# Julio K. Kisijara v. the State of Texas

> Texas Court of Appeals, 1st District (Houston) · April 22, 2025

URL: https://www.frixlaw.com/law-library/cases/10852544

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** April 22, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10852544

## How later opinions describe it (automated extraction)

- holding that testimony that appellant threatened to kill the sexual-assault victim’s family was admissible to show reason for delayed outcry
- holding that when evidence is admitted as same-transaction contextual evidence, “defendant is not entitled to any limiting instruction concerning the use of that evidence”

## Opinion text

Opinion issued April 22, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00534-CR
———————————
JULIO K. KISIJARA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1780688

MEMORANDUM OPINION

A jury convicted Julio K. Kisijara of continuous sexual abuse of a child and

sentenced him to 50 years’ imprisonment.1 In eight issues, Kisijara argues that the

1
See TEX. PENAL CODE § 21.02.
trial court abused its discretion in admitting evidence of extraneous offenses, that he

was egregiously harmed by the lack of mid-trial limiting instructions related to the

extraneous offenses and by the trial court’s failure to properly instruct the jury with

respect to the extraneous offenses, and that his trial counsel was ineffective.

We affirm.

Background

K.E. and H.E. are sisters who moved with their parents and older sister from

New Jersey to Houston in approximately 2004. Kisijara—K.E. and H.E.’s uncle—

and his family also moved from New Jersey to Houston and lived next door to K.E.

and H.E.

K.E., who was twenty-four at the time of trial in 2023, testified that Kisijara

began sexually abusing her when she was around seven years old, after they had

moved to Houston. The first incident happened on the couch in the living room of

Kisijara’s house. K.E. testified that she sat on Kisijara’s lap, he put a blanket over

her, put his hands in her underwear and “rub[bed] everywhere” on her vagina. K.E.

testified that Kisijara abused her in this manner “a couple” of times “over a period

of time.”

Another incident occurred when K.E. was sleeping at Kisijara’s house in her

cousin’s room. K.E. heard the door open and Kisijara come into the room, but she

2
pretended to be asleep. Kisijara pulled the blanket down that was covering K.E., put

his hand in her underwear, and began rubbing her vagina.

The last incident occurred when K.E. was around twelve years old. K.E. came

into Kisijara’s house to get her cousins, who were upstairs, but Kisijara called her

into his office. Kisijara was sitting in his chair at his desk and when she walked up

to him, he grabbed her. Kisijara turned K.E. around so that her back to was him,

used his left arm to wrap around her and pin her arms to her body, and put his right

hand in her pants and rubbed her vagina. K.E. screamed for help and elbowed

Kisijara. Kisijara laughed as she screamed for help, and eventually let her go.

When K.E. was twelve, she disclosed the sexual abuse to a therapist. The

therapist notified Child Protective Services (CPS) and K.E.’s father. K.E. spoke

with CPS and was told that she was “not allowed in [Kisijara’s] house anymore,

ever, at all.” Although K.E. reported the abuse, “nothing happened” and “it was

pretty much swept under the rug.”

H.E., who was twenty at the time of trial, also testified that Kisijara sexually

abused her from the time she was seven or eight until she was ten or eleven years

old. H.E. testified that the first incident occurred when she was sleeping at her

cousin’s house (Kisijara’s daughter). That night, H.E. was in the restroom when

Kisijara came in, removed her clothes, and touched H.E.’s breasts, vagina, and

clitoris with his hands. H.E. testified that Kisijara also took pictures of her after he

3
removed her clothes. As he was taking pictures of her, Kisijara told H.E. “[i]t was

[her] fault.”

H.E. testified that another incident occurred when she was eight or nine and

was spending the night with her cousin at Kisijara’s house. H.E. was sleeping with

her cousin on the bottom bunk when Kisijara came into the room and “started to

touch [her].” H.E. testified that she “didn’t like it” and “wanted it to stop,” so she

urinated on herself.

H.E. described another incident when she urinated on herself to stop Kisijara’s

sexual abuse. H.E. was spending the night in the guest room at Kisijara’s house, and

Kisijara came into the room while she was sleeping. H.E. testified that Kisijara

touched her and she “tried to pee [her] pants so he would stop.”

