author: TRACY CHRISTOPHER, Justice.

text:
    Jamie PITTMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-00710-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 17, 2010.

      James W. Huggler Jr., Tyler, for appellant.
    Michael J. West, Tyler, for appellee.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

Appellant Jamie Pittman, the first of the alleged “Mineóla Swingers” was tried and convicted in March 2008 in Smith County, Texas of a single count of aggravated sexual assault of a child. He was sentenced to confinement for life. Appellant asserts five issues on appeal, but we reach only two. Appellant asserts the trial court reversibly erred by (a) not granting a new trial on Brady violations, and (b) permitting the State to introduce evidence of multiple other sexual offenses allegedly committed against other children. Because we agree the trial court impermissi-bly allowed the State to interject extremely prejudicial evidence of multiple other sexual offenses allegedly committed by appellant (and others) into the guilt-innocence phase of this trial, we reverse and remand.

I. Background

This case began when Department of Family and Protective Services (“DFPS”) authorities in Smith County removed two children, Shannon, age seven, and Holden, age six, from the home their mother, Shauntel Mayo shared with appellant. The children were removed after allegations of abuse and neglect were received by Smith County DFPS. After their removal, they went through several foster homes before being placed with foster parents John and Margaret Cantrell. At their first few foster homes, there were some indications of problems with the children: Holden suffered from bowel issues and was very aggressive, and Shannon acted very afraid.

Several months after being removed from their parents and once they were placed with the Cantrells, the children began to make outcries involving a ring of adults allegedly engaged in training Shannon, Holden, their four-year-old younger sister, Cathy, and their six-year-old aunt, Ginny, to perform in a sexual manner in a club. The outcries began when the Can-trells took Shannon and Holden by an empty building they were considering purchasing in the city of Mineóla in Wood County. The Cantrells immediately took the children to the Mineóla Police Department (the “Mineóla PD”), but, after a one-to two-day investigation, the Mineóla PD did not file any charges. Shannon and Holden denied the allegations during a Wood County Children’s Assessment Center interview.

Because the children were removed from their home in Smith County, the Cantrells and the Smith County DFPS enlisted the assistance of the Smith County District Attorney’s office to further inquire into the children’s allegations. Texas Ranger Phillip Kemp opened an investigation after being contacted by the Smith County District Attorney’s office. Kemp interviewed Shannon and Holden and, through his investigation, discovered that Cathy and Ginny also were allegedly involved in the sexual exploitation ring. Cathy and Ginny were removed from the home of Sheila and Jimmy Sones. Sheila is the mother of Mayo and Ginny and the grandmother of Shannon and Holden. Cathy was placed with the Cantrells, and Ginny was placed with another foster family.

Shannon and Holden identified the building in Mineóla as a “club” in which they had performed sexual acts for numerous adults in exchange for money collected by appellant and others, including Mayo. The children described a “sexual kindergarten” in which adults, including appellant, Mayo, and Patrick Kelly, trained them to masturbate, strip, and engage in sexual contact with each another. The children alleged that they then performed sexual acts at the club in Mineóla, where numerous other adults watched, paid money, and filmed them engaging in the acts. The children also explained that the adults (appellant, Mayo, and Kelly) had given them “silly pills,” which made them more willing to act in this manner. The investigation also revealed that Alicia, a friend of the other children, stated that Dennis Pittman raped her.

Following Kemp’s investigation, appellant and several others were indicted for numerous counts of aggravated sexual assault of a child and engaging in organized criminal activity. However, appellant was only tried for a single count of aggravated sexual assault of a child, alleged to involve only Shannon and Holden. At his trial, the State proffered evidence of the allegations against the other defendants, as well as appellant’s alleged involvement in offenses against Cathy, Ginny, and Alicia. Because appellant challenges the admissibility of this testimony we will briefly highlight that evidence. The objected-to evidence and argument began with the State’s opening statement:

The evidence in this case is going to show that the defendant and a group of other people would groom young children to perform sexual acts with themselves and others. You’re going to hear from [Shannon]; you’re going to hear from [Holden]; from [Cathy]; and from [Ginny], all children under 14 years of age. And what you’re going to hear is that starting at the age of five, these kids were taken to kindergarten.
They went to kindergarten so Jamie Pittman, the defendant in this case, could teach them how to have sex. Their kindergarten, which was located at his trailer, was filled with dolls where they would learn how to perform sexual acts using dolls.
Then they graduate into masturbation. The little girls [Shannon, Cathy, and Ginny] would masturbate. [Holden] would masturbate. Ultimately, they would have sex.
The end goal of kindergarten was to graduate, not into the first grade, not to use the tools that they’ve learned to better their lives, but graduation for these kids was going to a swingers’ club in Mineóla.

Smith County DFPS workers Amy McDonald, Alexia Hunter, and Kristi Hachtel all testified on direct examination by the State about the circumstances under which Shannon and Holden were removed from the home of Mayo and appellant; these circumstances involved allegations of neglect and drug abuse by appellant and Mayo. During the direct examination of Hunter, the State questioned her regarding a “continuing course of sexual abuse and exploitation” of Shannon, Holden, and Cathy. Hunter went on to describe allegations of abuse against all four children, naming appellant, Dennis Pittman, Shaun-tel Mayo, Sheila Sones, and Jimmy Sones as individuals involved in this continuing course of sexual abuse. Hunter explained that five-year-old Cathy would masturbate until she bled, which is a sign of sexual abuse. Hachtel described the DFPS investigation that led to discovery of other alleged victims and perpetrators. She testified that all of the various defendants were involved in this sex ring; that appellant tested positive for drugs; that he made the children watch pornographic movies; and that appellant abused Cathy and Ginny. Additionally, Virginia Mayo, Shannon and Holden’s grandmother, testified that appellant and Mayo were bad parents who did not feed or clothe the children properly and that Cathy made an outcry to her about dancing, which led her to believe Shannon and Holden’s story.

