*1 Tremayne BLACKWELL, Theran

Appellant, Texas, Appellee. STATE 01-03-01314-CR.

No. Texas, Appeals

Court (1st Dist.).

Houston

Jan.

Discretionary Refused Review 7, 2006.

June *4 trial court erred contends that the

pellant two admitting extraneous by the State offenses and permitting improper question an commitment ask point of error Appellant’s third voir dire. attorney rendered that his trial asserts hold of counsel. We assistance ineffective allowing did not err the trial court of extraneous offenses admission evidence of rebuttal suggested theories at which sexually intent to assault pellant lacked the the victim of J.H. and that grandmother. We “frame-up” J.H.’s State’s voir dire further hold commitment questions improper *5 trial attor- questions appellant’s and that ney not render ineffective assistance did affirm. counsel at trial. We therefore

Facts Appellant was related to J.H.’s cousins very he was and had known J.H. since years eight or nine young. When J.H. was old, residence began appellant’s to visit spend night alone and to there. J.H. Leitner, Houston, for Appel- James M. his grandmother, lived with Melvina Ste- lant. with her pherson, and made these visits Atty., Keating, Kevin P. Asst. Dist. appel- to visit permission. J.H. wanted Jr., Rosenthal, Atty.-Har- A. Dist. Charles his lant’s residence because cousins Glen Houston, County, ris for Appellee. to Stepherson often went there and Fred play. and to watch movies NUCHIA, Panel consists Justices together night, sharing One while bed JENNINGS, and ALCALA. residence, appellant appellant’s in woke had the bed up to tell him that he wet J.H. OPINION change clothes. After and needed to his ALCALA, ELSA Justice. and changed his clothes returned J.H. Blackwell, bed, disrobe, him but appellant Theran told J.H. Appellant, Tremayne whip Appellant of inde- threatened pleaded guilty to the offense refused. off and he did not take his clothes cency with a child. J.H. Tex. ANN. Pen.Code (Vernon 2003). 21.11(a)(1) he refused to “whipped” § then J.H. when finally complied J.H. guilty, true an en- remove his clothes. appellant found found him to appellant get told alleged ap- by disrobing, and paragraph hancement conviction, felony baby from the bathroom. J.H. com- pellant prior had a oil appellant plied returned bed find punishment his at confinement assessed error, to rub Appellant naked. instructed J.H. years. points two baby chest, appellant’s “private oil on his sistent statements that made to vari- part,” and his “behind.” also Appellant people, ous audiotape and writing, “private part” rubbed J.H.’s and “behind” J.H. which claimed the allegations baby contact, with oil. After the sexual that he had made against appellant were anyone told J.H. not to tell what not true that he falsifying transpired. J.H. testified that this allegations jealous because he was repeatedly conduct occurred at attention that gave to his cousins apartment over the course of several explained Glen and Fred. J.H. during his years. direct examination the State that his denying statements the conduct appel-

J.H. repeated also described con- sexual voluntarily. lant were not Appel- made duct with appellant appel- occurred attorney lant’s cross-examined J.H. about lant’s car. appellant gave J.H. said that prior inconsistent statements and mo- him beverages alcoholic him that caused lie tives to about appellant. feel drowsy dizzy. in- At struction, J.H. disrobed and appel- rubbed during Melvina testified direct examina- “private part” lant’s while tion that she was unaware that “private rubbed part” J.H.’s one girlfriend, had ever had that she believed Appellant’s hand. other hand was on the initially reported J.H. when he the sexual steering wheel as he drove the car. her, misconduct to and that J.H. was a repeated boy” also described “good got nothing sexual con- who into more than duct that occurred with appellant boyhood normal Melvina trouble. also *6 lant’s studio in recording a room that had appellant stated that purchased pair had a appeared what to be cotton on the walls. J.H., of sneakers for “didn’t think but she Appellant clothes, to told J.H. remove his of anything it” appellant “always because and, complied, pulled when appellant J.H. bought things” for grandsons.” her “two down pants his own and J.H. instructed to give She did other details about “private rub appellant’s part.” appellant’s relationship with her “two Likewise, state, grandsons.” did not she old, eight When he was years nine trial, in point at that the the names of her reported J.H. the sexual to his misconduct grandsons, they two or whether were chil- grandmother, Stepherson, Melvina but she During dren or adults. cross-examination did nothing about because was in she Melvina, appellant’s attorney introduced however, poor mother, health. J.H.’s re- through appellant her that was a good ported police the to conduct officers when figure father to grandsons her other two she learned J.H.’s allegations upon about appellant begun and a that had football prison. her release from young boys. team for trial, At the State’s case-in-chief consist- presented trial Appellant’s attorney the J.H., ed testimony from was who during of seven years appel- witnesses old at the time of the his Melvina, testimony pre- lant’s case-in-chief. The grandmother police and two offi- during appellant’s cers who sented defense at trial investigation testified about their (1) following: showed the J.H. in the case. stated J.H.’s at trial de- appellant and on that writing audiotape scribed the contact with appellant sexual in improper any way; the was not with occurred over course of several J.H. (2) (3) years. anticipation challenge In is not a person; of a to J.H. truthful J.H. defense, credibility allegations J.H.’s the State falsified the because be- introduced incon- prior appellant J.H.’s lieved that mean and be- was to off told K.S. take Appellant jealous of attention that disrobe. J.H. was cause (4) cousins, ex- complied. and K.S. pants, to his K.S. appellant gave J.H.’s that, stand- many girl- was previously plained appellant had had because appellant door, intro- attorney also locked he did not Appellant’s right by friends. ing clerk testimony from a district court appellant duced leave. When feel he could off, said that her records showed who shorts K.S. to his boxer told K.S. take in date of jail appellant feared cry he might that he because felt alleged the indictment. offense from him. Before appellant what wanted off, appellant shorts K.S. took boxer rebuttal, objections, over Appellant him. him to come over to told of- introduced two extraneous the State and started put his arm around K.S. then by appellant misconduct fenses sexual stomach. showed rubbing Appellant his boys, and C.R. young two K.S. sock, had money K.S. some he that, years testified when he was 13 K.S. hun- give K.S. two stating he would old, two group he in music off. took the boxer shorts years dred dollars he boys other who were off, and as he the boxer shorts boys yellow three looked in K.S. took age. The studio, naked, sing him told recording appellant for a called stood pages studio, Af- ultimately appellant went to studio while watched. again, verse boys met visit- they appellant. where told song, ter K.S. finished the attempt seven times in an off,” Ap- ed the studio but refused. “jack K.S. K.S. visited, song, record and each time to ask to mastur- pellant continued K.S. recording people other the studio himself, K.S. if bate asked boys songs. Appellant never asked put could his hand down KS.’s money During record at his studio. to refuse shorts. K.S. continued studio, seventh visit the three finally K.S. Appellant told requests. lant’s windowless, accompanied appellant After put his clothes on. could like soundproof room that what looked on, hugged put K.S. his clothes walls, group prac- cotton on the where the *7 him. When asked if K.S. loved K.S. and singing song. Appellant ticed then said “no,” laughed and told appellant said K.S. boys he that wanted to hear each immediately he leave. K.S. K.S. that could K.S. with individually. When was alone his and reported the incident to mother room, soundproof appel- in the appellant although appel- appellant, never saw again sing told him that he had to louder. lant days after house a few lant called KS.’s “jacked him that off or Appellant told he the incident. sing a nut” it would make him louder. bust years when he was 12 that C.R. testified said, Appellant suggested “No.” then K.S. J.H., old, him and C.R.’s appellant took shoes, K.S. off which K.S. did. that take his friend, Ap- to the movies. neighborhood sing again, told the verse Appellant K.S. movies, paid boys to the pellant drove the again told that he was and K.S. admission, bought and each for their singing. Appellant satisfied with the movie, After the boys bag popcorn. to take off his shirt. K.S. then told K.S. home, as C.R. and J.H. taking instead of refused, his off initially but then took shirt expected, appellant claimed had C.R. might then be he believed he because boys to drove the his he was sick and appellant’s At instruc- allowed to leave. go into told C.R. to apartment. Appellant tion, song, which again sang K.S. him it would apartment because with Appellant, was better. pellant said a bit C.R. to leave however, Appellant told that K.S. take while. request continued to J.H. in the car because lant asleep. predator J.H. was “a generally sexual and Appellant offered C.R. water to drink acting conformity he was therewith downstairs, a video game play during while the commission of the offenses al- up leged went trial, stairs for a short appel- while. the indictment.” At Appellant then upstairs objected lant called C.R. under Texas Rules Evi- 404(b). told C.R. he needed to become a dence man. 403 and See Tex.R. Evid. 404(b). C.R. Appellant entered bedroom and at saw asserted as blow-up a female doll on the floor. he does on Appel- appeal, here that under rule 404(b), lant told C.R. he would not be the extraneous allowed offense evidence (1) to leave until C.R. had sex with the doll. inadmissible because basis “no,” C.R. was scared and for appel- said but admission of the extraneous offenses again repeated lant evidence, that he would not was as character-conformity spe- be Appellant cifically, allowed to leave. told C.R. to to label a “sexual off, (2) predator take all of his generally”; clothes and C.R. com- there were insuf- C.R., plied. Appellant using told ficient distinguishing crude characteristics com- put language, organ his male mon to sexual the extraneous offenses into organ, charged doll’s female sexual and to con- offense the extraneous offense ejaculated. tinue C.R. Appellant probative until evidence to be on the issue of C.R., again then told using language, charged crude intent concerning the (3) put offense; male organ sexual into the doll’s the extraneous offenses did complied ejaculated. anus. C.R. he any purpose until conform to permissible 404(b), motive, At that point, appellant C.R. that under opportu- now rule such as told nity, intent, man. Appellant was a held a preparation, plan, knowledge, video identity, camera to record the with incident the doll. or absence of mistake accident (4) defendant, C.R. clothed himself and returned with intro- car, to appellant’s where duced at topics issue into the trial and had remained for the 30 minutes that thus the topics properly subject C.R. were not apartment been appellant. rebuttal the State. See Tex.R. Evid. 404(b). Additionally, appellant asserted Appellant’s attorney then rebutted the trial, as he here appeal, does rebuttal, by State’s introducing evidence extraneous-offense evidence should be ex- from six frequently spent who had cluded proba- under rule 403 its because appellant, time with who said that tive substantially outweighed by value was lant had not had sexual contact with *8 danger unfair prejudice of due to the them. Appellant’s attorney presented also trial court’s failure to limiting tailor the of appellant’s girl- former theory instruction the actual under friend question and recalled Melvina to her which the extraneous offense was admit- veracity about her and motives to testify ted. See Tex.R. Evid. 403. against appellant. We review a trial court’s admis

