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Date: 10-10-2018

Case Style:

Chester Lee Finney, Jr. v. The State of Texas

Case Number: Chester Lee Finney, Jr. v. The State of Texas

Judge: Wade Birdwell

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Greg Preston Lowery
Lindy Borchardt

Defendant's Attorney: Paul G. Belew

Description:





C.F. (Carol) has two children: T.T. (Tammy) and K.T. (Katie).1 Carol met
Finney on Facebook in 2013, and that year, he moved into a two-bedroom apartment
with her, Tammy, and Katie. At the time, Tammy was in sixth grade, and Katie was in
first grade.
One day in 2013, Tammy stayed home from school because she was sick.
Carol went to work. According to Tammy’s testimony, after she fell asleep on
Finney’s bed, she awoke to Finney fondling her breasts. While Tammy and Finney
both had their clothes on, she also felt his erect penis pressing against her. Finney
asked Tammy, “Isn’t this what you wanted?” Tammy got out of the bed and locked
herself in a bathroom. After Carol returned home from work, Tammy, without

1To protect the anonymity of persons associated with this appeal, we use pseudonyms. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3
providing every detail, accused Finney of doing something improper. Carol
confronted Finney, asking him, “What the hell have you done to my child?” Finney
yelled that he had not done anything. According to Carol, when she pressed Tammy
for more details, Tammy said that nothing had happened. Finney continued to live
with Carol and her daughters.
Later that year, while Carol, Finney, and the girls were spending a weekend at
Carol’s sister’s house in Wise County, Carol went to work while leaving Finney, the
girls, and several other people at the house. According to Katie, she fell asleep in a
bed, and when she awoke, she was lying on top of Finney with her head on his chest.
Finney was touching her sexual organ with one hand2 while holding his penis with his
other hand. Katie ran away from Finney and did not immediately tell anyone what had
occurred.
Carol, Finney, and the girls eventually moved to Lubbock. While they lived
there, one night in August 2014, Finney became enraged while accusing Carol of
attempting to hurt him by driving recklessly. He threw things, shoved her multiple
times, hit her arm with a closed fist, and kept her and the girls in a house when they
tried to get away.3 He told Carol that he would “release all of his rage and [she] would
feel the wrath of it.” After he trapped Carol and the girls in a bedroom, he knocked a
2Katie testified that Finney had pulled her shorts and her panties to the side.
3Carol testified that she and the girls “tried to run to each of the doors multiple times and get out[,] . . . and he would drag us back and tell us, no, you’re not leaving.”
4
door partially off its hinges and said, “[T]he only way out of this is death.” The girls
begged Finney to let them go, but he refused. Tammy managed to reach a phone and
call Carol’s sister, who called 9-1-1. When Finney saw that Tammy had a phone, he
twisted her wrist, took the phone from her, and threw it into a wall. When he heard
the 9-1-1 dispatcher call back, he took the phone and began talking to the dispatcher.
Aided by that distraction, Carol and the girls left the house. Finney followed them
outside and said to Carol, “[B]itch, I’m going to jail. I hope you’re happy.” Lubbock
police officers arrested Finney, and he eventually pleaded guilty to committing family
violence against Carol. According to Carol, this occasion was the first (and only) time
that Finney physically abused her, although it was not the first time they had fought.
After his release from confinement following his arrest, Finney again began living
with Carol and the girls.
In June 2015, after Carol and Finney finally separated, Tammy provided details
to Carol about Finney’s sexual abuse. Carol reported the abuse to the police, and
Tammy gave a forensic interview and began participating in trauma counseling. A
Tarrant County grand jury indicted Finney for committing sexual crimes against
Tammy.
Later, Katie asked Tammy why she was going to individual counseling. Tammy
told Katie that Finney had abused her,4 and Katie disclosed to Carol that Finney had