When Kemp testified, the State questioned him about all four children. He testified that appellant abused Ginny and Cathy and that all of the children were groomed at the kindergarten and then taken to the “swingers” club in Mineóla to dance on the stage for money, to perform sex on stage, and to be videotaped by appellant having sex with each other. Kemp also identified the other defendants involved in the sex ring. During his testimony, State’s Exhibit 37 was admitted showing a large family tree that lists eight children as having been abused by the six defendants. Also during Kemp’s testimony, a two hour interview of Shannon and Holden was played to the jury detailing other victims and other defendants.

Margaret Cantrell, the foster mother of Shannon, Holden, and Cathy, not only testified as the outcry witness for Shannon and Holden, but also testified regarding the abuse of Cathy and Ginny. She further testified that Cathy masturbated until she bled.

Alicia, who was age fifteen at the time of appellant’s trial, but who was eleven or twelve at the time of these events, testified that she and Shannon had visited another bar and strip club and were given drugs by Dennis Pittman — Alicia’s stepfather — and appellant. According to Alicia, Shannon was told to strip on stage, and when she refused she was taken to a back room by appellant, Dennis Pittman, and “Tim.” Alicia also testified that her step-father, Dennis, had raped her.

Ginny testified to doing “bad stuff’ with Shannon and Holden in kindergarten, but stated that she never went to the club. She used appellant’s name during her testimony but did not identify him in court. Cathy testified about doing sexual “stuff’ in kindergarten, dancing at the club for money, and being videotaped by appellant doing sexual “stuff.” Shannon and Holden testified after most of the other witnesses in this case had testified; both testified about the other alleged perpetrators and victims. The only witness to testify after Shannon and Holden was the State’s expert on child sexual assault, who related that all of the children’s stories were consistent and believable.

In its charge, the trial court instructed the jury regarding the use of any extraneous offense evidence as follows:

You are instructed that if there is any testimony before you in this case regarding the defendant’s or any other individuals’ having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity of the defendant or absence of mistake or accidence [sic], if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.

During closing argument, the prosecuting attorney reminded the jury of this caveat, yet continued to focus on appellant’s involvement in a child sexual abuse scheme:

[Y]ou can consider that [extraneous offense evidence] for a limited — at this point in the trial, for limited reasons. His plan, their plan, the scheme, how the operation worked, their knowledge, the defendants’ identity.
Because let me stop you right there. These kids were sexually assaulted, period. Because if you want to go down the whole road of, “You know what; they just got into foster care and are making this up,” let’s go down that road for a second.
If that’s true, explain to me — and if you buy that, if you buy that, I’ll wait for you. I’ll meet you at your homes. Explain to me then why little [Cathy], at five years old, is masturbating to the extent where her five-year-old vagina is bleeding. Explain that to me.
Explain to me then why [Shannon] knows how to do a striptease, why she’s masturbating to the extent that she is. Explain to me that.
Explain to me why [Holden], nine-year-old [Holden], is using the bathroom on himself.
And that’s just with those three. You know what? You can’t explain that by saying this is all just made up. But it didn’t end there. Explain to me if this is all made up, why [Ginny], who had absolutely no contact, tells you the same thing.
And explain to me why [Alicia], who’s all the way up in Wisconsin, comes down here from there and talks to you about happy pills, [Shannon] dancing, Dennis Pittman, Jamie Pittman, and everybody else we’ve heard about.
Let me tell you something. This isn’t some great conspiracy hatched by these kids, investigated by the Texas Rangers, and tried by the Smith County District Attorney’s Office against Jamie Pittman. That’s not what happened.
What happened is, Jamie Pittman did this. As disgusting and vile as it is, he did it.
And let’s go over that. Let’s go over what it was like. What must it be like to be five, six, seven, eight, and the people you call Mommy, Daddy, Grandma, Grandpa teach you how to masturbate using dolls when you’re five.
They divide you in different classes. They teach you how — using these dolls, how to masturbate. And these are the same people who are supposed to protect you. These are the same people who are supposed to do anything they can to ensure that you don’t have to go through this. But what they do, what Jamie Pittman does, is he takes them to his house, to Booger Red’s house, to Mineó-la, and he teaches them how to masturbate using dolls. And Shauntel Mayo, Booger Red, and Dennis Pittman, Sheila Sones, Jimmy Sones teach them how to strip, teach them how to dance, teach a sister how to have sex with her brother, teach an aunt how to have sex with her niece and her nephew and vice ver-sa.

(emphasis added). The prosecuting attorney continued his closing argument in a similar vein, emphasizing that appellant, Mayo, Kelly, Dennis Pittman, Sheila Sones, and Jimmy Sones all worked together in a group to groom the children by teaching them to masturbate and dance together, culminating their “education” by forcing them to strip and have sex with each other at the club in Mineóla.

After hearing the evidence and argument of attorneys, the jury found appellant guilty as charged in the indictment and sentenced him to life in prison. Appellant timely appealed.