Extraneous Offenses sion of for extraneous offense evidence an issue, State, In his first appellant con abuse of discretion. Rankin v. 974 707, tends that the trial court erred admit S.W.2d (Tex.Crim.App.1996) (op. 718 State, ting into evidence the rebuttal on reh’g); Wolfberg State’s tes v. 73 S.W.3d 441, timony (Tex.App.-Houston of K.S. and because C.R. their 443 [1st Dist.] ref'd). 2002, pet. concerned extraneous A trial offenses court does not only long was offered to show that abuse its as its decision discretion

9 however, admissible, it has rele when of be the “zone to admit evidence is within character-conformity, for ex beyond vance disagreement.” Montgomery reasonable (Tex. motive, 372, opportuni proof State, ample, show 810 S.W.2d 391-92 v. knowledge, Further, intent, ty, preparation, plan, a (op. reh’g). on Crim.App.1991) accident. of mistake or identity, or absence regarding admissibili court’s decision trial Id.; Moses, Rebuttal 105 at 626. if S.W.3d be sustained correct ty of evidence will permis is “one of the case, theory law a defensive any theory applicable on evidence for which relevant purposes underlying reason sible even when the court’s 404(b).” Mo Rule wrong.1 may v. be admitted under Romero for the decision (Tex.Crim. ses, State, 539, 105 at 626. 543-44 S.W.3d S.W.2d 800 State, (citing Spann v. 448 App.1990) may evidence Extraneous offense (Tex.Crim.App.1969)). 128 S.W.2d various to “rebut the properly be admitted under may Evidence be excluded by a de propounded defensive theories” of the evi probative rule value 403 fendant, may not be admitted but outweighed by the substantially dence is de a left impression false address danger prejudice. of unfair Wheeler, Tex.R. Evid. at 887- 67 S.W.3d fendant. See State, 622, 403; Moses S.W.3d im the false a witness leaves When (Tex.Crim.App.2003) (citing Montgomery, type the accused is not the pression that 387). at should consid 810 S.W.2d Courts offense, type certain person to commit a a Rule 403 following er factors under method to confront proper (1) analysis: strength of the extrane of the wit is cross-examination evidence a to make fact of ous offense evidence never ob Appellant Id. at 885-86. ness. (2) consequence probable; more or less he jected at nor has asserted of the extraneous offense to im potential evi the extraneous offense appeal, irrational but indeli press some a false inadmissible to correct dence was (3) during trial that the way; ble the time by appellant. left impression requires develop State Wheeler, that, although court held (4) misconduct; the need extraneous offense evidence the extraneous by the for the extraneous evidence. sexually young assaulted Wheeler (Tex. State, 879, Wheeler v. in the of others girl presence at beach Crim.App.2002). impres- a false was inadmissible correct 404(b) Wheeler, the evidence was

Rule that evidence of sion left states theory— admissible to rebut extraneous offenses is not admissible sexually opportunity to guilt-innocence phase of a trial to that he lacked an he Mend because daughter’s that a defendant committed the assault his prove her, im- that it was conformity never alone with charged offense bad was 404(b); him in a room full possible to abuse her character. Nobles v. Tex.R. Evid. victim of (Tex.Crim.App. people, and that was the *9 1992). by frame-up or motivated may conspiracy Extraneous offense evidence whether the explained cause we need determine 1. The trial court its rationale admitting by any the extraneous offense evidence on theo court’s decision was correct trial impres stating, just seems to me that the "[I]t applicable to ry of law the case. See Romero just front of the is so unfair if I State, sion in 539, (Tex.Crim. S.W.2d 543-544 v. it." We need don’t allow the State to rebut State, Spann App.1990) (citing v. S.W.2d court stated a not determine whether trial (Tex.Crim.App.1969)). admitting proper be reason for the evidence Wheeler, greed. Id. at 887. open As questioning to the door to collateral State here asserted why alternate reasons matters and extraneous that offenses the rebuttal inadmissible, evidence was admissible. See would otherwise be but ap- Wheeler, id. at 886. as in Also pellant one does not to specifically refer erroneous, State’s theory. asserted was reasons At appellant argued to the specifically, that, that extraneous ev- offense trial court because the intro- State idence was admissible confront concerning appellant’s duced evidence lack false-impression girlfriends, open evidence.2 See id. at 885. of could State not Wheeler, again, But inas responsive State offered door to evidence to that issue. reason, an alternate that the extraneous rule, general As a the defensive offense evidence was admissible to rebut theory that the State wishes to rebut propounded by defensive theories the de- through the use extraneous offense evi conclude, fendant. See id. We 888-89. dence must be elicited on direct examina therefore, although that the extraneous of- by tion not may by by defense and elicited fense evidence would be inadmissible “prompting maneuvering” by the State. false-impression evidence, confront Wheeler, 885; 67 S.W.3d at Shipman reason, State’s alternate that the extrane- State, 185 (Tex.Crim.App. ous offense evidence was admissible re- 1980) “may rely that (stating not by but propounded defensive theories questioning” get own its into collateral defendant, a proper basis for the ad- matters, offenses, extraneous and bad acts evidence, mission the extraneous offense inadmissible”). that “would otherwise be long complied as the evidence with rules 404(b) supports appellant’s See record asser- 403. id. tion that State introduced evidence Appellant’s Defensive Theories appellant that girlfriend. had never had a that of appellant’s We conclude two Having girl- introduced lack many defensive theories tri- introduced at evidence, friends into the State could not al—that lacked intent introduce concerning rebuttal evidence sexual have contact with J.H. topic. id. The See two defensive appellant was the victim a frame-up by theories, however, that we conclude were subject J.H. and properly Melvina—were subject to properly rebuttal the State— preliminary to rebuttal the State. As a lacked the intent to have matter, however, appel- we must address sexual contact with open lant’s assertion that the State cannot frame-up by was the victim of a J.H. and the door to evidence that it later seeks pertinent Melvina—were to the issue rebut. girlfriends, of whether lacked 1. State’s Introduction Evidence initially which was the issue introduced appeal, appellant generally On contends the State. The record shows that lant, may rely the State on its own than rather introduced the argument concerning taking good The State's im- who false is care of who had no pression parents just as follows: who did a football team for league little out of the kindness of heart. certainly impression has And created this mean, defendant], know, impres- I they I think left this you just [the this by saying sion—and then even so great guy more who runs a football team out complainant goes is a have left a the kindness of his heart.... It liar—that *10 jury impression completely impression whole leav- false that defense with the [the is] ing just guy with that that this a nice I I’m to rebut. think allowed attorney:] Okay. They ac- [Appellant’s to have that he lacked intent defenses Black- tually appellant], lived [with that he sexual contact with J.H. and was well, right? a frame-up. the victim of (Nods in the af- Stepherson:] [Melvina 2. Lack of Intent firmative.) appeal, as it The State asserts trial, that the extraneous offenses

did [Appellant] attorney:] [Appellant’s to theo are admissible rebut defensive helped raise those more or less ry appellant lacked intent have that and [Glen Fred]? defense as

