NO. 12-01-00201-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBBIE LAWRENCE WILLIAMS,§ APPEAL FROM THE 114TH
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Robbie Williams was convicted of sexual assault of a child by a jury and was assessed punishment at eleven years in prison. In three issues, Appellant complains that the trial court erred when it admitted evidence of extraneous offenses during the guilt/innocence stage of the trial. We reverse and remand for a new trial.
Background
Appellant lived with his wife and three stepdaughters. On the occasion in question, the complainant, one of Appellant's stepdaughters, accompanied Appellant to a trash dumpster located at a nearby church. On the way back to their house, Appellant picked up the complainant and, according to complainant's testimony, penetrated her vagina with his finger and then licked her genitals with his tongue. Appellant's wife testified that Appellant had called her from work on the morning of the alleged assault and admitted that he had touched and licked complainant's genitals, but told her that he did so because he knew the complainant had a boy in her room that same evening and he was trying to determine if the complainant had engaged in sex with him.
During direct examination by the State, the complainant explained how Appellant routinely picked her up, as well as her sisters. On cross, defense counsel asked whether or not Appellant had ever "done anything" to her or her sisters before, to which the complainant answered negatively. The State then offered the testimonies of Glenda Brown and Keisha Hunter (aunt and cousin of the complainant) to show that Appellant had sexually assaulted or attempted to sexually assault other women. Appellant objected to this evidence as inadmissible extraneous offenses. The trial court overruled his objection and allowed both women to testify.
Brown testified that on two occasions, Appellant drove her to wooded areas and fondled her breasts and penetrated her vagina with his fingers. Another incident occurred when Brown went to Appellant's house to see her sister, at which time Appellant grabbed her, pulled up her shirt, and sucked on her breast. Brown also stated that there were numerous other occasions, about which she did not remember the specific details, when Appellant touched her sexually without her consent.
Hunter testified that she saw Appellant at a bootlegger's house, and recognized him as one of her father's friends. Appellant offered her $20 to have sex with him, which she refused. Hunter went on to state that Appellant told her that her father wanted her home, and that he would take her there. Appellant then drove to some woods, but after Appellant grabbed her and asked her again to have sex with him, Hunter jumped out of the moving pickup and ran to the nearest house to call her father. She testified that she reported the incident to police, but that nothing ever came of her complaint.
Evidence of Extraneous Offenses
In his first issue, Appellant complains that the trial court abused its discretion when it ruled that the testimonies of Brown and Hunter concerning extraneous offenses were admissible due to defense counsel's "opening the door" during cross-examination of the complainant. The State questioned the complainant as follows:
Q. When he headed back towards the house, was that when he picked you up?
- Yes. He grabbed me and picked me up.
- What did you do when he grabbed you?
- I tried to let go, but he's strong.
- Was he very strong?
- Yes.
- Have you seen him pick up your sisters before?
- Yes.
- Okay. Not unusual for him to pick y'all up?
- No.
Defense counsel then cross-examined the complainant:
- Mr. Williams is your stepdad; is that correct?
- Yes.
- How long had he . . . him and your mom been married before this happened?
- About ten years, I think.
- Okay, in those ten years, he's never done anything to you or your sisters; is that correct?
- Yes.
The State argues that Appellant's cross-examination of the complainant opened the door to evidence of a sexual assault and an attempted sexual assault. Further, it maintains that the testimony of extraneous offenses went to design, intent, opportunity, motive, and plan. Also, according to the State, the testimonies of complainant's cousin and aunt were admissible to show absence of mistake or accident, since Appellant's wife testified that he told her he had touched her daughter's genitals in order to check for sperm to see if she was having sex. Appellant argues, on the other hand, that the State left the impression that there was something sexual about Appellant picking up the complainant and her sisters, which he wished to clarify, and that his questions in no way opened the door to the testimony of two unrelated witnesses. He also contends that the only purpose of the two women's testimonies was to demonstrate that Appellant's character was one of a sexual predator and that he acted in conformity with that character when he assaulted the complainant. Further, Appellant maintains that even if the extraneous offenses were relevant to issues such as mistake or accident or intent, testimony of those occurrences was much more prejudicial than probative.
