DIANE DEVASTO, Justice.
In this case involving allegations of sexual misconduct, William Olivarez, Jr. appeals a judgment entered after a jury verdict awarding Jane Doe compensatory damages and exemplary damages. In ten issues, Olivarez challenges the legal sufficiency of the evidence and contends that the trial court erred by admitting evidence of extraneous conduct and denying his motion for new trial. We affirm.
BACKGROUND
Jane Doe sued a relative, William Olivarez, Jr., for damages resulting from various alleged acts of sexual misconduct that occurred between June of 1990 and late 1994.
At a jury trial, Jane testified that when she was about eight or nine years old, Olivarez began sexually abusing her. She stated that (1) on a trip in Olivarez's purple/maroon car for ice cream, Olivarez forced Jane's hand onto his penis; (2) on another trip to play tennis, he forced her hand to massage him and her hand became "really sticky"; and (3) during another incident, Olivarez pushed her over a dresser on the second floor of her grandparents' home resulting in her "feeling hurt" in her rectal area.
Olivarez and his family were living with his parents at the time of the third assault.
According to Jane, Olivarez showed her parts of the Bible to prove that what they were doing was "all right." He told her that if she ever told anyone what was happening, she would be taken away from her parents and put in a foster home.
Olivarez served as a youth minister at a church in Lindale. While serving as youth minister, he met two young men at the church, C.B. and B.H. Over Olivarez's objection, they testified about several instances of inappropriate conduct by Olivarez in 1995 and 1996.
Jane's aunt and grandmother testified regarding an incident when they found Olivarez in a dark bedroom with the door closed. Each testified that Olivarez was in his underwear at the bedside of B.H., who was in the bed under the covers.
At the conclusion of the evidence, the trial court charged the jury on assault, indecency with a child, aggravated sexual assault, and damages. The jury awarded Jane $210,000.00 as compensatory damages and $10,000.00 as exemplary damages. This appeal followed.
There was a separate trial two months earlier involving another child, John Doe, II. The jury in that case found that Olivarez attempted indecency with a child, but awarded no money damages.
EXTRANEOUS OFFENSES
In his first and third issues, Olivarez alleges that the trial court erred by allowing the introduction of evidence about his sexual misconduct with C.B. and B.H. He asserts in his fifth and seventh issues that the trial court erred in admitting the testimonies of Jane's aunt and grandmother.
Olivarez contends in his ninth issue that the trial court erred in admitting the written statement that Jane gave to law enforcement on March 21, 2000 because the statement contained references to other acts of sexual misconduct by Olivarez against Jane. Olivarez contends that the extraneous incidents in the written statement were not admissible as to a limited "intent" purpose and supplied only character conformity evidence in violation of Rule 404(a) of the Texas Rules of Evidence. Olivarez argues that in addition, the probative value of the complained of evidence was substantially outweighed by its unfairly prejudicial nature and that by the inflammatory nature of the evidence, it caused the rendition of an improper judgment.
Olivarez contends that this evidence unduly prejudiced the jury and resulted in the rendition of an improper verdict. In his second, fourth, sixth, and eighth issues, Olivarez contends that the trial court erred in failing to grant his motion for new trial based upon the complained-of extraneous conduct testimony. Jane argues that the evidence is admissible and relevant and that its probative value is not outweighed by any prejudicial effect. Therefore, the trial court did not err in failing to grant Olivarez a new trial.
Standard of Review
The admission or exclusion of evidence is a matter within the discretion of the trial court. Owens-Corning Fiberglass Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). The trial court abuses its discretion when it acts in an unreasonable or arbitrary manner, or acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller , 806 S.W.2d 223, 226 (Tex. 1991). To obtain a reversal based on a trial court's error in the admission or exclusion of evidence, an appellant must demonstrate that the ruling was error and that the error was calculated to cause and probably did cause the rendition of an improper judgment. TEX. R. APP. P. 44.1; Malone , 972 S.W.2d at 43. An appellate court must review the entire record when making this determination. Interstate Northborough Partnership v. State , 66 S.W.3d 213, 220 (Tex. 2001). Reversible error does not usually occur in connection with rulings or questions of evidence unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Id. Applicable Rules of Evidence
As a general rule, evidence of extraneous offenses or acts is not admissible to prove action in conformity therewith on a particular occasion. TEX. R. EVID. 404(a). Evidence of other crimes, wrongs, or acts may be admissible if the evidence has relevancy apart from its tendency to prove character conformity. Montgomery v. State , 810 S.W.2d 372, 387 (Tex.Crim.App. 1990). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. CIV. EVID. 402. Thus, evidence of other crimes, wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b). However, even relevant evidence may be excluded it "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." TEX. R. EVID. 403; Montgomery , 810 S.W.2d at 387. To reverse, we must also find that any error in admitting the evidence probably caused rendition of an improper judgment or prevented proper presentation of the error to this Court. See TEX. R. APP. P. 44.1(a).
