The jury convicted appellant of the lesser-included offense.

EXTRANEOUS SEXUAL ASSAULTS

The trial court conducted a hearing outside the presence of the jury to determine whether the prosecution could introduce evidence of the two extraneous sexual assaults that were allegedly committed against the complainant when the complainant was eighteen years old. The prosecution argued that the evidence was admissible under Article 38.37 of the Texas Code of Criminal Procedure because the complainant provided sufficient testimony at the hearing to support a finding that appellant had committed the extraneous offenses beyond a reasonable doubt.

Appellant responded that the evidence should not be admitted under Article 38.37 because the complainant was not a child at the time of the extraneous offenses. In the alternative, he also argued that the evidence should be excluded under Rule 403 of the Texas Rules of Evidence because the evidence was more prejudicial than probative.

The trial court overruled the objections. Appellant now challenges that ruling in two issues. He does not separately challenge the admission of extraneous-offense evidence involving the complainant's cousin.

I. Article 38.37

In his first issue, appellant argues that the trial court erred by admitting the challenged evidence because, in his words, Article 38.37 “only applies to sexual assault allegations involving children.” This argument essentially turns on a question of statutory construction, for which our review is de novo. See Bradshaw v. State, 707 S.W.3d 412, 416 (Tex. Crim. App. 2024).

The applicable version of Article 38.37 provides as follows:

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. art. 38.37, § 1(b).

That provision is subject to a qualifying clause, which states that the provision “applies to a proceeding in the prosecution of a defendant for an offense ․ under the following provisions of the Penal Code ․ if committed against a child under 17 years of age: ․ (B) Chapter 22 (Assaultive Offenses).” See Tex. Code Crim. Proc. art. 38.37, § 1(a)(1).

There is no dispute that appellant was charged under Chapter 22 of the Penal Code with sexually assaulting the complainant at a time when the complainant was a child under the age of seventeen. See Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B). Therefore, the qualifying clause was satisfied.

Appellant suggests that there is an additional age-out provision that restricts the introduction of extraneous-offense evidence committed against the same child complainant if the complainant was no longer a child at the time of the extraneous offense. But there is no textual basis in the statute for such an interpretation. To the contrary, Article 38.37 actually provides that extraneous-offense evidence can be admitted for its bearing on such relevant matters as the “subsequent relationship between the defendant and the child.” See Tex. Code Crim. Proc. art. 38.37, § 1(b). That language is broad enough to encompass the admission of any extraneous-offense evidence committed against a complainant after the complainant has left the age of minority and entered the age of majority, provided that the complainant was otherwise a child at the time of the charged offense. See Lozano v. State, 706 S.W.3d 429, 443 (Tex. App.—Austin 2024, no pet.) (rejecting the same age-out argument).

Appellant counters that we should not consider the “subsequent relationship” language because the prosecution did not mention it in the trial court. But when we construe a statute, we are obliged to give effect to its plain text. See Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020). Moreover, the factual premise of appellant's argument is incorrect, as the following excerpt reveals that the prosecution did mention this particular language to the trial court: “38.37.1 says that any extraneous crimes, wrong acts committed against the same victim to show the state of mind of the defendant and child or previous and subsequent relationship between the defendant and the child victim who is the complainant of this case shall be admitted. And so I think that that comes in automatically.”

For all of the foregoing reasons, we conclude that the challenged evidence was not inadmissible under Article 38.37 simply because the complainant was an adult at the time of the alleged extraneous offenses.

II. Rule 403

Appellate argues in his second issue that the challenged evidence should have been excluded under Rule 403. That rule provides that, when evidence is relevant, a trial court may still exclude it if its probative value is substantially outweighed by a danger of unfair prejudice.

When undertaking a Rule 403 analysis, the trial court must balance (1) the inherent probative force of the proffered item of evidence 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 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. See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

We presume that the trial court engaged in this balancing test. See Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997). We also review the trial court's decision under this test for an abuse of discretion. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

The prosecution did not expressly articulate any need for the extraneous-offense evidence at the pretrial hearing. Nevertheless, the trial court could have reasonably inferred that the prosecution had such a need. Testimony at the hearing established that the extraneous sexual assaults were the catalysts for the complainant's outcry, without which the complainant might not have disclosed the earlier offenses that formed the basis of appellant's charges. Thus, the extraneous sexual assaults were probative of the complainant's state of mind, as well as the nature of the relationship between the complainant and appellant.

The trial court could have likewise determined that the danger of unfair prejudice was low. Unfair prejudice refers to “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). That risk was not substantial, considering that the extraneous sexual assaults were similar to the charged offense in that they each involved digital penetration. And in the case of the lesser offense, the extraneous sexual assaults were virtually the same. The trial court could have reasonably concluded on these facts that the jury would not be persuaded by an improper or emotional basis, or that the jury would have been confused or distracted by the extraneous offenses.

