CROSSOVER: Cerda: Similar Child-Sexual-Abuse Evidence Survives Rule 403 in a Credibility-Driven Case

Cerda v. State, 10-25-00017-CR, October 29, 2026.

On appeal from 19th District Court of McLennan County, Texas

Synopsis

In a credibility-driven child-sexual-abuse prosecution, the Tenth Court held that testimony describing a similar offense against another young family member survived Rule 403 because its substantial probative value was not clearly outweighed by unfair prejudice. The court affirmed the conviction and life sentence but modified the judgment to delete two court costs that were not expressly authorized by law.

Relevance to Family Law

Although Cerda is a criminal case, its Rule 403 analysis is instructive in SAPCRs, divorces involving conservatorship, protective-order proceedings, and modification cases in which sexual-abuse allegations turn on credibility rather than physical or scientific evidence. Evidence that a parent or proposed conservator engaged in similar conduct involving another child may be highly probative, particularly when the incidents share a family relationship, age range, location, access opportunity, and method of contact. But Article 38.37’s express authorization of propensity evidence is criminal-specific; family-law counsel must identify an independent civil basis for admission, such as Texas Family Code section 153.004, Texas Rule of Evidence 415 when applicable, or a proper noncharacter purpose under Rule 404(b), and must still address Rule 403.

The court-cost holding also provides a useful procedural reminder. Although Code of Criminal Procedure article 103.002 does not govern civil family-law judgments, costs and fees assessed in a divorce or SAPCR likewise require legal authority. Counsel should separately audit filing fees, service fees, ad litem fees, expert allocations, sanctions, and attorney’s-fee awards rather than assume every amount appearing in a judgment or cost bill is authorized.

Case Summary

Fact Summary

A jury convicted Gerardo Cerda of continuous sexual abuse of a young child and assessed a life sentence. The complainant, A.S., was Cerda’s step-granddaughter. She testified that Cerda began touching her when she was approximately six years old and continued until she was about ten. According to A.S., the conduct occurred in Cerda’s vehicle during trips to H-E-B and in her grandparents’ bedroom, where Cerda touched her genitals over and under her clothing.

The State presented testimony from A.S., a physician who examined her, a CPS investigator, and a forensic interviewer. The medical examination was normal, and the professionals could not independently testify that the abuse had occurred. Cross-examination emphasized the absence of physical corroboration, A.S.’s delayed disclosure, and inconsistencies in her accounts.

The State also offered testimony from E.S., another of Cerda’s step-granddaughters and A.S.’s cousin. Outside the jury’s presence, the trial court heard E.S.’s proposed testimony and found that the evidence would support a jury finding beyond a reasonable doubt that the incident occurred, as required by Code of Criminal Procedure article 38.37, section 2-a. E.S. then testified that, when she was approximately five years old, Cerda approached her from behind in her grandmother’s kitchen, placed his hand inside her underwear, and touched her vagina.

Cerda denied touching either child. He objected to E.S.’s testimony under Rules 401, 402, 403, and 404, asserting that any probative value was outweighed by unfair prejudice. The trial court overruled the objection and granted a running objection.

Cerda also challenged two items assessed as court costs, contending that no statute authorized them.

Issues Decided

1. Whether the trial court abused its discretion under Texas Rule of Evidence 403 by admitting E.S.’s testimony concerning a separate sexual offense.

2. Whether the two challenged court costs had to be deleted because they were not expressly authorized by law.

3. Whether the errors in the assessment of costs required reversal of the conviction or could be corrected by modifying the judgment.

Rules Applied

Article 38.37, section 2(b) of the Texas Code of Criminal Procedure permits evidence that a defendant committed a separate child-sexual offense for its bearing on relevant matters, including the defendant’s character and conduct in conformity with that character. Before such evidence is admitted, section 2-a requires a hearing outside the jury’s presence and a determination that the evidence would support a jury finding beyond a reasonable doubt that the separate offense occurred.

Evidence admissible under Article 38.37 remains subject to Texas Rule of Evidence 403. Rule 403 permits exclusion when the evidence’s probative value is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, undue delay, or needless cumulative presentation.

Under Gigliobianco v. State, courts balance:

• The evidence’s inherent probative force;
• The proponent’s need for the evidence;
• Its tendency to suggest a decision on an improper basis;
• Its tendency to confuse or distract the factfinder;
• Its potential to receive undue weight; and
• The time required to present it or its cumulative character.