sexual contact with J.H.3 The they After Stepherson:] [Melvina had no theory serted the yes. teenage, were— contact with J.H. intent sexual provid- attorney:] And he [Appellant’s relationship young boys his with because for them? ed doing kind acts for them consisted said— Stepherson:] They [Melvina figure. prosecu a During father did, they stayed with he when yeah, a seeking tor’s to the trial court arguments him. ruling allow her to introduce that would attorney:] almost He was [Appellant’s evidence, the rebuttal-extraneous-offense he? boys, to those wasn’t like father attorney argued goes that “it State’s Stepherson:] were [Melvina While clearly Complain his with show intent him, yes.4 staying with They implying in this case.... are ant pursue attorney Appellant’s continued just helps boys he let Glen he because theory through Glen Ste- this defensive this live with him and he did ... Fred the direct examination pherson. During it goes to be kind. And I think rebut attorney Stepherson, Glen that.” him questioned as follows: reflects that intro- record why attorney:] Now [Appellant’s that he duced the defense lacked intent taking you care of [appellant] to commit a sexual offense your brother? during his cross-examination of Melvina when we Stepherson:] Because [Glen Stepherson questioning her as follows: little, never got never—we we attorney:] [appel- Didn’t [Appellant’s little. much when we were stuff take care of Glen Fred? lant] attorney:] why But was he [Appellant’s to, you, as let’s Yeah, taking opposed for care of Stepherson:] about [Melvina or say, your mother father? years. two "always argument appeal, anything of it” because 3. the State reasserts this On by stating things” grandsons.” the extraneous offense evi- She bought her "two "it rebutted dence was admissible because appel- give any other details about did not suggestion that was not the [a]ppellant’s grandsons” relationship with "two her lant’s charged person sort that would commit the they were their names or whether state "had and that the evidence therefore offense” We conclude or adults. therefore children conformity.” apart relevance from character during State’s direct that her open appel- the door examination did not point At the extent of Melvi- this in the theory he lacked the in- lant’s concerning Stepherson’s na J.H. because contact with tent to have sexual relationship Fred was with Glen and lant's J.H., relationship as with Glen purchased her statement that Fred, figure only. was as father J.H., pair but she "didn’t think of sneakers for *11 Stepherson:] I [Glen Because never remain masturbation-type at level of my knew only. dad until I 7.... Appellant’s was And conduct attorney stated: my mom always was in the streets or thing The other that struck me as jail somewhere. case, strange about the they are claim- ing place it five-year took over a period [Appellant’s attorney:] Okay. And it and, reason, for some only thing your was grandmother let [appel- defendant would do either would be you; raise lant] is that right? penis penis touch the or have his Stepherson:] my [Glen Her and moth- I touched. mean does it really make er. any that if sense the defendant awas [Appellant’s attorney:] your And moth- pedophile, are apparently trying Okay. er. And [appellant] would dis- claim, that’s all that he over would do cipline you just from time to time like period? a five-year Doesn’t make a regular parent; right? is that activity more sense that the sexual Stepherson:] [Glen Yes. Sir. escalate, would there at- would be an have tempt to anal or oral There sex? [Appellant’s Okay. attorney:] Did he any was never about that. I get you back in try school and to set mean, the facts of just the case don’t you right on the track? sense. make Yes, Stepherson:] [Glen sir. theory The defensive that appellant [Appellant’s attorney:] Okay. you Do intent lacked the to commit the offense think job he did a good raising you? was thus introduced into the was case and Yes, Stepherson:] [Glen sir. therefore, subject, to rebuttal the State. By asserting appellant a like a 404(b); Moses, Evid. See Tex.R.

regular parent job who did a good rais- S.W.3d at 626. two other ing young boys, appellant impli- Appellant Frame-Up as Victim of suggested edly the intent he lacked sexual have contact with The impli- J.H. Alternatively, indepen and as an cation the evidence that described dent that would reason allow the admission pellant’s Fred, role as a father to Glen of the extraneous offense re evidence as conjunction evidence, suggest- evidence that buttal we conclude that evi appellant paren- ed that assumed a similar dence was admissible to rebut J.H., tal-type appellant role with was that theory that defensive he was the victim of lacked intent to commit a sexual of- a frame-up. As the State’s attorney stated fense the extraneous ad offenses were missible “to rebut all the theo [defensive] Although the questioning of these wit- appellant ries” because “opened the door” may only impliedly suggested nesses to the evidence. lacked the intent to commit J.H., a sexual offense against the defense’s The record demonstrates closing argument directly as- theory introduced defensive that he that appellant serted lacked intent. was of a frame-up by the victim Melvina closing argument, Stepherson, pressured falsely attor- who J.H. to ney suggestion arguing confirmed that accuse because there bad that, family. sexual con- family intended blood between his and her J.H., duct with Appellant’s the contact would have theory raised the is- assault, escalated into sexual rather than Stepherson sue that Melvina had threat-

13 proving used in cases charged and and offense ened to send J.H. to reform school pur if charges required have filed him not when perjury against operandi modus intent); allegations against appel- proof he recanted the to show Johnston pose (Tex. State, 522, lant. The record reflects that 525-26 v. theory the court attorney introduced this into that trial Crim.App.1967) (holding trial cross-examined Melvina allowing when he Ste- evi by discretion did abuse J.H., he to pherson continued to offense rebut de dence of extraneous in to pursue theory closing arguments the cir theory frame-up under fendant’s following which jury, the included the charged showing that offense cumstances statement: visited defendant’s concerned victim who during de pressured by has several times which apartment [J.H.]

He been grandmother story.... to “hypnotizing stick with the talked victim into fendant Stepherson and are dis- him “kissing [Melvina J.H.] him with a vibrator” and on story cussing together get to help girls, to victim “with sex the stomach” basically. You have story straight, stuff,” con extraneous offense because him, told heard “played cerned similar facts defendant “Look, you say happen, that this didn’t car boy another and asked around” with over you go could to reform school this and have rela boy spend night sexual You could be in serious trouble.” State, 172, case. tions); Dennis v. S.W.3d 2005, (Tex.App.-Houston Dist.] [1st The record thus demonstrates that 'd) (holding ref that extraneous offense pet. pellant propounded theo- two defensive defensive theo evidence admitted rebut he lacked commit a ries—that the intent to signature crime ry frame-up need be sexual J.H. and that he offense offense; nearly charged identical to rule or by was victim of a frame-up Melvina 404(b) similarity charge requires subject Stepherson rebuttal —that offense). State, long evidence as the evi- complied specific dence also with re- theory At the State’s for ad 404(b) quirements under Rule and Rule missibility of extraneous offense evi 404(b), 403. See Tex.R. Evid. phase in the trial was dence rebuttal 404(b) Rule suffi offenses were the extraneous ciently charged offense similar to be above, fully

As noted more to be issue of intent probative 404(b), admissible under Rule the extrane the trial explained J.H. The probative ous must value means court that used same beyond conformity. character Tex.R. be alone to entice both K.S. and C.R. to 404(b). To be probative, extra Evid. appellant gained each with him and evidence admitted to neous offense rebut boy’s giving trust items services theory be must similar to so be alone with value would Wheeler, 67 charged offense. See S.W.3d to commit sexual As the boy each acts. (holding sim 888-89 extraneous offense court, attorney told trial State’s charged ilar to offense because both ... the same habit that he is show- young defendant reached underneath it’s cases by doing clothing pri ing buying things, her them nice girl’s outer and touched case, things [KS.’s] for them. Like family vate while member near parts know, by); you he offered to let them record Plante 492- business, clearly high when it was his (Tex.Crim.App.1985) (holding free [C.R.], it With degree similarity extraneous he had them over there. between just J.H.’s; a friend of cifically, during took the assault of J.H. at the *13 movies, studio, them to the to recording Celebration Sta- appellant pulled his own tion, bought mean, him I I things. pants [and] down and appellant’s had J.H. rub think goes it all to part. But, K.S., his habit about private how appellant with he ingratiated stomach, himself boys with these rubbed KS.’s told K.S. to mas- himself, and then uses that as a vehicle to com- turbate and asked K.S. for per- against mit acts sexual put them. mission to his hand down KS.’s shorts. Despite these spe- minor differences The shows record sufficient similarities conduct, of the cifics masturbation there between the extraneous and the offenses are sufficient similarities between the sex- charged offense make the extraneous ual conduct involving J.H. and K.S. for probative offenses appellant’s evidence of K.S.’s extraneous offense evidence to be K.S., intent with With respect J.H. probative as rebuttal show record reflects the following similarities pellant’s intent to a commit sexual act with between appellant’s conduct him with and J.H. (1) J.H.: both KS. and young J.H. are boys: about years age K.S. was 13 and Concerning the similarities between the J.H. ages C.R., was between the and 12 at against offenses J.H. and the record (2) (1) the time of the conduct appellant; with the following: shows both C.R. and appellant gave gifts or services value to young boys: J.H. are C.R. was about 13 purchased both K.S. and J.H.: years age he sneak- and J.H. was between the ers and other items for J.H. ages and allowed of 8 and at the time the conduct (2) K.S. and friends to appellant; record music at his purchased with appellant (3) charge; boys studio free of gifts both were or services of for both value J.H. and taken to a appellant’s room inside record- purchased C.R.: he and sneakers other ing cotton-looking studio that a sub- items for J.H. and purchased movie tick- (4) walls; boys stance on the both were him et for C.R. and took to Celebration (5) off; Station; (3) told to take their clothes masturba- boys both had sexual experi- tion, i.e., using a appellant hand to .touch or to ences with the bedroom of his (4) attempt organ, to touch male sexual was apartment; boys both were told to take (5) only off; form sexual with both their clothes appellant conduct threatened (6) boys; sexual place conduct took boys get or intimidated both them to when other people present were with comply appellant’s requests: J.H. was (7) studio; recording boys both get told he would whipping he did not disrobe, threatened or intimidated appellant to and C.R. that he was told would get comply them to with re- not be allowed to leave until he had sex (6) quests: get doll; blow-up J.H. told he would a with a the nature of “whipping,” and K.S. felt that could not the sexual conduct with both i.e., appellant leave type only, while stood the locked masturbation appel- conduct (8) door; against the offense K.S. took appellant’s genitals lant had J.H. touch 2000, place in July, which was in the same with hand J.H.’s touched October, 1998, hand, to September, genitals time J.H.’s with period in ejaculate which the offenses directed C.R. place. took through self-gratification with a blow-up doll. only The dissimilarities appel- between

