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Webb v. State

Court of Appeals of Texas, Tenth District

May 15, 2019


          From the 85th District Court Brazos County, Texas Trial Court No. 14-03111-CRF-85

          Before Chief Justice Gray, Justice Davis, and , Justice Neill (Chief Justice Gray dissenting)



         In three issues, appellant, Everett Dale Webb, challenges his conviction for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2018). Specifically, Webb argues that the trial court abused its discretion by admitting extraneous-offense evidence of other sexual offenses in violation of Texas Rules of Evidence 403 and 404(b) and that the trial court's limiting instruction regarding the extraneous-offense evidence was erroneous. See Tex. R. Evid. 403, 404(b). Because we overrule all of Webb's issues on appeal, we affirm.

         I. Standard of Review

         We review a trial court's admission or exclusion of evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit or exclude evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

         II. Texas Rule of Evidence 404(b)

         In his first issue, Webb contends that the trial court abused its discretion by admitting extraneous-offense evidence of two prior sexual offenses he committed. In particular, Webb argues that the evidence is inadmissible because the defense of fabrication was not at issue at the time the evidence was admitted, and because the extraneous offenses are too dissimilar to the offense in this case.

         A. Preservation of Error

         At the outset, we will address the State's contention that Webb's complaint in this issue was not preserved. When the State moved to introduce extraneous-offense evidence pertaining to sexual-assault offenses allegedly committed by Webb against two other victims, T.T. and C.H., Webb objected under Rule 404(b). See Tex. R. Evid. 404(b). Though Webb argued a Rule 404(b) notice objection, a fair reading of the record shows that Webb did alert the trial judge to his argument that Rule 404(b) prevented the admission of extraneous-offense evidence when Webb had not yet put into issue a defense of fabrication. Accordingly, we conclude that Webb preserved his complaint in this issue. See Tex. R. App. P. 33.1(a)(1)(A) (noting that a complaint is preserved for appellate review if the record shows that appellant made the complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the appellant sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context).

         B. Applicable Law

         Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. "The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive." De la Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). "'Rule 404(b) is a rule of inclusion rather than exclusion.'" Id. (quoting United States v. Bowie, 232 F.3d 923, 929, 344 U.S.App.D.C. 34 (D.C. Cir. 2000)). "The rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character." Id. (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).

         Rebuttal of a defensive theory is one of the permissible purposes for which extraneous-offense evidence may be admitted. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Further, extraneous offenses are admissible to rebut theories raised by the testimony of a defense witness during direct examination or a State's witness during cross-examination. See Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996).

         The State may present extraneous-offense evidence to rebut a defensive theory of fabrication. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). To be admissible for rebuttal of a fabrication defense, "'the extraneous misconduct must be at least similar to the charged one.'" Newton v. State, 301 S.W.3d 315, 317 (Tex. App.-Waco 2009, pet. ref'd) (op. on remand) (quoting Wheeler v. State, 67 S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002)). The requisite degree of similarity is not exacting, and the extraneous conduct need only be sufficiently similar to the charged offense. Dennis v. State, 178 S.W.3d 172, 178 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd); see Newton, 301 S.W.3d at 317 ("Although some similarity is required, the requisite degree of similarity is not as exacting as necessary when extraneous-offense evidence is offered to prove identity by showing the defendants 'system' or modus operandi." (internal citations omitted)).

         C. Discussion

         On appeal, Webb contends that he did not accuse the child victim, R.G., of fabricating her story through cross-examination, nor did he put fabrication at issue by an opening statement made prior to the admission of the extraneous-offense evidence. As such, Webb asserts that he did not open the door to the use of the extraneous-offense evidence to rebut such a defense.

         During voir dire, Webb repeatedly asked a prospective juror about assumptions that children are telling the truth; the possibility of children changing their story when presented with information by law enforcement or by the passage of time; and the possibility of children lying about serious incidents. In fact, defense counsel used the term "lying" or "lie" eight times in the questioning of this particular prospective juror regarding allegations made by children.

         Additionally, during cross-examination of R.G., defense counsel asked a series of questions designed to suggest that R.G. was lying or changed her story regarding various facts pertaining to the incident. Specifically, defense counsel highlighted differences between R.G.'s testimony and statements made to law enforcement regarding clothing that was allegedly ripped during the incident, what body parts Webb touched, Webb's actions prior to driving her to Williamson Park-the location of the incident, R.G.'s explanations for why she did not call 911 while she was in Webb's truck, why R.G. did not sustain any injuries attributable to Webb's actions, and R.G.'s recollection that child locks prevented her from opening the door to Webb's truck to escape. It is also noteworthy that defense counsel asked the State's first witness, William Dunford of the Bryan Police Department, about obtaining statements from witnesses and the opportunity for complainants to create or concoct stories when speaking to different parties.

         Viewing defense counsel's voir dire and cross-examination of Officer Dunford and R.G. in the proper context, and keeping in mind that a trial court's ruling on the admissibility of extraneous-offense evidence is reviewed under an abuse-of-discretion standard, we cannot conclude that the trial court's conclusion that the defensive theory of fabrication was raised at this point falls outside the "zone of reasonable disagreement."[1]Montgomery, 810 S.W.2d at 380; see Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); see also Leal v. State, 2016 Tex.App. LEXIS 7918, at **5-6 (Tex. App.-San Antonio July 27, 2016, no pet.) (mem. op., not designated for publication) (concluding that the defensive theory of fabrication was raised when, during voir dire and cross-examination of several witnesses, defense counsel repeatedly made reference to people being ...

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