*1 evidence, In light of this say we cannot process
that Hall’s due rights have been
violated or that subjected he has been punishment.
cruel and unusual Points of eight
error and nine are overruled. affirm judgment
We of the trial
court.
PRICE, HOLCOMB, JOHNSON and
JJ. concurred the result. WHEELER, D. Appellant,
Dennis
The STATE of Texas.
No. 815-99. Texas,
Court of Criminal Appeals of
En banc.
Jan. *2 Barlow, Beaumont, Ap-
Douglas M. pellant. Tanner, DA, Tem, Pro Matthew
Lisа Austin, Paul, Atty., State’s for State. OPINION COCHRAN, J., opinion of delivered the Court, joined MEYERS, HOLCOMB, KEASLER, HERVEY, and JJ. appeal aggra from his
On conviction child, appellant vated of a sexual assault contended that evidence of an extraneous through the cross- sexual assault —elicited examination Services of Child Protective case-worker and direct niece, appellant’s inadmissible. S.S.—was Appeals agreed The Court of and reversed State, 988 the conviction. Wheeler v. 1999). (Tex.App.-Beaumont S.W.2d 363 we trial court Because conclude did not abuse its discretion either wit cross-examination of defendant’s ness, allowing Brumley, re testify, rebuttal witness we State’s Appeals regarding verse Court of the case points these of error remand appeals only to address court of points appellant’s remaining of error. I.
juryA Dennis convicted Wheeler S.E., child assault aggravated sexual nine. evidence showed that The State’s appel- friend and classmate S.E. daughter, Taylor. lant’s On two different spent night at occasions S.E. S.E., appel- According Taylor’s house. R.App. 44.2(b) sexually lant molested her on both occa- P. and reversed the case for time, put sions. The first he his hand a new trial. lap
underneath her shorts as she sat on his private parts and fondled her as S.E. was II. watching a video in bedroom *3 Appellant called Ms. Wanda Brum- son, appellant, with his and a friend of his worker, ley, a CPS case as his third wit Taylor son. taking appel- bath and ness. counsel Defense established Ms. lant’s wife was another room. On the Brumley’s credentials and that she had second that spend night, occasion S.E. conducted a CPS risk assessmеnt investi appellant Taylor’s came into room to watch gation appellant present after Taylor appellant dance. While and S.E. filed to charges were determine whether watching, appellant sat the bed reached risk to his own two appellant posed inside penetrated S.E.’s shorts and her remaining children in the home. Counsel organ female sexual finger. his then asked: jury appellant found guilty of the Q.: following your And examination or offense, and the judge, hearing after evi- your investigation, what determina- dence of two other similar child molesta- tion was made? incidents, tion punishment assessed his imprisonment. life A.: I not did validate. It was ruled out. I any did not find risk of abuse In his brief appeals, to the court of neglect the home. The child did appellant’s point first of error was: “Re- outcry. mаke versible error occurred when the trial Q.: court admitted All right. you.... evidence of an Thank extraneous We have Appellant offense.” no complained questions. that further direct he elicited from Wanda Appellant was not on trial for molesting or Brumley, a investigator, CPS did not abusing his own During children. “open the door” to the State’s cross-exami- case-in-chief, State’s no suggested one had nation of Ms. Brumley concerning her appellant had mistreated chil- his own knowledge of allegations of sexual assault dren in any way. Ms. Brumley’s testimo- against (S.S.). appellant by his niece He ny was any therefore irrelevant fact complained also that the niece’s live testi- consequence in trial except subtly this mony on rebuttal was any inadmissible for bolster through character purpose. following сhain of inferences: The court appeals held that Ms. 1. Brumley any did not find evi- Brumley’s testimony on direct examination appellant dence that had abused his “open did not the door” to the State’s children; own cross-examination of her concerning alle- Therefore, 2. one ap- could infer that gations of another sexual molestation. It pellant did not abuse chil- his own also held that the trial court should have dren; excluded the niece’s under Rule If did not abuse his own 403, because the dangers preju- of unfair children, one could infer that he is dice substantially outweighed proba- type not the abuse children tive value of this testimony to rebut general; presented. defensive theories It further found that the trial court’s error in admit- If type is to abuse ting this evidence was harmful under Tex general, children in it likely is mоre S.E., jury of the you child I ask that members not abuse
