Montgomery v. State

¶1OPINION ON REHEARING ON COURT’S OWN MOTION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

¶2We granted rehearing on our own motion in this cause and ordered the parties to re-brief and re-argue the issues with two particular questions in mind. First: once evidence of “other crimes, wrongs or acts” has been shown to have a permissible purpose under Tex.R.Cr.Evid.Rule 404(b), does the defendant shoulder the burden of then persuading the trial court that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice, such that it should be excluded under Tex.R.Cr.Evid.Rule 403? Second, what is the proper role of the appellate court in reviewing the trial court’s decision both that evidence does serve a permissible purpose, under Rule 404(b), and that the evidence should not be excluded under Rule 403? After argument, with new briefs in hand, we revisit those issues addressed on original submission. Ultimately we hold that the trial court abused its discretion in failing to exclude the extraneous misconduct at issue in this cause under Rule 403.

¶3I. THE NEW RULES

¶4Evidence is “relevant” that 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.Cr.Evid., Rule 401. “All relevant evidence is admissible, except as otherwise provided by ... these rules_ Evidence which is not relevant is inadmissible.” Tex.R.Cr.Evid., Rule 402. Tex.R.Cr. Evid., Rule 404, generally prohibits “the circumstantial use of character evidence.” Goode, Wellborn & Sharlot, Texas Practice: Texas Rules of Evidence: Civil and Criminal § 404.2 (1988), at 106. Thus, although relevant, “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Rule 404(b), supra.1

¶5*387Evidence of “other crimes, wrongs, or acts” “may, however, be admissible” if it has relevance apart from its tendency “to prove the character of a person in order to show that he acted in conformity therewith.” Rule 404(b), supra. Hence, a party may introduce such evidence where it logically serves “to make ... more probable or less probable” an elemental fact; where it serves “to make ... more probable or less probable” an evidentiary fact that inferentially leads to an elemental fact; or where it serves “to make ... more probable or less probable” defensive evidence that undermines an elemental fact. Rules 404(b) and 401, both supra. Illustrative of the permissible “purposes” to which evidence of “crimes, wrongs, or acts” may be put are “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]” Rule 404(b), supra. Extraneous offense evidence that logically serves any of these purposes is “relevant” beyond its tendency “to prove the character of a person to show that he acted in conformity therewith.” It is therefore admissible, subject only to the trial court’s discretion nevertheless to exclude it “if its probative value is substantially outweighed by the danger of unfair prejudice.... ” Rule 403, supra. On the other hand, if extraneous offense evidence is not “relevant” apart from supporting an inference of “character conformity,” it is absolutely inadmissible under Rule 404(b). For if evidence of “other crimes, wrongs, or acts” has only character conformity value, the balancing otherwise required by Rule 403 is obviated, the rulemakers having deemed that the probativeness of such evidence is so slight as to be “substantially outweighed” by the danger of unfair prejudice as a matter of law. United States v. Beeckum, 582 F.2d 898, at 910 (CA5 1978).2

¶6II. THE TRIAL COURT’S FUNCTION

¶7A. The Trial Court’s Decision Whether To Admit Evidence Under Rule 404(b)

¶8When a party attempts to adduce evidence of “other crimes, wrongs or acts,” in order to preserve error on appeal, the opponent of that evidence must object in a timely fashion. Optimally, the opponent should object that such evidence is inadmissible under Rule 404(b). An objection that such evidence is not “relevant,” or that it constitutes an “extraneous offense” or “extraneous misconduct,” although not as precise as it could be, ought ordinarily to be sufficient under the circumstances to apprise the trial court of the nature of the complaint. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977); Tex.R.App.Pro., Rule 52(a). Once that complaint is lodged, it is incumbent upon the proponent of the evidence to satisfy the trial court that the “other crime, wrong, or act” has relevance apart from its tendency “to prove character of a person in order to show that he acted in conformity therewith.” Rule 404(b), supra. The trial court should honor any request by the opponent of the evidence for articulation into the record of the purpose for which evidence is either offered by the proponent or ultimately admitted by the trial court.

