                        NUMBER 13-18-00052-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI–EDINBURG


MARCUS MARQUIS MOSELEY,                                                Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 272nd District Court
                        of Brazos County, Texas.


                        MEMORANDUM OPINION

            Before Justices Benavides, Hinojosa, and Perkes
                Memorandum Opinion by Justice Perkes

      A jury convicted appellant Marcus Marquis Moseley of aggravated sexual assault

of a child, a first-degree felony. See TEX. PENAL CODE ANN. §§ 22.021(a)(2)(B). The

trial court assessed punishment at forty-five years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice.    See TEX. PENAL CODE ANN.
§ 12.32. By two issues, Moseley argues that the trial court committed reversible error by

admitting testimony of:        (1) extraneous unadjudicated offenses, and (2) out-of-court

statements. We affirm.1

                                           I. BACKGROUND

        Moseley was charged with aggravated sexual assault of a child against A.H. 2

Prior to trial, the State provided notice that it sought to include evidence of sexual assaults

involving four unrelated minor females:             B.B., M.F., I.W., and C.J.          The trial court

determined testimony from I.W. and C.J. would be admitted following an article 38.37

hearing. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2(1)(E) (providing for the use of

extraneous-offense evidence in the prosecution of certain offenses).

        During opening statements at trial, the State stated that the evidence would show

that by the time A.H. was “molested by this Defendant, . . . [he] had molested other little

girls in the same house under similar circumstances.” Moseley also made his theory of

the case known: “Everybody has a motivation to lie. Everyone has a motivation to

collude with people that they know in order to make someone look worse.”

A.      Testimony Regarding A.H.’s Allegations

        A.H.’s father was the State’s first witness. He testified A.H. was twelve years old

when she came into his bedroom one evening “not acting herself” and crying. A.H. was

reluctant to say what was wrong. “She had tears in her eyes, and I asked her. I said:



        1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Tenth Court of Appeals in Waco, Texas. See TEX. GOV’T CODE
ANN. § 73.001.

        2  We use initials to refer to minors in sexual assault cases to protect their privacy. See TEX. R.
APP. P. 9.8 cmt. (“The rule [protecting the privacy for filed documents in civil cases] does not limit an
appellate court’s authority to disguise parties’ identities in appropriate circumstances in other cases.”).



                                                    2
[‘]You can tell me anything.[’]” A.H. told her father that several months earlier, she had

been sexually assaulted during a sleepover at the neighbor’s house.            He said his

daughter told him that “she was woken up to him on top of her.” A.H. could not remember

the name of the man who assaulted her and instead provided her father with a description.

He testified that based on the description, he identified Moseley as the offender. “I knew

who she was talking about because the gentleman in question came to my house several

times.” Moseley’s mother, Janette Moseley, resided in the house across the street,

where Moseley often stayed and where A.H. and her sister would go over to play and

spend the night.

       A.H., an eighth grader at the time of trial, testified that she and her sister were

spending the night at a neighbor’s house in the summer of 2015, when “[he] came in.”

He wore “a white shirt, blue do-rag and black jeans with some stuff at the back.” While

other neighborhood children slept on a nearby couch, Moseley dropped his pants and laid

down beside A.H. on the floor. A.H. said he pulled down her red pajama shorts. When

asked by the State if Moseley’s penis made contact with her vagina, she answered in the

affirmative, but denied that “his private part went inside.” A.H. said when Moseley was

done, he got up and left the house. The next morning, her sister found her lying down

with her legs “gapped open” and crying. A.H. stated she had initially been afraid to tell

her parents in fear that she would get in trouble, and she only outcried to her father after

watching a video at school “about not to be afraid to tell your parents anything.” A.H.

denied knowing C.J. and I.W.

       Moseley questioned A.H. on cross examination regarding purported factual and

logical inconsistencies of her statements, occupying over fifty pages of the record.




                                             3
Q.   And you testified earlier that when he started touching you that you
     were still kind of asleep; is that right?

A.   Yes, sir.

Q.   All right. And so you don’t know when he came into the room, did
     you?

A.   No.

     ....

Q.   Okay. And how—how did he try—describe to the jury how he tried
     to penetrate you when you were on your back?

A.   He—I don’t know.

     ....