4According to Carol, when Katie asked Tammy why Tammy was going to individual counseling, Tammy told Katie about sexual acts that Finney had engaged in
5
likewise sexually abused her while they had been staying at Carol’s sister’s house.
Carol again contacted the police, and Katie gave a forensic interview.
For Finney’s abuse of Katie, a Wise County grand jury indicted him for
aggravated sexual assault and for indecency with a child by exposure.5 Before trial, the
State gave Finney notice of its intent to offer evidence of Finney’s extraneous bad
acts. The State informed Finney that among other acts, it planned on introducing
evidence of his sexual abuse of Tammy that occurred before his abuse of Katie and of
his physical abuse of Carol—the “Lubbock incident”—that occurred later. Finney
filed a motion seeking exclusion of that evidence.
Before the trial began, the trial court held a hearing on the admissibility of
evidence of the bad acts. Finney argued that evidence of his alleged sexual abuse of
Tammy was inadmissible under rule of evidence 403 because the evidence was unduly
prejudicial. He explained,
It’s a pending case that hasn’t been tried. It’s going to be -- because of the very nature of it, it’s going to -- the jury is going to give more weight to it and . . . not understand it.
And finally, one of the factors the Court looks at in considering 403 is the time that would be consumed by the Court, and basically what we’re talking about here, your Honor, is litigating a second case with a
with her and said that Finney “probably would have raped [her]” had she not woken up. Katie testified that during that conversation, Tammy had said that Finney had done “something bad” but had not provided details of Finney’s abuse.
5See Tex. Penal Code Ann. §§ 21.11(a)(2)(A), 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2018).
6
second victim in a different county and everything that’s entailed with that.
The State argued that Finney’s alleged abuse of Tammy was probative and admissible
under rule 403 because the abuse proved his character for committing sexual crimes
and because his crime against Tammy was factually similar to his crime against Katie.
Concerning the “Lubbock incident,” Finney argued that the evidence was
irrelevant because his physical abuse was against Carol, not the children; because the
incident occurred after his alleged crimes against Katie; and because it constituted a
single instance of physical violence rather than establishing a history of violence. The
State argued that evidence of the abuse was relevant because it showed Finney’s state
of mind concerning his familial relationships and because it explained the “delayed
outcry of the children. They were scared of [Finney], as they should have been.”
The trial court overruled Finney’s objections to evidence concerning both
extraneous bad acts. At trial, the jury heard evidence about those acts. After the jury
received all of the parties’ evidence and arguments, it convicted Finney of both
charges. The trial court sentenced him to confinement for life for the aggravated
sexual assault conviction and to twenty years’ confinement for the indecency with a
child conviction. He appeals.
Evidentiary Rulings
On appeal, in two issues, Finney contends that the trial court erred by
admitting evidence of his alleged abuse of Tammy and of the “Lubbock incident.” He
7
argues that evidence of his alleged acts with Tammy was inadmissible under rule of
evidence 403 because the evidence had minimal probative value, was inflammatory,
potentially confused the jury “as to which assault [he] was on trial for,” required
significant time to develop, encouraged the jury to reach a verdict based on anger or
sympathy, and resulted in an unfair trial. See Tex. R. Evid. 403. Finney contends that
the trial court abused its discretion by admitting evidence of the “Lubbock incident”
because it was irrelevant. He reasons that the incident occurred after his abuse against
Katie and could not, therefore, logically explain her delay in reporting the abuse. He
also asserts that the evidence was unduly prejudicial.
Standard of review
We review a trial court’s decision to admit evidence, including evidence of a
defendant’s extraneous bad acts, for an abuse of discretion. De La Paz v. State, 279
S.W.3d 336, 343 (Tex. Crim. App. 2009); Williams v. State, 513 S.W.3d 619, 636 (Tex.
App.—Fort Worth 2016, pet. ref’d). Under the abuse-of-discretion standard, we
uphold the trial court’s ruling as long as it is within the “zone of reasonable
disagreement.” De La Paz, 279 S.W.3d at 343–44. As long as an evidentiary ruling is
correct on any applicable legal theory, we will uphold it. Id. “The bare fact that a trial
court may decide a matter differently from an appellate court does not demonstrate an
abuse of discretion.” State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016).