that he did follow what she said and find this in this case. complainant that this a no risk situation and indeed Q.E.D.1, appellant sexually did not assault intact, man left this be family be Indeed, appellant’s suggested counsel S.E. guilty. found not closing as much in his statement: then, present- that the defense appears, It Brumley] doing job, [Ms. She expert- Brumley as a ed Ms. combination that that man creat- and she determined witness and subtle investigator up And she closed ed no risk. witness. file.... prof- appellant was entitled to Although (or said she went And Wanda pro- good fer of his *4 the household. investigated out and moral and safe relations with pensity) for duty And she was under Rule young girls,2 children or small 404(a)(1)(A), said this is to do so in protecting required those children and he was my procedures I’m and foun- folding no risk And accordancе with the a situation. he in Rule 405.3 This did dations set out file. 420, Quod (“which (Tex.App.-Houston 423-24 was to 669 S.W.2d erat demonstrandum 1984, ref'd) (trial pet. erred in court proved”). [1st Dist.] or be demonstrated good excluding testimony that defendant had community being reputation a moral Strictly speaking, good or bad proper treatment of person and for safe and concerning sexual “pedophilia” or "child State, children); Foley Tex.Crim. young v. 172 trait, although a true character abuse" is not 686, 261, (1962)(DWI defen S.W.2d 687 356 reputation might certainly a in the one have testimony of his charac dant entitled to offer concerning community these conduct-orient State, v. 166 sobriety); trait for Hamman ter general trait ed traits or the more 301, 349, 303-05 314 S.W.2d Tex.Crim. treatment of children.” for "safe and moral (1958)(defendant charged with embezzlement 518, See, State, e.g., 2 S.W.3d 520 v. Valdez testimony of chаracter trait entitled to offer 1999, pet. (Tex.App.-Houston Dist.] [14th generally, honesty dealing). See 1 and fair refd) (noting allow the defense to that "[t]o Goode, ah, Rules of Evidence: Steven et Texas a assault ask whether an accused in sexual (noting § 404.3 that crimi Civil and Criminal being pedophile reputation for a is case has a any may offer evidence of char nal defendant asking case if akin to a witness in a murder pertinent charge; use "[t]he trait acter being reputation for a defendant has a unduly ‘pertinent restrict trait' should murderer, being a or status of murderer. The exception”). of this the defendant’s use pedophile, a 'character case a is not in this case, repu accused's In a murder trait.’ 405, character, of Rule in the context True non-aggressive peacefulness, or bе tation for description per- generalized of a "a means havior, inquiry”); compare appropriate is the disposition re- disposition, of the son’s State, 189, (Tex. 197-98 v. Ibarra trait, honesty, general such as spect to a (trial court did not err in Crim.App.1999) temperance peacefulness.” Charles during phase allowing testimony punishment ed.1992); McCormick, (4th § Evidence 195 “sexually inappropriate” con appellant's § Wigmore, Evidence see also 1A John evidence); Brewington v. duct as character rev.1983). (Tillers 1148 (Tex.Crim.App. 1991) 3.First, lay predi was (treating required that defendant a appellant was ap evi pedophiliac” Brumley as character was familiar with a "fixated cate that Ms. dence); underlying facts reputation or the pellant's Wade v. (court pet.) based concern (Tex.App.-Fort upon no which her Worth offense. ing the date of the drug possession case the fact this trait before that in found See, drugs e.g., possessed never that defendant had Hernandez (noting (Tex.Crim.App.1990) that be pertinent essential ele 524-25 trait and "would be testify case”); witness either a character fore appellant's Thomas ment of Brumley not do. Because always Ms. did not entitled to cross-examine an ex- pert offer true character under Rule concerning witness the facts and data 405, the was not to turn upon expert forming State entitled which that relied in into a character opinion.6 witness cross-examina- her conclusion or Once Ms. questions “determination,” tion and then ask her concerning Brumley testified to her prior specific instances inconsistent with the State entitled to into thе inquire particular character trait. The investigation, State circumstances of that may not expert convert defense fact or under in- mode which she conducted her interviewed, witness into a character through quiry, people witness she and the its own cross-examination.4 upon materials which she relied.7 The question State was also entitled Ms. However, presented the defense Ms. Brumley about information of which she witness,5 Brumley species as a expert aware, upon but which she did not one who had investiga- conducted CPS rely. tion and “did not any find risk of abuse or neglect Therefore,, case, the home.” present specifical- In the the State ly was entitled to cross-examine Brumley asked Ms. what information independent as it did for two but she on for report.8 relied her official She First, aliа, related opposing reasons. party responded, inter that appellant told *5 reputation opinion, explicitly presented or the witness must have as such. See Tex.R. Evid. been familiar with the facts before the date of 702-705. offense). Second, the Ms. could tes tify only 705(a). opinion concerning to her this char 6. Tex.R. Evid. rule This reads: appellant’s general acter trait or reputation in (a) expert Disclosure of Facts or Data. The community concerning this trait. Tex.R. may testify opinion in terms of or inference See, 405(a). State, e.g., Evid v. Lancaster 754 give expert’s reasons therefor with- 493, 1988, (Tex.App.