lant’s with conduct K.S. and J.H. concern actual sexual details of the contacts Spe- minor details of the sexual between appel- contact. are the dissimilarities 403; prejudice. unfair See C.R. and J.H. With lant’s conduct with Tex.R. Evid. Moses, (citing Mont- J.H., at J.H. masturbate appellant had 387). Further, lant, J.H.; gomery, 810 S.W.2d masturbated extra- for admission of the rebuttal C.R., himself or factors appellant did touch that rule 403 offense evidence show appellant, have touch but instead di- neous C.R. evi- preclude admission vaginal and anal inter- does rected C.R. Wheeler, doll, at 888. dence. See blow-up the female sexual course with videotape. *14 which recorded factor, strength the ex- of The first the Yet, of despite differences in the details fact of to make a offense evidence traneous conduct, cir- the the actual masturbation weighs probable, or consequence more less of a sufficient number cumstances show admissibility. The in of strongly favor appellant’s similarities to conduct J.H. probative offense evidence was extraneous to probative appellant’s to be of intent intent to commit the sexual appellant’s of Plante, commit a sexual act with J.H. See against by showing J.H. offense (holding high at 492-93 intent with pellant had a similar sexual degree similarity required of not when C.R., pattern as well as a similar K.S. intent); proof to purpose of is show John- enticing accompany to him alone of ston, (holding 418 S.W.2d at 525-26 to Addi- giving gifts after valuable them. that involved different extraneous offenses in in- tionally, nothing the record because sufficiently similar to be sexual acts were of the two rebut- dicates that either victim defense). frame-up admissible rebut motive to any offenses tal extraneous allegations for frame the sexual two extraneous offenses that the The him, against made the rebuttal evidence trial court here admitted into evidence of probative also whether Melvina Ste- was probative appellant’s of intent be- framing the sex- was pherson cause were similar to mis- ual offense committed here. conduct with J.H. and thus rebutted defensive theories that he lacked the lant’s requires factor that we ex- The second against intent to commit a sexual offense evi- amine the rebuttal-extraneous-offense J.H. and that the victim of a was impress jury potential for its dence Al- frame-up Stepherson. Melvina way. in irrational but indelible some though the extraneous offenses rebuttal jury are a trial court’s instructions signature by appellant are crimes not determining in whether factor consider in the of differ details the sexual criminal jury the extraneous-offense considered committed, they offenses he are sufficient- i.e., as character con- improperly, evidence ly charged similar offense to be evidence, or evidence formity properly, as probative evidence intent theory or some other to rebut defensive against 404(b). commit a sexual offense under rule See permissible reason theory refute 916-17 Owens frame-up victim of a Melvina Stepher- (Tex.Crim.App.1992).

son. jury in The trial court instructed the Rule 403 this case as follows: if You are further instructed

The rebuttal extraneous offense you regard- rule before any also there evidence requirements evidence met an committing al- ing because the defendant’s 403 of the Rules Evidence or other than the probative leged offense offenses value evidence him in the indictment substantially outweighed by danger offense case, you this cannot consider such only evi- evidence for the limited purpose dence for purpose you unless find system “determining the of the Defendant” beyond believe a reasonable doubt because no trial showed that the defendant committed such other system extraneous offense was the or offenses, any, offense or if and even then defendant, unusual handiwork no issue you may only consider the same in de- was raised about defendant’s “identity motive, termining the opportunity, in- mistake,” lack of only evidentiary and the tent, preparation, plan, knowledge, iden- issue at trial pertained to an implied tity, or absence of mistake or accident of frame-up theory, an issue defendant, any, if connection with Owens, jury charge. included See offense, any, alleged against him 827 In Daggett, S.W.2d at 917. the trial in the indictment and for no pur- other court instructing erred to con pose. sider the extraneous offense evidence *15 The trial properly court’s instruction limit- for the of purpose limited the “determining ed the jury’s reliance on the extraneous plan common or scheme” the defendant offense evidence to issues that appellant because no at evidence trial showed that raised, specifically, his motive and intent to the plan extraneous offense was the commit the sexual offense against J.H. scheme of the defendant and the extrane The trial jury court’s instruction for the only ous offense was admissible to rebut consider the extraneous in offense deter- “appellant’s good blanket statement of con mining appellant’s preparation, plan, op- minors,” duct with an issue not in included portunity, knowledge, identity, or absence jury charge. Daggett, the S.W.3d of mistake or accident amounted to sur- In only Owens and Daggett, the plusage jury readily the could disre- limitation on jury’s the the consideration of gard because those issues were perti- not extraneous offense related to an issue that Although nent to the charge trial. the did was not raised the evidence at trial. address defensive theory, id,.; Owens, Here, See 827 S.W.2d at 913. that he frame-up by was the victim of a however, jury properly the instructed Melvina Stepherson, charge specifical- the to consider the extraneous offense evi ly limited the extraneous offense evidence in determining dence the intent and motive to issues conformity. other than character J.H., of appellant with issues that were Therefore, not as although narrowly tai- raised jury. the evidence before the lored to specific the issues involved as it Moreover, here, charge the unlike Owens been, could charge correctly the in- and Daggett, jury instructed the to consid structed jury the to limit its use the er “for the evidence no other purpose” extraneous offense evidence to issues that “motive, than opportunity, as evidence properly before it—the intent and intent, plan, preparation, knowledge, iden motive of commit the offense tity, or absence of mistake or accident defendant,” jury the the was therefore jury The charge here is unlike the by implication instructed not to consider charges in Daggett Owens v. State and the extraneous offense evidence as sub Appeals State that the Court Criminal appellant’s guilt. stantive evidence of The Owens, held were See improper. concern in and Daggett, Owens the 917; S.W.2d at No. Daggett, PD-0503-03- CR, jury charge the limited extraneous offense (Tex.Crim.App. 2005). Owens, impermissible In trial court evidence to an consideration the erred only, instructing jury present jury charge to consider is not here. The extraneous summary, jury In here instruction jury to con properly here instructed jurors extraneous evidence inform the could sider the offense served to determining ap the motive and intent evidence the extraneous offense consider J.H., jury’s it pellant with limited other than character only purposes use than as use of the evidence to other attorneys thoroughly conformity, and both guilt. evidence of substantive the court’s charge and explained both the of- to consider extraneous instruction closing arguments by The both attor- param- those limited jury fense within neys explained also evidence here jury consider the offenses could not extraneous The here was therefore ade- eters. character-conformity rely as evidence. it quately apprised that could emphasized jury that the could not solely for evidence oth- extraneous offense evidence consider extraneous offense character-conformity evi- er than purposes something showing that “because did dence. he must have done other factor, analyzing the second further correctly in- Additionally, the State J.H.” of whether requires which an assessment jury that it could consider the formed extraneous offense evidence rebuttal as evi- extraneous offense impress potential theo- dence that rebutted way, the rec- irrational but indelible some attorney correctly ries.5 Appellant’s also testimony was over- ord shows that the jurors that they *16 informed the “cannot con- the of the sex- ly although nature graphic, just you fact vict based on the that heard ual the prejudicial offenses was because jury cases” had to those other and weight associated with them. emotional “separate those cases out focus on the and into consid- Taking prejudicial effect prove and ask ... [d]id J.H. case the State however, against eration, weighing it beyond its case reasonable doubt?”6 explained a different attorney 5. the court’s cases can be handled The State's Those jury charge concerning jury, going are to be han- evidence or however rebuttal separate are cases from dled. But those follows: case, you convict Mr. this cannot why they talk about K.S. and C.R. and Let's you just heard evi- because have Blackwell court, They came into court. into came dence on those cases. this, say you get charge on not to something boys he did because to the other tendency you that ... when hear There is They he have didn’t must done it J.H. cases, you're going to be about other purpose. They come for came going cases the other and it’s blinded know, purpose showing you you all that — you you. say, "We heard And overwhelm testimony you heard from the defense be the other cases. This case must about witnesses, guy, helped good he is a raise Well, you charge you can- tells true.” parents two who didn’t have these just case be- convict him on J.H. not them, liar, take is a [J.H.] who could care of do, you you on convicted—if these cause things. They you all came to these different being you’re cases because asked other Now, rebutting you purpose for the that. him; but the other cases to convict about great guy [appellant] is not this know who, the law The law tells that’s not what is. heart, just generosity his out charge you in the is an instruction —there poor wayward boys. helps these is, you but cannot con- what the law about you just on the fact that heard vict based attorney Appellant’s explained the trial trial So, got you have other cases. what those closing charge in statements court’s separate you really those cases do is jury, as follows: case and ask and focus on out prove yourself: case be- trying Did the State it’s trying case. Weren’t We’re the J.H. yond doubt? trying the K.S. case. a reasonable the C.R. case. Weren’t the trial court’s instructions in jury J.H., against any eyewitnesses. nor Like- charge and attorneys’ both wise, closing argu- evidence, there was no other than ments, this factor weighs only slightly in J.H.’s Stepherson’s and Melvina testimony, favor of excluding the extraneous offense establish guilt for the offense evidence. against J.H.

