*1 Tremayne BLACKWELL, Theran
Appellant, Texas, Appellee. STATE 01-03-01314-CR.
No. Texas, Appeals
Court (1st Dist.).
Houston
Jan.
Discretionary Refused Review 7, 2006.
June *4 trial court erred contends that the
рellant two admitting extraneous by the State offenses and permitting improper question an commitment ask point of error Appellant’s third voir dire. attorney rendered that his trial asserts hold of counsel. We assistance ineffective allowing did not err the trial court of extraneous offenses admission evidence of rebuttal suggested theories at which sexually intent to assault pellant lacked the the victim of J.H. and that grandmother. We “frame-up” J.H.’s State’s voir dire further hold commitment questions improper *5 trial attor- questions appellant’s and that ney not render ineffective assistance did affirm. counsel at trial. We therefore
Facts Appellant was related to J.H.’s cousins very he was and had known J.H. since years eight or nine young. When J.H. was old, residence began appellant’s to visit spend night alone and to there. J.H. Leitner, Houston, for Appel- James M. his grandmother, lived with Melvina Ste- lant. with her pherson, and made these visits Atty., Keating, Kevin P. Asst. Dist. appel- to visit permission. J.H. wanted Jr., Rosenthal, Atty.-Har- A. Dist. Charles his lant’s residence because cousins Glen Houston, County, ris for Appellee. to Stepherson often went there and Fred play. and to watch movies NUCHIA, Panel consists Justices together night, sharing One while bed JENNINGS, and ALCALA. residence, appellant appellant’s in woke had the bed up to tell him that he wet J.H. OPINION change clothes. After and needed to his ALCALA, ELSA Justice. and changed his clothes returned J.H. Blackwell, bed, disrobe, him but appellant Theran told J.H. Appellant, Tremayne whip Appellant of inde- threatened pleaded guilty to the offense refused. off and he did not take his clothes cency with a child. J.H. Tex. ANN. Pen.Code (Vernon 2003). 21.11(a)(1) he refused to “whipped” § then J.H. when finally complied J.H. guilty, true an en- remove his clothes. appellant found found him to appellant get told alleged ap- by disrobing, and paragraph hancement conviction, felony baby from the bathroom. J.H. com- pellant prior had a oil appellant plied returned bed find punishment his at confinement assessed error, to rub Appellant naked. instructed J.H. years. points two baby chest, appellant’s “private oil on his sistent statements that made to vari- part,” and his “behind.” also Appellant people, ous audiotape and writing, “private part” rubbed J.H.’s and “behind” J.H. which claimed the allegations baby contact, with oil. After the sexual that he had made against appellant were anyone told J.H. not to tell what not true that he falsifying transpired. J.H. testified that this allegations jealous because he was repeatedly conduct occurred at attention that gave to his cousins apartment over the course of several explained Glen and Fred. J.H. during his years. direct examination the State that his denying statements the conduct appel-
J.H. repeated also described con- sexual voluntarily. lant were not Appel- made duct with appellant appel- occurred attorney lant’s cross-examined J.H. about lant’s car. appellant gave J.H. said that prior inconsistent statements and mo- him beverages alcoholic him that caused lie tives to about appellant. feel drowsy dizzy. in- At struction, J.H. disrobed and appel- rubbed during Melvina testified direct examina- “private part” lant’s while tion that she was unaware that “private rubbed part” J.H.’s one girlfriend, had ever had that she believed Appellant’s hand. other hand was on the initially reported J.H. when he the sexual steering wheel as he drove the car. her, misconduct to and that J.H. was a repeated boy” also described “good got nothing sexual con- who into more than duct that occurred with appellant boyhood normal Melvina trouble. also *6 lant’s studio in recording a room that had appellant stated that purchased pair had a appeared what to be cotton on the walls. J.H., of sneakers for “didn’t think but she Appellant clothes, to told J.H. remove his of anything it” appellant “always because and, complied, pulled when appellant J.H. bought things” for grandsons.” her “two down pants his own and J.H. instructed to give She did other details about “private rub appellant’s part.” appellant’s relationship with her “two Likewise, state, grandsons.” did not she old, eight When he was years nine trial, in point at that the the names of her reported J.H. the sexual to his misconduct grandsons, they two or whether were chil- grandmother, Stepherson, Melvina but she During dren or adults. cross-examination did nothing about because was in she Melvina, appellant’s attorney introduced however, poor mother, health. J.H.’s re- through appellant her that was a good ported police the to conduct officers when figure father to grandsons her other two she learned J.H.’s allegations upon about appellant begun and a that had football prison. her release from young boys. team for trial, At the State’s case-in-chief consist- presented trial Appellant’s attorney the J.H., ed testimony from was who during of seven years appel- witnesses old at the time of the his Melvina, testimony pre- lant’s case-in-chief. The grandmother police and two offi- during appellant’s cers who sented defense at trial investigation testified about their (1) following: showed the J.H. in the case. stated J.H.’s at trial de- appellant and on that writing audiotape scribed the contact with appellant sexual in improper any way; the was not with occurred over course of several J.H. (2) (3) years. anticipation challenge In is not a person; of a to J.H. truthful J.H. defense, credibility allegations J.H.’s the State falsified the because be- introduced incon- prior appellant J.H.’s lieved that mean and be- was to off told K.S. take Appellant jealous of attention that disrobe. J.H. was cause (4) cousins, ex- complied. and K.S. pants, to his K.S. appellant gave J.H.’s that, stand- many girl- was previously plained appellant had had because appellant door, intro- attorney also locked he did not Appellant’s right by friends. ing clerk testimony from a district court appellant duced leave. When feel he could off, said that her records showed who shorts K.S. to his boxer told K.S. take in date of jail appellant feared cry he might that he because felt alleged the indictment. offense from him. Before appellant what wanted off, appellant shorts K.S. took boxer rebuttal, objections, over Appellant him. him to come over to told of- introduced two extraneous the State and started put his arm around K.S. then by appellant misconduct fenses sexual stomach. showed rubbing Appellant his boys, and C.R. young two K.S. sock, had money K.S. some he that, years testified when he was 13 K.S. hun- give K.S. two stating he would old, two group he in music off. took the boxer shorts years dred dollars he boys other who were off, and as he the boxer shorts boys yellow three looked in K.S. took age. The studio, naked, sing him told recording appellant for a called stood pages studio, Af- ultimately appellant went to studio while watched. again, verse boys met visit- they appellant. where told song, ter K.S. finished the attempt seven times in an off,” Ap- ed the studio but refused. “jack K.S. K.S. visited, song, record and each time to ask to mastur- pellant continued K.S. recording people other the studio himself, K.S. if bate asked boys songs. Appellant never asked put could his hand down KS.’s money During record at his studio. to refuse shorts. K.S. continued studio, seventh visit the three finally K.S. Appellant told requests. lant’s windowless, accompanied appellant After put his clothes on. could like soundproof room that what looked on, hugged put K.S. his clothes walls, group prac- cotton on the where the *7 him. When asked if K.S. loved K.S. and singing song. Appellant ticed then said “no,” laughed and told appellant said K.S. boys he that wanted to hear each immediately he leave. K.S. K.S. that could