Finally, H.E. testified that when she was around eleven years old, she was

sleeping at Kisijara’s house with her cousin after a cheerleading tournament. She

fell asleep on the couch and awakened to Kisijara rubbing her breasts, vagina, and

clitoris, underneath her clothes, with his hands. H.E. testified that she “didn’t

understand what was happening” so she pretended to be asleep.

In total, H.E. testified that Kisijara sexually abused her ten to twelve times.

She testified that he took pictures of her while she was nude six or seven times. Each

time while he photographed her, H.E. testified that Kisijara told her “[i]t was [her ]

fault.”

4
Several years later, when K.E. was a senior in high school and H.E. was

fourteen or fifteen, K.E. discovered that Kisijara had also sexually abused H.E.

Because H.E. was scared, K.E. did not immediately report the abuse to law

enforcement. But in July 2018, when she was nineteen, K.E. reported Kisijara’s

sexual abuse of herself and H.E. to the Harris County Sheriff’s Office. H.E. did not

report the sexual abuse to law enforcement until 2020 when she was approximately

16 years old.

Kisijara was subsequently charged with continuous sexual abuse of a child.2

The indictment alleged that Kisijara committed two acts of indecency with a child,3

one against K.E. and one against H.E:

2
A person commits the offense of continuous sexual abuse of a young child if:

(1) during a period that is 30 or more days in duration, the person commits
two or more acts of sexual abuse, regardless of whether the acts of sexual
abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor
is 17 years of age or older and the victim is . . . a child younger than 14
years of age[.]

TEX. PENAL CODE § 21.02(b)(1), (2)(A).

An “act of sexual abuse” as used in Section 21.02 includes any act that is a violation
of Section 21.11(a)(1), indecency with a child, “if the actor committed the offense
in a manner other than by touching, including touching through clothing, the breast
of a child.” Id. § 21.02(c)(2).
3
A person commits the offense of indecency with a child if, with a child younger
than 17 years of age, the person “engages in sexual contact with the child or causes
the child to engage in sexual contact.” Id. § 21.11(a)(1). Sexual contact, if
committed with the intent to arouse or gratify the sexual desire of any person,
5
[Kisijara] . . . on or about July 2, 2008 and continuing through on or
about June 2, 2011, did then and there unlawfully, during a period of
time of thirty or more days in duration, commit at least two acts of
sexual abuse against a child younger than fourteen years of age,
including an act constituting the offense of Indecency with a Child,
committed against H.E. on or about July 2, 2008, and an act constituting
Indecency with a Child, committed against K.E. on or about June 2,
2011, and [Kisijara] was at least seventeen years of age at the time of
the commission of each of those acts.

On August 11, 2022, the State filed a notice of intention to use extraneous

offenses and prior convictions. Included in this notice were 13 extraneous offenses,

but the notice did not include a specific allegation that Kisijara took nude

photographs of H.E.4

On May 24, 2023, the State released “meeting notes” to defense counsel that

described that Kisijara took nude photographs of H.E. Kisijara filed a motion in

limine requesting that the trial court prohibit the State from introducing evidence of

“[a]ny crimes, wrongs, or acts that [Kisijara] has allegedly committed other than in

this cause number . . . until a hearing is held outside the jury’s presence[.]”

Following a pretrial hearing pursuant to article 38.37 of the Texas Code of

Criminal Procedure, the trial court ruled that H.E.’s testimony would be admitted

means: (1) any touching by a person, including touching through clothing, of the
anus, breast, or any part of the genitals of a child; or (2) any touching of any part of
the body of a child, including touching through clothing, with the anus, breast, or
any part of the genitals of a person. See id. § 21.11(c).
4
The notice did include allegations that Kisijara exposed H.E.’s anus and genitals by
removing her clothing.
6
and that she would be permitted to testify to the nude photographs that were

allegedly taken.

Trial began on June 2, 2023. After the jury convicted Kisijara of the charged

offense, Kisijara moved for a new trial, arguing that his trial counsel was ineffective

and that he was egregiously harmed by the absence of limiting instructions related

to the extraneous offense that he took nude photographs of H.E. The trial court

issued findings of fact and conclusions of law and denied the motion for new trial.

This appeal followed.

