NUMBER 13-18-00052-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
MARCUS MARQUIS MOSELEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 272nd District Court
of Brazos County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes
A jury convicted appellant Marcus Marquis Moseley of aggravated sexual assault
of a child, a first-degree felony. See TEX. PENAL CODE ANN. §§ 22.021(a)(2)(B). The
trial court assessed punishment at forty-five years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice. See TEX. PENAL CODE ANN.
§ 12.32. By two issues, Moseley argues that the trial court committed reversible error by
admitting testimony of: (1) extraneous unadjudicated offenses, and (2) out-of-court
statements. We affirm.1
I. BACKGROUND
Moseley was charged with aggravated sexual assault of a child against A.H. 2
Prior to trial, the State provided notice that it sought to include evidence of sexual assaults
involving four unrelated minor females: B.B., M.F., I.W., and C.J. The trial court
determined testimony from I.W. and C.J. would be admitted following an article 38.37
hearing. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2(1)(E) (providing for the use of
extraneous-offense evidence in the prosecution of certain offenses).
During opening statements at trial, the State stated that the evidence would show
that by the time A.H. was “molested by this Defendant, . . . [he] had molested other little
girls in the same house under similar circumstances.” Moseley also made his theory of
the case known: “Everybody has a motivation to lie. Everyone has a motivation to
collude with people that they know in order to make someone look worse.”
A. Testimony Regarding A.H.’s Allegations
A.H.’s father was the State’s first witness. He testified A.H. was twelve years old
when she came into his bedroom one evening “not acting herself” and crying. A.H. was
reluctant to say what was wrong. “She had tears in her eyes, and I asked her. I said:
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Tenth Court of Appeals in Waco, Texas. See TEX. GOV’T CODE
ANN. § 73.001.
2 We use initials to refer to minors in sexual assault cases to protect their privacy. See TEX. R.
APP. P. 9.8 cmt. (“The rule [protecting the privacy for filed documents in civil cases] does not limit an
appellate court’s authority to disguise parties’ identities in appropriate circumstances in other cases.”).
2
[‘]You can tell me anything.[’]” A.H. told her father that several months earlier, she had
been sexually assaulted during a sleepover at the neighbor’s house. He said his
daughter told him that “she was woken up to him on top of her.” A.H. could not remember
the name of the man who assaulted her and instead provided her father with a description.
He testified that based on the description, he identified Moseley as the offender. “I knew
who she was talking about because the gentleman in question came to my house several
times.” Moseley’s mother, Janette Moseley, resided in the house across the street,
where Moseley often stayed and where A.H. and her sister would go over to play and
spend the night.
A.H., an eighth grader at the time of trial, testified that she and her sister were
spending the night at a neighbor’s house in the summer of 2015, when “[he] came in.”
He wore “a white shirt, blue do-rag and black jeans with some stuff at the back.” While
other neighborhood children slept on a nearby couch, Moseley dropped his pants and laid
down beside A.H. on the floor. A.H. said he pulled down her red pajama shorts. When
asked by the State if Moseley’s penis made contact with her vagina, she answered in the
affirmative, but denied that “his private part went inside.” A.H. said when Moseley was
done, he got up and left the house. The next morning, her sister found her lying down
with her legs “gapped open” and crying. A.H. stated she had initially been afraid to tell
her parents in fear that she would get in trouble, and she only outcried to her father after
watching a video at school “about not to be afraid to tell your parents anything.” A.H.
denied knowing C.J. and I.W.
Moseley questioned A.H. on cross examination regarding purported factual and
logical inconsistencies of her statements, occupying over fifty pages of the record.
3
Q. And you testified earlier that when he started touching you that you
were still kind of asleep; is that right?
A. Yes, sir.
Q. All right. And so you don’t know when he came into the room, did
you?
A. No.
....
Q. Okay. And how—how did he try—describe to the jury how he tried
to penetrate you when you were on your back?
A. He—I don’t know.
....
Q. Okay. Do you remember telling [the forensic interviewer] something
different?
