AFFIRM and Opinion Filed August 9, 2016




                                        S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-01226-CR

                          ROGER ALLEN STULCE JR., Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 380th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 380-80196-2013

                            MEMORANDUM OPINION
                Before Chief Justice Wright, Justice Bridges, and Justice Evans
                               Opinion by Chief Justice Wright

       A jury convicted Roger Allen Stulce Jr. of sexual assault and assessed a twenty-year

sentence and a $10,000 fine. In his sole issue, appellant contends the trial court erred in

admitting evidence of extraneous offenses in the guilt/innocence phase of trial. We affirm.

                                       BACKGROUND

       Appellant was charged with sexually assaulting M.S., his wife at the time, on July 19,

2008. The State sought to elicit extraneous offense testimony from M.S. about similar offenses

that occurred during their marriage. After conducting pretrial hearings and listening to the

proposed testimony of M.S., the trial court granted the State permission to introduce testimony

about two sexual assaults that occurred prior to the charged offense and also other contextual

evidence. The trial court opined that both incidents were contextual to the current charged
offense. The trial court denied the State permission to go into incidents occurring after the

charged offense.

       During trial, M.S. testified the first incident occurred in 1998 when appellant was serving

in the navy. According to M.S., appellant came home drunk and cornered her in the bathroom of

their apartment. Appellant asked her if he could penetrate her anus with his penis and proceeded

to do so after she refused permission. Appellant stopped when M.S.’s screams awoke their two-

year-old son who began crying outside the bathroom door. M.S. called the police but could not

complete the call because appellant ripped the telephone cord out of the wall. M.S. then used a

neighbor’s phone to contact the police. Although the police responded, M.S. chose not to press

charges. As a result of the incident, the navy required appellant to attend anger management and

other drug and alcohol abuse classes. M.S. testified that she believed appellant’s promise to not

sexually assault her again. Following the first incident, M.S. testified that she and appellant had

a normal marriage, which included a return to civilian life, appellant’s avoidance of alcohol, two

additional children, and a move to Texas.

       The second incident occurred in March 2008. M.S. testified that appellant penetrated her

anus without her consent after he returned from a business trip. Appellant attempted to justify

his behavior by telling M.S. that he believed she had cheated on him while he was away. M.S.

further testified that she did not report the incident because appellant led her to believe that she

could not survive financially on her own without him and that he would leave the country to

avoid paying child support if she left him.

       M.S. testified that in the months preceding the charged offense, appellant resumed

requests to penetrate her anus and would badger and harass her until she gave in. Although M.S.

consented to some of the requests, it was with heavy restrictions and she did not consent to every

request. Appellant began seeing a therapist and was prescribed Xanax. In July 2008, appellant

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resumed drinking and began to pressure M.S. for anal sex. On July 13, 2008, appellant was

taken to Green Oaks, a mental health facility, after he told M.S. that he had confessed to his

therapist that he was on the verge of sexually assaulting M.S. M.S. picked appellant up from

Green Oaks on July 19, 2008. Shortly after they arrived home, appellant began asking for sex.

M.S. and appellant engaged in consensual vaginal intercourse for a short period but appellant

then grabbed M.S.’s arm, rolled her over, and penetrated her anus without her consent. M.S.

testified the anal intercourse was very painful and she begged him to stop. In response, appellant

told her to shut up and be quiet. After finishing, appellant left the house and checked into a

hotel. He later called M.S. and told her that he wanted her to come to him so he could rape her.

Because he told her he was suicidal and would kill anyone she brought with her, M.S. called

police who performed a welfare check on appellant at the hotel. M.S. did not report the sexual

assault to police at that time. Instead, M.S. packed some of her belongings and took her three

children to California. M.S. reported the sexual assault eight days later from California because

she felt safe there. M.S. briefly returned to Texas to retrieve additional belongings. She felt it

was safe to do so because appellant was in a psychiatric hospital. Upon her return, she found a

message written in lipstick on a mirror at her home that renewed her fear. She discontinued

prosecution as a result and returned to California. M.S. admitted that the police report she filed

regarding the offense described it as vaginal intercourse and a 2008 divorce petition she filed and

withdrew in Collin County alleged appellant had sexually assaulted her but it did not describe the

assault as anal sex.

