 Affirmed   as   i1()dilied;   Opinion   [iled Januarv 3, 2013.




                                                   In The
                                       (!.niirt uf Appra1!i
                               Fift1! Htrict of          1i tIa11a

                                            No. 05-1 1-01333-CR


                                JOSE SYINESTERE LOPEZ, Appellant

                                                     V.

                                   li-IE STATE OF TEXAS, Appellee


                         On Appeal          the 282nd Judicial District Court
                                         from
                                          Dallas County, Texas
                                   Trial Court Cause No. F09-13031-S


                                                OPINION
                               Before Justices Moseley. Fillmore, and Myers
                                        Opinion By Justice Myers

        Appellant was convicted of continuous sexual abuse of a child and sentenced to life

imprisonment. In four points of error, he challenges the admission of extraneous offense evidence

and urges us to reform the judgment. As modified. we affirm the trial court’s judgment.

                                BAcKGRou D AND PROCEDURAL HISTORY

       Complainant K.A. was three years old when her mother and appellant moved in together; she

was six when they got married. K.A. testified that appellant, who she called “Dad.” sexually

assaulted her on numerous occasions beginning when she was six years old and continuing until
                                                                                              the

age of eight, when she first reported the abuse. K.A. testified that the assaults occurred “at least

twice a month, if not more.” Some of these assaults oeculTed at appellant’s vorkplace—an auto
 repair shop.

         During the guilt—mnocencc phase of the trial, appellant called his brother, Juan Jose LopeZ,

 to testil\’ for the delense. Juan testified that, as a sibling, he had known appellant his entire life, that

appellant was his closest sibling, and that he had observed how appellant’s family interacted.

Detbnse counsel then asked, “[W]as [appellanti the kind of person that would abuse children?” The

witness responded, “No.” During her cross-examination, when the prosecutor started to ask Juan

whether he was aware “that there is an allegation,” defense counsel objected under rule of evidence

404(b). In a hearing held outside the presence of the jury. the prosecutor asked .luan if he was aware

appellant had been accused of grabbing the breasts of a fifteen year-old girl. Juan responded, “Yes.”

The prosecutor asked Juan what he knew about the allegations. He replied. “Just that Claudia told

me. I don’t know if there’s any documentation to it or not. I don’t know.” Defense counsel objected

on the basis of hearsay, rule of evidence 404(b). and that any probative value of the evidence was

outweighed by its prejudicial effect under rule 403. The trial court overruled the objections on the

basis that the evidence was being offered to rebut the witness’s testimony that appellant was not the

type of person who would abuse children. The court then conducted the rule 403 balancing test and

determined the evidence was not unfairly prejudicial, and that it would not confuse the issues or

mislead the jury, because it was being offered “to rebut a direct quote by this witness        ...   that the

defendant is not the type of person who abuses children.” After the jury returned to the courtroom,

the prosecutor continued the cross-examination:

        Q. Mr. Lopez, it’s your opinion that your brother is not the kind of person who
        would sexually abuse children; is that correct?

       A. Yes. Correct.

       Q. But isn’t it also correct that you’re aware of an accusation that your brother
       grabbed the breasts of a 15-year-old-girl; isn’t that correct?
            A        ust hum      ( ‘laudma’s words,

The trial court gave the jury a limiting instruction, on ic—direct examination, definse counsel asked

the witness. “Do von believe these al1etatiuns of Claudia?” 1-Ic responded that he did not.

           The State subsequently called the tilteen ear—old girl referred to in the proseeutom’ s question.

V,M,, as a rebuttal witness. During a hearing held outside of the presence of the jury, defense

counsel objected to the witness’s testimony based on rule 404(b) and because the probative value

of the evidence was substantially outweighed by the danger of unfair pre)udice, confusion of the

issues, or misleading of the jury. The trial court advised it had done a balancing test and overruled

the objections. l)uring V.M.’s testimony, the trial court admonished the jury that the evidence was

not admissible to prove appellant’s character or to show conformity with that character.
                                                                              2

           V.M. was a seventeen-year-old senior in high school at the time of trial. She testified that

she was the sister of Claudia Lopez, appellant’s wife, and that she was employed as a secretary in

appellant’s auto repair shop when she was sixteen years old. On Saturday, March 7, 2009, appellant

came up behind her as she sat at her desk and massaged her shoulders. \7.M, told appellant to stop,

but he “just continue[d].” Appellant then started kissing \
                                                          .M. on the cheek and rubbing her breasts.
                                                          T

She ran to the bathroom and locked the door. She left the bathroom when she heard the telephone

ring. The telephone call was from V.M. ‘s mother, and V.M. immediately told her what happened.