A. No.
Q. You don’t remember telling her that he tried to penetrate you on the
front first and then from behind?
A. No.
....
Q. And I noticed that you’ve had some different explanations or
memories that you shared with [the forensic interviewer], that you
shared with the jury, that you shared with [the State], and that you’ve
shared with me. You understand all those—all those stories are
different; is that right?
A. I guess.
Q. Well, you would know. You said them. Are all those stories
different?
A. No, they’re still the same.
Q. They’re still the same. Okay.
4
....
Q. Okay. So what—it’s either what you told [the State], when she was
questioning you, or what you told me when I was questioning you. I
asked you just a minute ago: Final answer. Did you know if it was
a penis that touched you? And you said: No. Then [the State]
asked you, and you said: No, it was a penis. Ma’am, telling the
truth right here, do you want to change your final answer?
A. Yeah.
Q. You do want to change your final answer? Okay. And I see you
smiling now; is that right?
Q. Okay. So you were lying when you told me final answer that he
didn’t touch you with his penis; is that right?
A. I guess.
....
Q. Why did you feel like you could lie here today?
A. I’m not lying.
Moseley’s accusations that A.H. was fabricating her claims continued in his cross-
examination of Cameron Collins, a child advocacy center forensic interviewer, who
testified next.
Q. Her testimony initially was that [Moseley] came over to drop [his]
child off at 2:00 or 3:00 at night?
A. Yes, sir.
Q. While the girls were playing video games?
A. I believe that’s correct.
Q. And then she said later, about 17 and a half minutes in, that
[Moseley] came back about 1:00 o’clock in the morning; is that
correct?
5
A. That’s correct.
Q. And that they were all asleep when he came back; is that right?
A. Correct.
Q. She also told you that she saw him remove his pants and his
drawers; is that correct?
A. I believe—I may have that wrong. I believe she said, you know,
pulled them down.
Q. Okay. But she also told you that she started feeling it, and you— “it”
you identified as a dick later. Then she woke up; is that correct?
A. I recall her saying that she woke up to feeling—feeling it.
....
Q. And from your interview, did you understand that the first attempt at
penetration was genital penetration and then anal penetration?
A. That was my understanding, yes, sir.
Collins maintained that it was not her “role” to “make the determination” of whether
or not a child is “lying.” She testified to the “stages of disclosure” and the normalness of
a delayed disclosure. Against Moseley’s objections, the State introduced into evidence
a recording of Collins’s thirty-minute interview with A.H.
Moseley’s niece, K.M., who was friends with A.H. and lived across the street in
Moseley’s mother’s home, testified she remembered A.H. spending the night. According
to K.M., the girls always slept in the same room together. K.M. testified that she did not
believe A.H.’s allegations against her uncle.
After witnesses familiar with A.H. testified, the trial court permitted the State to
present the extraneous-offense evidence during its case-in-chief involving I.W. and C.J.,
two unrelated minor females.
6
B. Testimony Regarding I.W.’s Allegations
I.W., who was seventeen at trial, testified that Moseley sexually assaulted her
when she was between the ages of six and eight. Moseley was in his early twenties at
the time. I.W. explained that Moseley was her “mom’s best friend’s brother,” so she knew
who he was, and she frequented Moseley’s mother’s home as a child. On one occasion,
I.W. testified that she was playing a video game upstairs with several other children when
Moseley asked her to go over to him so he could “tickle her.” Moseley quickly became
impatient and “made [the other children] leave.” I.W.’s older sister was the last one to
exit the room. When her sister “tried to get back in” to take I.W. with her, Moseley shut
the door.
I.W. testified that tickling around her breasts progressed to kissing and taking off
her clothing. Moseley then laid her on an ironing board and proceeded to kiss her “from
[her] face, then down to [her] vagina.” I.W. stated that Moseley attempted to “force” his
penis into her vagina. It was “painful” and “didn’t work.” When Moseley was done, he
helped dress her and told her if she told anyone, “[she’d] get in trouble.” At the next
available opportunity, I.W. ran downstairs and confided in her sister, who convinced her
to tell their mother. I.W. and her sister never visited Moseley’s home again. I.W.
testified that she did not know anyone by the name of A.H. or C.J.
