In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00212-CR
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JESS WILLARD MATTOX, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 19720
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
Jess Willard Mattox, Sr., appeals from his conviction by a jury for the offense of aggravated sexual assault on a child. The jury assessed his punishment at sixty years' imprisonment. Mattox contends that the admission of the testimony of C.H. and Donetta Britt at the guilt/innocence phase of the trial about Mattox's prior bad sexual acts was reversible error and that the trial court abused its discretion by refusing to permit him to reopen his case after closing.
Mattox was indicted for having sex with a minor girl. The complainant, S.B., testified that, on two consecutive days while she was home sick, Mattox (her stepfather) came home around noon, ordered her to remove her clothes, and had sexual intercourse with her. There was no objective evidence of the crime. After making the allegation, S.B. moved in with Edith Coker. Coker testified S.B. recanted her story, and a letter written by Michelle Hodge was introduced into evidence, which also stated S.B. had recanted her allegation.
During the presentation of the State's case, the State introduced testimony from C.H., a minor girl and friend of S.B., that Mattox had attempted to talk her into, or pay her to engage in sex. After the defense presented its case, Britt testified as a rebuttal witness that, several years earlier, while she was a minor, Mattox and several other men had sex with her.
Mattox argues that the trial court committed reversible error by admitting evidence of extraneous offenses. We first address the admission of the testimony of C.H. The admission of extraneous-offense evidence is reviewed under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g). If the trial court admits the evidence in light of the factors enunciated in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), and the court's decision to admit the evidence is "within the zone of reasonable disagreement," the trial court's decision will be upheld. Rankin, 974 S.W.2d at 718.
C.H. initially testified about an incident where Mattox had come into a bedroom with her and S.B. and asked them both to show him their breasts, and that S.B. did, but she did not. Mattox's counsel then asked to present a motion outside the presence of the jury. The trial court excused the jury, and counsel (1) asked for a mistrial because of her allegations about Mattox's actions toward her, and then (2) argued that the evidence was more prejudicial than probative. The objection/motion was overruled.
Shortly thereafter, the State asked C.H. whether there were any other instances in which Mattox took inappropriate actions in the presence of her and the complainant. Counsel objected at that point based on improper character evidence, and the objection was overruled. At that point, no questions had been asked that would necessarily implicate improper character evidence, and thus the trial court correctly overruled the objection.
The State then continued to question C.H., and in response to one of his questions about what had happened while C.H. and the complainant were together with Mattox, she described a scene in the complainant's bedroom where Mattox asked her for sexual favors in return for cigarettes and money. Mattox did not object to that testimony.
After that exposition ended, the State then ask C.H. about another incident where Mattox had driven her and the complainant to a lake. After the question was asked, and in the midst of the answer, counsel objected because the testimony would constitute improper character evidence. The objection was overruled, and C.H. completed her testimony by explaining how Mattox had again asked her for sexual favors. The State referred to this testimony in its closing argument.
Relevant evidence of a person's bad character is generally not admissible for the purpose of showing that he or she acted in conformity with his or her character. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 386-88 (op. on reh'g). In applying the Texas Rules of Evidence, however, the Texas Court of Criminal Appeals has also held that the evidence may be admissible when it is shown to be relevant to a noncharacter conformity issue of consequence in the case, such as establishing intent or rebutting a defensive theory. Robbins, 88 S.W.3d at 259; Montgomery, 810 S.W.2d at 387-88.
A trial court is in the best position to decide these admissibility questions, and appellate courts therefore review its decision under an abuse of discretion standard. Montgomery, 810 S.W.2d at 391. This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. See id.
In a number of cases, evidence about extraneous bad acts or offenses allegedly committed by an accused has been held admissible to refute defensive theories raised by the accused. Wheeler v. State, 67 S.W.3d 879, 886-87 & n.18 (Tex. Crim. App. 2002) (noting that "[e]vidence of extraneous offenses committed by the accused has been held admissible . . . to refute a defensive theory raised by the accused") (quoting Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972); and referencing Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988) ("[p]robably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory")); see also Rodriguez v. State, No. 290-01, 2003 WL 1534250, at *11 (Tex. Crim. App. Mar. 26, 2003) (Myers, J., dissenting).
