*1 record, i.e., by this clusively negated applying
above-described standard of review. It
above-described
appears irrelevant the Court other next may be introduced at the party
trial who should have had no appeal may
burden at trial or on which explain presented the evidence
clarify or least, At proceeding. very
the earlier retrial, in
if no theories are off limits on the law-of-the-case doctrine
essence defense, apply any not claim or we
does clearly unequivocally state that
should are not confused and re- parties
so needlessly briefing
sources consumed the issue of what it is the
arguing Court judgment opinion.
intended its
Conclusion was Jose’s case to win or He
This lose. factfinder,
lost. He did not convince the court,
the trial of merits of his chosen
theory recovery, of an ap- conversion. As court, we some
pellate should select prevail on which he if might judgment The trial court’s should
retried. not, respect-
be affirmed. Because it is I
fully dissent.
Bobby NEWTON, Appellant, Blake Texas, Appellee. STATE
No. 10-06-00160-CR. Texas, Appeals
Court
Waco.
June 2007.
Discretionary Review Granted
Jan.
to support the conviction for indecency with a child. submission,
On original this Court af *3 firmed the trial judgment. court’s 10-06-160-CR, Newton v. No. 2007) Mar.28, WL 926184 (Tex.App.-Waco (mem.op.). by As authorized Rule of Ap pellate Procedure we issue this modi opinion fied thirty within days after Newton petition his filed for discretion Tex.R.App. ary review. P. 50. On recon sideration of the presented, issues we will reverse and remand.
Venue Newton’s alleges in his fourth issue that the evidence to support his conviction for indecency with a legally child is insuffi cient because there is no evidence of venue in Brazos County. Wice, Houston, TX, Brian W. for appel- ... disputed “Unless in the trial lant. court, or unless the affirmatively record Bill R. Turner County Brazos Dist. shows the contrary, the court appeals TX, Atty., Bryan, for The State of Texas. presume must ... proved venue was Tex.R.App. in the trial court.” P. GRAY, Before Chief Justice Justice 44.2(c)(1). venue, To dispute proof of VANCE, and Justice REYNA. defendant must raise the issue specifically Tex.R.App. in the trial court. See P. OPINION ON PETITION 33.1(a); FOR Etchieson v.
DISCRETIONARY 753, 759 (Tex.Crim.App.1978); Atwood v.
REVIEW 894-95 (Tex.App. pet.); -Texarkana no Mosley v. REYNA, FELIPE Justice. (Tex.App.-Fort Worth juryA Bobby convicted Blake Newton pet.). no For the record to show indecency aggravated with child and affirmatively that prove the State did not sexual by venue, assault contact assessed “the record affirmatively [must] ne punishment twenty years’ imprisonment gate[] proof whatever made on the indecency sixty count and years’ State on the matter of venue.” Holdridge imprisonment aggravated (Tex.Crim. on the sexual as- v.
sault count. Newton contends in App.1986). four is- Newton refers to evidence (1) sues that: the court abused its discre- that the began abuse in San Antonio. The (2) by admitting outcry tion testimony; the State to the complainant refers Jane Doe’s court abused its discretion admitting began that the “sexual abuse” extraneous-offense evidence under Rules when Doe moved to San Antonio and con 404(b) (two issues); of Evidence and 403 tinued until she moved to Franklin. Doe (3) legally evidence is insufficient lived in San Antonio moving before to Col son v. County and then in Brazos lege Station trial court pet.). “[A] App.-Waco Robertson Coun neighboring
Franklin determining” the to evidence that has broad discretion refers also ty. The State Garcia, 792 outcry proper into witness. finger [Doe’s] “insert[ed] Hanson, County. S.W.2d at in Brazos once private area” 20, 26 accord Elder identify any place does ref'd). 2004, pet. (Tex.App.-Fort Worth in the disputed venue where he the record court, attempt he show nor does trial witness, outcry psychotherapist affirmatively negates the the record Doe, outside who treated testified *4 the record or that of venue proof State’s notes for a of the that her presence mandatory venue that affirmatively shows stated that Doe disclosed date certain County. Brazos than in lay elsewhere sexually abused [Doe] “that had [Newton] the State Therefoi’e, that presume we past.” in the court, and we in the trial proved venue the witness’s Newton that “testi issue. fourth overrule Newton’s of abuse mony general conclusion the act in a discerni that did not describe Testimony Outcry that the manner.” Newton concedes ble in his first issue contends Newton to whom Doe witness was first adult by its discretion abused that the court concerning Newton’s of made a statement testimony. outcry admitting Although the witness’s fenses. to her did indicates that Doe’s statement court’s decision a trial review
We means which specify the manner or under an evidence to admit or exclude her, “sexually abused” the state Newton Oprean v. standard. abuse-of-discretion clearly allege ment did sexual abuse (Tex.Crim.App. Newton as the abuser. clearly identified 2006). occurs when of discretion An abuse In view of the broad discretion afforded lies outside the “zone decision the court’s of who is trial courts the determination (citing Id. disagreement.” of reasonable witness, say cannot proper outcry we 372, 391 Montgomery that the court’s decision lies outside reh’g)). (op. on (Tex.Crim.App.1991) disagreement.” “zone of reasonable Article 38.072 Code 03-99-00590-CR, No. Savedra proper Procedure describes Criminal *2 (Tex.App.-Austin WL person, “the first outcry witness ref'd) (not Nov.16, 2000, pet. designated older, than the or defen years age publication). Accordingly, we overrule dant, made a statement to whom the child first issue. Prog. about the offense.” Tex.Code Crim. 2005). 2(a)(2) (Vernon 38.072, § art. Ann. 404(b) Rule of Evidence con Appeals The of Criminal has Court in his second is the first adult “to contends strued this to mean the court abused its discretion makes a statement that sue that whom the child of admitting al evidence of an extraneous manner describes the some discernible 404(b). The State re be fense under Rule offense. statement must leged [This] complained-of give general sponds which more than words child was admissible to rebut Newton’s defen something in the area of allusion complainant had fabri on.” 792 sive that the going abuse was Garcia against him. allegations Han- cated the (Tex.Crim.App.1990); er, The abuse-of-discretion standard we and the school notified Child Protective Services, previously applies referenced likewise which investigated allega- reviewing a trial when court’s decision to L.D., tions. According to she recanted admit extraneous-offense evidence under because her pressured mother her to do 404(b). Page Rule so. Moses v. A years few after L.D.’s mother and 626-27 (Tex.Crim.App. divorced, L.D. married. Her hus-
2003). band and she worked with Newton at a complainant Doe daughter is the shop. donut L.D. testified that she later Newton’s former wife. Doe testified that wrote said, Newton a letter that basically sexually Newton first abused her when she “Blake, you married, I heard got heard was ten and awoke to find Newton touch- you got kids. Don’t do this to them.” ing vagina. her She said that he touched L.D., According to the letter went into her a similar manner “a couple of [oth- enough detail to make it clear that Newton twelve, times.” she was er] When around had sexually her. assaulted As a result of *5 she awoke to find Newton inserting his letter, Doe’s mother called L.D. to finger in her vagina. There were no other discuss the letter’s contents.
