Opinion filed December 5, 2013
In The
Eleventh Court of Appeals
__________
No. 11-12-00023-CR
__________
FREDERICK MUNGER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 27th District Court
Bell County, Texas
Trial Court Cause No. 62946
MEMORANDUM OPINION
Frederick Munger appeals his jury conviction of aggravated sexual assault.1
The jury assessed Appellant’s punishment at confinement for a term of twenty
years. We affirm.
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TEX. PENAL CODE ANN. § 22.021 (West Supp. 2013).
I. Evidence at Trial
Appellant’s granddaughter, R.M., testified that, when she was eight years
old, he sexually assaulted her at his house. Appellant asked her to sit on his lap
and when she did he began to rub her stomach and legs. Appellant then covered
both of them with a blanket, put his hand in her pants, and rubbed her genitals.
Appellant then took off R.M.’s shorts and underwear, lifted her up, and inserted his
penis into her vagina. He had sexual intercourse with R.M. for two to three
minutes. He stopped after R.M. loudly yelled “ouch.” Appellant told her not to
tell anyone what had happened because he did not want to lose her.
For four years, R.M. never told anyone about Appellant’s sexual assault; she
finally confided in Patricia Dube, a friend of R.M.’s mother. As the State’s first
outcry witness, Dube testified that R.M. told her that Appellant had sex with R.M.
when she was eight years old.
Dube said that R.M. told her that Appellant asked R.M. to sit on his lap.
After R.M. got on Appellant’s lap, he pulled down her pants and his own pants and
inserted his penis into her vagina. R.M. told Dube that Appellant stopped when
R.M. yelled “ow.” R.M. also told Dube that Appellant had told R.M. not to tell
anyone what had happened because it would break up the whole family.
Dube indicated that R.M. had not told her about an instance when Appellant
digitally penetrated R.M. However, R.M. had told Susan Schanne-Knoblock, a
forensic interviewer for the Child Advocacy Center, about that incident. The State
called Schanne-Knoblock as an additional outcry witness.
Appellant objected and argued that the testimony violated Section 2 of
Article 38.072 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC.
ANN. art. 38.072, § 2 (West Supp. 2013). Appellant also contended that the
testimony was an improper attempt at bolstering and that the testimony was
cumulative of R.M’s testimony. The State argued that, because the testimony
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involved a separate event of sexual abuse by Appellant, it could call Schanne-
Knoblock as an additional outcry witness to that specific event.
After the trial court held a hearing outside the presence of the jury, it ruled
that Schanne-Knoblock could testify as an additional outcry witness. Schanne-
Knoblock testified that R.M. told her that Appellant had put his fingers in her
vagina.
The State also called Appellant’s niece, T.V., to testify about Appellant’s
alleged sexual assault upon her. The trial court held a second hearing outside the
presence of the jury to decide whether T.V. could testify about the sexual abuse.
The State argued that the testimony was admissible to rebut Appellant’s theory of
fabrication. Appellant argued that the testimony was inadmissible in the
guilt/innocence phase. The trial court admitted the testimony to show Appellant’s
course of conduct, intent, and motive and also to rebut his fabrication defense.
T.V. testified that, when she was approximately five to seven years old,
Appellant rubbed her in and around the lip area of her genitals “like he wanted to
put a diaper” on her, but she did not wear diapers. Appellant pretended to clean
her with a “baby wipe of some sort,” but she had not urinated or defecated on
herself. T.V. testified that she did not understand what Appellant was doing at the
time but that she now believed that Appellant sexually assaulted her.
Appellant requested that the trial court instruct the jury on the limited
admissibility of T.V.’s testimony; the trial court gave the limiting instruction to the
jury after T.V. testified.
II. Issues Presented
Appellant presents two issues on appeal, which we paraphrase as follows:
(1) Did the trial court abuse its discretion when it allowed Schanne-
Knoblock to testify as an outcry witness for the State?
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(2) Did the trial court abuse its discretion when it allowed T.V. to testify
about alleged sexual abuse by Appellant?
The answer to both questions, as we explain below, is “no.”
