the 85th District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and ,
Justice Neill (Chief Justice Gray dissenting)
E. NEILL JUSTICE
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.
Standard of Review
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.
Texas Rule of Evidence 404(b)
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.
Preservation of Error
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
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)).
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).
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)).
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.
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.
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.
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."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 ...