                              Fourth Court of Appeals
                                    San Antonio, Texas

                                MEMORANDUM OPINION
                                        No. 04-12-00043-CR

                                       Justin Emar MOORE,
                                              Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010CR4143
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: January 9, 2013

AFFIRMED

           Justin Emar Moore was found guilty of three counts of aggravated sexual assault of a

child and one count of indecency with a child by contact. At punishment, he pled true to the

enhancement pleading in the indictment that alleged he had been previously convicted of an

aggravated sexual assault of a child offense. He was sentenced to life imprisonment. On appeal,

Moore argues that the trial court erred in admitting over his objection evidence of the prior

extraneous offenses of aggravated sexual assault of a child and indecency with a child by
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contact. The State responds that the trial court did not err because Moore’s opening statement

and cross-examination of the complainant opened the door to the admission of the evidence.

       Ordinarily, extraneous-offense evidence is not admissible in the guilt/innocence phase of

a criminal trial to prove that a defendant committed the charged offense in conformity with a bad

character. See TEX. R. EVID. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.

2011). However, extraneous offense evidence may be admissible when it has relevance apart

from character conformity. Devoe, 354 S.W.3d at 469. In Bass v. State, 270 S.W.3d 557, 557,

563 (Tex. Crim. App. 2008), the Texas Court of Criminal Appeals held that the trial court did not

abuse its discretion in admitting extraneous-offense evidence to rebut the defensive theory

presented in the defense’s opening statement that the complainant’s allegations were “pure

fantasy” and “pure fabrication.” In so holding, the court explained,

       Our case law supports a decision that a defense opening statement, like that made
       in this case, opens the door to the admission of extraneous-offense evidence, like
       that admitted in this case, to rebut the defensive theory presented in the defense
       opening statement. See Powell v. State, 63 S.W.3d 435, 438-40 (Tex. Crim. App.
       2001) (in prosecution for indecency with a child, defendant’s opening statement
       that he lacked opportunity to molest the complainant under the circumstances of
       the charged offense opened the door to admission of extraneous-offense evidence
       that defendant molested others under almost identical circumstances to rebut
       defendant’s lack of opportunity defensive theory); see also Daggett v. State, 187
       S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (in prosecution for sexual assault of
       a child under seventeen, defendant’s sweeping direct-examination testimony
       disavowing any sexual misconduct with minors opened the door to admission of
       extraneous-offense evidence of defendant’s sexual misconduct with another minor
       to rebut this sweeping testimony). This case law makes no categorical distinctions
       between “fabrication” defenses and “frame-up” or “retaliation” defenses.

       In this case, it is at least subject to reasonable disagreement whether the
       extraneous-offense evidence was admissible for the noncharacter-conformity
       purpose of rebutting appellant’s defensive theory that the complainant fabricated
       her allegations against him and of rebutting the defensive theory clearly
       suggesting that appellant, as a “real deal” and “genuine” pastor, would not engage
       in the type of conduct alleged in the indictment. See Daggett, 187 S.W.3d at 453-
       54; Powell, 63 S.W.3d at 438. It is subject to reasonable disagreement whether
       this extraneous-offense evidence made these defensive theories less probable. See
       id.; Montgomery, 810 S.W.2d at 387. The trial court, therefore, did not abuse its
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       discretion to decide that the extraneous-offense evidence was admissible to rebut
       these defensive theories.

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

       In De La Paz v. State, 279 S.W.3d 336, 345 (Tex. Crim. App. 2009), the court of criminal

appeals relied on its opinion in Bass, explaining that like the defense in Bass, the appellant in its

case “attacked one of the State’s star witnesses” in opening statement when he said the

following:

       When you look at all this and, specifically, Mr. Herrera’s testimony, we’ll show
       you he has an incentive, that he had an incentive to go to the prosecutors and say,
       hey, I’ll tell you whatever you want to hear. And his incentive is he’s trying to
       keep himself out of prison because we’ll show you when he testified the first time
       in the grand jury he was given immunity.

De La Paz, 279 S.W.3d at 345. The court noted that during cross-examination of the State’s

witnesses, the “defense’s basic attack was that both [witnesses] were lying or fabricating their

present testimony concerning the drug deal for ulterior motives.” Id. The court of criminal

appeals then distinguished the defense attacking a witness’s credibility from the defense

advancing a theory of fabrication. See id. The court of criminal appeals criticized the court of

appeals, explaining that the court of appeals had

       mistakenly analogized this situation to that in Webb v. State, 36 S.W.3d 164, 180-
       81 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (en banc), in concluding
       that general attacks on credibility may call into question the State’s proof, but do
       not negate any element of the crime, [and thus are] not the type of defensive issue
       that can be rebutted with extraneous offense evidence.