From the opening statements and throughout the testimony, Mattox's sole defensive theory was that the complainant was not telling the truth about any sexual activities between them. The reason suggested for her alleged lies was that she was angry about his version of parental discipline and wanted to move in order to live with her biological father in South Carolina. Clearly, C.H.'s testimony about the acts she observed between Mattox and S.B. were admissible to show that the acts occurred.
C.H.'s testimony that Mattox had attempted to pay her to engage in similar acts and had attempted on one occasion to unbutton her pants while she was in the complainant's bedroom are a different issue. The State takes the position that this testimony tends to refute Mattox's defensive argument that S.B. had fabricated her testimony.
In reviewing the admissibility of this evidence, we are confronted by opinions that have continually narrowed the scope of the rule and thereby broadened the range of evidence found to be admissible. In Wheeler, in reviewing testimony by another minor girl, the Court found that her testimony regarding an extraneous offense of sexual touching near other people was admissible to rebut a specified defensive theory that Wheeler did not have opportunity to make such contact with the alleged victim because he was never alone with her and the acts allegedly occurred while other persons were around. Wheeler, 67 S.W.3d at 885. The Texas Court of Criminal Appeals also stated that the evidence was admissible to rebut a "frame-up" theory by showing similar acts in a situation involving neither money nor revenge as possible motives for her testimony. Id. at 887.
This same defensive theory (lack of opportunity) was also used to validate the admission of extraneous offenses in Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001). In that case, the court also found that it was acceptable to look to the opening statement by defense counsel to glean the defensive theory and that evidence by other witnesses about alleged extraneous offenses committed against them while in the company of other people was admissible to refute his argument that he could not have committed the crime‒because other people were always around. Reversing Powell v. State, No. 12-98-00049, 2000 WL 760988 (Tex. App.‒Tyler May 31, 2000, op. on reh'g) (not designated for publication).
The question before this Court is whether there is any viable, specific, defensive theory that this testimony was relevant to rebut‒besides its relevance to show that Mattox acted in conformity with his (bad) character. In Wheeler, the court held that one of its reasons for finding the testimony admissible was that the complainant had been accused of fabricating the story in a conspiracy designed to attempt to obtain money. Wheeler, 67 S.W.3d at 887. Therefore, the court reasoned, the extraneous-offense testimony tended to contradict that theory by showing that other young girls with no such motives had been similarly treated by the defendant.
In this case, the defensive theory was that S.B. had concocted the story in an attempt to create a situation where she could join her birth father in another state. If the testimony of C.H. rebuts a specific defensive theory, such evidence of similar acts was admissible in order to show that, as in Wheeler, other young girls with no such motive had been similarly treated. In making this determination, we review the evidence presented regarding the defensive theory.
In the opening statement, Mattox introduced the theme, "she wanted to live with him [her birth father] because she had a freer lifestyle, and [he] let her do things she didn't get to do around here." This continued to be developed with witness Eddie Waggoner, who was asked, "How about if your mother thought that your real dad was a low down bad guy and he moved to another state and you wanted to get back with him, . . . ?" In questioning S.B., he asked, "Did [your birth father] ever talk to you about breaking up the family so that he could remarry [S.B.'s mother]?" Suzette Williams testified that S.B. had said she was going to get the defendant in trouble by saying that he molested her and that she wanted Williams to lie for her. S.B.'s aunt testified that S.B. had said she was lying, that S.B. was just mad at Jess, and that S.B. was saying this to get even because of him being so strict on her she wanted to live with her real dad. S.B.'s mother testified that S.B. told her that Jess did not do anything and that she was mad at him for "interfering in her father's relationship." Her mother also testified that S.B. had made up the lie because S.B. wanted to make her mother mad enough to let her go to South Carolina. Mattox testified that S.B. said if he "didn't get off of her back that she was going to go up and make the report that I was molesting her, . . . ." "I think that wanting to go up to be with her real father is motive enough."
The primary defense to this case was that S.B. was lying and her motivation was to live with her biological father. Mattox offered evidence on this issue from the child's mother and aunt. Additionally, three other witnesses were questioned on this subject, including the child. Mattox also personally presented such evidence in his defense. Under these unusual circumstances, and applying the requisite abuse of discretion analysis, we conclude the trial court's decision to admit the evidence was within the zone of reasonable disagreement. Accordingly, error has not been shown.