        M.S. testified she later tried to reconcile with appellant but they eventually divorced in

2010.   M.S. and appellant did not have contact from 2010 to 2012.            After learning new

information in July 2012, M.S. contacted police again and revived the current prosecution.




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Although not disclosed to the jury, the new information that caused M.S. to come forward was

her learning that appellant had been charged with sexually assaulting several other women.




                                  STANDARD OF REVIEW

        Whether to admit extraneous offense evidence in the face of defense objections is a

question for the trial court. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

The trial court’s determination to admit extraneous offense evidence is reviewed under an abuse

of discretion standard. Id. The trial court’s ruling must be upheld if it lies within the zone of

reasonable disagreement. Id. The trial court’s ruling on extraneous offense evidence is generally

within the zone of reasonable disagreement if the evidence shows (1) the extraneous event is

relevant to a material, non-propensity issue, and (2) the probative value of the evidence is not

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

of the jury. Id.

                                          ANALYSIS

       In his sole issue, appellant contends the trial court erred and abused its discretion in

allowing the State to elicit M.S.’s testimony about the 1998 and March 2008 offenses because

the State failed to prove beyond a reasonable doubt that the offenses occurred, the evidence was

not admissible under rule of evidence 404(b)(2), and the evidence should have been excluded as

more prejudicial than probative under rule of evidence 403. We will address each of appellant’s

contentions in order.

                                       Reasonable Doubt

       Appellant first contends the trial court erred in admitting M.S.’s extraneous offense

testimony because the State failed to prove the extraneous offenses beyond a reasonable doubt.

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Although appellant raised several objections to the proffered evidence, the record does not show

he specifically objected in the trial court on the ground he now raises on appeal. See TEX. R.

APP. P. 33.1 (requiring specific objection to preserve complaint for appellate review). Because

he did not object to the sufficiency of the evidence of the extraneous offenses, appellant has

failed to preserve this complaint for appeal. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012) (legal theory on appeal must correspond to legal theory raised in trial court).

       Appellant also suggests that he should be entitled to a review of the legal sufficiency of

the evidence regarding the extraneous offenses under the standard for legal sufficiency set forth

in Jackson v. Virginia, 443 U.S. 307 (1979).         The State responds that extraneous offense

evidence is not subject to legal sufficiency review. We agree with the State.

       In reviewing a case for legal sufficiency of the evidence, we consider all of the evidence

in the light most favorable to the judgment to determine whether a jury, relying on the evidence

and the reasonable inferences therefrom, was rationally justified in finding the defendant guilty.

See Jackson, 443 U.S. at 318–19; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

The jury is the sole judge of the credibility and weight of the evidence. See Jackson, 443 U.S. at

319; Temple, 390 S.W.3d at 360. Appellant cites no authority suggesting he is entitled to a

Jackson review of the sufficiency of extraneous offense evidence nor is there any logical way to

perform such a review consistent with the standard and the jury’s role as factfinder.

       Instead of relying upon Jackson, we review the trial court’s assessment of the evidence

under an abuse of discretion standard. See De La Paz, 279 S.W.3d at 343. When deciding

whether to admit extraneous offense evidence during the guilt/innocence phase of trial, the trial

court must make an initial determination that the jury could find beyond a reasonable doubt that

the defendant committed the extraneous offense. Harrell v. State, 884 S.W.2d 154, 160 (Tex.

Crim. App. 1994). Further, upon the defendant’s request, the trial court must instruct the jury

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not to consider the extraneous offense evidence admitted unless it believes beyond a reasonable

doubt that the defendant committed the extraneous offense. Delgado v. State, 235 S.W.3d 244,

251 (Tex. Crim. App. 2007). The jury is the ultimate trier of fact, and it alone determines if an

extraneous offense has been proven beyond a reasonable doubt. See Mitchell v. State, 931

S.W.2d 950, 954 (Tex. Crim. App. 1996) (the trial judge has the responsibility of determining

the threshold admissibility of extraneous offenses and the jury determines whether or not the

State has proven the extraneous offense beyond a reasonable doubt).

       The record indicates that the trial court held pretrial hearings and heard M.S.’s testimony

detailing extraneous offenses similar to the charged offense. The alleged perpetrator and victim

are the same, all of the offenses involve sexual assault by penetration of the complainant’s anus,

and the aftermath of each extraneous offense is comparable or contextual to the charged offense.

