IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 20, 2002
______________________________
CANDISS CHRISTINE EVERETT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 182ND DISTRICT COURT OF HARRIS COUNTY;
NO. 848251; HONORABLE JEANNINE BARR, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and REAVIS, JJ.
Upon a plea of not guilty, appellant Candiss Christine Everett was convicted by a jury of delivery of a controlled substance and the trial court assessed punishment at two years confinement in a state jail facility, but suspended the sentence, and placed appellant on five years community supervision and assessed a $500 fine. By four issues, appellant contends (1) the trial court erred when it failed to issue an instructed verdict at the close of the State's case on its own motion, and appellant was denied effective assistance of counsel when trial counsel failed to move for an instructed verdict of acquittal at the close of the State's case; (2) appellant was denied effective assistance of counsel when trial counsel called defense witnesses who provided inculpatory evidence used to convict her; (3) the trial court erred when it failed to include an accomplice witness instruction on the jury charge on its own motion, and appellant was denied effective assistance of counsel when trial counsel failed to request that an accomplice witness instruction be included in the jury charge; and (4) appellant was denied effective assistance of counsel as a result of cumulative error. (1) Based on the rationale expressed herein, we affirm.
Appellant does not challenge the sufficiency of the evidence, thus only a brief recitation of the facts is necessary to the disposition of this appeal. On June 23, 2000, an undercover officer of the Houston Police Department Narcotics Division entered a Houston nightclub to investigate narcotics activity. The officer was approached by an unidentified male, who asked if the officer wanted to purchase narcotics. The unidentified male later introduced the officer to appellant, and the officer was instructed to give her twenty dollars. Appellant escorted the officer to a second male, who was an accomplice-witness the defense called at trial, and this second male delivered narcotics to the officer. Five to ten minutes later, appellant was arrested and charged with delivery of a controlled substance. We will address appellant's issues in logical rather than sequential order.
By her second issue appellant argues the trial court erred when it failed to issue an instructed verdict at the close of the State's case on its own motion. However, appellant offers no legal argument or authority supporting the contention the trial court was under an obligation to sua sponte grant an instructed verdict. Accordingly, issue two presents nothing for review. Garcia v. State, 887 S.W.2d 862, 871 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995). Issue two is overruled.
By her third issue, appellant argues the trial court erred when it failed to include an accomplice witness instruction on the jury charge on its own motion. Appellant contends that because inculpatory testimony was elicited from an accomplice-witness, an accomplice witness instruction was required in the jury charge. However, "it is a firmly established principle in this State that testimony elicited from a witness called by the accused and offered by the accused is not accomplice-witness testimony which must be corroborated . . . ." Selman v. State, 807 S.W.2d 310, 311 (Tex.Cr.App. 1991). "[A]ccomplice-witness testimony must be corroborated and the jury so instructed only when the State calls the witness and seeks to rely on such witness's testimony." Id. Here, the accomplice-witness was called by appellant, and as such, no accomplice-witness jury instruction was required in the court's charge. Issue three is overruled.
By her first issue, appellant asserts that she was denied effective assistance of counsel due to trial counsel's (a) failure to move for an instructed verdict; (b) calling inculpatory witnesses; (c) allowing jury charge error; and (d) cumulative error. We disagree. We review a claim of ineffective assistance of counsel by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986).
The assessment of whether a defendant received ineffective assistance of counsel is based on the facts of each case. Ex Parte Scott, 581 S.W.2d 181, 182 (Tex.Cr.App. 1979). Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating counsel's performance. Ex Parte Felton, 815 S.W.2d 733, 735 (Tex.Cr.App. 1991). However, it is possible that a single egregious error of omission or commission by counsel constitutes ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). After proving error, a defendant must also affirmatively demonstrate prejudice. McFarland, 928 S. W.2d at 500. Any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). A strong presumption exists that defense counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 690, 104 S. Ct. at 2064, 80 L.Ed.2d at 695; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000).