Extraneous Offense Evidence

In his first and second issues, Kisijara argues that the extraneous offense

evidence related to nude photographs of H.E. was inadmissible under Texas Rules

of Evidence 404(b) and 403, and thus the trial court abused its discretion in admitting

such evidence. Kisijara acknowledges that Texas Code of Criminal Procedure

article 38.37, when applicable, supersedes application of rule 404(b) making

evidence of otherwise inadmissible extraneous acts admissible. But Kisijara

contends that because the State failed to give timely notice of its intent to use this

extraneous offense evidence, the evidence was not admissible under article 38.37.

The State responds that Kisijara did not preserve his argument with respect to notice

under article 38.37, but that in any event, this testimony is admissible under article

38.37 and rule 404(b) as same-transaction contextual evidence.

7
We agree with the State.

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial

court abuses its discretion only if its decision is so clearly wrong as to lie outside the

zone within which reasonable people might disagree. Taylor v. State, 268 S.W.3d

571, 579 (Tex. Crim. App. 2008).

“Evidence of extraneous offenses is not admissible at the guilt phase of a trial

to prove that a defendant committed the charged offense in conformity with a bad

character.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing TEX.

R. EVID. 404(b)). To be admissible, extraneous offense evidence must pass the two-

prong test imposed by Texas Rules of Evidence 404(b) and 403: (1) the extraneous

offense evidence must be relevant to a fact of consequence in the case apart from its

tendency to prove conduct in conformity with character and (2) the probative value

of the evidence [must not be] substantially outweighed by unfair prejudice. Martin

v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.’” TEX. R. EVID.

404(b)(1). Such extraneous offense evidence may be admissible, however, “when it

8
has relevance apart from character conformity.” Devoe, 354 S.W.3d at 469. This

may include evidence offered to “show proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.; TEX.

R. EVID. 404(b)(2).

Article 38.37, entitled “Evidence of extraneous offenses or acts,” is an

evidentiary rule applicable to certain types of sexual abuse cases including sexual

assault of a child, indecency with a child, and continuous sexual abuse of a child.

See TEX. CODE CRIM. PROC. art. 38.37; Lara v. State, 513 S.W.3d 135, 141 (Tex.

App.—Houston [14th Dist.] 2016, no pet.). “It supersedes application of Rule

404(b), making admissible extraneous offense evidence that Rule 404(b) does not.”

Lara, 513 S.W.3d at 141; see TEX. CODE CRIM. PROC. art. 38.37 §§ 1(b), 2(b).

Article 38.37 allows the jury to consider, notwithstanding rule 404, “evidence

of other crimes, wrongs, or acts committed by the defendant against the child who

is the victim of the alleged offense” for its bearing on “relevant matters,” including

the state of mind of the defendant and the child and the previous and subsequent

relationship between the defendant and the child. See TEX. CODE CRIM. PROC. art.

38.37 § 1(b).

But under article 38.37, the State must give a defendant, at least 30 days before

trial, notice of its intention to introduce evidence of other offenses the defendant

committed as described in Section 1, including sexual assault of a child, indecency

9
with a child, and continuous sexual abuse of a child. Id. art. 38.37 §§ 1, 3. The

purpose of the notice requirement in article 38.37 is to prevent surprise and enable

the defendant adequate time to prepare for the State’s introduction of such

extraneous offense evidence at trial. See Jeansonne v. State, 624 S.W.3d 78, 98 (Tex.

App.—Houston [1st Dist.] 2021, no pet.). To preserve error regarding the State’s

failure to provide reasonable notice of its intent to use extraneous offense evidence,

however, the defendant must request a continuance to mitigate the effects of surprise.

See Martines v. State, 371 S.W.3d 232, 249 (Tex. App.—Houston [1st Dist.] 2011,

no pet.).

B. Lack of Notice

On appeal, Kisijara argues that he did not receive notice of the State’s intent

to present H.E.’s testimony that he took nude photographs of her until the day before

trial, and thus, the State failed to comply with the mandatory requirements of article

38.37. But the record reflects that Kisijara did not object to the admission of this

evidence at trial based on the State’s failure to comply with article 38.37’s 30-day

notice requirement.

