Gaytan v. State, 331 S.W.3d 218

Gaytan was convicted on twenty counts of aggravated sexual assault and one count of indecency with a child; sentences 99 years on each sexual assault count and 15 years on the indecency count, all running consecutively.
The assaults occurred with Gaytan babysitting his six-year-old niece C.R. between August 18 and September 8, 2004.
During trial, two adult female relatives testified about molestation by Gaytan decades earlier; Gaytan challenged admission as 404(b) evidence and Rule 403 prejudice.
The State presented testimony from Perez and Tanya, Gaytan’s nieces, about prior abuse by him; trial court allowed these testimonies under 404(b).
C.R. testified as the primary victim; defense moved to strike her testimony on lack of personal knowledge, which the court denied.
Gaytan contends the 404(b) testimony was improperly admitted, that C.R.’s testimony should have been struck, and that the evidence was insufficient to support sixteen of the twenty counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Perez and Tanya’s testimony was admissible under Rule 404(b).	Gaytan did not open a fabrication theory; 404(b) prejudicial.	State rebutted fabrication and proved motive/intent/knowledge under 404(b).	Admissible to rebut fabrication and to prove motive/intent/knowledge; no abuse of discretion.
Whether admission of Perez and Tanya’s testimony violated Rule 403 due to remoteness and prejudice.	Testimony was remote and inherently prejudicial.	Probative value outweighed prejudice; proper jury instructions given.	Court balanced factors; admission not an abuse of discretion.
Whether the trial court erred by denying a timely strike of C.R.’s testimony when she admitted not having direct memory of abuse.	Error to admit testimony lacking personal knowledge.	No error; testimony properly admitted and cross-examination explored credibility.	Error was waived due to untimely motion to strike.
Whether the evidence was legally sufficient to support conviction on the contested assault counts.	Dates alleged did not align with when abuse occurred; insufficient.	Robinson’s testimony supported August–September 2004 abuse; credibility for timing resolved by jury.	Evidence legally sufficient to support the counts contested.

Bass v. State, 270 S.W.3d 557 (Tex.Crim.App. 2008) (defense opening may open door for extraneous-offense rebuttal)
De La Paz v. State, 279 S.W.3d 336 (Tex.Crim.App. 2009) (opening statement may open door to extraneous-offense evidence)
Newton v. State, 301 S.W.3d 315 (Tex.App.-Waco 2009) (remoteness affects Rule 403 probative value but not dispositive)
Hammer v. State, 296 S.W.3d 555 (Tex.Crim.App. 2009) (Rule 403 weighing framework; prejudice vs. probative value)
Gigliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App. 2006) (Guide for applying Rule 403 factors in 403 analyses)
Bowley v. State, 310 S.W.3d 431 (Tex.Crim.App. 2010) (properly upholding evidentiary ruling if proper under any theory)
De La Paz v. State, 279 S.W.3d 336 (Tex.Crim.App. 2009) (opening statement may open the door to extraneous-offense evidence)