                                         In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                                _________________
                                  NO. 09-11-00406-CR
                                _________________

                    THOMAS DARRELL CROSS JR., Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee

________________________________________________________________________

                   On Appeal from the 75th District Court
                          Liberty County, Texas
                         Trial Cause No. CR27615
________________________________________________________________________

                             MEMORANDUM OPINION

       Thomas Darrell Cross Jr. appeals the conviction and 60-year sentence he received

for the continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02 (West

Supp. 2012).1 Cross raises two issues in his appeal. In issue one, Cross complains that

during the guilt-innocence phase of his trial, the trial court should have excluded

evidence that in 2007, he forced an eighteen-year-old female to have intercourse. In issue

two, Cross argues that during the punishment phase of his trial, the trial court erred when

       1
        Because the amendment to section 21.02 is not material to this case, we cite the
current version of the statute.
                                            1
it denied his request to include an instruction in the charge advising the jury that he

would not be eligible for parole.

                                    Extraneous Offense

       In issue one, Cross complains of the trial court’s admission of evidence regarding

his 2007 sexual encounter with an adult female. Under the Texas Rules of Evidence,

evidence of the defendant’s other crimes, wrongs, or acts is not admissible “to prove the

character of a person in order to show action in conformity therewith[,]” but such

evidence may be admissible for other purposes, to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident[.]” Tex. R.

Evid. 404(b). An exception to Rule 404(b) courts have recognized which can allow

otherwise inadmissible evidence to be admitted concerns evidence that rebuts a

defendant’s theory that a witness is lying. See Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). For example, when a defendant suggests in opening statement

that the allegations of a complaining witness have been fabricated, a trial court may allow

the State to introduce relevant evidence which tends to rebut that suggestion. See Bass v.

State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).

       When the extraneous evidence being offered has relevance to show something

other than the fact that the defendant acted in a manner consistent with his character, trial

courts are given discretion to admit or exclude such evidence. See Devoe v. State, 354

S.W.3d 457, 469 (Tex. Crim. App. 2011) (noting that “[i]f the trial court’s evidentiary


                                             2
ruling is correct on any theory of law applicable to that ruling, it will not be disturbed,

even if the trial judge gave the wrong reason for his correct ruling”). A ruling admitting

evidence of an extraneous offense is reviewed under an abuse of discretion standard, and

if the trial court’s ruling is within the zone of reasonable disagreement, “there is no abuse

of discretion, and the trial court’s ruling will be upheld.” Id. (citing Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005)).

       In 2009, the State accused Cross of committing sexual abuse during 2008 with the

child that resulted in the indictment and conviction at issue here. Before the testimony at

issue was introduced during Cross’s trial, Cross objected, arguing that the testimony

about the 2007 sexual encounter with the adult female was inadmissible, and that if

admitted, the testimony would be inflammatory. Addressing one of Rule 404(b)’s

exceptions, the trial court asked Cross’s counsel, outside the jury’s presence, whether

Cross was claiming “that [the child] is making up these allegations.” In response, Cross’s

counsel stated: “That’s correct.” At that point, the trial court explained that the testimony

at issue appeared relevant in light of Cross’s defensive theory; the trial court then ruled

that the testimony would be admitted.

       Subsequently, the prosecutor explained that he intended to prove the adult female

was approximately the same physical size as the minor female when the respective

assaults occurred, inferring the adult female’s testimony would also tend to rebut Cross’s

suggestion that the females were too large for Cross to have overpowered the two


                                             3
females. The trial court explained to counsel, in light of Cross’s arguments, that the

probative value of the evidence about the 2007 encounter with the adult female

outweighed its prejudicial effect. See Tex. R. Evid. 403.

       The defensive theories on which Cross intended to rely would have been apparent

to the trial court from the statements that Cross’s counsel made prior to the trial court’s

ruling to admit the testimony at issue. In opening statement, Cross’s counsel stated the

child would describe actions that occurred long ago that were “just not humanly possible”

because Cross “is average size[,]” and “the stuff she’s going to testify you would have to

be 7 foot tall.” Defense counsel also told the jury that the evidence would show the

child’s abuse could not have occurred unnoticed in a small trailer house occupied by five

people, offered an innocent explanation intended to explain why the police found Cross’s

DNA and the child’s blood on the child’s blanket, and suggested a possible motive

explaining why the child’s claim might be false. The testimony the trial court admitted

reflects that the adult female involved in the 2007 incident and the child involved in the

2008 incident were similar in size, although the child was somewhat taller than the adult

female when the respective encounters occurred.