Instead, at the article 38.37 hearing conducted by the trial court, he conceded

that he was not “necessarily arguing against the claim of [Kisijara] taking photos in

and of itself.” And rather than contending that he did not receive the 30-day notice

that the State intended to introduce this evidence at trial, Kisijara argued that H.E.’s

10
testimony should not be admitted because she did not describe any offense included

in the indictment. Specifically, Kisijara argued:

[H.E.] didn’t detail or indicate any offense that’s alleged in the
indictment, or any extraneous offense. And they keep discussing the
photos. I plan on—we plan on crossing her about her talking about
photos being taken because that was the first time she said it was this
past Thursday. And there aren’t any pornography photos that were
gathered by the State, law enforcement, CPS, or the Child Advocacy
Center. So there’s no child porn in this case. The first time she brought
up photos was Thursday with the State. So we plan on crossing her on
that specific point.

What we’re arguing here is that after they added [H.E.] to the
indictment, which was 2022, the end of 2022, they are saying that her
extraneous conduct, and whatever is alleged in the indictment, should
come in along with [K.E.]. This hearing is to determine the credibility
and the reliable testimony of that witness because of some inconsistent
statements that took place in 2012, 2018, 2019, all the way up to 2020.

[H.E.] hasn’t articulated anything that should go in front of the trier of
fact for them to make a reasonable or just conclusion beyond a
reasonable doubt that he’s guilty as charged in the indictment.

As evidenced by the argument above, Kisijara did not object to the admission

of H.E.’s testimony on the basis that the State failed to provide the 30-day notice as

required by article 38.37—the argument he now makes on appeal. Thus, we agree

with the State that Kisijara’s argument on appeal is not preserved because it does not

comport with the objection he made below. See Thomas v. State, 505 S.W.3d 916,

924 (Tex. Crim. App. 2016) (“If a trial objection does not comport with arguments

on appeal, error has not been preserved.”); TEX. R. APP. P. 33.1(a).

11
Nor did Kisijara request a continuance upon learning of H.E.’s testimony with

respect to the nude photos. Having failed to do so, Kisijara has waived any

complaint that he was surprised by the State’s untimely notice. See Martines, 371

S.W.3d at 249; see also Martin v. State, 176 S.W.3d 887, 900 (Tex. App.—Fort

Worth 2005, no pet.).

Accordingly, we conclude that Kisijara has failed to preserve for appellate

review his contention that this testimony was inadmissible under article 38.37

because the State did not provide proper notice. See Martines, 371 S.W.3d at 249.

C. Same-Transaction Contextual Evidence

But even if Kisijara preserved his objection to the lack of notice under article

38.37, we conclude that the evidence was admissible as same-transaction contextual

evidence, for which notice is not required under either article 38.37 or rule 404(b).

“Evidence of another crime, wrong, or act . . . may be admissible as same-

transaction contextual evidence where ‘several crimes are intermixed, or blended

with one another, or connected so that they form an indivisible criminal transaction,

and full proof by testimony . . . of any one of them cannot be given without showing

the others.’” Devoe, 354 S.W.3d at 469 (quoting Wyatt v. State, 23 S.W.3d 18, 25

(Tex. Crim. App. 2000)). “[S]ame-transaction contextual evidence is admissible

only when the [charged] offense would make little or no sense without also bringing

in [the same-transaction contextual] evidence.” Id.

12
The purpose of admitting same-transaction contextual evidence is to put the

charged offense in context. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim.

App. 1993); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)

(“Such extraneous offenses are admissible [as same-transaction contextual

evidence] to show the context in which the criminal act occurred.”). “[E]vents do

not occur in a vacuum, and the jury has a right to hear what occurred immediately

prior to and subsequent to the commission of [the charged offense] so that it may

realistically evaluate the evidence.” Wesbrook, 29 S.W.3d at 115.

Here, H.E. testified that Kisijara removed her clothes, after which he touched

her vagina and breasts and took photographs of her while she was naked. All of this

occurred during the first incident in the restroom. Accordingly, H.E.’s testimony

about Kisijara taking nude photographs of her was part of “an indivisible criminal

transaction” and was necessary to explain the circumstances surrounding the first

incident of sexual abuse. See Devoe, 354 S.W.3d at 469; see also, e.g., Houston v.