Moseley questioned I.W. regarding the positioning of the ironing board, her
placement, Moseley’s placement, and the plausibility of I.W.’s testimony.
Q. Was [the ironing board]—do you think it was made out of aluminum,
or was it made out of steel? Was it a strong material that it was
made out of?
7
A. It was strong material. Well, it—what [sic] you mean? Like the top
or the whole thing?
Q. I mean, the whole thing.
A. I don’t know.
Q. Such that it would support a seven-year-old
A. So it got [sic] to be strong to hold me on there.
....
Q. Okay. And if you’re laying on there and it’s 3 feet up, how did he
attempt to penetrate you?
A. I mean—
Q. Did he get up on the ironing board?
A. No, it was like kind of—it was to his belly button. Like that’s how tall
it was like, like kind of—not to his belly button, but probably a little
under his belly button. But it was like near by his belly button. Like
that’s how tall it was compared to him.
....
Q. Are you laying on the long side or on the short side, length or width?
A. I was kind of—well, this way; but I was kind of like at the kind of end
of the ironing board.
....
Q. —but if I were to lay on the table the way you were laying on that
ironing board, would I be laying this direction; or would I be laying the
second direction? Long way or width way?
A. Long way.
Q. Okay. And so if he was attempting to penetrate you, he would be
standing at this end; is that correct?
A. Yes, sir.
8
....
Q. Okay. Would you agree with me that this level right here on this
area, this shelf in front of Judge Bryan’s bench is about the height of
a[n] ironing board?
A. Uh-huh.
Q. Okay. And so if you’re laying with your head about here?
A. Uh-huh.
Q. And your legs right here?
A. Uh-huh.
Q. And he’s trying to penetrate you—
A. Uh-huh.
Q. —is it going to be possible for him to penetrate you?
A. Yeah, if he did it. So if he pulled me closer to him, yes.
After several minutes of demonstrative-based questioning by Moseley’s counsel,
I.W. said, “I’m sorry. I don’t want to do this no [sic] more. I’m not going to talk about it.”
The trial court permitted a short break before questioning resumed. I.W. was unable to
identify Moseley in the courtroom.
Noberto Omar Espitia, an assistant principal at I.W.’s high school, spoke to I.W.’s
reaction when she was first contacted by the State. Espitia was present during I.W.’s
interview with the State, which took place during the lunch hour at school. Espitia said
I.W. was called to the principal’s office, unaware of the reason why. When the State
asked I.W. if she knew “Marcus Moseley,” I.W. appeared to recognize the name. “She
seemed very surprised. . . . I could tell that she did not know why she was there. She
was kind—you could see she was kind of trying to put the pieces together.” Espitia was
9
unable to recall many of the details of the assault that I.W. shared during the course of
the meeting, but testified, “[T]here was [sic] some graphic details that she gave.” Against
Moseley’s objection to hearsay, Espitia testified that I.W. told them that her mother had
left her in Moseley’s care, other children were initially present but “had been taken out of
the room,” and “she was around six to seven, maybe eight” when the assault occurred.3
I.W.’s mother, Taronsila Roberson, testified that she remembered leaving her
daughters with Moseley’s mother, Janette. Moseley’s sister’s children were also in the
home. When I.W. told her that Moseley had touched her, I.W. did not provide any details.
However, Roberson recalled immediately “check[ing]” her daughter’s “private area” and
noticing that I.W. did not have any underwear on. Roberson found I.W.’s underwear in
Moseley’s washing machine and said that Janette was unable to provide any information
regarding how I.W.’s underwear ended up in the washer or why I.W.’s underwear required
cleaning. “I was upset, but I tried to keep my composure for my kids’ sake,” she said.
Within the week, Roberson took her daughter to her physician. She testified that the
doctor told her that based on his physical examination of I.W., “[I.W.] hadn’t been
touched[,]” so she declined to involve law enforcement.
