Affirmed and Opinion Filed June 30, 2014




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00242-CR

                           WILLIAM WAYNE LAUBE, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 401-81056-2012

                             MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Bridges
       Appellant William Wayne Laube appeals from his convictions for indecency with a child

by contact and indecency with a child by exposure and his accompanying sentences of twenty

years and ten years’ imprisonment respectively. In three issues, appellant contends: (1) the

evidence was legally insufficient to support a finding of guilt for the offense of indecency with a

child by exposure; (2) the trial court abused its discretion under rule 404(b) by admitting the

extraneous offense testimony of Brian Pervis; and (3) the trial court abused its discretion under

rule 403 by admitting the extraneous offense testimony of Brian Pervis. We affirm.

                                          Background

       In late 2009, appellant was living with his sister, Lisa, and her children in Richardson. At

one point, Lisa found appellant and her son, N.N., in the playroom. Appellant was lying on the
floor and N.N. was on his knees with his shirt up. When Lisa walked in on them, both appellant

and N.N. jumped, and she got a “horrible feeling.” N.N., who was six at the time, told her that

appellant had “touched [his] pee pee.” When Lisa confronted them, N.N. retracted the statement.

At the time, Lisa was mourning the sudden loss of her husband and a series of other family

deaths and testified she did not want to believe that appellant had touched her son. Instead of

calling the police, Lisa rented appellant an apartment for six months and moved her family to

Colorado.

           Once in Colorado, N.N. was accused of acting out sexually toward a young girl. A five-

year-old neighbor who had been playing with N.N. outcried that he had tried to kiss her and

groped her. N.N. eventually told a counselor about the playroom incident with appellant, and the

counselor called the police. Another forensic interview was conducted,1 and N.N. said that

appellant had touched his “pee pee.” Patricia Kelly, the forensic interviewer, testified N.N.

stated that appellant told N.N. he needed to “talk to the bees,” which meant nothing to N.N. but

may have been a reference to the “birds and the bees.” Kelly explained offenders sometimes use

the ruse of teaching children about sex to gain access to them. Detective Kevin Donahue, an

investigator for the Jefferson County Sheriff’s Office in Boulder, Colorado, explained N.N.

stated appellant had touched his penis under his clothes and “shaked it.” N.N. demonstrated with

his hand to “simulate sort of a masturbation sort of motion to say that’s how [appellant] shaked

it.” N.N. also wrote that appellant was “noked,” which Donahue interpreted as “naked” as he

believed N.N. “just didn’t finish the A.” Kelly also indicated N.N. had written appellant was

naked at the time of the incident in question. Kelly explained that N.N. was also upset and




     1
         A total of three forensic interviews were conducted with N.N. The initial forensic interview centered on N.N.’s alleged behavior toward
the little girl, while the subsequent forensic interviews focused on appellant’s alleged acts toward N.N.
frustrated that appellant had lied to his mom and told his mom that his pee pee hurt when that

was not true.

       Detective Jonathan Hay with the Richardson Police Department viewed the forensic

interview containing N.N.’s outcry against appellant and obtained an arrest warrant for appellant.

While Hay was transporting appellant to jail, Hay testified appellant stated he knew the arrest

was in reference to N.N. even though Hay did not mention N.N. at the time of appellant’s arrest.

Appellant further stated he slept in the nude and that N.N. would come in and pull the covers off

of him. Appellant claimed that, on one occasion, N.N. had told him his penis hurt and tried to

“forcibly pull” appellant’s hands toward N.N.’s penis. Appellant stated N.N. had been acting out

sexually and indicated N.N.’s deceased father may have sexually abused him. Detective Darrell

Meyer with the Richardson Police Department arrested appellant with Detective Hay. Meyer

confirmed that appellant stated the charge must be regarding N.N. and left the impression that it

was N.N. who was “coming on” to appellant, making appellant the victim.

       N.N. was nine at the time of trial. He testified that, when he was in kindergarten, he went

to his playroom to get a toy and appellant “touched [his] pee pee” with his hand. N.N. explained

appellant “shaked it” and that appellant’s clothes were off. N.N. also said appellant touched him

under his clothes. N.N. testified he saw appellant’s “pee pee” when appellant was walking

toward a stack of movies undressed. N.N. indicated his mom did not see everything, and

appellant stopped when she came into the playroom. N.N. said appellant lied to his mom when

appellant told Lisa that N.N.’s penis hurt when it did not hurt. N.N. testified appellant told N.N.

that he “needed to talk to the bees.” N.N. also said he had seen appellant’s penis a long time ago

and it looked “big.”