III. Standard of Review
A trial court’s decision to designate an outcry witness is reviewable under an
abuse-of-discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.
App. 1990). An abuse of discretion will not be found unless the trial court’s
decision is outside the zone of reasonable disagreement. Weatherred v. State, 15
S.W.3d 540, 542 (Tex. Crim. App. 2000).
A trial court’s ruling on the admissibility of extraneous offenses is also
reviewed under an abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d
336, 343 (Tex. Crim. App. 2009). Whether extraneous offense evidence has
relevance apart from character conformity, as required by Rule 404(b) of the Texas
Rules of Evidence, is a question for the trial court. Id. A trial court’s ruling will
generally be upheld if the evidence shows that (1) an extraneous transaction is
relevant to a material, non-propensity issue and (2) the probative value of that
evidence is not substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading of the jury. Id. at 344; see TEX. R.
EVID. 403, 404(b).
IV. Analysis
In his first issue, Appellant contends that the trial court abused its discretion
when it admitted the hearsay testimony of Schanne-Knoblock. Appellant argues
that Schanne-Knoblock’s testimony did not meet the outcry witness exception set
forth in Article 38.072, section (2)(a).
Article 38.072 allows for the admission of hearsay statements made by child
abuse victims under the age of fourteen. To qualify for the hearsay exception, the
statement must describe the alleged offense and must have been made to the first
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person, eighteen years of age or older, other than the defendant, to whom the child
made a “statement about the offense.” Garcia, 792 S.W.2d at 91. The Texas
Court of Criminal Appeals has interpreted “statement about the offense” to mean a
statement that in some discernible manner describes the alleged offense. Id. at 91.
The statement must be more than a general allusion that something in the area of
child abuse occurred. Id.
An outcry witness is specific to an event, rather than a person. Lopez v.
State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011) (citing Garcia, 792 S.W.2d
at 91). Hearsay testimony from several outcry witnesses may be admissible under
Article 38.072 if the witnesses testify about different events. Id. (citing
Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d)).
Only one outcry witness may testify as to a single event. Id.
This court previously addressed the issue of multiple outcry witnesses in
Turner v. State, 924 S.W.2d 180 (Tex. App.—Eastland 1996, pet. ref’d). Although
the victim in Turner first told a counselor that the defendant penetrated her vagina
with his finger, she did not tell the counselor that the defendant had also penetrated
her vagina with his penis. 924 S.W.2d at 183. The first time the victim revealed
that the defendant had penetrated her vagina with his penis was during a
conversation with a police officer; thus, that police officer was properly allowed to
testify about this separate event of abuse as a second outcry witness. Id.
In this case, Dube testified that R.M. only told her that Appellant penetrated
her vagina with his penis. When the prosecutor asked Dube whether R.M. had told
her that Appellant also touched her genitals with his hand, Dube testified as
follows:
Q: Did she tell you if the defendant, Frederick Munger, touched
her with his hands?
A: No.
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Q: She didn’t tell you that?
A: Just touched her stomach and--
Q: Okay, that he touched her stomach with his hand, but she
did not tell you that he touched her privates or his [sic] genitals with
her [sic] hand?
A: I don’t recall.
Q: That’s okay. And you are just testifying [to] what you can
recall, right?
A: Yes.
Appellant mischaracterizes Dube’s testimony when he argues that Dube
could not remember whether R.M. had told her about any digital penetration by
Appellant. Rather, Dube’s initial response to the question was “No,” and when
pressed by the State’s attorney, Dube responded that she recalled no such
conversation. Dube, as the State’s first outcry witness, testified to a single event of
sexual assault that occurred when Appellant inserted his penis into R.M.’s vagina.
Schanne-Knoblock testified to a separate event of sexual assault that Appellant
committed when he inserted his fingers into R.M.’s vagina.
Because there was evidence at trial that Schanne-Knoblock was the first
adult to hear R.M.’s outcry that Appellant had digitally penetrated her vagina, the
trial court’s decision to allow Schanne-Knoblock to testify as an outcry witness
was not outside the zone of reasonable disagreement. The trial court did not abuse
its discretion when it allowed Schanne-Knoblock to testify as an outcry witness.