Q.   Okay. Do you remember telling [the forensic interviewer] something
     different?

A.   No.

Q.   You don’t remember telling her that he tried to penetrate you on the
     front first and then from behind?

A.   No.

     ....

Q.   And I noticed that you’ve had some different explanations or
     memories that you shared with [the forensic interviewer], that you
     shared with the jury, that you shared with [the State], and that you’ve
     shared with me. You understand all those—all those stories are
     different; is that right?

A.   I guess.

Q.   Well, you would know.         You said them.    Are all those stories
     different?

A.   No, they’re still the same.

Q.   They’re still the same. Okay.




                                     4
                  ....

       Q.         Okay. So what—it’s either what you told [the State], when she was
                  questioning you, or what you told me when I was questioning you. I
                  asked you just a minute ago: Final answer. Did you know if it was
                  a penis that touched you? And you said: No. Then [the State]
                  asked you, and you said: No, it was a penis. Ma’am, telling the
                  truth right here, do you want to change your final answer?

       A.         Yeah.

       Q.         You do want to change your final answer? Okay. And I see you
                  smiling now; is that right?

       Q.         Okay. So you were lying when you told me final answer that he
                  didn’t touch you with his penis; is that right?

       A.         I guess.

                  ....

       Q.         Why did you feel like you could lie here today?

       A.         I’m not lying.

       Moseley’s accusations that A.H. was fabricating her claims continued in his cross-

examination of Cameron Collins, a child advocacy center forensic interviewer, who

testified next.

       Q.         Her testimony initially was that [Moseley] came over to drop [his]
                  child off at 2:00 or 3:00 at night?

       A.         Yes, sir.

       Q.         While the girls were playing video games?

       A.         I believe that’s correct.

       Q.         And then she said later, about 17 and a half minutes in, that
                  [Moseley] came back about 1:00 o’clock in the morning; is that
                  correct?




                                                5
       A.     That’s correct.

       Q.     And that they were all asleep when he came back; is that right?

       A.     Correct.

       Q.     She also told you that she saw him remove his pants and his
              drawers; is that correct?

       A.     I believe—I may have that wrong. I believe she said, you know,
              pulled them down.

       Q.     Okay. But she also told you that she started feeling it, and you— “it”
              you identified as a dick later. Then she woke up; is that correct?

       A.     I recall her saying that she woke up to feeling—feeling it.

              ....

       Q.     And from your interview, did you understand that the first attempt at
              penetration was genital penetration and then anal penetration?

       A.     That was my understanding, yes, sir.

       Collins maintained that it was not her “role” to “make the determination” of whether

or not a child is “lying.” She testified to the “stages of disclosure” and the normalness of

a delayed disclosure. Against Moseley’s objections, the State introduced into evidence

a recording of Collins’s thirty-minute interview with A.H.

       Moseley’s niece, K.M., who was friends with A.H. and lived across the street in

Moseley’s mother’s home, testified she remembered A.H. spending the night. According

to K.M., the girls always slept in the same room together. K.M. testified that she did not

believe A.H.’s allegations against her uncle.

       After witnesses familiar with A.H. testified, the trial court permitted the State to

present the extraneous-offense evidence during its case-in-chief involving I.W. and C.J.,

two unrelated minor females.




                                             6
B.     Testimony Regarding I.W.’s Allegations

       I.W., who was seventeen at trial, testified that Moseley sexually assaulted her

when she was between the ages of six and eight. Moseley was in his early twenties at

the time. I.W. explained that Moseley was her “mom’s best friend’s brother,” so she knew

who he was, and she frequented Moseley’s mother’s home as a child. On one occasion,

I.W. testified that she was playing a video game upstairs with several other children when

Moseley asked her to go over to him so he could “tickle her.” Moseley quickly became

impatient and “made [the other children] leave.” I.W.’s older sister was the last one to

exit the room. When her sister “tried to get back in” to take I.W. with her, Moseley shut

the door.

