
    Everett Dale WEBB, Appellant v. The STATE of Texas, Appellee
    No. 10-17-00149-CR
    Court of Appeals of Texas, Waco.
    Opinion delivered and filed May 15, 2019
   JOHN E. NEILL, Justice

In three issues, appellant, Everett Dale Webb, challenges his conviction for indecency with a child by contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2018). Specifically, Webb argues that the trial court abused its discretion by admitting extraneous-offense evidence of other sexual offenses in violation of Texas Rules of Evidence 403 and 404(b) and that the trial court's limiting instruction regarding the extraneous-offense evidence was erroneous. See TEX. R. EVID. 403, 404(b). Because we overrule all of Webb's issues on appeal, we affirm.

I. STANDARD OF REVIEW

We review a trial court's admission or exclusion of evidence for an abuse of discretion. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit or exclude evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Id. at 391 ; see Manning v. State , 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

II. TEXAS RULE OF EVIDENCE 404(b)

In his first issue, Webb contends that the trial court abused its discretion by admitting extraneous-offense evidence of two prior sexual offenses he committed. In particular, Webb argues that the evidence is inadmissible because the defense of fabrication was not at issue at the time the evidence was admitted, and because the extraneous offenses are too dissimilar to the offense in this case.

A. Preservation of Error

At the outset, we will address the State's contention that Webb's complaint in this issue was not preserved. When the State moved to introduce extraneous-offense evidence pertaining to sexual-assault offenses allegedly committed by Webb against two other victims, T.T. and C.H., Webb objected under Rule 404(b). See TEX. R. EVID. 404(b). Though Webb argued a Rule 404(b) notice objection, a fair reading of the record shows that Webb did alert the trial judge to his argument that Rule 404(b) prevented the admission of extraneous-offense evidence when Webb had not yet put into issue a defense of fabrication. Accordingly, we conclude that Webb preserved his complaint in this issue. See TEX. R. APP. P. 33.1(a)(1)(A) (noting that a complaint is preserved for appellate review if the record shows that appellant made the complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the appellant sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context).

B. Applicable Law

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. TEX. R. EVID. 404(b). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. "The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive." De la Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). " 'Rule 404(b) is a rule of inclusion rather than exclusion.' " Id. (quoting United States v. Bowie , 232 F.3d 923, 929, 344 U.S. App. D.C. 34 (D.C. Cir. 2000) ). "The rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character." Id. (citing Rankin v. State , 974 S.W.2d 707, 709 (Tex. Crim. App. 1996) ).

Rebuttal of a defensive theory is one of the permissible purposes for which extraneous-offense evidence may be admitted. See Moses v. State , 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Further, extraneous offenses are admissible to rebut theories raised by the testimony of a defense witness during direct examination or a State's witness during cross-examination. See Daggett v. State , 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) ; Ransom v. State , 920 S.W.2d 288, 301 (Tex. Crim. App. 1996).

The State may present extraneous-offense evidence to rebut a defensive theory of fabrication. See Bass v. State , 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). To be admissible for rebuttal of a fabrication defense, " 'the extraneous misconduct must be at least similar to the charged one.' " Newton v. State , 301 S.W.3d 315, 317 (Tex. App.-Waco 2009, pet. ref'd) (op. on remand) (quoting Wheeler v. State , 67 S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002) ). The requisite degree of similarity is not exacting, and the extraneous conduct need only be sufficiently similar to the charged offense. Dennis v. State , 178 S.W.3d 172, 178 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) ; see Newton , 301 S.W.3d at 317 ("Although some similarity is required, the requisite degree of similarity is not as exacting as necessary when extraneous-offense evidence is offered to prove identity by showing the defendants 'system' or modus operandi. " (internal citations omitted)).

C. Discussion

On appeal, Webb contends that he did not accuse the child victim, R.G., of fabricating her story through cross-examination, nor did he put fabrication at issue by an opening statement made prior to the admission of the extraneous-offense evidence. As such, Webb asserts that he did not open the door to the use of the extraneous-offense evidence to rebut such a defense.

During voir dire, Webb repeatedly asked a prospective juror about assumptions that children are telling the truth; the possibility of children changing their story when presented with information by law enforcement or by the passage of time; and the possibility of children lying about serious incidents. In fact, defense counsel used the term "lying" or "lie" eight times in the questioning of this particular prospective juror regarding allegations made by children.

