Lead Opinion
OPINION
delivered the opinion of the Court,
On аppeal from his conviction for aggravated sexual assault of a child, appellant contended that evidence of an extraneous sexual assault — elicited through the cross-examination of a Child Protective Services case-worker and the direct testimony of appellant’s niece, S.S. — was inadmissible. The Court of Appeals agreed and reversed the conviction. Wheeler v. State,
I.
A jury convicted Dennis Wheeler of the aggravated sexual assault of S.E., a child of nine. The State’s evidence showed that S.E. was a friend and classmate of appellant’s daughter, Taylor. On two different occasions in 1995, S.E. spent the night at Taylor’s house. According to S.E., appel
In his brief to the court of appeals, appellant’s first point of error was: “Reversible error occurred when the trial court admitted evidence of an extraneous offense.” Appellant complained that the direct testimony he elicited from Wanda Brumley, a CPS investigator, did not “open the door” to the State’s cross-examination of Ms. Brumley concerning her knowledge of allegations of sexual assault against appellant by his niece (S.S.). He also complained that the niece’s live testimony on rebuttal was inadmissible for any purpose.
The court of appeals held that Ms. Brumley’s testimony on direсt examination did not “open the door” to the State’s cross-examination of her concerning allegations of another sexual molestation. It also held that the trial court should have excluded the niece’s testimony under Rule 403, because the dangers of unfair prejudice substantially outweighed the probative value of this testimony to rebut the defensive theories presented. It further found that the trial court’s error in admitting this evidence was harmful under Tex R.App. P. 44.2(b) and reversed the case for a new trial.
II.
Appellant called Ms. Wanda Brum-ley, a CPS case worker, as his third witness. Defense counsel established Ms. Brumley’s credentials and that she had conducted a CPS risk assessment investigation of appellant after the present charges were filed to determine whether appellant posed a risk to his own two children remaining in the home. Counsel then asked:
Q.: And following your еxamination or your investigation, what determination was made?
A.: I did not validate. It was ruled out. I did not find any risk of abuse or neglect in the home. The child did not make outcry.
Q.: All right. Thank you.... We have no further questions.
Appellant was not on trial for molesting or abusing his own children. During the State’s case-in-chief, no one had suggested that appellant had mistreated his own children in any way. Ms. Brumley’s testimony was therefore irrelevant to any fact of consequence in this trial except to subtly bolster appellant’s character through the following chain of inferences:
1. Ms. Brumley did not find any evidence that appellant had abused his own children;
2. Therefore, one could infer that appellant did not abuse his own children;
3. If appellant did not abuse his own children, one could infer that he is not the type to abuse children in general;
4. If appellant is not the type to abuse сhildren in general, it is more likelythat he did not abuse S.E., the child complainant in this case.
Q.E.D.
She [Ms. Brumley] was doing her job, and she determined that that man created no risk. And she closed up that file....
And Wanda Brumley said she went out and investigated the household. And she was charged with the duty of protecting those children and said this is a no risk situation. And I’m folding my file.
I ask that you members of the jury follow what she said and find that this is indeed a no risk situation and that this family be left intact, that this man be found not guilty.
It appears, then, that the defense presented Ms. Brumley as a combination expert-investigator witness and subtle character witness.
Although appellant was entitled to proffer evidence of his good character (or propensity) for moral and safe rеlations with small children or young girls,
However, the defense presented Ms. Brumley as a species of expert witness,
In the present case, the State specifically asked Ms. Brumley what information she relied on for her official report.
This was permissible cross-examination into the basis for an expert witness’s opinion.
The State’s cross-examination was also permissible to correct the false impression that Ms. Brumley’s testimony clearly left with the jury concerning appellant’s risk of abuse. When a witness presents a picture that the defendant is not the type of person to commit the charged offense, the prosecution may impeach that witness’ testimony by cross-examining the witness concerning similar extraneous offenses.
As a general rule, the defensive theory that the State wishes to rebut through the use of extraneous offense evidence must be elicited on direct examination by the defense and may not be elicited by “prompting or maneuvering” by the State.
III.