       I.W. testified that tickling around her breasts progressed to kissing and taking off

her clothing. Moseley then laid her on an ironing board and proceeded to kiss her “from

[her] face, then down to [her] vagina.” I.W. stated that Moseley attempted to “force” his

penis into her vagina. It was “painful” and “didn’t work.” When Moseley was done, he

helped dress her and told her if she told anyone, “[she’d] get in trouble.” At the next

available opportunity, I.W. ran downstairs and confided in her sister, who convinced her

to tell their mother.   I.W. and her sister never visited Moseley’s home again.       I.W.

testified that she did not know anyone by the name of A.H. or C.J.

       Moseley questioned I.W. regarding the positioning of the ironing board, her

placement, Moseley’s placement, and the plausibility of I.W.’s testimony.

       Q.     Was [the ironing board]—do you think it was made out of aluminum,
              or was it made out of steel? Was it a strong material that it was
              made out of?




                                            7
A.   It was strong material. Well, it—what [sic] you mean? Like the top
     or the whole thing?

Q.   I mean, the whole thing.

A.   I don’t know.

Q.   Such that it would support a seven-year-old

A.   So it got [sic] to be strong to hold me on there.

     ....

Q.   Okay. And if you’re laying on there and it’s 3 feet up, how did he
     attempt to penetrate you?

A.   I mean—

Q.   Did he get up on the ironing board?

A.   No, it was like kind of—it was to his belly button. Like that’s how tall
     it was like, like kind of—not to his belly button, but probably a little
     under his belly button. But it was like near by his belly button. Like
     that’s how tall it was compared to him.

     ....

Q.   Are you laying on the long side or on the short side, length or width?

A.   I was kind of—well, this way; but I was kind of like at the kind of end
     of the ironing board.

     ....

Q.   —but if I were to lay on the table the way you were laying on that
     ironing board, would I be laying this direction; or would I be laying the
     second direction? Long way or width way?

A.   Long way.

Q.   Okay. And so if he was attempting to penetrate you, he would be
     standing at this end; is that correct?

A.   Yes, sir.




                                     8
              ....

       Q.     Okay. Would you agree with me that this level right here on this
              area, this shelf in front of Judge Bryan’s bench is about the height of
              a[n] ironing board?

       A.     Uh-huh.

       Q.     Okay. And so if you’re laying with your head about here?

       A.     Uh-huh.

       Q.     And your legs right here?

       A.     Uh-huh.

       Q.     And he’s trying to penetrate you—

       A.     Uh-huh.

       Q.     —is it going to be possible for him to penetrate you?

       A.     Yeah, if he did it. So if he pulled me closer to him, yes.

       After several minutes of demonstrative-based questioning by Moseley’s counsel,

I.W. said, “I’m sorry. I don’t want to do this no [sic] more. I’m not going to talk about it.”

The trial court permitted a short break before questioning resumed. I.W. was unable to

identify Moseley in the courtroom.

       Noberto Omar Espitia, an assistant principal at I.W.’s high school, spoke to I.W.’s

reaction when she was first contacted by the State. Espitia was present during I.W.’s

interview with the State, which took place during the lunch hour at school. Espitia said

I.W. was called to the principal’s office, unaware of the reason why. When the State

asked I.W. if she knew “Marcus Moseley,” I.W. appeared to recognize the name. “She

seemed very surprised. . . . I could tell that she did not know why she was there. She

was kind—you could see she was kind of trying to put the pieces together.” Espitia was



                                              9
unable to recall many of the details of the assault that I.W. shared during the course of

the meeting, but testified, “[T]here was [sic] some graphic details that she gave.” Against

Moseley’s objection to hearsay, Espitia testified that I.W. told them that her mother had

left her in Moseley’s care, other children were initially present but “had been taken out of

the room,” and “she was around six to seven, maybe eight” when the assault occurred.3

        I.W.’s mother, Taronsila Roberson, testified that she remembered leaving her

daughters with Moseley’s mother, Janette. Moseley’s sister’s children were also in the

home. When I.W. told her that Moseley had touched her, I.W. did not provide any details.

However, Roberson recalled immediately “check[ing]” her daughter’s “private area” and

noticing that I.W. did not have any underwear on. Roberson found I.W.’s underwear in

Moseley’s washing machine and said that Janette was unable to provide any information

regarding how I.W.’s underwear ended up in the washer or why I.W.’s underwear required

cleaning. “I was upset, but I tried to keep my composure for my kids’ sake,” she said.

