NO. 07-07-0345-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 6, 2009
______________________________
ROBERT BOWERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 16650-C; HONORABLE ANA ESTEVEZ, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINIONAppellant Robert Paul Bowers appeals from his conviction of the offense of indecency with a child and the resulting sentence of eighteen years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008), and certifies that there are no non-frivolous issues to appeal. Agreeing with appointed counsel’s conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm the trial court’s judgment.
In December 2004, appellant was indicted for the offense of indecency with a child. He retained counsel. In July 2007, the matter proceeded to jury trial wherein the State presented evidence to show that in July 2004 eleven-year-old V.H. was staying overnight with other children in an apartment appellant also occupied with his wife. V.H., fourteen by the time of trial, testified that during the night she awoke to find appellant in the room, removing his hand from under her shorts. V.H. testified that after leaving the room briefly, appellant returned, lay down beside her and made V.H. wrap her hand around his penis. He then covered her hand with his and moved back and forth until another child in the room appeared to wake. When V.H. resisted his further attentions, appellant kissed her on the lips and left the room. V.H.’s aunt testified that several months later, while they were discussing V.H.’s upcoming birthday celebration, V.H. told her what appellant did to her. The aunt’s testimony of V.H.’s statement to her was consistent with V.H.’s version of the events of the incident. Additional evidence, including a video-recorded interview of V.H., was introduced that was consistent with V.H.’s trial testimony.
Appellant’s statement to police was entered into evidence at trial. In that statement, appellant contends that on the night in question, he came into the bedroom where the girls were sleeping to check on them. According to appellant, V.H. woke up, reached out, and put her hand on his penis. He said he instantly pulled away and told her that her curiosity would get her into trouble and that she had a long life ahead of her that she did not want to ruin. He stated he left the room and went to bed by himself.
Following the presentation of the evidence, the jury found appellant guilty as charged in the indictment and sentenced him to imprisonment for a term of eighteen years. Appellant timely filed his notice of appeal.
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to Anders in which he certifies that he has diligently reviewed the record and, in his professional opinion, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds on which a non-frivolous appeal arguably can be predicated. The brief discusses the procedural history of the case and appellant’s jury trial. Counsel has identified potential issues, and setting forth the applicable law, describes why the issues are not arguably meritorious. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant has filed a response in which he raises three issues.
In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
In his brief, counsel first notes the possibility that appellant might argue he had received ineffective assistance of counsel in these proceedings. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (establishing standard for effective assistance of counsel). We agree with counsel that the record contains no support for such a contention.
Counsel then discusses the legal and factual sufficiency of the evidence presented at trial to support appellant’s conviction for indecency with a child. Appellant raises the same in his response. Following an analysis of the evidence presented and the applicable law, counsel concludes the evidence presented was both legally and factually sufficient to support appellant’s conviction. After a complete review of the record, we agree with appellate counsel that the grounds identified do not arguably support an appeal.
In his response, appellant raises a potential issue not raised by appellate counsel. Appellant contends the State engaged in improper jury argument during both phases of his trial. In discussing this issue, appellant’s response points to the testimony of certain witnesses and contends the testimony was false. It is the province of the jury to resolve or reconcile conflicts in testimony, and the jury is privileged to believe all, some or none of the testimony of any particular witness. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Washington v. State, 215 S.W.3d 551, 553 (Tex.App.–Texarkana 2007, no pet.). Appellant’s response also references the prosecutor’s opening and closing arguments and asserts that the State utilized argument to place prejudicial matters that were outside the record before the jury. Appellant further argues that the State aroused passion and prejudices of the jury and invited speculation of the jury by making certain arguments. There are four generally recognized areas of proper jury argument: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel’s argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). After reviewing the record in its entirety, we do not find the grounds identified by appellant arguably support an appeal.
Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. We agree it presents no arguably meritorious grounds for review. Accordingly, we grant counsel's motion to withdraw and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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.