-Dallas pet. 495 prior underlying out disclosure of the facts ref'd) (noting that a character witness must data, requires unless the court otherwise. testify opinion in form reputa of either expert may any The event disclose on tion); State, 926, Hunt v. 779 S.W.2d 928 examination, required direct or be to dis- (Tex.App.-Corpus 1999,pet. ref'd). Christi cross-examination, close underlying on facts or data. State, 11, (Tex. 4. See Els v. 525 S.W.2d 14 See, 549, (“[t]he e.g., Crim.App.1975) v. may Nenno 970 S.W.2d State test a char 1998) (Tex.Crim.App. (concluding 564 acter proper you witness with ’have heard’ capital State was transform, entitled to cross-examine questions, may but it not its expert murder defendant's witness concern- questions, own a witness who is not a charac ing report by expert’s contents of made col- ter witness into one in order to be able to ask league who had interviewed defendant about you questions”); 'have Hatley heard’ see also upon report crime when that witness relied 27, v. (Tex.Crim.App. 29 forming opinion). his own 1976) (holding may rely that State not on its questioning own as an invitation to rebuttal prosecutor explained: 8. At trial the victim); concerning generally, character of see (Tex. Bishop v. Brumley] given opinion Since [Ms. has ("the Crim.App.1993) rely State person as a who has done over 100 CPS questioning its own as an invitation to rebut investigations, go the State is allowed to tal”). opinion. into the basis for that And wheth- not, er or that is admissible or the basis Brumley, 5. Ms. who had no first-hand knowl- opinion something go of that we can edge professionally of the facts but who was exactly doing. into and that’s we what are qualified investigations to undertake If there is information out there that she on, draw inquiry, conclusions from that something testified acted on or didn't act that's expert though go as an witness even she was not we are entitled to into. changed opin- her if she would have children asked both of his love[d]
her “that he verify the earlier able to ion had she been hurt them or much and would never very molestation, Brumley stated that she Ms. whether she else.”9 When asked anyone opinion her “possibly” change would had received information appellant was not a risk. years molested his niece several may have earlier, that a law Brumley stated cross-exami permissible This was “some- officer had told her enforcement expert the basis for an wit nation into that,” hearsay. it was She thing like but party is en opinion.10 opposing An ness’s might that she have asked stated if expert witness her titled to ask an it, made no change but she or his wife about would opinions or determinations upon that incident or con- which she relied attempt investigate if data Thus, trial court did not changed.11 file. child. She closed her When tact thе jury closing this information enables point, appellant objected that this 9. At opinion and ascertain expert’s setting up impeachment evaluate the its own State was wishes”); States weight con- see also United get the extraneous offense it device to into (8th Whitetail, wisely cerning trial court held 861-62 Cir. S.S. and the 956 F.2d v. presence. 1992) (when hearing jury’s offered outside defendant in murder trial relied, part, upon v. Creekmore from bat- expert testimony that she suffered (Tex.App.-San Antonio syndrome, prosecutor entitled tered woman’s ref'd), pet. which had held that when ag- prior fights where she to ask about expert to her that the defense testifies Wright, F.2d gressor); United States profile as an abus- defendant "does not fit er,” (prosecutor (D.C.App.1986) 1100-01 to cross-examine the State was entitled expert psychiatrist whether defense could ask defendant had witness about what the this anything do said he "would defendant her, "He said he is not [a which was: told expert’s money” jury to scrutinize to allow sexually says pedophile]. he has never He reasoning opinion); United States behind *6 testimony, ex- anyone.” This molested Id. Cir.1985) (4th Gillis, 773 F.2d 553-54 expert’s opinion, of her plaining the basis (when expert defendant introduced by impeachment devices along with other gambling "pathological from that he suffered suggested that the child the defense which disorder,” prosecu- properly permitted court lies, testi- jealous, that told that her was she expert on defendant's to cross-examine tor witnesses, by mony defense was contradicted theft, carrying kidnapping, and prior car lesbian, and perhaps was a that her mother weapon). x-rated and her mother watched that the child movies, permit impeachment to was sufficient at 563-64 Nenno v. 11.See three extraneous offenses. the admission of defense ex- (prosecutor could cross-examine Id. hearsay to undermine pert information closely resem- in Creekmore The situation showing "by that he relied expert’s opinion vehemently Appellant