In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00329-CR
____________________
JAMES ARCENEAUX, Appellant
V.
THE STATE OF TEXAS, Appellee
_________________________________ ______________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 13-18199
____________________________________________ ____________
MEMORANDUM OPINION
A jury convicted James Arceneaux of aggravated sexual assault of a child
under section 22.021 of the Texas Penal Code and assessed punishment at thirty
years of confinement. In three appellate issues, Arceneaux contends that the trial
court erred by (1) admitting the recorded interview of the child, (2) allowing an
outcry witness to testify during trial, and (3) admitting extraneous offense
testimony. We affirm the trial court’s judgment.
1
Background
The State charged Arceneaux with “intentionally and knowingly causing the
penetration of the FEMALE SEXUAL ORGAN of [R.H.] by inserting his
SEXUAL ORGAN; and [R.H.] was then and there younger than (14) years of
age[.]” During the trial, R.H. testified that Arceneaux touched her in a bad way
when she was at her aunt’s house. R.H. testified that Arceneaux touched the place
where she goes “pee pee” with his “dick.”
Nancy Blitch, a forensic interviewer, who conducted an interview with R.H.,
also testified at trial. According to Blitch, R.H. was six years old when the
interview occurred, and R.H. was “very active throughout the interview.” R.H.
provided details that were consistent with the details that Blitch received from law
enforcement and other agencies. R.H. identified Arceneaux as the person who had
sexually abused her.
The jury heard testimony from Walter Oliver, R.H.’s uncle, who the trial
court allowed to testify as the outcry witness. Oliver testified that R.H. told him
that Arceneaux had “stuck his thing inside of her thing[,]” and that when R.H. said
“thing,” she pointed to her vagina. R.F., R.H.’s sister, testified that Arceneaux had
touched R.F.’s genitals with his hand on more than one occasion and had shown
her his genitals. R.F. further testified that she saw Arceneaux touch R.H.’s genitals
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with his hand and put his “thing” in R.H. The jury found Arceneaux guilty of
sexually assaulting R.H. and assessed punishment at thirty years’ imprisonment.
The trial court sentenced Arceneaux to thirty years in prison. Arceneaux appeals
the trial court’s judgment.
Analysis
In issue one, Arceneaux complains that the trial court erred by admitting
R.H.’s recorded interview after R.H. had already testified at trial. During Blitch’s
testimony, the State offered into evidence a recording of R.H.’s interview. At that
point, Arceneaux’s counsel objected based on hearsay and argued that the
admission of the recording violated Rule 403. See Tex. R. Evid. 403. The
prosecutor argued that because the defense was trying to impeach R.H., the
recording was being offered to show that R.H.’s previous statement was consistent
with her trial testimony. The trial court overruled Arceneaux’s counsel’s objection
to the admission of the recording. The trial court found that R.H.’s recorded
interview was not hearsay, the recording was admissible under Rule 801 as a prior
consistent statement, and the recording was offered to rebut an express or implied
charge of recent fabrication, improper influence, or motive. See Tex. R. Evid.
801(e)(1)(B). The trial court further found that the “prejudice of its admission does
not substantially outweigh the probativeness.”
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We review a trial court’s determination that a prior consistent statement is
admissible under an abuse of discretion standard, and we will not reverse as long
as the judge’s decision lies within the zone of reasonable disagreement. 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 2015, pet. ref’d). Rule 801 of the Texas
Rules of Evidence provides that a statement is not hearsay if the declarant testifies
at trial, is subject to cross-examination concerning the statement, and 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. Tex. R. Evid. 801(e)(1)(B). A trial court has substantial discretion to admit
a prior consistent statement even if there has been only a suggestion of conscious
alteration or fabrication. Fears, 479 S.W.3d at 332 (citing Hammons, 239 S.W.3d
at 804-05). In Hammons, the Texas Court of Criminal Appeals explained that:
[A] reviewing court, in assessing whether the cross-examination of a
witness makes an implied charge of recent fabrication or improper
motive, should focus on the “purpose of the impeaching party, the
surrounding circumstances, and the interpretation put on them by the
[trial] court.” Courts may also consider clues from the voir dire,
opening statements, and closing arguments. From the totality of the
questioning, giving deference to the trial judge’s assessment of tone,
tenor, and demeanor, could a reasonable trial judge conclude that the
cross-examiner is mounting a charge of recent fabrication or improper
motive? If so, the trial judge does not abuse his discretion in admitting
a prior consistent statement that was made before any such motive to
fabricate arose.
