Webb v. State

HUDSON, Justice,

dissenting.

Because the extraneous offense presented here was admissible to both rebut appellant’s defensive theory and rehabilitate the complainant’s credibility, I respectfully dissent.

I fully recognize that an extraneous offense is “not admissible to prove the character of a person in order to show action in conformity therewith.” Tex.R.Evid. 404(b). Here, for example, the State could not have introduced evidence of an extraneous sexual assault merely for the purpose of showing appellant had a propensity to rape. Thus, where a defendant passively denies the commission of an offense, he does not “open the door” to the admission of extraneous offenses. However, in cases where the accused actively defends himself, the defendant often presents a defensive theory that attempts to negate some aspect of the prosecution’s evidence. Frequently, a defense is mounted which assaults the victim’s credibility. The tactic is lawful and sometimes appropriate, but not without risk, for the State is not powerless to respond.

Evidence of other crimes may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex. R.EVID. 404(b). The list set forth in Rule 404(b), however, is neither exclusive, nor collectively exhaustive. See Medellin v. State, 960 S.W.2d 904, 908 (Tex.App.—Amarillo 1997, no pet.); Kelly v. State, 828 S.W.2d 162,164-65 (Tex.App.—Waco 1992, pet. ref d).

As a general rule, the State is entitled to present in rebuttal any evidence that tends to refute a defensive theory even if such evidence encompasses an extraneous offense. See Davis v. State, 979 S.W.2d 863, 867 (Tex.App.—Beaumont 1998, no pet.). In fact, probably “the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory.” Crank v. State, 761 S.W.2d 328, 341 (Tex.Crim.App.1988), overruled on other grounds, 866 S.W.2d 619, 624 (1993).

Here, the State proved up the extraneous sexual assault before appellant had formally presented his defensive theory. In fact, the State offered the evidence in its case-in-chief. However, during his cross-examination of the complaining witness, appellant’s counsel all but testified on behalf of his client. After the complainant admitted that she had been intoxicated at the time of the offense, counsel suggested that intoxication could lead to irrational behavior. Counsel then suggested the complainant was not sexually assaulted, but became irrational and angry when appellant took photographs of her; that she broke his front window by kicking it in a fit of rage; and that he ejected her from his home because she was intoxicated:

Q. [By appellant’s counsel:] Okay. There was a struggle that night between you and Danny Webb but it had to do with over [sic] that camera and those pictures?
A. No, sir, it did not.
Q. Okay. As a matter of fact you were upset and mad at Danny Webb when he wouldn’t give you the film, weren’t you?
A. Is that what he told you? No.
Q. And what happened is as drunk as you were, as mad as you were, you were the one that kicked out that window, correct?
A. I kicked out the window but it wasn’t over film. It wasn’t over any film.
Q. And what happened then is Danny Webb got upset with you because you were wasted in his house and he kicked you out, right?
A. No, sir.

*185Relying on Walker v. State,1 for the proposition that a defensive theory can be sufficiently asserted by vigorous cross-examination alone, the State’s attorney cited the aforementioned “questions” as one basis for admitting the extraneous offense in her case-in-chief.2 Appellant’s counsel did not vigorously contest the eventual admissibility of the extraneous offense, but only whether it should be admitted during the State’s case-in-chief.3

Later, appellant did, in fact, testify in his own defense.4 Appellant said he took several photographs of the complainant while she was wearing only a “G-string.” The complainant became aggressively, almost irrationally, hostile and demanded the film from his camera. Appellant testified that he refused to give her the film. The complainant called a taxicab and got dressed. While waiting for the cab, the complainant continued to demand the release of the film. Eventually, the complainant became so upset, she tried to kick appellant. Due to her intoxication, the complainant missed appellant and fell into the window. Appellant said he then escorted her to the door of his residence and threw her out. Thus, whether it was inferentially raised by counsel’s eross-examination of the complainant or directly introduced through appellant’s testimony, the defensive theory presented to the jury was that the complainant fabricated the allegation of rape on account of, or possibly in retaliation for, appellant’s refusal to give her the film from his camera.