8
Finney’s alleged abuse of Tammy
Finney first contends that the trial court erred by admitting evidence
concerning his alleged sexual acts with Tammy because the evidence was more
unfairly prejudicial than probative under rule 403. See Tex. R. Evid. 403 (“The court
may 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.”). He appears to acknowledge that apart
from his argument under rule 403, the evidence was otherwise admissible under article
38.37 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.37,
§ 2(b) (West 2018).
We recently explained the relationship between the general admissibility of
character-conformity evidence in child-sex-crime cases under article 38.37 and a trial
court’s discretionary exclusion of such evidence under rule 403:
Article 38.37 . . . creates an exception to the general exclusion in criminal trials of character evidence by proof of extraneous offenses. See Tex. Code Crim. Proc. Ann. art. 38.37; Tex. R. Evid. 404(a)(1), (b)(1); Harris v. State, 475 S.W.3d 395, 401 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); see also Gonzales v. State, 477 S.W.3d 475, 480 (Tex. App.—Fort Worth 2015, pet. ref’d) (“Although the general rule is that a person may not be convicted based on a claim of character conformity, the legislature has changed the rules when there is an allegation of a sexual offense against a child.” (footnote omitted)). Under article 38.37, when a defendant is on trial for indecency with a child or for aggravated sexual assault of a child (among other crimes), evidence of the defendant’s extraneous sexual crimes “may be admitted . . . for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of
9
the defendant.” Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a)(1)(C), (E), (b). . . .
. . . .
. . . Even if evidence is admissible under article 38.37, “it is subject to exclusion if its probative value is substantially outweighed [by the danger of unfair prejudice] and if rule 403 is raised in the trial court.” Wells v. State, No. 02-16-00209-CR, 2017 WL 6759029, at *5 (Tex. App.—Fort Worth Dec. 28, 2017, pet. [ref’d]); see Bezerra v. State, 485 S.W.3d 133, 140 (Tex. App.—Amarillo 2016, pet. ref’d) (explaining that when a defendant makes a rule 403 objection to evidence that would otherwise be admissible under article 38.37, the trial court must balance the evidence’s probative value against its danger of unfair prejudice), cert. denied, 137 S. Ct. 495 (2016). Only “unfair” prejudice provides the basis for exclusion of relevant evidence; such prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. Karnes v. State, 127 S.W.3d 184, 191 (Tex. App.—Fort Worth 2003, pet. ref’d), cert. denied, 556 U.S. 1241 (2009).
Rule 403 favors the admission of relevant evidence and presumes that relevant evidence is more probative than prejudicial. See Sanders v. State, 422 S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d); see also Johnson v. State, 490 S.W.3d 895, 911 (Tex. Crim. App. 2016) (explaining that rule 403 should be “used very sparingly” to exclude relevant evidence in sexual assault cases). When we analyze a trial court’s rule 403 decision, we consider the probative value of the evidence; the potential of the evidence to impress the jury in some irrational, indelible way or to suggest a decision on an improper basis; the time the proponent needs to develop the evidence; and the proponent’s need for the evidence. Sanders, 422 S.W.3d at 815; see Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref’d) (adding that we should consider the tendency of the evidence to confuse or distract the jury from the main issues and the tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the evidence’s probative force).
. . . We will reverse the rule 403 ruling rarely because the trial court is in a superior position . . . to gauge the impact of relevant
10
evidence. [Gonzales v. State, 477 S.W.3d 475, 481 (Tex. App.—Fort Worth 2015, pet. ref’d).]
Swegheimer v. State, No. 02-17-00095-CR, 2018 WL 1528477, at *2–5 (Tex. App.—Fort
Worth Mar. 29, 2018, pet. ref’d) (mem. op., not designated for publication).
Under these principles, we cannot conclude that the trial court abused its
discretion by admitting evidence of Finney’s alleged abuse of Tammy. See id. at *5.
