MEMORANDUM OPINION

No. 04-24-00718-CR

Elvis MACK, Appellant v. The STATE of Texas, Appellee

From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2023CR4523 Honorable Ron Rangel, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Lori Massey Brissette, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice

Delivered and Filed: May 13, 2026

AFFIRMED

Following a jury trial, appellant Elvis Mack was convicted of two counts of aggravated

sexual assault of a child pursuant to Texas Penal Code section 22.021(a)(2)(B) and one count of attempted indecency with a child pursuant to Texas Penal Code section 21.11(a)(2). See TEX. PEN.

CODE §§ 22.021(a)(2)(B), 21.11(a)(2). On appeal, Mack first argues the evidence presented at trial is insufficient to support his conviction for both counts of aggravated sexual assault of a child. He further argues the trial court erred in admitting improper extraneous offense testimony, denying

04-24-00718-CR his motion to suppress his oral non-custodial statement, admitting improper portions of his interview video, and failing to provide an adequate jury instruction limiting the jury’s consideration of extraneous offense testimony. After reviewing the record and the parties’ briefing, we affirm.

BACKGROUND

Mack was in a relationship with a woman, A.R., for ten years. During that relationship, A.R. adopted two minor girls, L.R. and Y.R. Mack and A.R. lived together with the two girls. ^[1]

After Mack and A.R.’s relationship ended, L.R. made an outcry of sexual abuse to A.R., which was followed by Y.R.’s outcry. A grand jury subsequently returned an indictment against Mack for two counts of aggravated sexual assault of a child and one count of attempted indecency of a child.

Prior to trial, a hearing was held on Mack’s motion to suppress his oral statement made during a non-custodial interrogation. The trial court denied Mack’s motion to suppress, finding

Mack’s statement was voluntary. Mack also requested the redaction of three portions of the interview recording in which, according to Mack, the detective “bolstered” the child victims’ allegations. The trial court denied all but one of Mack’s requested redactions.

The jury found Mack guilty of two counts of aggravated sexual assault of a child (Counts

1 and 2) and one count of attempted indecency with a child (Count 3). The trial court sentenced

Mack to 30 years on Counts 1 and 2 and 10 years on Count 3, to run concurrently. Mack timely appealed.

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SUFFICIENCY OF THE EVIDENCE

First, Mack argues the evidence is insufficient to prove him guilty of the two counts of aggravated sexual assault of a child, solely on the basis that there was insufficient evidence identifying Mack as the perpetrator.

A. Standard of Review & Applicable Law

In reviewing the sufficiency of the evidence, we must consider all admitted evidence in the light most favorable to the verdict. Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App.

2021). “Evidence is sufficient to support a criminal conviction if a rational jury could find each

essential element of the offense beyond a reasonable doubt.” Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The evidence is insufficient only if: “(1) the record contains no evidence probative of an element of the offense;

(2) the record contains a mere ‘modicum’ of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; or (4) the acts alleged do not constitute the criminal offense charged.” Brown v. State, 498 S.W.3d 666, 670 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d) (quoting Gonzalez v. State, 337 S.W.3d 473, 479 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d)). Appellate courts “must consider the combined and cumulative force of all the evidence” when conducting a sufficiency analysis. Hacker v. State, 389 S.W.3d 860, 873 (Tex.

Crim. App. 2013).

We defer to the jury’s responsibility to resolve conflicts in the testimony, weigh the evidence, and “draw reasonable inferences from basic facts to ultimate facts.” Villa v. State, 514

S.W.3d 227, 232 (Tex. Crim. App. 2017); see Day v. State, 614 S.W.3d 121, 127 (Tex. Crim. App.

2020) (explaining the “jury is the sole judge of the credibility of a witness’s testimony and the weight to assign to that testimony”). The jury is entitled to “believe all, some, or none of a witness’s 04-24-00718-CR testimony.” Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). We may not re-

evaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Edwards v. State, 666 S.W.3d 571, 574 (Tex. Crim. App. 2023); see Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010) (stating reviewing court may not act as “thirteenth juror”). We consider only whether the jury reached a rational decision. Curry v. State, 30 S.W.3d

394, 406 (Tex. Crim. App. 2000).

To Mack’s point, the State must prove that the accused is the person who committed the charged offense beyond reasonable doubt. Bahena v. State, 604 S.W.3d 527, 533 (Tex. App.—

Houston [14th Dist.] 2020, pet. granted) aff’d but criticized on other grounds, 634 S.W.3d 923

(Tex. Crim. App. 2021) (citing Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984)). The State may prove identity through direct or circumstantial evidence, together with all reasonable inferences from that evidence. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018);

see Jones v. State, 458 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (“The State may also establish identity by inferences.”). Further, a child’s uncorroborated testimony is sufficient on its own to support such a conviction. Morganfield v. State, 696 S.W.3d 194, 199 (Tex.