Additionally, during cross-examination of R.G., defense counsel asked a series of questions designed to suggest that R.G. was lying or changed her story regarding various facts pertaining to the incident. Specifically, defense counsel highlighted differences between R.G.'s testimony and statements made to law enforcement regarding clothing that was allegedly ripped during the incident, what body parts Webb touched, Webb's actions prior to driving her to Williamson Park-the location of the incident, R.G.'s explanations for why she did not call 911 while she was in Webb's truck, why R.G. did not sustain any injuries attributable to Webb's actions, and R.G.'s recollection that child locks prevented her from opening the door to Webb's truck to escape. It is also noteworthy that defense counsel asked the State's first witness, William Dunford of the Bryan Police Department, about obtaining statements from witnesses and the opportunity for complainants to create or concoct stories when speaking to different parties.

Viewing defense counsel's voir dire and cross-examination of Officer Dunford and R.G. in the proper context, and keeping in mind that a trial court's ruling on the admissibility of extraneous-offense evidence is reviewed under an abuse-of-discretion standard, we cannot conclude that the trial court's conclusion that the defensive theory of fabrication was raised at this point falls outside the "zone of reasonable disagreement." Montgomery , 810 S.W.2d at 380 ; see Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) ; see also Leal v. State , 2016 WL 4013791, at *2, 2016 Tex. App. LEXIS 7918, at **5-6 (Tex. App.-San Antonio July 27, 2016, no pet.) (mem. op., not designated for publication) (concluding that the defensive theory of fabrication was raised when, during voir dire and cross-examination of several witnesses, defense counsel repeatedly made reference to people being falsely accused of sexual crimes and to children making up allegations of sexual abuse and defense counsel repeatedly used the terms "lying" and "lies" regarding the child victim's credibility).

This is not to say that any questioning of a child victim automatically invokes a fabrication defense and, thus, opens the door to the admission of extraneous-offense evidence under Rule 404(b). See Aguillen v. State , 534 S.W.3d 701, 714 (Tex. App.-Texarkana 2017, no pet.) ("Although the Texas Court of Criminal Appeals has held that extraneous-offense evidence is admissible to rebut a defensive theory raised in opening statement or raised by the State's witnesses during cross-examination, the fact that the State's witnesses are cross-examined does not, in and of itself, authorize the introduction of extraneous-offense evidence. Likewise, a challenge to the complainant's credibility on cross-examination does not automatically open the door to extraneous-offense evidence." (citing Ransom v. State , 920 S.W.2d 288, 301 (Tex. Crim. App. 1994) ; Caldwell v. State , 477 S.W.2d 877, 879 (Tex. Crim. App. 1972) )). Rather, under these facts, we hold that defense counsel's voir dire and cross-examination of Officer Dunford and R.G. went beyond merely pointing out inconsistencies in R.G.'s story and, thus, raised the defensive theory of fabrication, which, in turn, allowed for the admission of extraneous-offense evidence under Rule 404(b) to rebut that defensive theory. See TEX. R. EVID. 404(b) ; Daggett , 187 S.W.3d at 453-54 ; Moses , 105 S.W.3d at 626 ; Ransom , 920 S.W.2d at 301 ; see also Leal , 2016 WL 4013791, at *2, 2016 Tex. App. LEXIS 7918, at **5-6.

Next, Webb argues that the extraneous-offense evidence was inadmissible under Rule 404(b) because the evidence was too dissimilar from the offense involved in this case. We disagree.

The record reflects that the nature of the extraneous-offense evidence proffered by the State was sufficiently similar to the offense in this case. See Newton , 301 S.W.3d at 317-18 ; see also Dennis , 178 S.W.3d at 172. Specifically, R.G., T.T., and C.H. alleged that Webb molested them when they were teenagers. R.G. testified that she was molested at age sixteen; T.T. was thirteen when Webb molested her; and C.H. stated that Webb continually molested her from when she was eight years old until she was twenty-one years old. Additionally, the evidence demonstrated that Webb entered the lives of each of the victims by being in a relationship with a family member. Moreover, similar to R.G., both T.T. and C.H. stated that Webb rubbed on their bodies and touched their breasts and private areas.