K.S. with individually. When was alone his and reported the incident to mother room, soundproof appel- in the appellant although appel- appellant, never saw again sing told him that he had to louder. lant days after house a few lant called KS.’s “jacked him that off or Appellant told he the incident. sing a nut” it would make him louder. bust years when he was 12 that C.R. testified said, Appellant suggested “No.” then K.S. J.H., old, him and C.R.’s appellant took shoes, K.S. off which K.S. did. that take his friend, Ap- to the movies. neighborhood sing again, told the verse Appellant K.S. movies, paid boys to the pellant drove the again told that he was and K.S. admission, bought and each for their singing. Appellant satisfied with the movie, After the boys bag popcorn. to take off his shirt. K.S. then told K.S. home, as C.R. and J.H. taking instead of refused, his off initially but thеn took shirt expected, appellant claimed had C.R. might then be he believed he because boys to drove the his he was sick and appellant’s At instruc- allowed to leave. go into told C.R. to apartment. Appellant tion, song, which again sang K.S. him it would apartment because with Appellant, was better. pellant said a bit C.R. to leave however, Appellant told that K.S. take while. request continued to J.H. in the car because lant asleep. predator J.H. was “a generally sexual and Appellant offered C.R. water to drink acting conformity he was therewith downstairs, a video game play during while the commission of the offenses al- up leged went trial, stairs for a short appel- while. the indictment.” At Appellant then upstairs objected lant called C.R. under Texas Rules Evi- 404(b). told C.R. he needed to become a dence man. 403 and See Tex.R. Evid. 404(b). C.R. Appellant entered bedroom and at saw asserted as blow-up a female doll on the floor. he does on Appel- appeal, here that under rule 404(b), lant told C.R. he would not be the extraneous allowed offense evidence (1) to leave until C.R. had sex with the doll. inadmissible because basis “no,” C.R. was scared and for appel- said but admission of the extraneous offenses again repeated lant evidence, that he would not was as character-conformity spe- be Appellant cifically, allowed to leave. told C.R. to to label a “sexual off, (2) predator take all of his generally”; clothes and C.R. com- there were insuf- C.R., plied. Appellant using told ficient distinguishing crude characteristics com- put language, organ his male mon to sexual the extraneous offenses into organ, charged doll’s female sexual and to con- offense the extraneous offense ejaculated. tinue C.R. Appellant probative until evidence to be on the issue of C.R., again then told using language, charged crude intent concerning the (3) put offense; male organ sexual into the doll’s the extraneous offenses did complied ejaculated. anus. C.R. he any purpose until conform to permissible 404(b), motive, At that point, appellant C.R. that under opportu- now rule such as told nity, intent, man. Appellant was a held a preparation, plan, knowledge, video identity, camera to record the with incident the doll. or absence of mistake accident (4) defendant, C.R. clothed himself and returned with intro- car, to appellant’s where duced at topics issue into the trial and had remained for the 30 minutes that thus the topics properly subject C.R. were not apartment been appellant. rebuttal the State. See Tex.R. Evid. 404(b). Additionally, appellant asserted Appellant’s attorney then rebutted the trial, as he here appeal, does rebuttal, by State’s introducing evidence extraneous-offense evidence should be ex- from six frequently spent who had cluded proba- under rule 403 its because appellant, time with who said that tive substantially outweighed by value was lant had not had sexual contact with *8 danger unfair prejudice of due to the them. Appellant’s attorney presented also trial court’s failure to limiting tailor the of appellant’s girl- former theory instruction the actual under friend question and recalled Melvina to her which the extraneous offense was admit- veracity about her and motives to testify ted. See Tex.R. Evid. 403. against appellant. We review a trial court’s admis
Extraneous Offenses sion of for extraneous offense evidence an issue, State, In his first appellant con abuse of discretion. Rankin v. 974 707, tends that the trial court erred admit S.W.2d (Tex.Crim.App.1996) (op. 718 State, ting into evidence the rebuttal on reh’g); Wolfberg State’s tes v. 73 S.W.3d 441, timony (Tex.App.-Houston of K.S. and because C.R. their 443 [1st Dist.] ref'd). 2002, pet. concerned extraneous A trial offenses court does not only long was offered to show that abuse its as its decision discretion
9 however, admissible, it has rele when of be the “zone to admit evidence is within character-conformity, for ex beyond vance disagreement.” Montgomery reasonable (Tex. motive, 372, opportuni proof State, ample, show 810 S.W.2d 391-92 v. knowledge, Further, intent, ty, preparation, plan, a (op. reh’g). on Crim.App.1991) accident. of mistake or identity, or absence regarding admissibili court’s decision trial Id.; Moses, Rebuttal 105 at 626. if S.W.3d be sustained correct ty of evidence will permis is “one of the case, theory law a defensive any theory applicable on evidence for which relevant purposes underlying reason sible even when the court’s 404(b).” Mo Rule wrong.1 may v. be admitted under Romero for the decision (Tex.Crim. ses, State, 539, 105 at 626. 543-44 S.W.3d S.W.2d 800 State, (citing Spann v. 448 App.1990) may evidence Extraneous offense (Tex.Crim.App.1969)). 128 S.W.2d various to “rebut the properly be admitted under may Evidence be excluded by a de propounded defensive theories” of the evi probative rule value 403 fendant, may not be admitted but outweighed by the substantially dence is de a left impression false address danger prejudice. of unfair Wheeler, Tex.R. Evid. at 887- 67 S.W.3d fendant. See State, 622, 403; Moses S.W.3d im the false a witness leaves When (Tex.Crim.App.2003) (citing Montgomery, type the accused is nоt the pression that 387). at should consid 810 S.W.2d Courts offense, type certain person to commit a a Rule 403 following er factors under method to confront proper (1) analysis: strength of the extrane of the wit is cross-examination evidence a to make fact of ous offense evidence never ob Appellant Id. at 885-86. ness. (2) consequence probable; more or less he jected at nor has asserted of the extraneous offense to im potential evi the extraneous offense appeal, irrational but indeli press some a false inadmissible to correct dence was (3) during trial that the way; ble the time by appellant. left impression requires develop State Wheeler, that, although court held (4) misconduct; the need extraneous offense evidence the extraneous by the for the extraneous evidence. sexually young assaulted Wheeler (Tex. State, 879, Wheeler v. in the of others girl presence at beach Crim.App.2002). impres- a false was inadmissible correct 404(b) Wheeler, the evidence was