App.—San Antonio 2024, no pet.); TEX. CODE CRIM. PROC. art. 38.07; Wishert v. State, 654

S.W.3d 317, 328 (Tex. App.—Eastland 2022, pet. ref’d).

B. Applicable Facts

As to Count 1, L.R. testified that when she was in the third or fourth grade, she was asleep on the floor of her bedroom when Mack came into the room and pulled down her pants, waking

her up. L.R. testified Mack then laid on top of her, “spread [her legs] open,” and “did a motion of going up and down.” She described feeling Mack’s “penis on [her] vagina” and his “heavy” body on top of hers. She testified she kept her eyes closed throughout the assault. Nevertheless, she 04-24-00718-CR testified that she knew Mack was the perpetrator, stating that she felt his body and his presence and that she recognized him by his “certain smell” and “specific odor.” She testified she smelled

Mack’s breath and smelled his cigarette smoke. L.R. testified that when she “pretended to wake up,” Mack rushed to put her pants on and then left the room. L.R. explained that this “happened multiple times” in the same manner. A.R. also testified that L.R. made an outcry to her in which

L.R. stated that Mack repeatedly came into her room at night, took down both his clothes and L.R.’s clothes, and rubbed his private parts on L.R.’s private parts.

L.R. testified that Count 2 occurred around the same time period, when she and Mack were alone watching a movie on a mattress in the living room of their apartment. L.R. testified that she

fell asleep while Mack was lying next to her and when she awoke, Mack had placed her on top of him and was moving her body up and down. L.R. recalls her clothes remained on while her “vagina touched his penis.” Although she kept her eyes closed due to fright, she testified she knew it was

Mack because of “the odor and that he was the only one next to [her]” prior to the assault. ^[2] For both counts, L.R. explained how she knew Mack was the perpetrator. Finally, when asked to provide an in-court identification of the perpetrator of these assaults, L.R. pointed to and identified

Mack in the courtroom.

C. Analysis

Mack argues the evidence is insufficient to establish he was the perpetrator of the offenses

alleged in Counts 1 and 2 because “L.R. could not give any [visual] observations about the assailant,” and “no physical evidence” linked him to the offenses. But here, L.R.’s unequivocal testimony that she knew Mack was the perpetrator of both offenses is sufficient on its own to support his convictions. See Morganfield, 696 S.W.3d at 199; TEX. CODE CRIM. PROC. art. 38.07; 04-24-00718-CR

Wishert, 654 S.W.3d at 328. Further, Mack fails to account for the combined and cumulative force of all the evidence. See Hacker, 389 S.W.3d at 873. L.R. explained in detail how she knew Mack

was the perpetrator of both counts, specifically referencing his distinctive odor, his breath, and the smell of cigarette smoke on his body. L.R. testified she was assaulted by Mack in the same manner as Count 1 multiple times. And A.R. testified that when L.R. made her outcry, she told A.R. that

Mack had repeatedly assaulted her in this same manner. As to Count 2, L.R. testified Mack was the only other person in the room. Further, L.R. made a formal in-court identification of Mack as the perpetrator of both counts. See Morganfield, 696 S.W.3d at 199.

From this evidence, we conclude a rational juror could reasonably infer from the trial evidence that Mack was the perpetrator of the offenses alleged in Counts 1 and 2. 3 See Curry, 30

S.W.3d at 406. We overrule Mack’s first two issues.

EXTRANEOUS OFFENSE TESTIMONY

In his next two issues, Mack challenges the admission of Y.R.’s testimony relating to an extraneous offense, specifically an instance during which Mack pressed his penis against her vagina while she was lying on the living room couch. First, Mack contends this extraneous offense testimony was inadmissible pursuant to Article 38.37 of the Texas Code of Criminal Procedure

because it was insufficient to prove beyond a reasonable doubt that he committed the act with the “intent to arouse or gratify” his sexual desire, a required finding for the offense of indecency. TEX.

04-24-00718-CR

PEN. CODE § 21.11(c). Second, Mack argues that even if the testimony was admissible under

Article 38.37 it should have been excluded under Rule 403.

A. Standard of Review & Applicable Law

A trial court has broad discretion in determining the admissibility of evidence. Ryder v. State, 514 S.W.3d 391, 398 (Tex. App.—Amarillo 2017) (citing Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007)). We review a trial court’s decision to admit or exclude extraneous

offense evidence under an abuse of discretion standard and will uphold the ruling if it falls within the zone of reasonable disagreement. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

“If the trial court’s decision on the admission of evidence is supported by the record, there is no abuse of discretion, and the trial court will not be reversed.” Marsh v. State, 343 S.W.3d 475, 478

(Tex. App.—Texarkana 2011, pet. ref’d) (citing Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim.