¶9If the trial court determines the evidence has no relevance apart from character conformity, then the evidence is absolutely inadmissible. The trial court has no discretion to admit it. See 22 Wright & Graham, Federal Practice and Procedure: Evidence §§ 5249 & 5250 (1978), at 540 & 544.

¶10On the other hand, the proponent of the evidence may persuade the trial court that the “other crime, wrong, or act” has relevance apart from character conformity; that it tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, *388leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g., absence of mistake or accident. Rule 404(b), supra. The proponent may also persuade the court that it is relevant upon a logical inference not anticipated by the rulemakers. This is the reason the “purposes” designated in Rule 404(b) for which “other crimes, wrongs, or acts” are admissible are, as was pointed out on original submission, “neither mutually exclusive nor collectively exhaustive.” Cleary, McCormick on Evidence, § 190 (3d ed. 1984), at 558. Cf. Morgan v. State, 692 S.W.2d 877, at 879 (Tex.Cr.App.1985) (list in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972) “was exemplary rather than ex-haustive_”). Should he admit the evidence, then upon timely further request, the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves. Tex.R.Cr.Evid Rule 105(a).

¶11B. The Trial Court’s Decision Whether To Exclude Evidence Under Rule 403 i. When

¶12Once the trial court rules that the evidence has relevance apart from character conformity, he has ruled on the full extent of the opponent’s objection. Error is preserved as to whether the evidence was admissible under Rule 404(b), supra. From this point on the new rules have effected two subtle but important changes in procedure from our practice under the former caselaw. First, an objection that proffered evidence amounts to proof of an “extraneous offense” will no longer suffice, by itself, to invoke a ruling from the trial court whether the evidence, assuming it has relevance apart from character conformity, is nevertheless subject to exclusion on the ground of unfair prejudice. Further objection based upon Rule 403 is now required. Second, when the trial court is called upon by sufficient objection to balance probativeness and prejudice, the presumption is now that probativeness is the weightier consideration unless in the posture of the particular case the trial court determines otherwise.

¶13Under prior caselaw there was a so-called “general rule,” often cited and invoked, that evidence amounting to an extraneous offense or misconduct was inadmissible. This was said to be so “not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.” Albrecht v. State, supra, at 100. This is no more than an earlier incarnation of the rule, now embodied in Rule 404(b), that as character evidence per se, evidence of extraneous misconduct is inadmissible because its probative value is deemed to be outweighed by its inflammatory or prejudicial potential as a matter of law. In Albrechtthe Court set out a list of purposes other than as character evidence to which extraneous misconduct evidence had been held admissible in the past. This list was widely perceived to articulate “exceptions” to the “general rule” of inadmissibility. But as Albrechtitself recognized, “[t]he test for determining the admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects, if any.” Id., at 99. Thus, as with any other evidence, proof of extraneous misconduct was said to be admissible if relevant to a material issue in the case, and its relevancy value outweighed its inflammatory or prejudicial potential. E.g., Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983); Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App.1983); Rubio v. State, 607 S.W.2d 498 (Tex.Cr. App.1980). If it had relevance apart from character conformity, and it was more probative than prejudicial, evidence of extraneous misconduct was admissible, notwithstanding the “general rule.” See Morgan v. State, supra, at 879.

¶14An objection under the caselaw that evidence was inadmissible because it amounted to an extraneous offense was sufficient to alert the trial judge that he must determine both that the evidence was relevant to a material issue and that its *389probative value outweighed its prejudicial impact. But current Rule 403 has “shifted the focus somewhat from the test enunciated in Williams, supra, and its progeny. The approach under Rule 403 is to admit relevant evidence unless the probative value of that relevant evidence is substantially outweighed by the danger of unfair prejudice to a defendant.” Crank v. State, 761 S.W.2d 328, at 342, n. 5 (Tex.Cr.App.1988) (emphasis in the original). Thus, Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. If the trial court determines that evidence of “other crimes, wrongs, or acts” has relevance apart from character conformity, he should admit the evidence absent a further objection by the opponent of the evidence. The opponent’s earlier objection that the evidence has no relevance beyond character conformity, and is therefore inadmissible under Rule 404(b), has been ruled upon. It is now incumbent upon him, in view of the presumption of admissibility of relevant evidence, to ask the trial court to exclude the evidence by its authority under Rule 403, on the ground that the probative value of the evidence, assuming it is relevant apart from character conformity, is nevertheless substantially outweighed by, e.g., the danger of unfair prejudice.