State, 832 S.W.2d 180, 182 (Tex. App.—Waco 1992, pet. dism’d) (“[T]he State was

entitled to prove all of the facts and circumstances surrounding the sexual assault,

everything that [the defendant] said and did, including how he used the nude

photographs to lure [the complainant] to where she was sexually assaulted and how

he tried to use them to get her to submit to the sexual assault.”).

13
Moreover, H.E. testified that while Kisijara took nude photographs of her, he

told her “it was [her] fault.” The State’s expert witness, Dr. Whitney Crowson,

testified that this was an indicator of Kisijara’s “grooming” with respect to H.E. Dr.

Crowson testified that “[g]rooming is the process by which a perpetrator will gain

access to a child, maintain the access, and reduce the chances of disclosure, and if

there is a disclosure, reduces the chance of being believed.” Dr. Crowson testified

that abusers groom children so that “no one finds out, they don’t get disclosure.”

Dr. Crowson explained that, in H.E.’s case, Kisijara made H.E. feel like she was to

blame or was responsible in some way for the abuse, which could be shaming and

intimidating for a child. She also testified that taking naked photos could also be

very intimidating, or even threatening, “even if no words were expressed to be

threatening” because “[n]o one wants naked photos of themselves out for anyone to

see.”

Courts have held that evidence of an extraneous offense or bad act is

admissible to explain the reason for a sexual assault victim’s delayed outcry of

abuse. See Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983) (holding

that testimony that appellant threatened to kill the sexual-assault victim’s family was

admissible to show reason for delayed outcry); see also, e.g., Stulce v. State, No. 05-

14-01226-CR, 2016 WL 4218594, at *4 (Tex. App.—Dallas Aug. 9, 2016, no pet.)

(mem. op., not designated for publication) (holding that evidence related to

14
defendant’s previous sexual assaults of victim were admissible as same-transaction

contextual evidence because “[u]nderstanding the dynamics of the parties’

relationship was critical to the jury to evaluate what happened between them on [the

date of the charged offense]” and because “[t]he contextual evidence helps explain

why [victim] delayed reporting the offense to police”).5 Based on our review of the

record, the testimony related to Kisijara taking nude photographs of H.E. would also

constitute same-transaction contextual evidence because it occurred during the

commission of the sexual abuse and was necessary to explain to the jury how

Kisijara groomed H.E. and why H.E. may have delayed her outcry. See, e.g., Stulce,

2016 WL 4218594, at *4; Patterson v. State, No. 08-13-00152-CR, 2015 WL

1850899, at *3 (Tex. App.—El Paso Apr. 22, 2015, no pet.) (not designated for

publication).

We conclude that the testimony related to Kisijara taking nude photographs

of H.E. put the charged offense into context and was necessary for the jury’s

understanding of the offense. We therefore hold that the trial court did not abuse its

5
See, e.g., Patterson v. State, No. 08-13-00152-CR, 2015 WL 1850899, at *3 (Tex.
App.—El Paso Apr. 22, 2015, no pet.) (not designated for publication) (holding that
evidence of defendant’s threat to kill victim and her family if she called police was
admissible as same-transaction contextual evidence because it “was intermixed with
and indivisibly connected to the charged offense given that the threat was made
during the course of the aggravated sexual assault and it explained [victim’s]
resistance to her sister calling the police”).
15
discretion in admitting this evidence as same-transaction contextual evidence.6 See

Devoe, 354 S.W.3d at 469–70.

And given that this evidence was properly admitted as same-transaction

contextual evidence, even if Kisijara preserved his notice objection, the State was

not required to give notice of its intent to introduce this evidence under either article

38.37 or rule 404(b). See TEX. R. EVID. 404(b) (providing that State must provide

reasonable notice before trial that it intends to introduce evidence of another crime,

wrong, or other act other than that arising in the same transaction); McDonald v.

State, 148 S.W.3d 598, 602 n.3 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 179

S.W.3d 571 (Tex. Crim. App. 2005) (“[A]lthough article 38.37 does not contain an

express exception to the notice requirement for evidence arising in the same

transaction, as does Rule 404(b), section 4 of article 38.37 provides that it does not

limit the admissibility of extraneous offense evidence under any other applicable

law. Therefore, to the extent such evidence would be admissible without notice

under Rule 404(b) as same transaction evidence, it logically follows that article

38.37 would not limit that admissibility.” (internal citations omitted)).