The trial court could have reasonably found that the probative value of the evidence
and the State’s need for it were high because given Katie’s delayed outcry, the “State
had no physical or scientific corroborative evidence, and the case therefore hinged
on” a swearing match. See id.; Bradshaw v. State, 466 S.W.3d 875, 883–84 (Tex. App.—
Texarkana 2015, pet. ref’d) (explaining that the Legislature’s intent in enacting article
38.37 was to allow for the corroboration of a child’s testimony when little or no
physical evidence exists); Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999,
pet. ref’d) (“The special circumstances surrounding the sexual assault of a child victim
outweigh normal concerns associated with evidence of extraneous acts.”).
Moreover, like in Swegheimer, the trial court could have reasonably determined
that Finney’s acts with Tammy were probative of his acts against Katie because they
“showed his sexual aggression toward [an] underage girl[] in his household.” 2018 WL
1528477, at *5; see also Burgess v. State, No. 05-17-00271-CR, 2018 WL 3322886, at *4
(Tex. App.—Dallas July 6, 2018, no pet. h.) (mem. op., not designated for publication)
(holding that an extraneous bad act had probative value in a case concerning sexual
11
abuse of a child because the bad act showed the appellant’s sexual interest in
children); Alvarez v. State, 491 S.W.3d 362, 371 (Tex. App.—Houston [1st Dist.] 2016,
pet. ref’d) (stating that evidence of prior sexual abuse of children is “especially
probative” of a defendant’s propensity to commit sexual assault).
Finally, as the State argues, evidence of Finney’s abuse of Tammy was
probative of his acts against Katie because of the similarity of circumstances in which
the abuse occurred: in each case, Finney fondled a sleeping child while lying in bed
with her and while Carol was away from the home. See Gaytan v. State, 331 S.W.3d 218,
227–28 (Tex. App.—Austin 2011, pet. ref’d) (holding that evidence that a defendant
had sexually abused two other children in a “remarkably similar” way to the abuse of
the complainant was “directly relevant to the only issue in the case, namely whether
[the defendant] abused [the complainant]”); see also Holcomb v. State, No. 09-16-00198
CR, 2018 WL 651228, at *4 (Tex. App.—Beaumont Jan. 31, 2018, pet. ref’d) (mem.
op., not designated for publication) (noting the “substantial similarities between the
charged offense and the extraneous offense” when in “both instances, the teen-aged
girl was sleeping on a couch in the common area of the house, and Holcomb touched
the child sexually while she was asleep, then stopped when she protested”).
Finney contends that the probative value of “propensity evidence” is inherently
low and relies on historical jurisprudential principles that have generally required the
exclusion of such evidence. See generally Tex. R. Evid. 404(a)(1); Boyd v. United States,
142 U.S. 450, 458 (1892) (“However depraved in character, and however full of crime
12
their past lives may have been, the defendants were entitled to be tried upon
competent evidence, and only for the offense charged.”). But in enacting article 38.37,
the Legislature carved out an exception to the general exclusion of such evidence on
the basis that such evidence has inculpatory value in child-sex-crime cases; we decline
to second-guess the Legislature’s decision in that regard. See Tex. Code Crim. Proc.
Ann. art. 38.37, § 2(b); Gonzales, 477 S.W.3d at 480; see also Bradshaw v. State, 466
S.W.3d at 883 (“The statute recognizes that evidence of this type is, by definition,
propensity, or character evidence. It is admissible notwithstanding those
characteristics.”).
We acknowledge that like in Swegheimer, the development of evidence
concerning Finney’s acts with Tammy comprised a significant portion of the trial.
2018 WL 1528477, at *5. This fact weighed against admissibility. See id. (citing Sanders,
422 S.W.3d at 815). We also recognize, as Finney argues, that evidence of a
defendant’s sexual acts with children is inflammatory,6 but the inflammatory nature
does not automatically render the evidence inadmissible. See id. (citing Cox v. State, 495
S.W.3d 898, 908 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)).