We conclude the record shows the trial court made the proper initial assessment of the

extraneous offenses and the trial court’s determination to admit the evidence is an implied

determination that the jury could reasonably find beyond a reasonable doubt that appellant

committed the extraneous offenses. See Harrell, 884 S.W.2d at 160; Jackson v. State, 65 S.W.3d

317, 321 (Tex. App.—Waco 2001, no pet).

       The trial court’s charge instructed the jury to consider the extraneous offenses only if it

found beyond a reasonable doubt that appellant committed the offenses and then only to establish

“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident . . . and for no other purpose.” To the extent the jury may have considered the

extraneous offenses in determining appellant’s guilt, we defer to its judgment on whether the

State proved them beyond a reasonable doubt. See Mitchell, 931 S.W.2d at 954.

                                   Application of Rule 404(b)




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       Secondly, appellant contends that the State failed to show that either of the extraneous

offenses were admissible under Texas Rule of Evidence 404(b)(2) and thus constitute

inadmissible character evidence. Appellant asserts that he presented no defenses that would

make the extraneous offense evidence admissible to rebut a defensive theory. Appellant further

contends that the 1998 offense was too remote to be probative under rule 404(b).

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show he acted in conformity therewith. TEX. R. EVID. 404(b)(1). It may be

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

knowledge, identity, or absence of mistake or accident. Id. at 404(b)(2). The exceptions listed

under Rule 404(b)(2) are neither mutually exclusive nor collectively exhaustive. De La Paz, 279

S.W.3d at 343. Therefore, evidence of an extraneous offense may be admissible for other non-

character conformity purposes such as showing the reason a sexual assault victim failed to report

the assault promptly or rebutting a defensive theory. See Brown v. State, 657 S.W.2d 117, 119

(Tex. Crim. App. [Panel Op.] 1983) (explaining failure to report sexual assault); Moses v. State,

105 S.W.3d 622, 626 (Tex. Crim. App. 2003) (rebuttal of defensive theory). The appellate court

will not disturb the trial court’s ruling if the ruling is correct under any applicable theory, even if

the trial court gave the wrong reason for the correct ruling. De La Paz, 279 S.W.3d at 344.

       Appellant asserts that the State’s proffer of extraneous offense evidence is impermissible

character evidence pursuant to rule 404(b)(1) because the State did not advance a theory of

admissibility within the exceptions of rule 404(b)(2). Although extraneous offense evidence is

character evidence, rule 404 makes the evidence inadmissible only if it is used solely to show

character conformity. See id. at 343. A supplemental reporter’s record of a pretrial hearing, filed

after appellant filed his brief, shows the State did offer a proper rationale for admitting the

evidence:

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       we believe that those offenses all show, go to his motive, go to his intent and to
       what the state has to prove of intentionally and knowingly committing this act,
       and we believe that it goes to that issue as well as to the lack of consent issue in
       showing that despite the fact that she was with him and that she was consenting to
       some sexual acts she wasn’t consenting to all sexual acts, and we believe that it’s
       relative for that purpose.

Thus, the State did provide a rationale falling squarely within the rule 404(b) exceptions for

admitting the evidence.

       The trial court admitted the extraneous offenses as contextual evidence.                Same

transaction contextual evidence is evidence that is so intertwined with the proof of the charged

offense that excluding it would make the State’s case incomplete or difficult to understand. See

Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005). The sexual assaults were part of a

series of interactions between appellant and M.S. that culminated in the charged offense.

Understanding the dynamics of the parties’ relationship was critical to the jury to evaluate what

happened between them on July 19, 2008. The contextual evidence helps explain why M.S.

delayed reporting the offense to police and why appellant’s actions should not be viewed as

consensual activity or a mistake.