¶15Once this objection is made, the trial court is called upon to weigh proba-tiveness of the evidence against its potential for “unfair” prejudice — that is, as the majority iterated on original submission, its “tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Advisory Committee’s Note to Fed.R.Evid. 403. Also on original submission, the majority observed that “now it is the opponent’s burden to not only demonstrate the proffered evidence’s negative attributes but to show also that these negative attributes ‘substantially outweigh ’ any probative value.” Slip op. at 377. To the extent that this language may suggest an opponent has an obligation to do anything more than level an objection that the trial court should exclude the evidence under Rule 403, we disavow it now. The evidence may be proffered long before the opponent is capable of gauging the proponent’s “need” for it. See p. 390, post. In that event he would be ill equipped to “demonstrate” whether at least one major factor in the analysis militates for or against exclusion. Indeed, it is the proponent of the evidence who is in the best position to advance the relative probativeness of his evidence. But we do not regard the question of who would best shoulder the burden to be a pertinent one because, in any case, we do not interpret Rule 403 specifically to assign a burden to either party. Rather, we understand Rule 403 to impose a duty upon the trial court. The court would do well to inquire of the opponent what his view of the prejudice is. On the other hand, the court should ask the proponent to articulate his need. But once the rule is invoked, “the trial judge has no discretion as to whether or not to engage in the balancing process.” Wright & Graham, supra, § 5250, at 544-45. When Rule 403 provides that evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.

¶16ii. How

¶17When a further objection is made under Rule 403, it will not suffice for the trial court simply to determine that the evidence is relevant to some legitimate, non-character-related purpose such as one of those enumerated in Rule 404(b). “The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.” Advisory Committee’s Note to Fed.R.Evid. 404(b). Factors that should go into the balancing are elaborated in Wright & Graham, supra, at 545-551. How compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence — in other words, its inher*390ent probativeness — is certainly a factor. This is often, although by no means invariably, a function of the similarity of the extraneous transaction to the charged offense. See Robinson v. State, 701 S.W.2d 895, at 898 (Tex.Cr.App.1985); Imwinkelried, Uncharged Misconduct Evidence, §§ 2:12, 8:07 (1984). It is also a function of the strength of the proponent’s evidence to show the opponent in fact committed the extraneous conduct. Wright & Graham, supra at 548. Another obvious factor is the potential the “other crimes, wrongs, or acts” have to impress the jury in some irrational but nevertheless indelible way. This is often a function of the nature of the misconduct. Imwinkelried, supra, § 8:03. How much trial time does the proponent need to develop evidence of the extraneous misconduct, such that the attention of the factfinder will be diverted from the indicted offense? Id.; Wright & Graham, supra, at 549. Finally, how great is the proponent’s “need” for the extraneous transaction? This last inquiry breaks down into three subparts: Does the proponent have other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? When the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance. Morgan v. State, supra, at 880; United States v. Beechum, supra, at 914; Wright & Graham, supra, at 546-47.3

¶18III. THE APPELLATE COURT’S FUNCTION

¶19Under the former caselaw it was said that much of the trial court’s role in all of this is “discretionary,” and that is still true under the new rules. As we have seen, once the trial court has decided that proffered evidence of “other crimes, wrongs, or acts” has no relevance apart from character conformity, it does not have discretion to admit it over objection. But of necessity, the trial court must have some leeway in deciding whether such evidence does in fact serve a legitimate purpose other than as character evidence. Likewise, the trial court has no discretion to refuse a request to conduct a Rule 403 balancing of probativeness versus prejudice and decide whether to exclude evidence of misconduct in spite of its admissibility under Rule 404(b). But after conducting that balancing, applying the factors we have identified to the facts of the particular ease, the trial court must be given wide latitude to exclude, or, particularly in view of the presumption of admissibility of relevant evidence, not to exclude misconduct evidence as he sees fit. So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be. Cf. Templin v. State, 711 S.W.2d 30, 33 (Tex.Cr.App.1986) (Williams test is “left to the trial judge and absent a clear abuse of discretion his decision will not be disturbed on appeal.”); Cantrell v. State, 731 S.W.2d 84, 90 (Tex.Cr.App.1987) (“And the trial judge’s discretion in admitting an extraneous offense is to be given due deference.”). We turn next to the difficult question of defining, insofar as it is possible, the scope of that discretion.