App. 2002)).

In prosecutions for sexual offenses against children, Article 38.37 of the Texas Code of Criminal Procedure permits the State to introduce evidence that a person has committed extraneous sexual offenses against any child victim. TEX. CODE. CRIM. PROC. art. 38.37. Article 38.37, Section

2 provides that notwithstanding Texas Rules of Evidence 404 and 405, evidence that the defendant committed a separate sexual offense against a child may be admitted in trial for an alleged offense

of aggravated sexual assault of a child “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity” therewith. TEX. CODE.

CRIM. PROC. art. 38.37, § 2(b); Colvin v. State, 467 S.W.3d 647, 654 (Tex. App.—Texarkana 2015, pet. ref’d). By putting identity at issue, Mack invited the admission of extraneous offense evidence

to prove a pattern of conduct and the common characteristics of the offenses. See Segundo v. State, 270 S.W.3d 79, 85–86 (Tex. Crim. App. 2008).

04-24-00718-CR

B. Sufficiency of Evidence to Prove Intent to Arouse or Gratify Sexual Desire

Mack argues the trial court abused its discretion in admitting the extraneous offense

testimony under Article 38.37 because the evidence was inadequate to prove Mack committed the extraneous offense of indecency with a child beyond a reasonable doubt, specifically contending that the evidence failed to establish Mack’s intent to arouse or gratify his sexual desire. See TEX.

PEN. CODE § 21.11(c) (requiring proof the defendant acted with intent “to arouse or gratify the sexual desire of any person”). This specific intent may be inferred from circumstantial evidence, “such as acts, words, and the conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex.

Crim. App. 2004).4 A child victim’s uncorroborated testimony alone is sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. art. 38.07; Wishert v. State, 654

S.W.3d 317, 328 (Tex. App.—Eastland 2022, pet. ref’d).

At the Article 38.37 hearing, 5 Y.R. testified that Mack pressed and moved his genital area

against hers, applying pressure, and she testified she could see his “private” through his clothes, suggesting he had an erection. A rational trier of fact could conclude from this victim testimony regarding Mack’s actions that he had the requisite intent to arouse or gratify his sexual desire. See

Guevara, 152 S.W.3d at 50; TEX. CODE CRIM. PROC. art. 38.07; Wishert, 654 S.W.3d at 328.

Accordingly, we conclude that the trial court did not abuse its discretion by admitting the evidence before the jury. 6 See TEX. CODE CRIM. PROC. art. 38.37, § 2-a.; Devoe, 354 S.W.3d at 469.

04-24-00718-CR

C. Admissibility under Rule 403

Even when evidence is admissible under Article 38.37, it may be subject to exclusion under

Texas Rule of Evidence 403. Rule 403 provides: “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.” TEX. R. EVID. 403. But, we are mindful that “[a]ll evidence against a defendant is, by its very nature, designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811

(Tex. Crim. App. 2013). Evidence is “unfairly prejudicial” only when it has an undue tendency to

“tempt the jury into finding guilt on grounds apart from proof of the offense charged.” State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). In reviewing a trial court’s determination under Rule 403, balancing the probative value of the evidence against the likelihood that the jury may be unfairly swayed, confused or misled, we are to “reverse the trial court’s judgment rarely and only after a clear abuse of discretion.” West v. State, 554 S.W.3d 234, 239 (Tex. App.—

Houston [14th Dist.] 2018, no pet.) (quoting Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim.

App. 1999)).

Y.R.’s testimony carried substantial probative value because of its bearing on relevant

matters including Mack’s contention that the evidence was insufficient to identify him as the perpetrator. See TEX. CODE. CRIM. PROC. art. 38.37, § 2(b); Colvin, 467 S.W.3d at 654;

Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006) (stating evidence of multiple

acts, particularly when similar to the charged conduct, strengthens the logical relevance and probative force of the evidence). Here, Y.R.’s testimony evidences a pattern of similar sexual contact with children in the same household during the same time period. Indeed, Y.R.’s testimony describes an offense so distinctively similar as to act as Mack’s signature: pressing his penis 04-24-00718-CR against a minor child’s vagina in the home when no other adults are present. This is substantially probative with regard to the issue of identity. See Segundo, 270 S.W.3d at 85–86.