       Moreover, even if we assume that the 1998 offense, in particular, is too remote to qualify

as contextual evidence, as the State points out, appellant’s opening statement offered to the jury a

theory that M.S. fabricated the July 19, 2008 sexual assault. In his opening statement, appellant

informed the jury that the only evidence the State would rely on is the “story” of M.S. Counsel

used the word “story” twenty-three times in his brief opening statement. Counsel accused M.S.

of denying to the jury any scientific or medical evidence and photographs of bruises or the crime

scene by failing to timely report the assault to police. As trial counsel told the jury: “Why is that

significant? . . . All the evidence you expect to see in a case like this. Whether it ever existed or

not, we don’t know if [M.S.’s] story is at all true, then she kept that evidence from you.” Trial

counsel also alluded to changes in M.S.’s “story” over the passage of time between the July 19,
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2008 sexual assault and the decision to prosecute the sexual assault in 2012, pointing out the

delay in reporting the offense and the police report stating that the sexual assault was vaginal

assault rather than anal assault.

       During M.S.’s testimony, appellant built upon the defense advanced in opening

statement. In cross-examining M.S., counsel inquired about the sexual history between appellant

and M.S. during their marriage. Counsel asked if there was consensual anal sex during the

marriage to which M.S. acknowledged there was. Counsel questioned M.S. about the difference

between her trial testimony that alleged anal penetration and her earlier police report and divorce

petition that alleged nonconsensual vaginal intercourse. Counsel also questioned M.S. about her

efforts to obtain alimony and a portion of appellant’s retirement plan in 2012.

       Appellant’s opening statement appears calculated to infer to the jury that M.S.’s account

of the offense was not merely inconsistent, but untruthful. A defendant can open the door to the

admission of extraneous offense evidence to rebut a defensive theory advanced in opening

statement. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).

       The record shows appellant offered a defense that M.S.’s accusations were fabricated or

that the sexual activity was consensual. The extraneous offense evidence was permissible under

Rule 404(b) as illuminative of appellant’s intent and to rebut the defense’s insinuation that the

charged offense either did not happen in the manner M.S. testified to or was consensual activity.

See id.; Moses, 105 S.W.3d at 626; see also Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim.

App. 2006) (“in cases in which the prior relationship between the victim and the accused is a

material issue, illustrating the nature of the relationship may be the purpose for which evidence

of prior bad acts will be admissible”). As a result, we conclude appellant has not shown that the

trial court’s determination to admit the testimony lies outside the zone of reasonable

disagreement. See Bass, 270 S.W.3d at 563.

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        Appellant next contends that the 1998 offense should be inadmissible because it is too

remote to be of probative value. We agree with appellant that the remoteness of an extraneous

offense can significantly reduce its probative value. See Gayton v. State, 331 S.W.3d 218, 226

(Tex. App.—Austin 2011, pet. ref’d). Probative value, however, is not reduced to zero by the

passage of time and, unlike rule 403, rule 404(b) does not involve a weighing of probative value.

See Newton v. State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, pet. ref’d). As the State

points out, appellant’s cited authorities predate the adoption of the rules of evidence. The shift

from common law authority to the rules of evidence involved a shift in sentiment from favoring

exclusion of evidence to favoring inclusion of evidence. See Montgomery v. State, 810 S.W.2d

372, 375 (Tex. Crim. App. 1990). Rather than viewing remoteness as a bar under rule 404(b),

we are persuaded it should be viewed as part of the balancing of probative value versus

prejudicial effect under rule 403. See Newton, 301 S.W.3d at 318. Therefore, we find no abuse

of discretion by the trial court.

                                     Application of Rule 403

        Finally, appellant contends that the trial court erred in admitting the extraneous offense

evidence because the probative value of the extraneous offenses is substantially outweighed by

their prejudicial effect. We find no abuse of discretion.

        Even if evidence is admissible under Rule 404(b), a court may exclude the evidence if its

probative value is substantially outweighed by a danger of unfair prejudice. See TEX. R. EVID.

403. To determine whether the probative value of evidence is substantially outweighed by the

danger of unfair prejudice, the trial court must balance six factors: (1) the inherent probative

force of the proffered evidence; (2) the proponent’s need for the evidence; (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

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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).

       We analyze the Rule 403 factors as they apply to the extraneous offense evidence. We

will uphold the trial court’s decision unless we find a clear disparity between the degree of

prejudice of the offered evidence and its probative value. Hammer v. State, 296 S.W.3d 555, 568

(Tex. Crim. App. 2009).