witnesses to these assaults. According to L.D. started therapy about Doe, say anything Newton did not during trial, years three before because she had assaults, and he never threatened her begun cutting herself. She diagnosed was or told her not anyone. to tell disorder, bipolar with severe depression, The extraneous-offense evidence came anxiety. She attempted suicide when L.D., from Newton’s former stepdaughter she first started therapy. from a marriage before Newton’s marriage At the end of L.D.’s testimony, the trial to Doe’s mother.1 L.D. testified that New- court gave an oral instruction ton molested her over a seven-year period limiting their consideration of L.D.’s testi- (about during the 1980’s twenty-five years mony solely to “rebut the theory defensive trial). before the Her memory first of fabrication in connection with the of- forcing perform her to oral sex on alleged fense in the indictment you before him when she was nine or ten. Another in this cause and for no purpose.” other specific memory L.D'. had was of Newton engaging in sexual intercourse with some- 404(b) “Rule allows evidence of (whom one else L.D. identify) could not crimes, wrongs, other or acts the evi if forcing L.D. to sit behind him and rub apart dence has relevance character from his scrotum. She could not remember how Moses, conformity.” S.W.3d many her, times Newton molested nor added). (emphasis Rebuttal of a defensive she recall anything could if he said during theory permissible is one of the purposes these sexual assaults. for may which evidence be admitted under cross-examination, 404(b).
On L.D. testified that Rule Casey See Newton also had penetrated vagina her 880-82 (Tex.Crim.App.2007); penis. Moses, with his 626; When she was in seventh 105 S.W.3d at Ransom v.
grade, she told her mother about (Tex.Crim.App. abuse, 1996) sexual but her mother did (op. not be- reh’g). determining lieve her. The next year, she told a teach- whether extraneous-offense evidence is ad years 1. L.D. was 35 old at the time of trial. impeachment a trial with theory, general prior a of Doe to rebut defensive
missible statements, consider a defensive inconsistent some of cross- court can opening in an by defense counsel did raise the fabrica- raised examination tend to See Powell theory. example, statement. tion Por Bass v. brought out Doe hated had Newton, that he respect for disliked filed). Ex pet. Dist.] -Houston [14th “bossy,” resented that he came between admissi evidence is also traneous-offense her, her mother and felt better when she theory raised dur ble rebut a defensive him, away alleged moved from and first a State’s witness. cross-examination of ing sexually only that he her after she abused Bass, Ransom, might learned that mother recon- had her State, 125 Swarb v. cile with him. (Tex.App.-Houston Dist.] [1st The State also refers to Newton’s voir- dism’d). 2003, pet. examination, he dire in which asked: extraneous-of The introduction of you Do think that someone is—when I than purpose fense evidence say you a ‘child’in think their teens —do conformity, character such as rebut someone their teens is able make make theory, does not itself defensive story up every- that’s not true? Does the evidence admissible. Webb body agree with that? 164, 180-81 (Tex.App.-Houston 'd) banc) (cit (en pet. ref [14th Dist.] youDo think that —we talked about— *6 ing Rankin why State] talked about the reason [the The extraneous-of (Tex.Crim.App.1998)). is people don’t make outcries because evidence must relevant to a fense also be they’re something scared say to about it. consequence” the case. Id. “fact of in forgot something, I who but they said Rankin, (citing Owens basically said child can be manip- that a (Tex.Crim. ulated not to happened by tell what has see also App.1992)); Evid. Tex.R. an adult. (“ ‘Relevant evidence’ means evidence hav The adult has told them either tendency ing any to make the existence of or, know, you happen force ‘This will to fact that is of the any consequence to say you you you if But do think this.’ probable determination of the more action that, you the converse of do think that than probable or less it be without would an basically manipulate adult can a child evidence.”). the say say I something? When ‘child’— Newton contends he did not raise again, teenagers. Does everybody a theory. fabrication as defensive agree with that? disagrees, State arguing that Newton theory raised the that Doe fabricated her Finally, the State refers allegations, either out ill will toward of There, closing argument. sug- her prompting, Newton or at mother’s in gested allegation that Doe the fabricated of the panel during his examination venire against prevent Newton to her mother’s selection, jury cross-examination of the Newton, reconciliation with or that she did witnesses, and closing argument. State’s (as the prompting so at of her mother Doe allegation immediately The State refers in to New- made her particular before Newton) Although ton’s cross-examination her mother filed from of Doe. for divorce prompting therapist. much of that cross-examination involved or at the of her first record, agree challenging we theory From our review defensive raised during that Newton the cross-examination of the with State raised com- theory. plainant that she mistaken of fabrication as a defensive or un- issue Bass, sure about events to her due level of See However, intoxication. we explained Bass, Ap- In the Fourteenth Court that evidence of an extraneous offense addressed whether extraneous of- peals against dancer topless “could are to rebut the defen- fenses admissible not assist the in its determination theory of sive fabrication.2 the appellant of whether sexually as- of Appellant argues extraneous complainant] saulted except by [the fenses were inadmissible under Texas showing conformity character in viola- 404(b) they Rule of Evidence because 404(b).” Otherwise, tion of rule any solely were charac offered establish time a cross-examination challenged the conformity. Specifically, appellant ter recall, complainant’s credibility or extra- ad contends extraneous offenses are not always neous offenses would be allowed missible to rebut fabrication defense 404(b) in-totally Rule eviscerating and cites our decision in Webb v. the policies underlying prohibition 180-81 (Tex.App.-Hous against admission such evidence. 'd]) (en 2000, pet. ton [14th Dist.] [ref Id., Webb, 222 S.W.3d at (citing banc). agree appellant. We with 9). S.W.3d at 180-81 & n.