Within the week, Roberson took her daughter to her physician. She testified that the

doctor told her that based on his physical examination of I.W., “[I.W.] hadn’t been

touched[,]” so she declined to involve law enforcement.

C.      C.J.’s Testimony

        The State next called twenty-two-year-old C.J. C.J. knew Moseley because he

had a child with C.J.’s aunt. C.J. testified that the abuse began when she was ten years

old up until she was thirteen. C.J. recalled being in the living room at Moseley’s mother’s

house: “He was supposed to be helping me take the braids out of my hair. And he then



        3  The State’s investigator, Michael Johse, was also present during the interview and testified at
trial regarding his recollection of events—also against Moseley’s objection to hearsay.



                                                   10
started feeling on me.” Moseley instructed her to “be quiet” as he touched her vaginal

area and attempted to anally penetrate her with his penis. “I keep [sic] saying no,” C.J.

said, “and then he went into my front area.”

      According to C.J., the sexual abuse was “continuous,” with vaginal penetration

occurring on four or five more occasions until a cousin “walked in and caught him; and

then that’s when it had got back to [her] mom.” C.J. said she had told her mother after

the first incident, and her mother “beat” her in response. Although C.J. was ten years

old at the time, her mother considered the sex consensual. “[S]he told my aunt that I

was just trying to mess with her baby daddy.” C.J. was able to identify Moseley in the

courtroom. She testified that she was unaware of who A.H. or I.W. were.

D.    Defense’s Case-in-Chief

      Janette was the sole witness in the defense’s case-in-chief. Janette testified her

son stayed periodically with her “in ’15,” the year the alleged offense occurred. Janette

opined that although she kept an ironing board in her home, it could not hold the weight

of a six-year-old. Janette recalled A.H. and her sister spending the night at her residence

but denied witnessing any evidence of the allegations against Moseley.

      Moseley’s counsel argued in closing arguments, as he did in his opening

statements, that A.H. and “the rest of these alleged victims” were being dishonest at his

client’s expense:

      [A.H. is] a liar. She admitted that she is a liar. . . . [I.W.] is another one
      who doesn’t know the truth. . . . She asked you to defy basis [sic] laws of
      physical impossibility. . . . Then you’ve got [C.J.]. And I’ll be frank with
      you. I don’t have the explanation. I don’t have the inconsistencies with
      [C.J.] that there are with the alleged victim and then these other people who
      come in. Why was [C.J.] here? . . . What ax did she have to grind?




                                            11
      The jury returned a guilty verdict, and the trial court assessed punishment. This

appeal followed.

                     II. ADMISSION OF EXTRANEOUS-OFFENSE EVIDENCE

      By his first issue, Moseley contends that the trial court erroneously admitted I.W.’s

and C.J.’s testimony under article 38.37 of the Texas Code of Criminal Procedure and

Rule 403 of the Texas Rules of Evidence. TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2;

TEX. R. EVID. 403.

A.    Standard of Review

      We review a trial court’s decision on admissibility of extraneous-offense evidence

under an abuse of discretion standard. Dabney v. State, 492 S.W.3d 309, 316 (Tex.

Crim. App. 2016) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).

We will uphold a trial court’s admissibility decision when that decision is within the zone

of reasonable disagreement and as long as it is correct on any theory of law applicable

to the case. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Sauceda

v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).

B.    Applicable Law

      Article 38.37 of the code of criminal procedure permits the admission of evidence

of other sex crimes committed by the defendant against children—other than the

complaining witness of the alleged offense—“for any bearing the evidence has on

relevant matters, including the character of the defendant and acts performed in

conformity with the character of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.37

§ 2(2)(b). Extraneous-offense evidence can also be admitted to rebut the defensive

theory of fabrication. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); see




                                            12
also Dabney, 492 S.W.3d at 317 (“Because Appellant presented his defensive theory in

opening statements, the State could use extraneous-offense evidence to rebut this theory

in its case-in-chief rather than waiting until the defense rested.”).