C. C.J.’s Testimony
The State next called twenty-two-year-old C.J. C.J. knew Moseley because he
had a child with C.J.’s aunt. C.J. testified that the abuse began when she was ten years
old up until she was thirteen. C.J. recalled being in the living room at Moseley’s mother’s
house: “He was supposed to be helping me take the braids out of my hair. And he then
3 The State’s investigator, Michael Johse, was also present during the interview and testified at
trial regarding his recollection of events—also against Moseley’s objection to hearsay.
10
started feeling on me.” Moseley instructed her to “be quiet” as he touched her vaginal
area and attempted to anally penetrate her with his penis. “I keep [sic] saying no,” C.J.
said, “and then he went into my front area.”
According to C.J., the sexual abuse was “continuous,” with vaginal penetration
occurring on four or five more occasions until a cousin “walked in and caught him; and
then that’s when it had got back to [her] mom.” C.J. said she had told her mother after
the first incident, and her mother “beat” her in response. Although C.J. was ten years
old at the time, her mother considered the sex consensual. “[S]he told my aunt that I
was just trying to mess with her baby daddy.” C.J. was able to identify Moseley in the
courtroom. She testified that she was unaware of who A.H. or I.W. were.
D. Defense’s Case-in-Chief
Janette was the sole witness in the defense’s case-in-chief. Janette testified her
son stayed periodically with her “in ’15,” the year the alleged offense occurred. Janette
opined that although she kept an ironing board in her home, it could not hold the weight
of a six-year-old. Janette recalled A.H. and her sister spending the night at her residence
but denied witnessing any evidence of the allegations against Moseley.
Moseley’s counsel argued in closing arguments, as he did in his opening
statements, that A.H. and “the rest of these alleged victims” were being dishonest at his
client’s expense:
[A.H. is] a liar. She admitted that she is a liar. . . . [I.W.] is another one
who doesn’t know the truth. . . . She asked you to defy basis [sic] laws of
physical impossibility. . . . Then you’ve got [C.J.]. And I’ll be frank with
you. I don’t have the explanation. I don’t have the inconsistencies with
[C.J.] that there are with the alleged victim and then these other people who
come in. Why was [C.J.] here? . . . What ax did she have to grind?
11
The jury returned a guilty verdict, and the trial court assessed punishment. This
appeal followed.
II. ADMISSION OF EXTRANEOUS-OFFENSE EVIDENCE
By his first issue, Moseley contends that the trial court erroneously admitted I.W.’s
and C.J.’s testimony under article 38.37 of the Texas Code of Criminal Procedure and
Rule 403 of the Texas Rules of Evidence. TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2;
TEX. R. EVID. 403.
A. Standard of Review
We review a trial court’s decision on admissibility of extraneous-offense evidence
under an abuse of discretion standard. Dabney v. State, 492 S.W.3d 309, 316 (Tex.
Crim. App. 2016) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).
We will uphold a trial court’s admissibility decision when that decision is within the zone
of reasonable disagreement and as long as it is correct on any theory of law applicable
to the case. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Sauceda
v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).
B. Applicable Law
Article 38.37 of the code of criminal procedure permits the admission of evidence
of other sex crimes committed by the defendant against children—other than the
complaining witness of the alleged offense—“for any bearing the evidence has on
relevant matters, including the character of the defendant and acts performed in
conformity with the character of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.37
§ 2(2)(b). Extraneous-offense evidence can also be admitted to rebut the defensive
theory of fabrication. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); see
12
also Dabney, 492 S.W.3d at 317 (“Because Appellant presented his defensive theory in
opening statements, the State could use extraneous-offense evidence to rebut this theory
in its case-in-chief rather than waiting until the defense rested.”).