Therefore, because defense counsel's cross-examination advanced his defensive theory of fabrication and opened the door to the use of extraneous-offense evidence to rebut that defense, and because the extraneous offenses proffered by the State are sufficiently similar to the offense charged in this case, we cannot conclude that the trial court abused its discretion by overruling Webb's Rule 404(b) objection. See TEX. R. EVID. 404(b) ; De la Paz v. State , 279 S.W.3d 336, 343 ; Bass , 270 S.W.3d at 563 ; see also Newton , 301 S.W.3d at 317-18 (concluding that an extraneous offense was sufficiently similar to the charged offense where the victims were the defendant's step-daughters; both were about ten years old when the sexual assaults occurred; both were similar in appearance; the defendant did not threaten either of them; and the sexual assaults occurred for several years); Dennis , 178 S.W.3d at 172 (holding that an extraneous offense was sufficiently similar to the charged offense where the offenses involved teenage girls that Dennis knew; both occurred in Dennis's apartment on a couch in the living-room area; both occurred in the summer of 2001; and Dennis did not say much to the victims as he sexually assaulted them). We overrule Webb's first issue.

III. TEXAS RULE OF EVIDENCE 403

In his second issue, Webb argues that the trial court abused its discretion by admitting the extraneous-offense evidence because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. We disagree.

A. Applicable Law

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." TEX. R. EVID. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Allen v. State , 108 S.W.3d 281, 284 (Tex. Crim. App. 2003) ; Jones v. State , 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). When considering a Rule 403 objection, the trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State , 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

The trial court has broad discretion in conducting a Rule 403 balancing test, and we will not lightly disturb its decision. Allen , 108 S.W.3d at 284. All testimony and physical evidence will likely be prejudicial to one party or the other. Jones , 944 S.W.2d at 653. It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that the evidence is considered unfairly prejudicial and in violation of Rule 403. Id. ; see Montgomery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g).

B. Discussion

Webb's primary contention in this issue is that the probative value of the extraneous-offense evidence is substantially outweighed by the danger of unfair prejudice because of the lack of similarities between the charged offense and the extraneous offenses.

The extraneous-offense evidence was probative to rebut Webb's defensive theory of fabrication. Further, we have already concluded that the extraneous-offense evidence is sufficiently similar to the charged offense to have probative value on this issue. See Newton , 301 S.W.3d at 317-18 ; see also Dennis , 178 S.W.3d at 172. Thus, this factor weighs in favor of admissibility.

The trial court could have reasonably concluded that the State's need for the extraneous-offense evidence was "considerable" given that there were no eyewitnesses, other than the complainant, and no physical evidence available to corroborate the complainant's testimony. See Gigliobianco , 210 S.W.3d at 642 ; Wheeler , 67 S.W.3d at 889 ; see also Bargas v. State , 252 S.W.3d 876, 893 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ; Blackwell v. State , 193 S.W.3d 1, 18 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) ; Dennis , 178 S.W.3d at 181. Therefore, this factor weighs in favor of admissibility.

Extraneous-offense evidence of this nature does have a tendency to suggest a verdict on an improper basis because of the inherently inflammatory and prejudicial nature of the crimes of a sexual nature perpetrated against children. See Newton , 301 S.W.3d at 320. However, this danger of unfair prejudice was counterbalanced, to some degree, by the trial court's limiting instructions contained in the court's charge. See Blackwell , 193 S.W.3d at 17-18. Nevertheless, as the State concedes, this factor weighs in favor of exclusion of the evidence. See Newton , 301 S.W.3d at 320.

Next, we note that the extraneous-offense testimony provided by T.T. and C.H. was neither confusing nor highly technical such that the jury was ill-equipped to evaluate the probative force of the evidence. Furthermore, the extraneous-offense evidence was contextual and relevant to whether or not Webb sexually assaulted R.G. in this case. See Bass , 270 S.W.3d at 562-63 (concluding that evidence was relevant where it showed that the defendant abused other children in a similar fashion). Accordingly, we conclude that the extraneous-offense evidence concerning T.T. and C.H. did not have a tendency to distract the jury or be given undue weight by the jury. See Bass , 270 S.W.3d at 562-63 ; see also Robisheaux v. State , 483 S.W.3d 205, 220-21 (Tex. App.-Austin 2016).

With regard to the final factor, the parties engage in page counting to determine whether an inordinate amount of time was spent in the presentation of the extraneous-offense evidence. While we share the concerns raised in the concurring note in Newton regarding page counting to determine this factor, see Newton , 301 S.W.3d at 322 (Gray, C.J., concurring with a note), the State concedes that this factor slightly weighs in favor of exclusion.

Out of the six factors, only two somewhat favor exclusion. We, therefore, cannot say that there is a "clear disparity" between the danger of unfair prejudice posed by the extraneous-offense evidence and its probative value; and as such, we cannot conclude that the trial court abused its discretion by overruling Webb's Rule 403 objection. See TEX. R. EVID. 403 ; Gigliobianco , 210 S.W.3d at 641-42 ; Allen , 108 S.W.3d at 284 ; Jones , 944 S.W.2d at 653 ; Montgomery , 810 S.W.2d at 389. As such, we overrule Webb's second issue.