       Factor 1: Inherent Probative Force. M.S.’s testimony includes an extraneous offense that

occurred nearly ten years prior to the charged offense.        We already acknowledged that

remoteness reduces probative value. The trial court could have reasonably found, however, that

the reduction in the probative value of the 1998 extraneous offense evidence due to remoteness

was offset by its contextual nature and the exceptional similarity between it and the charged

offense. See Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—Austin 2016, pet. ref’d);

Newton, 301 S.W.3d at 320. This holds true for the March 2008 extraneous offense as well. At

most, this factor slightly favors exclusion.

       Factor 2: Proponent’s Need for Evidence. As appellant acknowledges, without physical

evidence or eyewitness testimony, the State’s case hinges on the credibility of M.S. See Newton,

301 S.W.3d at 320 (State had considerable need for extraneous offense evidence because State

did not have physical evidence or eyewitness testimony).       Accordingly, this factor weighs

heavily in favor of admission.

       Factor 3: Tendency of Evidence to Suggest Decision on an Improper Basis. Extraneous

offenses of a sexual nature are inherently inflammatory and thus highly prejudicial.        See

Montgomery, 810 S.W.2d at 397. However, the impermissible inference of character conformity

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can be minimized through a limiting instruction. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim.

App. 1996). The trial court did not provide a preliminary instruction to the jury at the time the

extraneous offense evidence was admitted. But, the trial court did instruct the jury in its charge

and before deliberation that it could only consider the extraneous offense evidence if it believed

appellant committed the offenses beyond a reasonable doubt and even then only for the specific

purpose of determining appellant’s “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . . and for no other purpose.” It is presumed that the

jury followed those instructions. Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App.

2003). Like the first factor, this factor at most slightly favors exclusion.

       Factor 4: Tendency of Evidence to Confuse or Distract Jury. The testimony of M.S.

about the extraneous offenses is contextual and relevant to whether or not appellant sexually

assaulted her without her consent. See Bass, 270 S.W.3d at 562–63 (evidence was relevant

where it showed defendant abused other children in similar fashion). This factor weighs in favor

of admission.

       Factor 5: Tendency of Evidence to be Given Undue Weight by Jury. M.S.’s extraneous

offense testimony was straightforward, easily understandable, and it did not contain technical

information that has a tendency to mislead a jury not skilled to understand the probative value of

such evidence. See Gigliobianco, 210 S.W.3d at 641. This factor weighs in favor of admission.

       Factor 6: Likelihood that Evidence will be too Time-Consuming or Repetitive. The

State’s direct examination of M.S. about the extraneous offenses covered approximately seven

pages of the trial transcript with an additional mention of them on one page of the redirect

examination. The State’s case-in-chief consumes approximately forty-five pages and the entire

guilt/innocence phase of trial spans roughly 125 pages. That amounts to less than one-tenth of

the entire trial transcript and less than one-fifth of the State’s case-in-chief. See Lane, 933

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S.W.2d at 520 (concluding extraneous offense testimony that amounted to less than one-fifth of

State’s case-in-chief not excessive). The testimony of M.S. was not repetitive. Therefore, this

factor weighs in favor of admission.

       Summary of Factors. Out of the six factors, only two somewhat favor exclusion. We,

therefore, cannot say that there is a clear disparity between the degree of prejudice of the

extraneous offense evidence and its probative value to lead us to find the trial court abused its

discretion in admitting the extraneous offense evidence.

                                           Conclusion

       Having decided all of appellant’s contentions against him, we conclude the trial court did

not abuse its discretion in admitting the extraneous offense testimony at issue. See De La Paz,

279 S.W.3d at 343. We overrule appellant’s sole issue on appeal.

       We affirm the trial court’s judgment.




                                                   /Carolyn Wright/
                                                   CAROLYN WRIGHT
                                                   CHIEF JUSTICE


Do Not Publish
TEX. R. APP. P. 47
141226F.U05




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                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

ROGER ALLEN STULCE, JR., Appellant                On Appeal from the 380th Judicial District
                                                  Court, Collin County, Texas
No. 05-14-01226-CR       V.                       Trial Court Cause No. 380-80196-2013.
                                                  Opinion delivered by Chief Justice Wright.
THE STATE OF TEXAS, Appellee                      Justices Bridges and Evans participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered August 9, 2016.




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