Standard of Review
The standard of review in determining whether a trial court erred in its admission of evidence is abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). It is a question of whether the court acted "without reference to any guiding rules and principles," or whether the act was "arbitrary or unreasonable. Id. at 380. We will uphold the trial court's decision on the admission of evidence if it is correct on any theory of law applicable to the case. See McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).
Evidence of a person's bad character is generally not admissible for the purpose of showing he acted in conformity therewith. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Under the Texas Rules of Evidence, this includes evidence of "other crimes, wrongs, or acts." Tex. R. Evid. 404(b). The rule exists, in large part, to counter the possibility that evidence may be admitted to show a defendant's corrupt nature from which the jury may then render a verdict not on the facts of the case before them but, rather, on their perception of the defendant's character. Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996). Under Rule 404(b), extraneous evidence introduced solely to show character conformity is inadmissible. Id. However, when read in light of Rules 401 and 402, if evidence is introduced for a purpose other than character conformity, has relevance to a "fact of consequence" in the case, and remains free of any other constitutional or statutory prohibitions, it may be admissible under Rule 404(b). Id. at 709-10.
Extraneous offenses may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the probative value is not substantially outweighed by its prejudicial effect. Montgomery, 810 S.W.2d at 377. The Texas Court of Criminal Appeals has also held that extraneous evidence is admissible to rebut defensive theories. Powell, 63 S.W.3d at 438. However, merely introducing evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, by itself, make that evidence admissible. Rankin, 974 S.W.2d at 709. The extraneous offense must also be relevant to a "fact of consequence" in the case. Id.; Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992).
Plan or Scheme to Establish Identity
In Owens, the only ultimate fact in dispute was whether the appellant committed the charged offense, i.e., aggravated sexual assault of a child. Id. at 916. There was no dispute as to identity, motive, intent or any of the other exceptions listed in rule 404(b). Id. The jury had the testimony of the appellant and the complainant, appellant's daughter; the State then produced another of the appellant's daughters as a rebuttal witness after the appellant denied that the offense occurred, and other testimony "implicitly raised" the defensive theory that the complainant was trying to frame the appellant. Id. at 914. The Court of Criminal Appeals held that evidence of an extraneous offense tending to show the appellant's "system" could not assist the jury in its determination of whether or not the appellant molested the complainant except by showing character conformity in violation of Rule 404(b). Id. Extraneous offense evidence demonstrating a unique system would only be admissible when the material fact at issue is the defendant's identity. Id.
In the case before us, the prosecutor raised the issue of Appellant's "system" in closing argument as follows:
You heard from Glenda Brown about how a series of times when this defendant got her alone in an isolated area and made unwanted sexual advances on her. You know what really got to me was when Mr. Conine kept asking her or kept trying to suggest that this was consensual, that she wanted it somehow. You know what she said? She said, I'm not the bad guy here. And she's right. She's not the bad guy. Keisha Hunter is not the bad guy, and Jessica Brown is not the bad guy. And you know why their testimony is important? Because it corroborates what Jessica told you, because there's some consistent things that happened between all three of those girls. (emphasis added).
In order for a court to correctly admit evidence of extraneous offenses to show the appellant's system or modus operandi, "there must be a showing that the extraneous offense which was committed by the defendant was 'so clearly identical in method [to the charged offense] as to earmark them as the handiwork of the accused'" Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) (quoting E. Cleary, McCormick's Handbook of the Law of Evidence 449 (2d ed. 1972)). The State must show more than the mere repeated commission of crimes of the same type or class: "The device used must be so unusual and distinctive as to be like a signature." Id. "If there is no sufficiently distinctive characteristic, then the relevancy of the evidence cannot outweigh its prejudicial potential." Id. In the present case, however, the similarities of the extraneous offenses and the charged offense in this case are not so unusual as to signal conclusively that the three offenses were the handiwork of the same individual. Further, the issue of identity is not present in this case. Therefore, the extraneous offenses are not admissible under the guise of "system" to show identity.