      The court’s limiting instruction was as Ibllows:

                      At this point, I need to give the same instruction as earlier regarding——regarding this, this being
                                                                                                                           the fact that it’s
          being uttered not to provethat the detendant ---—its not admissible to prove thecharacterofa person in order
                                                                                                                         to show the action
          and conformity therew tb, but instead       being otfered tbr another purpose such as proof of moti\’e, opportunity, preparation,
          plan, knowledge, absence of mistake. or accident, it’s being offered for those purposes, and that is what
                                                                                                                    thejury may consider,

  2
      ‘ne eouil   admonished the jufl’ as follows:

                    And, ladies and gentlemen, at this point, 1 do need to let you know that, again, my previous admonishme
                                                                                                                                      nt
         regarding evidence of other crimes, wrongs. or acts is not admissible to prove the character ofa person in
                                                                                                                    order to show action
         in eonfomitv therewith. Iloivever. it can he used for a- -another purpose in —in this matter. But it
                                                                                                                   cannot be shown —it
         cannot be used by ou to prove the character of a person in act in order to show con fomity-.




                                                                        —3—
 \‘JvL’s hither picked her up from the shop approximately five minuies later. \.M ‘s father went

 inside the shop and confronted appellant. but appellant “didn’t say anything.’’ “[II was just sitting
                                                                                     Ic
 down shaking,” according to V.M. She has not seen appellant since that time.

         The jury convicted appellant ot continuous sexual abuse of a child, as charged in the

 indictment. The trial   court   assessed punishment at life imprisonment.

                                               1)1 SCUSSION

                                           Appellant   ‘   Brother

        In his first point of error, appellant contends the ti-ia! court erred by allowing Juan to testify

regarding what Claudia Lopez, appellant’s wife, told Juan about the alleged extraneous offense.

        When reviewing a trial court’s niling admitting evidence, we apply an abuse of discretion

standard of review. Casey v. State, 215 S.W.3d 870. 879 (Tex. Crim. App. 2007). The court
                                                                                          does
not abuse its discretion as long as its decision to admit evidence falls within the zone of reasonable

disagreement.   Bigon    v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

        A witness who testifies to another’s good character may be cross-examined to test the

witness’s awareness of relevant “specific instances of conduct.” TEx. R. EviD. 405(a); Wilsoji v.

State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002). Character may be proved through either opinion

or reputation testimony. J’ilson, 71 S.W.3d at 350. While reputation witnesses are generally asked

“have you heard” questions, opinion witnesses are asked “did you know” questions. Id. When a

witness presents a picture that the defendant is not the type of person to commit the charged
                                                                                              offense,

the prosecution may impeach that witness’s testimony by cross-examining the witness concerning

similar extraneous offenses. Wheeler v. State, 67 S.W.3d 879. 885 (Tex. Crim. App. 2002).

       Appellant argues Juan’s testimony on cross-examination as to what appellant’s wife told him

regarding the incident with V.M. was based on hearsay and should have been excluded. But the
 record shows Juan testified on direct that, as a sibling, he had known appellant his entire life,

 appellant was his closest sibling, and that he had opportunities to see appellant’s family interact.

Juan then testified that appellant was not the kind of person who would abuse children. It was

permissible fir the State to cross—examine .Juan regarding his awareness of relevant specific instances

of appellant’s conduct. Sec TEx, R. EvID. 405(a); Wi/son, 71 S.W.3d at 350. We cannot say the trial

court abused its discretion by overruling appellant’s objection. We therefore overrule appellant’s

first point.

                                       Extraneous Ojji?lIse Evidence

        In his second point, appellant contends the trial court abused its discretion by admitting the

extraneous     ofThnse   involving V.M. because it was offered as character-conformity evidence solely

to prove appellant committed the charged offense against K.A., in conformity with his bad character.

