Background
A jury convicted Gerardo A. Cerda of continuous sexual abuse of a young child and sentenced him to life imprisonment. The complainant, A.S., testified that Cerda, who was married to her paternal grandmother, began touching her genitals when she was about six and continued until she was about ten.
The State also presented testimony from E.S., A.S.’s cousin and another of Cerda’s step-granddaughters. E.S. testified that Cerda put his hand inside her underwear and touched her vagina when she was about five. Cerda denied touching either girl and argued that the allegations arose after he asked his wife for a divorce.
On appeal, Cerda argued that admitting E.S.’s testimony over his Texas Rule of Evidence 403 objection was an abuse of discretion. He also challenged a $25 County Specialty Court Account cost and the amount of a $10 Courthouse Security Fee.
The Court’s Holding
The Tenth Court of Appeals held that the trial court acted within the zone of reasonable disagreement by admitting E.S.’s testimony. Her account was highly probative because the prosecution largely turned on A.S.’s credibility, and the two accounts shared significant features, including the victims’ family relationships to Cerda, their young ages, the setting, the time period, and the method of touching. The court concluded that the risks of unfair prejudice, confusion, undue weight, delay, and cumulative evidence were slight and did not substantially outweigh the testimony’s probative value.
The court agreed with both parties that the challenged costs were not fully authorized under the law applicable when the offense was committed. It deleted the $25 County Specialty Court Account cost because that cost did not become effective until 2020, and it reduced the Courthouse Security Fee from $10 to the then-authorized amount of $5.
The court modified the trial court’s judgment to correct the costs and affirmed the judgment as modified.
Key Takeaways
- Extraneous evidence of a separate sexual offense against a child remains subject to Rule 403 even when admissible under Texas Code of Criminal Procedure article 38.37.
- In a credibility-driven child-sexual-abuse prosecution, similar firsthand allegations by another child may carry substantial probative value despite their inherently inflammatory nature.
- Court costs must be authorized by the statutes applicable when the offense was committed; unauthorized or excessive costs may be corrected on appeal.
Why It Matters
The opinion illustrates how Texas courts balance propensity evidence in child-sexual-abuse cases. Similarity between the charged and extraneous conduct, the State’s need for corroborating evidence, limiting instructions, and the amount of trial time devoted to the extraneous allegation all bear on the Rule 403 analysis.
It also confirms that appellate courts may modify a criminal judgment when later-enacted or excessive court costs were assessed without statutory authority.