present one. bles the by appellant to specific made upon statements did "opened the door” as denied that he had despite informa- opinion other formulate that Creekmore,because he did not defense in the to have re- claims (upon which he also tion Brumley ap- an from Ms. elicit lied) telling a different appellant that shows enough, pedophile. True pellant not a story”); Pyles v. Brumley’s opin- only relevance of Ms. but the (in of (Tex.Crim.App.1988) cross-examination implicit inference that ion was the expert’s may the expert, opponent "secure type child sexual the to commit assumed set of facts opinion upon a different spice has a dis- nonetheless abuse. A subtle with his own opponent in accordance by the Brumley’s opinion testimo- Ms. tinct flavor. case”); theory of the Moranza subtle, though is distinct. ny, (Tex.App.-Waco 727-28 (State ref'd) hearsay statements pet. could use 10. See Ramirez impeach defense ex- psychiatric report to expert (noting that an (Tex.Crim.App.1991) challenging basis for pert when State was underly- or data required disclose the facts cross-examination; was insane defendant expert's conclusion that "[d]is- ing opinion on his would the permitting abuse its discretion in the trаneous offense tend to correct inquire fully State to into the basis Ms. by impression false left the witness’ direct professional It Brumley’s opinion. is true evidentiary testimony.13 The examination not, by cross-examination would this however, caveat, opponent is that the must itself, opened have the extrinsic door to impression” through correct the “false misconduct, of the extraneous left cross-examination of the witness who certainly inquiry but it did allow full by calling the other impression, false and upon into facts data Ms. which impression. correct that witnesses to false Brumley explanation relied and her as to rule, general theory As a the defensive why rely upon she did not informa- other that the wishes to rebut the through tion. use of extraneous offense evidence must be The State’s cross-examination de- elicited on direct examination permissible also correct false and not be by “prompt- fense elicited impression that Ms. Brumley’s testimony ing maneuvering” by As State.14 clearly jury concerning appel left with the above, appellant overtly noted did not pres lant’s risk abuse. aWhen witness present wit- as picture ents a that the defendant is not the ness, overtly testify and did not she type person to commit of appellant’s character for moral safe fense, prosecution may impeach that However, conduct around children. be- testimony by cross-examining witness’ cause was relevant similar concerning witness extraneous off type inference was the By raising enses.12 theory the defensive person pose did not who a risk of abuse posed abuse, that appellant ap no risk of children, around the State pellant (through Ms. was entitled Brumley) opened the impression” door for State to rebut that “false cross-examine her inference regarding extraneous if the ex- with questions offense cross-examination concern- expert al time of offense in effort to show extraneous offenses admissible to con- [was] might reached impression have different if he by appellant conclusion trovert the false left had been aware of type person additional information that he was not the who would child, report). against commit a sexual simply he was innocent victim of *7 anger imagina- State, 815, and children's their overactive 12.See Mcllveen v. 822 559 S.W.2d State, tion.” 318. Id. at (Tex.Crim.App.1977). In Townsend v. 316, (Tex.App.-Houston 776 S.W.2d 317 [1st 1989, State, ref’d), 116, pet. appeals the of 13. See Bell 620 S.W.2d 126 Dist.] court There, State, analogous (Tex.Crim.App.1980); faced an Anderson v. 896 situation. the de- (Tex.App.-Fort 579 sexually abusing was S.W.2d Worth fendant with ref’d) (by pet. offering young girls. minister's two He that testified and denied appellant "good a any that was candidate” for he sexual had contact with either child. appellant probation, "opened to the door” psychiatrist testify called a He that also to specific about rebuttal evidence a bad act of testing on his interview “based with and exposure). general proposition, indecent As a appellant, expert it was his medical party when a introduces matters into evi- appellant’s psychological profile that was not dence, the to reply he invites other side to typical of individuals who commit sexual that Kincaid v. 534 S.W.2d evidence. expert testimony, Id. crimes.” This which evidence, (Tex.Crim.App.1976). 