IV. THE TRIAL COURT'S LIMITING INSTRUCTION

In his third issue, Webb asserts that the trial court erred by giving a limiting instruction regarding the aforementioned extraneous-offense evidence that allowed the evidence to be considered "for any bearing the evidence has on the character of the defendant and acts performed in conformity with that character."

After the trial court overruled his multiple objections to the admission of the extraneous-offense evidence, Webb requested a running objection and that the trial court issue a limiting instruction to the jury regarding the evidence. The trial court granted Webb's requests for a running objection and a limiting instruction. The limiting instruction was given before the testimony of T.T. and provided the following:

Ladies and gentlemen, I'm going to give you an instruction as it relates to testimony you may hear. There may be testimony introduced regarding extraneous crimes or bad acts other than the one charged in the indictment in this case. This testimony and evidence may be admitted only for the purpose of assisting you, if it does, in showing the lack of fabrication only, if it does, and to rebut any defensive theory in connection with the offense alleged in the indictment in this case or for any bearing the evidence has on relevant matters including the character of the defendant and acts performed in conformity with that character and for no other purpose. You cannot consider this testimony and evidence unless you find beyond a reasonable doubt that the defendant committed the acts which may be referenced.[ ]

Webb did not object to this instruction.

Given the above, we conclude that Webb's failure to object to the trial court's limiting instruction given immediately before T.T.'s testimony did not preserve error in this issue. See TEX. R. APP. P. 33.1(a)(1)(A). Accordingly, we overrule Webb's third issue.

V. CONCLUSION

Having overruled all of Webb's issues on appeal, we affirm the judgment of the trial court.

(Chief Justice Gray dissenting)

TOM GRAY, Chief Justice, Dissenting

The line. Where is the line? The line between basic advocacy and opening the door. Behind the door are any extraneous offenses similar to the one for which the defendant is being tried.

I write this dissenting opinion because I believe the appellate courts have unintentionally blurred the line and thus allowed the State to routinely introduce extraneous offense evidence for no reason other than it is easier to get a conviction when there is damning character conforming evidence.

Webb was charged, tried, and convicted for indecency with a child. If properly found guilty, a severe punishment is warranted. But let us not get ahead of ourselves. We must first focus on a proper trial to determine guilt. Not a trial based on Webb's character but, rather, only on the specific offense for which he is charged.

There is substantial case authority which expressly holds the admission of extraneous offense evidence of a nature similar to that for which the defendant is on trial is permitted. But, to overcome the general prohibition of using character conformity evidence to obtain a conviction, the cases require that the evidence must be admitted for a purpose other than showing that the current charges are consistent with the defendant's bad character. The "purpose" other than character conformity to justify admission in this type case is that the evidence is said to "rebut a defensive theory."

Defensive theories are generally reasons that a juror should question whether the State has adequately proved its case against the defendant. The defensive theory that generated the line of cases at issue in this appeal was first labeled the "frame-up" defense. In these cases, the defendant would assert that the complaining witness, and sometimes others, sought to get the defendant convicted, or at least arrested, for their own reason; thus, the defendant would assert that he was being framed. To rebut the defensive theory of frame-up, the State was allowed to introduce evidence of similar crimes or bad acts which tended to show that the defendant had previously engaged in the type conduct at issue.

The cases evolved to those in which the complaining witness is said to have "fabricated" the evidence of the offense. These type cases were labeled as raising a "fabrication defense," although it was sometimes referred to as the "fantasy defense." In this type case, there was frequently some type of explanation of a reason the charges were fanciful, such as the defendant would never engage in this type conduct, this person would never hurt a child, or this person is the real deal-a minister.

The two lines of cases, specifically the "frame-up" and "fabrication" defenses, were merged in the case of Bass v. State . Bass v. State , 270 S.W.3d 557 (Tex. Crim. App. 2008). In Bass , the Court of Criminal Appeals held there was no distinction between the two defenses for the purposes of admitting extraneous offense evidence to rebut the defensive theory. Id. at 563. In most of the plethora of cases in which either a frame-up or fabrication defense was the basis for admitting extraneous offense evidence, there was a common thread-the defendant was asserting some specific motive on the part of the victim or others for making the allegations against the defendant. As an alternative to motive, sometimes, as in Bass , the defense puts on evidence that the victim's reputation for truthfulness was not good, that she was known to misrepresent the truth. If not admitted in response to a "motive-based" defense, the prior extraneous offenses of the defendant were admitted because the defendant had opened the door by introducing evidence as to the complaining witness's character for truthfulness. In either instance, motive or character of the witness, the defense did something specific that could properly be said as opening the door for the introduction of extraneous offenses.

