                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00002-CR
        ______________________________


      RICHARD LEROY KORP, II, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 102nd Judicial District Court
                Bowie County, Texas
           Trial Court No. 10F0347-102




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION

        Richard Leroy Korp, II, appeals from his conviction by a jury for aggravated sexual

assault of his daughter, a child. The jury found the enhancement allegation true and assessed a

sentence of life imprisonment. On appeal, Korp contends that the trial court erred (1) by

admitting evidence of a prior extraneous offense at the guilt phase of trial, (2) by allowing the

testimony of a psychologist which he alleges was admitted for the purpose of bolstering the

victim’s testimony, and (3) by refusing to allow the introduction of testimony that the victim had

recanted her claims.

        Evidence was presented that Korp had digitally penetrated his eleven-year-old daughter

and had fondled one of her breasts as she spent the night in his home. The evidence of this act

was derived solely from his daughter’s statements pertaining to the incident (although others also

testified about the acts, their testimony was solely a repetition of the claims made by the

daughter). There were discrepancies between her descriptions of the situation surrounding the

alleged act and those of other people who were also at the house that night, and there was some

testimony that she had later recanted her claims pertaining to her father’s conduct. The

extraneous offense (admitted at the guilt phase of the trial) regarded Korp’s conviction in North

Carolina for a similar offense against his then-minor son.             It was not admitted as a final

conviction at the guilt stage, but the son testified about the acts.

        We first address Korp’s contention that the court erred by admitting testimony at the guilt

stage about his sexual activities with his son who––at the time of the occurrence––was a minor.

Korp’s complaint regarding this has two facets: (1) he claims that this was admitted solely for

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the purpose of trying to convince the jury that he generally possessed the character of a criminal;

and (2) even if the evidence was otherwise admissible, the court erred by allowing its

introduction because it was more prejudicial than probative. These arguments were preserved

for review.

       In Bass v. State, 270 S.W.3d 557, 562–63 (Tex. Crim. App. 2008), the Texas Court of

Criminal Appeals reviewed a very similar situation, adopting the State’s position that

extraneous-offense evidence regarding similar sexual assaults against children not related to or

connected with the present incident is admissible if that evidence bears some logical relevance

aside from an attempt to prove that the accused conduct falls within the accused’s conformity to

character flaws. The court also agreed with the notion 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 victim [of the charged offense] fabricated her claims is

less likely to be true.‖ Id. The court reasoned that because the evidence can be used to directly

rebut defensive claims of fabrication of the story upon which the current charges were brought, it

would have logical relevance apart from claims of conformity to character.

       Under that analysis, testimony by Korp’s elder child regarding previous sexual activities

that Korp had imposed on him while the child was eleven or twelve years old does rebut the

defensive claim of fabrication—a claim which was before the jury at that point through

testimony that the alleged victim had told at least one person that the events had not occurred.

Therefore, the testimony was not automatically excluded under Rule 404 of the Texas Rules of

Evidence. TEX. R. EVID. 404.

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         The remaining issue is Korp’s objection under Rule 403 wherein he maintains that even if

the evidence was admissible, it should have been excluded because it was more prejudicial than

it was probative. Trial judges are required to exclude evidence when its probative value is

substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Montgomery v.

State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh’g).            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. Of course, these factors may well

blend together in practice. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.

2006).

         A trial court’s decision in balancing these factors is reviewed under the abuse of

discretion standard and is disturbed on appeal only when the trial court’s decision falls outside

the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App.

2007).

         As we have previously discussed, the Texas Court of Criminal Appeals has reasoned in

these cases that the testimony is probative toward disproving fabrication, presumably under the

notion that it is less likely that two individuals separated by time and space would fabricate the

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same type of story. Is the probative value substantially outweighed by the danger of unfair

prejudice?   That question is always problematic.       Evidence that a person had previously

committed a sex crime against a child is always highly prejudicial. However, because of the

similarity of the nature of the crime and the relationship of each victim involved in the two

instances, the revelation of the previous conduct diminishes the possibility that the evidence of

the child’s recantation should be believed. We note that the elder child’s testimony was not

heavily emphasized; it consumes only four pages of the record and is not the type of evidence

requiring additional testimony to explain. Although clearly quite harmful to the defense, it does

not appear to be so ―unfairly prejudicial‖ as to make its admission outside the range of discretion

of the trial court. See generally DeJesus v. State, 889 S.W.2d 373, 378 (Tex. App.—Houston

[14th Dist.] 1994, no pet.). The contentions of error are overruled.

