                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00326-CR
                           ____________________

                         LEE ROY BIBLE, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-08-08966 CR
________________________________________________________           _____________

                         MEMORANDUM OPINION

      Lee Roy Bible was charged with sexually abusing his granddaughter, S.M.

A jury convicted Bible of two counts of indecency with a child, and the trial court

sentenced Bible to thirty years in prison on each count. In three appellate issues,

Bible challenges the admission of extraneous-offense evidence. We affirm the trial

court’s judgment.




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      We review a trial court’s admission of extraneous-offense evidence under an

abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim.

App. 1998) (op. on reh’g). Evidence of other crimes, wrongs, or acts may be

admissible for purposes such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b).

Even relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, misleading

the jury, or by considerations of undue delay or needless presentation of

cumulative evidence. Tex. R. Evid. 403.

      In issue one, Bible challenges the admission of evidence based on sexual

abuse allegations made in 2000 by another granddaughter, S.B. According to

Bible, this evidence was presented through S.M.’s testimony, Detective Melanie

Wood’s testimony, and an audio recording of an interview between Wood and

Bible in violation of Rule 403. At a pretrial motion in limine hearing, the State

explained that S.M. gave a delayed outcry because, in 2000, S.B. made sexual

abuse allegations against Bible, which led to a physical altercation between S.B.’s

father and Bible, after which Bible stopped abusing S.M. and S.M. did not want

Bible to get into trouble. The defense argued that this evidence was highly

prejudicial and not probative. The trial court withheld a ruling. At a later hearing,

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the parties discussed the admissibility of an audio recording of Wood’s interview

with Bible that contained discussions about S.B. The trial court ordered that the

recording be redacted to omit references to S.B., subject to further rulings.

      During opening statements, defense counsel argued that S.M.’s father had

molested her during the same time period and the evidence would show that:

      . . . there was an incident where . . . she got a little nervous and fidgety
      and shied away from a boy, from her boyfriend.

            And she could see he was hurt by the way she was responding
      to him. And in explanation of that, what does she do? “My grandpa
      has been molesting me.” . . . But who is she closer to -- dad or step
      grandfather?

              So, in explanation, she is not going to tell that boyfriend: My
      dad is doing this. She is going to tell: Granddad did it, step granddad
      did it.

S.M. subsequently testified that she did not disclose the abuse because she was

afraid Bible would get into trouble. On cross-examination, the following exchange

occurred:

            Defense Counsel: And you were not afraid your father was
      going to beat up Mr. Bible because you know what your father was
      doing to you, correct?

             S.M.: Right.

            Defense Counsel: So you really -- that’s not the reason for your
      delayed outcry, correct?

             S.M.: No. I mean, you’re wrong. That is the reason.
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            Defense Counsel: Because you were afraid of your father
      beating him up?

             S.M.: Because I was afraid.

             ...

            Defense Counsel: And this whole thing came about because
      you had to explain to a boyfriend why you didn’t want him touching
      you.

             S.M.: Right.

             Defense Counsel: Because you put it all on Mr. Bible, right?

             S.M.: Right.

            Defense Counsel: You didn’t tell him all the horrible things
      your dad was doing to you because you didn’t want to get your dad in
      trouble, right?

             S.M.: Right.

             Defense Counsel: And that’s the real reason you’re telling this
      story about Mr. Bible.

             S.M.: Right.

On redirect, the State argued that the door had been opened to extraneous acts to

explain S.M.’s delayed outcry, and the trial court agreed. Over the defense’s

hearsay objections, S.M. testified that she had heard about a physical fight between

Bible and her uncle over Bible’s inappropriate acts with S.B. S.M. denied

fabricating the allegations against Bible.
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      Before Wood testified, the State expressed intent to offer the audio recording

without redacting discussions about S.B. Over Bible’s Rule 403 objections, the

trial court ruled that the conversations would be admitted and that Wood could

testify to this subject. The record does not indicate that Bible obtained a running

objection on Rule 403 grounds. Wood testified that she was involved in a 2000

indecency with a child case regarding sexual abuse of S.B. by Bible. Wood

testified that S.B.’s father fought with Bible when he heard about the allegations.

The trial court gave the jury a limiting instruction regarding Wood’s testimony.

The State subsequently played the audio recording for the jury.

      We first address the State’s contention that Bible has failed to preserve this

issue for appellate review. Bible objected to admission of evidence concerning the

2000 allegations at the pre-trial motion in limine hearing, but did not obtain a

ruling on his objection at that time. See Tex. R. App. P. 33.1(a). Moreover, “[f]or

error to be preserved with regard to the subject of a motion in limine, an objection

must be made at the time the subject is raised during trial.” Fuller v. State, 253

S.W.3d 220, 232 (Tex. Crim. App. 2008). When S.M. testified, however, Bible

objected solely on hearsay grounds. A hearsay objection does not constitute the

proper evidentiary basis for challenging extraneous-offense evidence. See

Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (“An objection

                                         5
stating one legal theory may not be used to support a different legal theory on

appeal.”).

      Regarding the recorded interview, the trial court initially agreed that

references to S.B. should be redacted. Absent an adverse ruling, however, nothing

was preserved for review at that time. See Flores v. State, 871 S.W.2d 714, 723

(Tex. Crim. App. 1993). By the time Wood testified, without a Rule 403 objection,

and the jury heard the audio recording, S.M. had already testified to the 2000

allegations without a Rule 403 objection. Additionally, one of the defense’s own

witnesses, Bible’s wife, acknowledged that she was aware of a situation involving

S.B. that occurred in 2000 and that she did not know anyone who saw anything

happen between S.B. and Bible. On cross-examination, without an objection from

the defense, Bible’s wife testified that she was aware of a 2000 physical altercation

between Bible and his son.