¶20A. Reviewing the Trial Court’s Decision Whether To Admit Evidence Under Rule 404(b)

¶21Appellant argues that because the determination of relevancy is rule-governed, the appellate court’s role is of necessity to conduct a de novo review to ensure that the trial court adhered to the rules. Evidence is either relevant, appellant contends, or it is not, and the appellate court should reverse the trial court whenever it has admitted evidence as relevant which is not. To the extent it suggests that an *391appellate court may always superimpose its own judgment as to relevance over that of the trial court, we reject this approach.

¶22The drafters of Fed.R.Evid.Rule 403 apparently accepted the view that “the law furnishes no test of relevancy.” Weinstein & Berger, Weinstein’s Evidence ¶ 401[08], at 401-53 (1990). It is true that Rule 401 defines “relevance,” but that definition is necessarily a broad one. Whether particular evidence meets the definition will not always be cut and dried. Our adversarial system assigns that question to the trial judge, on the assumption that he has the best vantage from which to decide. Determining the relevance of any given item of evidence to any given lawsuit is not exclusively a function of rule and logic. The trial court must rely in large part upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, supra. The determination of relevance, vel non, thus depends upon one judge’s perception of common experience. See Weinstein & Berger, supra, ¶ 401[01], at 401-10. The process cannot be wholly objectified. Reasonable men may disagree whether in common experience a particular inference is available. Where there is room for such disagreement, an appellate court that reverses a trial court’s ruling on relevancy accomplishes nothing more than to substitute its own reasonable perception of common experience for that of the trial court. The appellate court effectively displaces the trial court, commandeering a function institutionally assigned elsewhere.

¶23To avoid this anomaly, appellate courts uphold the trial court’s ruling on appeal absent an “abuse of discretion.” That is to say, as long as the trial court’s ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede. The trial court’s ruling is not, however, unreviewable. Where the appellate court can say with confidence that by no reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the existence of a fact of consequence more or less probable than it would otherwise be, then it can be said the trial court abused its discretion to admit that evidence. Moreover, when it is clear to the appellate court that what was perceived by the trial court as common experience is really no more than the operation of a common prejudice, not borne out in reason, the trial court has abused its discretion. In either event the appellate court should recognize that the trial court erred to admit the proffered evidence, and proceed to determine harmfulness under Tex.R.App.Pro., Rule 81(b)(2).

¶24Whether objected-to evidence of “other crimes, wrongs, or acts” has relevance apart from character conformity, as required by Rule 404(b), supra, is also a question for the trial court. The trial judge must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. An appellate court owes no less deference to the trial judge in making this judgment than it affords him in making any other relevancy call.

¶25B. Reviewing the Trial Court’s Decision Whether To Exclude Evidence under Rule 403

¶26We also measure the trial court’s ruling whether to exclude evidence of “other crimes, wrongs, or acts” under Rule 403 by an abuse of discretion standard. The majority on original submission went so far as to declare that in making this assessment, the appellate court should afford the trial court “a 'limited right to be wrong,’ so long as the result is not reached in an arbitrary or capricious manner.” Op. at 380, citing Rosenberg, Judicial Discretion, 38 Ohio Bar 819, 823 (1965). By this we meant nothing more than that an appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. We did not mean to *392say that appellate review of the trial court’s decision whether to exclude evidence under Rule 403 is altogether precluded so long as it appears that the trial court conducted a balancing of probativeness and prejudice when timely called upon to do so.