The third factor evaluates Considering the time dur- all four together, factors al ing trial that the required though State develop the second factor here sup would evidence of port excluding extraneous misconduct. the extraneous offense evi dence, record here shows that testimony con- the first and fourth weigh factors cerning the heavily extraneous offenses was not favor of admissibility. The evi unduly lengthy. The details of the dence highly probative extra- as rebuttal evi neous offense evidence were dence presented theories, the defensive lack only through of K.S. intent and frame-up, and the State’s addition, C.R. police two gave officers need for the Yet, strong. very brief concerning the trial why jury court’s charge and both the charges were not immediately prosecutor filed for and appellant’s counsel’s clos extraneous ing offenses involving arguments K.S. and instructed that it C.R. This factor is neutral and favors convict solely could based neither admissibility nor exclusion of a belief that he had committed the two evidence. extraneous offenses and acted in conformi ty with but could consider those.offenses The fourth and final examines the factor those offenses as evidence of appellant’s State’s need for the extraneous evidence. intent with J.H. probative Because the weighs This factor heavily in favor of ad- value of the extraneous offense rebuttal missibility here. The presented not, therefore, evidence was substantially J.H., Melvina Stepherson, police and two *17 outweighed by danger the of unfair preju officers, who testified about their investi- dice, the trial court did not abuse its dis gation after J.H. reported to them. At the cretion by admitting the evidence. See time of J.H. was a boy. 13-yearrold , 105 S.W.3d at 627 (holding that Moses His testimony was extensively impeached trial court’s admission of extraneous evi by many defense witnesses stating that he discretion). dence is reviewed for abuse of was not a person; by credible his own admission that We hold that percent he lied 50 the extraneous offense evi- time; by prior properly dence was statements that admitted to he made in rebut writing, pellant’s theories, on audiotape, and to various and the evi- wit- nesses, 404(b) dence stating that he had no sexual admissible under rules expe- riences with 403. We appellant; by overrule assertions first point jealousy of error. over attention to- wards Glen Stepherson and Fred motivat- Question Commitment ed his accusations. Stepherson’s Melvina impeached by her admission error, point second ap that she did report the offense to pellant contends that the court trial erred police officers when J.H. first reported State, allowing objection, the over his to her, to and called question by into pose the an improper question commitment allegation defense’s framing she was panel the venire excusing juror a appellant. physical There was neither evi- responded who question. the State’s dence to connect to the offense Appellant further complains that the trial

19 at trial.” presentation the allowing to ask erred the State court Lydia, 109 S.W.3d at 497. could jurors the con- prospective whether male, upon of one child vict the questions, Not all commitment witness, testifying in a sexual victim however, Standefer, 59 improper. are case. assault 179-83; State, v. 165 S.W.3d at Sanchez (stat 707, (Tex.Crim.App.2005) 712 S.W.3d dire Questions during voir are ing, improper question “An commitment juror’s a proper they seek discover prejudice or to create a bias attempts an applicable views on issue case. he has heard the venireman before (Tex. State, 36, Barajas v. 93 38 S.W.3d evidence, ques voir dire proper whereas a State, (citing v. Crim.App.2002) Smith a attempts tion discover venireman’s 641, (Tex.Crim.App.1985)). S.W.2d or In Stan- preexisting prejudice.”). bias permits parties dire Voir examination Ap Criminal defer, Texas Court desirability prospective assess de three-prong a test for peals articulated fair, a jurors “competent, to select question whether a voir termining dire unprejudiced jury[.]” impartial, and Sta calls an Stan improper commitment. (Tex. State, 885, ley v. 887 S.W.2d defer, first at 179-83. The (citation omitted). Crim.App.1994) Be prong requires trial court to decide cause a trial court has broad discretion question is a commit particular whether a process jury, a an selecting over If the ment Id. at 179-81. question. appellate court should not disturb trial particular ques court determines that propriety particu of a ruling court’s question, second tion a commitment is question during lar voir dire absent an court consider prong requires Barajas, abuse of discretion. 93 S.W.3d at question leads to a valid chal whether the lenge If the for cause. Id. 181-82. “challenge question meets the for cause” not, however, attorney An may prong requirement, requires third “attempt to bind commit a venire mem question court to determine whether to a on hypothetical ber verdict based set necessary to test includes those facts Lydia of facts.” juror challengea- prospective whether a (Tex.Crim.App.2003). “Commitment ble for cause. Id. at 182-83. *18 questions prospec are those commit a resolve, juror or refrain for the State to ask proper tive to to from It is if resolving, way jurors an issue a dire can convict on during certain after voir if be learning testimony jurors a v. of one particular fact.” witness Standefer State, 177, a (Tex.Crim.App. beyond lieve that reasonable witness 2001). types necessary doubt all of the elements questions gen While these on answer, erally ‘yes’ negative or an an because a “elicit a ‘no’ establish offense makes juror question can a commitment a to the open-ended question be answer question juror challengeable if question prospec prospective asks hypothetical juror parame tive to set the cause. See Castillo ju (Tex.Crim.App.1995) (holding Id. at decision-making.” ters for 180. juror attempt challengeable to ror for cause because questions Commitment jurors single not convict on basis wit prospective position, using bind to a would otherwise, testimony testimony if suffi improper hypothetical a or are ness’s even guilt beyond a juror than to com cient to convince purpose and “serve no other doubt). jury specific mit a of facts reasonable to set before dire, During following voir to convict on the of one witness exchange occurred: that has established all of the elements of So, says

[Prosecutor:] the law that you the beyond offense a reasonable doubt. In can look at I evidence—if can prove considering the first prong of the Stande- my case, indictment, my through one test, we question note that the could be fer witness, the law if says you believe “no,” “yes” answered with a and that beyond that witness a reasonable question jurors asked the to commit to doubt, and that witness can prove the law that jury allows for a to convict on every each and element of the indict- the testimony of one witness alone when ment, you can person find the guilty believes the beyond one witness a based on that testimony. witness’ reasonable doubt on each of elements of So, Okay? go let’s row row and Standefer, the offense. See 59 S.W.3d at you find out how feel about what the Although question was a commit- says witness, law regard to one question, ment it was not improper, howev- okay? you How do feel? you Can er, because it met the second and third follow that law? prongs of the test. See id. at Standefer [Appellant’s honor, attorney:] Your ex- 179-83. The prong, requires second which object cuse me. I would the court to consider whether question object State —I would to the voir dir- cause, leads a valid challenge for is met ing on the issue of whether they can here because question the State’s attempts convict on the of one wit- any discover whether prospective of the ness and one witness alone. That’s jurors harbor a preexisting preju- bias or improper voir diring, asking jury dice concerning ability jurors

commit to a certain set of facts. convict accordance with the “one wit- objection This was the sole ness rule.” See Tex.Code Crim. Ann. Proc. attorney during voir dire to question (Vernon 35.16(b)(3) art. Supp.2005). As about the “one witness rule”—that the tes- above, juror set forth who require would timony of one witness is sufficient to con- more necessary evidence than prove jurors vict if the believe that witness be- beyond case a reasonable doubt would be yond Castillo, a reasonable doubt. See subject Castillo, to a challenge for S.W.2d at cause. By objecting 533-34. to this question 913 S.W.2d at 533-34. preserved prong has The third right complain appeal, about requires the court to determine but has waived his other voir question whether the includes those complaints dire object because he failed to necessary facts to test prospec- whether a questions to those at trial.7 juror challengeable tive for cause is also jurors The State’s voir dire met here because question asked the this did not *19 they could follow the jury law that allows a include extraneous details about 33.1; appeal, State, appellant complains 7. On that P. v. Tex.R.App. Broxton 909 912, questions State’s voir dire included (Tex.Crim.App.1995). Ap the fact S.W.2d 918 that the pellant complains victim was a male child and called also that the trial court jurors credibility boy for the juror to assess the a improperly, thereby of excused a for cause strike, giggles response ques giving witness who tion, to the peremptory the State an extra you "and how did equal protection Ap feel when he touched violation of of the laws. however, your penis?” Appellant, pellant, again, object did not did not on this basis at trial, object questions waiving these at complaint. has thus this See Tex. 33.1; Broxton, complaint appeal. therefore waived his on See P. R.App. 909 S.W.2d at 918.

