                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                          '
    CHARLES ANDREW APPLEWHITE,                                               No. 08-11-00121-CR
                                                          '
                            Appellant,                                            Appeal from
                                                          '
    v.                                                                       432nd District Court
                                                          '
    THE STATE OF TEXAS,                                                   of El Paso County, Texas
                                                          '
                            Appellee.                     '                    (TC # 1102795D)


                                                  OPINION

          Charles Andrew Applewhite appeals his convictions of aggravated sexual assault of a

child (Count I, II, III, and VI) and indecency with a child by contact (Counts IV and V). We

affirm.

                                           FACTUAL SUMMARY

          Forty-three-year-old Tamera has three children, Chip Tire1, Michael, and Charity.

Tamera and her former husband, Richard, both have cerebral palsy.                           Appellant worked in

Tamera’s home while she and Richard were married and he sometimes spent the night with

them. On those occasions when he stayed overnight, Appellant slept in Chip’s room. After

Tamera and Richard divorced, she and the children began living with Appellant. The children

usually slept in the same bedroom with her but Chip sometimes slept in Appellant’s bedroom.

Chip, who was nineteen-years-old at the time of trial, testified that he had a “rocky” relationship

with his father when he was a child. His father, who uses a motorized wheelchair, would run


1
   The victim is identified in the indictment by a pseudonym. See TEX.CODE CRIM.PROC.ANN. art. 57.01 (West
2006). In order to maintain the victim’s confidentiality, the opinion refers to all of the family members by only their
first names.
into him and sometimes grab him by the hair and drag him alongside the wheelchair. When Chip

was eight or nine-years-old, Appellant began working as a home healthcare worker for Tamera

and Richard. Chip would sometimes stay overnight at Appellant’s house and he began seeing

him as a father figure because of the way Appellant treated him. Unlike Richard who often

yelled at Chip, Appellant spoke calmly and listened to him like a loving father. Chip went so far

as to refer to Appellant as “Dad.” At first, Chip slept on the couch but he eventually began

sleeping in Appellant’s bedroom. Appellant also stayed overnight at Chip’s house and slept in

his bedroom.    Appellant kissed Chip and touched him sexually on many occasions.                He

specifically recalled one incident of anal intercourse when Appellant demanded that Chip put his

penis in Appellant’s anus. It stopped abruptly because Richard knocked on the door and came

into the bedroom. Appellant often put his penis in Chip’s mouth to the point that Chip described

it as “nonstop.” Chip also recalled Appellant inserting his penis in Chip’s anus on a few

occasions. Chip did not try to stop the assaults nor did he tell anyone because Appellant made

him feel that it was acceptable behavior and he told Chip that he would do it if he loved him.

       Chip’s grandmother, Shannon, suspected that Appellant was sexually abusing Chip and

made a report to CPS. Appellant told Chip that Shannon was evil and was trying to break up the

family. He also told Chip that CPS would take him and put him in a terrible place. CPS

interviewed Chip several times and he consistently denied the sexual abuse. The children were

removed from Appellant’s home when Chip was fourteen and the abuse stopped. During his

freshman year of high school, Chip finally told his grandmother that he had been abused. They

did not make a police report until they learned that Chip’s younger brother, Michael, was visiting

Appellant.

       Thirteen-year-old Michael testified at trial. He recalled that his family began living with



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Appellant when he was six or seven years old and Michael shared a room with his mother and

sister. Chip slept in Appellant’s bedroom which only had one bed. Michael slept in Appellant’s

bedroom on three nights and he saw Appellant and Chip sleeping in the same bed. Michael slept

on the floor. On one of those nights, he saw Chip lying on his stomach with Appellant partially

on top of and behind him. Michael saw that Appellant’s hips were moving back and forth under

the sheets but Michael did not understand what he was seeing. On another night, Michael saw

Appellant on his back with his legs spread apart under the sheets and Chip was under the sheets

with his head near Appellant’s penis. Chip’s head was moving up and down and Appellant had

his hands on Chip’s back. Michael knew this behavior was abnormal and he never slept in that

bedroom again. He never told anyone what he had seen because he was too scared.