Id.,
A
defense
is one
Appeals
eral
Court
Criminal
cases de
allega-
which
defendant contends the
support
cided after Webb do not
Id.,
are
entirely
up.”
tions
made
State’s contention that extraneous offenses
are admissible to
576. The Bass court
heavi-
rebut
fabrication de
relied
id.,
theory.
fense
2007 WL
its en
ly on
bane decision Webb:
-
(citing
Moses
Webb,
in dispute
the fact issue
*7
(Tex.Crim.App.2003); Wheeler
ag-
whether
the defendant committed
v.
extraneous-offense was admis- case, In this the fact of ultimate conse type” because it a “signature sible quence dispute in is whether Newton com “ plan, ‘opportunity, offense showed indecency the offenses of mitted sexual motive, However, maybe scheme....’” aggravated contact and sexual assault noted dispute we there no as Doe. The of against evidence Newton’s 25- motive, identity, any intent or the year-old of extraneous offenses with L.D. 404(b) exceptions.
other Rule The jury could not assist the its determina State contended the extraneous-offense tion of whether Newton committed the Doe, evidence was offered for the offenses purpose charged against other than reply 2. After the briefs filed were and this case was The State did not to Newton's letter submitted, a Newton filed letter brief attach- brief. ing copy setting holding. of Bass and out its error, then [we] of the influence conformity in violation stantial character to show id., 575; 404(b). the error as if it substan [had must treat See of Rule Thus, the the Burnett Webb, outcome].” at 180-81. tial influence on by admitting State, (Tex.Crim.App. its discretion abused court 2002). pertaining evidence way, “in cases of extraneous-offense Stated another peti to L.D. to harmlessness grave doubt as Id,, (quoting tioner must win.” Analysis Harm McAninch, 513 U.S. O’Neal (1995)). now determine 992, 995, 130 must We L.Ed.2d 947 115 S.Ct. affected Newton’s this error whether testimony about her gave L.D. extensive Tex.R.App. rights. See substantial P. life, and Newton’s problems, her emotional 44.2(b). in the everything We “consider Her against her. alleged sexual assaults record, any testimony physi or including many pages testimony nearly consumes as jury’s for the con admitted cal evidence reporter’s record as Doe’s.3 of the sideration, the evidence the nature of be characterized guilt cannot verdict, character of supporting placed great overwhelming.4 The State might how it be error and alleged closing testimony L.D.’s emphasis on with other evi in connection considered argument. in the case.” Motilla dence testimony bolstered significantly L.D.’s prejudiced Newton. the State’s case Shook v. pet.); accord Geuder Abdnor v.
App.-Waco See (“The (Tex.App.- (Tex.Crim.App.1994) admission ref'd). 2004, pet. Dist.] Houston [14th the de prejudices extraneous offenses also jury consider the instruc mayWe also natural incli jury’s fendant of the because case, tions, any the State’s charged offense guilt nation to infer theories, closing arguments, offenses.”). defensive Although extraneous from the dire, the extent to which the voir testimo could have viewed Doe’s erroneously admit emphasized State itself, damaging L.D.’s ny as credible Motilla, S.W.3d at See ted evidence. certainly played signifi almost Shook, 41; 355-56; 172 S.W.3d at Geu cant role Newton’s conviction. der, at 376. Webb, Bass, 222 36 S.W.3d at see also Martinez v. analysis, we decide whether “the this cf. *8 (Tex.App.-Waco effect injurious a substantial and error had ref'd) (erroneous outcry admission of pet. jury’s the ver- determining or influence in slight more than influence testimony had Haley v. dict.” “ and indecency with child case If have ‘a on verdict (Tex.Crim.App.2005). we harmful). emphasis the was And State’s that the result the under- grave [of doubt’ closing argu offenses in the sub- on the extraneous lying was free from proceeding] (62 mony pages) in this suggests only pages must be included of 3. The State calculation. direct examination should be consid- L.D.’s determining the amount of trial time ered in says evidence. when it devoted to this extraneous-offense 4. The State as much in its brief However, only purpose strong the the that it "had a need to refute" because State's states calling a the of with the extra- L.D. as witness was for defensive fabrication for "[tjhere evidence, evidence because the extraneous-offense neous-offense admission of entirety physical no evidence or that the of L.D.'s testi- we conclude e3'ewilnesses.” justice Reyna pending harm to cases the Newton. had 148 as of augmented ment 31, 2007, May pend down from 153 cases 538- See Booker v. 'd); ing April. at the This is 43 pending end of pet. Worth ref (Tex.App.-Fort Vance, justice the cases more than Justice also Reese v. on this with the next most pending Court (noting in harm
(Tex.Crim.App.2000) anal The problem majority cases. is that of erroneously on ysis emphasis that State’s of developed pattern pro this Court has during argument “sent admitted cessing proceeding the multiple same thinking into deliberations about” times, by by having some choice and some evidence). Thus, we conclude that the higher been court and reversed erroneous admission extraneous of further proceeding remanded for review. L.D. was involving fenses harmful because City Kelley, No. E.g., Waco v. 10-03- injurious it had effect on a substantial 00214-CV, Tex.App. LEXIS the jury’s verdict. 2004 WL Oct. Accordingly, we sustain Newton’s sec- 2004) J.), rev’d, (Reyna, (mem.op.) Having ond issue. sustained the second (Tex.2006) curiam), (per S.W.3d 324 on
issue,
his
we need not address
third issue.
remand, 226
(Tex.App —Waco,
S.W.3d 672
.
h.)