       Finally, Cross developed his theory suggesting the child had fabricated her claim

while examining the State’s witnesses. On cross-examination, the witness who

interviewed the child at a facility where the claim of abuse was investigated conceded

that children sometimes lie, that she knew of instances of false outcries, that she could


                                             4
not tell if a child was lying, and that she had been trained to look for indications of

coaching.

       Cross argues the testimony about his encounter with the adult female is not

probative because it does not rebut his theory that the child wrongfully accused him of

assaulting her. Nevertheless, the trial court could exercise its discretion in determining

that the extraneous offense evidence was probative and relevant because the testimony

tends to rebut the theories Cross raised at trial. See Bass, 270 S.W.3d at 563. In light of

Bass, a case the trial court specifically referenced in ruling on Cross’s objection, we

cannot say the trial court’s determination lies outside the zone of reasonable

disagreement. See Tex. R. Evid. 404(b). We hold the trial court did not abuse its

discretion by admitting the evidence regarding Cross’s sexual encounter with the adult

female.2

       Cross also contends the trial court erred in admitting the evidence at issue because

the danger that the evidence would unfairly prejudice his right to a fair trial substantially

outweighed any probative value of the evidence. See Tex. R. Evid. 403. Factors

considered in a Rule 403 balancing test include:

       2
         On appeal, Cross argues the trial court’s instruction was overly broad, allowing
the jury to consider the evidence for reasons other than those the State suggested allowed
the trial court to admit the evidence during the trial. However, the instruction at issue in
Cross’s case did not limit the jury’s consideration of the evidence at issue solely to
matters unsupported by any evidence. See Blackwell v. State, 193 S.W.3d 1, 16 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). As a result, we need not determine whether
the evidence at issue was also admissible under the other exceptions identified by the trial
court’s instruction. See id. at 10.
                                             5
       (1) how compellingly the extraneous offense evidence serves to make a fact
           of consequence more or less probable—a factor which is related to the
           strength of the evidence presented by the proponent to show the
           defendant in fact committed the extraneous offense;

       (2) the potential the other offense evidence has to impress the jury in some
           irrational but nevertheless indelible way;

       (3) the time the proponent will need to develop the evidence, during which
           the jury will be distracted from consideration of the indicted offense;

       (4) the force of the proponent’s need for this evidence to prove a fact of
           consequence, i.e., does the proponent have other probative evidence
           available to him to help establish this fact, and is this fact related to an
           issue in dispute.

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (internal quotations

omitted). A trial court’s Rule 403 ruling is reviewed for abuse of discretion, and like

other evidentiary rulings, the trial court’s ruling is also entitled to deference; i.e., “the

Court of Appeals cannot simply substitute its own decision for the trial court’s.” Moses v.

State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

       Cross argues that because the criminal charges arising from the extraneous offense

were dismissed, the jury was motivated to convict him to “punish [him] for sexually

assaulting [the adult female].” In support of his argument that the testimony was

prejudicial, Cross references testimony that was introduced after the trial court made its

ruling. However, “the appellate court must review the trial court’s ruling in light of what




                                              6
was before the trial court at the time the ruling was made.” Weatherred v. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000).3

       While objecting that the extraneous offense evidence would be “highly

inflammatory[,]” counsel for Cross noted that the child’s testimony was “the best

evidence” about whether Cross assaulted the child; he added, “I don’t think we need a

case that was dismissed in Harris County to help prove up this particular case.” Cross’s

counsel did not suggest that the testimony about the encounter with the adult female

would motivate the jury to find Cross guilty of assaulting the child to vindicate the rights

of the adult female. Thus, the argument Cross makes on appeal to explain how the

testimony was unduly prejudicial is not the same as the argument that he made at trial.

See Tex. R. App. P. 33.1.

       The trial court’s instructions explaining to the jury how it should use the evidence

at issue also reduces the possibility that admitting the testimony created any harmful

error. We presume the jury followed the trial court’s instructions regarding the relevance

of any testimony about extraneous offenses. See Thrift v. State, 176 S.W.3d 221, 224