II. Issues Presented

Appellant presents five issues for our review. In his first issue, appellant contends the trial court erred in denying his motion for new trial based on Brady violations. In his second issue, appellant asserts the trial court reversibly erred by permitting the State to introduce evidence of drug use and multiple other sexual offenses appellant allegedly committed against other children. We do not reach issues three through five.

III. Analysis

A. This Record Does Not Confirm Brady Violations

Appellant asserts the trial court erred in denying his motion for new trial based on the State’s failure to disclose exculpatory evidence to him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We review a trial court’s ruling on a motion for new trial for an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906-07 (Tex.Crim.App.2007).

Appellant filed a motion for new trial on April 28, 2008, alleging the Smith County District Attorney had concealed exculpatory information from his defense team in violation of Brady. This information involved an investigation in California, where the Cantrells previously lived, concerning allegations that John Cantrell had sexually molested at least one of his former foster children. Appellant attached an affidavit to his motion for new trial in which his attorney averred that he had discovered the ongoing California investigation through contact with the Wood County District Attorney’s office. The Smith County prosecutor responded that the Smith County District Attorney’s office was unaware of this information. The motion for new trial was overruled by operation of law.

In his original brief on appeal, appellant asserts two areas of Brady information that were not disclosed to him: (1) John Cantrell was the subject of an aggravated sexual assault investigation in California following a complaint by other foster children, and (2) Kemp had located and interviewed at least one of the owners of the Mineóla “swingers” club, Sherry Adams, who had explained that no children had ever been admitted to the club and that she did not recognize any of the defendants arrested and charged in these cases. In supplemental briefing after oral argument, appellant identified other previously undisclosed exculpatory material, including two videotapes of two of the children denying any abuse occurred, a seventy-nine page report from Kemp of which only fifty-five pages had previously been produced, and hand-written notes by Kemp, including notations recommending interviews of other children Shannon had identified as being abused.

The only Brady complaint included in the record of this case, however, concerns the sexual assault allegations against John Cantrell. As noted above, appellant identified this information in his motion for new trial; his attorney attached an affidavit to the motion indicating that he discovered these allegations from the Wood County District Attorney’s office. However, the State’s prosecuting attorney, Joseph Murphy, responsed to the motion for new trial with an affidavit, dated June 10, 2008, in which he stated that he “had no knowledge of any allegations [against John Cantrell] that were made in California and had no way of ascertaining that information. A run of Mr. Cantrell’s Criminal History contains no felony arrests or convictions for any offense out of California.” He denied that Wood County had supplied this information to him or to his office.

On the day of oral argument in this case, Wood County filed an amicus curiae brief through its District Attorney. The brief contained sworn grand jury testimony from a Wood County DFPS employee who claimed that both Kemp and a Smith County Assistant District Attorney, Tiffany Wickel, knew about the allegations against Cantrell in 2005 and 2007 respectively. However, this court is constrained to review only the record in this case. Although appellant argues that Wood County’s District Attorney’s brief should be considered an admission by a party opponent because both Wood County and Smith County represent the State, he cites no cases in support of that proposition. We decline to so hold. Furthermore, ami-cus briefs generally cannot be used to supplement the record. Cf Booth v. State, 499 S.W.2d 129, 135-36 (Tex.Crim.App.1973) (observing that “the office of amicus curiae is to aid the court and it cannot be subverted to the use of a litigant in the case” and that a brief challenging the validity of record testimony is not a proper function of an amicus curiae).

Appellant’s motion for new trial did not mention the other exculpatory evidence that he now claims should have been revealed. Part of this information was discovered during Patrick Kelly’s trial and is not part of this record; part of this information was discovered in the Dennis Pittman pre-trial proceedings and also is not part of this record. See Smith v. State, 540 S.W.2d 693, 697 n. 4 (Tex.Crim.App.1976) (op. on reh’g) (citing Booth, 499 S.W.2d at 135-36 and noting that trial transcript from another trial is not properly a part of record on appeal and cannot be considered by appellate court). Thus, we may not consider it in this appeal and appellant’s only remedy, if necessary, is through a habeas corpus proceeding.

In sum, “ ‘Brady and its progeny do not require prosecuting authorities to disclose exculpatory information to defendants that the State does not have in its possession and that is not known to exist.’ ” Harm v. State, 183 S.W.3d 403, 407 (Tex.Crim.App.2006) (quoting Hafdahl v. State, 805 S.W.2d 396, 399 n. 3 (Tex.Crim.App.1990)). The record in this case reflects that Smith County issued a sworn statement that it did not have the Brady information regarding John Cantrell in its possession during appellant’s trial. Being constrained to review only the record of this case, we cannot say the trial court abused its discretion in failing to grant appellant’s motion for new trial. We therefore overrule his first issue without reaching the issue of bad faith.

B. Evidence of Extraneous Offenses Should Not Have Been Admitted

Appellant asserts in his second issue that the trial judge erred in permitting the State to introduce evidence of drug use by the appellant, multiple other sexual offenses allegedly committed by appellant and five others, including multiple sexual offenses involving three more child victims. Over appellant’s objections based on Texas Rules of Evidence 403 and 404(b), the State proffered evidence regarding the involvement of each of the other charged defendants in the case, as well as appellant’s involvement in offenses against Cathy, Ginny and Alicia, to show appellant’s “scheme” or “plan.”

Appellant obtained running objections to all testimony regarding his alleged drug use and all testimony about and by the other children allegedly abused by appellant and the other defendants. Such testimony included allegations of sexual “grooming” of numerous children by six adults, the existence of a child sex ring, children dancing for money, videotaping the children having sex, providing drugs to the children, showing them pornographic movies, and the rape of Alicia by Dennis Pittman.