Rule that evidence of sion left states theory— admissible to rebut extraneous offenses is not admissible sexually opportunity to guilt-innocence phase of a trial to that he lacked an he Mend because daughter’s that a defendant committed the assault his prove her, im- that it was conformity never alone with charged offense bad was 404(b); him in a room full possible to abuse her character. Nobles v. Tex.R. Evid. victim of (Tex.Crim.App. people, and that was the *9 1992). by frame-up or motivated may conspiracy Extraneous offense evidence whether the explained cause we need determine 1. The trial court its rationale admitting by any the extraneous offense evidence on theo court’s decision was correct trial impres stating, just seems to me that the "[I]t applicable to ry of law the case. See Romero just front of the is so unfair if I State, sion in 539, (Tex.Crim. S.W.2d 543-544 v. it." We need don’t allow the State to rebut State, Spann App.1990) (citing v. S.W.2d court stated a not determine whether trial (Tex.Crim.App.1969)). admitting proper be reason for the evidence Wheeler, greed. Id. at 887. open As questioning to the door to collateral State here asserted why alternate reasons matters and extraneous that offenses the rebuttal inadmissible, evidence was admissible. See would otherwise be but ap- Wheeler, id. at 886. as in Also pellant one does not to specifically refer erroneous, State’s theory. asserted was reasons At appellant argued to the specifically, that, that extraneous ev- offense trial court because the intro- State idence was admissible confront concerning appellant’s duced evidence lack false-impression girlfriends, open evidence.2 See id. at 885. of could State not Wheeler, again, But inas responsive State offered door to evidence to that issue. reason, an alternate that the extraneous rule, general As a the defensive offense evidence was admissible to rebut theory that the State wishes to rebut propounded by defensive theories the de- through the use extraneous offense evi conclude, fendant. See id. We 888-89. dence must be elicited on direct examina therefore, although that the extraneous of- by tion not may by by defense and elicited fense evidence would be inadmissible “prompting maneuvеring” by the State. false-impression evidence, confront Wheeler, 885; 67 S.W.3d at Shipman reason, State’s alternate that the extrane- State, 185 (Tex.Crim.App. ous offense evidence was admissible re- 1980) “may rely that (stating not by but propounded defensive theories questioning” get own its into collateral defendant, a proper basis for the ad- matters, offenses, extraneous and bad acts evidence, mission the extraneous offense inadmissible”). that “would otherwise be long complied as the evidence with rules 404(b) supports appellant’s See record asser- 403. id. tion that State introduced evidence Appellant’s Defensive Theories appellant that girlfriend. had never had a that of appellant’s We conclude two Having girl- introduced lack many defensive theories tri- introduced at evidence, friends into the State could not al—that lacked intent introduce concerning rebuttal evidence sexual have contact with J.H. topic. id. The See two defensive appellant was the victim a frame-up by theories, however, that we conclude were subject J.H. and properly Melvina—were subject to properly rebuttal the State— preliminary to rebuttal the State. As a lacked the intent to have matter, however, appel- we must address sexual contact with open lant’s assertion that the State cannot frame-up by was the victim of a J.H. and the door to evidence that it later seeks pertinent Melvina—were to the issue rebut. girlfriends, of whether lacked 1. State’s Introduction Evidence initially which was the issue introduced appeal, appellant generally On contends the State. The record shows that lant, may rely the State on its own than rather introduced the argument concerning taking good The State's im- who false is care of who had no pression parents just as follows: who did a football team for league little out of the kindness of heart. certainly impression has And created this mean, defendant], know, impres- I they I think left this you just [the this by saying sion—and then even so great guy more who runs a football team out complainant goes is a have left a the kindness of his heart.... It liar—that *10 jury impression completely impression whole leav- false that defense with the [the is] ing just guy with that that this a nice I I’m to rebut. think allowed attorney:] Okay. They ac- [Appellant’s to have that he lacked intent defenses Black- tually appellant], lived [with that he sexual contact with J.H. and was well, right? a frame-up. the victim of (Nods in the af- Stepherson:] [Melvina 2. Lack of Intent firmative.) appeal, as it The State asserts trial, that the extraneous offenses
did [Appellant] attorney:] [Appellant’s to theo are admissible rebut defensive helped raise those more or less ry appellant lacked intent have that and [Glen Fred]? defense as
sexual contact with J.H.3 The they After Stepherson:] [Melvina had no theory serted the yes. teenage, were— contact with J.H. intent sexual provid- attorney:] And he [Appellant’s relationship young boys his with because for them? ed doing kind acts for them consisted said— Stepherson:] They [Melvina figure. prosecu a During father did, they stayed with he when yeah, a seeking tor’s to the trial court arguments him. ruling allow her to introduce that would attorney:] almost He was [Appellant’s evidence, the rebuttal-extraneous-offense he? boys, to those wasn’t like father attorney argued goes that “it State’s Stepherson:] were [Melvina While сlearly Complain his with show intent him, yes.4 staying with They implying in this case.... are ant pursue attorney Appellant’s continued just helps boys he let Glen he because theory through Glen Ste- this defensive this live with him and he did ... Fred the direct examination pherson. During it goes to be kind. And I think rebut attorney Stepherson, Glen that.” him questioned as follows: reflects that intro- record why attorney:] Now [Appellant’s that he duced the defense lacked intent taking you care of [appellant] to commit a sexual offense your brother? during his cross-examination of Melvina when we Stepherson:] Because [Glen Stepherson questioning her as follows: little, never got never—we we attorney:] [appel- Didn’t [Appellant’s little. much when we were stuff take care of Glen Fred? lant] attorney:] why But was he [Appellant’s to, you, as let’s Yeah, taking opposed for care of Stepherson:] about [Melvina or say, your mother father? years. two "always argument appeal, anything of it” because 3. the State reasserts this On by stating things” grandsons.” the extraneous offense evi- She bought her "two "it rebutted dence was admissible because appel- give any other details about did not suggestion that was not the [a]ppellant’s grandsons” relationship with "two her lant’s charged person sort that would commit the they were their names or whether state "had and that the evidence therefore offense” We conclude or adults. therefore children conformity.” apart relevance from character during State’s direct that her open appel- the door examination did not point At the extent of Melvi- this in the theory he lacked the in- lant’s concerning Stepherson’s na J.H. because contact with tent to have sexual rеlationship Fred was with Glen and lant's J.H., relationship as with Glen purchased her statement that Fred, figure only. was as father J.H., pair but she "didn’t think of sneakers for *11 Stepherson:] I [Glen Because never remain masturbation-type at level of my knew only. dad until I 7.... Appellant’s was And conduct attorney stated: my mom always was in the streets or thing The other that struck me as jail somewhere. case, strange about the they are claim- ing place it five-year took over a period [Appellant’s attorney:] Okay. And it and, reason, for some only thing your was grandmother let [appel- defendant would do either would be you; raise lant] is that right? penis penis touch the or have his Stepherson:] my [Glen Her and moth- I touched. mean does it really make er. any that if sense the defendant awas [Appellant’s attorney:] your And moth- pedophile, are apparently trying Okay. er. And [appellant] would dis- claim, that’s all that he over would do cipline you just from time to time like period? a five-year Doesn’t make a regular parent; right? is that activity more sense that the sexual Stepherson:] [Glen Yes. Sir. escalate, would there at- would be an have tempt to anal or oral There sex? [Appellant’s Okay. attorney:] Did he any was never about that. I get you back in try school and to set mean, the facts of just the case don’t you right on the track? sense. make Yes, Stepherson:] [Glen sir. theory The defensive that appellant [Appellant’s attorney:] Okay. you Do intent lacked the to commit the offense think job he did a good raising you? was thus introduced into the was case and Yes, Stepherson:] [Glen sir. therefore, subject, to rebuttal the State. By asserting appellant a like a 404(b); Moses, Evid. See Tex.R.