       Before extraneous-offense evidence may be admitted under article 38.37, the trial

court is required to determine that “the defendant committed the separate offense beyond

a reasonable doubt.” TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2-a(1)(2); Lopez v. State,

288 S.W.3d 148, 165 (Tex. App.—Corpus Christi–Edinburg 2009, pet. ref’d). Further,

upon proper objection or request, the trial court is also required to conduct a Rule 403

balancing test to consider whether the value of the evidence is substantially outweighed

by the danger of unfair prejudice. See TEX. R. EVID. 403; see also Distefano v. State,

532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Davila v. State, No.

13-18-00298-CR, 2019 WL 3227263, at *2 (Tex. App.—Corpus Christi–Edinburg July 18,

2019, no pet. h.) (mem. op., not designated for publication).           A Rule 403 analysis

requires consideration of the following:

       (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). In overruling a

Rule 403 objection, the trial court is presumed to have applied a Rule 403 balancing test

and to have determined that the evidence was admissible. See Hitt v. State, 53 S.W.3d

697, 706 (Tex. App.—Austin 2001, pet. ref’d); see also Distefano, 532 S.W.3d at 31




                                              13
(providing that Rule 403 does not require that the balancing test be performed on the

record).

C.      Article 38.37 Analysis

        Moseley first asserts that he did not open the door for the use of the extraneous-

offense evidence to rebut a defense of fabrication and alternatively that I.W.’s testimony

does not meet admissibility requirements under article 38.37.4 We disagree.

        Moseley’s defensive theory of fabrication was consistent and prevalent:                         first

appearing in his opening statements, then throughout his cross-examination when he

repeatedly accused A.H. of lying, and re-affirmed in his closing arguments when he

pointedly said, “[A.H. is] a liar.” See Dabney, 492 S.W.3d at 317; Bass, 270 S.W.3d at

563; see, e.g., Webb v. State, 575 S.W.3d 905, 909 (Tex. App.—Waco 2019, no pet. h.)

(holding that appellant “open[ed] the door” to the use of extraneous-offense evidence

when “defense counsel asked a series of questions designed to suggest that [the

complaining witness] was lying or changed her story regarding various facts pertaining to

the incident.”).

        With respect to his contention that I.W.’s testimony fell short of requirements under

article 38.37, Moseley argues that I.W. was unable to visually identify him in the courtroom

as her assailant and that “the mechanics of the assault” she alleged were improbable.

However, the weight to be assessed to witness testimony in an article 38.37 hearing rests

with the trial court. See Ryder v. State, 514 S.W.3d 391, 399 (Tex. App.—Amarillo 2017,


        4  We note that although Moseley states in his brief that “the trial court committed reversible error
by allowing witnesses I.W. and C.J. to testify under article 38.37 . . .[,]” Moseley makes no specific
arguments regarding C.J.’s testimony under article 38.37, instead applying only the Rule 403 balancing
test. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2; TEX. R. EVID. 403. Therefore, our 38.37 analysis is
limited to I.W.’s testimony.



                                                    14
pet. ref’d) (admissibility of witness’s testimony about extraneous offense did not violate

article 38.37 because admissibility of testimony turned on trial court’s assessment of

witness’s credibility and weight to be given evidence); see also Shukla v. State, No. 01-

18-00147-CR, 2019 WL 2621737, at *8 (Tex. App.—Houston [1st Dist.] June 27, 2019,

no pet. h.) (mem. op., not designated for publication) (same); White v. State, No. 03-17-

00504-CR, 2019 WL 2518755, at *8 (Tex. App.—Austin June 19, 2019, no pet. h.) (mem.

op., not designated for publication) (same). The trial court’s assessment of a witness’s

credibility extends to a witness’s inability to make an in-court identification of a defendant.

See Chafer v. State, 500 S.W.2d 139, 141 (Tex. Crim. App. 1973) (affirming conviction

based on testimony where the complaining witness could not identify the defendant in-

court); Moore v. State, 140 S.W.3d 720, 727 (Tex. App.—Austin 2004, pet. ref’d) (same).

Here, the trial court judged I.W.’s credibility and found her statements credible irrespective

of Moseley’s implausibility argument and I.W.’s inability to identify Moseley in-court.