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Hammons, 239 S.W.3d at 808-09 (footnotes omitted).
The record shows that defense counsel attacked R.H.’s credibility during the
trial. During voir dire, defense counsel questioned the prospective jurors about
their experiences with children lying. During defense counsel’s cross-examination
of R.H., defense counsel asked R.H. if somebody else had told her what she was
supposed to say. During opening statements, defense counsel stated that he
believed the evidence would show that the family has a history of making
accusations of molestation and that the “family continues to lie and [is] now
teaching the children to lie.” During closing arguments, defense counsel argued
that R.H. had “many different stories as far as how this sexual assault allegedly
happened.” Defense counsel argued that this case was about credibility and also
implied that the family was “us[ing] their children to get back at somebody else.”
The trial court evidently interpreted the “tone, tenor, and demeanor” of
defense counsel as attacking R.H.’s credibility and raising a charge of fabrication.
See Hammons, 239 S.W.3d at 808. Thus, the purpose of the impeaching party, the
surrounding circumstances, and the trial court’s interpretation of the questioning all
support the trial court’s ruling. See id. Because the trial court has “substantial
discretion” to admit prior consistent statements after determining that the witness’s
credibility has been challenged, we conclude that the trial court did not abuse its
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discretion by determining R.H.’s recorded interview was admissible under Rule
801 as a prior consistent statement. See id. at 804-05.
We further conclude the trial court did not abuse its discretion by
determining that the admission of the recording was more probative than
prejudicial. Rule 403 of the Texas Rules of Evidence provides as follows: “The
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Tex. R. Evid. 403. “Rule 403 favors admissibility of
relevant evidence, and the presumption is that relevant evidence will be more
probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372, 389 (Tex.
Crim. App. 1990) (op. on reh’g).
In determining whether the trial court abused its discretion by admitting the
evidence, we must balance the inherent probative force of the proferred item of
evidence along with the proponent’s need for that evidence against (1) any
tendency of the evidence to suggest a decision on an improper basis, (2) any
tendency of the evidence to confuse or distract the jury from the main issues, (3)
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 (4) the likelihood that
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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). The trial court in this case concluded that:
The fact of the matter is any of this evidence is going to be highly
prejudicial, but the Court is inclined to admit it under the purposes
and the reasons proffered by the State of Texas and would find that
the prejudice of its admission does not substantially outweigh the
probativeness. Any . . . evidence . . . presented that a child has been
sexually assaulted is of the highest prejudicial nature. . . . And the
question is in light of the circumstances of the testimony, whether it’s
in the best interest of justice and under the rules of evidence to admit
it; and the Court is going to allow its admission for the purposes that
are being proffered by the State of Texas.
The trial court could have reasonably concluded that the State demonstrated it
needed the evidence to counter the defense’s theory that R.H. lacked credibility,
that the evidence did not consume an inordinate amount of time or merely repeat
evidence already admitted, and that the evidence did not have a tendency to
suggest a decision on an improper basis or to confuse or distract the jury from the
main issues in the case. See Gigliobianco, 210 S.W.3d at 641-42. Weighing the
above factors, we conclude the trial court’s determination that the admission of the
recording was more probative than prejudicial is within the zone of reasonable
disagreement. We overrule issue one.
In issue two, Arceneaux argues that the trial court erred by allowing Oliver
to testify as the outcry witness because Oliver was not the first person over
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eighteen to whom R.H. spoke about the offense. Prior to trial, the State provided
Arceneaux with notice of its intent to have Oliver testify as the outcry witness.
Defense counsel objected to Oliver’s testimony based on hearsay. The trial court
conducted a hearing to determine the reliability of the outcry statement and to
determine whether Oliver was the first person R.H. had told in a discernible
manner. The State argued that Oliver was the first outcry witness whom R.H.
clearly relayed the allegations because Oliver was the only person that R.H. told
about Arceneaux “sticking his thing in her.” Defense counsel argued that Oliver
was not the first outcry witness, but also conceded that there was no evidence that
R.H. had outcried in a discernible fashion to someone other than Oliver.