regular pаrent job who did a good rais- S.W.3d at 626. two other ing young boys, appellant impli- Appellant Frame-Up as Victim of suggested edly the intent he lacked sexual have contact with The impli- J.H. Alternatively, indepen and as an cation the evidence that described dent that would reason allow the admission pellant’s Fred, role as a father to Glen of the extraneous offense re evidence as conjunction evidence, suggest- evidence that buttal we conclude that evi appellant paren- ed that assumed a similar dence was admissible to rebut J.H., tal-type appellant role with was that theory that defensive he was the victim of lacked intent to commit a sexual of- a frame-up. As the State’s attorney stated fense the extraneous ad offenses were missible “to rebut all the theo [defensive] Although the questioning of these wit- appellant ries” because “opened the door” may only impliedly suggested nesses to the evidence. lacked the intent to commit J.H., a sexual offense against the defense’s The record demonstrates closing argument directly as- theory introduced defensive that he that appellant serted lacked intent. was of a frame-up by the victim Melvina closing argument, Stepherson, pressured falsely attor- who J.H. to ney suggestion arguing confirmed that accuse because there bad that, family. sexual con- family intended blood between his and her J.H., duct with Appellant’s the contact would have theory raised the is- assault, escalated into sexual rather than Stepherson sue that Melvina had threat-
13 proving used in cases charged and and offense ened to send J.H. to reform school pur if charges required have filed him not when perjury against operandi modus intent); allegations against appel- proof he recanted the to show Johnston pose (Tex. State, 522, lant. The record reflects that 525-26 v. theory the court attorney introduced this into that trial Crim.App.1967) (holding trial cross-examined Melvina allowing when he Ste- evi by discretion did abuse J.H., he to pherson continued to offense rebut de dence of extraneous in to pursue theory closing arguments the cir theory frame-up under fendant’s following which jury, the included the charged showing that offense cumstances statement: visited defendant’s concerned victim who during de pressured by has several times which apartment [J.H.]
He been grandmother story.... to “hypnotizing stick with the talked victim into fendant Stepherson and are dis- him “kissing [Melvina J.H.] him with a vibrator” and on story cussing together get to help girls, to victim “with sex the stomach” basically. You have story straight, stuff,” con extraneous offense because him, told heard “played cerned similar facts defendant “Look, you say happen, that this didn’t car boy another and asked around” with over you go could to reform school this and have rela boy spend night sexual You could be in serious trouble.” State, 172, case. tions); Dennis v. S.W.3d 2005, (Tex.App.-Houston Dist.] [1st The record thus demonstrates that 'd) (holding ref that extraneous offense pet. pellant propounded theo- two defensive defensive theo evidence admitted rebut he lacked commit a ries—that the intent to signature crime ry frame-up need be sexual J.H. and that he offense offense; nearly charged identical to rule or by was victim of a frame-up Melvina 404(b) similarity charge requires subject Stepherson rebuttal —that offense). State, long evidence as the evi- complied specific dence also with re- theory At the State’s for ad 404(b) quirements under Rule and Rule missibility of extraneous offense evi 404(b), 403. See Tex.R. Evid. phase in the trial was dence rebuttal 404(b) Rule suffi offenses were the extraneous ciently charged offense similar to be above, fully
As noted more to be issue of intent probative 404(b), admissible under Rule the extrane the trial explained J.H. The probative ous must value means court that used same beyond conformity. character Tex.R. be alone to entice both K.S. and C.R. to 404(b). To be probative, extra Evid. appellant gained each with him and evidence admitted to neous offense rebut boy’s giving trust items services theory be must similar to so be alone with value would Wheeler, 67 charged offense. See S.W.3d to commit sexual As the boy each acts. (holding sim 888-89 extraneous offense court, attorney told trial State’s charged ilar to offense because both ... the same habit that he is show- young defendant reached underneath it’s cases by doing clothing pri ing buying things, her them nice girl’s outer and touched case, things [KS.’s] for them. Like family vate while member near parts know, by); you he offered to let them record Plante 492- business, clearly high when it was his (Tex.Crim.App.1985) (holding free [C.R.], it With degree similarity extraneous he had them over there. between just J.H.’s; a friend of cifically, during took the assault of J.H. at the *13 movies, studio, them to the to recording Celebration Sta- appellant pulled his own tion, bought mean, him I I things. pants [and] down and appellant’s had J.H. rub think goes it all to part. But, K.S., his habit about private how appellant with he ingratiated stomach, himself boys with these rubbed KS.’s told K.S. to mas- himself, and then uses that as a vehicle to com- turbate and asked K.S. for per- against mit acts sexual put them. mission to his hand down KS.’s shorts. Despite these spe- minor differences The shows record sufficient similarities conduct, of the cifics masturbation there between the extraneous and the offenses are sufficient similarities between the sex- charged offense make the extraneous ual conduct involving J.H. and K.S. for probative offenses appellant’s evidence of K.S.’s extraneous offense evidence to be K.S., intent with With respect J.H. probative as rebuttal show record reflects the following similarities pellant’s intent to a commit sexual act with between appellant’s conduct him with and J.H. (1) J.H.: both KS. and young J.H. are boys: about years age K.S. was 13 and Concerning the similarities between the J.H. ages C.R., was between the and 12 at against offenses J.H. and the record (2) (1) the time of the conduct appellant; with the following: shows both C.R. and appellant gave gifts or services value to young boys: J.H. are C.R. was about 13 purchased both K.S. and J.H.: years age he sneak- and J.H. was between the ers and other items for J.H. ages and allowed of 8 and at the time the conduct (2) K.S. and friends to appellant; record music at his purchased with appellant (3) charge; boys studio free of gifts both were or services of for both value J.H. and taken to a appellant’s room inside record- purchased C.R.: he and sneakers other ing cotton-looking studio that a sub- items for J.H. and purchased movie tick- (4) walls; boys stance on the both were him et for C.R. and took to Celebration (5) off; Station; (3) told to take their clothes masturba- boys both had sexual experi- tion, i.e., using a appellant hand to .touch or to ences with the bedroom of his (4) attempt organ, to touch male sexual was apartment; boys both were told to tаke (5) only off; form sexual with both their clothes appellant conduct threatened (6) boys; sexual place conduct took boys get or intimidated both them to when other people present were with comply appellant’s requests: J.H. was (7) studio; recording boys both get told he would whipping he did not disrobe, threatened or intimidated appellant to and C.R. that he was told would get comply them to with re- not be allowed to leave until he had sex (6) quests: get doll; blow-up J.H. told he would a with a the nature of “whipping,” and K.S. felt that could not the sexual conduct with both i.e., appellant leave type only, while stood the locked masturbation appel- conduct (8) door; against the offense K.S. took appellant’s genitals lant had J.H. touch 2000, place in July, which was in the same with hand J.H.’s touched October, 1998, hand, to September, genitals time J.H.’s with period in ejaculate which the offenses directed C.R. place. took through self-gratification with a blow-up doll. only The dissimilarities appel- between
lant’s
with
conduct
K.S. and J.H. concern
actual
sexual
details of the
contacts
Spe-
minor details of the sexual
between appel-
contact.
are the
dissimilarities
403;
prejudice.
unfair
See
C.R. and J.H. With
lant’s conduct with
Tex.R. Evid.
Moses,
(citing
Mont-
J.H.,
at
J.H. masturbate
appellant had
387). Further,
lant,
J.H.;
gomery,
810 S.W.2d
masturbated
extra-
for admission of the rebuttal
C.R.,
himself or
factors
appellant did
touch
that rule 403
offense evidence show
appellant,
have
touch
but instead di- neous
C.R.
evi-
preclude
admission
vaginal
and anal inter-
does
rected C.R.
Wheeler,
doll,
at 888.
dence. See
blow-up
the female
sexual
course with
videotape.