      Even the erroneous admission of evidence will not require reversal when the

same or similar evidence was received without objection, either before or after the

complained-of evidence. See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim.

App. 2010). Bible’s hearsay objections to S.M.’s testimony cannot be used to

support a different legal theory, violation of Rule 403, on appeal. See Clark v.

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also Camacho, 864

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S.W.2d at 533. Because the same or similar evidence was admitted through S.M.’s

testimony, without an objection on the proper evidentiary basis, and Bible’s own

defense witness, Bible has forfeited any complaint regarding the interview and

Wood’s testimony on the same subject matter. See Coble, 330 S.W.3d at 282. We

overrule issue one.

      In issues two and three, Bible challenges the admission of testimony from

A.W., the victim of a 1983 sexual abuse offense involving Bible. Bible contends

that A.W.’s testimony was admitted into evidence in violation of Rules of

Evidence 403 and 404. During discussions regarding Wood’s recorded interview

with Bible, the trial court ordered that the recording be redacted to exclude any

conversations related to A.W. Before A.W. testified, the defense argued that her

testimony was irrelevant, not probative, and prejudicial. The trial court overruled

the objection on grounds that the evidence was admissible to rebut the defensive

theory of recent fabrication, but stated that A.W. could not testify that Bible went

to prison for the offense. The trial court gave the jury a limiting instruction before

A.W.’s testimony. A.W. testified that Bible was a family friend and that when she

was seven years old, Bible sexually assaulted her.

      Rebuttal of a defensive theory is a permissible purpose for which evidence

may be admitted under Rule 404(b). Williams v. State, 301 S.W.3d 675, 687 (Tex.

                                          7
Crim. App. 2009). Specifically, extraneous-offense evidence is admissible to rebut

the defensive theory that the complainant fabricated the allegations against the

defendant. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). In this

case, the defense raised the issue of fabrication by arguing that S.M. lodged

allegations against Bible because she did not want her boyfriend to know that her

father was her abuser and by questioning S.M. on this topic. On appeal, Bible

contends that A.W.’s testimony could not be used to rebut his defense because the

1983 offense is not sufficiently similar to the charged offense.

      An extraneous offense offered to rebut a defensive theory of fabrication does

not require the same degree of exacting similarity between the extraneous and

charged offenses as does an extraneous offense offered to prove a defendant’s

system of committing criminal acts. Dennis v. State, 178 S.W.3d 172, 179 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d). The charged offense and the

extraneous offense must at least be similar. See Wheeler v. State, 67 S.W.3d 879,

887 n.22 (Tex. Crim. App. 2002). In this case, both S.M. and A.W. are female,

both were children at the time of the abuse, both were around the same age at the

time of the abuse, Bible knew both of the victims, and though not identical, both

offenses involved similar sexual acts. It is subject to reasonable disagreement

whether A.W.’s testimony was admissible for the noncharacter-conformity purpose

                                          8
of rebutting Bible’s defensive theory that S.M. fabricated her allegations against

him. See Bass, 270 S.W.3d at 563. It is also subject to reasonable disagreement

whether A.W.’s testimony made Bible’s defensive theory of fabrication less

probable. See id. Under these circumstances, the trial court did not abuse its

discretion by concluding that A.W.’s testimony was admissible to rebut Bible’s

defensive theory of fabrication.

      Nevertheless, even relevant evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. A

Rule 403 balancing test considers:

      (1) the inherent probative force of the proffered item of evidence
      along with (2) the proponent’s need for that evidence against (3) any
      tendency of the evidence to suggest decision on an improper basis, (4)
      any tendency of the evidence to confuse or distract the jury from the
      main issues, (5) 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 (6) the likelihood that 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). Rule 403

envisions exclusion of evidence only when there is a clear disparity between the

degree of prejudice of the extraneous-offense evidence and its probative value.

Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). Rule 403 favors

the admission of relevant evidence and presumes that relevant evidence will be

                                        9
more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim.

App. 2007).

      On appeal, Bible complains that the 1983 offense was too remote from the

charged offense and that the State had already introduced evidence of the 2000

offense, thereby reducing the probative value of A.W.’s testimony. Although the

remoteness of an extraneous offense impacts its probative value, there is no

“presumptive time limitation which must be met for an extraneous offense to have

probative value.” Newton v. State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009,

pet. ref’d). A.W.’s testimony was probative to rebut Bible’s defensive theory of

fabrication, but this factor weighs only slightly in favor of admissibility, given the

remoteness of the 1983 offense. See id. at 320. While the State had presented

evidence of the 2000 offense, because there were no witnesses to the abuse of S.M.

and Bible claimed S.M. fabricated her allegations, the trial court could have

determined that the State had a considerable need for evidence of the 1983 offense.

See id.

      A.W.’s testimony consumed a relatively small portion of the evidence

presented at trial, was not cumulative, and, in closing, the State argued that A.W.’s

testimony was offered as evidence to rebut Bible’s defensive theory of fabrication.

Additionally the trial court’s limiting instruction, which restricted the jury’s

                                         10
consideration of A.W.’s testimony to rebut the defensive theory of fabrication and

for no other purpose, minimized any impermissible inference of character

conformity. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996).

Finding no clear disparity between the degree of prejudice of the 1983 offense and

its probative value, we hold that the trial court did not abuse its discretion by

admitting A.W.’s testimony into evidence. See Hammer, 296 S.W.3d at 568. We

overrule issues two and three and affirm the trial court’s judgment.

      AFFIRMED.




                                              ________________________________
                                                      STEVE McKEITHEN
                                                         Chief Justice

Submitted on June 19, 2013
Opinion Delivered July 10, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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