De La Paz, 279 S.W.3d at 346 n.32 (quotations omitted). According to the court of criminal

appeals, “no one suggested that any of these three witnesses is generally a liar, generally

untruthful, or generally not worthy of belief.” Id. at 346. The court explained that “[t]hese were

not attacks upon the witnesses or appellant for having a bad character for truthfulness; these were

accusations of lying about a specific type of event – the occurrence of a drug delivery – under a


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specific set of circumstances.” Id. The court concluded that “[i]n these circumstances, it is at

least subject to reasonable disagreement whether the extraneous-offense evidence was admissible

for the noncharacter-conformity purpose of rebutting appellant’s defensive theory that [the

State’s witnesses] were lying about these specific events and had fabricated their testimony to

please the prosecution.” Id. at 346-47. Thus, the court held that the trial court did not abuse its

discretion in admitting the extraneous-offense evidence “to rebut the defense position that it was

the State’s witnesses who were lying about the Vega drug deal.” Id. at 347.

       In the context of aggravated sexual assault of a child, the Austin Court of Appeals in

Gaytan v. State, 331 S.W.3d 218 (Tex. App.—Austin 2011, pet. ref’d), examined whether the

defense advanced a fabrication theory that would allow the State to submit extraneous-offense

evidence in rebuttal. The Austin Court of Appeals first considered whether the defense advanced

a fabrication theory while cross-examining the complainant. Id. at 224. During cross-

examination, the defense asked the complainant about her allegations. Id. The complainant

admitted that she had no direct memories of being abused by the defendant. Id. When the defense

asked her about the basis of her testimony, the complainant said that she had reviewed her

videotaped interview and had had several conversations with her mother. Id. The defense did not

ask the complainant whether she had fabricated her allegations or why she had made an outcry.

Id. Under these facts, the Austin Court of Appeals held that the defense’s cross-examination of

the complainant did not advance a fabrication theory entitling the State to offer extraneous-

offense evidence in rebuttal. Id. The court explained that the responses elicited from the State’s

witnesses on cross examination “must be sufficient to construct a defensive theory before the

State may introduce extraneous-offense evidence in rebuttal.” Id. According to the court,

“[m]erely challenging the complainant’s credibility on cross-examination does not automatically

open the door to rebuttal evidence.” Id. The court concluded that the defense challenged the
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complainant’s credibility “but did not elicit responses from her that were sufficient to construct a

defensive theory of fabrication.” Id.

       The Austin Court of Appeals then considered whether the defense advanced a fabrication

theory sufficient to entitle the State to offer extraneous-offense evidence in rebuttal during

opening statement. Id. In opening statement, the defense counsel stated:

       The defense in this case is real simple: this didn’t happen. . . . What the evidence
       is going to show is that [the complainant] got mad at [the defendant] because he
       wouldn’t play with her anymore [sic]. She made this statement [alleging abuse]
       and there’s no evidence to support it . . . the story changes and grows and cracks,
       and there’s no physical evidence.

Id. (alterations in original). The court held that this statement by defense counsel “was sufficient

to raise a theory of fabrication that entitled the State to offer extraneous-offense evidence in

rebuttal”. Id. The court noted that the defendant attempted to distinguish Bass “by arguing that

his attorney did not clearly advance a fabrication theory and did not suggest that [the

defendant]’s character put him above suspicion.” Gaytan, 331 S.W.3d at 225. The court

explained that “[w]hile it is true that [the defense] attorney did not use the words ‘pure fantasy’

or ‘pure fabrication’ like Bass’s attorney, the Bass court did not suggest that such ‘magic words’

are necessary to advance a theory of fabrication.” Id. According to the Austin Court of Appeals,

the defendant’s attorney provided the complainant’s motive for fabricating the allegations, said

there was “no evidence to support” the complainant’s allegations, and claimed that the

complainant’s “story changes and grows and cracks.” Id. In analyzing these statements, the court

concluded that it was “at least subject to reasonable disagreement whether these statements

suggested that [the complainant] was fabricating her story.” Id. Accordingly, the court held that

the trial court did not abuse its discretion by admitting extraneous-offense evidence to rebut that

suggestion. Id.