That brings us to this case. There is no motive attributed to the victim. There was no effort to present evidence that the complaining witness had a reputation as being untruthful. This is not a case in which the defendant is saying the victim is fabricating this in retaliation for being disciplined by the defendant; or that the victim's mother, the defendant's soon to be ex-wife, is getting the alleged victim to make these allegations so that the defendant's custody is eliminated or restricted or so that the property division will favor the soon to be ex-wife. Quite simply, there is no allegation of a motive or other reason attributed to the victim for making the allegations in this case. The only "theory" being argued by the defendant is that the victim is not being truthful; that in this instance, she is lying.

In its opinion, the Court equates any attack on the victim's truthfulness as raising the defensive theory of fabrication.

Maybe the line is not there. Maybe the line is too subtle to draw/see/make in practice. But I believe there is a distinction to be made under Texas Rule of Evidence 404(b) between rebuttal of a defensive theory and attorneys simply doing their job and advocating for their client by making the State prove its case. Specifically, doing nothing more than revealing the inconsistencies in the victim's story in an effort to create reasonable doubt in the minds of the jury, which is nothing more than the most basic form of trial advocacy, should not open the door to the admission of extraneous offense evidence.

Moreover, if there is not a distinction, the defendant's attorney is on the horns of a dilemma. If the attorney does not engage in basic cross-examination or take other available steps to cast doubt on the credibility of the State's witnesses, most often the victim, then the attorney will be deemed ineffective. But if the attorney does engage in what some would characterize as an "attack" on the victim's credibility, the attorney will have opened the door to the introduction of extraneous offenses and then be deemed ineffective. Damned if you do and damned if you don't; and either way, the defendant is essentially left without a zealous advocate.

We need a brighter line; or possibly, we need a line.

In this case, Webb's attorney did not cross the line that I think is there. The trial court erred in holding that the line was crossed and, thus, in allowing the introduction of the damning extraneous offense evidence. The very fact that the State needed this evidence, as found by the Court in its subsequent Rule 403 analysis, suggests just how important it was in swaying the jury. Admission of the extraneous offenses allowed the jury to convict Webb using this character conformity evidence. I would reverse the trial court's judgment and remand this proceeding for a new trial so that the State will be required to try Webb on the charged offense and not simply for a determination of whether the allegations are in conformity with his character. 
      
      The State further argues that Webb also asserted his fabrication defense in his opening statement; however, a review of the record shows that Webb did not make his opening statement until after T.T. and C.H. testified and the State rested. Therefore, at the time the trial court ruled on Webb's Rule 404(b) objection, Webb had not yet made his opening statement. Accordingly, because it was not before the trial judge at the time the objection was made and ruled on, we will not consider Webb's opening statement in this issue.
     
      
      In addition, even if the door had not been opened to rebut the defensive theory of fabrication, the extraneous-offense evidence would also be admissible under a couple of the exceptions listed in Rule 404(b)(2) -namely, intent and knowledge. See Tex. R. Evid. 404(b)(2) ; see also Shepard v. State , No. 10-06-00002-CR, 2007 WL 1373914, at *3, 2007 Tex. App. LEXIS 3602, at *8 (Tex. App.-Waco May 9, 2007, no pet.) (mem. op., not designated for publication) ("[A]n appellate court should affirm a trial court's decision 'if it is reasonably supported by the record and is correct on any theory of law applicable to the case.' " (quoting State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) )).
     
      
      Despite the foregoing, the jury charge included a correct statement regarding the jury's usage of the extraneous-offense evidence. Specifically, the charge stated:
      Any testimony and evidence of extraneous crimes or bad acts was admitted only for the purpose of assisting you, if it does, in showing the defendant's motive, intent, if any, or to rebut any defensive theory in connection with the offense alleged in the indictment in this case, and for no other purpose. You cannot consider such testimony and evidence unless you find and believe beyond a reasonable doubt the defendant committed these acts.
     
      
      A similar defense was labeled the "retaliation" defense.
     
      
      Some of these "defenses" would be supported by evidence of lack of opportunity, impediment, or other reason they could not have committed the charged offense.
     