While the Court of Criminal Appeals has been cautious, even reluctant, to hold that a charge of fabrication will “open the door” to the introduction of extraneous offenses, I believe the State was entitled to rebut the defensive theory presented here with evidence of a similar extraneous offense.5 For example, in Owens v. State, 827 S.W.2d 911, 913 (Tex.Crim.App.1992), the defendant was prosecuted for sexually molesting his eleven-year-old daughter. The complainant admitted on cross-examination that she was dissatisfied at home and felt her parents were overly strict. Later, when the defendant took the witness stand, he also testified that his daughter was dissatisfied living at home and generally displeased with the material things provided to her. Thus, the defendant raised the defensive theory that the complainant had fabricated her testimony due to her general displeasure with her parents. In rebuttal, the State called the *186defendant’s eldest daughter who testified that when she was eleven-years-old, she was also molested and sexually assaulted by the defendant. The court held her testimony “was not relevant to any material fact in dispute.” Id. at 916.6 If Owens represented the last word on this subject by the Court of Criminal Appeals, I would agree with the majority’s analysis.

However, two years after Owens, the court was presented with a case where the defendant was charged with the sexual assault of a young boy. See Pavlacka v. State, 892 S.W.2d 897 (Tex.Crim.App.1994). Because there was evidence the boy had previously made inconsistent statements regarding the incident, the State elicited testimony from the boy about other sexual assaults that had allegedly been perpetrated against him by the defendant. The State claimed these extraneous offenses were admissible to rebut the defensive theory of fabrication and to rehabilitate the complainant’s credibility. The Court of Criminal Appeals held the evidence was not admissible to rebut the defensive theory of fabrication because (1) no evidence was presented to suggest the complainant had been induced by others to fabricate his testimony, and (2) the State did not articulate this theory of admissibility at trial.7

Far from holding that extraneous offenses are never admissible to rebut a fabrication theory, the court cited with approval the case of Self v. State, 860 S.W.2d 261 (Tex.App.—Fort Worth 1993, pet. ref d): There, the State was permitted to elicit testimony from a child-complainant regarding other extraneous sexual assaults to rebut a defensive theory that the complainant had been coaxed by other family members to fabricate the offense.

The court also stated in Pavlacka that the extraneous offenses were not admissible to rehabilitate the complainant because absent some independent corroboration, there was no better reason to believe the complainant’s account of extraneous misconduct than there was to believe his original allegations. In other words, the “mere repetition of allegations from a source of dubious credibility does not render that source any more credible.” Id. at 903. Again, the court suggested by its analysis that evidence of an extraneous offense from an independent source may be admissible to rehabilitate the credibility of the complaining witness.

A defendant, by, his plea of not guilty, denies the commission of the offense and puts the State to its proof. He may go further and, in his own defense, affirmatively disparage the complainant’s credibility. But while the tactic may be proper, and occasionally successful, it cannot be waged with impunity. In an adversarial system, the State should not be muzzled by excluding relevant evidence that logically tends to rebut the defendant’s allegations.

Here, the complainant’s credibility was demeaned by suggesting she was (1) extremely intoxicated at the time of the incident, and (2) very hostile toward appellant because he had taken photographs of her. This accusation was properly rebutted by evidence of a similar offense perpetrated against, and offered through the testimony of, an independent witness. Moreover, the probative value of the evidence was not *187substantially outweighed by its prejudicial effect.8

Accordingly, I believe the extraneous offense was properly admitted into evidence, and I would affirm the conviction.9 For these reasons, I respectfully dissent.

EDELMAN, J., joins this dissenting opinion.

. 588 S.W.2d 920, 922-23 (Tex.Crim.App.1979).