The trial court noted that “to qualify as an outcry statement . . . an outcry
statement must be more than a general [a]llusion [to] sexual abuse and the child
must have described the alleged offense in some discernible way amounting to
more than words which give a general [a]llusion that something in the area of child
abuse was going on.” Oliver testified outside the presence of the jury concerning
the circumstances surrounding R.H.’s outcry statement and the contents of her
statement. After hearing Oliver’s testimony, the trial court allowed Oliver to testify
as the outcry witness under article 38.072 of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2015). The
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trial court found that the “statement has reliability sufficient under the law for its
admissibility based upon the time, content[,] and circumstances of the making of
the statement[,]” and that R.H.’s statement to Oliver “is clear and unambiguous
and is consistent with other evidence that has been received so far in this trial[.]”
The trial court further found that there was no suggestion that the child had any
basis to fabricate this story or motive to do so, the child appreciated the difference
between truth and falsity, and under the circumstances of the evidence, the accused
had the opportunity to commit the offense as alleged.
We review a trial court’s decision to admit an outcry statement under an
abuse of discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.
App. 1990); Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008,
pet. ref’d). A trial court has broad discretion in determining the admissibility of the
proper outcry witness, and we will uphold the trial court’s finding so long as the
finding is supported by the evidence. Reyes, 274 S.W.3d at 727.
Article 38.072 allows for the admission of otherwise inadmissible hearsay in
the prosecution of offenses against children fourteen years and younger. See Tex.
Code Crim. Proc. Ann. art. 38.072. The statute applies to statements describing the
alleged offense that are made by the child against whom the offense was allegedly
committed, and that are made to the first person, eighteen years of age or older,
9
other than the defendant. Id. § 2(a)(2), (3). “To qualify as an outcry statement
under article 38.072, the statement must be more than a general allusion of sexual
abuse and the child must have described the alleged offense in some discernible
way, that being ‘more than words which give a general allusion that something in
the area of child abuse was going on.’” Reyes, 274 S.W.3d at 727 (quoting Garcia,
792 S.W.2d at 91). The trial court must conduct a reliability hearing outside the
presence of the jury to determine whether the statement is reliable and whether the
witness may be designated as an outcry witness. Id.; see Tex. Code Crim. Proc.
Ann. art. 38.072, § 2(b)(1)(C)(2); Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim.
App. 2011).
The record shows that the trial court conducted a hearing outside the
presence of the jury to determine the reliability of the outcry statement, and during
that hearing, Arceneaux’s counsel admitted there was no evidence showing that
R.H. had outcried in a discernible fashion to someone other than Oliver. The
record reflects that R.H.’s statements to Oliver included a description of the
alleged offense with R.H. describing how Arceneaux had put his “thing” into her
“thing.” According to Oliver, it was clear to him that R.H. had alleged that
Arceneaux put his penis in R.H.’s vagina. The trial court found that the outcry
statement was reliable and admitted Oliver’s testimony as the outcry witness under
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article 38.072. We hold that the trial court did not abuse its discretion in
determining that Oliver was the proper outcry witness or in allowing Oliver to
testify as the outcry witness. See Garcia, 792 S.W.2d at 92; Reyes, 274 S.W.3d at
727. We overrule issue two.
In issue three, Arceneaux contends that the trial court erred by allowing R.F.
to testify concerning other criminal acts Arceneaux had allegedly committed in
violation of Rule 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 404(b).
Arceneaux also argues that R.F.’s testimony was more prejudicial than probative.
See Tex. R. Evid. 403.
We review a trial court’s decision to admit extraneous offense evidence
under an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343-44
(Tex. Crim. App. 2009); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003). We also give deference to a trial court’s ruling on the balance between the
probative value of the evidence and the danger of unfair prejudice. De La Paz, 279
S.W.3d at 343; see Tex. R. Evid. 403. We will uphold the trial court’s ruling as
long as it is within the zone of reasonable disagreement. Moses, 105 S.W.3d at 627
(citing Montgomery, 810 S.W.2d at 391). A trial court’s ruling is generally within
the zone of reasonable disagreement if the extraneous offense evidence is relevant
to a material, non-propensity issue, and if the probative value of the evidence is not
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substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury. De La Paz, 279 S.W.3d at 344.
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Tex. R. Evid. 404(b)(1). However, extraneous
offense evidence may be admissible for other purposes, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. Tex. R. Evid. 404(b)(2). Rebuttal of a defensive theory is also one
of the permissible purposes for which relevant evidence may be admitted under
Rule 404(b). Moses, 105 S.W.3d at 626.