                                  EXTRANEOUS OFFENSE

       In his first issue, Appellant argues that the trial court abused its discretion by admitting an

extraneous offense. The State responds that the evidence was admissible to rebut the defensive

theory of fabrication. Alternatively, the State argues that admission of the evidence is harmless.

       The trial court overruled Appellant’s objections based on Texas Rules of Evidence 403

and 404(b) and permitted Chip to testify that he saw Appellant molest another boy, Tony White,

to whom Appellant referred as his “play grandson.” Chip believed that Tony was about twelve

years of age. On one occasion when Tony was at Appellant’s house, Chip looked in the

bedroom and watched Tony performing anal sex on Appellant. The defense later called Tony as

a witness and he denied that Appellant had ever engaged in any type of inappropriate or sexual

contact with him.

                              Relevant Law and Standard of Review

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



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person to show action in conformity therewith. TEX.R.EVID. 404(b). But it may be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan, or knowledge.

Id. Rebuttal of a defensive theory is one of the “other purposes” for which extraneous offense

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

(Tex.Crim.App. 2009); Dennis v. State, 178 S.W.3d 172, 180 (Tex.App.--Houston [1st Dist.]

2005, pet. ref’d). This includes rebutting the defensive theory that the complainant fabricated the

allegations against the defendant. See Bass v. State, 270 S.W.3d 557, 563 (Tex.Crim.App.

2008); Dennis, 178 S.W.3d at 180-81. The Court of Criminal Appeals explained in Bass that if

the State can show that a defendant has committed similar sexual assaults against unrelated and

unconnected children, an affirmative defense allegation that the complainant fabricated his

claims is less likely to be true. Bass, 270 S.W.3d at 562-63. By showing that the complainant’s

allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and

has logical relevance aside from character conformity. Id.

       We review the trial court’s admission of extraneous offense evidence for an abuse of

discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009); Prible v. State, 175

S.W.3d 724, 731 (Tex.Crim.App. 2005).         If the trial court’s ruling is within the zone of

reasonable disagreement, there is no abuse of discretion. Prible, 175 S.W.3d at 731. A trial

court’s ruling on the admissibility of an extraneous offense 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. De La Paz, 279 S.W.3d at

344.

                                 Rebuttal of a Defensive Theory



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       In his cross-examination of Chip, Appellant’s attorney elicited testimony that when Chip

was interviewed by the CPS caseworkers in 2000, 2002, 2003, and 2004, he had on every

occasion denied any inappropriate touching or sexual contact by Appellant.          Counsel also

questioned Chip about his grandmother’s dislike of Appellant and her repeatedly asking Chip

whether he had been molested by Appellant. This line of questioning raised the defensive theory

that Chip had fabricated the allegations against Appellant in response to his grandmother’s

influence. In theory, evidence that Appellant had sexually assaulted another child could make

less probable Appellant’s claim that Chip fabricated the allegations, and thus, would have

relevance other than character conformity.      In this case, however, Chip provided the only

testimony that the extraneous offense occurred as Tony denied ever having any sexual contact

with Appellant.    The question is whether Chip’s uncorroborated testimony that Appellant

committed an extraneous offense against another child is logically relevant to make it less likely

to be true that Chip fabricated the allegations against Appellant. Relying on Pavlacka v. State,

892 S.W.2d 897 (Tex.Crim.App. 1994), Appellant contends that Chip’s testimony about the

extraneous offense is not relevant to any issue other than character conformity.

       In Pavlacka, the defense did not assert that the complainant fabricated the allegations in

response to an improper influence or motive but the credibility of the complainant was

impeached with a prior inconsistent statement. Id. at 899-01. In response to the impeachment,

the State elicited testimony from the complainant that the defendant had molested him on an

occasion other than the one charged in the indictment. Id. at 900-01. The State argued the

extraneous offense evidence was admissible to “shore up” the credibility of the complainant. Id.

at 899. The First Court of Appeals held that the evidence was relevant to rebut a defensive

theory of fabrication. Pavlacka v. State, 848 S.W.2d 325, 327 (Tex.App.--Houston [1st Dist.]