1. Standard of review.

We review a trial court’s evidentia-ry rulings for an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001). The erroneous admission of extraneous-offense evidence constitutes non-constitutional error, reviewable for harm under Texas Rule of Appellate Procedure 44.2(b). Hernandez v. State, 176 S.W.3d 821, 824 (Tex.Crim.App.2005). This rule provides that we must disregard “any [non-constitutional] error, defect, irregularity, or variance that does not affect [an appellant’s] substantial rights[.]” Tex. R.App. P. 44.2(b).

2. Admitting the evidence was an abuse of discretion.

a. The trial court’s reason for admitting the evidence

This trial involved the single indicted offense of aggravated sexual assault of a child. The State sought to consolidate this charge with three other offenses under Texas Penal Code section 3.01 but was unsuccessful and proceeded to trial on this charge alone.

We begin by noting that although appellant focuses on the trial court’s decision to admit this evidence over his Rule 403 objection, the trial court seemingly permitted much of the extraneous-offense evidence to show appellant’s “plan” to engage in a sexual exploitation/abuse scheme with several other defendants. See Tex.R. Evid. 404(b) (permitting introduction of extraneous-offense evidence to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). For example, the trial court stated in overruling appellant’s objections to extraneous-offense evidence during the testimony of DFPS worker Hachtel, “It surely shows plan, scheme and design.” The trial court further observed, “[T]he theory of the State’s case is that this was a sex ring, that there was more than just one individual involved in it.”

But appellant was charged with only a single count of aggravated sexual assault of a child, alleged as follows:

[Appellant] did then and there intentionally or knowingly cause the female sexual organ of [Shannon], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact and penetrate the sexual organ of [Holden.]

He was not on trial for multiple counts of aggravated sexual assault involving victims other than Shannon and Holden; neither was he being tried for engaging in an organized scheme or plan to sexually assault multiple victims.

As the Court of Criminal Appeals has explained,

Unfortunately, courts frequently admit evidence of extraneous acts under this exception not to show acts the defendant took, in preparation for the ultimate charged offense, but to show repeated acts that are similar to the charged offense. Repetition of the same act or same crime does not equal a “plan.” It equals the repeated commission of the same criminal offense offered obliquely to show bad character and conduct in conformity with that bad character— “once a thief, always a thief.” This bad-character — conformity purpose, whether express or not, is precisely what is barred by Rule 404(b). Thus, if the proponent is unable to articulate exactly how an extraneous act tends to prove a step toward an ultimate goal or overarching plan, the evidence is not admissible to prove part of a “plan.”

Daggett v. State, 187 S.W.3d 444, 452-53 (Tex.Crim.App.2005). Similarly, the evidence of extraneous acts admitted here does not show a plan to sexually assault Shannon and Holden. Rather it is evidence of repeated occurrences of the same bad act, compounded by numerous additional bad acts.

On appeal, the State argues the evidence was necessary to show appellant’s intent, but this basis for admitting this evidence was not asserted in its proffer at trial, other than in generalized quotes of the language of Rule 404(b). Further, appellant did not assert that the children were “accidentally” sexually assaulted or that they had “consented.” The State further argues in its brief that the evidence showed that appellant had abused three other children in an identical manner, but this argument is not supported by the record. For example, Alicia did not testify to abuse by appellant, only by Dennis Pittman. The State argues that “all five children” testified to being trained by appellant at kindergarten to sexually perform, when in fact Alicia did not testify to that. Alicia did not testify about kindergarten or the club in Mineóla. With this in mind, we turn to appellant’s Rule 408 objections.

b. Rule 403 balance weighs against admission.

In determining a Rule 403 objection, the trial court balances the probative force of and the proponent’s need for the evidence against any tendency of the evidence to (a) suggest a decision on an improper basis, (b) confuse or distract the jury from the main issues, (c) be given undue weight by a jury not equipped to evaluate the probative force of the evidence, and (d) consume an inordinate amount of time or repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App.2006).

i. Probative force and necessity of the evidence

We begin our analysis of this issue by examining the probative force and the need for this evidence. As noted above, appellant was on trial for a single offense: aggravated sexual assault of a child, involving only Shannon and Holden. The proffered extraneous-offense evidence included evidence of drug use by appellant, and testimony that appellant and several other defendants trained numerous children in sexual activity by conducting a “sexual kindergarten,” where the children learned to masturbate, dance “sexy,” and touch each other inappropriately. Evidence also was offered to show that appellant and these other defendants transported the children into another county and forced them to perform sexual acts in front of other pedophiles from whom they received money, and that appellant and the other defendants provided drugs to these children to get them to perform sexually and sometimes filmed them engaging in sex acts. In addition, the proffered evidence included testimony regarding offenses against several children who were not included in the indictment. But this extraneous-offense evidence does not appear to be particularly probative of the offense for which appellant was actually being tried — the aggravated sexual assault of Shannon and Holden. Cf. Daggett, 187 S.W.3d at 450-51 (“While such [extraneous-offense] evidence will almost always have probative value, it forces the defendant to defend himself against uncharged crimes as well as the charged offense, and encourages the jury to convict a defendant based upon his bad character, rather than proof of the specific crime charged.”).

Further, this evidence was not necessary to prove the allegations against appellant; the testimony of Shannon and Holden alone, if believed by the jury, would have been sufficient to convict appellant. See Tex.Code Crim. Proo. Ann. art. 38.07 (providing that testimony of child under 17 alone is sufficient to convict defendant of sexual assault of a child).