*14
which
recorded
factor,
strength
the ex-
of
The first
the
Yet,
of
despite differences in the details
fact of
to make a
offense evidence
traneous
conduct,
cir-
the
the
actual masturbation
weighs
probable,
or
consequence more
less
of
a sufficient number
cumstances show
admissibility. The
in
of
strongly
favor
appellant’s
similarities to
conduct
J.H.
probative
offense evidence was
extraneous
to
probative
appellant’s
to be
of
intent
intent to commit the sexual
appellant’s
of
Plante,
commit a sexual act with J.H. See
against
by showing
J.H.
offense
(holding
high
at
492-93
intent with
pellant had a similar sexual
degree
similarity
required
of
not
when
C.R.,
pattern
as well as a similar
K.S.
intent);
proof
to
purpose of
is
show
John-
enticing
accompany
to
him alone
of
ston,
(holding
son. jury in The trial court instructed the Rule 403 this case as follows: if You are further instructed
The rebuttal extraneous offense
you regard-
rule
before
any
also
there
evidence
requirements
evidence
met
an
committing
al-
ing
because the
defendant’s
403 of the Rules
Evidence
or
other than the
probative
leged
offense
offenses
value
evidence
him in the indictment
substantially outweighed by
danger
offense
case, you
this
cannot consider such
only
evi-
evidence
for the limited
purpose
dence for
purpose
you
unless
find
system
“determining the
of the Defendant”
beyond
believe
a reasonable doubt
because no
trial
showed
that the defendant committed such other
system
extraneous offense was the
or
offenses,
any,
offense or
if
and even then
defendant,
unusual
handiwork
no issue
you may only consider the same in de- was raised about defendant’s
“identity
motive,
termining the
opportunity,
in-
mistake,”
lack of
only evidentiary
and the
tent, preparation, plan, knowledge, iden-
issue at
trial pertained to an implied
tity, or absence of mistake or accident of
frame-up
theory,
an
issue
defendant,
any,
if
connection with
Owens,
jury
charge.
included
See
offense,
any,
alleged against
him 827
In Daggett,
S.W.2d at 917.
the trial
in the indictment and for no
pur-
other
court
instructing
erred
to con
pose.
sider
the extraneous offense evidence
*15
The trial
properly
court’s instruction
limit-
for the
of
purpose
limited
the
“determining
ed the jury’s reliance on the extraneous
plan
common
or
scheme”
the defendant
offense evidence to issues that appellant
because no
at
evidence
trial showed that
raised, specifically, his motive and intent to the
plan
extraneous offense was the
commit the sexual offense against J.H.
scheme of the defendant and the extrane
The trial
jury
court’s instruction for the
only
ous offense was
admissible to rebut
consider the extraneous
in
offense
deter-
“appellant’s
good
blanket statement of
con
mining appellant’s preparation, plan, op-
minors,”
duct with
an issue not
in
included
portunity, knowledge, identity, or absence
jury charge. Daggett,
the
S.W.3d
of mistake or accident amounted to sur-
In
only
Owens and Daggett, the
plusage
jury
readily
the
could
disre-
limitation on
jury’s
the
the
consideration of
gard because those issues were
perti-
not
extraneous offense related to an issue that
Although
nent to the
charge
trial.
the
did
was not raised
the
evidence at trial.
address
defensive theory,
id,.; Owens,
Here,
See
The third factor evaluates
Considering
the time dur-
all four
together,
factors
al
ing trial that the
required
though
State
develop
the second factor here
sup
would
evidence of
port
excluding
extraneous misconduct.
the extraneous offense evi
dence,
record here shows that testimony con-
the first and fourth
weigh
factors
cerning the
heavily
extraneous
offenses was not
favor of admissibility. The evi
unduly lengthy. The details of the
dence
highly probative
extra-
as rebuttal evi
neous offense evidence were
dence
presented
theories,
the defensive
lack
only through
of K.S.
intent and frame-up,
and the State’s
addition,
C.R.
police
two
gave
officers
need for the
Yet,
strong.
very
brief
concerning
the trial
why
jury
court’s
charge and both the
charges were not immediately
prosecutor
filed for
and appellant’s
counsel’s clos
extraneous
ing
offenses involving
arguments
K.S. and
instructed
that it
C.R. This factor is neutral
and favors
convict
solely
could
based
neither admissibility nor exclusion of
a belief that
he had committed the two
evidence.
extraneous offenses and acted in conformi
ty with
but could consider
those.offenses
The fourth and final
examines the
factor
those offenses as evidence of appellant’s
State’s need for the extraneous evidence.
intent with J.H.
probative
Because the
weighs
This factor
heavily in fаvor of ad-
value of the extraneous offense rebuttal
missibility here. The
presented
not, therefore,
evidence was
substantially
J.H., Melvina Stepherson,
police
and two
*17
outweighed by
danger
the
of unfair preju
officers, who testified about their investi-
dice, the trial court did not abuse its dis
gation after J.H. reported to them. At the
cretion by admitting the evidence. See
time of
J.H. was a
boy.
13-yearrold
,
19
at trial.”
presentation
the
allowing
to ask
erred
the State
court
Lydia,
[Prosecutor:] the law that you the beyond offense a reasonable doubt. In can look at I evidence—if can prove considering the first prong of the Stande- my case, indictment, my through one test, we question note that the could be fer witness, the law if says you believe “no,” “yes” answered with a and that beyond that witness a reasonable question jurors asked the to commit to doubt, and that witness can prove the law that jury allows for a to convict on every each and element of the indict- the testimony of one witness alone when ment, you can person find the guilty believes the beyond one witness a based on that testimony. witness’ reasonable doubt on each of elements of So, Okay? go let’s row row and Standefer, the offense. See 59 S.W.3d at you find out how feel about what the Although question was a commit- says witness, law regard to one question, ment it was not improper, howev- okay? you How do feel? you Can er, because it met the second and third follow that law? prongs of the test. See id. at Standefer [Appellant’s honor, attorney:] Your ex- 179-83. The prong, requires second which object cuse me. I would the court to consider whether question object State —I would to the voir dir- cause, leads a valid challenge for is met ing on the issue of whether they can here because question the State’s attempts convict on the of one wit- any discover whether prospective of the ness and one witness alone. That’s jurors harbor a preexisting preju- bias or improper voir diring, asking jury dice concerning ability jurors
commit to a certain set of facts.
convict
accordance with the “one wit-
objection
This was the
sole
ness rulе.” See Tex.Code Crim.
Ann.
Proc.
attorney during
voir dire to
question
(Vernon
35.16(b)(3)
art.
Supp.2005). As
about the “one witness rule”—that the tes-
above,
juror
set forth
who
require
would
timony of one witness is sufficient to con-
more
necessary
evidence than
prove
jurors
vict if the
believe that witness be-
beyond
case
a reasonable doubt would be
yond
Castillo,
a reasonable doubt. See
subject
Castillo,
to a challenge for
S.W.2d at
cause.
By objecting
533-34.
to this
question
21
assistance,
Standefer,
the defendant
charged
professional
59
lant’s
offense. See
that, un
at
the presumption
S.W.3d
182-83.
must overcome
circumstances,
challenged ac
der the
question
hold
asked
thus
that
We
trial
sound
“might
tion
be considered
during
dire that
the State
voir
asked
Strickland,
689,
at
strategy.”
466 U.S.
jurors
that
could follow
law
of inef
Any allegation
104 S.Ct. at
testimony
on the
of
convict
allows
firmly
in the
must be
founded
fectiveness
all
that has established
of the
one witness
record,
affirma
must demonstrate
which
beyond
of the offense
reason-
elements
Thomp
tively
ineffectiveness.
alleged
question.
was a
voir dire
proper
able doubt
son,
v.