Mattox also argues on appeal that, under Texas Rule of Evidence 403, the evidence was unfairly prejudicial. See Tex. R. Evid. 403. However, except for the one instance set out specifically above, he did not make that argument at trial. In connection with the shirt-raising incident, the testimony was merely a part of the entire transaction and, as such, although it was obviously prejudicial, we perceive no reason that it would be unfairly prejudicial. We therefore conclude the trial court did not abuse its discretion by admitting the testimony.
We cannot consider the other contentions in connection with the Rule 403 balancing test because that complaint was not brought to the trial court's attention by a timely and proper objection and, thus, the claimed error has not been preserved for our review. See Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997); Montgomery, 810 S.W.2d at 389.
Britt's testimony
Mattox also complains that the trial court abused its discretion by admitting the previously described testimony of Donetta Britt in rebuttal.
Britt testified in her rebuttal testimony that she had been sexually assaulted by Mattox and by two other men when she was twelve years old. Britt was twenty-three years old at the time of trial. As discussed above, this testimony was admissible to rebut Mattox's defensive theory that the complainant had fabricated her accusations so she could live with her biological father.
Counsel objected adequately that the evidence was inadmissible because its probative value was substantially outweighed by its unfair prejudicial nature. We therefore turn to the question of whether the court abused its discretion in admitting the evidence. Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh'g). In making this determination, the trial court should "consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it." Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992). A trial court's decision in balancing these factors is reviewed under an abuse of discretion standard and is disturbed on appeal only when the trial court's decision falls outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391-92.
Tex. R. Evid. 403 carries with it a presumption that the evidence will be more probative than prejudicial. Tennison v. State, 969 S.W.2d 578, 580 (Tex. App.‒Texarkana 1998, no pet.). In order to be unfairly prejudicial, the proffered evidence must have a tendency to suggest a decision on an improper basis. Perkins v. State, 902 S.W.2d 88, 99 (Tex. App.‒El Paso 1995), supplemented by, 905 S.W.2d 452 (Tex. App.‒El Paso 1995, pet. ref'd).
In conducting the balancing test required by Rule 403, the trial court must assess the inherent tendency, if any, of the evidence to encourage resolution of material issues on an improper basis, balance against that inherent tendency the host of factors affecting probativeness, and then determine whether the trial court's decision on that matter is outside the zone of reasonable disagreement. Richardson v. State, 879 S.W.2d 874, 880-81 (Tex. Crim. App. 1993); Fuller, 829 S.W.2d at 206.
Those criteria include the following factors: (1) how compellingly the evidence serves to make a fact of consequence more or less probable‒a factor that is related to the strength of the evidence; (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence; and (4) the force of the proponent's need for this evidence to prove a fact of consequence, which breaks down into three subparts: (a) Does the proponent have other available evidence to establish the fact of consequence that the evidence is relevant to show? (b) How strong is that other evidence? and (c) Is the fact of consequence related to an issue that is in dispute? See Montgomery, 810 S.W.2d at 389-90; Taylor v. State, 93 S.W.3d 487, 506 (Tex. App.‒Texarkana 2002, pet. denied).
Factor one: Evidence of a previous sexual assault concerning one who had no motivation to lie, such as is alleged in this case, is probative. Britt had no motivation to fabricate the story, which goes to the issue of rebutting the defensive theory that the complainant in this case had fabricated her allegations. This factor weighs in favor of finding the evidence admissible.
Factor two: The witness testified Mattox and two other men sexually assaulted her, when she was twelve years old. In response to a question asking whether Mattox had taken inappropriate sexual actions with her, she replied:
Yes, he has. When I was in the 6th grade in school, him and two other men -- we were -- the kids were -- and the men were all playing freeze tag (sic) because our parents -- or the women parents had all went to town for something, and in the barn him and two other men held me down and took their pleasure at my expense.
She then went on to confirm that Mattox had put his penis into her female sexual organ. She went on, then, to testify about a second occasion:
Whenever I was 17 -- or the night of my 17th birthday, he come into the middle bedroom of my mom's house where I was laying down and asked -- brought a condom and asked me to have sex with him, and he also offered me a car. And he forced his self on me when I told him no.