We overrule Kisijara’s first issue.

6
Because we conclude that the evidence was properly admitted as same-transaction
contextual evidence, we do not consider Kisijara’s argument that the evidence was
not admissible under any exception to rule 404(b). See TEX. R. APP. P. 47.1.
16
D. Rule 403

We turn next to Kisijara’s argument that the evidence that he took nude

photographs of H.E. was inadmissible under rule 403 because the prejudicial effect

of this evidence outweighed its probative value. The State contends that Kisijara did

not preserve his rule 403 objection to this evidence. We agree.

Texas Rule of Evidence 403 authorizes a trial court to exclude relevant

evidence if its probative value is substantially outweighed by a danger of unfair

prejudice, confusion of the issues, misleading the jury, or needlessly presenting

cumulative evidence. See TEX. R. EVID. 403. In addition to satisfying the

requirements of same-transaction contextual evidence, to be admissible, extraneous

evidence must also satisfy the balancing test of Rule 403. See Swarb v. State, 125

S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) (citing TEX. R.

EVID. 403). “Generally, although a trial court must still perform a balancing test to

see if the same transaction contextual evidence’s probative value is substantially

outweighed by its prejudicial effect, the prejudicial nature of contextual evidence

rarely renders such evidence inadmissible, as long as it sets the stage for the jury’s

comprehension of the whole criminal transaction.” Id.

However, to preserve a complaint for appellate review, a party must lodge a

timely and specific objection, obtain an adverse ruling, and then either “object each

time the inadmissible evidence is offered or obtain a running objection.” See Valle

17
v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see also TEX. R. APP. P.

33.1(a). Rule 403 must be specifically invoked in the trial court to preserve error

under that rule. Montgomery v. State, 810 S.W.2d 372, 388–89 (Tex. Crim. App.

1990).

As we explained above, Kisijara’s objections to H.E.’s testimony at the article

38.37 hearing were not to the admissibility of the specific evidence he challenges

now on appeal, i.e., the testimony that Kisijara took nude photographs of H.E.

Rather, Kisijara objected to the introduction of any of H.E.’s testimony because “[i]t

doesn’t seem that [H.E.] will be able to, or can provide any information about being

sexually assaulted.” In essence, Kisijara objected to the trial court allowing H.E. to

testify at all because of numerous inconsistent statements she purportedly gave for

years that she was not being sexually abused, before finally reporting the abuse in

2020.

Kisijara did argue that “it would be [more] highly prejudicial than it is

probative” to allow H.E. to testify. But to the extent this could be interpreted as a

rule 403 objection, it was based on H.E.’s purported inability to “articulate [a] sexual

assault.”

Thus, it is clear from a review of the record that Kisijara did not make a

specific objection to the admission of H.E.’s testimony related to the nude

18
photographs on the basis of rule 403. Accordingly, we hold that he has not preserved

this complaint for appellate review. See TEX. R. APP. P. 33.1(a).

We overrule Kisijara’s second issue.

Limiting Instructions

In his third and fourth issues, Kisijara argues that he suffered egregious harm

because the trial court failed to give mid-trial limiting instructions regarding the

State’s burden of proof for the extraneous act—taking nude photographs of H.E.—

and the limited purpose for which the jury could consider this extraneous act.

Specifically, Kisijara argues if the trial court admits evidence for a specific purpose,

then the court “must restrict the evidence to its proper scope and instruct the jury

accordingly.” Kisijara contends that because the trial court admitted this evidence

for the limited purposes in article 38.37 and rule 404(b), he was entitled to a mid-

trial instruction limiting the jury’s consideration of that evidence solely to those

limited purposes. And he argues that once the trial court ruled that this evidence was

admissible, he was entitled to have jurors instructed that they could not consider this

evidence unless they first found beyond a reasonable doubt that he had committed

this extraneous act. In his fifth issue, Kisijara further argues that the trial court failed

to properly instruct the jury in the charge with respect to this extraneous act.