6We note, however, that the evidence of the extraneous offense (Finney’s alleged abuse of Tammy in which he touched her breasts over her clothes) was likely less inflammatory to the jury than evidence of the charged offense (his assault of Katie in which he pulled aside her clothes and touched her bare sexual organ while holding his penis). See Rivera v. State, 269 S.W.3d 697, 706 (Tex. App.—Beaumont 2008, no pet.) (comparing the seriousness of extraneous bad acts and the charged offenses).
13
Considering all of the factors described above and relying on rule 403’s
presumption of admissibility, we cannot conclude that the trial court abused its
discretion by admitting evidence of Finney’s alleged abuse of Tammy. See Tex. R.
Evid. 403; Swegheimer, 2018 WL 1528477, at *4–5. We overrule his first issue.
The “Lubbock incident”
In his second issue, Finney argues that the trial court abused its discretion by
admitting evidence of the “Lubbock incident.” Finney argues that the evidence was
irrelevant because the incident occurred well after his abuse of Katie and therefore
could not explain her delayed outcry, which was one theory of relevance that the State
asserted at trial. He also contends that the evidence was “extremely prejudicial”
because it portrayed him as a violent criminal and exhibited his violence towards
children. The State responds by arguing that the evidence “illuminated the increasingly
fraught relationships within the family, was probative to explain why [Katie] did not
immediately outcry, and explained why the family was going to therapy, which
indirectly led to [Katie’s] outcry.”
We conclude that the admissibility of the “Lubbock incident” did not depend
on whether it explained Katie’s delayed outcry. Rather, as asserted by the State in the
trial court, the evidence, which proved a bad act committed by Finney in trapping and
threatening Katie (along with with Carol and Tammy), was admissible under article
38.37 to show “the state of mind of the defendant” and “the previous and subsequent
relationship between the defendant and the child.” Tex. Code Crim. Proc. Ann. art.
14
38.37, § 1(b)(1)–(2). Under section 1(b) of article 38.37, jurors may consider
extraneous acts showing the defendant’s state of mind and the defendant’s
relationship with the child to explain how someone in a position of trust could
commit a crime against the child. Ware v. State, 62 S.W.3d 344, 353 (Tex. App.—Fort
Worth 2001, pet. ref’d). Article 38.37 recognizes that most jurors are reluctant to
believe that adults in parental positions “would commit sexual or physical crimes
against . . . children” and permits the admission of evidence to show “that a peculiar
relationship exists” between the defendant and a child, including the defendant’s
assertion of dominance over the child. Id. In other words, the defendant’s extraneous
acts are relevant to show how “in a position demanding care and guidance of a related
person, [the defendant] has failed in such duty and has adopted an unnatural attitude
relative thereto.” Johns v. State, 236 S.W.2d 820, 823 (Tex. Crim. App. 1951); see Pinson
v. State, No. 08-02-00327-CR, 2004 WL 1693551, at *5 (Tex. App.—El Paso July 29,
2004, pet. ref’d) (mem. op., not designated for publication) (“Other acts of
misconduct between the defendant and the child victim are relevant to show how a
person in a position of authority, custody, or care of a young child has developed an
unnatural attitude and relationship toward that child to explain the charged act—an
act that would otherwise seem wholly illogical and implausible to the average juror.”);
see also Ayala v. State, Nos. 02-06-00110-CR, 02-06-00111-CR, 2007 WL 1377731, at *3
(Tex. App.—Fort Worth May 10, 2007, pet. ref’d) (mem. op., not designated for
publication) (holding that in a trial for aggravated sexual assault of a child and
15
indecency with a child, the trial court did not abuse its discretion by admitting, under
article 38.37, evidence concerning the defendant’s physical abuse of the child); Kenley v.
State, No. 02-06-00127-CR, 2006 WL 2925159, at *2–3 (Tex. App.—Fort Worth Oct.
12, 2006, no pet.) (mem. op., not designated for publication) (holding that in a child
sex-crime prosecution, a trial court did not abuse its discretion by admitting evidence
of the defendant’s physical abuse of the child because the evidence “provided context
about the previous and subsequent relationship between” them).
Applying article 38.37, we conclude that the trial court did not abuse its
discretion by admitting evidence of the “Lubbock incident” because the evidence
showed Finney’s state of mind, including his assertion of dominance over Katie,7 and
proved the “subsequent relationship between” him and Katie. See Tex. Code Crim.
Proc. Ann. art. 38.37, § 1(b)(1)–(2); Ware, 62 S.W.3d at 353; see also Kenley, 2006 WL
2925159, at *2–3; Comeaux v. State, Nos. 14-03-01223-CR, 14-03-01224-CR, 14-03
01225-CR, 2005 WL 1149795, at *6 (Tex. App.—Houston [14th Dist.] May 17, 2005,
pet. ref’d) (mem. op., not designated for publication) (holding that evidence of an
extraneous offense was admissible to show that the “charged offenses did not occur
in an otherwise healthy relationship”). To the extent that Finney objected in the trial
court and argues on appeal that the “Lubbock incident” was inadmissible because it
was not relevant, we hold that the trial court did not abuse its discretion by overruling
7Finney acknowledges on appeal that the evidence showed, in part, that he dragged the girls back into the house when they tried to leave.
16
the objection. See Tex. Code Crim. Proc. Ann. art. 38.37, § 1(b)(1)–(2); Williams, 513
S.W.3d at 636. We overrule Finney’s second issue to that extent.
Finally, to the extent that Finney argues that evidence of the “Lubbock
incident” was inadmissible under rule 403 because of unfair prejudice,8 he did not
object to the evidence on that basis in the trial court, and the record does not indicate
that the trial court ruled on an “undue prejudice” objection to this evidence. Thus, we
hold that he forfeited that complaint for our review, and we overrule the remainder of
his second issue. See Tex. R. App. P. 33.1(a)(1); Ferguson v. State, Nos. 02-16-00451-CR,
02-16-00452-CR, 2017 WL 6047667, at *3 n.3 (Tex. App.—Fort Worth Dec. 7, 2017,
pet. ref’d) (mem. op., not designated for publication); Lewis v. State, No. 02-16-00179
CR, 2017 WL 2686325, at *9 (Tex. App.—Fort Worth June 22, 2017, pet. ref’d)
(mem. op., not designated for publication.

Outcome: Having overruled both of Finney’s issues, we affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

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