342 species was a of subtle character opened calling the to door the State two wit- rebuttal had Shipman nesses in who testified that he 14. See 185 Mares, years (Tex.Crim.App.1980); them several The court abused earlier. appeals held that "the two evidence of 936. testimony, the allowing to- because allegations of similar S.S.’s ing misconduct “opened had door” to ex- ward another child.15 defense not the traneous character evidence III. Brumley’s testimony.16 sponsoring Ms. case, During its rebuttal the State Indeed, above, true. As noted Ms. niece, S.S., appellant’s testify called to to Brumley’s testimony opened door for the had some the incident which occurred nine re- cross-examine her the State to that, years S.S. testified when she earlier. upon or data that she either relied garding old, the years gone was six she had to lake appeals rejected. court of also con- The family. his She with and to the “any probative cluded that value playing in the water his of the State extraneous offense Both children were in above son. water substantially outweighed by the obvi- hanging appellant’s to their heads and on prejudicial such evidence would ous effect to swim appellant’s began arms. son As the under circumstances have Wheeler away, appellant put his hands inside S.S.’s phase guili/innocence then in the existing or bathing and touched “female suit trial.” focused appeals of the The court immediately gan.” said she S.S. solely upon probative value of the ex- the away. pulled his hand out and swam She Brumley’s rebut traneоus offense to mother eventually told her mother and her testimony,17 acknowledge to but failed charges wife. No were told call- the other reasons for discuss State’s filed, however, not they because did want also offered ing testify. S.S. State family.” to “break the up defen- testimony to rebut various S.S.’s Mr. in- regarding appeals The court of held that trial sive theories Wheeler’s nocence,18 simply any to correct court its discretion under Rule 403 abused course, that are inconsistent required Of State was to have a ic instances of conduct 15. trait, particular but the "good questions and be with the faith" basis for regard- documentary prepared produce extrinsic evidence not offer (outside presence jury) ing prior solely show the of the incidents or witness See, e.g., "wrong” opinion. testify Starvaggi v. сharacter witness is in his to them. 323; 405(a). (Tex.Crim.App.1979) Rule "good (prosecutor have faith belief must occurred”); noting While that the State contended actually Stone v. act testimony "to re- rebuttal admissible (Tex.Crim.App. 1979). theories and but several different defensive appeals strategies,” never dis- the court of examining a person’s While State’s need cussed them. In "[e]vidence offense, for the court focused or character trait is admissible for the extraneous conformity false purpose proving solely upon "to rebut Wheeler’s action its value occasion,” particular impression "[i]t the ac- and concluded that therewith on evidence” may place simple case his char- to discredit cused in a criminal would have been a matter *8 offering good Brumley’s children by in of his that Wheeler's acter issue conclusion 404(a)(1)(A). by By placing from the home Rule his did not need to be removed character. issue, however, attempting develop her investi- the accused the fact that in to cursory "opens gation door” for State to rebut evi- was at best.” somewhat good its dence character with own of his commit of extraneous offenses accused’s character. On "Evidence evidence of the bad cross-examination, may by has been admissible test ted the accused held the State by the theory raised familiarity ... to refute a defensive defen- character witness’ v. that the wit- accused.” Albrecht dant’s or demonstrate (Tex.Crim.App.1972); see Crank 101 also has for what he considers ness a low standard (Tex.Crim.App. 341 prior specif- by inquiring good character into her, impressiоn Brumley. alternatively, false left abuse or that it would acts, impossible appellant to same extraneous inad- have been though “[T]he evidence, people.20 her in a room full of De- abuse propensity may missible as be fense counsel called numerous to witnesses proper analysis admissible under a and a testify appellant’s opportunity lack of to proper rationale. Extraneous sex offenses S.E., sexually including appellant’s molest they were and are still admissible if fall wife, son, his his son’s friend who was into one the proper ‘exceptions’ to the incidents, present during one of the his ‘general rule’ barring their admission.” daughter, and himself. More- position The defense’s very clear over, appellant suggested that he was the beginning from the of this case. Defense consрiracy frame-up victim of a or motivat- counsel stated in his opening: by greed. Appellant ed noted that S.E.’s There was not a time when Dennis father and his wife had filed a lawsuit alone, Wheeler and were which [S.E.] against appellant argued and that S.E. exactly what you they the State has told (or up made duped making) into these expect prove. expect you We to show allegations profit. there was no such túne and that S.S.’s served to rebut these touching. there was no It was no [sic] defensive theories. Her contact whatsoever as between this man relevant theory to rebut of lack his Mend—his little girl’s opportunity impossibility, because the Mend.... prior family offense occurred with mem- expect And we you show that the bers the immediate vicinity appel- idea that this man nine-year while his lant’s son a few feet away.21 S.S.’s old daughter was standing as close to testimony ap- further served to contradict here, me right to this this man pellant’s “frame-up” theory by showing ap- would sexually have daugh- abused his pellant’s prior misconduct (very similar to friend, ter’s that is absurd. that for which he was pres- case) defensive theories essentially were ent involving circumstances nei- S.E., was never alone with money revenge possible ther nor mo- as and therefore opportunity lacked an Lastly, prosecutor to tives.22 stated that 1988) ("[p]robably the most common situa any opportunity dant claimed that he lacked gives tion which rise to the admission of ex many to commit sexual abuse because chil traneous offenses is in rebuttal room); of defensive always dren were in the same Abshire theory"). (Tex.App.