19
It is true that if evidence is admitted for a limited purpose, upon the

defendant’s request,7 the trial court must give a limiting instruction asking the jury

to consider the evidence only for the permitted purpose and only if it finds beyond a

reasonable doubt that the defendant committed the bad acts. See Dukes v. State, 486

S.W.3d 170, 181 (Tex. App.—Houston [1st Dist.] 2016, no pet.); see also TEX. R.

EVID. 105. If a limiting instruction is not requested at the time the evidence is

admitted, it is admitted for all purposes. Hammock v. State, 46 S.W.3d 889, 894–95

(Tex. Crim. App. 2001).

But the Court of Criminal Appeals has held that a limiting instruction is not

required when evidence is admitted as same-transaction contextual evidence. Devoe,

354 S.W.3d at 471; Wesbrook, 29 S.W.3d at 114–15; see also Delgado v. State, 235

S.W.3d 244, 253 (Tex. Crim. App. 2007) (holding that when evidence is admitted

as same-transaction contextual evidence, “defendant is not entitled to any limiting

instruction concerning the use of that evidence”).

Here, the record shows, and Kisijara admits, that he did not request mid-trial

limiting instructions with respect to the nude photographs. But because we have

held that this evidence was properly admitted as same-transaction contextual

evidence, we likewise hold that Kisijara was not entitled to any limiting instructions,

7
See also Delgado v. State, 235 S.W.3d 244, 254 (Tex. Crim. App. 2007) (“[A] a
trial court is not required to instruct the jury sua sponte on the burden of proof to be
used when considering evidence of an extraneous offense during the guilt phase.”).
20
during trial or in the charge, concerning the use of that evidence. See Devoe, 354

S.W.3d at 471; Delgado, 235 S.W.3d at 253–54.8

Moreover, even though not required, at Kisijara’s request and over the State’s

objection, the trial court included an article 38.37 and rule 404(b) limiting instruction

in the court’s charge:

You are further instructed that if there is any evidence before you
in this case regarding the defendant’s committing an alleged offense or
offenses other than the offense alleged against him in the indictment in
this case, you cannot consider such evidence for any purpose unless you
find and believe beyond a reasonable doubt that the defendant
committed such other offense or offenses, if any, and even then you
may only consider the same in determining the motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident of the defendant, if any, in connection with the offense, if any,
alleged against him in the indictment and for no other purpose.
You are further instructed that if there is any evidence before you
in this case regarding the defendant’s committing other crimes, wrongs,
or acts against the child who is the victim of the alleged offense in the
indictment in this case, you cannot consider such evidence for any
purpose unless you find and believe beyond a reasonable doubt that the
defendant committed such other crimes, wrongs, or acts against the
child, if any. If you find and believe beyond a reasonable doubt that
the defendant committed such other crimes, wrongs, or acts against the
child, you may then, only then, consider the same in determining 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.

8
See also Mirza v. State, No. 01-16-00506-CR, 2017 WL 3526766, at *7 (Tex.
App.—Houston [1st Dist.] Aug. 17, 2017, pet. ref’d) (mem. op., not designated for
publication) (holding that “[n]o limiting instruction is required when evidence is
admitted as same-transaction contextual evidence,” and therefore trial court did not
err in refusing to grant limiting instruction when evidence was admitted or to include
any kind of limiting instruction in jury charge).
21
To the extent that Kisijara complains on appeal that the trial court’s inclusion

of these limiting instructions in the charge was in error, we disagree. The Court of

Criminal Appeals has held that an extraneous-offense limiting instruction is

beneficial to a defendant, and a trial judge does not commit reversible error by

including such instructions in the jury charge, even when unnecessary. See Fair v.

State, 465 S.W.2d 753, 754–55 (Tex. Crim. App. 1971); see also Ferreira v. State,

514 S.W.3d 297, 301–02 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

Therefore, we conclude that the trial court’s charge contained no error.

We overrule Kisijara’s third, fourth, and fifth issues.

Ineffective Assistance of Counsel

In his sixth, seventh, and eighth issues, Kisijara argues that his trial counsel

was ineffective for (1) failing to request a mid-trial limiting instruction regarding the

State’s burden of proof as to the nude photographs extraneous offense, (2) failing to

request a mid-trial limiting instruction properly limiting the jury’s consideration of

this extraneous offense, and (3) failing to object to an instruction in the charge

authorizing jurors to consider evidence of this extraneous offense for the limited

purposes of “motive, opportunity, intent, preparation, plan or absence of mistake,”

when this evidence was not admissible for any or all of these reasons.