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       The Austin Court of Appeals further considered the appellant’s argument that “if

comments like his are deemed to advance a fabrication theory, then there will be precious few

defendants who can offer any theory of the case in opening statement without the State being

able to then introduce extraneous acts evidence.” Id. (emphasis in original). The defendant

argued that a “more reasonable reading of Bass indicates that the defendant may open the door to

extraneous acts where the defensive theory is extreme in nature.” Id. (emphasis in original). The

Austin Court of Appeals explained,

       The problem with [the defendant]’s reading of Bass is that Bass plainly says
       nothing about limiting its holding to “extreme” defensive theories. Moreover, the
       court of criminal appeals has reaffirmed Bass’s holding without limiting it to
       “extreme” theories: “a defense opening statement may open the door to the
       admission of extraneous-offense evidence to rebut defensive theories presented in
       that opening statement.” De La Paz v. State, 279 S.W.3d 336, 345 (Tex. Crim.
       App. 2009). This is a single proposition: if the opening statement presents a
       defensive theory, it opens the door to rebuttal evidence in the form of extraneous
       offenses. As explained above, it is at least subject to reasonable disagreement
       whether [the defendant]’s opening statement advanced a defensive theory of
       fabrication; thus, the trial court did not abuse its discretion by allowing the State
       to present extraneous-offense evidence in rebuttal. Bass, 270 S.W.3d at 563.

Gaytan, 331 S.W.3d at 225-26.

       Here, defense counsel in his opening statement stated that this was “not the first time [the

complainant’s mother] has made allegations against a person that they have had – sexually

abused her child.” He also stated, “[O]ur contention is that these allegations [] were created by

[the complainant’s mother] in order to strike revenge or get back at Mr. Moore for reasons that

will be brought out in testimony, and that she elicited – she got her daughter involved in these

. . . allegations [] made against Mr. Moore.” “I believe that once you have heard all the

testimony, that with careful deliberation you will go back into the jury room, discuss this matter

amongst yourselves and that you will find that [the complainant’s mother] got her child involved

in a situation where she made up a story [and] got [the complainant] to go along with it.”


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According to defense counsel, “[W]e talked about how parents – how kids will do things to

please their parent in that situation. The person that got caught up in that situation, I’m just trying

to help them.” We conclude that it is at least subject to reasonable disagreement whether these

statements during opening statement suggested that the complainant was fabricating her story.

See Bass, 270 S.W.3d at 226; Gaytan, 331 S.W.3d at 225. Therefore, the trial court did not abuse

its discretion in concluding that the defense advanced a fabrication theory sufficient to entitle to

the State to offer extraneous-offense evidence in rebuttal. See Bass, 270 S.W.3d at 226; Gaytan,

331 S.W.3d at 225.

       In addition to opening statement, defense counsel pursued his fabrication theory through

his cross-examination of the complainant. On cross-examination, defense counsel asked the

complainant whether her mother “suggested” that she make these allegations against Moore.

Defense counsel then more specifically asked, “Did your mama tell you to make these

allegations against Justin [Moore]?” The complainant replied, “No.” Defense counsel repeated

the question: “She didn’t tell you, she didn’t coach you and say, you know, you need to say this

and say that, have you discussed it?” The complainant replied, “No, but she did tell me not to be

afraid, to come up here and tell the truth.” Unlike the defense counsel in Gaytan, 331 S.W.3d at

224, these questions presented by defense counsel during cross-examination were not general

credibility questions but instead were “accusations of lying about a specific event.” De La Paz,

279 S.W.3d at 346. Through his cross-examination, defense counsel was advancing his

fabrication theory that the complainant had fabricated the allegations against Moore because her

mother had convinced her to do so in an attempt to get revenge against Moore. Like the Texas

Court of Criminal Appeals in De La Paz, we conclude that “[i]n these circumstances, it is at least

subject to reasonable disagreement whether the extraneous-offense evidence was admissible for

the noncharacter-conformity purpose of rebutting appellant’s defensive theory that [the State’s
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witness was] lying about these specific events and had fabricated [her] testimony to please [her

mother].” Id. at 346-47. We further note that the extraneous-offense evidence presented by the

State rebutted the defense’s fabrication theory. The witness who testified about the extraneous

offenses recounted events similar to the complainant’s allegations. Therefore, after examining

the record, we hold that the trial court did not abuse its discretion in concluding that the

extraneous-offense evidence was admissible to rebut Moore’s defensive fabrication theory. See

Bass, 270 S.W.3d at 563. We affirm the judgment of the trial court.



                                                Karen Angelini, Justice

Do not publish




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