-Texar (extranеous n.p.h.) kana evi 19. Boutwell v. dence was admissible in child sexual assault (Tex.Crim.App.1985). opportunity case when defense was lack of family commit offense and all of defendant’s 20. One of defense counsel’s first statements they members testified that never saw defen during closing argument yet was: "And anything dant do unusual with child com asking you State is here to believe that he was plainant). diddling girl there with this little or however it, you put right want to there in front of his 22.An extraneous offense be admissible children.” to rebut the defense in a child sexual assault case that the defendant is the 21. Evidence of an innocent victim extraneous offense to rebut "frame-up” by complainant of a opportunity” "impos a defense of “lack of or others. See, situation, 404(b). sibility” is admissible In such a under Rule extraneous miscon- *9 State, 435, (Tex. e.g., Powell v. duct 63 S.W.3d 438 must bе at least similar to the (extraneous Crim.App.2001) "frame-up” offenses with one and an instance in which the Boutwell, may children apply. other be admissible when defen motive does not See 719
888 potential 2. offense’s earlier demon- the extraneous
evidence of the incident jury the in some irrational impress appellant have quickly strated how could way; but indelible purpose, illicit accomplished his which proponent that the also to rebut defense 3. the trial time will relevant develop the Thus, require to evidence of opportunity. that al- he lacked misconduct; and extraneous testimony appel- though regarding S.S.’s proponent’s have been inadmissible 4. need the extra- lant’s abuse would the evidence.25 if that neous transaction prove offered to in conformity in acted therewith Here, to show that the the State needed case, her rele- present the occurred, actually offensive which touching permissible purposes. vant for several issue. hotly contested This Court prosecutions that recognized has trial court abused its discre offenses, sexual a successful conviction “of- admitting tion in S.S.’s otherwise relevant dependfe] the primarily ten whether testimony only if the dan admissible complainant, turning jury the believe[s] substantially out ger prejudice of unfair swearing the trial match into a between probative value of her testim weighed and defendant.”26 Be- complainant ruling The trial court’s must be ony.23 ap- cause numerous witnesses testified it upheld long as is “within the zone so sexually pellant’s opportunity lack of disagreement.”24 reasonable S.E., testimony by molest the rеbuttal S.S. minimum, provided, “small sev The trial court should consider nudge”27 contradicting appellant’s towards determining eral factors in whether proving and towards defensive theories substantially prejudicial effect of evidence did indeed occur. molestation Rule probative its value under outweighs an quite event S.S.’s showed 403. include: These factors charged event: the defen- similar to the the ex- compellingly girl’s 1.how evidence of a young dant underneath reaching touching private offense to make clothing traneous serves outer family member was consequence parts fact of more or less while another by.28 close probable; factor, (extraneous need for evidence. evidence in the State’s S.W.2d at 179 cases admissible child sexual assault be consider the other three Therefore we will not being here, too, contention that "defendant was rebut although they, support the factors State, witnesses”); v. framed Johnston testimony. admissibility of S.S.'s (Tex.Crim.App.1967) 418 S.W.2d 527 (extraneous sodomy boys acts of with other Boutwell, at 177-78. 26. 719 S.W.2d “frame-up”). to rebut defense admissible Montgomery 27. at 381. v. 23. Evid. 403. Tex.R. Montgomery 24. v. Appellant incident admitted (Tex.Crim.App.1990); see also Rodda fact, did, but it was "acciden- S.S. occur (Tex.App.-Houston [14th suggestion touching. was no tal” There ref'd) (stating greater pet. Dist.] any S.S. to fabricate "frame” had motive given should be to trial than usual deference pecuniary no mo- and she had excluding admitting court’s discretion a financial motive tive. total lack of S.S.’s offense). extraneous that S.E.'s similar tended the defense to rebut pur- story was fabricated for of molestation (Tex. Lane poses greеd. appeals The court based Crim.App.1996). its under Rule 403 on fourth reversal *10 case, KELLER, P.J., concurring In this the trial court could reason- filed a opinion. ably conclude that the had a great