This testimony has a factual impact that cannot be disregarded. However, we also recognize that the entirety of this testimony constitutes only two paragraphs of a 400-page record that covered a four-day trial. We also recognize that the testimony is not the type of gruesome or graphic description of the event that would most strongly tend to inflame the passions of the jury. Further, this testimony is actually less graphic than the much more extensive testimony about the alleged offenses for which Mattox was being tried. We conclude this was not necessarily evidence that would tend to impress the jury in "some irrational but nevertheless indelible way" that could materially impact its decision-making process. Accordingly, we find that, although this factor leans in favor of excluding the testimony, it does not, standing alone, require its exclusion.
Factor three: The time taken to develop the evidence was quite short. As mentioned above, Britt's direct testimony about the extraneous offenses consumed only two paragraphs of the record, and the entirety of her testimony, including cross-examination and redirect, covers only eight pages of the record. This leaves little concern that the testimony diverted the jury from consideration of the indicted offense. This factor falls in favor of admission.
Factor four: Did the State need the evidence to prove a matter in dispute? The question at issue was whether the complainant had fabricated her story about the attack‒as set out by testimony from the complainant's other family members. As set out previously, the defense theory was that the child had concocted the story from whole cloth in order to be able to leave Mattox's household and rejoin her father. Further, her mother, aunt, and a friend, as well as Mattox, were taking the position that she was lying. The Texas Court of Criminal Appeals has found that a similar defensive situation involving a "small parade" of witnesses alleging that a complainant was lying justified admission of extraneous offenses to support the State's position that the complainant had not fabricated her story. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002).
The same situation exists here as with the other testimony, which we have previously addressed. The primary defense was that S.B. was lying about even the existence of any sexual activity and that her motivation to lie was so she could move to another state and live with her biological father. This evidence attacking S.B.'s testimony from her friend, aunt, and mother has previously been recited. We find this factor also weighs in favor of admission of the evidence.
The evidence obviously makes it more likely that the presently alleged act occurred. The question is whether the trial court could have decided within its discretion that the testimony about the prior sexual attack in which Mattox participated was not unfairly prejudicial.
We conclude that, because the evidence was of an offense closely related in type to the present offense, it tended to refute Mattox's theory that this complainant's testimony was fabricated. The fact of consequence is thus related to an issue that was in substantial dispute in this prosecution. We therefore find the need for the extraneous offense evidence weighs toward admitting the evidence.
We conclude, based on all of these factors, that the trial court's decision to admit the testimony of Britt was not outside the "zone of reasonable disagreement" and that the trial court therefore did not abuse its discretion by allowing the evidence to be admitted.
Reopening the case
Mattox finally contends the trial court erred by refusing to permit him to reopen his case to present more evidence. After both sides had rested and closed, Mattox asked the trial court to allow him to reopen his case:
[Mattox's Counsel]: Your Honor, we would ask to reopen.
THE COURT: Tell me about it.
[Mattox's Counsel:] We have five witnesses, four of them dealing with this Britt lady, and one is dealing with an incident that [S.B.] had said she was going to run away and escape, and we were going to talk about that she had a plan and to go toward her ability to form a plan. A lot of the state's experts said she couldn't do that.
. . . .
THE COURT: Do I understand the state's objecting to this?
[Prosecutor]: We are objecting strenuously, Your Honor.
THE COURT: I'm going to sustain your objection and deny your request.
[Mattox's Counsel]: We take exception.
. . . .
[Mattox's Counsel]: Your Honor, I want to reurge the motion to open. One of the witnesses is going to testify how he was dressed when he went across to get his sandwich at lunch on February 1st and 2nd.
We review a trial court's refusal to allow a party to reopen its case-in-chief for abuse of discretion. See generally Peek v. State, 106 S.W.3d 72, 72, 75 (Tex. Crim. App. 2003). A trial court must reopen a case under Article 36.02 of the Texas Code of Criminal Procedure "only if the proffered evidence is 'necessary to a due administration of justice.'" Id. at 79 (quoting Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981)). The Texas Court of Criminal Appeals recently explained "due administration of justice" means the evidence sought to be introduced must be more than merely relevant: "a judge should reopen the case if the evidence would materially change the case in the proponent's favor." Peek, 106 S.W.3d at 79.
In the case before us, the record does not demonstrate the evidence sought to be introduced during a reopening of Mattox's case would materially change the case in his favor. Under these facts, Mattox has not shown the trial court abused its discretion by denying his motion to reopen.
We affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: June 20, 2003
Date Decided: October 23, 2003
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