Finally the State argues that the other children were eyewitnesses to the abuse and that they had to testify as to why they were at the club and kindergarten. First, not all of the children were alleged eyewitnesses. For example, Alicia did not testify that she witnessed an assault involving Shannon and Holden. Cathy did not testify to seeing an assault between Shannon and Holden, and Ginny testified she never went to the club. Second, there is no reason that an eyewitness would have to testify as to why she was at the club or kindergarten or whether she was abused, or testify to any of the other extraneous acts presented in this trial. We thus conclude that the extraneous-offense evidence in this case was neither particularly probative of the charged offense nor necessary to the State’s case.

ii. Balancing factors

We next turn to the other Rule 408 factors against which this evidence must be balanced: the tendency of the evidence to (a) suggest a decision on an improper basis, (b) confuse or distract the jury from the main issues, (c) be given undue weight by a jury not equipped to evaluate the probative force of the evidence, and (d) consume an inordinate amount of time or repeat evidence already admitted. Gigliobianco, 210 S.W.3d at 641-42.

Appellant was charged with one count of aggravated sexual assault of a child, but during the direct examination of Ranger Kemp, the following exchange occurred:

Q.: Is there a continuing course of criminal conduct that you discovered that started when these kids were five-year-old kids and went to kindergarten up until they were able, for lack of a better term, graduate to being able to have sex with one another on a stage in Mineóla, Texas, filled with other perverts who are sitting there paying money, watching them?
A.: Yes. It was all one continuing scheme.

During the testimony of Margaret Cantrell, the State made the following observation: “[Wje’re talking about children who were forced to engage in sexual conduct and contact with brothers and sisters, with aunts, dancing around so people like Jamie Pittman could make money and fulfill his sexual desires.”

The evidence took up a vast amount of time and was repeated by many witnesses. As detailed above, the State focused extensively on the extraneous-offense evidence throughout appellant’s trial, from opening statement, through the direct examination of witnesses, to closing argument. In fact, during the entire guilt-innocence portion of appellant’s trial, there were only three minor witnesses (out of fifteen) who did not testify about the other defendants and the other alleged victims and crimes.

We thus conclude that this extraneous-offense evidence had an extremely strong tendency to suggest a decision on an improper basis, to confuse or distract the jury from the main issues in this case, and to be given undue weight by a jury not equipped to evaluate its probative force. After balancing the lack of probative force and necessity here versus the potential harm of the evidence, we hold that the trial court abused its discretion in overruling appellant’s Rule 403 objections.

3. Appellant’s substantial rights were affected.

“The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Young v. State, 159 Tex.Crim. 164, 165, 261 S.W.2d 836, 837 (1953). Here, admission of this extraneous-offense evidence permitted the State to portray appellant as a drug abuser and as a sexual predator engaged in an organized and ongoing scheme involving multiple sexual assaults against multiple children, sexual performances of a child, and child pornography. This alleged scheme included a group of like-minded child predators (who were in a position of trust and authority as parents, grandparents, or stepparents) working together to “groom” a group of very young children— all under the age of six or seven — to perform sexually with each other at a “sexual kindergarten.” It was alleged that at this “kindergarten,” these adults taught the children to masturbate, touch each other, and engage in sex acts. These adults also allegedly provided drugs to the children to make them more willing to engage in these activities. According to the State, the ultimate goal of this group of child predators was to have the children perform sex acts in front of other pedophiles for money. This group of pedophiles also filmed the children engaging in these sexual activities. One of the other adults also purportedly raped his twelve-year-old step-daughter.

Considering the manner in which this evidence was introduced — by the State— on direct examination, rather than on redirect or as rebuttal evidence, the focus of the State’s opening statement and closing arguments, and the extremely prejudicial nature of the evidence itself, we conclude that the introduction of this evidence had a substantial and injurious effect or influence in determining the jury’s verdict. See Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). Indeed, it is difficult to imagine how a juror could have considered this inflammatory, prejudicial evidence only for non-character purposes. We therefore sustain appellant’s second issue.

IV. Conclusion

Had the State tried appellant only for the offense with which he was charged, aggravated sexual assault of a child, it might have convicted him of that offense. Unfortunately, in this case, the trial court permitted the State to try appellant for being a criminal generally, rather than for the offense for which he was indicted. In fact, he was tried for being the worst sort of criminal: a child predator who engages in an organized and ongoing scheme with other pedophiles to sexually abuse young children. We therefore sustain appellant’s second issue and, without addressing his other three issues, reverse and remand for a new trial.

        .See Mayo v. State, 321 S.W.3d 576 (Tex. App.-Houston [14th Dist.2010]), tried in May 2008; Kelly v. State, 321 S.W.3d 583 (Tex.App.-Houston [14th Dist.2010]), tried in August 2008. All three appeals were transferred to this court.

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . We have employed pseudonyms for the children to protect their identities.

      . Cases are pending in a Smith County district court against three other defendants, in-eluding Dennis Pittman, Sheila Sones, and Jimmy Sones.

      . This was before the start of Shauntel Mayo’s trial. See Mayo v. State, 321 S.W.3d at 578, footnote 1.

      . Because we reverse and remand this case on another issue, we are confident that Smith County will provide any and all exculpatory evidence to appellant before his re-trial.