       The State also called Lisa’s adult son, Brian Pervis, to testify to an extraneous offense.

Prior to his testimony, the trial court gave the following instruction:
          You are instructed that if there is any evidence before you in this case regarding
          the Defendant’s having committing an alleged offense or offenses, other than the
          offense alleged against him in the indictment in this case, you cannot consider
          such evidence for any purpose unless you find and believe beyond a reasonable
          doubt that the Defendant committed such other offense or offenses, if any. And
          even then, you may only consider the same to rebut the defensive theory in
          fabrication, if any, in connection with this offense, if any, alleged against him in
          the indictment and for no other purpose.

Pervis then testified appellant had sexually assaulted him when he was fourteen-years-old. He

explained that, when he was staying with his grandparents and his uncle (appellant), he and

appellant played truth or dare. Appellant, who was bigger and stronger than Pervis, dared to let

him perform oral sex on Pervis. Before Pervis had a chance to say anything, appellant was on

top of him. Fourteen years later, when his mother (Lisa) was moving to Richardson, Pervis told

her in general terms that appellant had molested him. Pervis further testified appellant was

homosexual and had cut out pornographic photos of naked men, penises, and sexual intercourse

and glued them onto the outlines of buildings to represent a city. Appellant pasted the images on

the two windows above the bedroom in the garage facing towards the street and all around his

house.

           The State also offered a jail call made by appellant to his mother and, once admitted,

played the call for the jury. This Court’s review of the call reveals appellant stated his sister,

Lisa, had not corroborated the fact that he was nude when she walked in on them. When

appellant’s mother misunderstood, stating she did not realize N.N. was nude, appellant

responded: “What? No, he wasn’t.” Appellant then added: “I’m talking about the alleged thing.”

Appellant then indicated N.N. was the one who was acting out sexually, while appellant was the

victim.

          The jury convicted appellant of both indecency counts, and the trial court assessed

appellant’s punishment at twenty years’ imprisonment for the indecency by contact count and ten

years’ imprisonment for the indecency by exposure count.
                                            Analysis

Sufficiency

        In his first issue, appellant contends the evidence was legally insufficient to support a

finding of guilt for the offense of indecency with a child by exposure. In determining the

sufficiency of the evidence, an appellate court is to consider all evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979). We defer to the factfinder’s determinations of the witnesses’ credibility and the

weight to be given their testimony, because the factfinder is the sole judge of those matters. See

id. at 326; Brooks v. State, 323 S.W.3d 898, 902 (Tex. Crim. App. 2010) (plurality op.).

        To find appellant guilty of indecency with a child by exposure, the State was required to

prove appellant, with the intent to arouse or gratify the sexual desire of any person, exposed his

genitals to a child younger than seventeen, knowing the child is present. TEX. PENAL CODE ANN.

§21.11(a)(2)(A). The intent can be inferred from the defendant’s conduct, his remarks, and all

surrounding circumstances. See Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim. App. 1986);

McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); see also Ashanti v. State, No.

05-96-01920-CR, 1999 WL 39041, at *2 (Tex. App.−Dallas Feb. 1, 1999, pet. ref’d) (not

designated for publication) (stating nothing in McKenzie suggests all three types of evidence

listed are necessary to infer intent).

        The record before us demonstrates that, during a forensic interview, N.N. wrote that

appellant was “noked,” meaning naked. N.N. further testified that, when appellant “shaked”

N.N.’s penis, appellant’s clothes were off. The record reflects N.N. was six-years-old at the time

of the incident in question. N.N. testified appellant touched him under his clothes, and he saw

appellant’s penis. We note a child sex abuse victim’s uncorroborated testimony is sufficient to
support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07;

Jones v. State, 428 S.W.3d 163, 169 (Tex. App.−Houston [1st Dist.] 2014, no pet.). Given the

surrounding circumstances, we also conclude appellant’s intent to arouse or gratify his sexual

desire may be inferred. See McKenzie, 617 S.W.2d at 216. We overrule appellant’s first issue.