J.);
pet.
no
(Reyna,
Pena
Conclusion
2005)
S.W.3d 274 (Tex.App
. —Waco
judgment
We reverse the
and remand
J.),
(Reyna,
vacated,
court
this cause to the trial
for further
Crim.App.2006),
on
remand
with
proceedings
opinion.
consistent
this
h.)
pet.
(Tex.App —Waco,
.
opinion
judgment
dated March
J.).
(Reyna,
withdrawn,
petition
2007 are
and Newton’s
work, it is
keep up
To
with our
critical
discretionary
for
review is dismissed
only
process
proceeding
that we
each
one
Tex.R.App.
operation of law. See
P. 50.
opinion
But
an
time.
we have issued
proceeding
this
before. See Newton
dissenting.5
Chief
GRAY
Justice
10-06-00160-CR, 2007 Tex.App.
No.
GRAY,
Justice, dissenting
TOM
Chief
(Tex.App.—
LEXIS
that result must have something larger at work here opinion ty just judg just not rewrite than getting to what the majority voting grant ment rather than a motion believes is the correct judgment, because prior publish opin memorandum there is petition no issue raised in the for State, ion? See Newton v. 281 discretionary S.W.3d 450 review already that had not 9, 2007, order). (Tex.App. May presented been to us. — Waco majority
Instead the
to prepare
waited
But the result of whatever
is work is
opinion
its new
until we were put under
upon
history
sub-standard based
thirty-day
deadline of Rule 50 after a
review of this
product by
Court’s work
filed,
petition
discretionary
for
review
higher
courts. This is the most reversed
a time in which the State
does
have the
court in the State.
on the
Based
number
opportunity
provide
additional briefing
of this Court’s decisions which have been
adequate
reversed,
nor do I have
time to conduct
year
this calendar
does not look
additional research. See TEX. R. APP. P.
good.2 And
reversals
the last full calen-
50. In
new opinion
majority
year
now dar
it an extraordinarily
made
bad
reverses
the conviction. The majority
year.3 It is of little solace to me that in
specifically
2006) (not
prior
was not
discussed in the
App. Sept.20,
designated
publi
for
opinion.
State,
cation);
7-CR,
memorandum
v.
No. 10-05-0003
Meza
Tex.App.
2005
LEXIS
WL
2005
See,
Univ.,
e.g.,
Baylor
2.
v.
Sonnichsen
No.
13, 2005)
(Tex.App.
July
1654761
— Waco
10-02-00125-CV,
Tex.App.
2004
LEXIS
(not
(mem.op.)
designated
publication)
for
(Tex.App.
Aug.
371 I reversals had dissented most of these 754; rev'd, 5942,
riam),
Stanley,
Tex.App.
201 S.W.3d
State v.
LEXIS
WL
2005
1790923
Wachsmann,
10-05-00104-CR,
27,
(not
2005)
July
(Tex.App.
designat
2005 Tex.
No.
— Waco
5915,
(Tex.
curiam),
publication)
App.
(mem.op.) (per
372 And judgment. opinion majority’s I must dissent. again ref'd). 2003, pet. In (Tex.App . —Waco venue, dispute proof order to the defen body of this appendix an I attach as specifically dant raise the issue in the must 28, opinion of March memorandum Court’s 33.1(a); TEX. R. APP. P. trial court. See 2007, publish- majority ordered which the State, 753, Etchieson v. 9, 2007, I but now withdraws. May ed on State, (Tex.Crim.App.1978); Bass v. my opinion as that memorandum adopt 668, Ro majority Because the opinion. dissenting may v. opinion affirming prior our withdraws Crim.App.1969); Martin v. conviction, and issues a new (Tex.Crim.App.1964) (op. which now reverse judgment opinion submission); orig. v. Atwood aggravated for the Newton’s conviction (Tex.App. — Texarkana child, I respectfully assault of sexual pet.); Mosley no dissent. (Tex.App Worth . —Fort In pet.); Henley see 734. order for APPENDIX affirmatively record to show that the State ag- convictions for appeals Newton his venue, prove did not “the record [must] child, and for assault of gravated sexual affirmatively negate[ proof whatever was ] contact, by a child sexual indecency with made the State on the matter of ven in the indictment the victim named against Holdridge ue.” Doe, daughter of Newton’s
as Jane 21-22 (Tex.Crim.App.1986); Holdridge see 28, 1997, May Act of former wife. See 1984) R.S., 1286, § (only 1997 Tex. —Waco “affirmative Leg.,
75th ch. and conclu (amended 1999) proof in the sive record the venue of Gen. Laws prosecution improperly was laid” avoids (current PENAL at TEX. CODE version presumption), aff'd, Holdridge, 707 S.W.2d 22.021(a) (Vernon Supp.2006)); § ANN. R.S., 29, 1993, Leg., Act ch. May 73d 21.11(a), 1.01, 1993 Tex. § art. sec. Newton points to evidence that 2001) (amended
Gen. Laws began abuse San Antonio. The State (current points TEX. PENAL CODE version at Doe’s that Newton’s 2003)). 21.11(a) (Vernon began “sexual abuse” of Doe when Doe § We af- ANN. moved to San Antonio and continued until