¶27Rule 403 provides by its terms that relevant evidence “may” be excluded. It could be argued that use of the permissive “may”, in combination with the presumption of admissibility of relevant evidence, shows that the rulemakers contemplated that a trial court’s decision whether to exclude evidence under Rule 403 would not be subject to appellate review. The federal rule has not been construed in this way, however. See Wright & Graham, supra, § 5224, at 323-24 & n. 9. Indeed, the Fifth Circuit has commented that it reads the rule “to require exclusion when prejudice outweighs probative value.” United States v. Preston, 608 F.2d 626, at 639, n. 16 (5th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). In context of “other crimes, wrongs, or acts” evidence, Professors Wright and Graham have observed that:

“the discretion of the trial judge arises in connection with the balancing of the probative worth of the evidence for some relevant purpose against the prejudice that arises from the possibility that it will be used for the forbidden inference as to propensity. It is to this balancing that the appellate courts will afford ‘deference to the judgment of the trial court.’ However, even here appellate supervision is available in cases of abuse of discretion.” (emphasis added.)

¶28Id., § 5250, at 544.

¶29This appellate deference is a rule of judicial restraint, intended, once again, to avoid the anomaly of having appellate courts usurp a function that the system assigns to the trial courts. See United States v. Long, 574 F.2d 761 (CA3 1978). The appellate court should not conduct a de novo review of the record with a view to making a wholly independent judgment whether the probative value of evidence of “other crimes, wrongs, or acts” is substantially outweighed by the danger of unfair prejudice. It should reverse the judgment of the trial court “rarely and only after a clear abuse of discretion.” United States v. Maggitt, 784 F.2d 590, 597 (CA5 1986).

¶30But reviewing the trial court’s judgment for abuse of discretion requires more of an appellate court than deciding that the trial judge did in fact conduct the required balancing and did not simply rule arbitrarily or capriciously. The appellate court must measure the trial court’s ruling against the relevant criteria by which a Rule 403 decision is to be made. This approach is consistent with the Fifth Circuit’s appellate review under the federal rule. E.g., United States v. Beechum, supra; United States v. Benton, 637 F.2d 1052 (CA5 1981); United States v. Emergy, 682 F.2d 493 (CA5), cert. denied, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 615 (1982); United States v. Shaw, 701 F.2d 367 (CA5 1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). It is also faithful to this Court’s long tradition of determining the admissibility of extraneous offense evidence on appeal by reviewing not only the relevance of that evidence, but the State’s need for it as well. E.g., Albrecht v. State, supra, at 100 (“Evidence of extraneous offenses committed by the accused has been held admissible: ... (2) To circumstantially show identity where the state lacks direct evidence on this issue. (3) To prove scien-ter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act_”) (emphasis added; footnotes omitted); Prior v. State, 647 S.W.2d 956 (Tex.Cr.App.1983).

¶31Therefore we hold that where relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial court erred in failing to exclude it. Relevant criteria gleaned from the authorities include, inter alia, that the ultimate issue was not seriously contested by the opponent; that the State had other *393convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; that the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; that the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious. Accordingly, when the record reveals one or more such relevant criteria reasonably conducing to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then an appellate court should conclude that the trial court acted irrationally in failing to exclude it, and thus abused its discretion. The trial court has no “right” to be “wrong” if that means to admit evidence which appears to the appellate court, affording all due deference to the trial court’s decision, nevertheless to be substantially more prejudicial than probative.4

¶32IV. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

¶33A. Rule 404(b) Relevance

¶34Appellant was tried simultaneously under two indictments for indecency with a child committed against two of his three young daughters. One of appellant’s former wives, not the mother of his daughters, testified that in her experience, appellant would “quite frequently” “walk around in the nude” in front of his children “[wjith erections.”5 Prior to admission of this testimony, appellant objected “on the grounds of relevancy and also on the grounds this is getting into extraneous offenses.” There was other testimony from several witnesses that appellant used inappropriate language in relating to his daughters. He is said to have made statements such as: “Give me your hot love.” “You and I were made for each other.” “Press your hot lips to mine.” He described his second oldest daughter as having a “fat pussy,” and would instruct his daughters when they were bathing, “Don’t forget to wash your slit.” Appellant had taught his daughters to French kiss, and one or more of them sometimes slept in his bed. All of this evidence was admitted during the State’s case-in-chief, before any evidence was proffered to prove the specific offenses alleged in the indictments. On appeal appellant complained only of admission of the testimony that he walked around in front of the children with an erection.

