Samet v. State (Unpublished Memo): A third grader testifies to a sexual assault that occurred when he was just about four years old. The defense strategy: attack the kid. Strategy backfires. Opens the door to a photo of the grown male defendant wearing a white dress with pink hearts. Also opens the door to a letter the defendant had written to his own son (a teenager at the time) asking the son to come to the father’s house at an appointed hour, where the father would be wearing a dress and ready for sexual acts. All of this is admissible because the victim remembers the defendant wearing a pink and white dress during the commission of the crime.
Under Tex. R. Evid. 403, there was also no error in admitting testimony that the defendant had, while changing a diaper when the defendant was one year old, fondled the victim’s testicles. That’s too remote from what happened when the boy was almost four. It’s not very probative. On the other hand, this evidence simply wasn’t harmful to the defendant, in the light — make that darkness — of everything else. So the trial court didn’t abuse its discretion in admitting this testimony.
