Affirmed and Memorandum Opinion filed May 24, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-01170-CR
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RONALD DEE FORD, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 951,121
M E M O R A N D U M O P I N I O N
Ronald Ford appeals a conviction for aggravated sexual assault of a child[1] on the grounds that the trial court erred in: (1) excluding two exhibits offered for impeachment; and (2) admitting evidence of extraneous offenses.[2] We affirm.
Appellant=s first issue challenges the trial court=s exclusion of two exhibits (the Aexhibits@) that appellant contends supported his defense theory that the complainant fabricated her allegations against him so she could go live with her mother.
Before offering the exhibits into evidence during cross-examination of the complainant, appellant=s counsel laid a predicate establishing that: (1) the complainant recognized the exhibits; (2) she handwrote them; (3) she gave one to a friend; and (4) the other was a poem. The State objected to the exhibits on the grounds that they were not relevant and no proper predicate had been laid. Defense counsel responded that the exhibits went:
to the defendant=s position that, one, she is not a truthful person and she is writing about a girl by the name of Iranda, which [sic] telling them Iranda is a liar and she can=t help herself by lying. And the second one is a letter to Demecia in which she says, AI need all the details. I can=t go forward without the details.@
The trial court sustained the State=s objection based on relevance, but allowed defense counsel to question the complainant about the exhibits.
Although appellant contends that the exclusion of the exhibits impaired his right to cross-examine the complainant, he does not explain how this was true in that the trial court allowed him to fully question her regarding the exhibits. Appellant also contends that the jury should have been allowed to accept or reject the exhibits as proof of a conspiratorial fabrication. However, he cites no portions of the exhibits that refer to any facts in this case, support a conspiratorial fabrication regarding the complainant=s allegations, or could not have been brought to the jury=s attention through questions addressed to the witness. Similarly, appellant=s predicate for introducing the exhibits failed to establish either that they had any relevance to issues in the case or were otherwise admissible, such as under Texas Rule of Evidence 613. Under these circumstances, his first issue does not demonstrate error in excluding the exhibits and is overruled.
Appellant=s second issue challenges the trial court=s admission of extraneous offense evidence as lacking relevance other than to show character conformity and as being unfairly prejudicial. See Tex. R. Evid. 403, 404(b).
Extraneous offense evidence is not admissible to show character conformity but can be admissible if relevant for another purpose, such as to rebut a defensive theory. See Tex. R. Evid. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). In this case, a central defense theory, presented during opening statement, was that the complainant fabricated the allegations so she could live with her mother rather than appellant. The extraneous offense evidence consisted of the testimony of appellant=s step-sister and half-sister that he had sexually abused each of them when they were a teenager and child, respectively. Apart from character conformity, this evidence was relevant to show similar prior misconduct by appellant in circumstances that did not involve the complainant wanting to live with her mother as a possible motive for fabricating the allegation.[3]
To sustain his rule 403 challenge, appellant would have to demonstrate that the probative value of the evidence was so substantially outweighed by the danger of unfair prejudice that the decision to admit the evidence was not even within the zone of reasonable disagreement. See Tex. R. Evid. 403; Moses, 105 S.W.3d at 626. However, appellant=s argument in this regard is based on the premise that the evidence had no probative value other than to show character conformity, and, thus, that the State had no legitimate need for it (in which case, it would be inadmissible under rule 404(b) without regard to rule 403). As to the probative value of the evidence, noted above, to rebut the defensive theory of fabrication, appellant=s contentions do not demonstrate unfair prejudice that so substantially outweighed the probative value that admitting the evidence was outside the zone of reasonable disagreement. Accordingly, appellant=s second point of error is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed May 24, 2005.
Panel consists of Justices Yates, Edelman, and Guzman.
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury convicted appellant and assessed punishment of thirty-five years confinement.
[2] Rulings on the admissibility of evidence are reviewed for abuse of discretion based on what was before the trial court at the time the ruling was made and will be upheld if supported by the record and correct under any theory of law applicable to the case. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
[3] See Wheeler v. State, 67 S.W.3d 879, 887-88 (Tex. Crim. App. 2002) (holding that the extraneous offense evidence served to rebut the defensive theory of frame-up by showing appellant=s similar prior misconduct in circumstances involving neither money nor revenge as possible motives for alleging the misconduct against him).