Rule 404(b)

       In his second issue, appellant contends the trial court abused its discretion under rule

404(b) by admitting the extraneous offense testimony of Brian Pervis. Specifically, appellant

argues the testimony of Pervis could not have been brought to rebut the defensive theory of

fabrication, because he did not raise fabrication. Instead, appellant asserts he has conceded N.N.

was molested, but not by appellant.

       Rule 404(b) prohibits the admission of extraneous offense evidence to prove an

individual’s character in order to show action in conformity with that character. TEX. R. EVID.

404(b). This limitation is not based on legal relevance; rather, the evidence is inherently

prejudicial, has a tendency to confuse the issues, and forces the accused to defend himself

against uncharged crimes in addition to the charged offense. Daggett v. State, 187 S.W.3d 444,

451 (Tex. Crim. App. 2005); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).

However, extraneous offense evidence may be admissible for other purposes, such as proof of

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

accident. TEX. R. EVID. 404(b). These exceptions are not exclusive, and the proponent of

misconduct evidence need not “stuff” a given set of facts into one of the laundry-list exceptions

set out in rule 404(b) for admission to be proper; he must, however, explain the logical and legal

rationales that support admission. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.

App. 2009).
       A trial court’s ruling on the admissibility of extraneous offenses is reviewed under an

abuse of discretion standard. Id. As long as the trial court's ruling is within the “zone of

reasonable disagreement,” there is no abuse of discretion, and the trial court’s ruling will be

upheld. Id. at 344. A trial court’s ruling is generally within this zone if the evidence shows that

(1) an extraneous transaction is relevant to a material, non-propensity issue, and (2) the probative

value of that evidence is not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading of the jury.          Id.   Furthermore, if the trial court’s

evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed

even if the trial court gave the wrong reason for its right ruling. Id.

       The court of criminal appeals has stated that rebuttal of a defensive theory is one of the

permissible purposes for which relevant evidence may be admitted under rule 404(b). See Moses

v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Here, the trial court allowed the

testimony of Brian Pervis to rebut the defensive theory of fabrication.            Prior to Pervis’s

testimony, the trial court instructed the jury to only consider his testimony if they first found and

believed beyond a reasonable doubt that appellant committed such other offense or offenses and,

only then, to consider Pervis’s testimony to rebut the defensive theory of fabrication.

       In his brief, appellant claims he did not raise the defensive theory of fabrication because

he concedes N.N. was molested, but not by him. Our review of the record, however, shows

appellant did raise the defensive theory of fabrication during trial.         First, during opening

statement, defense counsel labeled N.N. as “a very disturbed boy” and indicated the police

officers in Colorado thought something must have happened to N.N. to explain why he acted out

sexually toward the little girl. Defense counsel further implied the officers had no interest in

discovering what really happened, as evidenced by their absence during N.N.’s multiple forensic

interviews.
       During opening statement and the cross-examination of N.N.’s mother, defense counsel

developed the theory that the police and social workers in Colorado were so convinced that N.N.

had been victimized that they repeatedly interviewed him until N.N. disclosed what they already

decided had happened. Counsel suggested through questioning that Detective Hay indicated to

Lisa that “kids don’t act out like this, somebody must’ve touched him.” Counsel, through cross-

examination of Kelly (the forensic interviewer), elicited that it was “possible that if [N.N.]

thought he was in trouble, that he would say whatever he wanted−whatever he thought [she]

wanted to hear to get out of there.”       Further, through questioning Kelly, defense counsel

suggested N.N. recanted because “it didn’t actually happen,” and Kelly answered that sometimes

children will recant a false allegation.

       Further, in his opening statement, defense counsel questioned N.N.’s version of the

events when counsel noted N.N. stated appellant “was under the couch naked in [his] playroom”

and that his “mom walked in and saw it.” On cross-examination of Lisa, counsel elicited the

facts that Lisa did not see appellant naked and there was no couch in the room. He further

suggested that Lisa did not believe N.N.’s account of the incident, because she did not

immediately call the police and also did not “kick her brother [appellant] out of the house.” He

established that Lisa had not told the authorities about the incident with appellant until after the

authorities in Colorado became involved. Defense counsel further elicited from Lisa that N.N.

recanted what he had said about the incident. Counsel also asked Lisa about N.N.’s medications

and counseling. Finally, counsel suggested someone else was to blame for the abuse, obtaining

evidence from Lisa that, before appellant had stayed with them in Richardson, another little girl

had taught N.N. a “touch you here or here or here” game and that N.N. had been around his

brother-in-law, Lowell, when they lived in Houston.
       In response to the defensive theory of fabrication, the State presented the testimony of

Pervis. To be admissible for rebuttal of a fabrication defense, “the extraneous misconduct must

be at least similar to the charged one.” See Newton v. State, 301 S.W.3d 315, 318 (Tex.