Intent and Rebuttal of Defensive Theory of Mistake or Accident
The material fact in dispute here is whether Appellant digitally penetrated or licked his stepdaughter's genitals. Intent is not at issue in this case. It is immaterial, legally, whether Appellant touched complainant for his own sexual gratification or to determine if complainant had had sexual relations with her boyfriend. If the act itself was committed, then it constituted sexual assault. See Tex. Pen. Code Ann. § 22.011(a)(2) (Vernon 1994). Consequently, the fact that the extraneous offenses would tend to show that Appellant did not mistakenly or accidentally penetrate or lick complainant's genitals is irrelevant as to showing Appellant's intent. Also, if Appellant's act of checking to see if his stepdaughter had engaged in sex was an implicit defensive theory in this case, it was an irrelevant theory with no legal consequence. (1) Further, we cannot say that this "defense" was ever raised, either explicitly or implicitly. (2) The extraneous offenses are not necessary to establish the element of intent (because intent is not at issue) or to negate the claim of accident (because "mistake or accident" is not a legally cognizable defense against a charge of sexual assault); consequently, the testimonies of Brown and Hunter are not admissible on either of those bases.
Rule of Optional Completeness
One of the principles on which the trial court, on the record, admitted the evidence of the extraneous offenses was the rule of optional completeness. Tex. R. Evid. 107. Specifically, the trial court ruled as follows:
The Court: Okay. After looking over the record, this is what I found. First, during cross-examination on page 169, the following was asked of the complainant by Mr. Conine: "Okay, in those ten years, he's never done anything to you or your sisters; is that correct?" And the answer is "yes." I also found in redirect, Ms. Cashell asked the complainant: "Your sisters get along with him?" And the answer was, "I guess, yes."
. . . .
However, I am convinced that Mr. Conine did open the door because with this question and answer the jury has been given a false impression that this kind of event had never happened before involving either this complaining witness or -- I believe the other two witnesses you intend to call are her sisters?
Ms. Cashell: No sir, they are not her sisters. One is a cousin and one is an aunt.
The Court: Okay. And the gist of that testimony would be?
Ms. Cashell: That he had attempted to sexually assault both of them.
The Court: Okay. I am going to rule that this testimony is admissible in order to rebut the false impression that has been left. That's my ruling.
After hearing the testimony of the two potential witnesses outside the presence of the jury, the trial court stated the following:
Okay. Well, I am satisfied that the State is correct with respect to the door having been opened and a false impression having been created. Certainly, the two witnesses . . . that have appeared this morning, it will be up to the jury to determine whether or not they are credible. And what we --- what I may think about the credibility has no bearing. . . .Certainly, under 404(b), I believe it is, evidence of a common design, scheme, that kind of thing, that kind of evidence is admissible.
The purpose of the rule of optional completeness is to reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only part of an act. Evans v. State, 643 S.W.2d 157, 161 (Tex. App.-Austin 1982, no pet.). Under this provision, rebuttal testimony is admissible, even though it contains evidence of extraneous offenses. Id.; Callaway v. State, 818 S.W.2d 816, 827 (Tex. App.-Amarillo 1991, pet. ref'd). When defense counsel pursues a subject that would ordinarily be outside the realm of proper comment by the prosecutor, he opens the door and creates a right of reply for the State. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977). Once a matter is injected into the proceeding, evidence to fully explain the matter becomes relevant and admissible, even though the evidence might not otherwise be admissible. Id. Rule 107 is designed to guard against "the possibility of confusion, distortion or false impression that could rise from the use of a portion of an act, writing, conversation, declaration or transaction out of proper context." Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App. 1987). When a defendant opens the door on an issue by attempting to present an incomplete picture of an incident, the State is permitted to complete the picture. Skillern v. State, 890 S.W.2d 849, 864 (Tex. App.-Austin 1994, pet. ref'd). However, a party may not stray beyond the scope of the invitation. Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997). The rule only permits admission of evidence on the same subject as previously admitted. Roman v. State, 503 S.W.3d 252, 253-54 (Tex. Crim. App. 1974); Lawson v. State, 854 S.W.2d 234, 238 (Tex. App.-Austin 1993, pet. ref'd).