Before extraneous-offense evidence may be admitted under article 38.37, the trial
court is required to determine that “the defendant committed the separate offense beyond
a reasonable doubt.” TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2-a(1)(2); Lopez v. State,
288 S.W.3d 148, 165 (Tex. App.—Corpus Christi–Edinburg 2009, pet. ref’d). Further,
upon proper objection or request, the trial court is also required to conduct a Rule 403
balancing test to consider whether the value of the evidence is substantially outweighed
by the danger of unfair prejudice. See TEX. R. EVID. 403; see also Distefano v. State,
532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Davila v. State, No.
13-18-00298-CR, 2019 WL 3227263, at *2 (Tex. App.—Corpus Christi–Edinburg July 18,
2019, no pet. h.) (mem. op., not designated for publication). A Rule 403 analysis
requires consideration of the following:
(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 merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). In overruling a
Rule 403 objection, the trial court is presumed to have applied a Rule 403 balancing test
and to have determined that the evidence was admissible. See Hitt v. State, 53 S.W.3d
697, 706 (Tex. App.—Austin 2001, pet. ref’d); see also Distefano, 532 S.W.3d at 31
13
(providing that Rule 403 does not require that the balancing test be performed on the
record).
C. Article 38.37 Analysis
Moseley first asserts that he did not open the door for the use of the extraneous-
offense evidence to rebut a defense of fabrication and alternatively that I.W.’s testimony
does not meet admissibility requirements under article 38.37.4 We disagree.
Moseley’s defensive theory of fabrication was consistent and prevalent: first
appearing in his opening statements, then throughout his cross-examination when he
repeatedly accused A.H. of lying, and re-affirmed in his closing arguments when he
pointedly said, “[A.H. is] a liar.” See Dabney, 492 S.W.3d at 317; Bass, 270 S.W.3d at
563; see, e.g., Webb v. State, 575 S.W.3d 905, 909 (Tex. App.—Waco 2019, no pet. h.)
(holding that appellant “open[ed] the door” to the use of extraneous-offense evidence
when “defense counsel asked a series of questions designed to suggest that [the
complaining witness] was lying or changed her story regarding various facts pertaining to
the incident.”).
With respect to his contention that I.W.’s testimony fell short of requirements under
article 38.37, Moseley argues that I.W. was unable to visually identify him in the courtroom
as her assailant and that “the mechanics of the assault” she alleged were improbable.
However, the weight to be assessed to witness testimony in an article 38.37 hearing rests
with the trial court. See Ryder v. State, 514 S.W.3d 391, 399 (Tex. App.—Amarillo 2017,
4 We note that although Moseley states in his brief that “the trial court committed reversible error
by allowing witnesses I.W. and C.J. to testify under article 38.37 . . .[,]” Moseley makes no specific
arguments regarding C.J.’s testimony under article 38.37, instead applying only the Rule 403 balancing
test. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2; TEX. R. EVID. 403. Therefore, our 38.37 analysis is
limited to I.W.’s testimony.
14
pet. ref’d) (admissibility of witness’s testimony about extraneous offense did not violate
article 38.37 because admissibility of testimony turned on trial court’s assessment of
witness’s credibility and weight to be given evidence); see also Shukla v. State, No. 01-
18-00147-CR, 2019 WL 2621737, at *8 (Tex. App.—Houston [1st Dist.] June 27, 2019,
no pet. h.) (mem. op., not designated for publication) (same); White v. State, No. 03-17-
00504-CR, 2019 WL 2518755, at *8 (Tex. App.—Austin June 19, 2019, no pet. h.) (mem.
op., not designated for publication) (same). The trial court’s assessment of a witness’s
credibility extends to a witness’s inability to make an in-court identification of a defendant.
See Chafer v. State, 500 S.W.2d 139, 141 (Tex. Crim. App. 1973) (affirming conviction
based on testimony where the complaining witness could not identify the defendant in-
court); Moore v. State, 140 S.W.3d 720, 727 (Tex. App.—Austin 2004, pet. ref’d) (same).
Here, the trial court judged I.W.’s credibility and found her statements credible irrespective
of Moseley’s implausibility argument and I.W.’s inability to identify Moseley in-court.