The first two areas in which appellant alleges she was denied effective assistance of counsel is by trial counsel's failure to move for an instructed verdict at the close of the State's case and calling inculpatory witnesses. Because a motion for new trial was not filed nor a hearing conducted to establish why counsel did not make move for an instructed verdict and called certain witnesses, we must presume that counsel's conduct was sound trial strategy and fell within a wide range of reasonable representation. Thompson v. State, 9 S.W.3d 808, 813 n.5 (Tex.Cr.App. 1999). Appellant did not overcome the presumption that counsel's conduct might be considered sound trial strategy. Jackson, 877 S.W.2d at 771.
The third area in which appellant alleges she was denied effective assistance of counsel is by trial counsel's failure to request an accomplice-witness instruction be included in the jury charge. As noted previously, an accomplice witness instruction was not required here. Therefore, we cannot say trial's counsel's performance was deficient with respect to the accomplice-witness instruction. Strickland, 466 U.S. at 690.
Finally, appellant alleges she was denied effective assistance of counsel is by trial counsel's cumulative error. The only alleged additional error not previously addressed is trial counsel's failure to file discovery motions. Again, because a motion for new trial was not filed nor a hearing conducted to inquire about possible tactical reasons for various actions or omissions by counsel, we must presume that counsel's conduct was sound trial strategy and fell within a wide range of reasonable representation. Thompson, 9 S.W.3d at 813 n.5. Appellant did not overcome the presumption that counsel's conduct might be considered sound trial strategy. Jackson, 877 S.W.2d at 771. Issue one is overruled. (2)
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. Issues one and three are multifarious. Properly briefed, the issues presented are (1) appellant was denied effective assistance of counsel due to trial counsel's (a) failure to move for an instructed verdict; (b) calling inculpatory witnesses; (c) allowing jury charge error; and (d) cumulative error. The remaining issues then become (2) the trial court erred when it failed to issue an instructed verdict at the close of the State's case on its own motion; and (3) the trial court erred when it failed to include an accomplice witness instruction on the jury charge on its own motion. In the interest of justice, we will treat the appeal as if it had been so briefed.
2. Although appellant raised four issues, all contentions have been addressed and disposed of in the three issues discussed above.
se No. 58,575-E to run consecutive to the sentence in 58,574-E.
Factual Background
In 2005, Appellant became acquainted with the victim, Jonathan, and his mother, Tara, when Jonathan was 12 years old. Jonathan had lived most of his life without a father-figure and Appellant sought to fill that role. He helped Jonathan’s mother by giving Jonathan rides to school and doing other favors. He was added as an emergency contact at Jonathan’s school and he allowed Jonathan to use a spare bedroom in his house from time to time. Jonathan also did odd jobs for Appellant in exchange for gifts.
During the Christmas season in 2006, Appellant and Jonathan went to a Christmas tree lot operated by Troop 80 of the Boy Scouts of America. Jonathan expressed to Appellant an interest in joining the scouts program and, in January 2007, they pursued the idea with Douglas Walker, the Troop 80 committee chairperson. Jonathan immediately joined and Appellant joined the next month as an assistant scoutmaster. According to Walker, Appellant gave the impression that he was Jonathan’s stepfather and never indicated otherwise.
One of the first scouting events Appellant and Jonathan attended was swim night at an indoor pool. Appellant changed clothes in the boys locker room. After Appellant was informed that there was a separate locker room for adults, he nevertheless disrobed, walked around naked, and showered in the boys locker room. According to the testimony of several witnesses, the boys felt that Appellant was observing them as they showered.
Over the course of the next few months, some of the scouts and adult volunteers observed behavior by Appellant toward other scouts, which although not illegal, did violate troop policy. Although the evidence showed that Appellant did not receive a policy or procedure manual, the application he signed to join as an assistant scout master contained information regarding the Boy Scouts of America youth protection policy. Walker also spoke to Appellant about the youth protection policy after Appellant would not leave the boys’ tent during a camping trip. At a scouting event in the summer of 2007, a teenage scout patrol leader observed Appellant pull another teenage scout onto his lap and rub his chest. The patrol leader reported the conduct to a scoutmaster. Other adult volunteers also observed the incident and became alarmed. Thereafter, steps were immediately taken to remove Appellant as an assistant scoutmaster, and he was instructed not to contact any scouts. According to scoutmaster James Spencer, Appellant reacted to his expulsion lightly, laughed, and informed Spencer that a scout named Christian would have to come by his house and “pick up his stuff.”