App.−Waco 2009, pet. ref’d) (citing Wheeler v. State, 67 S.W.3d 879, 887 n. 22 (Tex. Crim.

App. 2002)). 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 defendant’s system or modus operandi. Id. (citing Dennis v. State, 178 S.W.3d 172, 178

(Tex. App.−Houston [1st Dist.] 2005, pet. ref’d)).

       Here, we conclude the extraneous offense is sufficiently similar to the charged offense.

Both victims were appellant’s nephews; each boy was living in the same house as appellant at

the time of the offense; appellant used each boy’s lack of sexual knowledge as a prelude to the

sexual abuse−talking about the birds and the bees with N.N. and talking about girls and

pornography with Pervis; and appellant made contact with each boy’s penis−either with his

hands or his mouth. Contrary to appellant’s argument, it is not fatal that Pervis did not make an

immediate outcry.     Newton, 301 S.W.3d at 318 (stating rule 404 does not impose any

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

value.) Further, although there was an age difference between the victims here, we note the

court of criminal appeals has permitted evidence of the defendant’s molestation of a five-year-

old and an eleven-year-old to rebut a claim of fabrication by a sixteen-year-old complainant. See

Bass v. State, 270 S.W.3d 557, 558-63 (Tex. Crim. App. 2008). Finally, the testimony regarding

appellant’s “artwork” supports the State’s rebuttal argument regarding appellant’s fascination

with the male anatomy. Because the two offenses are sufficiently similar, we conclude the trial

court did not abuse its discretion in determining Pervis’s testimony was admissible to rebut the
defensive theory of fabrication. See De La Paz, 279 S.W.3d at 343; Newton, 301 S.W.3d at 318.

We overrule appellant’s second issue.

Rule 403

       In his third issue, appellant contends the trial court abused its discretion under rule 403 by

admitting the extraneous offense testimony of Pervis. Specifically, appellant argues the trial

court erred by not excluding the evidence on the basis that the probative value was substantially

outweighed by the danger of unfair prejudice.

       “Although relevant, evidence may be excluded if its probative value is substantially

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

by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R.

EVID. 403. “We have long held that a trial court is entitled to broad discretion in ruling on a

Rule 403 objection.” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005) (citing

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003)). “Rule 403’s language implies

that a determination under this rule is inherently discretionary with the trial court.” Id. (citing

Montgomery v State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990)). “The inclusion of the

word ‘may’ displays the drafters’ intent to vest the trial court with substantial discretion.” Id.

(citing Manning, 114 S.W.3d at 926). Furthermore, the “trial court is in a superior position to

evaluate the impact of the evidence.” Id. (citing Montgomery, 810 S.W.2d at 378-79). “Unlike

the trial court, an appellate court “‘cannot weigh on appeal. . . the intonation and demeanor of the

witnesses preceding the testimony in issue. . . nor can we determine the emotional reaction of the

jury to other pieces of evidence. . . .” Id. (citing Montgomery, 810 S.W.2d at 379).

       “The test for whether the trial court abused its discretion is whether the action was

arbitrary or unreasonable.” Id. (citing Manning, 114 S.W.3d at 926). “An appellate court should

not reverse a trial judge whose ruling was within the zone of reasonable disagreement.” Id. at
440 (citing Manning, 114 S.W.3d at 926; Montgomery, 810 S.W.2d at 380).            “A proper Rule

403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence;

(2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to

develop the evidence; and (4) the proponent’s need for the evidence.” Id. (citing Erazo v. State,

144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery, 810 S.W.2d at 389-90). More

recently, the court of criminal appeals has looked to the language of rule 403 and restated the

factors:

       [A] trial court, when undertaking a Rule 403 analysis, must balance (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). The Court noted these

factors may blend together in practice. See id.

