Creekmore v. State

BUTTS, Justice,

concurring in result.

I concur in the result. Appellant complains about the admission of testimony of his earlier sexual assaults against children, clearly extraneous offenses. The trial court did not err in admitting the rebuttal evidence.

Since long before the passage of the Texas Rules of Criminal Evidence, trial courts have allowed such evidence, not otherwise admissible, when “the door was opened” by direct defense testimony. That is still the law.

The majority opinion sets out in detail how the evidence door was clearly opened by appellant to authorize exactly the kind of rebuttal testimony which now plagues him. A telling “door-opener” was the testimony of *889the psychologist who quoted appellant’s absolute denial to her that he was a pedophile: “He says he is not. He says he has never sexually molested anyone.” Appellant testified and denied committing the charged offense. His parents denied that he would ever sexually abuse children. The direct evidence presented by appellant purports to show that he not only did not commit the act charged, but that he never had engaged in this kind of proscribed act (sexual abuse of children), and, further, that he was the victim of a conspiracy of the complaining witness and her mother, pictured as moral degenerates.

The State was entitled to impeach the defense witnesses’ evidence by introduction of the extraneous offenses. See McIlveen v. State, 559 S.W.2d 815, 822 (Tex.Crim.App.1977). See also Bell v. State, 620 S.W.2d 116 (Tex.Crim.App.1981) (opinion on rehearing), where it was held that

even if the objection was sufficient, the State had the right to inquire under the exception to the general rule about the arrest and conviction for possession of marihuana since the appellant had “opened the door” on direct examination.

Id. at 126.

It was established on direct examination that the defendant in Bell had nothing in his criminal past except one embezzlement conviction. The State was then permitted to show on cross-examination that the defendant had been arrested for two offenses of aggravated robbery, for possession of marihuana, and convicted of fleeing from a police officer. Id. at 124. No error was shown.

Rebuttal testimony of extraneous sexual offenses was held admissible in Patton v. State, 717 S.W.2d 772 (Tex.App. — Fort Worth 1986), vacated on other grounds, 761 S.W.2d 1 (Tex.Crim.App.1988). The court stated the purpose for allowing the rebuttal impeachment was to correct the false impression given the jury by the defendant that this was an isolated incident, and that he was such a close friend of the sexual abuse victim and his family he would never intentionally do anything to harm them or cause them trauma. Patton, 717 S.W.2d at 777. Rebuttal evidence showing other sex offenses against that child, which impeached the defendant’s testimony, was permitted. Id.; accord, Wilson v. State, 730 S.W.2d 438, 440-41 (Tex.App. — Fort Worth 1987, pet. ref'd).

In the present ease, the rebuttal evidence of the former sexual abuse victims was correctly admitted to impeach the evidence of appellant that he had never sexually abused any child. Appellant “opened the door.” No error is shown.