       Viewing the record in the proper context and remaining mindful of the deference

we provide the trial court on rulings of admissibility of extraneous-offense evidence, we

cannot conclude that the trial court’s ruling fell outside the “zone of reasonable

disagreement.” Gonzalez, 544 S.W.3d at 370.

D.     Rule 403 Analysis

       In conjunction with his article 38.37 argument, Moseley contends that the

“extraneous offense testimony failed to meet” each Rule 403 balancing requirement. We

next consider and apply the facts of this case to the aforementioned factors, noting that

“these factors . . . blend together in practice.” Gigliobianco, 210 S.W.3d at 642.




                                              15
       1.     Probative Value and Proponent’s Need for Evidence

       “Probative value” is the measure of “how strongly [the evidence] serves to make

more or less probable the existence of a fact of consequence to the litigation—coupled

with the proponent’s need for that item of evidence.” Id. at 641. We acknowledge that

testimony regarding sexual assault involving children by its nature tends to be

inflammatory, and the length of time can diminish the probative value of extraneous-

offense evidence. See Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013);

see also Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi–Edinburg 2002,

pet. ref’d) (noting that remoteness of prior offenses affects their probative value but does

not automatically render the evidence inadmissible on that basis).

       The evidence shows that Moseley, charged with vaginal penetration of a twelve-

year-old girl, also vaginally penetrated a six-to-eight-year-old girl approximately eight to

ten years ago and did the same to a ten-year-old girl until she was thirteen approximately

twelve years ago. Although remote in time, the trial court could reasonably conclude that

the extraneous offenses had an inherent probative force because they were (1) no more

serious than the acts recounted by A.H., and (2) shared similarities based on Moseley’s

conduct, the age of the children at the time of the assaults, and the location of the

assaults. See McCombs v. State, 562 S.W.3d 748, 765–67 (Tex. App.—Houston [14th

Dist.] 2018, no pet.); see also Robisheaux v. State, 483 S.W.3d 205, 220 (Tex. App.—

Austin 2016, pet. ref’d) (“[W]e believe that the district court could have reasonably

determined that the remarkable similarities between the extraneous offenses and the

charged offenses strengthened the probative force of the evidence.”); see, e.g., West v.

State, 554 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (permitting




                                            16
evidence “that appellant committed a lewd or lascivious act upon a ten-year-old girl about

twenty-nine years before the trial” where the case at bar involved a ten-year-old

complaining witness).

       The State’s need for the extraneous-offense evidence was high. As discussed

above, (1) Moseley implicitly and explicitly accused A.H. of fabricating her allegations of

abuse, (2) there was no physical evidence or eyewitness testimony supporting A.H.’s

allegations, and (3) several of the State’s witnesses simply reiterated what A.H. had told

them. See Hammer v. State, 296 S.W.3d 555, 568–69 (Tex. Crim. App. 2009) (“Rule

403 . . . should be used sparingly, especially in ‘he said, she said’ sexual-molestation

cases that must be resolved solely on the basis of the testimony of the complainant and

the defendant.”); see, e,g., Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco

2009, pet. ref’d) (finding a twenty-five-year-old extraneous offense admissible based on

the State’s need for extraneous-offense evidence because the State had no physical

evidence or eyewitness testimony).

       In Bass, the State’s case also rested on the complainant’s testimony that the

defendant sexually assaulted a child in the same location, where extraneous-offense

evidence showed that he had also sexually assaulted two other, similarly-aged, girls.

Bass, 270 S.W.3d at 562–63.         The Texas Court of Criminal appeals rejected the

defendant’s Rule 403 argument, reasoning: “It seems obvious that, if the State can show

that a defendant has committed similar sexual assaults against . . . children, an

affirmative defense allegation that the victim [of the charged offense] fabricated her claims

is less likely to be true” because the extraneous-offense evidence “directly rebuts the




                                             17
defensive claims and has logical relevance aside from character conformity.” Id. An

evaluation of these factors weighs in favor of admission.