need rebuttal evidence to counteract of As to the State’s cross-examination parade appellant, family, the small of his Brumley specific instances of child about Mend, investigator, his son’s and a CPS engaged by appellant, abuse in there is a testified, essence, in who explicit admitting much more basis for the type not the to abuse children did and testimony given than the Court’s and could not have opinion: proper done so these two the evidence constitutes Rule testimony rebuttal under girl occasions. One little said the events 404(a)(1)(A). pitted did occur.29 She was against six defense witnesses whose assert- provides: Texas Rule of Evidence 403 implied ed or the events did occur and relevant, ex- Although evidence be that the motive for S.E.’s probative if substan- cluded its value is money from a civil lawsuit. tially by unfair outweighed danger issues, prejudice, confusion of the While evidence of an extraneous sexual jury, by considerations misleading always carry offense will weight emotional delay, presentation of undue or needless danger impressing jury and the of cumulative evidence. way, an irrational and indelible our rules of Rule 408 renders evidence inadmissible require evidence the exclusion of relevant only prejudice when the involved is “un- danger evidence if the preju- of unfair “1 prejudice fair.” ‘Unfair’ means an ‘un- dice, delay, or repetition needless substan- tendency suggest due decision on an tially outwеighs probative value. We basis, improper commonly, though not nec- conclude the trial court’s decision essarily, an one.’”2 extra- emotional The admit the extrinsic extraneous offense in present neous offense evidence case this fell case within the zone of reasonable unquestionably prejudicial. The real disagreement and thus not an abuse of prejudice issue is whether the involved was discretion. Accordingly, we affirm the tri- suggested improper the kind that basis al testimony, court’s admission of S.S.’s decision, so, if improp- whether the uphold the cross-examination of Mrs. suggested by er for decision evi- basis proper as under the rules of evi- substantially outweighed legiti- dence dence, and remand the case to the court of (i.e. probative mate value of the evidencе appeals appellant’s to address remaining evidence). prejudice the fair by created points of error. Appeals’s opinion makes Court assumption
the erroneous
improper
KELLER, P.J.,
character is an
basis for decision.
concurring
filed a
“[Ejvidence
extremely
anof
similar extra-
joined
Part III of the Court’s
always
potential
neous
carries
opinion.
impress
jury
with an
char-
accused’s
J.,
WOMACK,
opinion,
a dissenting
filed
conformity, an impression
acter
the law
joined
JOHNSON,
Appeals’s
PRICE and
JJ.
seeks to avoid.”3 The Court
29. The doctor who examined S.E. testified
2. Id.
pen-
that there was no medical
etration.
Wheeler,
3. See
opinion and the State’s brief that duct question court assume that the evidence vides: 404(b).4
was admissible Rule That under admitted testimony In all cases where is admission justifies the of evidence for rule rule, in- under this cross-examination If, however, purpose. a non-character specific quiry is allowable into relevant evidence this case was admissible under of instances conduct. rule admission of justifies a different Rule prohibited, is still even under What showing char- purpose evidence for the of 404(a)(1)(A), specif- is extrinsic evidence acter, prejudicial then the effect ic instances conduct. unfair sim- evidence could not be deemed ply because evidence tends show Rule 403 bad character. 404(b) and The differences between Rule 404(a)(1)(A)
Rule 404(a)(1)(A) affect the significantly Rule by to be under Rule 403. analysis One rule which evidence is admitted conducted (as opposed improper purpose character to a non- is an under to show Charactеr 404(b) under Rule purpose) character Texas Rule of Evi- Rule but 404(a)(1)(A). 404(a)(1)(A). very purpose of permits That rule a Since the dence 404(a)(1)(A) character, and defendant evidence of is to show criminal to introduce Rule 405(a) pertinent contemplates trait in order Rule cross-examina- a conduct, specific a conformity action in that trait.5 tion about instances of prove with 404(a)(1)(A) simply point do far than provides: party must more Rule charac- tendency to the evidence’s to show of a character or person’s Evidence prejudice under ter to establish “unfair” character trait admissible for the is not Rule purpose proving conformity action in occasion, on a ex- particular
therewith Brumley’s Testimony cept: (1) Evidence of Character of Accused. Brumlеy’s tes- recognizes, As the Court pertinent character trait offered: by probative had timony, appellant, offered (A) case, by an in a criminal accused purpose: one as evidence value prosecution to rebut being for not appellant’s good character same. introducing CPS By child molester. added). posed no (emphasis worker’s home, ap- in the neglect risk of abuse or 405(a)