Appellant suggests that the evidence should have been excluded because the prosecution spent an inordinate amount of time developing it. Indeed, most of the trial focused on the extraneous sexual assaults. In its effort to prove those extraneous offenses, the prosecution called on not just the complainant, but also his mother, his grandmother, a sheriff's deputy, a SANE nurse, and a forensic analyst. However, there was no indication at the time that the trial court agreed to admit the challenged evidence that the prosecution would require so much time developing it, and in the end, the trial itself was not unusually long. Even if this factor weighed in favor of exclusion, having considered all of the factors together, we cannot say that the trial court's decision to admit the challenged evidence fell outside the zone of reasonable disagreement. We therefore conclude that the trial court's ruling was not an abuse of discretion. See Nguyen v. State, 693 S.W.3d 732, 740 (Tex. App.—Houston [14th Dist.] 2024, no pet.).

EXCLUDED EVIDENCE

Before defense counsel could begin his cross-examination of the complainant, the trial court conducted another hearing outside the presence of the jury to consider whether evidence could be introduced of the complainant's involvement in certain extraneous bad acts.

Counsel proffered that an unnamed third party had attempted to shoot the complainant when he was in Louisiana, and that evidence of this shooting should be admitted because it impeached the complainant's testimony about why he was in Louisiana in the first place.

Counsel also proffered that, shortly before the allegations arose in this case, the complainant had separately been charged with an aggravated robbery here in Texas. This aggravated robbery was allegedly committed with a codefendant—the same friend with whom the complainant had been residing before appellant insisted that the complainant needed to stay at appellant's house.

Counsel proffered that, when the complainant told appellant about the facts of the aggravated robbery, appellant responded by accusing the complainant of being less than fully forthcoming. Counsel also suggested that the complainant was afraid that appellant might notify the police about certain incriminating facts, including text messages between the complainant and his codefendant. Counsel then suggested that the complainant fabricated his claims of sexual assault against appellant as a means of discrediting appellant, should appellant ever come forward with incriminating information about the complainant's involvement in the aggravated robbery.

Counsel argued that this proffered evidence was admissible under Rule 404 of the Texas Rules of Evidence, insofar as it demonstrated the complainant's motive to lie. Counsel also cited, among other authorities, to Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016), which held that a trial court had erred by not allowing the defense to cross-examine a child complainant about the complainant's own extraneous sexual misconduct, because such evidence could have supported a finding that the complainant had fabricated his allegations so that he might be perceived as a victim, rather than as just a perpetrator. Id. at 914–15.

The prosecution responded that the defense should be free to cross-examine the complainant about his trouble in Louisiana, since the complainant had already testified about his involvement in an altercation there. But the prosecution argued that the remaining evidence about the aggravated robbery in Texas should be excluded. The prosecution explained that the aggravated robbery charge had already been dismissed for insufficient evidence. The prosecution also explained that the extraneous charge was irrelevant to the current proceedings and more prejudicial than probative.

The trial court ruled that it would “allow a little leeway.” When the prosecution asked for the parameters of the cross-examination, defense counsel responded that “it's very, very dependent on what he says.” The trial court then permitted a voir dire examination of the complainant to determine those parameters.

The voir dire began with the complainant testifying that he was no longer friends with someone because he considered that person a rat for having spoken to police. When the topic then shifted into the facts surrounding the complainant's aggravated robbery charge, the prosecution interrupted to alert the trial court that the charge had been dismissed because of an uncooperative witness. And because the statute of limitations had not yet expired on that charge, the prosecution indicated that the complainant might need appointed counsel to protect his right to not incriminate himself.

The defense agreed that the complainant should have his own counsel. The trial court likewise agreed.

Before the trial court could make an appointment, appellant's defense counsel made another proffer. Counsel said that the complainant had already identified someone as a rat, and that the complainant was also upset by this person having cooperated with police. Counsel indicated that he would have then asked the complainant if he had ever made threats against snitches. And depending on the complainant's answer, counsel said that he might introduce photographic evidence depicting the complainant with firearms, or photographic evidence of the complainant leaving the scene of the robbery. Counsel also said that he might introduce evidence of text messages between the complainant and appellant.

The prosecution reiterated that this line of questioning would be irrelevant and unfairly prejudicial. The prosecution suggested that if any questioning were permitted regarding the aggravated robbery, it must be restricted to the broad questions of whether the complainant was charged with that offense, whether he was out on bond at the time of the outcry, and whether the charge was dismissed. Beyond those parameters, the prosecution asserted that the complainant “is absolutely going to need an attorney appointed to him.”

Counsel objected that he could not develop his defense within those limited parameters.

The trial court said that it would not allow pictures of firearms, and that when the complainant does receive counsel, there will be no questioning about the facts of the aggravated robbery, other than the very limited parameters than what had already been laid out: “If he was arrested and if it was dismissed, I'm going to allow that. If he was out on bond, that's as far as we're gonna get. But he will have a right to have an attorney to tell him to not go further and we all know that's what's gonna happen.”

The trial court appointed counsel for the complainant. Then, on cross-examination in front of the entire jury, the complainant was questioned about his extraneous offense.