The objection was raised by Olivarez's trial counsel prior to the presentation of evidence of the extraneous conduct.
The trial court's ruling on these matters was:
THE COURT: I think intent is an issue here. I understand the defendant's position is this is something that never happened as opposed to something that happened but it wasn't intentional. The Court still sees intent as an issue since there are intentional claims here. I think the weight of civil case authority says let it in and so I'm going to have to deny the motion to exclude and I'm going to have to allow it in.
The Evidence
C.B. spent the night at Olivarez's home after a church meeting. C.B. testified that he woke up during the night to find that Olivarez had his head below C.B.'s waist and was rubbing C.B.'s penis. C.B. rolled away from Olivarez, telling him to leave him alone. Olivarez pulled C.B. back towards him and C.B. then stood by the bed. Olivarez tried to get him into the bed by telling C.B. he would give him a massage. C.B. refused to get into the bed, and Olivarez finally went back to his room.
Another incident occurred when Olivarez offered a massage to B.H.C.B. testified that he heard the exchange between Olivarez and B.H. at a football game after church. Olivarez tried to give B.H. a massage after B.H. told him that he did not want one. B.H. was "loud and mad" about what Olivarez said to him. B.H. then pushed Olivarez to the ground.
C.B. also testified that on another occasion, he, B.H., and Olivarez were traveling in Olivarez's car, and B.H. was standing with his head out of the sunroof. C.B. saw Olivarez grab B.H. between the inside of his knee and his mid-thigh and begin rubbing up and down. B.H. told him to stop and pushed him away.
B.H. testified that he met Olivarez through church activities and spent the night at his house many times. When he spent the night, Olivarez would often sleep in the same bed with B.H. while Olivarez's wife and young son were asleep in another room. B.H. always slept in the same room as Olivarez. B.H. stated that Olivarez would tickle him, wrestle with him, and then read the Bible. During one bout of wrestling, Olivarez's hand touched B.H.'s bottom, and B.H. responded, "Not like that." Another time, Olivarez massaged B.H.'s back after a football game and rubbed B.H.'s stomach "a little low." B.H. once again told him to stop. On a church trip to Irving, Texas, Olivarez made it clear to B.H. that he wanted him to stay in his hotel room. B.H. refused to stay with Olivarez. B.H. testified that he did not recall Olivarez rubbing his leg while he was standing the car. B.H. also testified that Olivarez bought gifts for him such as clothes and shoes.
Jane's aunt and grandmother provided gave similar accounts of an event that occurred at the home of Olivarez's father, Willy Olivarez ("Willy"). The two women testified that one morning about 12:30 or 1:00, they went by to see Willy's house. During the tour, they attempted to enter the guest room, but the door would not open. When Willy finally got the door open, the room was dark. Olivarez and B.H. were in the room. Olivarez was in his underwear, and B.H. was in the bed under the covers. Olivarez seemed startled and said, "Dad, don't turn on the light." He then told Willy that they needed to leave because he was "in the middle of counseling."
Olivarez testified that he often slept alone with the children when they spent the night at his home. During these times, his wife and son were in another bedroom. He stated that he had no sexual contact with the children and that the contact with them was playful tickling and wrestling. He denied having any sexual contact with Jane in his car, in his home, or elsewhere.
Analysis
Olivarez's trial testimony indicated that he had a close relationship with both B.H. and C.B. as a result of his employment at the church. He showed that they were invited guests in his home and made their own decisions about the sleeping arrangements. Olivarez explained that his child was ill and needed medical equipment and slept with Olivarez's wife in their bedroom. Because of this situation, he was left to sleep in the other bedroom with whatever boy might be visiting. The discussion with the boys were about "dating and girls" and often involved late night discussions with tickling and wrestling. He testified that sleeping with B.H. and C.B. was an innocent went after these incidents of talking and playing.
Here, the question is whether the evidence of sexual misconduct against B.H. and C.B. would make it more or less probable that Olivarez abused Jane. The trial court specifically allowed the evidence to show "William Olivarez, Jr.'s intent toward Jane." A limiting instruction containing this language was included in the charge of the court.