¶35i. Boutwell v. State

¶36The court of appeals held that the extraneous misconduct at issue was admissible because it enhanced the credibility of the child complainants, reasoning that:

“evidence of [appellant’s] inappropriate sexual conduct directed toward his children was relevant to place the charged offense in the context of the relationship between [appellant] and his children. The evidence was admissible ‘to aid the jury in properly evaluating the inherently questionable testimony of a minor against an adult responsible for his wel*394fare or in a position of authority or control over the minor.’ Boutwell [v. State ], 719 S.W.2d [164,] at 178-179 [ (Tex.Cr.App.1985) (Opinion on State’s motion for rehearing)].”

¶37Montgomery v. State, 760 S.W.2d 323, at 325 (Tex.App.— Dallas 1988).

¶38Boutwell v. State, supra, was decided before the effective date of the new rules of criminal evidence. Under present Rule 404(b), extraneous misconduct cannot be used “to prove the character of a person in order to show that he acted in conformity therewith.” The evidence must serve some other purpose under Rule 404(b) in order to be admissible over objection. In Boutwell the Court identified a purpose to which extraneous sexual misconduct evidence may be put that has long been a part of Texas law, although not expressly recognized in the Albrechtlist. We held that such evidence may be relevant to counteract a perceived societal aversion to the notion that parents or others in loco par-entis would actually commit sexual crimes against their own children.6 Because incestuous crimes usually occur in secrecy, the State’s case may depend upon the credibility of the child complainant. Where the accused calls that credibility into question, evidence of other identical or similar acts of sexual misconduct perpetrated by a parent against his own child may well serve to shore up testimony of the child if in logic it shows a lascivious attitude (relevant to culpable intent) and a willingness to act on it (relevant to prohibited conduct) that a jury might otherwise be loathe to attribute to a parent toward his child. Where under the circumstances of the particular case the evidence logically serves such a purpose, it may have relevance under Rule 404(b), supra, apart from character conformity.

¶39ii. Specific Intent

¶40On original submission the majority eschewed the court of appeals’ reliance upon Boutwell and concluded instead that appellant’s conduct was relevant inasmuch as it tended to prove “appellant’s sexual motive if he touched the complainants.” Slip op. at 381. It is at least subject to reasonable debate whether the testimony that appellant frequently walked around in front of his daughers naked and with an erection, in combination with other evidence of inappropriate behavior toward them, did have a tendency to show a generalized “intent to arouse and gratify” his own sexual desire vis-a-vis his children. This in turn would support an inference that, if he did in fact touch his daughters’ genitals with his hand on the occasions alleged, it was a specific manifestation of that same intent to arouse and gratify his sexual desire, an elemental fact in these prosecutions. It would have been better had the prosecutor articulated this purpose in response to appellant’s objection at trial, not only to facilitate the trial court’s ruling, as well as appellate review thereof, but also to enable appellant to request an appropriate limiting instruction. See Rule 105(a), supra. Appellant requested no such articulation, however, and we hold it was not an abuse of discretion for the trial court to have found the evidence had relevance apart from character conformity.

¶41*395B. Rule 40S Balancing

¶42Appellant voiced no separate objection to the evidence based upon Rule 403. Nevertheless, perhaps following the pattern of the caselaw preceding the new rules, the court of appeals observed that “[t]he relevancy of this evidence must be balanced against its potential for prejudice.” Montgomery, supra, at 325. At no point in the appellate process, including in response to appellant’s original petition and on rehearing, has the State complained that appellant failed to preserve error. That question is therefore not before us. Tallant v. State, 742 S.W.2d 292, 294 (Tex.Cr.App.1987); Rochelle v. State, 791 S.W.2d 121 (Tex.Cr.App.1990). We proceed, then, to review the court of appeals’ conclusion “that the probative value of the extraneous evidence outweighed any possibility of prejudice.” Montgomery, supra, at 325.