. The State’s attorney argued:

Well, based upon Mr. Cunningham's cross-examination, State v. Walker [Walker v. State, 588 S.W.2d 920] is exactly what I'm relying on, that there was extremely vigorous cross-examination of the complainant. As a matter of fact, I think the last five questions that Mr. Cunningham posed to [the complaint] is isn’t it true that none of this happened, that you kicked out his window and then walked out of the door because he threw you out of his house?

. Counsel argued:

Our position is: It did not happen. So, therefore, there is no issue that this comes in under during their case in chief. I submit to the Court that the only way that this comes in is after Mr. Webb takes the stand and testifies. That is how you ruled at the last trial. You did not allow this testimony to come in during the first trial during their case in chief.

. Where an extraneous offense is improperly admitted during the State’s case-in-chief, the error is rendered harmless if the defendant subsequently presents a defensive theory that authorizes the admission of the same evidence in rebuttal. See Macias v. State, 776 S.W.2d 255, 258 (Tex.App.—San Antonio 1989, pet. ref’d) (holding the premature admission of an extraneous offense during the State’s case-in-chief, was rendered harmless by the subsequent development of the defensive theory that the complainant’s allegation of child abuse had been fabricated).

. See Waddell v. State, 873 S.W.2d 130, 133-39 (Tex.App.—Beaumont 1994, pet. ref'd) (extraneous offense admissible to rebut defense of fabrication in prosecution for indecency with a child); Self v. State, 860 S.W.2d 261, 263 (Tex.App.—Fort Worth 1993, pet. ref’d) (holding that where credibility of the complainant is challenged in sexual assault case, proof of similar acts may be admissible).

. The court also observed in dicta that the charge failed to limit the jury’s consideration of the extraneous offense to rebuttal of the defensive theory and, thus, the evidence was inadmissible. See Owens, 827 S.W.2d at 917. However, if testimony is admissible at the time it is tendered into evidence, it cannot be rendered inadmissible by an erroneous juiy instruction. In other words, admissible evidence cannot be rendered inadmissible by a subsequent mistake in the charge. If the charge is wanting in some vital aspect of the law, the mistake constitutes charge error, not an evidentiary error.

. This portion of the court’s analysis seems contrary to the well-established rule that if the trial judge’s decision to admit evidence is correct on any theory of law applicable to the case, whether articulated by the proponent or not, it should be sustained. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

. The probative value of the evidence was significant. See Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App.1985) (holding the probative value of an extraneous offense is determined by its (1) similarity between the extraneous offense and the offense charged; (2) the temporal proximity of the two offenses; and (3) the availability of alternative sources of proof). In both instances, the victims were exotic dancers; they became extremely intoxicated on the day they were assaulted; appellant took them from their place of work to his apartment; and, after deadbolting the door, he sexually assaulted them. Both victims were forced to perform deviate sexual intercourse. During both assaults, appellant seemed to derive pleasure from manually choking his victims. In each case, they were allowed to leave after calling a taxicab. Additionally, the offenses occurred within the space of sixteen months. Finally, the record does not disclose the existence of other evidence that would have effectively rebutted appellant’s fabrication theory.

Further, the ultimate issue was seriously contested by appellant; the probative value of the extraneous offense was particularly compelling, and the evidence was of a such a nature that a limiting instruction could minimize its prejudicial effect. See Prieto v. State, 879 S.W.2d 295, 298 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd).

. Because the State cannot be required to accurately predict which defensive theory the accused will advance at trial, notice of other crimes, wrongs, or acts is not required where the extraneous offenses are offered in rebuttal to a defensive theory. See Yohey v. State, 801 S.W.2d 232, 235 (Tex.App.—San Antonio 1990, pet. ref'd); Herring v. State, 752 S.W.2d 169, 172 (Tex.App.—Houston [1st Dist.] ), remanded on other grounds, 758 S.W.2d 283 (Tex.Crim.App.1988).