21 assistance, Standefer, the defendant charged professional 59 lant’s offense. See that, un at the presumption S.W.3d 182-83. must overcome circumstances, challenged ac der the question hold asked thus that We trial sound “might tion be considered during dire that the State voir asked Strickland, 689, at strategy.” 466 U.S. jurors that could follow law of inef Any allegation 104 S.Ct. at testimony on the of convict allows firmly in the must be founded fectiveness all that has established of the one witness record, affirma must demonstrate which beyond of the offense reason- elements Thomp tively ineffectiveness. alleged question. was a voir dire proper able doubt son, v. McFarland (citing 9 at 813 S.W.3d overrule second issue. We 482, State, (Tex.Crim.App. 500 928 S.W.2d 1996)). trial speculate not to find willWe Ineffective of Counsel Assistance is si counsel when the record ineffective error, appel In his of point third strategy. reasoning lent on counsel’s or that lant contends he was denied effective State, 808, n. 7 16 813 Robinson v. S.W.3d or inno guilt of counsel at the assistance cases, how (Tex.Crim.App.2000). rare attorney did phase cence of trial when his ever, prove can be record sufficient object to testimony regarding not the cred deficient, performance that counsel’s ibility of J.H. evidence despite of affirmative the absence prevail To on a claim of inef or Id. reasoning strategy. of counsel’s counsel, fective assistance of the defendant that performance must show trial counsel’s for a wit generally improper It is probability was deficient a reasonable opinion ness to a direct offer proceeding that exists result of another and such truthfulness of witness would have been different. Strickland v. opinion therefore inadmissible evidence. 687, 668, Washington, 466 104 U.S. S.Ct. State, 52, 957 59 Schutz v. S.W.2d See (1984). 2064, 2052, 80 L.Ed.2d 674 The (holding (Tex.Crim.App.1997) of the prong requires first Strickland test that did exhibit evidence complainant the defendant show counsel’s manipulation was less fantasizing, performance objective fell below an stan allega likely complainant’s explanation Thompson v. dard reasonableness. tions, complainant’s allegations State, 808, (Tex.Crim.App. 9 S.W.3d 812 fantasy di constituted result 1999). Thus, must prove defendant allegations). truth rect comments objectively, by a preponderance the evi type testimony is inadmissible “be This dence, trial representation counsel’s trier of more than cause does ‘assist professional fell below standards. Mitch to de fact to understand (Tex.Crim. State, 640, ell v. 68 642 S.W.3d issue;’ it an issue termine fact in decides App.2002). prong requires second State, v. jury.” for the Yount the defendant show a reasonable 706, (Tex.Crim.App.1993). This rule that, probability unpro but for counsel’s lay applies expert and witness errors, proceed fessional the result State, 767, 776 Arzaga alike. v. S.W.3d See ing would been different. Strick 2002, (Tex.App.-El pet.); Paso no Fisher 2068; land, 694, at 104 S.Ct. U.S. (Tex.App.-San *20 Thompson, S.W.3d at 812. Because 'd). 2003, pet. Antonio ref however, must, indulge court reviewing that Melvina testified The record shows presumption that counsel’s conduct strong objection that believed range of reasonable without she falls within wide reported when he to her that he was elusion that the trial court did not in err by appellant, abused though even she admitting did the extraneous offense testimo- report police C.R., the abuse to ny authorities. of K.S. and by which was offered The record also shows that Officer Frost its rebuttal against appel- case testified that she lant. determines whether a victim of a sexual offense is believable majority The misidentifies evidence that looking consistency, details, prior appellant’s bolstered good character as ev- exposure to experiences, sexual and that “lacked, appellant idence that the intent to no alarms were raised during her inter- have sexual contact complain- with [the view Appellant with J.H. did not obtain a appellant regular ant]” because “was like a motion for new trial hearing, and no direct parent good job who did a of raising two evidence in the record why ap- establishes added.) boys.”1 other young (Emphasis pellant’s attorney object did not at trial to this, majority From further errs in the testimony complained appeal. of on concluding that theory “[t]he must, therefore, presume We that counsel lacked the intent to commit plausible had a reason for his actions. the offense was thus introduced into the Thompson, 9 S.W.3d at 814. From our therefore, subject, case and was to rebuttal record, review of the we cannot conclude added.) by the State.” (Emphasis that there plausible could be no reason for majority erroneously also concludes that counsel’s object decision not to to this tes- appellant “introduced theory the defensive Robinson, timony at trial. See that he was the victim of a frame-up by at 813 n. 7. We conclude that Melvina Stepherson.” Having erroneously has not met his burden of proving ineffec- concluded that “appellant propounded two tive preponder- assistance of counsel defensive theories —that in- he lacked the Mitchell, ance of the evidence. See tent to commit a sexual against offense at 642. complainant], [the and that he was the appellant’s We overrule point third of victim of frame-up by Melvina Stepher-

error. son,” majority further errs conclud- ing that the State’s rebuttal extraneous

Conclusion sufficiently offenses “are similar affirm judgment We of the trial charged offense to be probative evidence court. intent to commit a sexual complainant] offense [the and to JENNINGS,

Justice dissenting. theory refute the was the frame-up by Stepher- victim of a Melvina JENNINGS, Justice, TERRY added.) (Emphasis son.” dissenting. itself, its discussion of first is- As noted the State in its sue, majority Court, makes a briefing series critical to this “[w]hen the State mistakes results its erroneous con- introduced appellant] evidence [that code, 1. Evidence that penal acted as a "father person Under our "[a] acts in- figure” intent, tentionally, to two other was in fact respect or with with good nothing character and had to do with the nature of his conduct or to a result of appellant, whether "with intent to objec- arouse the his conduct when it is his conscious [himself], sexual desire of engage [had] sexual contact tive or desire to in the conduct or complainant] by having [the ... cause the result.” Penal Tex. Code Ann. 6.03(a) (Vernon 2003). complainant [appellant’s] genitals.” § touch *21 at trial con- teenage primary fense’s themes” sexually boys, abused two other two (1) that effort to “discredit suggestion appellant’s he sisted of Appellant’s it rebutted and the he person not of that would convince complainant] [the was the sort Here, charged the how- of sexual abuse commit offense.” had fabricated claims (2) ever, below, believed,” the did and show as discussed State not to be and was attempt any such of properly person not correct the kind “appellant that was not by false-impression boys.” created the sexually young inferences who would abuse testimony appellant’s through of witnesses the of The asserts that close “[a]t State (1) of Rath- case, cross-examination those witness. he secured admis- appellant’s had er, improperly appel- the “rebutted State complainant] that he had [the sions from suggestion” by calling lant’s two other lied about what people told a number of he testimony correct it (2) witnesses to him, had done introduced notably two dissimilar extraneous about testimony complain- [the great deal of offenses, reversibly the trial court (8) individual, not a truthful ant] was in the do so. allowing erred State to was the sought to establish that he sort dating relationships man normal that had Accordingly, respectfully I dissent. who not with women and therefore would The Issue Presented approach teenage boys.” The State con- tends that because its evidence that issue, In appellant argues his first sexually lant had abused two other in admitting the trial court erred into evi- that he appellant’s suggestion “rebutted testimony the dence State’s rebuttal person was the sort of would not testimony K.S. and C.R. because their con- offense,” charged commit the evidence cerned was extraneous offenses and of- apart “had from character con- relevance only that appellant fered to show “a was formity and was admissible.” predator generally sexual and that conformity during in acting therewith testimony extraneous offense alleged commission of the offenses the K.S. was not admissible to bol- and C.R. indictment.” testimony of impeached ster the com- Thus, plainant. squarely pre- issue issue, In its first response Court, actually argued that, sented to this anticipation the State notes itself, the extrane- whether State appellant’s impeachment complain- testimony and C.R. was ous offense of K.S. testimony credibility, ant’s from elicited impression- any to rebut false admissible complainant many in- concerning his created fact, inferences consistent In statements. did, pellant’s witnesses that “was contends,

