Abshire v. State

OPINION

WILLIAM J. CORNELIUS, Chief Justice.

A jury convicted Dale E. Abshire of aggravated sexual assault of a child and set his punishment at confinement for life. Abshire contends the trial court erred in admitting extraneous offense evidence.

Abshire was accused of sexually assaulting his seven-year-old niece, Velta James, on or about May 10, 1998. Velta testified to several instances of molestation occurring at different times. In his defense, Abshire called members of his family to testify. David Abshire, one of Abshire’s two sons, testified that he lived with his father and mother; that other members of his family, including his grandmother, his brother and his brother’s family, and Velta and her family, lived nearby in separate houses or mobile homes on the same land; that on May 10, he was home all day with his father, mother, and brother; that he and his father watched television from about 4:00 p.m. until late into the evening; and that Velta did not come to his parents’ house that day. He also testified that he never witnessed his father and Velta together when his mother was not also there and that he never saw his father do anything unusual to or with Velta.

Dean Abshire, Abshire’s other son, testified that he lived with his family in a house a few feet from Abshire’s house; that the family members visited each other frequently and had informal access to the other homes; that on May 10, he was at his parents’ house all day except for brief periods when he went back to his own home, and a period of forty-five minutes when he went to his wife’s family’s house; and that Velta was at his grandmother’s house, but also came to his parents’ house briefly and intermittently.

Abshire’s wife, Nonie, testified that she was with Abshire practically the entire day on May 10. She testified that Abshire and she awoke around 9:00 a.m. and ate breakfast around 10:00 a.m.; that she went briefly to her mother’s house, which is located on the same property; that Ab-shire stayed home most of the day because he was waiting for a telephone call concerning his older daughter Annette, who was sick with cancer; that Abshire and she also went to the store; and that they spoke to Velta briefly as they were leaving the house. She testified that Velta did not *860come to their house any other time that day.

In rebuttal, after the defense rested its case-in-chief, the State called Abshire’s thirty-year-old daughter, Shenona Woods. After a hearing outside the jury’s presence, Abshire objected to Woods’s testimony under Tex.R. Evid. 403 and 404(b). The State asserted that her testimony was relevant to refute evidence that Abshire lacked opportunity to molest Velta, to show his motive or intent, and to establish his identity as the perpetrator of the sexual assault on Velta. The trial court overruled Abshire’s objection, but gave the jury a limiting instruction.

Woods testified that she lived with Ab-shire, Nonie, David, and Dean until she was seventeen years old; that Abshire molested her repeatedly beginning when she was five years old until she left home at age seventeen; that Abshire told her it was his responsibility as her father to teach her about sex; and that he made her swear not to tell anyone. She also testified that she became pregnant by Abshire and gave birth to a child who later died from a medical condition caused by inbreeding.

The general rule is that evidence of other crimes, wrongs, or acts is inadmissible to prove a person’s character, but evidence of other crimes, wrongs, or acts is admissible for other purposes. Tex.R. Evid. 404. If an objection is made to extraneous offense evidence under Rule 404(b), the proponent of the evidence must persuade the trial court that the evidence has relevance apart from character conformity, i.e., that it tends to establish some elemental fact such as identity or intent; that it tends to establish some evidentiary fact such as motive, opportunity, or preparation leading inferentially to an elemental fact; or that it rebuts a defensive theory, e.g., the absence of mistake or accident. Tex.R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App.1990) (op. on reh’g); McAllister v. State, 34 S.W.3d 346, 353 (Tex.App.Texarkana 2000, pet. ref'd).

We need not decide whether the extraneous evidence here was adequate to show intent or motive, because we find that Abshire “opened the door” to such evidence, and the evidence was admissible to rebut a defensive theory.

