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March 5, 2026 Get Citation Alerts Download PDF Add Note

Pascual Alfonse Torres v. the State of Texas

Texas Court of Appeals, 10th District (Waco)

• Citations: None known
• Docket Number: 10-23-00382-CR
• Nature of Suit: Aggravated Sexual Assault

• Disposition: Affirmed

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Affirmed

Lead Opinion

Court of Appeals
Tenth Appellate District of Texas

10-23-00382-CR

Pascual Alfonse Torres,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
54th District Court of McLennan County, Texas
Judge Susan N. Kelly, presiding
Trial Court Cause No. 2018-1534-C2

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Following a jury trial, Pascual Alfonse Torres was convicted of one count

of aggravated sexual assault of a child and one count of indecency with a child.

See TEX. PENAL CODE ANN. §§ 21.11, 22.021. The jury assessed his punishment

at seven years in prison and at six years in prison, respectively. In his sole

issue on appeal, Torres claims that the trial court abused its discretion by

admitting extraneous-offense testimony because the probative value was
substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID.

1. We affirm.

WAIVER OF APPELLATE REVIEW

An appellant waives an issue on appeal if he does not adequately brief

that issue by not providing supporting arguments, substantive analysis, and

appropriate citations to authorities and to the record. See TEX. R. APP. P.

38.1(i); Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011).

Erroneous admission of evidence over a Rule 403 objection is nonconstitutional

error subject to a harm analysis under Rule 44.2(b). Perez v. State, 562 S.W.3d

676, 691 (Tex. App.—Fort Worth 2018, pet. ref’d).

Although Torres performed an error analysis in his brief, he did not

address the question of whether the alleged error in admitting the complained-

of evidence was harmful. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim.

App. 2000) (holding an issue was inadequately briefed where “appellant d[id]

not address the question of whether the alleged error … was harmless”).

Construing his brief liberally, the only potential statement regarding harm is

where Torres “asserts that the facts of eight extraneous offenses for which the

State spends approximately 90% of its case in chief before the charged offenses

are even discussed is unfairly prejudicial and should be considered as such ipso

facto.”

Pascual Alfonse Torres v. The State of Texas Page 2
Because Torres’s brief contains no argument, discussion, substantive

analysis, or citation to authorities to show that he was harmed by the trial

court’s purported erroneous admission of the evidence, he has waived his sole

issue presented on appeal. Even so, in the interest of justice, we will consider

the merits of his complaint.

ERROR ANALYSIS

We review a trial court’s admission of extraneous-offense evidence for an

abuse of discretion. Gonzales v. State, 544 S.W.3d 363, 370 (Tex. Crim. App.

2018). Section 1(b) of article 38.37 of the Code of Criminal Procedure states:

(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense
shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child;
and
(2) the previous and subsequent relationship between
the defendant and the child.

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b). That evidence may, however,

still be excluded under Rule 403 if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.1 TEX. R. EVID. 403; Walker v. State, 4 S.W.3d 98, 102-03

(Tex. App.—Waco 1999, pet. ref’d). Rule 403 favors the admissibility of

1 A Rule 403 balancing test also contemplates the danger of undue delay or needlessly presenting

cumulative evidence; however, Torres does not contend that either of these factors are at issue.

Pascual Alfonse Torres v. The State of Texas Page 3
relevant evidence and it is presumed that relevant evidence will be more

probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.

Crim. App. 1990) (op. on reh’g). In reviewing a Rule 403 challenge on appeal,

we consider the following non-exclusive factors: (1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational yet indelible

way; (3) the time needed to develop the evidence; and (4) the proponent’s need

for the evidence. Perkins v. State, 664 S.W.3d 209, 216 (Tex. Crim. App. 2022).

The indictment charged Torres with causing the complainant’s sexual

organ to contact his sexual organ and causing the complainant to touch his

genitals when Torres was at least 17 years of age. Torres is approximately six

years older than the complainant. In a hearing outside the jury’s presence, the

State proffered the complainant’s testimony about several instances of

extraneous sexual conduct allegedly committed by Torres when he and the

complainant were both juveniles. See TEX. CODE CRIM. PROC. ANN. art. 38.37,

§ 1. The complainant testified that she was approximately five or six years old

and Torres was approximately eleven or twelve years old when the extraneous

sexual conduct began, which included several instances of Torres touching the

complainant’s breasts and genitals and causing her to touch his genitals. The

trial court, finding that the probative value clearly outweighed any prejudicial

Pascual Alfonse Torres v. The State of Texas Page 4
effect, overruled Torres’s Rule 403 objection to the testimony and granted a

running objection.