then State cross- commit the person the sort of that would complainant examine his incon- about charged offense.” sistent called several statements later complain- claimed that [the witnesses “who State, in emphasized It be that the must a truthful and had a person ant] Court, any its to this does not briefing dishonesty.” reputation for The State also way extraneous offense contend that appellant “repeatedly *22 majority, the attempt makes no at all in complainant dizzy drowsy. its the feel briefing argue to this Court to Appellant the complainant told the to remove extraneous in any way clothes, offenses are similar appellant pulled his then down to the offense in charged the instant case. pants his own complainant and told the to time, appellant’s

rub penis. At the same Testimony Pertinent appellant complainant’s pe- would rub the nis with one hand and would drive the car case-in-chief, In the State’s the com- with the other hand. plainant, 13-year-old boy a at the time of trial, appellant testified that he had known that, complainant The further testified for almost his entire life and that he and on at least or five six other occasions when cousins, Stepherson, Glen and Fred studio, they recording were at a appellant go appellant’s would to house to watch room, him took to a back which had “some play. movies and to On several different walls, kind of fuzz” on the and told the occasions, starting when he was around complainant Appel- to take off his clothes. old, eight years nine the complainant lant removed his own clothes and instruct- permission received grandmother, from his complainant appellant’s penis ed the to rub Melvina Stepherson, spend night to complainant’s pe- as rubbed the appellant’s house. The complainant slept nis. and, in the same bed appellant, one night, appellant complainant woke the objections, appellant’s Over tell him that complainant had wet the case-in-chief, presenting while still its elic- complainant bed. After the went complainant ited from the bathroom to change clothing, appellant one prior week he was at the him told that he could “get whip- either Vincent, house of Jeneko who was the ping or take clothes off.” The [his] com- there, friend of Glen and Fred. While plainant told that he would rath- Vincent, Glen, Fred, Telfar, and Eldrick whipping. er receive a After friend, complainant another forced the belt, him struck on the buttocks with a videotape, make a in which he stated complainant, wanting to be struck allegations that he had made again, took off his Appellant clothes. then appellant were not true and that he was complainant get baby told the some oil “just jealous of and Fred [his] cousins Glen bathroom, from and when the com- they because lot getting things returned, plainant appellant was naked house, [appellant].” from Later at Telfar’s and told him to [appellant] “rub down with letter, they complainant made the write a baby oil.” complainant The rubbed the oil him which he stated that his uncle told chest, buttocks, penis, and allegations against appellant. to make the complainant’s pe- rubbed the The complainant explained that the four baby Appellant nis and buttocks with oil. boys him him pay told would complainant anyone told the not to tell money to write the letter but that he did and, happened, what had because the com- money. complainant not want their scared, plainant anyone he did not tell tape stated that made and wrote what had occurred. the letter told him that because occasions, allegations against appellant would be eight On or nine different pellant complainant complainant took the news and that ride car would not if he did not gave complainant friends drink, beverages alcoholic his allegations against appellant. which made retract *23 that, year one before stated Stepherson approximately testified that she Melvina told her began, complainant the trial the since complainant has raised the he was against that the he asserted allegations months his mother was not a old because that he not true and made appellant were explained him. that good mother to She was mean. He up appellant them because appellant acquainted she was with because like appel- he did not Paley also told that granddaugh- of her he was a cousin of two anything do lant because “didn’t appellant appellant that once ters. noted She and favoritism. She also for him” showed the bought complainant shoes for tennis called her one complainant stated that the not think that such a but that she did began again and told week before the trial appellant “al- purchase odd because was allegations complainant’s her that the ways things grandchil- for bought [her] both appellant were false. On di- against that appellant dren.” also noted She cross-examination, Paley and also tes- rect eat, complainant would the out to take appellant tified that known to have she had movies, appellant’s the and house many girlfriends. had spend night. Stepherson explained the that, complainant eight when the was that the Eldrick Telfar testified com- old, years allegations nine he first made voluntarily videotape the plainant made against but that she did not do appellant, complain- the and wrote in which the letter because, time, at that anything about it she allegations ant admitted his that just had had a stroke and could not drive appellant false. On cross-examina- anywhere. him tion, appellant Telfar that had admitted him clothes and previously bought shoes beginning Toward of its exam- direct mall and and had him to the taken Stepherson, ination again recording studio. case-in-chief, presenting while its asked her, “Now, long you that, as have ... known Stepherson his Glen testified [appellant], you known him to have ever was not a truthful opinion, complainant answered, a girlfriend?” Stepherson person complainant and made the that the appellant’s “No.” Under cross-examina- voluntarily. videotape and wrote the letter tion, appellant testified that had she explained complainant He told team, coached a but that com- football videotape him that he and wrote made the plainant played on that had not team. She because the help appellant the letter grandsons, stated that of her two Glen and allegations true. Glen also testi- were not Fred, appellant him, had lived for about appellant helped to raise fied years two appellant job and that had taken good doing had done examination, so, care them. On re-direct had had a and number she testified that football years. girlfriends over the league got young one in which “he was Appellant presented also boys on play to come and his football Vincent, Thomas, of Jason Jeneko Brooke that appellant team.” further testified She Austin, Thomas, a Virginia and Blackwell. company was usually Glen, that he did not friend testified appellant bought men Glen complainant truthful believe Fred items. expensive person complainant and that told defense, Britney Thomas that he wrote the letter because his called sorry that he Paley, complainant’s lying he was wanted one of the cousins. that, jail. from Thom- Paley opinion, in her be released testified his had dated complainant person. not a truthful as also testified that sister She appellant for a short time and that his C.R. testified that he knew the com nickname, plainant sister had tattooed because used live “Pookie,” occasion, same street. On one when leg. on her C.R. Vincent testified old, years appellant, was 12 that, whom C.R. opinion, complainant Trey,” knew as “Pookie drove both the not a truthful person and that the com- complainant and C.R. to the movies. Af him plainant told that he made the video- *24 terward, homes, way on the back to their tape allegations because he made the appellant claimed he was sick and against appellant jealousy. out of Austin s stopped apartment. at hi Because the that, testified two months before trial be- complainant appeared asleep to be in the gan, complainant told her that seat, appellant go back told C.R. to inside him, that, lant had never touched in her apartment Appellant with him. went opinion, complainant was not a truthful upstairs, C.R.-played game while a video person, appellant many and that had had Later, downstairs. appellant called C.R. Blackwell, mother, girlfriends. appellant’s upstairs and told him that “needed to C.R. that appellant many girl- testified had had They appellant’s become a man.” entered years. friends over the bedroom, where a inflatable sex doll was rebuttal, presented In its then lying on the floor. Appellant told C.R. K.S., 16-year-old a boy of until C.R. could not leave he “fuck[ed] C.R., 15-year-old the time of a Appellant the doll.” told C.R. to take off that, boy at the time of trial. K.S. testified his clothes and until have sex with the doll old, Appellant C.R. “nutted.” years sung when he was 13 he had in a C.R. videotaped doll, having sex with and when C.R. three-boy group and had appoint- made an finished, told C.R. that C.R. ment to record music at studio. a man “was now.” and two friends KS. went studio people few times to listen to other record Extraneous Offense Evidence