       3
        On direct examination, the adult female stated that she reported the crime
immediately, that she never told the police or the prosecutor that she did not want to
prosecute, and that she still wanted the case to be prosecuted. On cross-examination,
defense counsel suggested the police and the prosecutor viewed the case as one of
consensual sex, and he elicited testimony that the criminal charges were dismissed.
Without objection, the State further developed the circumstances surrounding the
dismissal and the adult female’s feelings about it. See Tex. R. App. P. 33.1. Additionally,
the evidence regarding the State’s decision to dismiss the criminal charges related to the
2007 encounter is not evidence of an extraneous act by the defendant, as Cross did not
make the decision to dismiss that case.
                                             7
(Tex. Crim. App. 2005). During trial, the jury was instructed that before it could consider

evidence of the defendant’s extraneous offenses or bad acts, it had to be convinced

beyond a reasonable doubt that the offense actually occurred and that Cross was

criminally responsible for it, regardless of whether he was charged or convicted of the

offense. The trial court also instructed the jury that the evidence was offered for the

limited purposes that “may bear upon Mr. Cross’ motive, opportunity, intent, preparation,

knowledge, or in rebuttal of any defensive theory in this case of fabrication.” On the

record before us, we presume the jury followed the trial court’s instructions. Id.

       We are not persuaded that the trial court abused its discretion by admitting the

testimony at issue. We overrule issue one.

                                     Parole Instruction

       According to Cross, the charge given during the punishment phase of his trial

should have included an instruction advising that if convicted, he would not be eligible

for parole. See Tex. Gov’t Code Ann. § 508.145(a) (West 2012) (instructing that an

inmate serving a sentence for an offense under section 21.02 of the Texas Penal Code is

not eligible for release on parole). During the charge conference, Cross objected,

complaining that the charge failed to include such an instruction.

       Article 37.07, section 4 provides the instructions that trial courts are required to

give juries to inform them about the law of parole. See Tex. Code Crim. Proc. Ann. art.

37.07, § 4 (West Supp. 2012); see also Tex. Const. art. IV, § 11(a) (“The Legislature


                                             8
shall have authority to enact parole laws and laws that require or permit courts to inform

juries about the effect of good conduct time and eligibility for parole or mandatory

supervision on the period of incarceration served by a defendant convicted of a criminal

offense.”). In explaining the Legislature’s intent regarding the provisions of article 37.07,

the Court of Criminal Appeals has explained that “the Legislature did not want any

creative deviations from its chosen language” regarding parole law instructions;

consequently, trial judges cannot “cut and paste as they see fit.” Luquis v. State, 72

S.W.3d 355, 363 (Tex. Crim. App. 2002).

       Nevertheless, article 37.07, section 4, provides that the language generally

required in a charge addressing the law of parole does not apply to offenses arising under

sections 21.02 and section 22.021(f) of the Penal Code or to capital felonies. See Tex.

Code Crim. Proc. Ann. art. 37.07, § 4. Cross was convicted of continuous sexual abuse of

a child, a violation of section 21.02 of the Penal Code. See Tex. Penal Code Ann. § 21.02.

Thus, the requirements of article 37.07 do not apply.

       The Legislature has the authority to enact laws that require or permit courts to

inform juries about the effect of good conduct time and eligibility for parole or

mandatory supervision on the period of incarceration served by a defendant convicted of

a criminal offense. See Tex. Const. art. IV, § 11(a). The Court of Criminal Appeals has

expressed its reluctance to deviate from statutory instructions that are prescribed by the

Legislature. See Luquis, 72 S.W.3d at 363-64. The Court of Criminal Appeals has


                                             9
indicated that generally, special, non-statutory instructions have no place in the charge.

Kirsch v. State, 357 S.W.3d 645, 651-52 (Tex. Crim. App. 2012). The instruction that

Cross requested about the potential effect of a conviction on his eligibility for parole was

a special, non-statutory instruction. The Legislature has not provided for such an

instruction in prosecutions for continuous sexual abuse of a child; consequently, we

conclude the trial court did not err in refusing the instruction that Cross requested. See

Wesbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000).

       Cross also argues that article 37.07 deprives him of his right to equal protection

under State and Federal law, but he has not cited any authority in support of that claim.

Additionally, regarding his complaint of charge error, Cross failed to object during trial

on equal protection grounds. “[A] defendant may not raise for the first time on appeal a

facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428,

434 (Tex. Crim. App. 2009). By failing to first assert an objection or motion on equal

protection grounds at trial, Cross failed to preserve his equal protection challenge for

review on appeal. See Tex. R. App. P. 33.1.

       We hold that the trial court did not err by refusing Cross’s requested instruction on

his eligibility for parole. We overrule issue two and affirm the trial court’s judgment.

       AFFIRMED.




                                              10
                                                 ________________________________
                                                          HOLLIS HORTON
                                                               Justice


Submitted on September 28, 2012
Opinion Delivered December 19, 2012
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                          11