During its rebuttal case, the State called appellant’s niece, S.S., to testify to the incident which had occurred some nine years earlier. S.S. testified that, when she was six years old, she had gone to the lake with appellant and his family. She was playing in the water with appellant and his son. Both children were in water above their heads and hanging on to appellant’s arms. As appellant’s son began to swim away, appellant put his hands inside S.S.’s bathing suit and touched her “female organ.” S.S. said that she immediately pulled his hand out and swam away. She eventually told her mother and her mother told appellant’s wife. No charges were filed, however, because they did not want to “break up the family.”
The court of appeals held that the trial court abused its discretion under Rule 403 in allowing S.S.’s testimony, because the defense had not “opened the door” to extraneous offense character evidence by sponsoring Ms. Brumley’s testimony.
The defense’s position was very clear from the beginning of this case. Defense counsel stated in his opening:
There was not a time when Dennis Wheeler and [S.E.] were alone, which is exactly what the State has told you they expect to prove. We expect to show you that there was no such túne and that there was no touching. It [sic] was no contact whatsoever as between this man and his Mend — his little girl’s Mend....
And we expect to show you that the idea that this man while his nine-year old daughter was standing as close to me to this right here, that this man would have sexually abused his daughter’s friend, that is absurd.
The defensive theories were essentially that appellant was never alone with S.E., and therefore lacked an opportunity to abuse her, or alternatively, that it would have been impossible for appеllant to abuse her in a room full of people.
S.S.’s testimony served to rebut these defensive theories. Her testimony was relevant to rebut appellant’s theory of lack of opportunity or impossibility, because the prior offense occurred with family members in the immediate vicinity and appellant’s son only a few feet away.
The trial court abused its discretion in admitting S.S.’s otherwise relevant and admissible testimony only if the danger of unfair prejudice substantially outweighed the probative value of her testimony.
The trial court should consider several factors in determining whether the prejudicial effect of evidence substantially outweighs its probative value under Rule 403. These factors include:
1.how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable;
2. the extraneous offense’s potential to impress the jury in some irrational but indelible way;
3. the trial time that the proponent will require to develop evidence of the extraneous misconduct; and
4. the proponent’s need for the extraneous transaction evidence.25
Here, the State needed to show that the offensive touching actually occurred, which was a hotly contested issue. This Court has recognized that in prosecutions for sexual offenses, a successful conviction “often dependfe] primarily on whether the jury believe[s] the complainant, turning the trial into a swearing match between the complainant and defendant.”
While evidence of an extraneous sexual offense will always carry emotional weight and the danger of impressing the jury in an irrational and indelible way, our rules of evidence require the exclusion of relevant evidence only if the danger of unfair prejudice, delay, or needless repetition substantially outweighs the probative value. We conclude that the trial court’s decision to admit the extrinsic extraneous offense in this case fell within the zone of reasonable disagreement and thus was not an abuse of discretion. Accordingly, we affirm the trial court’s admission of S.S.’s testimony, uphold the cross-examination of Mrs. Brumley as proper under the rules of evidence, and remand the case to the court of appeals to address appellant’s remaining points of error.
Notes
. Quod erat demonstrandum (“which was to be demonstrated or proved”).
. Strictly speaking, good or bad character concerning “pedophilia” or "child sexual abuse" is not a true character trait, although one might certainly have a reputation in the community concerning these conduct-oriented traits or the more general character trait for "safe and moral treatment of children.” See, e.g., Valdez v. State,
True character, in the context of Rule 405, means "a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.” Charles McCormick, Evidence § 195 (4th ed.1992); see also 1A John Wigmore, Evidence § 52, at 1148 (Tillers rev.1983).
.First, appellant was required to lay a predicate that Ms. Brumley was familiar with appellant's reputation or the underlying facts upon which her opinion was based concerning this trait before the date of the offense. See, e.g., Hernandez v. State,
. See Els v. State,
. Ms. Brumley, who had no first-hand knowledge of the fаcts but who was professionally qualified to undertake investigations and draw conclusions from that inquiry, testified as an expert witness even though she was not explicitly presented as such. See Tex.R. Evid. 702-705.
. Tex.R. Evid. 705(a). This rule reads:
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
. See, e.g., Nenno v. State,
. At trial the prosecutor explained:
Since [Ms. Brumley] has given an opinion as a person who has done over 100 CPS investigations, the State is allowed to go into the basis for that opinion. And whether or not that is admissible or not, the basis of that opinion is something that we can go into and that’s exactly what we are doing. If there is information out there that she acted on or didn't act on, that's something we are entitled to go into.