Jonathan eventually left the scout program. He was not a model student and he suffered from behavioral problems in middle school. According to Glenda Utsey, the liaison officer for Jonathan’s school cluster, he engaged in fighting, had poor attendance, and frequent office referrals. He was not, however, a major offender.
In early September of 2007, after Appellant had been expelled from Troop 80, Jonathan’s mother called Spencer to report that Jonathan was upset, crying, and would not talk to her. She asked him to speak with Jonathan. Accompanied by another representative of Troop 80, Spencer went to Jonathan’s house one evening to speak with him. Jonathan had invited a close friend of his, Robert, to be there that evening. According to Spencer, Jonathan was nervous, anxious, upset, and very embarrassed, but eventually confided in him that Appellant had sexually abused him. They talked until 1:30 the next morning.
Jonathan revealed to Spencer that he and Appellant had engaged in oral sex, Appellant had anally raped him, and Appellant had watched him while he showered. Jonathan also claimed that Appellant threatened to hurt him if he told anyone about the abuse. Spencer recommended to Jonathan’s mother that she get him some professional help in the form of counseling. According to Spencer, Jonathan’s mother sought financial assistance from the State for counseling but was unsuccessful due to “political stuff.” He then recommended an attorney she should consult who might be able to help.
After speaking with Jonathan, Spencer contacted Detective Jeff Higley of the Amarillo Police Department. He was assigned to investigate the case on September 5, 2007. To gather evidence, Detective Higley arranged for a single party consent call to be made by Jonathan to Appellant. Guided by Detective Higley, Jonathan had the following telephone conversation with Appellant:
[Jonathan]:I’m kind of scared.
[Appellant]: Why?
[Jonathan]: I told Robert about you touching and sucking my dick, and he told my mom. She wants me to go take . . . talk to . . take me up to talk to the cops.
[Appellant]: Figures.
[Jonathan]:What should I tell them.
* * *
[Jonathan]:What will happen to you if I tell them what you did?
* * *
[Jonathan]: I don’t know . . . . Did you do that to Robert, too?
[Appellant]: I think so . . . once. But, that’s between Robert and me. Course, now it’s between you and me. I don’t know. Maybe I should go to prison and die. That would be a good thing.
[Jonathan]: Why’d you do that to me?
[Appellant]: Why did you do it to me?
[Jonathan]: I never did it to you.
[Appellant]: laughs OK . . . alright. I don’t know. Suppose I . . . I suppose you could, uh, change the time frame, that it happened while I was, uh, you know, having back surgery and under. Cause a lot of people came to visit me, and I don’t remember anybody. I remember you and [A]. I don’t remember any of the rest . . . . You could just deny it, it’s up to you. . . .
* * *
[Jonathan]: What would happen to you if I told them?
[Appellant]: I don’t know. Lose my business, go to prison. . . .
[Jonathan]:Have you done it to anybody else?
[Appellant]: No.
[Jonathan]: Just me and Robert.
[Appellant]: Yeah. And I don’t know why I did that since then either. Maybe cause it’s been so long since I had [my wife]. Been two years now.
The transcript was read to the jury during Detective Higley’s testimony.
On September 10, 2007, Appellant was asked to come to the police station for an interview. When Detective Higley confronted him with the recorded phone call, he laughed. He gave a written statement in which he claimed to be nothing more than a “fill-in Dad,” and denied having any sexual contact with Jonathan.
On September 21, 2007, Jonathan’s mother filed a civil lawsuit against Appellant on Jonathan’s behalf. She alleged that Appellant coerced Jonathan into an “inappropriate homosexual relationship” and sought actual and punitive damages for various complaints including, but not limited to, sexual offenses and intentional infliction of emotional distress.
A year after the civil suit was filed, Appellant gave his deposition on September 17, 2008. During the criminal trial, the State sought to have Exhibits 2 and 3, both excerpts from Appellant’s civil deposition, introduced into evidence. Based on an extraneous offense contained in the deposition, defense counsel strenuously lodged relevance objections and objections pursuant to Rule 404(b) of the Texas Rules of Evidence. The trial court admitted both exhibits and the excerpts were read to the jury.