Olivarez argues that the complained of extraneous evidence presents no relevant pattern which would show Olivarez's intention toward Jane. Further, the conduct with C.B. and B.H. after the abuse of Jane and the interaction was with males, not females. Other contrasts drawn by Olivarez is that the conduct with the boys was nonthreatening when the contact with Jane was forcible and threatening. Also, he argues that there is no consistency of location in any of the conduct. In addition, the type of sexual gratification also varies in that his contact with Jane is direct gratification where his contact with the boys is playful in nature. In summary, Olivarez contends that the extraneous sexual misconduct evidence — dissimilar in time, location, method and gender target, was of such a nature that it clearly and improperly influenced the jury and caused the rendition of an improper verdict. Olivarez contends that all of the sexual misconduct evidence was nothing more than character conformity evidence in violation of Texas Rule of Evidence 404(a) and should have been excluded by the trial court and complains that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
Evidence is relevant if it has any tendency to make the existence of any determination fact more or less probable than it would otherwise be without the evidence. See TEX. R. EVID. 401. Appellee argues that in this civil action, the jury is making a determination regarding an intentional tort involving the sexual assault of a minor child and that intent is an essential element of Jane's case that she is required to prove. Appellee argues that the evidence was relevant to the determination the jury would make regarding liability.
A court may exclude relevant evidence, if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. "In weighing this prejudice, we must first examine the necessity for and probative effect of the evidence." Schlueter v. Schlueter , 929 S.W.2d 94, 98 (Tex.App. 1996).
The supreme court granted Richard Schlueter's application for writ of error on points of tort litigation in divorce cases and on damages, but did not grant writ of error on the issue of admission of evidence. See Schlueter , 975 S.W.2d 584 (Tex. 1998).
The Appellee states that the evidence was offered to show the intent of Olivarez toward Jane. Jane's testimony was the only testimony besides the extraneous offense testimony concerning C.G. and B.H. that could be used to determine intent. Thus, the necessity for the evidence was significant.
Now we must determine whether the danger of unfair prejudice substantially outweighed the probative value of the testimony. "Unfair prejudice" means [a] decision on an improper basis, commonly, though not necessarily, an emotional one." Fort Worth Hotel, Ltd. v. Enserch, Corp. , 977 S.W.2d 746, 758 (Tex.App.-Fort Worth 1998) (citing Turner v. PV Int'l Corp. , 765 S.W.2d 455, 471 (Tex.App. 1988), writ denied per curiam, 778 S.W.2d 865 (1989)). The prejudicial effect would be the negative effect of the testimony on Olivarez's credibility and character. Most jurors would not approve of inappropriate sexual contact with young boys by an adult church leader. Does the testimony concerning the boys inject such dissimilar events into a personal injury case that it is necessarily unfairly prejudicial and lead to a decision on an improper or emotional basis? We conclude that it does not.
The similarity of the allegations are notable. Specifically:
1. All involved minor children.
2. The events with the boys described are within a temporal proximity with the conduct against Jane.
3. Grooming and predator methods are similar in all contacts with the children.
4. Secretiveness and isolation of all the children was consistent.
Based on our review of the record, we conclude that there the evidence was both relevant, necessary and probative. Even if this evidence was improperly admitted, we cannot say that the whole case turned on the evidence or that it controlled the judgment in the case.
Jane's written statement is probative of the intent plan and scheme of Olivarez in reference to her abuse. It speaks of the relationship of the parties and gives times, dates, and descriptions of the sexual abuse. This evidence is fair, not misleading and helpful to the jury in their factual determinations. Even if the court erred in allowing the exhibit, Olivarez has not shown harm. The exhibit was cumulative of other evidence, including the testimony of Olivarez and Jane. Against the overwhelming evidence, Olivarez cannot show as required that the admission of evidence regarding other acts of sexual misconduct contained in Plaintiff's Exhibit #2 probably caused the rendition of an improper judgment. Olivarez's ninth issue is overruled. Since the trial court did not improperly admit the extraneous offense evidence, it therefore did not err in failing to grant Olivarez's motion for new trial.
Standard of Review
The admission or exclusion of evidence is a matter within the discretion of the trial court. Malone , 972 S.W.2d at 43. To obtain a reversal based on a trial court's error in the admission or exclusion of evidence, an appellant must demonstrate that the ruling was error and that the error was calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App.P. 44.1; Malone , 972 S.W.2d at 43. Reversible error does not usually occur in connection with rulings or questions of evidence unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Interstate Northborough Partnership v. State , 66 S.W.3d 213, 220 (Tex. 2001).
We agree with the court's reasoning in McClellan v. Benson , 877 S.W.2d 454 (Tex.App. 1994, no writ) as persuasive. In McClellan , the court reviewed a challenge that the court reviewed a challenge that the trial court abused its discretion by admitting evidence of an extraneous act over the appellant's Rule 403 objection. Id. at 456, 458. The court in McClellan , reviewed the challenge using the criteria set out in the criminal case of Montgomery v. State , 810 S.W.2d 372, 392-93 (Tex.Crim.App. 1990) (on reh'g.). In doing so, the court held the following are the relevant criteria in determining whether the evidence's probative value exceeds its prejudicial value:
1. the opposing side must seriously contest the ultimate issue for which the evidence is being offered;
2 . . . [the proponent] must have a compelling need for the evidence to establish the ultimate issue to which the extraneous misconduct was relevant;
3. The probative value of the extraneous misconduct, alone or in combination with other evidence, must be particularly compelling; and
4. The misconduct must be of such a nature that a jury instruction to use it only for its proffered purpose could likely be effective.