firm. she moved to (quot- Franklin. issue, he con- Newton’s fourth Venue. 132).) ing 3 R.R. at Doe moved to San indecency tends with a that the evidence of moving Antonio before to College Station Specifically, child legally insufficient. County, in Brazos and then to Franklin. was no evidence that there The State points also evidence that County. of venue in Brazos a finger into “insert[ed] [Doe’s] court, “Unless ... in the trial disputed (Id. private area” County. once Brazos affirmatively or unless the record shows 170).) (quoting 3 R.R. at The indictment the contrary, appeals the court of must alleged indecency that Newton committed presume proved ... venue by “engaging] with a child in sexual con- 44.2(c); P. trial court.” TEX. R. APP. by touching genitals tact of Jane (I 1.) 33.1(a); Henley id. Doe.”1 C.R. at alleged "causing] penetration
1. The that Newton com of the female sexu indictment aggravated organ by inserting mitted assault al of Jane Doe ... his sexual
373 1999, ref'd); .App pet. to point in the record see Newton does . —Texarkana court, (Tex. State, nor venue in the trial dispute of Holland v. 699 any to that the record attempt Crim.App.1991). he show does “When offered for negates proof the State’s of affirmatively asserted, truth of the matters so called affirmatively the record venue or that such, ‘outcry testimony’ hearsay; is it is venue mandatory lay that elsewhere shows objectionable unless the is per County. presume than in Brazos We prescribed exception mitted to the court. proved venue the trial the State hearsay rule.” Dorado v. 843 Newton’s fourth issue. We overrule (Tex.Crim.App.1992); 38 S.W.2d see Martinez v. 178 810-811 In first three is- Newton’s Evidence. (Tex.Crim.App.2005). sues, concerning the trial complains he objections overruling court’s of Newton’s offenses, prosecutions for certain to evidence. however, including prosecutions for sexual Chapter offenses under Texas Penal Code trial appellate
“An court reviews a against 21 child twelve committed victims to or exclude evi court’s decision admit years age younger, subject proce of or to an abuse of discretion stan dence under requirements, outcry dural the victim’s v. dard.” Shuffield denied, alleged “statements that describe the of (Tex.Crim.App.), cert. 549 U.S. 798 fense” are “not inadmissible because of the L.Ed.2d 521 127 S.Ct. (2006); hearsay rule” if the statements “were accord Rachal years (Tex.Crim.App.1996); Montgom person, age made the first (Tex. older, defendant, State, 810 or other than the ery v. “If the tri
Crim.App.1991) (op. reh’g). on whom the child made a statement about al court’s decision was within the bounds the offense.” TEX. CODE CRIM. PROC. 2(a), appellate 38.072, (b), 2(a)(2); disagreement, § §
reasonable ANN. art. ruling.” court should not disturb its § id. 1. Article 38.072 balance “strik[es] Shuf 816); (citing at 793 Rachal accord prohibition against general between the field Montgomery (op. reh’g). at 390-92 hearsay specific societal desire to curb the sexual abuse of children.” Gar Hearsay. issue, con In Newton’s first he (Tex.Crim. cia v. the trial in overrul tends that court erred Ohio, App.1990) (citing Osborne U.S. hearsay outcry ing objection (1990)). 103, 110 1691, 109L.Ed.2d 98 S.Ct. evidence. See TEX. CODE CRIM. purpose is to “admit statute’s (Vernon 2005); ANN. art. 38.072
PROC. child testimony of the first adult a confides 801(d), TEX. R. 802. Texas Code EVID. Martinez, 178 regarding the abuse.” Procedure Article 38.072 Criminal Otherwise, people “the S.W.3d at 811. ‘outcry’ an to the hear exception “makes these children trust and whom whom of sexual say report rule for first abuse ... from they have confided are barred an child” victim “makes to adult.” [a] ” have told .... Z.L.B., repeating they what been In re 2003) ON (quoting n. COMM. adjudication); accord Id. HOUSE (juvenile (Tex JURISPRUDENCE, BILL CRIM. Thomas Stale, (I I.) finger.” C.R. at Newton does not con Ochoa v. indecency ay with a child tend that constitutes Murr 881, ref'd). aggravated sexual lesser included offense of pet. a child those facts. assault of under Cf.
ANALYSIS, Tex. H.B. Leg., 69th R.S. “We review the trial court’s decision to *13 (1985)). admit or hearsay exclude a statement that may fall within the hearsay article 38.072 curbing “But the societal interest exception under an abuse of discretion hardly child abuse would if be served all State, 766, standard.” Klein v. 191 S.W.3d that person’ testify ‘first had to to was a (Tex.App 2006, Worth pet. . —Fort general allegation from the child that granted grounds); on other accord Villa something the area of child abuse was nueva, Garcia, 209 S.W.3d at see Garcia, on at going home.” at S.W.2d 91. context, then, at 91. In the witness, The outcry a psychotherapist witness, determining which as the “first Doe, who treated testified outside the ... person to whom the child made a presence jury that her notes for a statement about the offense” committed date certain stated that Doe disclosed the defendant