The complainant testified that he had been arrested for aggravated robbery. Appellant's defense counsel then asked, “And you would have been very upset if someone would have snitched on you about that, correct?” That question prompted an objection from the prosecution. The trial court sustained the objection, as the question went outside the parameters of what had previously been discussed. The complainant's appointed counsel also added that if, if the question had been allowed, then he would have instructed the complainant to plead the Fifth Amendment.

The trial court permitted a question about the complainant's attitude towards snitches in general. His answer was, “I mean, I have no feeling toward them. I mean, that's something you prefer to do, that's on you.”

Appellant's defense counsel then approached the bench and argued that he should be allowed to explore that subject further because the complainant had used harsher language about snitches in his testimony outside the presence of the jury. The trial court refused to allow that questioning insofar as it related to the complainant's charge for aggravated robbery.

Later, appellant's defense counsel asked the complainant about the night of the final assault. The complainant testified that appellant had called him into his bedroom to discuss, in general terms, his “legal troubles.” Counsel asked, “And he was encouraging you to be honest with your attorney, right?” The trial court sustained an objection to that question, and the complainant's appointed counsel similarly asserted that his client would plead the Fifth Amendment.

Appellant's defense counsel then asked the complainant, “Did you have concerns that [appellant] would disclose information?” The complainant answered by pleading the Fifth Amendment.

Appellant's defense counsel made an offer of proof, where exhibits were admitted solely for purposes of the appellate record. The exhibits included text messages, allegedly between the complainant and his codefendant, in which the complainant expressed a desire to retaliate against a third party who had snitched or ratted him out. Counsel stated that he would have used this evidence to show the complainant's “animus towards people who snitch on him and his desire not to be snitched on in that case that was dismissed, which is his motive for fabricating the instant allegation against [appellant].”

The exhibits also included several photographs of the complainant wielding firearms, one of which with his codefendants in the aggravated robbery case. Counsel said that appellant knew about the complainant's handling of firearms, and that the complainant “would have been concerned [that this knowledge] might be shared with law enforcement or with parties that he did not want to have this shared with.”

Now on appeal, appellant argues in his third issue that the trial court violated his right to present a defense by restricting his cross-examination of the complainant. He contends that, in order to develop his fabrication defense, his counsel should have been permitted to question the complainant “about the underlying facts of the aggravated robbery as well as an uncharged criminal retaliation against a co-defendant who snitched.” We construe this argument as a challenge to the trial court's exclusion of evidence, which we review for an abuse of discretion. See Perkins v. State, 664 S.W.3d 209, 217 (Tex. Crim. App. 2022).

Appellant argues that he has a constitutional right, rooted in either the Due Process Clause or the Confrontation Clause, to question an adverse witness on matters concerning the witness's credibility, and that the trial court abused its discretion by limiting his cross-examination because the proffered evidence was relevant to showing that the complainant was motivated to make false accusations of sexual assault.

But even if we assumed for the sake of argument that the proffered evidence was relevant to establishing appellant's defensive theory, there is no absolute right to impeach the general credibility of a witness. See Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). The Constitution guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” See Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). The trial court still maintains broad discretion to impose reasonable limits on cross-examination, including limits designed to avoid endangering the witness. See Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).

Here, the trial court was advised that the complainant's aggravated robbery charge had been dismissed for insufficient evidence and that it could still be refiled because the statute of limitations had not yet expired. The trial court correctly recognized that, if the complainant were allowed to be questioned about the facts and circumstances surrounding the aggravated robbery—as appellant's counsel sought to do in order to develop his theory of fabrication—then the complainant might provide the very evidence needed for his prosecution. Given that risk of self-incrimination, the trial court did not abuse its discretion by appointing counsel for the complainant and by restricting the scope of his cross-examination. See Walters v. State, 359 S.W.3d 212, 215 (Tex. Crim. App. 2011) (recognizing that a defendant's right to cross-examination does not supersede a witness's privilege against self-incrimination where the witness has “reasonable cause to apprehend danger from a direct answer”); United States v. Ramos, 537 F.3d 439, 448 (5th Cir. 2008) (similar).

In his reply brief, appellant argues that the trial court should have permitted cross-examination into the subject of the complainant's “troubles,” such as him nearly getting shot, and his association with gang members. Appellant explains that such cross-examination was needed to correct a false and misleading impression that the complainant was merely engaged in ordinary teenage misbehavior. Appellant also explains that inquiry into the serious nature of the complainant's problems would help to show that appellant was attempting to help the complainant with his problems, not that he was targeting the complainant for sex.

Appellant did not present these arguments in his original brief. His issue there was that cross-examination was needed to demonstrate the complainant's motive to fabricate, not to correct a misimpression. Because the reply brief raises a different legal issue, dependent on a different set of facts, we need not consider it. See Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim. App. 2019) (“We agree with the courts of appeals that new issues raised in a reply brief should not be considered.”).

CONCLUSION

The trial court's judgment is affirmed.

Tracy Christopher, Chief Justice