Furthermore, the record does not demonstrate the likelihood that the evidence of the extraneous offense would have an undue tendency to tempt the jury into finding him guilty of the charged offenses on improper grounds. See Mechler, 153 S.W.3d at 440; Pawlak, 420 S.W.3d at

809. Instead, Y.R.’s testimony “relates directly to the charged offense[s]” and is no more inflammatory than the charged offenses themselves. Mechler, 153 S.W.3d at 440–41; see Chavez v. State, 399 S.W.3d 168, 173 (Tex. App.—San Antonio 2009, no pet.). Nor does the record show

Y.R.’s extraneous offense testimony confused the issues, misled the jury, consumed an inordinate amount of time, or repeated evidence already admitted. See TEX. R. EVID. 403; West, 554 S.W.3d at 241.

On this record, we cannot find the trial court abused its discretion in admitting the extraneous offense testimony. See Gigliobianco, 210 S.W.3d at 641–43; West, 554 S.W.3d at 239.

We therefore overrule Mack’s third and fourth issues.

DENIAL OF MOTION TO SUPPRESS

In his fifth issue, Mack argues the trial court erred in denying his motion to suppress his oral non-custodial statement to law enforcement. Mack contends his alleged intoxication, his diminished mental capacity, and law enforcement’s coercive interrogation techniques rendered his statement involuntary under Article 38.22. See TEX. CODE CRIM. PROC. art. 38.22.

A. Standard of Review & Applicable Law

We review a trial court’s ruling on a motion to suppress under a bifurcated standard.

Monjaras v. State, 664 S.W.3d 921, 926 (Tex. Crim. App. 2022). We afford “almost total deference to the trial court’s findings of historical fact that are reasonably supported by the record and to its

- 10 - 04-24-00718-CR resolution of mixed questions that turn on credibility or demeanor[.]” Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020). However, we review a trial court’s legal conclusions and its resolution of mixed questions that do not turn on credibility or demeanor de novo. Monjaras, 664 S.W.3d at 926. The trial court is “the sole and exclusive trier of fact and judge of the credibility of the witnesses,” and “is entitled to believe or disbelieve all or part of the witness’s testimony.” Carter v. State, 309 S.W.3d 31, 41, 42 n.56 (Tex. Crim. App. 2010); Pate v. State, 518 S.W.3d 911, 914 (Tex. App. —Houston [1st Dist.] 2017, pet. ref’d). As a result, the ruling must be upheld if it is “reasonably supported by the record” and correct under any applicable theory of law. Martinez v. State, 513 S.W.3d 87, 93 (Tex. Crim. App. 2016). A defendant’s statement during a non-custodial interrogation is admissible if it is “freely and voluntarily made without compulsion or persuasion.” TEX. CODE CRIM. PRO. art. 38.21; Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Where voluntariness of a statement is raised, the trial court shall determine whether the statement was made under “voluntary conditions” by considering the totality of the circumstances. TEX. CODE CRIM. PRO. art. 38.22, § 6; Lopez, 610 S.W.3d at 494. B. Applicable Facts Mack voluntarily appeared at the police department and provided a recorded statement to the detective. The interview occurred in a non-custodial setting and Mack was not under arrest at the time he made the statement. The entire interview was video recorded and admitted at the suppression hearing. Both the detective and Mack testified at the hearing. The detective testified he considered the interview to be non-custodial and voluntary. He noted Mack showed up for the interview on his own and was not placed under arrest or restrained with handcuffs at any point. The detective - 11 - 04-24-00718-CR stated he had explained to Mack he was free to leave the interview at any time. The detective also testified that Mack did not appear intoxicated, understood the questions, and was able to answer them appropriately and rationally. Mack testified he drove himself to the interview, but he asserted he was intoxicated from marijuana during the questioning. Mack asserted this intoxication affected his ability to think clearly and answer the detective’s questions and affected his understanding of his ability to leave the interview. At the conclusion of the hearing, the trial court denied Mack’s motion to suppress. Because the trial court did not enter written findings of fact and conclusions of law regarding the voluntariness of Mack’s statements, we abated this appeal and remanded the matter to the trial court, ordering the trial court to prepare and file these written findings of fact and conclusions of law. ^[7] The trial court did so. It found the detective’s testimony at the hearing was “truthful and credible.” In contrast, the trial court found Mack’s testimony regarding the voluntariness of his statement was “not credible.” It found “the evidence of defendant’s intoxication was not credible.” The trial court noted that it watched the video interview at the hearing, and it found the video “reflects that the defendant gave his interview freely and voluntarily; that he spoke clearly and articulately; and that he did not appear to be intoxicated in any way.” The trial court further found “the testimony of [the detective] with regard to the interview being noncustodial and voluntary was credible, and that the testimony of the defendant supports that conclusion.” The trial court concluded that Mack’s statement was made “knowingly and voluntarily.”