McFarland
(citing
9
at 813
S.W.3d
overrule
second issue.
We
482,
State,
(Tex.Crim.App.
500
928 S.W.2d
1996)).
trial
speculate
not
to find
willWe
Ineffective
of Counsel
Assistance
is si
counsel
when the record
ineffective
error, appel
In his
of
point
third
strategy.
reasoning
lent on counsel’s
or
that
lant contends
he was denied effective
State,
808,
n. 7
16
813
Robinson v.
S.W.3d
or inno
guilt
of counsel at the
assistance
cases,
how
(Tex.Crim.App.2000).
rare
attorney did
phase
cence
of trial when his
ever,
prove
can be
record
sufficient
object to testimony regarding
not
the cred
deficient,
performance
that counsel’s
ibility of J.H.
evidence
despite
of affirmative
the absence
prevail
To
on a claim of inef
or
Id.
reasoning
strategy.
of counsel’s
counsel,
fective assistance of
the defendant
that
performance
must show
trial counsel’s
for a wit
generally improper
It is
probability
was deficient
a reasonable
opinion
ness to
a direct
offer
proceeding
that
exists
result of
another
and such
truthfulness of
witness
would have been different. Strickland v. opinion
therefore inadmissible evidence.
687,
668,
Washington, 466
104
U.S.
S.Ct.
State,
52,
957
59
Schutz v.
S.W.2d
See
(1984).
2064,
2052,
error. son,” majority further errs conclud- ing that the State’s rebuttal extraneous
Conclusion sufficiently offenses “are similar affirm judgment We of the trial charged offense to be probative evidence court. intent to commit a sexual complainant] offense [the and to JENNINGS,
Justice dissenting. theory refute the was the frame-up by Stepher- victim of a Melvina JENNINGS, Justice, TERRY added.) (Emphasis son.” dissenting. itself, its discussion of first is- As noted the State in its sue, majority Court, makes a briefing series critical to this “[w]hen the State mistakes results its erroneous con- introduced appellant] evidence [that code, 1. Evidence that penal acted as a "father person Under our "[a] acts in- figure” intent, tentionally, to two other was in fact respect or with with good nothing character and had to do with the nature of his conduct or to a result of appellant, whether "with intent to objec- arouse the his conduct when it is his conscious [himself], sexual desire of engage [had] sexual contact tive or desire to in the conduct or complainant] by having [the ... cause the result.” Penal Tex. Code Ann. 6.03(a) (Vernon 2003). complainant [appellant’s] genitals.” § touch *21 at trial con- teenage primary fense’s themes” sexually boys, abused two other two (1) that effort to “discredit suggestion appellant’s he sisted of Appellant’s it rebutted and the he person not of that would convince complainant] [the was the sort Here, charged the how- of sexual abuse commit offense.” had fabricated claims (2) ever, below, believеd,” the did and show as discussed State not to be and was attempt any such of properly person not correct the kind “appellant that was not by false-impression boys.” created the sexually young inferences who would abuse testimony appellant’s through of witnesses the of The asserts that close “[a]t State (1) of Rath- case, cross-examination those witness. he secured admis- appellant’s had er, improperly appel- the “rebutted State complainant] that he had [the sions from suggestion” by calling lant’s two other lied about what people told a number of he testimony correct it (2) witnesses to him, had done introduced notably two dissimilar extraneous about testimony complain- [the great deal of offenses, reversibly the trial court (8) individual, not a truthful ant] was in the do so. allowing erred State to was the sought to establish that he sort dating relationships man normal that had Accordingly, respectfully I dissent. who not with women and therefore would The Issue Presented approach teenage boys.” The State con- tends that because its evidence that issue, In appellant argues his first sexually lant had abused two other in admitting the trial court erred into evi- that he appellant’s suggestion “rebutted testimony the dence State’s rebuttal person was the sort of would not testimony K.S. and C.R. because their con- offense,” charged commit the evidence cerned was extraneous offenses and of- apart “had from character con- relevance only that appellant fered to show “a was formity and was admissible.” predator generally sexual and that conformity during in acting therewith testimony extraneous offense alleged commission of the offenses the K.S. was not admissible to bol- and C.R. indictment.” testimony of impeached ster the com- Thus, plainant. squarely pre- issue issue, In its first response Court, actually argued that, sented to this anticipation the State notes itself, the extrane- whether State appellant’s impeachment complain- testimony and C.R. was ous offense of K.S. testimony credibility, ant’s from elicited impression- any to rebut false admissible complainant many in- concerning his created fact, inferences consistent In statements. did, pellant’s witnesses that “was contends,
then State cross- commit the person the sort of that would complainant examine his incon- about charged offense.” sistent called several statements later complain- claimed that [the witnesses “who State, in emphasized It be that the must a truthful and had a person ant] Court, any its to this does not briefing dishonesty.” reputation for The State also way extraneous offense contend that appellant “repeatedly *22 majority, the attempt makes no at all in complainant dizzy drowsy. its the feel briefing argue to this Court to Appellant the complainant told the to remove extraneous in any way clothes, offenses are similar appellant pulled his then down to the offense in charged the instant case. pants his own complainant and told the to time, appellant’s
rub penis. At the same Testimony Pertinent appellant complainant’s pe- would rub the nis with one hand and would drive the car case-in-chief, In the State’s the com- with the other hand. plainant, 13-year-old boy a at the time of trial, appellant testified that he had known that, complainant The further testified for almost his entire life and that he and on at least or fivе six other occasions when cousins, Stepherson, Glen and Fred studio, they recording were at a appellant go appellant’s would to house to watch room, him took to a back which had “some play. movies and to On several different walls, kind of fuzz” on the and told the occasions, starting when he was around complainant Appel- to take off his clothes. old, eight years nine the complainant lant removed his own clothes and instruct- permission received grandmother, from his complainant appellant’s penis ed the to rub Melvina Stepherson, spend night to complainant’s pe- as rubbed the appellant’s house. The complainant slept nis. and, in the same bed appellant, one night, appellant complainant woke the objections, appellant’s Over tell him that complainant had wet the case-in-chief, presenting while still its elic- complainant bed. After the went complainant ited from the bathroom to change clothing, appellant one prior week he was at the him told that he could “get whip- either Vincent, house of Jeneko who was the ping or take clothes off.” The [his] com- there, friend of Glen and Fred. While plainant told that he would rath- Vincent, Glen, Fred, Telfar, and Eldrick whipping. er receive a After friend, complainant another forced the belt, him struck on the buttocks with a videotape, make a in which he stated complainant, wanting to be struck allegations that he had made again, took off his Appellant clothes. then appellant were not true and that he was complainant get baby told the some oil “just jealous of and Fred [his] cousins Glen bathroom, from and when the com- they becаuse lot getting things returned, plainant appellant was naked house, [appellant].” from Later at Telfar’s and told him to [appellant] “rub down with letter, they complainant made the write a baby oil.” complainant The rubbed the oil him which he stated that his uncle told chest, buttocks, penis, and allegations against appellant. to make the complainant’s pe- rubbed the The complainant explained that the four baby Appellant nis and buttocks with oil. boys him him pay told would complainant anyone told the not to tell money to write the letter but that he did and, happened, what had because the com- money. complainant not want their scared, plainant anyone he did not tell tape stated that made and wrote what had occurred. the letter told him that because occasions, allegations