                                               -5-
1993). The Court of Criminal Appeals reversed, holding that the defendant did not raise the

defense of fabrication and the extraneous offense evidence was not relevant to rehabilitate the

child’s credibility with respect to the charged offense. Pavlacka, 892 S.W.2d at 901-03. With

respect to the latter holding, the Court stated that “testimony of other molestations coming from

an impeached complainant cannot logically serve to rehabilitate that complainant.” Id. at 903.

The Court further explained:

       The question is one of credibility. The mere repetition of allegations from a
       source of dubious credibility does not render that source any more credible.
       Absent some independent corroboration, there is no better reason to believe the
       complainant’s account of extraneous misconduct that there is to believe his
       account of the misconduct for which the accused is on trial. Simply put, an
       impeached complainant’s own testimony as to other molestations, without more,
       is just as unreliable as rehabilitative evidence of the accused’s lascivious intent
       and willingness to act on it as is his testimony regarding the charged offense. It
       cannot therefore serve logically to rehabilitate him. Because the only source of
       evidence of the extraneous misconduct in this cause was the impeached
       complainant himself, Michael, we hold it was not admissible to rehabilitate him,
       notwithstanding language in Montgomery and Vernon.

Id. at 903. In response to Pavlacka, the Legislature enacted Article 38.37 of the Code of

Criminal Procedure which applies in prosecutions of certain offenses against a child under

seventeen years of age and makes admissible evidence of other crimes, wrongs, or acts

committed by the defendant against the child who is the victim of the charged offense, provided

it is relevant to matters such as the state of the mind of the defendant and the child and the

previous and subsequent relationship between the defendant and the child.            TEX.CODE

CRIM.PROC.ANN. art. 38.37, §§ 1, 2 (West Supp. 2012). Thus, a portion of Pavlacka has been

legislatively overruled. But the Court’s holding that “testimony of other molestations coming

from an impeached complainant cannot logically serve to rehabilitate that complainant” remains

viable. While the defense of fabrication was not at issue in Pavlacka, the Court’s holding and

underlying logic would apply with equal force in a case where fabrication has been raised. We

                                              -6-
conclude that the trial court abused its discretion by finding that Chip’s testimony about the

extraneous offense had relevance apart from character conformity.

                                          Harm Analysis

       The erroneous admission of an extraneous offense is non-constitutional error. Johnson v.

State, 84 S.W.3d 726, 729 (Tex.App.--Houston [1st Dist.] 2002, pet. ref’d). Rule 44.2(b) of the

Texas Rules of Appellate Procedure provides that any error, other than constitutional error, that

does not affect substantial rights must be disregarded. TEX.R.APP.P. 44.2(b). A substantial

right is affected when the error had a substantial and injurious effect or influence on the jury’s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Substantial rights are not

affected by the erroneous admission of evidence if, after examining the record as a whole, we

have fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v.

State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002).         In assessing the likelihood that the jury’s

decision was adversely affected by the error, the Court of Criminal Appeals has instructed that

we consider everything in the record, including any testimony or physical evidence admitted for

the jury’s consideration, the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other evidence in the case. Id.

The reviewing court may also consider the jury instructions, the State’s theory and any defensive

theories, closing arguments, and even voir dire, if applicable. Id. at 355-56.

       The State’s case turned on the credibility of the complainant. As already discussed, the

defense impeached Chip with his prior inconsistent statements and asserted that he fabricated the

allegations due to the influence of his grandmother.           Chip’s younger brother, Michael,

corroborated Chip by testifying that he witnessed two incidents where Appellant sexually

assaulted Chip. Further, the State offered the testimony of a child forensic interviewer, Carrie



                                                -7-
Paschall, who explained why children failed to report or delayed reporting abuse.