music, and, visit, on about the seventh appellant, “Trey whom knew as K.S. A trial court’s admission of extraneous Black,” told KS. he wanted KS. offense evidence is reviewed for an abuse room, State, in sing individually soundproof of discretion. v. Rankin 974 S.W.2d 707, (Tex.Crim.App.1996); Wolfberg while the other two waited a room 718 v. State, 441, (Tex.App.-Hous 73 S.W.3d 443 Appellant next door. told KS. that K.S. ref'd). 2002, long pet. [1st ton As as Dist.] singing loudly enough was not and that if a trial court’s decision to admit evidence is nut, “jacked KS. off or it would bust[ed] disagree within the “zone of reasonable sing Appellant make louder.” told [him] ment,” can be no abuse.of discretion. there clothes, him to remove his and KS. even- State, 372, Montgomery v. 810 S.W.2d tually complied thought because he (Tex.Crim.App.1990). him to appellant would not allow leave Appellant he did then unless so. rubbed 404(b) Texas Rule Evidence embodies masturbate, stomach and told him to KS.’s principle that an ac the well-established while, appellant After a but K.S. refused. may cused be tried for the offense for put on and leave. let K.S. his clothes back charged he is and not for criminal which home, got 404(b); KS. he told his mother When Tex.R. propensities. Evid. Owens (Tex.Crim. done, State, 911, what and his mother v. reported police depart- App.1992). Consequently, the incident to the extraneous of guilt not admissible at ment. fenses are that would commit type person that a defendant prove of a trial to phase notes that character in The State conformity charged with his offense.” acted testified that committing an offense. witnesses many Tex.R. Evid. 404(b). offense, however, An extraneous over many girlfriends had had noncharacter-conformity relevance has point years. “[t]he It asserts to make the any tendency it has when had had introducing claims that consequence fact that existence of a of his life over the course many girlfriends more or of the action the determination jury that he was suggest to the was to than it would be without probable less sexually interested person to be the sort evidence. Powell explained trial court young boys.” words, (Tex.Crim.App.2001). other reasoning admitting the rebuttal its that tends to extraneous offense evidence follows: *25 evidentiary fact make an elemental or Court, Appellate I think —and for the tends to rebut probable more or less or my view that this generally it would be theory beyond some defensive is relevant in; not come but it thing of should sort person’s character tendency prove its impression that the just seems to me conformity that acted in therewith. or if I just unfair is so front Rankin, 718; Montgomery, at 974 S.W.2d So, it. it’s to rebut don’t allow State Consequently, at 386-87. evi 810 S.W.2d just gets it down to a basic guess —I or mis dence of other crimes extraneous are play, and these rules sense of fair may prove conduct be admissible to mo trial; everybody a fair give intended to tive, intent, plan, opportunity, preparation, So, as the Defense. the State as well or acci knowledge, or absence of mistake setting any precedent not clearly I’m 404(b). excep dent. Tex.R. Evid. These set of very unique this is a here because law are tions and others drawn from case circumstances; to allow going but I am neither exclusive nor exhaustive. Pondex go into it. the State (Tex. State, 577, ter v. 942 S.W.2d 583-84 “false to the rebuttal of such regard In Crim.App.1996). Such extraneous offense the Texas Court of Criminal may impressions,” be relevant and admissible that, a wit theory. explained to rebut a defensive Ransom v. when Appeals has State, 288, (Tex.Crim.App. 920 301 an accused is picture S.W.2d presents ness 1994); Powell, 439; Roberts person to commit a certain type not the State, 596, (Tex.App. v. 29 S.W.3d offense, “may impeach type of State 'd). 2000, pet. Houston ref [1st Dist.] testimony by cross-examin that witness’s concerning similar extrane ing the witness However, majority’s contrary to the State, v. 67 S.W.3d offenses.” Wheeler ous conclusions, analysis does State However, 879, (Tex.Crim.App.2002). testimony contend that the rebuttal not Court, by the eviden- emphasized “[t]he as prove K.S. and C.R. was admissible must opponent ... that the tiary caveat intent, motive, opportunity, preparation, through impression’ ‘false correct or of mistake or plan, knowledge, absence who left of the witness cross-examination Rather, argues accident. the State by calling other impression, not the false testimony “had rele- of K.S. and C.R. impression.” that false to correct witnesses conformity apart from character vance rule, Moreover, general Id. “[a]s the State “[w]hen was admissible” because wishes to theory that the State appellant] had [that introduced evidence of use extraneous through the teenage boys, it rebut sexually abused two other on direct must be elicited not fense evidence suggestion he was [his] rebutted witnesses, may examination the defense and not rect of two other K.S. C.R., by ‘prompting maneuvering’ elicited in its rebuttal case. Id.; Shipman see also State.” Moreover, allegation KS.’s State, (Tex.Crim.App. lant and told him to rubbed KS.’s stomach 1980). allegation masturbate and C.R.’s case, State, pellant insisted that he have sex with a doll In the instant was the not allegations are not of misconduct similar to appellant, that placed appellant’s sexual allegations in the instant complainant’s Although interest women at issue. case, i.e., that of mutual masturbation. State asserts that introduced evi- many girlfriends dence that he had had sum, relied on its own suggest person “he was the sort questioning Stepherson get of Melvina sexually young boys,” to be interested into offense the extraneous case-in-chief, in its asked Melvina Moreover, regardless K.S. and C.R. “Now, you Stepherson, long as have actually placed appellant’s which side sexu- [appellant], you known ... ever issue, al interest in women at the State girlfriend?” known him to have a Ste- would have been entitled to rebut answered, pherson “No.” It is well-settled through impression false inferences cross- “may rely that the State on its own pertinent examination of the witness about *26 questioning” get into collateral matters allegations of toward similar misconduct and extraneous offenses and bad acts Here, presented other children. the State “which would otherwise be inadmissible.” testimony from other about alle- witnesses 604 Shipman, Although at 185. S.W.2d gations that were not similar to the com- many appellant’s testify of witnesses did Accordingly, this plainant’s allegations. many girlfriends had had over the trial Court should hold that the court years, it that prompted was the State the in admitting erred the extraneous offense contrary by eliciting Stepherson’s issue ob- testimony of K.S. and C.R. case-in-chief, in apparently servation its suggest jury Analysis was not Harm person sexually of the sort to be interested admitting A evi trial court’s error in women. generally dence is non-constitutional error. State, 410, assuming appellant, by elicit- v. 967 417 Even Johnson S.W.2d State, ing testimony (Tex.Crim.App.1998); King that he in fact had had v. 953 266, Ac girlfriends past, (Tex.Crim.App.1997). in the somehow raised the S.W.2d 271 cordingly, it must be determined whether theory type that he was the substantial person sexually young boys, appellant’s abuse the error affected and, not, must be disre rights the would have been “entitled to the error State Tex.R.App. 44.2(b). A garded. P. substan impression’ rebut that ‘false inference with error had a right tial is affected where the questions [of cross-examination injurious or influence in concerning allegations of substantial effect lant’s witnesses] jury’s King, 953 determining toward another child.” the verdict. similar misconduct Wheeler, Here, to non- at 271. A conviction due 67 at 885-86. how- S.W.2d S.W.3d overturned ever, error will not be attempt the State did not to correct constitutional if, entire appeal examining after the impression by false cross-examination record, fair assur appellate court has impres- of the witnesses who left the false Rather, influence the cor- ance that the error did not attempted sion. the State v. slight. Reese through jury, the di- or its effect was impression rect the false State, 238, (Tex.Crim.App. impact jury’s verdict because 33 S.W.3d 2000). bolster State’s conducting analysis, ap presented improperly In its an State, 164, 36 S.W.3d pellate court considers the nature of the case. See Webb v. 2000, verdict, (Tex.App.-Houston Dist.] supports [14th evidence that (en banc) error, (holding that erroneous alleged pet.) no character of the and how assault of jury consider it connection admission extraneous sexual might with State, complain- Bagheri party other third harmful where evidence. 755, only witnesses to (Tex.Crim.App.2003). Ad ant and offense). Moreover, said include in it cannot be jury ditional considerations structions, case, theory of fair assurance that the erroneous admis- the State’s case, theory closing sion of the of K.S. C.R. did the defense’s dire, influence or that its admission arguments, voir and whether substantial the error. v. did not affect emphasized Motilla (Tex.Crim. Court should rights. Accordingly, 355-56 this App.2002). Finally, presence of over hold that erroneous admission may testimony of K.S. and whelming guilt evidence of also be extraneous offense Id. at 357. C.R. resulted in reversible error. considered. rebuttal State’s of K.S. Conclusion undoubtedly

and C.R. than a more slight upon jury’s reversibly Because the court erred effect decision. trial all, 16 a four-day admitting testified over the extraneous offense testi- witnesses evidence, into period guilt phase mony in the the trial. Sev- K.S. and C.R. this issue, en of first those testified for the State in either Court should sustain rebuttal, court, its the trial judgment case-in-chief or and nine of reverse the *27 trial court appellant. those testified for and remand cause to the Because this there trial. physical was no or otherwise corro- new evidence, outcome

borative of the trial

depended solely upon jury whether large A complainant.

believed the portion

of closing arguments, both appellant’s State’s, spent discussing fact,

the credibility of the witnesses. although trial court instructed the Mary Mary BINDER f/k/a it consider the could Safady, Appellant, motive, determining

K.S. “in and C.R. intent, preparation, opportunity, plan, identity, or knowledge, absence of mistake Danny Safady, Appellee. JOE defendant,” accident of the State their No. 01-04-00792-CV. expressly argued rebutting” presented purpose “for the Texas, Appeals Court by appellant presented (1st Dist.). Houston guy” he was and that com- good “a plainant was “a liar.” 2, 2006. Feb. record, reviewing

After the entire can- impact

not be said that the the testimo-

ny significantly and C.R. did K.S. notes elicited was admissible testimony of K.S. and C.R. many girlfriends that he theory “appel- to rebut throughout his life.” lant the intent to commit the of- lacked was “the victim majority’s In stark char- fense” or contrast Stepherson.” Melvina up acterization of two defensive frame theories, fact, again “the in stark contrast concedes that de-