¶43In concluding that probative value outweighed prejudice, the court of appeals reasoned:

“The possibility that the jury convicted [appellant] for indecent exposure rather than indecency with a child does not outweigh the probative value of the evidence. The contested evidence did not establish a pattern of chronic child abuse such as would cause the jury to convict [appellant] of general criminality while maintaining reasonable doubts as to the specifically charged offense. Rather, the evidence served its proper function of revealing the familial relationship which provided the context of the charged offense.”

¶44Id.See also Mannie v. State, 738 S.W.2d 751, at 756 (Tex.App.—Dallas 1987, pet. ref’d); Pacheco v. State, 764 S.W.2d 388, at 389 (Tex.App.—Amarillo, 1989, no pet.). We note two deficiencies in this analysis. First, the question of prejudice is not solely a function of whether the jury would likely convict appellant of the wrong offense, or for “general criminality.” Evidence of “other crimes, wrongs, or acts” may also create “unfair prejudice” if under the circumstances a jury would be more likely to draw an impermissible character conformity inference than the permissible inference for which the evidence is relevant, or if it otherwise distracts the jury from “the specifically charged offense” and invites them to convict on a moral or emotional basis rather than as a reasoned response to the relevant evidence. Second, in weighing prejudice against probative value, the court of appeals failed to make any inquiry into the State’s need for the evidence.

¶45The State elicited testimony of appellant’s “other crimes, wrongs or acts” in the early going during its case-in-chief, before any attempt was made to present evidence of the particular events for which appellant stood trial. Without at least some inquiry of the State as to what other evidence it had relevant to appellant’s specific intent, the trial court was not in a position reliably to assay the probative value of this testimony against the need of the State for admitting it. Indeed, as the State’s case developed, it became clear that the State’s need was minimal at best. For the events themselves, as related by the daughters and by a Department of Human Services caseworker, served unequivocally to establish appellant’s intent to arouse and gratify his own sexual desire.

¶46The caseworker testified pursuant to Article 38.072, Y.A.C.C.P. She related that appellant’s eldest daughter told her that appellant had touched her in her genital area. Appellant's second oldest daughter was somewhat more graphic in her description to the caseworker:

“Q. Did you ask her whether or not she had any secrets?

A. Yes, I did.

[[Image here]]

Q. Did you ask her who those secrets were with?

A. Yes.

Q. Who did she say they were with? A. Daddy.

[[Image here]]

Q. What did you ask her next?

A. I asked her if she could tell me about the secret.

Q. What did she say?

A. She said that her father — the secret was that her father was touching her *396and then she indicated her genital area by touching.

Q. Did she say what he was touching her with?

A. His hand.

Q. Did you use anything to get further information from her regarding that?

A. Yes, I did.

Q. And what did you use?

A. The anatomically correct dolls.

Q. What did she do with those dolls?

A. She took the male doll and laid it on top of the female doll. She took the penis from the male doll and stuck it between the thighs and then she moved the male doll’s hips back and forth.

Q. She put the penis of the male doll— and I assume his pants were down?

A. Yes.

Q. Between the thighs of the female doll?

A. Yes.

Q. And were her pants off, too?

A. Yes.

Q. And then she moved the male doll’s hips back and forth?

A. Yes.”

[[Image here]]

¶47At trial, appellant’s second oldest daughter described the same event as follows:

“Q. ... Now will you tell [the jury] about the secret you and your daddy had?

A. Yes.

Q. What happened? Look over here

A_Tell me what happened.

A. My dad told me not to tell anybody.

Q. Well, it’s okay to tell now, so will you tell us now?

A. Yes.

Q. Okay. Tell me what happened. Did your daddy come in a room?

[Objection to leading overruled]

A. Yes.

Q. What did he say when he came in the room?

A. Not to tell anybody.

[[Image here]]

Q. ... What happened when your daddy walked into the room?

A. He told me to pull down my panties.

Q. Okay. And did you do that?

A. Yes.

Q. Because he’s your daddy, right, and

you mind him?