During the defense’s case-in-chief, and before the State offered any extraneous offense evidence, the defense produced testimony from Abshire’s sons, David and Dean, and Abshire’s wife, Nonie, that Dale Abshire was not the kind of person who would sexually abuse a child, and that he never had an opportunity to do so in his home because no room was ever locked, and friends and family members freely came in and out of the house or were always in a position to see what transpired in the house. These witnesses said they were always with or around Abshire, and they never saw him do anything improper. Dean Abshire testified that his father baby-sits with his child frequently and that he never knew of anything bad happening to the child while he was in Abshire’s care. Nonie Abshire testified she is always with Abshire when he is not at work; that she and he have been “together” for thirty-two years; and that she “never saw nothing like that.” She also testified that Velta’s own father had been accused of sexually abusing her and that Abshire told her “he never touched those girls.” (Emphasis added.)

To illustrate the* nature of the defense’s evidence about Abshire’s lack of any sexual contact with any other children, Abshire’s own brief in this appeal characterizes the evidence thusly: “In summary, the testimony of appellant’s family was that they *861had lived in the same home with appellant for approximately thirty years and had not witnessed him perform sexual acts on anyone.” (Emphasis added.)

Additionally, the defense on rebuttal elicited testimony from two other witnesses who testified that in addition to Velta, Abshire had also been accused of sexually abusing Nola James, Christopher James, and Veronica Berza, all when they were minors. More importantly, Abshire himself on re-direct examination by his own counsel, testified that he had been accused of several rapes, but denied committing them. He also testified that he had never been put on probation for “molesting any child.” Although this additional testimony was produced by the defense on rebuttal after the State had introduced its evidence of extraneous acts between Abshire and his daughter, Shenona, this additional testimony about extraneous acts went far beyond any defensive attack on the State’s evidence and clearly explored multiple allegations of sexual abuse of children by Abshire over a long period of years.

When a party produces evidence tending to create a false impression of his law-abiding behavior, he opens the door on his otherwise irrelevant past criminal history, and opposing counsel may introduce evidence tending to rebut the false impression. Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App.1993); Prescott v. State, 744 S.W.2d 128, 131 (Tex.Crim.App.1988); Wells v. State, 880 S.W.2d 185, 189 (Tex.App.—Texarkana 1994, pet. ref'd); Monkhouse v. State, 861 S.W.2d 473 (Tex.App.—Texarkana 1993, no pet.). This rule is not limited to final convictions. Prescott v. State, 744 S.W.2d 128; Metts v. State, 22 S.W.3d 544, 549 (Tex.App.—Fort Worth 2000, no pet.); Royal v. State, 944 S.W.2d 33 (Tex.App.—Texarkana 1997, pet. ref'd). Although the trial court here admitted the extraneous evidence about the sexual abuse of Shenona for the purpose of showing intent and identity, we uphold the court’s action if it is legally correct, even if the court’s reason for admitting the evidence was erroneous. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Dugard v. State, 688 S.W.2d 524, 530 n. 2 (Tex.Crim.App.1985).

The second reason the State’s evidence was admissible is because it was relevant to rebut a defensive theory. Texas law allows evidence of extraneous bad acts by the defendant to be admitted to rebut a defensive theory. Ransom v. State, 920 S.W.2d 288, 301 (Tex.Crim.App.1994); Montgomery v. State, 810 S.W.2d at 388 (Tex.Crim.App.1990); Roberts v. State, 29 S.W.3d 596, 601 (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd). Abshire’s main defense was that Velta had been sexually abused numerous times but that the abusers were Velta’s father, Robert James, and two other men, Glynn Fountain and a Mr. Bowman, both relatives of Velta. Abshire steadfastly contended that he was not the kind of person who would do something like sexually abusing a child; that he never had an opportunity to abuse anyone in his home; and that the other named persons had also been accused of molesting Velta. The State’s rebuttal evidence about the abuse of Shenona showed that she was assaulted in Abshire’s home and that Abshire took her in a room and “locked the boys out” when the molestation occurred, showing that he did have an opportunity to commit such acts privately in his home.

The trial court properly overruled Abshire’s Rule 403 objection. The court conducted a balancing test and stated in the record that he found the extraneous acts evidence more probative than prejudicial. In light of all the evidence, and considering the nature of Abshire’s de*862fense, we find that the trial court did not abuse its discretion in so concluding.

Because Abshire clearly opened the door to proof of extraneous offenses, the court did not err in allowing the extraneous offense evidence.

The judgment is affirmed.