       Considering the first Gigliobianco factor, appellant contends the probative value was

outweighed by the danger of unfair prejudice because the testimony of another victim is highly

inflammatory and “together with the evidence of Appellant’s interest in ‘penises and homosexual

acts’ undoubtedly produced unfair prejudice against” him. As we have already discussed in our

rule 404(b) analysis, the extraneous offense evidence was probative to rebut appellant’s

defensive theory of fabrication. See Newton, 301 S.W.3d at 318. The extraneous offense is

sufficiently similar to the charged offense to have probative value on this issue. See id. On the

other hand, although remoteness is not of import when determining whether extraneous offense

evidence has probative value, it does factor in when assessing whether the probative value of

such evidence is substantially outweighed by the danger of unfair prejudice. See Reyes v. State,
69 S.W.3d 725, 740 (Tex. App.−2002, pet. ref’d). The remoteness of the incident involving

Pervis lessens its probative value. See id. Thus, balancing the similarity and the remoteness of

the extraneous offense, we conclude this factor only weighs slightly in favor of admissibility.

       With regard to the second factor, the trial court could have reasonably concluded that the

State’s need for the extraneous offense evidence was high. We have already elaborated upon the

defensive evidence, raising numerous attacks on N.N.’s credibility. There was no physical

evidence available to corroborate N.N.’s testimony.        See Newton, 301 S.W.3d at 320.         In

addition, the State demonstrated that it needed this evidence to rebut the defensive theory of

fabrication. See id. at 318. Thus, this factor weighs in favor of admissibility.

       In considering the third factor, we note extraneous offense evidence of this nature does

have a tendency to suggest a verdict on an improper basis because of the inherently

inflammatory and prejudicial nature of crimes of a sexual nature committed against children.

See Montgomery, 810 S.W.2d at 397; Blackwell, 193 S.W.3d 1, 17 (Tex. App.−Houston [1st

Dist.] 2006, pet. ref’d). The danger of unfair prejudice was somewhat counter-balanced by the

trial court’s limiting instruction.   See Blackwell, 193 S.W.3d at 17-18.          Defense counsel

reminded the jury of the limiting instruction during closing argument, and the jury is presumed to

follow the trial court’s instructions. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim.

App. 2009). However, we conclude this factor weighs slightly in favor of exclusion of the

evidence.

       Next, we note appellant’s complaint focuses on unfair prejudice. He does not contend the

admission of the extraneous offense evidence caused confusion of the issues or misled the jury.

Thus, we do not address the fourth and fifth Gigliobianco factors. See Newton, 301 S.W.3d at

319 n. 4.
       The final factor concerns whether the presentation of the extraneous offense evidence

consumed an inordinate amount of time. See Gigliobianco, 210 S.W.3d at 641-42. This factor

focuses on the time needed “to develop the evidence, during which the jury [is] distracted from

consideration of the indicted offense.” See Mechler, 153 S.W.3d at 441. Because the concern is

the extent to which the jury is distracted from considering the charged offense, the time needed

to develop the extraneous-offense evidence necessarily includes any testimony introduced with

regard to the extraneous offense, including cross-examination, redirect examination, etc. and any

rebuttal offered by the defense in response to the extraneous-offense evidence. See Newton, 301

S.W.3d at 321. We do not include hearings conducted outside the jury’s presence or jury

argument. See Dennis, 178 S.W.3d at 181 n. 2. Our review of the record shows that Pervis’s

testimony consisted of approximately twenty-six pages during the guilt/innocence phase of trial

out of approximately three-and-a-half volumes of testimony. This factor weighs in favor of

admission.

       To summarize, three factors weigh in favor of admission and one factor weighs only

slightly in favor of exclusion. Having reviewed the record before us and weighed the necessary

factors, we conclude the trial court did not abuse its discretion under rule 403. See Gigliobianco,

210 S.W.3d at 641-42; Mechler, 153 S.W.3d at 439. We overrule appellant’s third issue.

                                           Conclusion

       Having overruled appellant’s three issues, we affirm the judgment of the trial court.



Do Not Publish
TEX. R. APP. P. 47
130242F.U05

                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

WILLIAM WAYNE LAUBE, Appellant                   On Appeal from the 401st Judicial District
                                                 Court, Collin County, Texas
No. 05-13-00242-CR       V.                      Trial Court Cause No. 401-81056-2012.
                                                 Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                     Justices Francis and Lang-Miers
                                                 participating.

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


Judgment entered June 30, 2014