The complainant testified in front of the jury about the extraneous

sexual conduct and the two charged offenses. Torres testified in his own

defense at trial and admitted to some, but not all, of the extraneous conduct.

He claimed that the last incident of sexual activity he engaged in with the

complainant occurred when he was eleven years old.

On appeal, Torres concedes that the first two factors weigh in favor of

admissibility. We agree. The complained-of evidence involves multiple

instances over the course of several years of Torres touching the complainant’s

breasts and vagina and causing the complainant to touch his penis. This

evidence is highly probative, as these instances are similar to the charged

conduct, are not remote in time, and are indicative of Torres’s intent and

propensity to commit sexual assaults against children. See Price v. State, 594

S.W.3d 674, 680 (Tex. App.—Texarkana 2019, no pet.). As contemplated by

the statute, these instances are also relevant to show Torres’s state of mind

and his previous and subsequent relationship with this specific complainant.

See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1.

Further, the potential to impress the jury in some irrational yet indelible

way was minimized by the use of a limiting instruction in the jury charge. See

Pascual Alfonse Torres v. The State of Texas Page 5
McGregor v. State, 394 S.W.3d 90, 120-21 (Tex. App.—Houston [1st Dist.] 2012,

pet. ref’d). The limiting instruction admonished the jury about the purpose

and scope for which they could consider the extraneous evidence. Additionally,

during closing argument, the State emphasized that Torres was charged only

with offenses that occurred when he was an adult, and that the jury was only

permitted to consider the juvenile extraneous-offense evidence “in deciding if

the Defendant is guilty for his actions that he committed when he was 17.” To

further avoid confusion, the State identified exactly which two instances of

sexual conduct the jury should rely upon to find Torres guilty in each count,

both of which would have occurred when Torres was at least 17 years old.

We also find that the State had a considerable need for the evidence.

This case was a “he said, she said” case, “unaided by any physical, scientific,

or other corroborative evidence.” Hammer v. State, 296 S.W.3d 555, 561-62

(Tex. Crim. App. 2009). Torres relied upon a defensive theory of fabrication,

specifically claiming that the complainant may have been lying about sexual

activity that occurred when he was an adult in order to get revenge for what

he did to her when he was a juvenile. As such, witness credibility was a central

issue at trial. In such cases, Rule 403 should be used sparingly to exclude

relevant, otherwise admissible evidence that might bear upon the credibility

of either the defendant or the complainant. See id.

Pascual Alfonse Torres v. The State of Texas Page 6
Finally, as to the third factor, Torres contends that the State spent

approximately 90% of its case developing the extraneous-offense testimony.

The State disputes this calculation, noting that Torres limited his evaluation

of the record solely to the complainant’s testimony, rather than considering the

total amount of testimony in front of the jury during the guilt-innocence phase.

As a result, the State contends that Torres’s computation is greatly inflated.

Even assuming that this factor weighs in favor of exclusion, in our review of

the record, the time spent developing the extraneous-offense evidence is not so

substantial as to outweigh the other three factors we have considered.

A “clear disparity” between the degree of prejudice of the complained-of

testimony and its probative value does not exist. See Hammer, 296 S.W.3d at

568. We therefore find that the trial court did not abuse its discretion by

admitting the extraneous-offense evidence over Torres’s objection under Rule

1. Accordingly, Torres’s sole issue on appeal is overruled. We affirm the

judgments of the trial court.

STEVE SMITH
Justice

Pascual Alfonse Torres v. The State of Texas Page 7
OPINION DELIVERED and FILED: March 5, 2026
Before Justice Smith,
Justice Harris, and
Senior Chief Justice Rose2
Affirmed
Do not publish
CR25

2 The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of Appeals, sitting by

assignment of the Chief Justice of the Supreme Court of Texas.

Pascual Alfonse Torres v. The State of Texas Page 8