Viewing the record in the proper context and remaining mindful of the deference
we provide the trial court on rulings of admissibility of extraneous-offense evidence, we
cannot conclude that the trial court’s ruling fell outside the “zone of reasonable
disagreement.” Gonzalez, 544 S.W.3d at 370.
D. Rule 403 Analysis
In conjunction with his article 38.37 argument, Moseley contends that the
“extraneous offense testimony failed to meet” each Rule 403 balancing requirement. We
next consider and apply the facts of this case to the aforementioned factors, noting that
“these factors . . . blend together in practice.” Gigliobianco, 210 S.W.3d at 642.
15
1. Probative Value and Proponent’s Need for Evidence
“Probative value” is the measure of “how strongly [the evidence] 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 item of evidence.” Id. at 641. We acknowledge that
testimony regarding sexual assault involving children by its nature tends to be
inflammatory, and the length of time can diminish the probative value of extraneous-
offense evidence. See Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013);
see also Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi–Edinburg 2002,
pet. ref’d) (noting that remoteness of prior offenses affects their probative value but does
not automatically render the evidence inadmissible on that basis).
The evidence shows that Moseley, charged with vaginal penetration of a twelve-
year-old girl, also vaginally penetrated a six-to-eight-year-old girl approximately eight to
ten years ago and did the same to a ten-year-old girl until she was thirteen approximately
twelve years ago. Although remote in time, the trial court could reasonably conclude that
the extraneous offenses had an inherent probative force because they were (1) no more
serious than the acts recounted by A.H., and (2) shared similarities based on Moseley’s
conduct, the age of the children at the time of the assaults, and the location of the
assaults. See McCombs v. State, 562 S.W.3d 748, 765–67 (Tex. App.—Houston [14th
Dist.] 2018, no pet.); see also Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—
Austin 2016, pet. ref’d) (“[W]e believe that the district court could have reasonably
determined that the remarkable similarities between the extraneous offenses and the
charged offenses strengthened the probative force of the evidence.”); see, e.g., West v.
State, 554 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (permitting
16
evidence “that appellant committed a lewd or lascivious act upon a ten-year-old girl about
twenty-nine years before the trial” where the case at bar involved a ten-year-old
complaining witness).
The State’s need for the extraneous-offense evidence was high. As discussed
above, (1) Moseley implicitly and explicitly accused A.H. of fabricating her allegations of
abuse, (2) there was no physical evidence or eyewitness testimony supporting A.H.’s
allegations, and (3) several of the State’s witnesses simply reiterated what A.H. had told
them. See Hammer v. State, 296 S.W.3d 555, 568–69 (Tex. Crim. App. 2009) (“Rule
403 . . . should be used sparingly, especially in ‘he said, she said’ sexual-molestation
cases that must be resolved solely on the basis of the testimony of the complainant and
the defendant.”); see, e,g., Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco
2009, pet. ref’d) (finding a twenty-five-year-old extraneous offense admissible based on
the State’s need for extraneous-offense evidence because the State had no physical
evidence or eyewitness testimony).
In Bass, the State’s case also rested on the complainant’s testimony that the
defendant sexually assaulted a child in the same location, where extraneous-offense
evidence showed that he had also sexually assaulted two other, similarly-aged, girls.
Bass, 270 S.W.3d at 562–63. The Texas Court of Criminal appeals rejected the
defendant’s Rule 403 argument, reasoning: “It seems obvious that, if the State can show
that a defendant has committed similar sexual assaults against . . . children, an
affirmative defense allegation that the victim [of the charged offense] fabricated her claims
is less likely to be true” because the extraneous-offense evidence “directly rebuts the
17
defensive claims and has logical relevance aside from character conformity.” Id. An
evaluation of these factors weighs in favor of admission.
2. Confusion of the Issues and Undue Weight
“Confusion of the issues” refers to a tendency to confuse or distract the jury from
the main issues in the case. Gigliobianco, 210 S.W.3d at 641. The “tendency of an
item of evidence to be given undue weight by the jury on other than emotional grounds,”
refers to evidence of which a jury is not properly equipped to judge the probative force—
such as scientific evidence. Id. (emphasis added); see Bass, 270 S.W.3d at 641
(explaining that scientific evidence is type of evidence that “might mislead a jury”).