. At this point, appellant objected that the State was setting up its own impeachment device to get into the extraneous offense concerning S.S. and the trial court wisely held a hearing outside the jury’s presence. The State relied, in part, upon Creekmore v. State,
The situation in Creekmore closely resembles the present one. Appellant vehemently denied that he had "opened the door” as did the defense in Creekmore, because he did not elicit an opinion from Ms. Brumley that appellant was not a pеdophile. True enough, but the only relevance of Ms. Brumley’s opinion was the implicit inference that appellant was not the type to commit child sexual abuse. A subtle spice nonetheless has a distinct flavor. Ms. Brumley’s opinion testimony, though subtle, is distinct.
. See Ramirez v. State,
.See Nenno v. State,
.See Mcllveen v. State,
. See Bell v. State,
. See Shipman v. State,
. Of course, the State was required to have a "good faith" basis for the questions and be prepared to produce documentary evidence or a witness (outside the presence of the jury) to testify to them. See, e.g., Starvaggi v. State,
. While "[e]vidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion,” the accused in a criminal case may place his character in issue by offering evidence of his good character. Rule 404(a)(1)(A). By placing his character in issue, however, the accused "opens the door” for the State to rebut evidence of his good character with its own evidence of the accused’s bad character. On cross-examination, the State may test the character witness’ familiarity with the defendant’s character or demonstrate that the witness has a low standard for what he considers good character by inquiring into prior specific instances of conduct that are inconsistent with the particular character trait, but the State may not offer extrinsic evidence regarding the prior incidents solely to show the character witness is "wrong” in his opinion. Rule 405(a).
. While noting that the State contended that the rebuttal testimony was admissible "to rebut several different defensive theories аnd strategies,” the court of appeals never discussed them. In examining the State’s need for the extraneous offense, the court focused solely upon its value "to rebut Wheeler’s false impression evidence” and concluded that "[i]t would have been a simple matter to discredit Brumley’s conclusion that Wheeler's children did not need to be removed from the home by attempting to develop the fact that her investigation was somewhat cursory at best.”
. "Evidence of extraneous offenses committed by the accused has been held admissible ... to refute a defensive theory raised by the accused.” Albrecht v. State,
. Boutwell v. State,
. One of defense counsel’s first statements during closing argument was: "And yet the State is here asking you to believe that he was there diddling with this little girl or however you want to put it, right there in front of his children.”
. Evidence of an extraneous offense to rebut a defense of “lack of opportunity” or "impossibility” is admissible under Rule 404(b). See, e.g., Powell v. State,
.An extraneous offense may be admissible to rebut the defense in a child sexual assault case thаt the defendant is the innocent victim of a "frame-up” by the complainant or others. In such a situation, the extraneous misconduct must be at least similar to the charged one and an instance in which the "frame-up” motive does not apply. See Boutwell, 719
. Tex.R. Evid. 403.
. Montgomery v. State,
. Lane v. State,
. Boutwell,
. Montgomery v. State,
. Appellant admitted that the incident with S.S. did, in fact, occur but it was an "accidental” touching. There was no suggestion that S.S. had any motive to fabricate or "frame” the appellant and she had no pecuniary motive. S.S.’s total lack of a financial motive tended to rebut the defense that S.E.'s similar story of molestation was fabricated for purposes of greed.
. The doctor who examined S.E. testified that there was no medical evidence of penetration.
Concurrence Opinion
filed a concurring opinion.
As to the State’s cross-examination of Brumley about specific instances of child abuse engaged in by appellant, there is a much more explicit basis for admitting the testimony than that given in the Court’s opinion: the evidence constitutes proper rebuttal testimony under Rule 404(a)(1)(A).
Texas Rule of Evidencе 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
Rule 408 renders evidence inadmissible only when the prejudice involved is “unfair.”
The Court of Appeals’s opinion makes the erroneous assumption that appellant’s character is an improper basis for decision. “[Ejvidence of an extremely similar extraneous offense always carries the potential to impress the jury with an accused’s character conformity, an impression the law seeks to avoid.”