Appellant’s first issue is overruled.
In his second issue, Appellant contends that the trial court abused its
discretion when it allowed T.V. to testify. At trial, Appellant denied T.V.’s and
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R.M.’s allegations. Appellant testified that he could not engage in sexual
intercourse because he suffered from erectile dysfunction. He also claimed that
R.M. had never sat on his lap because she had a fear of men. When T.V.’s
testimony was offered at trial, Appellant objected that the evidence was
inadmissible during the State’s case-in-chief and argued that Appellant’s case was
distinguishable from Bass v. State. See Bass v. State, 270 S.W.3d 557 (Tex. Crim.
App. 2008). The trial court held that the evidence was admissible to show course
of conduct, intent, and motive as well as to rebut the defense’s theory of
fabrication; the trial court overruled Appellant’s objection and allowed T.V. to
testify. After T.V.’s testimony, the trial court gave a limiting instruction to the
jury, as Appellant requested.
However, on appeal, Appellant argues that the trial court should not have
admitted T.V.’s testimony because Rule 403 renders the testimony inadmissible.
Appellant contends that the evidence was so weak that it had no relevance to the
defense’s theory of fabrication and that it was more prejudicial than probative.
When a party attempts to adduce evidence of extraneous bad acts, in order to
preserve error on appeal, the opponent of that evidence must object in a timely
fashion. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991).
Ideally, the opponent will object that the evidence is inadmissible under
Rule 404(b). Id. An objection that such evidence is not “relevant,” or that it
constitutes an “extraneous offense,” will usually be sufficient to inform the trial
court of the nature of the objection. Id. Once the trial court decides that the
evidence has relevance apart from character conformity, the court has fully ruled
on the opponent’s objection, and error is preserved as to whether the evidence was
admissible under Rule 404(b). Id. at 388.
A relevance objection on its own, however, is not enough to invoke a ruling
from the trial court on whether the evidence is subject to exclusion on the ground
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of unfair prejudice. Id. Rather, a Rule 403 objection is required. Id. If the
opponent fails to make an objection based on Rule 403, the issue is not preserved
for appeal. Id. at 389; Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991).
Because Appellant did not make a Rule 403 objection at trial, he has waived any
error. TEX. R. APP. P. 33.1.
Appellant, however, has preserved his Rule 404(b) argument, and we will
review that issue. See Montgomery, 810 S.W.2d at 387. Rule 404(b) prohibits the
admission of evidence of extraneous offenses committed by the defendant for the
purpose of proving that, on the occasion in question, the defendant acted in
conformity with the character demonstrated by the other bad acts. TEX. R.
EVID. 404(b); Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997).
However, evidence of extraneous offenses is admissible for other purposes, such as
proof of motive, opportunity, intent, or absence of mistake. TEX. R. EVID. 404(b);
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The exceptions
provided by Rule 404(b) are neither mutually exclusive nor collectively
exhaustive. De La Paz, 279 S.W.3d at 343.
Extraneous offense evidence is also admissible to rebut the defensive theory
of fabrication. Id. at 350; Bass, 270 S.W.3d at 563. A party may introduce
evidence of other crimes, wrongs, or acts if such evidence logically serves to make
more or less probable an elemental fact, an evidentiary fact that inferentially leads
to an elemental fact, or defensive evidence that undermines an elemental fact. De
La Paz, 279 S.W.3d at 343. A mere denial of commission of an offense generally
does not open the door to extraneous offenses. Id.
T.V.’s testimony about the assault that Appellant committed upon her had
logical relevance apart from character conformity because it showed that R.M.’s
allegations were less likely to be fabricated. The testimony was properly admitted
to rebut the defense’s theory of fabrication, and it also served to show Appellant’s
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course of conduct, motive, and intent. We cannot say that the trial court abused its
discretion when it overruled Appellant’s Rule 404(b) objection to the extraneous
offense evidence and admitted the testimony. Appellant’s second issue is
overruled.
V. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
December 5, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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