As the excerpts were read, the jury heard denials from Appellant regarding any inappropriate conduct with Jonathan. In fact, Appellant accused Jonathan of inappropriately touching him. When questioned whether he had ever had sexual contact with other males, Appellant answered, “I would say yes, but that’s really none of anybody’s business but mine.” Appellant then alluded to sexual experimentation being something all males do. The deposition continued:
Q.Have you ever had homosexual sex with another male?
A. No, sir.
Q.Okay. And by that, I would include oral sex, anal sex –
A.Oh, well, oral – oral, yes.
Q. Okay, Have you ever had oral sex with – as an adult with a child?
A.No, sir. Oh, well, other than with [Robert], and that’s none of your business either, but –
Q.Who’s [Robert]?
A. That’s a friend of [Jonathan’s].
Q. Okay. So you had oral sex with [Robert]?
A. Uh-huh.
* * *
Q. When was this that you had oral sex with Robert?
A. Right after I had back surgery.
Q. And when was that?
A. I think it was in May of 2007.
Q. How old was [Robert] at the time?
A. Fourteen.
Appellant again denied any inappropriate sexual conduct with Jonathan.
Before Jonathan was called to testify during the criminal trial, the State called Robert to the stand. Defense counsel reurged his motion in limine objections (Rule 404(b) and Rule 403), and the trial court instructed the parties to approach before violating the motion in limine. The State expressed its intent to question Robert about what he told Spencer the night Spencer visited Jonathan’s house.
During his testimony, Robert claimed he did not disclose specifics to Spencer about Appellant’s conduct and just told him that “stuff that had gone on” because he did not know Spencer and felt uncomfortable telling him things. He did, however, testify that he told Spencer Appellant would make him take his clothes off and shower while he washed his clothes. Oftentimes, the laundry was not done until the next day and he would sit around Appellant’s house naked. Some times Appellant was also naked.
Jonathan testified after Robert. According to Jonathan, his relationship with Appellant became “weird” in 2006. Appellant began “touching, feeling, taking off his shirt and sitting me on his lap.” The two began engaging in oral sex and according to Jonathan, about a month later, Appellant’s conduct escalated to anal rape. Jonathan testified that the threats made by Appellant began after the anal assaults started. Jonathan also described an incident while he was in the shower in which Appellant got in with him and washed him and touched his private parts.
The final witness to testify for the State was Becky O’Neal, the SANE examiner. According to her testimony, Jonathan was extremely uncomfortable with the exam and had poor eye contact throughout. Jonathan reported that the abuse began in sixth grade and continued through eighth grade. He claimed to have been anally raped 75 times. O’Neal did not find any evidence of trauma to Jonathan’s body; however, the exam showed that Jonathan had suffered multiple penetration of the anus which wore down the area and healed in the form of a scar. She concluded that Jonathan’s story was consistent with the results of her exam.
After the State rested, the defense offered its only exhibit in the form of Plaintiff’s Original Petition in the civil suit filed by Jonathan’s mother. No other evidence was offered and the defense rested.Analysis
By a sole issue, Appellant contends the trial court abused its discretion in admitting extraneous evidence of him assaulting another child. Specifically, Appellant’s complaints are directed at the trial court’s admission of Appellant’s deposition excerpts (State’s Exhibits 2 and 3) and the testimony of Robert. These errors, he maintains, caused him harm due to the severity of his cumulative sentences. We disagree.
I. Standard of Review–Admissibility of Evidence
We review a trial court’s ruling admitting evidence for abuse of discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g)). A trial court abuses its discretion when its decision is outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996). Otherwise we are required to uphold a trial court’s admissibility decision. Montgomery, 810 S.W.2d at 391.
II. Extraneous Offense Evidence
Rule 404(b) of the Texas Rules of Evidence provides that extraneous offense evidence is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). However, it is not rendered inadmissible if the extraneous offense evidence is relevant to a fact of consequence apart from its tendency to show conduct in conformity with character. Johnston v. State, 145 S.W.3d 215, 221-22 (Tex.Crim.App. 2004).
Rule 403 provides in part that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Relevant evidence is generally admissible. Tex. R. Evid. 402. In keeping with the presumption of admissibility of relevant evidence, trial courts should favor admission in close cases. Casey, 215 S.W.3d at 879.