       The character of the erroneously admitted evidence weighs in favor of a finding of harm.

Extraneous-offense evidence is inherently prejudicial, tends to confuse the issues, and forces the

accused to defend himself against charges not part of the present case against him. Sims v. State,

273 S.W.3d 291, 294-95 (Tex.Crim.App. 2008); Higginbotham v. State, 356 S.W.3d 584, 593

(Tex.App.--Texarkana 2011, pet. ref’d). An improperly admitted extraneous offense encourages

a jury to base its decisions on character conformity, rather than evidence that the defendant

committed the offense with which he or she has been charged. Higginbotham, 356 S.W.3d at

593.

       In addition to considering the nature of the evidence, we must also consider its

relationship to other evidence in the case. In addressing this factor, we consider to what degree

the State emphasized the erroneously admitted evidence. See Motilla, 78 S.W.3d at 359. The

presentation of the testimony about the extraneous offense consumed only a small amount of

time. Chip’s direct examination about the extraneous offense is found on eight pages of the

reporter’s record. The State’s presentation of its case-in-chief on guilt-innocence, including

objections and hearings conducted outside the presence of the jury, is comprised of

approximately 478 pages of the reporter’s record. Both prosecutors addressed the jury during

closing argument but only one of them mentioned the extraneous offense and he focused the vast

majority of his argument on the charged offenses.

       White’s denial that the extraneous offense occurred and his pointed testimony that

Appellant had never engaged in any type of inappropriate touching or sexual contact with him

certainly had the potential to significantly reduce the inherent prejudice of the extraneous offense

evidence. This is especially true here because the trial court instructed the jury that it could not



                                               -8-
consider the extraneous offense evidence unless it found beyond a reasonable doubt that

Appellant committed the offense. Appellate courts generally presume that a jury followed the

judge’s instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009). After

reviewing the entire record and considering the foregoing factors, we have a fair assurance that

the error did not influence the jury or had but a slight effect. See Higginbotham, 356 S.W.3d at

593 (error in admission of extraneous offense evidence in prosecution for theft was harmless,

despite fact that character of erroneously admitted evidence weighed in favor of finding of harm,

where remaining factors overwhelmingly favored finding that error did not result in harm; the

State’s emphasis of extraneous offense was rather minimal, evidence consisted of twenty-one

pages out of approximately 300 pages of testimony presented during guilt/innocence, testimony

was confusing and contradictory, and trial court instructed jury that it could not consider

extraneous offense unless the jury found beyond a reasonable doubt that the appellant had

committed the offense). Having found that the error did not result in harm to Appellant’s

substantial rights, we overrule Issue One.

                            EXPERT WITNESS QUALIFICATION

       In Issue Two, Appellant argues that Carrie Paschall, a child forensic interviewer, was not

qualified to testify regarding “grooming” and “Child Abuse Accommodation Syndrome” because

she is not qualified to testify as an expert in the field of psychology.

       Texas Rule of Evidence 702 provides: “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” Under Rule 702, the proponent of scientific

evidence must show, by clear and convincing proof, that the evidence he is proffering is



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sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or

in determining a fact in issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).

The reliability of “soft” science evidence may be established by showing that (1) the field of

expertise involved is a legitimate one, (2) the subject matter of the expert’s testimony is within

the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes the

principles involved in that field. Id. A trial court’s ruling on the admissibility of scientific

expert testimony is reviewed under an abuse of discretion standard. Id.