I.W.’s and C.J.’s testimony concerned matters readily comprehensible by lay
people, and their testimony was directly relevant to the only issue in the case—whether
Moseley abused A.H. Any potential risk of confusion or undue weight regarding I.W.’s
and C.J.’s testimony, however, was mitigated by the trial court’s charge instruction to the
jury that it could only consider their testimony for proper purposes:
Any testimony and evidence that the defendant has committed the separate
offenses of Indecency with a Child or Aggravated Sexual Assault of a Child
was admitted for any bearing that testimony and evidence has on relevant
matters, including the character of the defendant and acts performed in
conformity with the character of the defendant. You cannot consider such
testimony and evidence unless you find and believe beyond a reasonable
doubt the defendant committed the separate offenses.
We presume that the jury obeyed these instructions. See Curry v. State, 541
S.W.3d 751, 758 (Tex. Crim. App. 2017); see, e.g., Chasco v. State, 568 S.W.3d 254,
261 (Tex. App.—Amarillo 2019, pet. ref’d) (finding the trial court did not abuse its
discretion in permitting testimony regarding extraneous offenses when the “jury was
instructed that it could consider the testimony regarding appellant’s extraneous
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offenses . . . only if it found beyond a reasonable doubt that appellant committed the
offenses.”). Consequently, these factors also weigh in favor of admission.
3. Undue Delay and Needless Presentation of Cumulative Evidence
The last two factors concern the efficiency of the trial proceeding rather than the
threat of an inaccurate decision. Gigliobianco, 210 S.W.3d at 641. C.J. was on the
stand for a relatively brief period of time; her entire testimony occupies only twenty-one
pages of a trial transcript that spans more than 600 pages. I.W. testified for a longer
period; however, we note that any disparity in length was due to Moseley’s cross-
examination of I.W., which exceeded the State’s direct-examination and alone spanned
twenty-six pages of the record. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim.
App.1996) (holding that the factor weighed in favor of admission where extraneous-
offense testimony amounted to “less than one-fifth” of trial testimony); but see McGregor
v. State, 394 S.W.3d 90, 121–22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d)
(upholding the trial court’s decision to admit the evidence although evidence of
extraneous offenses constituted one-third of trial and weighed against admissibility).
Accordingly, these factors weigh in favor of admission, even if only slightly.
We conclude that the trial court did not err in admitting testimony of extraneous-
offense evidence in its denial of Moseley’s article 38.37 and Rule 403 objections. See
Gigliobianco, 210 S.W.3d at 642–43; see also Gonzalez, 544 S.W.3d at 370; Dabney,
492 S.W.3d at 317. We overrule issue one.
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III. OUT-OF-COURT STATEMENTS
By his second issue, Moseley contends that the trial court erred in allowing
witnesses to testify to statements made by A.H. and I.W. under Rule 801(e)(1)(B). TEX.
R. EVID. 801(e)(1)(B).
A. Standard of Review and Applicable Law
In relevant part, Rule 801(e)(1)(B) gives substantive, non-hearsay status to prior
consistent statements of a witness if: (1) the witness is subject to cross-examination
concerning the statement, and (2) the statement is “consistent with the declarant’s
testimony and is offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive.” Id. We review a trial court’s
decision to admit evidence for an abuse of discretion, and we view the evidence in the
light most favorable to the trial court’s ruling. Klein v. State, 273 S.W.3d 297, 304–05
(Tex. Crim. App. 2008) (citing Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App.
2007)); Fears v. State, 479 S.W.3d 315, 332 (Tex. App.—Corpus Christi–Edinburg 2015,
pet. ref’d). Because no bright-line rule exists, the trial court has “substantial discretion”
to admit a prior consistent statement if there has been “a suggestion of conscious
alteration or fabrication.” Hammons, 239 S.W.3d at 804–05.