      . Appellant cites Oregon v. Kennedy, 456 U.S. 667, 676, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), and Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex.Crim.App.2007), to support his claim that, if bad faith is found in the State’s actions, a retrial is barred. However, these cases discuss and delineate the " 'narrow exception' to die general rule that there is no jeopardy bar to a retrial after a defense-requested mistrial.” Masonheimer, 220 S.W.3d at 506-07 (citing Kennedy, 456 U.S. at 673, 676, 678-79, 102 S.Ct. 2083) (emphasis added). This exception usually means that a retrial after a defense-requested mistrial is barred by double jeopardy only when the prosecutorial conduct giving rise to the mistrial was "intended to provoke [or goad] the defendant into moving for a mistrial." Masonheimer, 220 S.W.3d at 506 (citing Kennedy, 456 U.S. at 676, 679, 102 S.Ct. 2083). Thus, neither of these cases support appellant’s contention that a retrial is barred when an appellate court reverses for Brady violations. See also Ex parte Legrand, 291 S.W.3d 31 (Tex.App.-Houston [14th Dist.2009, pet ref’d]) (holding that there is no double jeopardy after a verdict was reversed on appeal); Ex Parte Graves, 271 S.W.3d 801 (Tex.App.-Waco 2008, pet. ref’d) (same).

      . Texas Rule of Evidence 403 provides as follows:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
      TexR.Evid. 403. Rule 404(b) provides that, although not admissible to prove conduct or behavior in conformity with character, extraneous offense evidence may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” so long as, if requested by the accused, proper notice has been provided in advance of trial. Tex.R. Evid. 404(b).

      . See Tex.R.App. P. 47.1 (stating that courts of appeals must issue an opinion that is "as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”).


source: Caselaw Access Project

license: Public Domain

text:
    Shauntel Loraine MAYO, Appellant, v. The STATE of Texas, Appellee.
    Nos. 14-08-00622-CR, 14-08-00623-CR, 14-08-00624-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 17, 2010.

      Austin R. Jackson, Tyler, for appellant.
    Michael J. West, Tyler, for appellee.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

Appellant Shauntel Mayo, the second of the alleged “Mineóla Swingers” was tried in Smith County in May 2008 and convicted of two counts of sexual performance by a child and one count of engaging in organized criminal activity. She was sentenced to twenty years’ confinement for each count of sexual performance by a child and confinement for life for the count of engaging in organized criminal activity. In three issues, appellant asserts the trial court reversibly erred (a) by including an improper venue instruction in the jury charge, which (b) caused her harmed, and (c) by ordering the three sentences to run consecutively. Although the jury instruction was error, it was not harmful. However, because one of her three sentences should not have been ordered to run consecutively, we modify the trial court’s judgment and affirm as modified.

I. Background

Appellant has not challenged the sufficiency of the evidence, so we discuss the facts only briefly. Appellant’s two children, Shannon and Holden, were removed from her care sometime in 2004. After their removal, they began to exhibit behaviors and make outcries to various people that raised concerns that the children had been sexually abused. Many of the children’s allegations centered on an adult “swingers” club located in Mineóla, Texas. This club was allegedly operated by appellant and other adults. During the investigation into these allegations, several other children related to appellant also made outcries.

According to Shannon and Holden, they were given “silly pills” and encouraged to dance with each other in various states of undress. They were taught to do these acts in what they referred to as “kindergarten,” which took place in appellant’s home in Smith County. These “kindergarten” classes involved teaching children, including Shannon and Holden, how to touch their “private parts” and “play doctor,” which involved genital contact with each other. Several adults, including appellant, allegedly instructed the children at “kindergarten.” After spending time in “kindergarten,” the children were taken to the “swingers” club in Mineóla, located in Wood County, where they would dance and perform sexually with each other for adults who paid money to those operating the club.

After an investigation into these allegations, appellant and several others were charged with numerous offenses in Smith County. At appellant’s trial, numerous witnesses testified in support of the State’s case; several of the children, including Holden, Shannon, and their two young relatives, Ginny and Cathy, testified and described the activities that occurred both at “kindergarten” and at the “swingers” club. After hearing the evidence, the jury found appellant guilty of the charged offenses and assessed punishment at confinement for life and a $10,000 fine for engaging in organized criminal activity, and twenty years’ confinement and a $10,000 fine for each count of sexual performance by a child. The trial court rendered judgment on the jury’s verdict and, over appellant’s objection, ordered all three sentences to run consecutively. Appellant timely appealed.

II. Analysis

A. Jury Charge Error

In her first two issues, appellant contends the trial court provided an impermissible jury instruction on venue which harmed her because it relieved the State of its burden to establish venue by a preponderance of the evidence.

When reviewing allegations of charge error, we must first determine whether error actually exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005) (en banc). If error is found, we then determine whether it caused sufficient harm to require reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (en banc) (op. on reh’g). If no proper objection was made at trial, we must reverse only if the record shows “egregious harm” to the defendant. Id. When there has been a timely objection to an improper jury charge, we must reverse if we find “some harm” to the defendant. Id. “Some harm” means any harm, regardless of degree. Dickey v. State, 22 S.W.3d 490, 492 (Tex.Crim.App.1999) (en banc); Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) (en banc).

Appellant’s complaint centers on the final sentence of the trial court’s venue instructions: “Venue is not a constituent element of the offense charged, and the failure to prove venue does not negate the guilt of the accused.” This statement comes from case law discussing sufficiency of the evidence of venue. See, e.g., Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981) (en banc); Schemm v. State, 228 S.W.3d 844, 845 (Tex.App.-Austin 2007, pet. ref'd); Adams v. State, 936 S.W.2d 313, 314 (Tex.App.-Tyler 1996, pet. ref'd). But “Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.” Brown v. State, 122 S.W.3d 794, 799 (Tex.Crim.App.2003) (emphasis added). Because this evidentiary sufficiency rule does not have a statutory basis, we conclude this instruction was improper and sustain appellant’s first issue.