For extraneous offense evidence to be admissible under both Rule 404(b) and Rule 403, that evidence must satisfy the following two-prong test:
∙Is the extraneous offense evidence relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character?
∙Is the probative value of the evidence sufficiently strong so that it is not substantially outweighed by unfair prejudice?
See Johnston, 145 S.W.3d at 220.
“Probative value” refers to the inherent probative force of an item of evidence–that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation–coupled with the proponent’s need for that evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006). “Unfair prejudice” refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Id. Only unfair prejudice provides the basis for exclusion of relevant evidence. Montgomery, 810 S.W.2d at 389.
In our review, we presume that probative value substantially outweighs the danger of unfair prejudice. Id. Thus, the defendant bears the burden to demonstrate that the danger of unfair prejudice substantially outweighs the probative value of evidence. Poole v. State, 974 S.W.2d 892, 897 (Tex.App.–Austin 1998, pet. ref’d). In reviewing a trial court’s Rule 403 ruling, we are to reverse the judgment “rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999).
A. Rule 404(b)
In support of offering excerpts of Appellant’s deposition and the testimony of Robert, the State relied on Powell v. State, 63 S.W.3d 435 (Tex.Crim.App. 2001). In Powell, the Court reversed the appellate court’s decision reversing the trial court for abusing its discretion in admitting extraneous offense evidence. Id. at 436. At trial, the defense presented its theory during its opening statement that the defendant could not have molested the child victim because of the presence of his daughters and others who slept in the living room. Id. at 436-37. This theory was also advanced during cross-examination of the victim. The victim testified that she was never alone with the defendant. During its case-in-chief, the State contravened the defensive theory with four witnesses who testified that the defendant had molested them under almost identical circumstances as the charged offense. Id. at 437.
The defense presented testimony from dozens of girls who spent the night at the defendant’s house without anyone being molested. Id. The State then rebutted that evidence with two additional witnesses who testified similar to the four who had already testified during the State’s case-in-chief. Id. On appeal, the defendant argued the trial court erroneously admitted the testimony of the State’s six witnesses because their testimony was admitted solely for the purpose of character conformity, to-wit: the defendant is a child molester. Id.
The relevant inquiry under the facts of Powell was whether the evidence was admissible for its non-character conformity purpose. Id. at 439. Such evidence was admissible to rebut a defensive theory which gave the evidence relevance apart from character conformity. Id. The Powell Court added that the trial court’s limiting instruction clearly showed the evidence was admitted for its non-character conformity purpose. Id.
Some years after Powell, the Court decided in Bass v. State, 270 S.W.3d 557, 563 (Tex.Crim.App. 2008), that case law supports a decision that a defense opening statement may open the door to the admission of extraneous offense evidence to rebut the defensive theory presented in the defense opening statement. In Bass, defense counsel alleged in his opening statement that the victim’s allegations of molestation were “pure fantasy” and “pure fabrication.” Id. at 557. Defense counsel continued that the allegations were contrary to the defendant’s character because he was a pastor and minister; “he is the real deal and the genuine article.” Id. at 558. During its case-in-chief, the State was permitted to present extraneous offense evidence of other girls who had been molested in the defendant’s church office. Id. at 558-59.
Bass complained on direct appeal that the extraneous offense evidence was inadmissible under Rule 404(b) because it was offered solely for the purpose of character conformity. Id. at 562. The appellate court held the trial court abused its discretion in admitting the evidence to rebut a “fabrication” defense even though the evidence would have been admissible to rebut a “frame-up” or “retaliation” defense. Bass v. State, 222 S.W.3d 571, 575-78 (Tex.App.–Houston [14th Dist.] 2007). Finding no categorical distinctions between “fabrication” defenses and “frame-up” or “retaliation” defenses, the Court of Criminal Appeals concluded the trial court did not abuse its discretion in admitting the extraneous offense evidence to rebut the defensive theory of fabrication and reversed the appellate court. Bass, 270 S.W.3d at 563.