against appellant would be eight On or nine different pellant complainant complainant took the news and that ride car would not if he did not gave complainant friends drink, beverages alcoholic his allegations against appellant. which made retract *23 that, year one before stated Stepherson approximately testified that she Melvina told her began, complainant the trial the since complainant has raised the he was against that the he asserted allegations months his mother was not a old because that he not true and made appellant were explained him. that good mother to She was mean. He up appellant them because appellant acquainted she was with because like appel- he did not Paley also told that granddaugh- of her he was a cousin of two anything do lant because “didn’t appellant appellant that once ters. noted She and favoritism. She also for him” showed the bought complainant shoes for tennis called her one complainant stated that the not think that such a but that she did began again and told week before the trial appellant “al- purchase odd because was allegations complainant’s her that the ways things grandchil- for bought [her] both appellant were false. On di- against that appellant dren.” also noted She cross-examination, Paley and also tes- rect eat, complainant would the out to take appellant tified that known to have she had movies, appellant’s the and house many girlfriends. had spend night. Stepherson explained the that, complainant eight when the was that the Eldrick Telfar testified com- old, years allegations nine he first made voluntarily videotape the plainant made against but that she did not do appellant, complain- the and wrote in which the letter because, time, at that anything about it she allegations ant admitted his that just had had a stroke and could not drive appellant false. On cross-examina- anywhere. him tion, appellant Telfar that had admitted him clothes and previously bought shoes beginning Toward of its exam- direct mall and and had him to the taken Stepherson, ination again recording studio. case-in-chief, presenting while its asked her, “Now, long you that, as have ... known Stepherson his Glen testified [appellant], you known him to have ever was not a truthful opinion, complainant answered, a girlfriend?” Stepherson person complainant and made the that the appellant’s “No.” Under cross-examina- voluntarily. videotape аnd wrote the letter tion, appellant testified that had she explained complainant He told team, coached a but that com- football videotape him that he and wrote made the plainant played on that had not team. She because the help appellant the letter grandsons, stated that of her two Glen and allegations true. Glen also testi- were not Fred, appellant him, had lived for about appellant helped to raise fied years two appellant job and that had taken good doing had done examination, so, care them. On re-direct had had a and number she testified that football years. girlfriends over the league got young one in which “he was Appellant presented also boys on play to come and his football Vincent, Thomas, of Jason Jeneko Brooke that appellant team.” further testified She Austin, Thomas, a Virginia and Blackwell. company was usually Glen, that he did not friend testified appellant bought men Glen complainant truthful believe Fred items. expensive person complainant and that told defense, Britney Thomas that he wrote the letter because his called sorry that he Paley, complainant’s lying he was wanted one of the cousins. that, jail. from Thom- Paley opinion, in her be released testified his had dated complainant person. not a truthful as also testified that sister She appellant for a short time and that his C.R. testified that he knew the com nickname, plainant sister had tattooed because used live “Pookie,” occasion, same street. On one when leg. on her C.R. Vincent testified old, years appellant, was 12 that, whom C.R. opinion, complainant Trey,” knew as “Pookie drove both the not a truthful person and that the com- complainant and C.R. to the movies. Af him plainant told that he made the video- *24 terward, homes, way on the back to their tape allegations because he made the appellant claimed he was sick and against appellant jealousy. out of Austin s stopped apartment. at hi Because the that, testified two months before trial be- complainant appeared asleep to be in the gan, complainant told her that seat, appellant go back told C.R. to inside him, that, lant had never touched in her apartment Appellant with him. went opinion, complainant was not a truthful upstairs, C.R.-played game while a video person, appellant many and that had had Later, downstairs. appellant called C.R. Blackwell, mother, girlfriends. appellant’s upstairs and told him that “needed to C.R. that appellant many girl- testified had had They appellant’s become a man.” entered years. friends over the bedroom, where a inflatable sex doll was rebuttal, presented In its then lying on the floor. Appellant told C.R. K.S., 16-year-old a boy of until C.R. could not leave he “fuck[ed] C.R., 15-year-old the time of a Appellant the doll.” told C.R. to take off that, boy at the time of trial. K.S. testified his clothes and until have sex with the doll old, Appellant C.R. “nutted.” years sung when he was 13 he had in a C.R. videotaped doll, having sex with and when C.R. three-boy group and had appoint- made an finished, told C.R. that C.R. ment to record music at studio. a man “was now.” and two friends KS. went studio people few times to listen to other record Extraneous Offense Evidence
music, and, visit, on about the seventh appellant, “Trey whom knew as K.S. A trial court’s admission of extraneous Black,” told KS. he wanted KS. offense evidence is reviewed for an abuse room, State, in sing individually soundproof of discretion. v. Rankin 974 S.W.2d 707, (Tex.Crim.App.1996); Wolfberg while the other two waited a room 718 v. State, 441, (Tex.App.-Hous 73 S.W.3d 443 Appellant next door. told KS. that K.S. ref'd). 2002, long pet. [1st ton As as Dist.] singing loudly enough was not and that if a trial court’s decision to admit evidence is nut, “jacked KS. off or it would bust[ed] disagree within the “zone of reasonable sing Appellant make louder.” told [him] ment,” can be no abuse.of discretion. there clothes, him to remove his and KS. even- State, 372, Montgomery v. 810 S.W.2d tually complied thought because he (Tex.Crim.App.1990). him to appellant would not allow leave Appellant he did then unless so. rubbed 404(b) Texas Rule Evidence embodies masturbate, stomach and told him to KS.’s principle that an ac the well-established while, appellant After a but K.S. refused. may cused be tried for the offense for put on and leave. let K.S. his clothes back charged he is and not for criminal which home, got 404(b); KS. he told his mother When Tex.R. propensities. Evid. Owens (Tex.Crim. done, State, 911, what and his mother v. reported police depart- App.1992). Consequently, the incident to the extraneous of guilt not admissible at ment. fenses are that would commit type person that a defendant prove of a trial to phase notes that character in The State conformity charged with his offense.” acted testified that committing an offense. witnesses many Tex.R. Evid. 404(b). offense, however, An extraneous over many girlfriends had had noncharacter-conformity relevance has point years. “[t]he It asserts to make the any tendency it has when had had introducing claims that consequence fact that existence of a of his life over the coursе many girlfriends more or of the action the determination jury that he was suggest to the was to than it would be without probable less sexually interested person to be the sort evidence. Powell explained trial court young boys.” words, (Tex.Crim.App.2001). other reasoning admitting the rebuttal its that tends to extraneous offense evidence follows: *25 evidentiary fact make an elemental or Court, Appellate I think —and for the tends to rebut probable more or less or my view that this generally it would be theory beyond some defensive is relevant in; not come but it thing of should sort person’s character tendency prove its impression that the just seems to me conformity that acted in therewith. or if I just unfair is so front Rankin, 718; Montgomery, at 974 S.W.2d So, it. it’s to rebut don’t allow State Consequently, at 386-87. evi 810 S.W.2d just gets it down to a basic guess —I or mis dence of other crimes extraneous are play, and these rules sense of fair may prove conduct be admissible to mo trial; everybody a fair give intended to tive, intent, plan, opportunity, preparation, So, as the Defense. the State as well or acci knowledge, or absence of mistake setting any precedent not clearly I’m 404(b). excep dent. Tex.R. Evid. These set of very unique this is a here because law are tions and others drawn from case circumstances; to allow going but I am neither exclusive nor exhaustive. Pondex go into it. the State (Tex. State, 577, ter v. 942 S.W.2d 583-84 “false to the rebuttal of such regard In Crim.App.1996). Such extraneous offense the Texas Court of Criminal may impressions,” be relevant and admissible that, a wit theory. explained to rebut a defensive Ransom v. when Appeals has State, 288, (Tex.Crim.App. 920 301 an accused is picture S.W.2d presents ness 1994); Powell, 439; Roberts person tо commit a certain type not the State, 596, (Tex.App. v. 29 S.W.3d offense, “may impeach type of State 'd). 