B. Harm Analysis

The harm analysis that we apply in this case is dependent on whether appellant properly objected to the jury charge. Appellant lodged the following objection to the inclusion of this particular statement:

Your Honor, just for record purposes, the Defense would object to the inclusion of the last sentence of Paragraph XV as surplusage in the charge.
And my understanding is that came from case law and not statute, so we would object accordingly to that being included in the Court’s charge.

(emphasis added). We disagree with the State that this objection was not sufficient. Because appellant timely objected to the erroneous portion of the jury charge we will review the record for “some” harm. See Dickey, 22 S.W.3d at 492; Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171. In performing a harm analysis, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

1. Venue was challenged.

Because venue is presumed if not challenged, our harm analysis begins with the question of whether venue was challenged. Tex.R.App. P. 44.2(c)(1). Appellant has not challenged the trial court’s jurisdiction to prosecute this case, and instead asserts that venue was a contested issue and the State failed to establish venue in Smith County.

The record shows that appellant only challenged venue on the offense of engaging in organized criminal activity. Cf. Holdridge v. State, 707 S.W.2d 18, 20-21 (Tex.Crim.App.1986) (en banc) (per curiam). Appellant did not file any pre-trial motions disputing venue, and disputed venue only for the organized criminal activity charge by orally moving for a directed verdict as follows:

Specifically with regard to cause number 241-1431-07 [organized criminal activity count], the Defense would move for an instructed verdict on the issue of the engaging in the organized criminal activity case, because the State ... failed to prove that [appellant] had any sort of intent to establish, maintain, or participate in a combination or in the profits of a combination of any type anywhere in Smith County.... Therefore we’d move for an instructed verdict on that cause as to that element of venue and profit.

Appellant failed to challenge venue as to the other two crimes. Unless disputed in the trial court or unless the record affirmatively shows the contrary, we must presume that venue was proven in the trial court. Tex.R.App. P. 44.2(c)(1). Because the record does not affirmatively show that venue was inappropriate in Smith County, we must presume that venue was established for the two counts of sexual performance of a child. Id.

2. The remainder of the jury charge was correct.

We next consider the entire jury charge. The erroneous instruction appears at the end of the venue section of the charge as follows:

The indictment or information, or any-pleading in the case, may allege that the offense was committed in the county were the prosecution is carried on. To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue. Proof of venue must be demonstrated by either direct or circumstantial evidence. “Venue,” as applied to criminal cases, means the place in which the prosecution is to begin.
When conduct constituting a single offense is committed in more than one county, venue is proper in any of those counties.
Preponderance of the evidence means the greater weight and degree of credible evidence.
Venue is not a constituent element of the offense charged, and the failure to prove venue does not negate the guilt of the accused.

With the exception of the last sentence, these venue instructions are appropriate for a jury charge. See Tex.Code Crim. Proc. Ann. arts. 13.17,13.18 (Vernon 2005); Soliz v. State, 97 S.W.3d 137, 141 (Tex.Crim.App.2003) (defining venue as “the county or district in which a court with jurisdiction may hear and determine a case”); Thompson v. State, 244 S.W.3d 357, 362 (Tex.App.-Tyler 2006, pet. dism’d) (explaining that the State is required to prove venue by a preponderance of either direct or circumstantial evidence). The jury also was properly instructed that engaging in organized criminal activity may be prosecuted in any county in which acts committed to effect the purpose of the combination occur. See Tex.Code Crim. ProC. Ann. art. 13.21.

The jury charge on venue was confusing, containing the correct burden of proof for venue but also seeming to take it away in the last sentence of the venue instructions. See Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998) (en banc) (analyzing a jury charge in which the burden of proof was improperly stated in one location, while in seven other locations it was stated correctly.) But the charge also correctly instructed the jury on the burden of proof for the crime itself as follows:

And if you further find from the evidence beyond a reasonable doubt that in Smith County, Texas, the [appellant], did then and there commit said offense with the intent to establish, maintain, or participate in a combination or in the profits of a combination who collaborated in carrying on said criminal activity; then you will find the [appellant], guilty of Engaging in Organized Criminal Activity.

3. There is sufficient evidence of venue.

We next consider the evidence of venue. It was undisputed that the “swingers” club was in Wood County and the children lived in Smith County. Texas Ranger Phillip Kemp, the investigating officer, explained the “nexus” between Smith and Wood Counties in this case:

Q: Through the course of your investigation, was it determined whether or not there was a nexus between Smith County and Wood County? A: Yes, there was.
Q: What was that nexus?
A: The training that was done to teach them how to dance or, as they said, dance sexy, how to strip, how to have sex, and the drugs that were purchased to give to the kids when they did this, was all done in Smith County.

Additionally, Shannon testified that she attended “kindergarten” at appellant’s residence, which was located in Smith County. In a video interview of Shannon and Holden conducted by Kemp, Holden explained that “nasty things” happened at his house and that he had to “practice” the things he learned at “kindergarten” at his house. It is undisputed that his house, appellant’s residence, was in Smith County. Thus, there is more than sufficient evidence to support venue in Smith County because the record reflects that at least one of the acts — the “grooming” of the children at “kindergarten” — effecting an objective of the organized criminal activity occurred in Smith County. See Tex.Code CRiM. Proc. Ann. art. 13.21; see also Murphy v. State, 112 S.W.Sd 592, 605 (Tex.Crim.App.2003) (en banc) (“Venue will stand if it is sufficient under any one of the venue provisions the jury was instructed upon.”).