The record shows that the trial court conducted a hearing outside the
presence of the jury regarding the extraneous offense evidence. During the hearing,
R.F. testified that when she and R.H. went to their aunt’s house, Arceneaux would
put them on his lap and touch their private areas with his hand. R.F. further
testified that Arceneaux had shown them his private parts more than once.
Arceneaux’s counsel objected to R.F. testifying during trial about any extraneous
offenses Arceneaux allegedly committed because they were inadmissible under
Rule 404(b). The trial court found that R.F.’s testimony was admissible under Rule
404(b) for the following reasons:
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Under Rule 404(b), it does rebut the inference of the defendant’s
strategy that this Court has drawn that the complainant lacks
credibility; and this supports the credibility of the complainant’s
testimony. It also shows a common scheme of conduct of sexual
assault involving children and whether [it’s] indecency with a child or
actually sexual assault, those are sexual assault offenses under the
sexual assault chapter. They are all dealt with as the same subject
matter. It also shows an opportunity for the defendant to commit these
offenses because he’s alleged in this instance of this witness and the
complainant occurring at the same location under similar
circumstances. And also, it shows a motive and that is the propensity
of sexual acts involving victimization of children[.]
Based on the record, the trial court could have reasonably concluded that
R.F.’s testimony was admissible to rebut Arceneaux’s defensive theory that R.H.
lacked credibility, and thus had relevance apart from its tendency to show
Arceneaux’s character and that Arceneaux acted in conformity therewith. See Tex.
R. Evid. 404(b); Montgomery, 810 S.W.2d at 394; Self v. State, 860 S.W.2d 261,
263 (Tex. App.—Fort Worth 1993, pet. ref’d) (holding that proof of similar acts
may be admissible when one accused of sexually assaulting a child challenges the
credibility of the complainant). The record shows that during R.H.’s cross-
examination, defense counsel asked R.H. if someone had told R.H. what to say
during trial. Defense counsel also questioned Oliver about whether R.H. had a
tendency to lie. R.F.’s testimony was relevant because it had a tendency to make
the determination that Arceneaux sexually assaulted R.H. more or less probable.
See Tex. R. Evid. 401. R.F.’s testimony was also relevant to show a common
13
scheme, opportunity, and motive. See Tex. R. Evid. 404(b)(2); Montgomery, 810
S.W.2d at 387. We hold that the trial court did not abuse its discretion by
determining that R.F.’s testimony was admissible under Rule 404(b).
Arceneaux also argues that even if R.F.’s testimony is admissible under Rule
404(b), the trial court should have excluded the testimony because it was more
prejudicial than probative. See Tex R. Evid. 403. Once a trial court determines that
extraneous offense evidence is admissible under Rule 404(b), the trial court must,
upon proper objection by the opponent of the evidence, weigh the probative value
of the evidence against its potential for unfair prejudice. Gigliobianco, 210 S.W.3d
at 641-42.
Having held that the trial court did not abuse its discretion by finding that
R.F.’s testimony was admissible under Rule 404(b), we must now determine
whether the trial court abused its discretion by determining that the probative value
of R.F.’s testimony outweighed any unfair prejudicial impact. See Gigliobianco,
210 S.W.3d at 641-42; Rivera v. State, 269 S.W.3d 697, 706-07 (Tex. App.—
Beaumont 2008, no pet.) (conducting a Rule 403 analysis to determine whether
extraneous offense evidence is more probative than prejudicial). Our review of the
record shows that the trial court could have reasonably concluded that the State’s
need for the evidence was considerable since Arceneaux’s defensive theory
14
challenged R.H.’s credibility. See generally Gigliobianco, 210 S.W.3d at 641-42.
The trial court could have reasonably concluded that R.F.’s testimony did not tend
to suggest that the jury decide the case on an improper basis or tend to confuse or
distract the jury from the primary issues. See generally id. The trial court could
have also reasonably concluded that R.F.’s testimony would not consume an
inordinate amount of time or repeat evidence already admitted. See generally id.
We conclude that the trial court did not abuse its discretion by determining
that the probative value of R.F.’s testimony outweighed the potential prejudice to
Arceneaux. Because the trial court’s decision to admit the extraneous offense
evidence is within the zone of reasonable disagreement, we conclude that the trial
court did not abuse its discretion by overruling Arceneaux’s objections to the
extraneous offense evidence. See De La Paz, 279 S.W.3d at 343-44. We overrule
issue three. Having overruled all of Arceneaux’s issues, we affirm the trial court’s
judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on June 23, 2015
Opinion Delivered September 28, 2016
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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