           Paschall is a child forensic interviewer in the Crimes Against Children Unit of the Tarrant

County District Attorney’s Office. She has a bachelor’s degree in political science and criminal

justice. Prior to working as a child forensic interviewer, Paschall worked for four and one-half

years as an investigator for Child Protective Services in a child sexual abuse unit and a

specialized unit that handled child homicide and severe child abuse cases. She obtained her

knowledge of “grooming” and Child Abuse Accommodation Syndrome through specialized

training and study. At the time of trial, Paschall had conducted over 4,500 forensic interviews of

children.       Although Appellant characterizes Paschall’s testimony as involving the field of

psychology and argues that she is required to be qualified as an expert in that field, the Court of

Criminal Appeals has recognized that grooming of children for sexual molestation, as a

phenomenon, is a legitimate subject of expert testimony and grooming evidence has been

received by courts from numerous types of experts, including psychiatrists, psychologists,

therapists, and social workers. Morris v. State, 361 S.W.3d 649, 666 (Tex.Crim.App. 2011).2

Further, the Court held that a law enforcement official with a significant amount of experience

with child sex abuse cases may be qualified to testify about grooming. Id. Paschall’s testimony

established that she is qualified, by virtue of her training and experience, to testify about
2
    The Court of Criminal Appeals decided Morris after the parties filed their briefs in this case.

                                                          - 10 -
“grooming” Child Abuse Accommodation Syndrome is likewise a recognized phenomenon and

has been held to be an appropriate subject for expert testimony. The Court of Criminal Appeals

addressed the admissibility of expert testimony about this syndrome in Duckett v. State, 797

S.W.2d 906 (Tex.Crim.App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817,

819 (Tex.Crim.App. 1993). According to Duckett, Dr. Roland Summit published an article

entitled, “The Child Sexual Abuse Accommodation Syndrome” (CSAAS) in 1983. Duckett, 797

S.W.2d at 913 n.12, citing Summit, The Child Sexual Abuse Accommodation Syndrome, 7

CHILD ABUSE & NEGLECT 177 (1983). Dr. Summit described five characteristics commonly

observed in child victims: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4)

delayed, conflicted, and unconvincing disclosure, and (5) retraction. Id. The syndrome is not a

diagnostic tool and is not probative of the fact of abuse but may be probative to explain a child’s

seemingly contradictory conduct after abuse has allegedly occurred. Id. CSAAS helps explain

why many sexually abused children recant allegations of abuse and deny that anything occurred.

Id. at 913. The expert witness who testified about CSAAS in Duckett was not a psychologist or

psychiatrist but was a certified social worker and advanced clinical practitioner who also held a

certificate as an instructor with the Texas Commission on Law Enforcement Officer’s Standards

and Education in the area of child sexual abuse investigation. See id. at 908. We conclude that

Paschall, because of her training and significant experience with child sex abuse cases, is

qualified to testify about CSAAS. See Morris, 361 S.W.3d at 666. Finding no abuse of

discretion, we overrule Issue Two.

                                     CLOSING ARGUMENT

       In his final issue, Appellant contends that the trial court erred by “suppressing” his

attorney’s closing argument.      One of Appellant’s theories during trial was that Chip’s



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grandmother disliked Appellant and repeatedly called CPS because he is African-American. On

the first day of trial, Tamera testified that her mother did not want her or the children around

Appellant because he is African-American. The following exchange occurred during closing

argument when defense counsel was addressing why CPS did not place the children with the

grandmother when they were removed from Appellant’s home:

        [Defense counsel]: I submit to you that they didn’t place them right away with
        the grandmother because she was a racist, because she was a bigot.

        [The prosecutor]: Objection, Your Honor. That is nonsupported [sic] by the
        facts, and it’s improper argument.

        [The trial court]: Ladies and gentlemen, you’re the fact finders. You will
        remember and recall the testimony as you previously heard it. Please remember
        that the argument of Counsel is to aid you in your deliberation, if any, but what
        they say is not evidence.

The trial court did not sustain the State’s objection either expressly or impliedly, it did not

instruct the jury to disregard defense counsel’s argument, and it did not prohibit counsel from

continuing with the argument. Even if the trial court had sustained the State’s objection, that

ruling would not have been erroneous because there is no evidence that CPS did not place the

children with the grandmother because she is a racist.      Argument that interjects facts not

supported by the record is improper. See Brown v. State, 270 S.W.3d 564, 570 (Tex.Crim.App.

2008). Issue Three is overruled. Having overruled each issue, we affirm the judgment of the

trial court.




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September 26, 2012                   _______________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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