A. Yes.

Q. Okay. Then what did you do?

A. I did what he told me to do.

Q. And what was that?

A. To pull down my panties.

Q. And then what?

A. Then he pulled down his panties.

Q. And then what did he do?

A. He molested me.

[[Image here]]

Q. How did he do that?

A. By touching me.

Q. What did he touch you with?

A. His hands.

Q. He put his hands where?

A. On my private.”

¶48With anatomically correct dolls, the child then demonstrated how appellant had touched her “private” with his hand. This time she denied “he put anything else between [her] legs beside his hand.” Appellant’s oldest daughter also testified that appellant had put his hand on her “pee place.” Appellant had told her also “not to tell anybody.”

¶49Thus the State presented evidence that each child was touched in a way that can hardly be attributed to normal parental caretaking. That appellant instructed both children not to reveal the event to anyone shows a consciousness of wrongdoing which in turn leads to an inference that when he touched the children as he did, appellant harbored a specific intent to arouse and gratify his own sexual desire. The children themselves may not have fully appreciated the significance of appellant’s conduct, but this would not diminish the impact of their testimony. Appellant’s lascivious intent would be readily apparent to a jury of adults. Thus, the State had other compelling evidence to show appellant touched his children with the intent to arouse and gratify his own sexual desire.

¶50*397Nor, as it turned out, did the State need evidence “revealing the familial relationship which provided the context of the charged offense.” Such evidence serves to shore up a child complainant’s testimony. But as the Court observed in Boutwell, supra at 178, a prerequisite to admission of evidence for this purpose “was that the defendant must first deny the act or undermine or impeach the complainant in some way before extraneous acts are admissible.” This was no more than a specific application of the former rule that extraneous offenses are inadmissible if more prejudicial than probative. Id., at 175. Unless the accused denied the offense, or impeached the child complainant, the prejudice was deemed weightier than the probative value. In the instant cause the testimony needed no shoring up. The two complainants “corroborated” one another. Id., at 178, n. 1. Their testimony was also buttressed by prior consistent statements that each made separately to the caseworker. Appellant’s cross-examination of these witnesses was brief and inefficacious. He did not challenge the children’s stories. After the State rested, appellant testified in his own behalf. He spent the bulk of his testimony denying the various extraneous acts and statements attributed to him during the State’s case-in-chief. Although he generally denied ever having touched his daughters in an inappropriate manner, he did not contest the particular testimony of the children or the caseworker. Appellant did baldly assert that his daughters had been “coached” in their testimony either by one of his ex-wives or by the caseworker. The State persuasively countered these assertions, however, by showing that neither of appellant’s former wives had had recent access to the children, and that the caseworker had no motive to coach them.

¶51We conclude the State had no compelling need to show that appellant frequently walked around naked, with an erection, in the presence of his children, either to prove specific intent or to shore up testimony of the complainants.

¶52Inherent probativeness and inherent prejudice also weight in favor of exclusion. Though relevant, such evidence has only marginal probative value. By contrast, the danger of unfair prejudice from such testimony is substantial. Both sexually related misconduct and misconduct involving children are inherently inflammatory. Many in our society would condemn appellant for his conduct whether they believed it showed sexual arousal directed at his children, an undifferentiated sexual arousal imprudently displayed, or simply an incidental erection coupled with a damnable nonchalance. In any event there was a grave potential for decision on an improper basis, as jurors may have lost sight of specific issues they were called upon to decide and convicted appellant out of a revulsion against his parental demeanor. A substantial portion of the State’s case was devoted to showing such extraneous misconduct, and most of appellant’s evidence was responsive to it. Under these circumstances a jury instruction would not likely have neutralized the danger. We conclude that probativeness was minimal while the potential for prejudice was great.

¶53Because all factors militate in favor of a finding that the probativeness of the evidence was substantially outweighed by the danger of unfair prejudice, we conclude that the trial court abused its discretion to admit it. The court of appeals erred to conclude otherwise. Accordingly, we reverse the judgment of the court of appeals and remand the cause to that court for a determination of whether the error in admitting the evidence was harmless under Rule 81(b)(2), supra.