Appellant relies on rule 404(b) of the rules of evidence. See TEx. R. EvID. 404(b).

        A trial court’s decision admitting extraneous offense evjdence is reviewed under an abuse

of discretion standard. Curraseo v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). Rule

404(b) prohibits the admission of extraneous offense evidence to prove an individual’s character or

to show action in conformity with that character. TEx. R. EvID. 404(b). This limitation is not based

on legal relevance; rather, the evidence is inherently prejudicial, has a tendency to confuse the issues,

and forces the accused to defend himself against uncharged crimes in addition to the charged offense.

Daggeit r. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005); Alhrecht v. State, 486 S.W.2d 97,

100 (Tex. Crim. App. 1972). But extraneous offense evidence may be admissible for other purposes

such as proof of motive, opportunity, intent, preparation. plan, knowledge, identity, or absence of

mistake or accident. TEx. R. EviD. 404(b). “Whether extraneous offense evidence has relevance

apart from character conformity, as required by Rule 404(b), is a question for the trial court.” Moses
r.   Slate.   105 S.W.3d 622.627 (Tex. Crirn. App. 2003).

          Rebuttal of a defensive theory is bol of the permissible purposes for which relevant

evidence maybe admitted under Rule 404(b).” ii at 626. A defendant’s presentation ofa defensive

theory in an opening statement, for example, may open the door to the admission of extraneous

ottense evidence to rebut the defensive theory. See Bass v. State. 270 S.W.3d 557. 563 (Tex. Crim.

App. 2008). Extraneous offenses are admissible to rebut delènsive theories raised by the testimony

of a defense witness during direct examination or a State’s witness during cross-examination. See

Daggett, 187 S.W.3d at 453-54; Ransom v. State, 920 S.W.2d 288. 301 (Tex. Crim. App. 1996).

Furthermore, evidence ofextraneous offenses in sexual assault cases is properly admitted under rule

404(b) to rebut a defensive theory of retaliation or fabrication or that the defendant is “the innocent

victim of a     frameup’    by the complainant or others.” Wheeler. 67 S.W.3d at 888 n.22; see also

Bass, 270 S.W.3d at 563 & n.8. “In such a situation, the     extraneous   misconduct must be at least

similar to the charged one and an instance in which the ‘frame-up’ motive does not apply.” Wheeler,

67 S.W.3d at 888 n.22; see also Dennis v. State, 178 S.W.3d 172. 179 (Ta. App.—Houston [1st

Dist.] 2005. pet. ref’d).

          The record shows that, at trial, appellant offered several defensive theories: (a) he was a

loving father and not the kind ofperson who would sexually abuse a child; (b) LA. fabricated the

abuse allegations; and (c) appellant’s wife. Claudia, was behind the fabrication of the abuse

allegations. We will examine each of these theories.

          Beginning with the first theory, defense counsel told thejuly during opening statements that

appellant “was not an abusive type ofperson.” Juan Lopez, appellant’s brother, testified that he had

seen how appellant’s family interacted, and that appellant was not the kind of person who would

abuse children. Rene Lopez, another brother, testified that he had been close to appellant over the



                                                  -6-
 previous five years and that appellant \ as not the kind ot person v ho would sexually abuse children.

 Appellant testified that he considered K.A. to be his own daughter and “aiwa         s   had a very good

 father/daughter relationship with her.’’ In his closing argument. dclcnsc counsel told the jury that

 appellant was “not the kind of person that would commit this type of case.”

          As for appellant’s second theory. defense counsel cross—examined K.A. about her

communications with the District Attorney’s Office, police officers, and a counselor. I-Ic asked her

whether she was the center of attention during the counseling sessions and whether she enjoyed

being the center of attention, and whether Claudia or anyone else told her what to say to the police.

In his closing statement, defense counsel stated that Claudia asked K.z\. several times whether she

had been touched “by a man,” and that a child who is repeatedly asked such a question “can come

to understand that that’s what you want the child to say.” Counsel also argued that K.A. enjoyed

being the “center of attention”      and that   K A. ‘s interactions with prosecutors, investigators and

counselors over a    two year   period reinforced the child’s accusations.