Rule 404(a)(1)(A)
One rule by which evidence is admitted to show character (as opposed to a non-character purpose) is Texas Rule of Evidence 404(a)(1)(A). That rule permits a criminal defendant to introduce evidence of a pertinent character trait in order to prove action in conformity with that trait.
Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same.
(emphasis added).
Rule 405(a)
The rules limit the types of evidence that may be used to prove chаracter. Even under Rule 404(a)(1)(A), character evidence may take the form of reputation or opinion only, with one exception: when evidence of a character trait is presented, the adverse party may inquire on cross examination into specific instances of conduct under Rule 405(a). Rule 405(a) provides:
In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
What is still prohibited, even under Rule 404(a)(1)(A), is extrinsic evidence of specific instances of conduct.
Rule 403
The differences between Rule 404(b) and Rule 404(a)(1)(A) significantly affect the analysis to be conducted under Rule 403. Character is an improper purpose under Rule 404(b) but not under Rule 404(a)(1)(A). Since the very purpose of Rule 404(a)(1)(A) is to show character, and Rule 405(а) contemplates cross-examination about specific instances of conduct, a party must do far more than simply point to the evidence’s tendency to show character to establish “unfair” prejudice under Rule 403.
Brumley’s Testimony
As the Court recognizes, Brumley’s testimony, offered by appellant, had probative value for only one purpose: as evidence of appellant’s good character for not being a child molester. By introducing a CPS worker’s opinion that appellant posed no risk of abuse or neglect in the home, appellant undoubtedly intended to incline the jury to draw the inference that he was not the kind of person who would molest children. In doing so, Rule 404(a)(1)(A) was implicated and the defense testimony opened the- door to an inquiry, on cross-examination, into specific instаnces of bad conduct relevant to the issue of whether he was a child molester.
But Rule 405(a) does not say the predicate testimony must be admissible to authorize inquiry into specific instances on cross-examination-just that the predicate testimony was admitted under the rule. By not objecting, the State procedurally defaulted the question of Brumley’s qualification to give character testimony. Having successfully admitted good character testimony, appellant opened the way for an inquiry by the State on cross-examination into relevant specific instances of conduct. The State’s cross-examination of Brumley on the extraneous offense against S.S. falls squarely within Rule 405(a)’s authorization for such an inquiry. The Court says that “The State may not convert a defense fact or expert witness into a character witness through its own cross-examination.” But Brumley was not a fact witness, and while she may have been an expert witness, her “expert” testimony was relevant only to show appellant’s good character. The State did not convert Brumley into a character witness; the defense introduced her as one at the outset.
I join Part III of the Court’s opinion and otherwise concur in the judgment.
. Montgomery v. State,
. Id.
. See Wheeler,
. Id. at 368.
. See Rule 404(a)(1)(A).
. Rule 405(a).
Dissenting Opinion
filed a dissenting opinion in which PRICE and JOHNSON, JJ„ joined.
The Court, as I understand its opinion, reverses the court of appeals’ judgment for five reasons: It was proper for the State to cross-examine the CPS worker about her lack of knowledge of an extraneous offense (1) because she was an expert witness,
I haven’t much quarrel with the first holding, about testing the basis of the quasi-expert’s knowledge. I may not agree with all the dicta in the footnotes.
I do not agree with the holdings about the testimony of S.S., the extraneous-offense victim. Evidence that a person could fondle a child’s genitals that were under the water of a lake, where no one could see the touching, has little to do with its being possible to fondle a child in a
As for the need for the evidence, I wish to make two points. First, in the balancing test between probative value and prejudicial effect, the Court assigns probative value to the fact that the appellant is the kind of person who commits child abuse.
I would not disturb the court of appeals’ holding on the evidence from S.S., which would make it unnecessary to reach the issue of the CPS’s worker’s evidence. I respectfully dissent.
. See ante, Part II at 3-8 at 881-85.
. See id. at 8-9, at 885-86.
. See ante, Part III at 11-12, at 887-88.
. See ibid.
. Id. at 13, at 888.
.Id. at 14, at 889.
. Id. at 9, at 885 (referring to the State’s great need to rebut evidence "that appellant is not the type to abuse children,” with what must be evidence that he is such a type because he did so before).
. Id. at 13, at 888.