the proper outcry wit “that sexually had [Newton] abused [Doe] ness, Article 38.072 “demands more than a (3 past.” 6, 7; in the R.R. at see id. at 5- general abuse”; is, allusion of sexual that 7.) the statutory language “statement about that the witness’s “testi- the offense” does not any that “mean[] mony general was a conclusion of abuse statement that arguably relates what that did not describe the act in a discerni- allegation later evolves into an of child 5); Garcia, ble manner.” see against particular abuse person will sat 91. Newton conceded that the isfy requirements of’ the statute. Id. witness was the first adult to whom Doe (citing TEX. CODE CRIM. PROC. ANN. concerning made statement Newton’s of- 2(a)(2)) 38.072, § art. (complainant testi fenses. Although the testimony witness’s fied that she told her hap teacher “what concerning Doe’s statement to her did not pened”); State, see Villanueva v. 209 specify the manner or means of Newton’s 239, 2006, 247 (Tex.App. no — Waco offenses, Doe’s statement clearly did allege State, pet.); 726, Hanson v. 180 S.W.3d sexual clearly abuse and identified Newton 2005, (Tex.App no A pet.). . —Waco as the abuser. The trial court did not “statement about offense” means “a abuse its discretion in finding that statement some discernible manner testimony witness’s was admissible under describes the alleged offense.” Garcia at Article 38.072.2 The trial court did not err 91 (interpreting TEX. CODE CRIM. in overruling Newton’s hearsay objection.3 2(a)(2)). 38.072, § PROC. ANN. art. We overrule Newton’s first issue. would, moreover, 459,
2. We affirm ing (Tex. oil another 967 S.W.2d 461-63 ground. uphold 1998, will “[W]e a trial court's App. pet.); no Macias — Beaumont ruling any theory on applicable of law 255, to the 776 S.W.2d (Tex.App.— 258-59 Ross, ...." case State v. 32 S.W.3d ref'd); M.M.L., pet. San Antonio In re (Tex.Crim.App.2000); accord Martin v. *9-*10, Tex.App. LEXIS 173 S.W.3d (Tex.Crim.App.2005); — Amarillo (Tex. Holden filed) pet. (juvenile adjudication); Syndex App. pet.); Hailey Dean, Corp. v. 873-74 (Tex.Crim.App. 121-22 App. denied). writ — Austin 2002). would be admissible Further, hearsay under exception were we to for hold that the trial statements court erred, would, purposes diagnosis examining we medical after or treat the record whole, 803(4); ment. See TEX. R. EVID. find that we Molina v. have a fair assurance (Tex.App.— the error did not influence the or ref’d); effect, Houston pet. [14th slight Dist.] Gohr had but a and thus hold that the In Newton’s accord Montgom- Extraneous Offenses. issues, ery,
second and third
he contends that
(op.
reh’g); see
overruling
court erred in
New-
trial
TEX.
401-402;
R. EVID.
Martin v.
objections
ton’s
to evidence of extraneous
466 (Tex.Crim.App.2005).
“
offenses.
‘Relevant evidence’ means evidence hav-
ing any tendency to make the existence of
ruling
“A trial court’s
on the admissibili
*14
any fact
is
consequence
that
of
to the
ty of extraneous offenses
un
is reviewed
of
determination
the action more probable
der an abuse of discretion
Pri
standard.”
or
probable
less
than it would be without
State,
(Tex.Crim.App.),
724,
ble v.
175 S.W.3d
731
the evidence.” TEX. R. EVID.
To
denied,
962,
t.
546
126
U.S.
cer
probative,
be
extraneous-offense evidence
481,
(2005);
163
S.Ct.
L.Ed.2d 367
accord
“
need only provide a
‘small nudge’ to-
Montgomery,
(op.
810
at 391-93
S.W.2d
on
wards contradicting
appellant’s
[an]
defen-
reh’g).
sive
proving
theories
...
towards
that
of
complains
testimony
Newton
of his
State,
molestation did occur.” Wheeler v.
stepdaughter L. D.: “L.D. testified before
879,
67 S.W.3d
889 (Tex.Crim.App.2002)
that Appellant sexually abused
(internal
omitted)
footnote
(quoting Mont-
or ten n when
her
she
nine
they
when
was
(1990)
gomery,
lived in Houston. RR at Ap- submission)). orig. pellant made L.D. perform oral sex on him 404(b) “A trial court’s Rule ruling and then forced her to is rub on his scrotum reviewed an under abuse of while he had sexual with discretion intercourse an (4 100).” State, (Br. Page standard.” v. 137 unknown individual. RR at S.W.3d 17.) 78 (Tex.Crim.App.2004) (citing at Lane v. State, (Tex.Crim.App. 933 S.W.2d 519 issue, Rule 404. he second 1996)); accord Montgomery, 810 at S.W.2d argues under Texas Rule of Evidence State, (op. reh’g); on Qualley v. 404(b). 404(b). See TEX. R. EVID. Un- 206 (Tex.Crim.App.2006) 638 rule, crimes, der that “Evidence of other curiam). (per “Whether of extraneous
wrongs
prove
or acts is not
admissible
fense
apart
evidence has relevance
from
person
character of a
to show
order
conformity,
required
character
as
Rule
in conformity
may,
action
therewith.
It
404(b),
trial
question
is
for the
court”
however, be
for
purposes,
admissible
other
Martin,
its discretion.