       2.     Confusion of the Issues and Undue Weight

        “Confusion of the issues” refers to a tendency to confuse or distract the jury from

the main issues in the case. Gigliobianco, 210 S.W.3d at 641. The “tendency of an

item of evidence to be given undue weight by the jury on other than emotional grounds,”

refers to evidence of which a jury is not properly equipped to judge the probative force—

such as scientific evidence.     Id. (emphasis added); see Bass, 270 S.W.3d at 641

(explaining that scientific evidence is type of evidence that “might mislead a jury”).

       I.W.’s and C.J.’s testimony concerned matters readily comprehensible by lay

people, and their testimony was directly relevant to the only issue in the case—whether

Moseley abused A.H. Any potential risk of confusion or undue weight regarding I.W.’s

and C.J.’s testimony, however, was mitigated by the trial court’s charge instruction to the

jury that it could only consider their testimony for proper purposes:

       Any testimony and evidence that the defendant has committed the separate
       offenses of Indecency with a Child or Aggravated Sexual Assault of a Child
       was admitted for any bearing that testimony and evidence has on relevant
       matters, including the character of the defendant and acts performed in
       conformity with the character of the defendant. You cannot consider such
       testimony and evidence unless you find and believe beyond a reasonable
       doubt the defendant committed the separate offenses.

       We presume that the jury obeyed these instructions. See Curry v. State, 541

S.W.3d 751, 758 (Tex. Crim. App. 2017); see, e.g., Chasco v. State, 568 S.W.3d 254,

261 (Tex. App.—Amarillo 2019, pet. ref’d) (finding the trial court did not abuse its

discretion in permitting testimony regarding extraneous offenses when the “jury was

instructed that it could consider the testimony regarding appellant’s extraneous




                                             18
offenses . . . only if it found beyond a reasonable doubt that appellant committed the

offenses.”). Consequently, these factors also weigh in favor of admission.

       3.     Undue Delay and Needless Presentation of Cumulative Evidence

       The last two factors concern the efficiency of the trial proceeding rather than the

threat of an inaccurate decision. Gigliobianco, 210 S.W.3d at 641. C.J. was on the

stand for a relatively brief period of time; her entire testimony occupies only twenty-one

pages of a trial transcript that spans more than 600 pages. I.W. testified for a longer

period; however, we note that any disparity in length was due to Moseley’s cross-

examination of I.W., which exceeded the State’s direct-examination and alone spanned

twenty-six pages of the record. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim.

App.1996) (holding that the factor weighed in favor of admission where extraneous-

offense testimony amounted to “less than one-fifth” of trial testimony); but see McGregor

v. State, 394 S.W.3d 90, 121–22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d)

(upholding the trial court’s decision to admit the evidence although evidence of

extraneous offenses constituted one-third of trial and weighed against admissibility).

Accordingly, these factors weigh in favor of admission, even if only slightly.

       We conclude that the trial court did not err in admitting testimony of extraneous-

offense evidence in its denial of Moseley’s article 38.37 and Rule 403 objections. See

Gigliobianco, 210 S.W.3d at 642–43; see also Gonzalez, 544 S.W.3d at 370; Dabney,

492 S.W.3d at 317. We overrule issue one.




                                            19
                             III. OUT-OF-COURT STATEMENTS

       By his second issue, Moseley contends that the trial court erred in allowing

witnesses to testify to statements made by A.H. and I.W. under Rule 801(e)(1)(B). TEX.

R. EVID. 801(e)(1)(B).

A.     Standard of Review and Applicable Law

       In relevant part, Rule 801(e)(1)(B) gives substantive, non-hearsay status to prior

consistent statements of a witness if: (1) the witness is subject to cross-examination

concerning the statement, and (2) the statement is “consistent with the declarant’s

testimony and is offered to rebut an express or implied charge against the declarant of

recent fabrication or improper influence or motive.”       Id.   We review a trial court’s

decision to admit evidence for an abuse of discretion, and we view the evidence in the

light most favorable to the trial court’s ruling. Klein v. State, 273 S.W.3d 297, 304–05

(Tex. Crim. App. 2008) (citing Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App.

2007)); Fears v. State, 479 S.W.3d 315, 332 (Tex. App.—Corpus Christi–Edinburg 2015,

pet. ref’d). Because no bright-line rule exists, the trial court has “substantial discretion”

to admit a prior consistent statement if there has been “a suggestion of conscious

alteration or fabrication.” Hammons, 239 S.W.3d at 804–05.