In the case before us, the complainant was asked if Appellant had ever done anything to her or her sisters before the night of the charged offense. She said no. The State then argued that the cross-examination of the complainant in this regard left a false impression with the jury that Appellant had never sexually assaulted anyone, thus paving the way for admission of the extraneous offenses. We disagree. If, in fact, Appellant had previously acted inappropriately with any of his stepdaughters, evidence of an extraneous offense against any one of them would be admissible under the rule of optional completeness. Instead, the testimony of a cousin and an aunt were admitted. In this case, the State clearly strayed beyond the scope of the invitation. Accordingly, we hold that evidence of the extraneous offenses are not admissible under the rule of optional completeness.
Conclusion
On this record, proof of the sexual assault against Glenda Brown and the attempted assault against Keisha Hunter serves no probative function other than to show Appellant as a person who commits sexual assaults in general, and, therefore, was more likely to have committed the sexual assault against the complainant, an inference rule 404(b) strictly forbids. We cannot find that evidence of the extraneous offenses has any true relevance apart from Appellant's character or his actions in conformity therewith. Rule 404(b) proscribes the admission of such evidence. Because the trial court failed to identify any legitimate reason for allowing evidence of these extraneous offenses and our independent review of the record reveals none, we hold that it was an abuse of discretion for the trial court to admit evidence of them.
Harm Analysis
We now consider whether the trial court's error is reversible. Because the erroneous admission of an extraneous offense is not constitutional in nature, (3) we must determine if it affects a substantial right. Tex. R. App. P. 44.2(b). If the error does not affect a substantial right, it is harmless. (4) Id. Neither the State nor Appellant must demonstrate harm when an error has occurred. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). Rather, it is the appellate court's duty to assess harm after a proper review of the record. Id. at 5. This means that the appellate court should consider everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In addition, the appellate court may consider the trial court's instructions to the jury, the theories of the case that the State and defendant have espoused, arguments to the jury and relevant voir dire. Id.
A substantial right is violated when the error made the subject of the appellant's complaint had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). However, if the reviewing court harbors "grave doubts" that an error did not affect the outcome, that court must treat the error as if it did. United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986). The United States Supreme Court has defined "grave doubts" to mean "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." O'Neal v. McAninch, 513 U.S. 432, 435, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947 (1995). If the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Id.
Brown's and Hunter's testimonies undoubtedly had more than a slight effect upon the jury's decision. They gave detailed accounts of their assaults, identifying Appellant as the man who assaulted them. Brown testified that Appellant sexually assaulted her in much the same way he was accused of sexually assaulting the complainant. And Hunter's age at the time of the attempted assault was the same as the complainant's in this case. (5) Further, the State emphasized the evidence of the extraneous offenses and argued that they "corroborated" complainant's testimony. Given that complainant was the only witness to the event, Brown's and Hunter's testimony significantly bolstered the State's case. Their damaging testimony almost certainly played a significant role in Appellant's conviction. This is especially true since there was absolutely no physical evidence of a sexual assault. Further, testimony of extraneous offenses constituted a third of the State's case (fifty pages out of one hundred and sixty-three pages of testimony). In light of these facts, we have grave doubts that the trial court's error in allowing evidence of the extraneous offenses did not affect the outcome. Therefore, we must treat the error as having a substantial and injurious effect upon the jury's verdict. Accordingly, we find the error harmful and reversible. (6)
We reverse Appellant's conviction and remand the case for a new trial.
SAM GRIFFITH
Justice
Opinion delivered February 19, 2003.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)
1. 2. 3. 4. 5. 6.