In the instant case, the defense made its opening statement immediately after the State’s opening statement. Defense counsel recalled the movie “Wall Street” and quoted the main character saying, “greed is good, greed is the American way.“ Counsel continued with his defensive theory that Jonathan’s allegations against Appellant were motivated by money. Counsel then mentioned the civil lawsuit for monetary damages to which the State objected as being improper opening argument. The trial court overruled the State’s objection and defense counsel continued to talk about the civil lawsuit. “The evidence is going to show in this case that shortly after the Boy Scouts said [Appellant] get out, that an opening was seen, a chance to get money was seen.” Counsel then suggested that Jonathan’s allegations worsened as the civil lawsuit progressed. In his closing argument, defense counsel reiterated the theory that the civil lawsuit for damages was the motive behind the allegations Jonathan made against Appellant.
The defense waved the lawsuit in the face of the jury during opening argument, yet vehemently objected during trial when the State offered excerpts from Appellant’s civil deposition. Under Bass, the defense opening statement opened the door to admission of extraneous offense evidence. 270 S.W.3d at 558. The defense was theorizing that Jonathan fabricated the allegations against Appellant. By offering the excerpts from Appellant’s deposition in which he admitted to performing sexual acts with Robert, and by offering Robert’s testimony that “stuff had gone on” with Appellant, the State was attempting to show that Appellant’s claim of fabrication-for-money defense was less probable. By showing that the allegations were less likely to be fabricated, the extraneous offense evidence directly rebutted Appellant’s defensive theory and had logical relevance apart from character conformity. Id. at 562-63.
Additionally, the trial court gave the jury the following limiting instruction in all five charges:
[Appellant] is on trial solely on the charge contained in the indictment. In reference to evidence, if any, that [Appellant] has previously participated in recent transactions or acts, other than that which is charged in the indictment in this case, you are instructed that you can not consider such other transactions or acts, if any, for any purpose unless you find and believe beyond a reasonable doubt that [Appellant] participated in such transactions or committed such acts, if any; and even then you may only consider the same for the purpose of determining intent or knowledge or motive or opportunity or preparation or plan or identity or absence of mistake or accident, if it does, and for no other purpose.
Appellant relies on Daggett v. State, 187 S.W.3d 444 (Tex.Crim.App. 2005), in which the Court found error in the admission of extraneous offense evidence which was similar to the charged offense and reversed the case and remanded it for a harm analysis. Daggett, however, involved the “plan” exception to the admission of extraneous offense evidence and not evidence to rebut a defensive theory. Additionally, the court’s limiting instruction in Daggett, when considered with the State’s closing argument, improperly permitted the jury to consider the challenged evidence for its substantive value. We choose to apply Bass, a more recent pronouncement from the Court of Criminal Appeals, which permits the admission of extraneous offense evidence to rebut the defensive theory of fabrication. 270 S.W.3d at 562-63.
We conclude that the extraneous offense evidence had relevance apart from character conformity. Thus, we must now evaluate the evidence under Rule 403 to see if its probative value outweighed its prejudicial effect.
B. Rule 403
While evidence may be admissible under Rule 404(b), the trial court may exercise its discretion to exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). 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 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 repeat evidence already admitted. See Casey, 215 S.W.3d at 879.
Based on a review of the entire record, we find the deposition excerpts and Robert’s testimony were strongly probative to rebut the defensive theory that Jonathan fabricated the allegations. Thus, as proponent of the evidence, the State established a need for the evidence. Although the evidence could have had a tendency to suggest conviction on an improper basis, the trial court properly instructed the jury on the limited purpose for which the extraneous offense evidence was admitted. The evidence was not the sort that would have caused confusion or distraction of the main issue. Finally, Robert’s testimony was very brief compared to that of eight other witnesses, and the reading of the two deposition excerpts which amounted to approximately sixteen pages of text from a record containing multiple volumes and hundreds of pages did not consume an inordinate amount of time. Viewing the totality of the factors, we conclude the trial court did not abuse its discretion in admitting the challenged extraneous offense evidence. Appellant’s sole issue is overruled.
Conclusion
The trial court did not abuse its discretion in admitting State’s Exhibits 2 and 3 and the testimony of Robert to rebut Appellant’s defensive theory that Jonathan had fabricated the allegations against him for financial gain from a civil lawsuit.
Consequently, the trial court’s judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.