4. Arguments of counsel on venue were proper.

Finally we consider the arguments of counsel. During closing argument, the State emphasized that the children against whom these offenses were committed lived in Smith County and that the offenses against them started in Smith County:

Why are we here in Smith County? I’ll tell you why we’re here in Smith County. These are our kids. This happened and begins in Smith County.
The engaging in organized criminal activity begins in Smith County. The kindergarten in Smith County; [the appellant and other defendants] in Smith County.
And our kids in Smith County are being groomed for the sole purpose to go dance naked in this building so they could make money. Every single time those kids got in the car here in Tyler to drive to that place, this offense occurred in Smith County. And it didn’t end until they got home back in Smith County. Please, please, please, please do not go in there, throw up your hands and say, “Well, the sex club is in Mineóla. We’ll let them deal with it.”
Can you imagine that ride from here in Tyler to Mineóla at the age of six, seven, knowing — knowing there would be a room full of people that were going to pay to watch you have sex with your sister, going to pay to watch you have sex with your brother, going to pay to watch you take all of your little clothes off?

Appellant did not object to any of this argument, and her trial counsel did not discuss venue at all during closing argument. Nothing in the State’s closing argument suggests that the jury should disregard venue when reaching its verdict.

5. No actual harm was shown.

Appellant contested venue on only one of the three offenses; the greater part of the jury charge correctly instructed the jury on venue; the record contains sufficient evidence to support venue in Smith County; and the State did not argue that the jury should disregard venue in determining appellant’s guilt. Considering the state of the record as a whole, including the entirety of the jury charge and the evidence of venue, we cannot say that appellant suffered some actual harm by the single improper sentence regarding venue included in the jury charge. Cf. Dickey, 22 S.W.3d at 493 (concluding that no actual harm from the erroneous jury charge was shown). We therefore overrule appellant’s second issue.

C. Cumulation of Sentences

In her third issue, appellant asserts the trial court erred in ordering her three sentences to run consecutively. When a defendant is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal trial, as occurred here, the sentences pronounced “shall” run concurrently, except for certain enumerated offenses. See Tex. Penal Code § 3.03(a), (b) (Vernon Supp. 2009). Sexual performance of a child is an enumerated offense that may be ordered to run consecutively. Id. § 3.03(b)(2)(A). Appellant’s two twenty-year sentences for sexual performance of a child therefore may run consecutively to each other. See id.

However, Texas Penal Code section 3.03 unambiguously provides that only offenses specifically enumerated in subsection (b) may be ordered to run consecutively. Parfait v. State, 120 S.W.3d 348, 350 (Tex.Crim.App.2003). Organized criminal activity is not one of the enumerated offenses included in subsection (b). See Tex. Penal Code § 3.03(b). Thus, the trial court erred in ordering appellant’s sentence for organized criminal activity to run consecutively to her two sentences for sexual performance of a child. Cf. Parfait, 120 S.W.3d at 350-51. We therefore sustain her third issue.

III. Conclusion

Because the trial court erred in instructing the jury that failure to prove venue does not negate the guilt of the accused, we sustain appellant’s first issue, but because that error was harmless, we overrule her second issue. We further conclude that the trial court erred in ordering appellant’s sentences for her three convictions to run consecutively; thus, we sustain her third issue and modify the judgment to reflect that appellant’s life sentence for engaging in organized criminal activity shall run concurrently with her two consecutive twenty-year sentences for sexual performance of a child. We affirm the trial court’s judgment as modified.

      . See Pittman v. State, 321 S.W.3d 565 (Tex.App.-Houston [14 Dist.] 2010), tried in March 2008; Kelly v. State, 321 S.W.3d 583 (Tex.App.-Houston [14 Dist.] 2010), tried in August 2008. All three appeals were transferred to this court.

      . We have employed pseudonyms for the children to protect their identities.

      .There was some testimony that some of the "kindergarten” classes may have occurred at the residence of an individual identified as "Booger Red,” but the location of this residence was not established in the record.

      . Appeals involving two other defendants in this alleged “sex ring" were filed subsequent to this appeal. See Pittman v. State, 321 S.W.3d 565; Kelly v. State, 321 S.W.3d 583. In these subsequently-filed appeals, the appellants allege violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Surprisingly, Smith County’s neighboring county, Wood County, filed an amicus brief through its district attorney's office which appears to support some claims of the other defendants. Appellant moved to consolidate the appeals so that we could consider the Brady issues in her case. That motion was denied. Appellant made no Brady complaint in this case. Her only review of this issue would be through a habeas corpus proceeding. For a further discussion of the alleged Brady issues, see Pittman, 321 S.W.3d at 570-72 (Tex.App.-Houston [14th Dist.] 2010).

      . Venue is not the same as jurisdiction: jurisdiction is the power of a court to hear and try a case, while venue is simply the place where a case may be tried. See State v. Blankenship, 170 S.W.3d 676, 681 (Tex.App.-Austin 2005, pet. ref'd).

      . There is no specific venue provision for sexual performance of a child; thus the general venue statute providing that “the proper county for the prosecution of offenses is that in which the offense was committed” applies. Tex.Code Crim. Proc. Ann art. 13.18.