          Turning to appellant’s third defensive theory, defense counsel began his opening statement

by telling the jurors that they would hear testimony about “very turbulent        amily circumstances”

involving K.A., and that appellant and Claudia fought “like cats and dogs” from the beginning of

theirrelationship. Appellant’s brother, Rene Lopez, testified that Claudia’s emotions “would change

pretty quickly from one state to another”—from very happy and smiling to fighting with appellant.

He testified that the fighting between appellant and Claudia intensified during the three to four

months before appellant’s arrest, and that Claudia verbally abused appellant by cursing at him and

calling him names. This verbal abuse included calling appellant a “bastard,” accusations that he was

“not   any fucking good anymore,” and “things like that.” Appellant’s son, Jose Sylvestere Lopez, Jr.,

testified he did not get along with Claudia because she hit and slapped him, and called him names
 like “dumb” and “weird.” lie testified that he once saw appellant and Claudia push and shove one

 another and say “had words.” Claudia accused appellant of spending more time with his son than

 with K.A., then attacked appellant with a kitchen knife. Alter Jose. Jr. went to bed, he could hear

 appellant and Claudia “screaming to each other,”

        Appellant testified that he had a difficult and turbulent relationship with his wife. and that

 there were “had feelings” between them. Appellant said his wife suffered from “mental” problems

 because she had been physically and psychologically abused by her mother. He attributed some of

their marital problems to a disagreement with his wife about her belief in her mother’s use of

witchcraft. When K.A, was between three-and-a-half and four years old, appellant saw Claudia grab

her by the hair and slap her on the face six times because the child had urinated in her clothing. On

another occasion, appellant saw Claudia “practically” drag the child by her hair, then “hit her on the

back of the head.” Appellant intervened to stop Claudia from hitting K.A. Appellant also alleged

that Claudia attacked him with a knife several times. lie told the jury he saw Claudia verbally abuse

his son, .Jose. Jr., and that Claudia “always made” his son “feel more inferior” because Claudia

believed K.A. was “more intelligent than he is.”

        In his closing argument, defense counsel said that appellant had been “trying to overcome”

a chaotic marital relationship. He argued there were “severe problems” in appellant’s marriage “that

resulted in violence between [appellant) and his wife where she attacked him with a knife.” Defense

counsel also noted that Claudia denied ever using violence against anyone, and “on that point

Claudia” was “not telling the truth.”

       Based on this record, the trial court could have reasonably concluded the extraneous offense

evidence regarding V.M. was offered to rebut appellant’s several defensive theories. The extraneous

offense was sufficiently similar to the charged offense to be admissible. Both the extraneous and
 the charged olknse involved underage females that appellant knew; both individuals were related

 to appellant’s wife: both the extraneous offense and some of incidents involving the complainant

 occurred at appellant’s workplace. Theretbre, we cannot say the trial court abused its discretion by

 overruling appellant’s rule 404(b) objection. We overrule appellant’s second point of error.

                         Probative Value ofExtraneous Offense Evidence

         In his third point of error, appellant contends the trial court abused its discretion by

 concluding that the probative value of the extraneous offense evidence was not substantially

 outweighed by the danger ofunfiuir prejudice. In his brief, appellant limits his discussion under this

 issue to Juan Lopez’s testimony. We will do the same.

        Under rule ofevidence 403, relevant evidence of extraneous offenses may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice or confusion of the

issues. See mx. K. EVID. 403; see also Montgomery v. State, 810 S.W.2d 372,389 (Tex. Crim. App.

 1991) (op. on reh’g) (presumption relevant evidence more probative than prejudicial), in considering

a rule 403 challenge, courts must balance (1) the inherent probative force of the evidence, that is,

how strongly it serves to make more or less probable the existence of a fiuct of consequence to the

litigation, with (2) the proponent’s need for that evidence sgainst (3) any tendency of the evidence

to suggest a decision on an improper basis, commonly, an emotional one, (4) any tendency of the

evidence to confuse or distract the jury from the main issues, (5) any tendency ofthe 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 ofthe evidence will consume an inordinate amount

oftime or merely repeat evidence already admitted. Gigliobianco v. State. 210 S.W.3d 637, 641-42

(Tex. Crim. App. 2006). We should reverse the trial court’s balancing determination “rarely and

only after a clear abuse ofdiscretion.” Montgomery, 810 S.W.2d at 392. in addition, because rule




                                                -9-
 403 permits the exclusion of admittedly probative evidence, “it is a remedy that should be used

 sparingly,” particularly in “sexual-molestation cases that must be resolved solely on the basis ofthe

 testimony of the complainant and the defendant.” Hammer v. Suite. 296 S.W.3d 555. 568 (Tex.