“Rebuttal of for No. permissible purposes panel. See Person v. ... one of the venire B14-91-00503-CR, may be admitted LEXIS Tex.App. which relevant (Tex. 404(b).” Moses, *15, Rule *4 under 1993 WL (citing App. Apr.8, Crank [14th Dist.] — Houston (not (Tex.Crim.App.1988), disavowed on pet.) designated publication). grounds, Alford raised State see John (Tex.Crim.App.1993)); her the defensive issue Doe fabricated ston ill out of her own will allegations, either Crim.App.2004); Albrecht v. prompting, him at her mother’s toward or (com (Tex.Crim.App.1972) panel, in his examination of venire law); Wingfield, mon witnesses, cross-examination State’s *15 pet.); no (Tex.App. — Dallas argument.4 The points, State (fabrica Wheeler, at e.g., 886-87 court, trial pointed the to Newton’s tion). Doe.5 of cross-examination of Much that can raised A defensive issue be for general by Doe impeachment concerns of by than of Rule 404 otherwise purposes statements; prior inconsistent some by the “[Ex evidence admitted defense. cross-examination, however, tend to does are to traneous offenses admissible rebut exam- raise the issue of fabrication. For testimo by raised the defensive theories out ple, brought Newton that Doe hated during a witness cross-ex ny of State’s Newton, no respect and had disliked amination.” Ransom “bossy,” that he was that he resented came accord mother, between her and her felt better Crank, 341; at Powell him, away when she moved from and first (Tex.Crim. alleged that he abused her after she App.2001); Walker might learned that her mother reconcile 2006, pet. (Tex.App. (State Br. at (citing with him. 3 R.R. at ref'd). fact “The mere that the state’s 173).) not, will witness was crossexamined The to voir- points State also itself, intro and of authorize the state to examination, in which dire he asked: duce evidence of extraneous offenses. you Do think that is—when I someone Rather, responses it from is the elicited a say you in them think ‘child’ teens —do state’s on crossexamination witness which them teens to someone in is able make in may subsequently allow state to every- up story that’s not Does true? troduce extraneous offense evidence.” body agree with that? Albrecht, at (citing Crank youDo 101-102); think that —we talked about— at accord DeLeon v. about why talked the reason [the State] — Austin ref'd). pet. may people The defense also raise a make don’t outcries is because argues that State "waived” 5. Newton that his its cross-examination argument he that the evidence of which com- brought up was "confined to issues on direct plains theory to served rebut defensive 24.) by ... lite at examination State.” [f]rame-up.” that he (Br. [v]ictim "was of correct, If that contention cites is 21-22.) see id. Newton does authority proposition for the that such cross- argue that the State waived the State's examination could not raise a defensive issue. argument. perceive fabrication We do not arguments the two to be distinct. Newton).) is it. alteration Oivens distin they’re say something to about scared something, guishable. concerned evidence of they but Owens forgot I who said “ is, “system,” operandi’ ‘modus or manip- a child can that be basically said has or “a defendant’s distinc happened by ‘methodology,’” tell what ulated not to idiosyncratic tive manner commit an adult. acts,” ting prove criminal defen them The told either adult has Owens, 827 identity. dant’s know, or, ‘This will you happen
force 404(b), Rule see id. at 916. Under But say you if this.’ do think you you to admit seeks extrane “[w]hen State that, you do the converse of think offense under a ous manipulate can a child basically an adult ‘system’ operandi, or ‘there must modus I say something? say When ‘child’— be a that the extraneous offense showing again, teenagers. everybody Does by the which was committed defendant agree with that? method was “so identical in nearly [to (2 (bracketed at 103 alteration R.R. [sic] earmark charged as to them offense]
added).)6
” ’
the accused.”
handiwork of
Id.
position
in a
to ob-
trial court was
(quoting
Collazo
serve Newton’s voir-dire examination and
E.
(Tex.Crim.App.1981) (quoting
cross-examination, and the
responses
CLEARY,
*16
HANDBOOK
MCCORMICK’S
witnesses, and
panelists
the
and
the effect
(2d
THE
OF
LAW OF EVIDENCE 449
responses
on
of those examinations
State,
ed.1972)));
700
v.
see Moore
S.W.2d
The trial court did not abuse
jurors.
the
v.
(Tex.Crim.App.1985); Dickey
201
finding
in
that Newton raised
its discretion
State,
646
235 (Tex.Crim.App.
S.W.2d
fabricating
the
of Doe’s
her testimo-
issue
1983).
prior
“the
system,
To
bad
prove
ny.
distinctively
act ‘must
similar’ to
be so
Next,
argues
Newton
that
Similarity.
constitute a
present
“signa
‘as to
offense
’
were
the extraneous offenses
not suffi-
Qualley,
ture” act.”
fense.” Blackwell S.W.3d sufficiently charged to similar to offenses (Tex.App. 13 [1st Dist.] — Houston degree. For a matter of be admissible is 'd); Wheeler, ref at 888. pet. see S.W.3d similarity required example, degree “the intent is the material great “this is not so where
Newton that Court should that offenses rebut prove the extra issue” the extraneous hold that the State must issue, material when is the identity to the “as enough neous offense is similar prove are offered to ‘earmark extraneous offenses charged offense to [it] ” State, v. .... operandi.” at 30 modus Cantrell handiwork of the accused’ (quoting S.W.2d Owens cf. (bracketed Owens, The degree at 914-15. 827 S.W.2d (Tex.Crim.App.1992)) 914-15 Newton, prompting at the directly with or did so advanced the issue more in tion Newton mother, There, allegation made her argument. suggested of her Doe his that since against immediately mother filed for di- allegation before her Doe fabricated 104-110.) (See R.R. at prevent her mother’s vorce from Newton. order to reconcilia- However, imposes to rebut similarity required a defensive “Rule 404 no time ” issue, likewise, great. Black is .... limitations Hernandez v. well, Dennis (Tex.App. (Tex.App 178-79 Rather, “fa pet.). the Rules of Evidence . —Hous ref'd). pet. exam ton For [1st Dist.] logically vor the admission of all relevant the trial court in Mendiola ple, jury’s consideration.” part to admitted extraneous offenses Montgomery, 810 at 376 on (op. defense that Mendiola rebut Mendiola’s submission); orig. accord Hernandez thus of com impotent incapable Prince v. offense. mitting charged Mendiola pet. Dist.] [14th — Houston (Tex.App.— ref'd). 1999), rev’d grounds, Antonio on San The cases cited Newton are distin (Tex.Crim.App.2000). S.W.3d 282 case, guishable. exception With the of one There, defense, rebut order to all of the cases cited Newton were only tend
extraneous offenses need to under decided the common law of evidence impotent. prove Mendiola was not prior adoption that existed to the probative value of the extraneous of Evidence, fenses did from which not flow their close factual Rules common law offense, similarity charged only but “tended favor the exclusion of evidence.” prove from their force that the defen Montgomery, (op. Likewise, impotent. pro
dant was not submission); Prince, orig.