2000, pet. Houston ref [1st Dist.] testimony by cross-examin that witness’s concerning similar extrane ing the witness However, majority’s contrary to the State, v. 67 S.W.3d offenses.” Wheeler ous conclusions, analysis does State However, 879, (Tex.Crim.App.2002). testimony contend that the rebuttal not Court, by the eviden- emphasized “[t]he as prove K.S. and C.R. was admissible must opponent ... that the tiary caveat intent, motive, opportunity, preparation, through impression’ ‘false correct or of mistake or plan, knowledge, absence who left of the witness cross-examination Rather, argues accident. the State by calling other impression, not the false testimony “had rele- of K.S. and C.R. impression.” that false to correct witnesses conformity apart from character vance rule, Moreover, general Id. “[a]s the State “[w]hen was admissible” because wishes to theory that the State appellant] had [that introduced evidence of use extraneous through the teenage boys, it rebut sexually abused two other on direct must be elicited not fense evidence suggestion he was [his] rebutted witnesses, may examination the defense and not rect of two other K.S. C.R., by ‘prompting maneuvering’ elicited in its rebuttal case. Id.; Shipman see also State.” Moreover, allegation KS.’s State, (Tex.Crim.App. lant and told him to rubbed KS.’s stomach 1980). allegation masturbate and C.R.’s case, State, pellant insisted that he have sex with a doll In the instant was the not allegations are not of misconduct similar to appellant, that placed appellant’s sexual allegations in the instant complainant’s Although interest women at issuе. case, i.e., that of mutual masturbation. State asserts that introduced evi- many girlfriends dence that he had had sum, relied on its own suggest person “he was the sort questioning Stepherson get of Melvina sexually young boys,” to be interested into offense the extraneous case-in-chief, in its asked Melvina Moreover, regardless K.S. and C.R. “Now, you Stepherson, long as have actually placed appellant’s which side sexu- [appellant], you known ... ever issue, al interest in women at the State girlfriend?” known him to have a Ste- would have been entitled to rebut answered, pherson “No.” It is well-settled through impression false inferences cross- “may rely that the State on its own pertinent examination of the witness about *26 questioning” get into collateral matters allegations of toward similar misconduct and extraneous offenses and bad acts Here, presented other children. the State “which would otherwise be inadmissible.” testimony from other about alle- witnesses 604 Shipman, Although at 185. S.W.2d gations that were not similar to the com- many appellant’s testify of witnesses did Accordingly, this plainant’s allegations. many girlfriends had had over the trial Court should hold that the court years, it that prompted was the State the in admitting erred the extraneous offense contrary by eliciting Stepherson’s issue ob- testimony of K.S. and C.R. case-in-chief, in apparently servation its suggest jury Analysis was not Harm person sexually of the sort to be interested admitting A evi trial court’s error in women. generally dence is non-constitutional error. State, 410, assuming appellant, by elicit- v. 967 417 Even Johnson S.W.2d State, ing testimony (Tex.Crim.App.1998); King that he in fact had had v. 953 266, Ac girlfriends past, (Tex.Crim.App.1997). in the somehow raised the S.W.2d 271 cordingly, it must be determined whether theory type that he was the substantial person sexually young boys, appellant’s abuse the error affected and, not, must be disre rights the would have been “entitled to the error State Tex.R.App. 44.2(b). A garded. P. substan impression’ rebut that ‘false inference with error had a right tial is affected where the questions [of cross-examination injurious or influence in concerning allegations of substantial effect lant’s witnesses] jury’s King, 953 determining toward another child.” the verdict. similar misconduct Wheeler, Here, to non- at 271. A conviction due 67 at 885-86. how- S.W.2d S.W.3d overturned ever, error will not be attempt the State did not to correct constitutional if, entire appeal examining after the impression by false cross-examination record, fair assur appellate court has impres- of the witnesses who left the false Rather, influence the cor- ance that the error did not attempted sion. the State v. slight. Reese through jury, the di- or its effect was impression rect the false State, 238, (Tex.Crim.App. impact jury’s verdict because 33 S.W.3d 2000). bolster State’s conducting analysis, ap presented improperly In its an State, 164, 36 S.W.3d pellate court considers the nature of the case. See Webb v. 2000, verdict, (Tex.App.-Houston Dist.] supports [14th evidence that (en banc) error, (holding that erroneous alleged pet.) no character of the and how assault of jury consider it connection admission extraneous sexual might with State, complain- Bagheri party other third harmful where evidence. 755, only witnesses to (Tex.Crim.App.2003). Ad ant and offense). Moreover, said include in it cannot be jury ditional considerations structions, case, theory of fair assurance that the erroneous admis- the State’s case, theory closing sion of the of K.S. C.R. did the defense’s dire, influence or that its admission arguments, voir and whether substantial the error. v. did not affect emphasized Motilla (Tex.Crim. Court should rights. Accordingly, 355-56 this App.2002). Finally, presence of over hold that erroneous admission may testimony of K.S. and whelming guilt evidence of also be extraneous offense Id. at 357. C.R. resulted in reversible error. considered. rebuttal State’s of K.S. Conclusion undoubtedly
and C.R. than a more slight upon jury’s reversibly Because the court erred effect decision. trial all, 16 a four-day admitting testified over the extraneous offense testi- witnesses evidence, into period guilt phase mony in the the trial. Sev- K.S. and C.R. this issue, en of first those testified for the State in either Court should sustain rebuttal, court, its the trial judgment case-in-chief or and nine of reverse the *27 trial court appellant. those testified for and remand cause to the Because this there trial. physical was no or otherwise corro- new evidence, outcome
borative of the trial
depended solely upon jury whether large A complainant.
believed the portion
of closing arguments, both appellant’s State’s, spent discussing fact,
the credibility of the witnesses. although trial court instructed the Mary Mary BINDER f/k/a it consider the could Safady, Appellant, motive, determining
K.S. “in and C.R. intent, preparation, opportunity, plan, identity, or knowledge, absence of mistake Danny Safady, Appellee. JOE defendant,” accident of the State their No. 01-04-00792-CV. expressly argued rebutting” presented purpose “for the Texas, Appeals Court by appellant presented (1st Dist.). Houston guy” he was and that com- good “a plainant was “a liar.” 2, 2006. Feb. record, reviewing
After the entire can- impact
not be said that the the testimo-
ny significantly and C.R. did K.S. notes elicited was admissible testimony of K.S. and C.R. many girlfriends that he theory “appel- to rebut throughout his life.” lant the intent to commit the of- lacked was “the victim majority’s In stark char- fense” or contrast Stepherson.” Melvina up acterization of two defensive frame theories, fact, again “the in stark contrast concedes that de-