Montgomery ,
810 S.W.2d at 392-93. Olivarez's issues one through nine are overruled.
SUFFICIENCY OF EVIDENCE TO SUPPORT THE VERDICT
In his tenth issue, Olivarez contends that in the absence of the extraneous conduct, the evidence is legally insufficient to support the verdict. Olivarez agrees that Jane's testimony was effectively and repeatedly impeached with regard to her testimony before the jury. Appellee states that this evidence presents nothing more than a conflict in positions for the factfinder to resolve.
Standard of Review
In reviewing a legal sufficiency challenge where the complaining party on appeal did not bear the burden of proof at trial, we analyze the issue as a "no-evidence" challenge. Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983). In our review, we consider the evidence in a light that tends to support the jury's finding and disregard all evidence and inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez , 81 S.W.3d 269, 274 (Tex. 2002). If there is more than a scintilla of evidence to support the finding, the legal insufficiency fails. Formosa Plastics v. Presidio Engineers , 960 S.W.2d 41, 48 (Tex. 1998). More than a scintilla exists when the evidence "rises to a level that would enable reasonable and fairminded people to differ in their conclusions." Transp. Ins. Co. v. Moriel , 879 S.W.2d 10, 25 (Tex. 1994).
In conducting a review for legal sufficiency, we consider the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inference to the contrary. Lee Lewis Const., Inc. v. Harrison , 70 S.W.3d 778, 782 (Tex. 2001); Bradford v. Venton , 48 S.W.3d 749, 754 (Tex. 2001).
If there is no evidence to support the finding, we must then examine the entire record to determine if a contrary proposition is established as a matter of law. Holley v. Watts , 629 S.W.2d 694, 696 (Tex. 1982); Raw Hide Oil Gas, Inc. v. Maxus Exploration , 766 S.W.2d 264, 276 (Tex.App. 1988, writ denied).
Sufficiency of the evidence must be examined in view of questions and instructions submitted in the jury charge. Larson v. Cook Consultants, Inc. , 690 S.W.2d 567, 568 (Tex. 1985).
Olivarez relies exclusively on the reasoning in Transportation Insurance Company , for support of his position that the evidence produced at trial was too inconsistent to be of sufficient probative force. In summary, Olivarez attacks the whole of the jury's verdict, including the finding of assault. He claims that if the "extraneous offenses" are not considered, then there is legally insufficient evidence to support the verdict. Olivarez also points to various inconsistencies in Jane's testimony regarding the time and place of her sexual abuse. He suggests that Olivarez did not own the purple/maroon vehicle at the time of the trip to get ice cream nor did the Olivarezes have the bedroom addition completed on their house where Jane said the anal assault occurred.
The jury charge asked the jury questions regarding assault, indecency with a child and aggravated sexual assault of a child. The jury answered "yes" to each question as it related to the commission of those acts by Olivarez against Jane.
Jane's testimony with regard to these matters was as follows:
We were going over there to go get the ice cream and for some reason he decided to go take a back road. And I remember that there was a white fence and a pasture around the side. He stopped and grabbed my hand and he decided to move it up and down but I don't remember exactly if it was on top of his clothes or on the penis, as you were hearing earlier.
He (Appellant) stopped by the side of the road before we got to the tennis courts and once again he asked me to massage him and I really didn't want to but he forced my hand and I stayed looking out the window. And I remember my hand being really sticky and the next thing I know we are playing tennis. . . .
I remember him asking to show me something close to the dresser and right by the dresser. The dresser is here against the wall. There's a bed there. There's a door and another door that leads to the bathroom. And I was looking — I don't know what I remember looking at but all of a sudden I remember being pushed over to bend over the dresser. I remember feeling hurt in my rectal area and then the next thing I know I was doing homework. That's it.
Our review of the record indicates more than a scintilla of evidence exists to support the finding of "yes" to each of the issues submitted to the jury.
Prior to each question in the jury charge, the following instruction preceded the definitions:
"The law forbids (sexual assault, indecency with a child, aggravated sexual assault, respectfully). A failure to comply with this law is negligence in itself." Negligence in the charge to the jury was defined as a "failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Our review of the record does not indicate an objection by Olivarez to the instructions given to the jury. As the jury was properly instructed, a finding of any liability was based on a finding by a preponderance of the evidence that Olivarez committed the act or acts in question. Our review of the entire record in this case supports the verdict and judgment rendered by the trial court. Olivarez's issue ten is overruled.
CONCLUSION
Having overruled all of Appellant's issues in this case, we affirm the judgment of the trial court.
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.