The appellate court reviewed the evidentiary ruling for abuse of discretion. Under De La Paz v. State, a ruling within the zone of reasonable disagreement must be upheld. Consistent with Hammer v. State, Rule 403 should be applied sparingly to exclude relevant evidence bearing on credibility in a “he said, she said” sexual-abuse case, and exclusion ordinarily requires a clear disparity between prejudice and probative value.

For the cost issues, Article 103.002 of the Code of Criminal Procedure provides that a cost may not be imposed unless a written law authorizes it. An appellate court may modify a criminal judgment to delete unauthorized costs without disturbing an otherwise valid conviction and sentence.

Application

The court treated the prosecution as substantially dependent on credibility. The medical examination was normal, and the physician, CPS investigator, and forensic interviewer could not independently establish that the charged abuse occurred. Their testimony largely concerned A.S.’s reports and the investigative process. Cerda’s cross-examination directly attacked A.S.’s delayed disclosure and inconsistencies. Cerda then testified and denied both girls’ allegations.

Against that record, E.S.’s testimony supplied evidence based on her own firsthand knowledge rather than a repetition of A.S.’s statements. The court therefore concluded that the State had a considerable need for the testimony.

The court also found substantial similarities between the charged conduct and the separate incident. Both girls were Cerda’s young step-granddaughters, both spent time at the grandmother’s house where Cerda had access to them, and both described hand-to-genital contact occurring when they were young children. E.S.’s incident also occurred during the same general period as the abuse described by A.S. The similarity extended beyond the general category of sexual misconduct to the family relationship, ages, location, access, and method.

The evidence unquestionably carried a risk of emotional prejudice. Evidence that a defendant sexually touched another young child is inflammatory. But Rule 403 addresses unfair prejudice, not merely damaging evidence. Article 38.37 also expressly allowed the jury to consider qualifying evidence for matters including character and conformity, narrowing the range of considerations that could be characterized as legally improper in this criminal prosecution.

The differences in E.S.’s accounts and her delayed report did not make the testimony inadmissible. Cerda explored those matters through cross-examination, allowing the jury to evaluate the reliability and weight of her testimony. Considering the prosecution’s evidentiary need, the similarities between the incidents, and the central credibility dispute, the trial court could reasonably determine that there was no clear disparity under which unfair prejudice substantially outweighed probative value.

As to costs, the court applied Article 103.002’s requirement of express legal authorization. Because no law authorized the two challenged assessments, those amounts could not remain in the judgment. The defect concerned only the cost provisions and did not undermine the jury’s verdict or punishment assessment.

Holding

The trial court did not abuse its discretion by admitting E.S.’s testimony over the Rule 403 objection. In this credibility-centered prosecution, the testimony had substantial probative force and met a significant evidentiary need, while its prejudicial effect did not substantially outweigh that value.

The two challenged court costs were unauthorized and had to be deleted under Article 103.002. A court cost cannot be imposed merely because it appears in a bill of costs; a written law must authorize the assessment.

The court modified the judgment to remove the unauthorized costs and affirmed the judgment as modified. The conviction for continuous sexual abuse of a young child and the life sentence remained intact.

Practical Application

For Texas family-law litigators, Cerda demonstrates that the Rule 403 record should be built around concrete evidentiary features rather than generalized assertions that abuse evidence is either “highly relevant” or “extremely prejudicial.” Counsel offering similar-act evidence should identify the shared relationship, age, setting, access, timing, and method, while also explaining why other witnesses or records do not supply equivalent proof.

Counsel opposing the evidence should distinguish between matters affecting weight and matters supporting exclusion. Delayed reporting, inconsistencies, and the absence of physical findings are often powerful cross-examination points, but they do not automatically establish that the evidence is inadmissible. A stronger Rule 403 argument addresses weak similarity, remoteness, collateral mini-trials, cumulative proof, jury confusion, and the availability of less prejudicial evidence.

In a conservatorship or possession dispute, the evidence may bear directly on the best-interest analysis and on Family Code section 153.004’s restrictions concerning a history or pattern of family violence, child abuse, or sexual abuse. The proponent should nevertheless identify the precise admission pathway. Article 38.37 does not itself authorize admission in a SAPCR.

Where Texas Rule of Evidence 415 applies to a civil proceeding based on alleged sexual assault or child molestation, counsel should provide the required notice and be prepared to establish that the proposed evidence falls within the rule. In other family cases, counsel may need to rely on section 153.004, Rule 404(b), or another applicable doctrine while avoiding an unsupported propensity argument.