B.     Analysis

       Moseley maintains that he did “not level an express or implied charge that A.H. or

I.W. recently fabricated . . . their testimony.” We disagree.

       The record reflects that the forensic interviewer testified, over Moseley’s hearsay

objections, that A.H. made out-of-court statements to her regarding Moseley’s abusive

conduct. The trial court admitted this testimony as substantive evidence of appellant’s




                                             20
guilt under Rule 801. See TEX. R. EVID. 801(e)(1)(B). Moseley urges us to employ

Hammons in our analysis. Hammons, 239 S.W.3d at 804–05. We find Hammons to be

a persuasive, controlling authority and in representative opposition of Moseley’s position.

While questioning tactics by appellant in Hammons were “subtle,” only becoming

“vociferously express[ive] during appellant’s closing argument,” Moseley’s questioning

was unambiguous in his accusation of fabrication:

        Q.      Okay. So you were lying when you told me final answer that he
                didn’t touch you with his penis; is that right?

                ....

        Q.      Why did you feel like you could lie here today?

        As discussed in the preceding section, Moseley did more than challenge A.H.’s

credibility or passively suggest fabrication, 5 therefore the trial court did not abuse its

discretion in admitting the complainant’s prior consistent statement to the forensic

interviewer. Id. at 804 (“There is no bright line between a general challenge to memory

or credibility and a suggestion of conscious fabrication, but the trial court should

determine whether the cross-examiner’s questions or the tenor of that questioning would

reasonably imply an intent by the witness to fabricate.”); see also White v. State, 256

S.W.3d 380, 383 (Tex. App.—San Antonio 2008, pet. ref’d) (“A reviewing court must


        5  Moseley’s trial counsel conceded both his impeachment of A.H. and the evidence’s admissibility
during a bench conference:

        THE COURT:              Tell me why the rules don’t allow—I mean, you admit that [A.H.]
                                was impeached, right?

        [COUNSEL]:              Absolutely.

        THE COURT:              Then tell me why they don’t get to bring in a previous consistent
                                statement.

        [COUNSEL]:              Because I think the law is wrong, Judge.



                                                  21
consider the totality of the questioning, giving deference to the trial judge’s assessment

of tone, tenor, and demeanor, and may also consider clues from the voir dire, opening

statements, and closing arguments.”).

       Moseley was far less pronounced in his assertion of fabrication in his cross-

examination of I.W. Against Moseley’s overruled objections, the trial court also admitted

evidence of I.W.’s out-of-court statements through her mother, assistant principal, and

the State’s investigator. The trial court, however, was free to interpret Moseley’s “tone,

tenor, and demeanor” in his questioning of the plausibility of I.W.’s allegation, coupled

with the surrounding circumstances—from Moseley’s opening statement that “Everybody

has a motivation to lie[,]” to his cross-examination of A.H.—in its determination of whether

a charge of fabrication occurred. See Hammons, 239 S.W.3d at 808; see, e.g., Martinez

v. State, 276 S.W.3d 75, 82 (Tex. App.—San Antonio 2008, pet. ref’d) (deferring to a trial

court’s observation that the requirement of fabrication had been met “[a]lthough the

defense questioning could be characterized as merely challenging [the witness’s]

credibility.”). The “‘sinister seed of innuendo’ sowed during cross-examination came to

full fruition” during Moseley’s closing argument, when his charge of fabrication against

I.W. became unequivocal: “[A.H.] admitted that she is a liar. . . . [I.W.] is another one

who doesn’t know the truth.” See Hammons, 239 S.W.3d at 808.

       Having reviewed the record, we defer to the trial court’s “substantial discretion” to

admit prior consistent statements after determining that the witness’s credibility has been

challenged, and we conclude that the trial court did not err in admitting A.H.’s and I.W.’s

out-of-court statements under Rule 801(e)(1)(B). See id. at 804–05; Fears, 479 S.W.3d

at 332. We overrule issue two.




                                            22
                                     IV. CONCLUSION

       The trial court’s judgment is affirmed.

                                                      GREGORY T. PERKES
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of September, 2019.




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