 Crim. App. 2009).

         The rule 403 factors weigh in favor of admission. The extraneous offense evidence was

probative to rebut appellant’s defensive theories that appellant was not the type ofperson who would

 sexually abuse a child, that the abuse allegations were fabricated, and that appellant’s wife was

behind the fabrication. Juan testified directly that appellant was not the type of person who would

abuse a child. The State’s cross-examination regarding whether he was aware that appellant had

been accused of abusing V.M., an underage girl, was probative in order to challenge Juan’s

testimony and rebut appellant’s defensive theories. Moreover, the State’s need for such evidence

was considerable. Although there was physical evidence of abuse, there was no DNA evidence

linking appellant to the instant offense. See Newton v. State, 301 S.W.3d 315, 320 (Tex.

App.—Waco 2009, pet. refd) (State’s need for evidence was “considerable” because there were no

eyewitnesses or physical evidence available to corroborate complainant’s testimony, and State

needed to rebut appellant’s claim of fabrication). We see little indication the exifaneous offense

evidence confused or distracted the jury from the main issues. The extraneous offense evidence

involved a single incident The testimony in question was relatively brief and less graphic than the

ficts pertaining to the State’s case-in-chief. The trial court gave the july a limiting instruction. We

cannot say the trial court abused its discretion by concluding that the probative value of the

extraneous offense evidence was not outweighed by the danger of unfair prejudice. We overrule

appellant’s third point.




                                                —l0-
                                       Re/orniatwii     of Jiidçment
          In his fourth point, appellant asks us to   modify   the judgment to reflect the correct names of

 the attorneys that represented appellant and the State. This Court has the power to modify an

 incorrect judgment to make the record speak the truth when we have the necessary information

before us to do so. Tix. R. Apr. P. 33.2(b): French      t   State, 530 S.W.2d 607, 609 (Tex. Crim. App.

 I 992): isherrv v State. 813 S.W.2d 526, 529-30 (Tex. App.— Dallas 199 I. pet. ref’d).

          The judgment lists the attorney for the State as Marcy Curry and the attorney for appellant

as 1-lugo Aguilar. The reporter’s record, however, indicates that Amy Derrick and Shelley Fox

represented the State, and that William Rink represented appellant. We sustain appellant’s third

point and reform the judgment to reflect that the attorneys of record were Amy Derrick and Shelley

Fox for the State, and William Rink for appellant.

          As moditied, we affirm the trial court’s judgment.




                                                          EAN1S4
                                                          JUSTiCE


Do Not Publish
TEX. R. App. P.47
11    I    I (   —

I I




                                                 —11—
                                           /   —




                                    (ftiairt   tit Aiiirztk
                        ;FiftI!    Th5Irirt cit rxa at        a1ta
                                       JUDGMENT
JOSE SYLVESTERE LOPEZ, Appelkint                   Appeal from the 282nd Judicial District
                                                   Court of Dallas County. Texas. (Tr.Ct.No.
No. 05-I 1-01333-CR            .                   FO9-l3031-S.
                                                   Opinion delivered by Justice Myers, Justices
THE STATE OF TEXAS, Appellee                       Morris and Fillmore participating.


        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

              Under the section entitled “Attorney for State,” “Marcy Curry” is
              replaced with “Amy Derrick and Shelley Fox.”

              Under the section entitled “Attorney for Defendant,” “Hugo Aguilar”
              is replaced with “William Rink.”

      As modified, the judgment is AFFIRMED. We DIRECT the trial court to enter a new
judgment that reflects these modifications


Judgment entered January 3, 2013.




                                                   LANA M ERS
                                                   .JUSTICE