bative value of Newton’s of extraneous 55; e.g. Messenger v. circumstantially fenses to rebut 1982). (Tex.Crim.App. Op.] [Panel fabrication does not flow issue from close case, assuming The other that it was cor similarity charged to the offenses. decided, rectly concerned extraneous-of *17 The pointed primarily prove State to the evi- fense evidence system, admitted sexually dence that Newton which, assaulted both above, the reasons stated re stepdaughters they when were about the high quires degree similarity; and was age same that the abuse continued as decided under Rule of Evidence not long as was in If the home. the State, Reyes Rule 404. See 69 S.W.3d jury believed that Newton committed (Tex.App. Corpus 740 Christi — offenses, those extraneous that would ref'd). pet. it make more probable that Doe was not trial court did not abuse its discre- fabricating allegations her against Newton. finding tion in that the remoteness of the The trial not court did abuse its discretion extraneous offenses not did render them in finding that the extraneous offenses probative without value. were not so charged dissimilar from the offenses probative as to be without value. The trial court did not abuse its discre- Lastly, overruling objection tion in
Remoteness. un- argues the extraneous offenses were der Rule 404.7 “too remote We overrule Newton’s sec- 34.) to have any probative value.” ond issue. Further,
7.
were we to hold that the trial court
error
harmless.
TEX. R.
P.
APP.
erred,
hold,
14;
Renteria,
44.2(b);
examining
we would
after
the
379 issue, 403. Rule Newton’s third he analysis include, Rule 403 [A] should to, under Rule of Evidence 403.8 See but is not limited the fac- following rule, 403. tors: TEX. R. EVID. Under that relevant,
“Although
may be ex
evidence
(1)
probative
is;
how
the evidence
probative
if its
substantially
cluded
value is
(2)
potential
the
of the
outweighed
danger
preju
the
of unfair
impress
irrational,
in some
dice,
issues,
misleading
confusion
or
but nevertheless indelible way;
or
jury,
of undue
considerations
(3)
time
proponent
needs to
delay,
presentation
or needless
of cumula
evidence;
develop
Id.
tive evidence.”
We
New
understand
(4)
proponent’s
need for the evi-
“ ‘[Ujnfair
argue
prejudice.
ton to
unfair
dence.
prejudice’ refers to ‘an
tendency
undue
to Shuffield,
intent that the trial judge given very be *18 at 181. also consider the We whether ‘balancing’ proba substantial discretion in parties that argued jury only the could on the tive value one hand ‘unfair and purpose. consider the evidence for its proper other, prejudice’ on the and that he should at 17. ckwell Bla simply not be reversed an appel because factor, late court believes that it would have de As to the third potential “[t]he Powell, matter cided the otherwise.” 189 for unfair if prejudice occurs the State 926). Manning at 288 at (quoting spends an undue amount of time present- clearly at 730. deciding Doe testified to 8. We assume without that Newton preserved objection: go- his Rule 403 Newton's offenses. Newton concedes that "We’re ing prejudicial proba- to throw more than testimony '‘compelling” Doe’s was and his (4 68); tive.” see TEX. P. R.R. R. APP. impeachment attempted "ineffica- of her Nonetheless, 33.1(a). stated, the trial court cious,” guilt and that the evidence his considering "the I'm that same at the 40.) "powerful.” (4 objection. time” Rule as the R.R. 90.) jury.” points to bench confer- to the extensive. extraneous offense ing the evidence, admissibility 181 n. 2. on the of the Dennis, S.W.3d at ences three issue tablish nent how [3] [evidence] should As is the strong have that to the questions answer the fact of is relevant to show? other is fact of is that fourth in dispute?” ...: consequence that available consequence ‘[1] factor, the Does reviewing court evidence? evidence ’ related “[t]here Erazo, 144 the [2] that propo- to es- If to an And are the so, witnesses. We to L.D.’s fense evidence. The State’s mony ters to the evidence, in bolster L.D.’s eral cross-examination Newton’s direct examination of one testimony a witness developing the credibility, do not generally, apparently attribute such proponent of L. to Newton’s extraneous-of- presentation to the testi- D., called of his mat- gen- to to testimony com- of which Newton Montgomery, (quoting need (bracketed plains was brief. As to the State’s (op. reh’g)) at 390 on evidence, added); New- extraneous-offense Reese v. accord numerals (Tex.Crim.App.2000). point ton does not to direct evidence tend- issue, disprove ing Newton’s fabrication evidence’s As to the extraneous-offense points the State evidence to the lack of value, for the reasons stated probative corroborating Doe’s testimony. above, although the did not tend evidence directly, it tended disprove fabrication factors, not On those the trial court did circumstantially to that Doe did not prove finding its discretion in that abuse allegations. As to the evi- fabricate her effect of prejudicial the extraneous-offense effect, the trial court prejudicial dence’s substantially outweigh did not the cir- carefully jury instructed the probative The trial court evidence’s value. purpose under and the cumstances which Rule overruling did not err Newton’s jury the evi- for which the could consider objection.9 We overrule dence, limiting both imme- instructions third issue. testified, diately after the and in witness New- Having CONCLUSION. overruled Moreover, both charge. the trial court’s issues, we ton’s affirm. argued jury that it could parties apart consider the evidence from those As to purpose.
circumstances for that develop
the time that the State needed to evidence, that it was Further, clearly were we the trial court testified to hold that Doe to Newton's offenses. erred, hold, examining we would after Newton concedes Doe’s whole, record as a we have a fair assur "compelling” attempted impeach and his ance that the error did not influence "inefficacious,” her evi ment of and that the *19 effect, slight thus that the or had but 40.) guilt "powerful.” dence of his R. APP. P. error was harmless. See TEX. argued The State that the could consider Renteria, 14; 44.2(b); 706 n. 206 S.W.3d at bearing L. D.'s for its on Doe's S.W.3d at 791; McDonald, Shuffield, credibility, emphasize did but not otherwise 578; 737; Prible, testimony, juiy argue that the did not Haley, Hayes v. 173 S.W.3d at guilty directly find Newton should because (Tex.Crim.App.2002); Han against offenses trial court L.D. The son, Williams did not admit evidence other extraneous 2000, pet. (Tex.App. — Waco offenses, give limiting and did instruc careful ref'd); see Horton tions. pet.).