Rule undoubtedly to incline pellant intended was not that he types jury rules limit of evidence to draw inference The molest chil- person kind of who would prove be used to character. 404(a)(1)(A) so, 404(a)(1)(A), doing under Rule dren. In Rule Even reputation implicated and the defense may take the form of evidence on cross- inquiry, the- door opinion only, exception: opened when one еxamination, of bad presented, specific into instances of a character trait is he relevant to of whether party may inquire on cross conduct the issue the adverse into con- a child molester. specific instances of examination 4. Id. at 368. 404(a)(1)(A). 5. See Rule appellant’s good character. correctly The Court observes show Brumley into a char- Brumley’s direct examination State did not convert witness; was in fact inadmissible. was not acter the defense introduced *12 405(a), qualified, give under Rule to an as one at the outset. opinion on character because and join opinion I Part III of the Court’s opinion upon
her was not based facts she judgment. otherwise concur prior knew to the offense: “In a criminal case, qualified testify guilt to be to at the WOMACK, J., dissenting opinion filed a stage of trial concerning the character or JJ„ JOHNSON, in which and PRICE accused, trait an character a witness joined. reputa- must have been familiar with the Court, opinion, tion, The as I understand its the underlying with facts or infor- appeals’ judgment the court of reverses based, upon mation which the proper five It was for the reasons: prior day to the of the offense.”6 The to cross-examine the worker about CPS that, Court then contends because the de- her lack of an knowledge of extraneous testimony fense on direct examination was (1) expert because she was an wit- inadmissible, the not State was authorized ness,1 (2) impres- and to correct a false testimony rebut under the rules. It proper sion.2 was for the State to intro- 405(a) But Rule say predi- does not testimony duce the of the victim of the cate must be admissible to au- (3) extraneous offense to rebut the defense inquiry thorize specific into instances on (4) theory opportunity3 of lack of and cross-examination-just predicate that the theory frame-up,4 rebut the defensive testimony was admitted under the rule. (5) prejudicial effect of the victim’s By objecting, procedurally the State evidence did not substantially outweigh question Brumley’s defaulted the quali- “the State[’s] need[] show give fication to testimony. Hav- touching actually occurred”5 “to coun- ing successfully good admitted parade” teract the small of defense wit- testimony, appellant opened way nesses.6 inquiry by the State cross-examination I haven’t much quarrel with the first specific into relevant instances of conduct. holding, testing qua- about the basis of the The State’s Brumlеy cross-examination of si-expert’s knowledge. may I not agree on the against extraneous offense S.S. falls all the dicta the footnotes. 405(a)’s squarely within Rule authorization inquiry. for such an says The Court I do not agree holdings with the about may “The State S.S., convert defense fact the extraneous-of- expert witness into a character witness fense person victim. Evidence that a through its own cross-examination.” But genitals could fondle a child’s that were witness, lake, was not a fact and while under the of a water where no one witness, expert she have been an touching, could see the little has to do with “expert” testimony relevant being possible to its a child in a fondle 405(a). 6. Rule 4. See ibid. ante, 1. See Part II at 3-8 at 881-85. Id. at at 888. 8-9,
2. See id. at at 885-86. 6.Id. at 889. ante, 11-12,
3. See Part III at at 887-88. people who were where other
bedroom Texas, Appellant, STATE touching. Evidence present could see report person who did not that one financial offense did not seek extraneous MEDRANO, Appellee. Matthew way disproves by reporting, no gain had person report this offense who did No. 527-99. gain. of financial motivations Texas, Appeals of of Criminal Court evidence, I the need for the wish As for En Banc. First, points. in the balanc-
to make two *13 Feb. 2002. prej- probative value and ing test between effect, probative assigns udicial Court the fact that the
value to commits child abuse.7 person
kind of who law, the im- I understand the this is
As evidence, of the
proper, prejudicial feature prove another legitimate
not its value Second, tipped if scales are
fact.
admissibility the State has because defendant victim a witness while the as rebutted, they’ll to be
had more witnesses they ifAnd tipped most of the time.
be hotly “a tipped because there was
can be “the offensive issue” whether
contested occurred,”8 they tip actually will
touching Guilty. plea is Not every case where appeals’ the court of
I would not disturb S.S., which the evidence from
holding on to reach the unnecessary
would make it I evidence. of the CPS’s worker’s
issue
respectfully dissent. Id. at 888. great at (referring State’s at 885 to the Id. is not "that need to rebut evidence children,” what must type to abuse type because he that he is such a be evidence before). did so