B. Analysis
Moseley maintains that he did “not level an express or implied charge that A.H. or
I.W. recently fabricated . . . their testimony.” We disagree.
The record reflects that the forensic interviewer testified, over Moseley’s hearsay
objections, that A.H. made out-of-court statements to her regarding Moseley’s abusive
conduct. The trial court admitted this testimony as substantive evidence of appellant’s
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guilt under Rule 801. See TEX. R. EVID. 801(e)(1)(B). Moseley urges us to employ
Hammons in our analysis. Hammons, 239 S.W.3d at 804–05. We find Hammons to be
a persuasive, controlling authority and in representative opposition of Moseley’s position.
While questioning tactics by appellant in Hammons were “subtle,” only becoming
“vociferously express[ive] during appellant’s closing argument,” Moseley’s questioning
was unambiguous in his accusation of fabrication:
Q. Okay. So you were lying when you told me final answer that he
didn’t touch you with his penis; is that right?
....
Q. Why did you feel like you could lie here today?
As discussed in the preceding section, Moseley did more than challenge A.H.’s
credibility or passively suggest fabrication, 5 therefore the trial court did not abuse its
discretion in admitting the complainant’s prior consistent statement to the forensic
interviewer. Id. at 804 (“There is no bright line between a general challenge to memory
or credibility and a suggestion of conscious fabrication, but the trial court should
determine whether the cross-examiner’s questions or the tenor of that questioning would
reasonably imply an intent by the witness to fabricate.”); see also White v. State, 256
S.W.3d 380, 383 (Tex. App.—San Antonio 2008, pet. ref’d) (“A reviewing court must
5 Moseley’s trial counsel conceded both his impeachment of A.H. and the evidence’s admissibility
during a bench conference:
THE COURT: Tell me why the rules don’t allow—I mean, you admit that [A.H.]
was impeached, right?
[COUNSEL]: Absolutely.
THE COURT: Then tell me why they don’t get to bring in a previous consistent
statement.
[COUNSEL]: Because I think the law is wrong, Judge.
21
consider the totality of the questioning, giving deference to the trial judge’s assessment
of tone, tenor, and demeanor, and may also consider clues from the voir dire, opening
statements, and closing arguments.”).
Moseley was far less pronounced in his assertion of fabrication in his cross-
examination of I.W. Against Moseley’s overruled objections, the trial court also admitted
evidence of I.W.’s out-of-court statements through her mother, assistant principal, and
the State’s investigator. The trial court, however, was free to interpret Moseley’s “tone,
tenor, and demeanor” in his questioning of the plausibility of I.W.’s allegation, coupled
with the surrounding circumstances—from Moseley’s opening statement that “Everybody
has a motivation to lie[,]” to his cross-examination of A.H.—in its determination of whether
a charge of fabrication occurred. See Hammons, 239 S.W.3d at 808; see, e.g., Martinez
v. State, 276 S.W.3d 75, 82 (Tex. App.—San Antonio 2008, pet. ref’d) (deferring to a trial
court’s observation that the requirement of fabrication had been met “[a]lthough the
defense questioning could be characterized as merely challenging [the witness’s]
credibility.”). The “‘sinister seed of innuendo’ sowed during cross-examination came to
full fruition” during Moseley’s closing argument, when his charge of fabrication against
I.W. became unequivocal: “[A.H.] admitted that she is a liar. . . . [I.W.] is another one
who doesn’t know the truth.” See Hammons, 239 S.W.3d at 808.
Having reviewed the record, we defer to the trial court’s “substantial discretion” to
admit prior consistent statements after determining that the witness’s credibility has been
challenged, and we conclude that the trial court did not err in admitting A.H.’s and I.W.’s
out-of-court statements under Rule 801(e)(1)(B). See id. at 804–05; Fears, 479 S.W.3d
at 332. We overrule issue two.
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IV. CONCLUSION
The trial court’s judgment is affirmed.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of September, 2019.
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