In a bench trial, Rule 403 still applies. Counsel should not assume that the absence of a jury eliminates the need for a developed objection and ruling. A focused offer of proof, a request for explicit findings where available, and a clear explanation of the evidence’s permissible use will improve both the trial presentation and the appellate record.

Finally, audit monetary assessments line by line. In family-law judgments, distinguish taxable court costs from attorney’s fees, sanctions, ad litem compensation, expert expenses, and equitable allocations. Each category has its own statutory, rule-based, contractual, or inherent-authority requirements.

Checklists

Offering Similar-Act Evidence in a Family Case

• Identify the substantive issue for which the evidence is relevant, including conservatorship, possession, child safety, a protective order, or credibility.
• Identify the specific legal basis for admission.
• Do not rely on Code of Criminal Procedure article 38.37 as authority in a civil family case.
• Determine whether Texas Rule of Evidence 415 applies and satisfy any notice requirement.
• Address Family Code section 153.004 when the evidence concerns family violence, child abuse, or sexual abuse.
• Identify specific similarities in age, relationship, access, setting, timing, and method.
• Explain why the evidence is needed and why other proof is not an adequate substitute.
• Prepare the witness to establish firsthand knowledge.
• Request a preliminary admissibility ruling when appropriate.
• Offer a limiting instruction if the evidence is admissible only for a particular purpose.
• Create a complete offer of proof if the evidence is excluded.

Opposing Admission Under Rule 403

• Make a timely, specific Rule 403 objection.
• Obtain a ruling and request a running objection if the testimony will be extended.
• Address each relevant Gigliobianco factor on the record.
• Identify material dissimilarities between the alleged incidents.
• Explain any temporal remoteness.
• Show whether the evidence will require a collateral mini-trial.
• Identify cumulative testimony already admitted or available.
• Explain how the evidence could confuse the issues or receive undue weight.
• Propose narrowing measures, redactions, stipulations, or a limiting instruction.
• Distinguish admissibility defects from matters that merely affect credibility or weight.

Preserving a Family-Law Evidentiary Record

• Obtain rulings on objections; do not rely on an unruled motion in limine.
• Renew the objection at trial unless the court grants a running objection.
• State every applicable ground, including relevance, Rule 403, hearsay, authentication, and Rule 404.
• Secure a reporter’s record of any preliminary hearing.
• Make an offer of proof before the opportunity is lost.
• Include excluded exhibits in the appellate record.
• Request limiting instructions at the time the evidence is admitted.
• Ensure that post-trial motions identify the complained-of evidentiary ruling with specificity.

Auditing Costs and Monetary Awards

• Separate taxable costs from attorney’s fees, sanctions, expert fees, and ad litem compensation.
• Identify statutory or rule-based authority for every assessed item.
• Compare the signed judgment with the clerk’s cost bill and docket entries.
• Verify that required evidence supports attorney’s fees and other discretionary awards.
• Confirm that the judgment identifies the party against whom each amount is assessed.
• Challenge unauthorized items with a specific motion to modify, correct, or reform the judgment.
• Preserve objections to allocation, amount, evidentiary support, and legal authority.
• Request modification rather than reversal when the defect can be corrected without disturbing the merits.

Citation

Cerda v. State, No. 10-25-00017-CR (Tex. App.—Waco Oct. 29, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion in Cerda v. State.

Family Law Crossover

The principal crossover mechanism is Rule 403 balancing when a party offers evidence of similar sexual misconduct to resolve a credibility-dependent dispute. In a Texas family matter, the issue may arise through a motion in limine, a pretrial evidentiary hearing, an objection during testimony, or an offer of proof after exclusion. The trial court should identify the evidence’s probative force and the proponent’s need for it, then weigh those considerations against unfair prejudice, confusion, undue weight, delay, and cumulative presentation.

Unlike the criminal prosecution in Cerda, a family case does not receive Article 38.37’s express authorization to use qualifying offenses as propensity evidence. The proponent must establish an applicable civil route to admission—potentially Family Code section 153.004, Rule 415, Rule 404(b), or another recognized doctrine—and then survive Rule 403. The procedural lesson is to develop a factor-specific record showing similarities, differences, evidentiary need, permissible use, and available safeguards.

The cost ruling presents a second crossover. When a family-law judgment includes a monetary assessment characterized as a “cost,” the court and parties must identify legal authority for that particular assessment. If an item is unauthorized but severable from the merits, the appropriate appellate remedy may be modification of the judgment rather than reversal of the divorce, conservatorship, possession, or property determinations.

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