Strickland v. Washington sets the standard of review for claims of ineffective

assistance of counsel. 466 U.S. 668, 687–96 (1984); accord Bone v. State, 77 S.W.3d

22
828, 833 (Tex. Crim. App. 2002). To prevail, Kisijara must first show that his

counsel’s performance was deficient. Strickland, 466 U.S. at 687; Bone, 77 S.W.3d

at 833. Specifically, Kisijara “must prove, by a preponderance of the evidence, that

his counsel’s representation fell below the objective standard of professional

norms.” Bone, 77 S.W.3d at 833. Second, Kisijara “must show that this deficient

performance prejudiced his defense,” meaning that he “must show a reasonable

probability that, but for his counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (quoting Mitchell v. State, 68 S.W.3d

640, 642 (Tex. Crim. App. 2002)). Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim. See

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

“The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland, 466

U.S. at 686. In assessing counsel’s performance, we consider the entire

representation, indulging a strong presumption that the attorney’s performance falls

within the wide range of reasonable professional assistance. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). Furthermore, a claim of ineffective

assistance must be firmly supported in the record. Id.

23
When, as here, an appellant raises an ineffective assistance claim in a motion

for new trial, we analyze the issue on appeal as a challenge to the trial court’s denial

of the new-trial motion and review that decision for an abuse of discretion. Robinson

v. State, 514 S.W.3d 816, 823–24 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

We will reverse only if the decision to deny the motion for new trial was arbitrary

or unreasonable, viewing the evidence in the light most favorable to the trial court’s

ruling. Id. A decision is arbitrary or unreasonable if no reasonable view of the record

could support the trial court’s ruling. Id.; see Okonkwo v. State, 398 S.W.3d 689,

694 (Tex. Crim. App. 2013).

As we have already held, H.E.’s testimony that Kisijara took nude

photographs of her was properly admitted as same-transaction contextual evidence.

And this Court has held that when evidence is properly admitted as same-transaction

contextual evidence, trial counsel is not ineffective for failing to request a limiting

instruction. See Dukes, 486 S.W.3d at 181.9 Therefore, because Kisijara was not

entitled to any limiting instructions with respect to this evidence, his trial counsel

was not ineffective for failing to request any mid-trial limiting instructions. See id.

9
See also Jordan v. State, No. 01-13-00775-CR, 2015 WL 1062671, at *8 (Tex.
App.—Houston [1st Dist.] Mar. 10, 2015, pet. ref’d) (mem. op., not designated for
publication) (holding that counsel was not ineffective for failing to request improper
limiting instruction regarding same-transaction contextual evidence).
24
We likewise reject Kisijara’s argument that trial counsel was ineffective for

failing to seek a “proper limiting instruction in the court’s charge.” Despite the fact

that Kisijara was not entitled to any limiting instruction, counsel requested and the

trial court gave, an instruction authorizing jurors to consider evidence of this

extraneous offense for the limited purposes of “motive, opportunity, intent,

preparation, plan or absence of mistake.” As detailed above, this instruction was

actually beneficial to Kisijara, in that it directed the jury to consider the extraneous

offense evidence for only limited purposes, rather than all purposes. See Fair, 465

S.W.2d at 754–55; Ferreira, 514 S.W.3d at 301–02. Accordingly, because such an

instruction “was not harmful but beneficial to [Kisijara],” see Fair, 465 S.W.2d at

755, he cannot demonstrate that his counsel’s alleged deficient performance in

requesting such instruction prejudiced his defense. See Bone, 77 S.W.3d at 833.

Therefore, Kisijara cannot satisfy Strickland’s second prong.

Accordingly, we hold that the trial court did not abuse its discretion in denying

Kisijara’s motion for new trial based on ineffective assistance of counsel.

We overrule Kisijara’s sixth, seventh, and eighth issues.

25
Conclusion

We affirm the trial court’s judgment in all things.

Terry Adams
Chief Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

Do not publish. TEX. R. APP. P. 47.2(b).

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10852544. Public record. Not legal advice.