       Korp next contends that the trial court erred by allowing Karrah Dickeson, a

psychologist, to testify in such a manner that it amounted to bolstering the victim’s testimony.

Specifically, Dickeson opined that the victim showed signs of stress, both wanted and needed

treatment, and identified Korp as the perpetrator. She then recounted the victim’s statement

about the events. As presented, the victim identified Korp as the perpetrator and described the

acts, and then three other witnesses also testified that she had identified Korp as the perpetrator

and repeated her descriptions of the acts, under separate exceptions to the hearsay rule. Korp

now contends Dickeson’s testimony detailing the victim’s statement constituted bolstering.

       The State repeatedly describes the evidence as being ―not made less relevant because it in

some small measure corroborates the child’s own testimony.‖ Substantively, the State argues

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that the testimony was relevant circumstantial evidence that something traumatic had happened

to the child victim and that knowledge of this would assist the fact-finder.           Specifically,

Dickeson testified that the child had a series of specific symptoms which demonstrated that she

was suffering from stress. She then opined that the victim’s stress was caused by Korp through

his sexual abuse of the victim, and then Dickeson repeated the same matters as had already been

the subject of testimony by the outcry witness, a sexual assault nurse examiner (SANE), who had

used very similar words in describing what the victim had said. ―Bolstering‖ is evidence offered

for the ―sole purpose‖ of enhancing the credibility of a witness or source of evidence without

substantively contributing to relevance. Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App.

2009). Thus, the testimony (which repeated the victim’s statements almost verbatim) can fit

within the definition of bolstering.

       The initial question is whether the bolstering issue is preserved for our review. Counsel

timely objected to Dickeson’s testimony as being nothing more than bolstering, and thus

inadmissible.   During a pretrial hearing, the court explicitly stated that Dickeson met the

qualifications necessary to testify as an expert. After further discussion, counsel also argued that

this witness’ testimony would constitute bolstering, which the trial court acknowledged as

possible.   The court then stated that it did not find that the proposed testimony did not

automatically fall within the category of bolstering and did not make a ruling at that time; rather,

the trial court made it clear that the objection of bolstering could be made upon presentation at

the time of trial. When the State then later offered Dickeson as an expert witness, counsel, ―[i]n

light of the Court’s prior ruling,‖ did not further object. At the point that Dickeson was asked to

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recount the victim’s statement to her, counsel objected to the testimony only as hearsay, not

repeating the objection to bolstering. In other words, Korp did not obtain a ruling on his

objection regarding bolstering when he first raised it and did not lodge such an objection when

the testimony was actually proffered.

        To preserve error for appellate review, the complaining party must make, at the earliest

opportunity, a specific objection and obtain a ruling on the objection. Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002). Where a trial objection does not comport with the issue raised

on appeal, the appellant has preserved nothing for review. Id.; Ibarra v. State, 11 S.W.3d 189,

197 (Tex. Crim. App. 1999); see TEX. R. APP. P. 33.1(a). Because Korp did not preserve his

objection as to bolstering, he waived it. That contention of error is overruled.

        Korp also contends that the trial court erred by refusing to admit testimony that the victim

had recanted her claims. A defense witness testified that the victim had recanted her allegation

of sexual abuse by Korp. Counsel correctly notes that only after the question was answered did

the State object and that the trial court sustained the hearsay objection.1 However, the State did

not further pursue the matter. It neither requested an instruction to disregard, nor was such given

by the trial court. Accordingly, despite the State’s objection to the testimony, it remained for the

jury’s consideration for all purposes.           Although counsel on appeal argues that the ruling

prevented further questioning on the matter, there is nothing in this record to show such a




1
 We concur with counsel’s position that this testimony would be admissible as a statement against interest under
TEX. R. EVID. 803(24). It is by definition not evidence excluded by the hearsay rule. The trial court’s ruling was
error.

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limitation, as no further questions were asked of the witness. Although error has been shown,

harm has not. The contention of error is overruled.

       We affirm the judgment of the trial court.




                                            Bailey C. Moseley
                                            Justice

Date Submitted:       November 12, 2012
Date Decided:         November 28, 2012

Do Not Publish




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