                                    IN THE
                            TENTH COURT OF APPEALS

                                  No. 10-17-00149-CR

EVERETT DALE WEBB,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                              From the 85th District Court
                                  Brazos County, Texas
                            Trial Court No. 14-03111-CRF-85


                               DISSENTING OPINION


      The line. Where is the line? The line between basic advocacy and opening the

door. Behind the door are any extraneous offenses similar to the one for which the

defendant is being tried.

      I write this dissenting opinion because I believe the appellate courts have

unintentionally blurred the line and thus allowed the State to routinely introduce

extraneous offense evidence for no reason other than it is easier to get a conviction when

there is damning character conforming evidence.
          Webb was charged, tried, and convicted for indecency with a child. If properly

found guilty, a severe punishment is warranted. But let us not get ahead of ourselves.

We must first focus on a proper trial to determine guilt. Not a trial based on Webb’s

character but, rather, only on the specific offense for which he is charged.

          There is substantial case authority which expressly holds the admission of

extraneous offense evidence of a nature similar to that for which the defendant is on trial

is permitted. But, to overcome the general prohibition of using character conformity

evidence to obtain a conviction, the cases require that the evidence must be admitted for

a purpose other than showing that the current charges are consistent with the defendant’s

bad character. The “purpose” other than character conformity to justify admission in this

type case is that the evidence is said to “rebut a defensive theory.”

          Defensive theories are generally reasons that a juror should question whether the

State has adequately proved its case against the defendant. The defensive theory that

generated the line of cases at issue in this appeal was first labeled the “frame-up”

defense.1 In these cases, the defendant would assert that the complaining witness, and

sometimes others, sought to get the defendant convicted, or at least arrested, for their

own reason; thus, the defendant would assert that he was being framed. To rebut the

defensive theory of frame-up, the State was allowed to introduce evidence of similar

crimes or bad acts which tended to show that the defendant had previously engaged in

the type conduct at issue.




1
    A similar defense was labeled the “retaliation” defense.

Webb v. State                                                                        Page 2
       The cases evolved to those in which the complaining witness is said to have

“fabricated” the evidence of the offense. These type cases were labeled as raising a

“fabrication defense,” although it was sometimes referred to as the “fantasy defense.” In

this type case, there was frequently some type of explanation of a reason the charges were

fanciful, such as the defendant would never engage in this type conduct, this person

would never hurt a child, or this person is the real deal—a minister.2

       The two lines of cases, specifically the “frame-up” and “fabrication” defenses,

were merged in the case of Bass v. State. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App.

2008). In Bass, the Court of Criminal Appeals held there was no distinction between the

two defenses for the purposes of admitting extraneous offense evidence to rebut the

defensive theory. Id. at 563. In most of the plethora of cases in which either a frame-up

or fabrication defense was the basis for admitting extraneous offense evidence, there was

a common thread—the defendant was asserting some specific motive on the part of the

victim or others for making the allegations against the defendant. As an alternative to

motive, sometimes, as in Bass, the defense puts on evidence that the victim’s reputation

for truthfulness was not good, that she was known to misrepresent the truth. If not

admitted in response to a “motive-based” defense, the prior extraneous offenses of the

defendant were admitted because the defendant had opened the door by introducing

evidence as to the complaining witness’s character for truthfulness. In either instance,

motive or character of the witness, the defense did something specific that could properly



2
 Some of these “defenses” would be supported by evidence of lack of opportunity, impediment, or other
reason they could not have committed the charged offense.

Webb v. State                                                                                 Page 3
be said as opening the door for the introduction of extraneous offenses.

       That brings us to this case. There is no motive attributed to the victim. There was

no effort to present evidence that the complaining witness had a reputation as being

untruthful. This is not a case in which the defendant is saying the victim is fabricating

this in retaliation for being disciplined by the defendant; or that the victim’s mother, the

defendant’s soon to be ex-wife, is getting the alleged victim to make these allegations so

that the defendant’s custody is eliminated or restricted or so that the property division

will favor the soon to be ex-wife. Quite simply, there is no allegation of a motive or other

reason attributed to the victim for making the allegations in this case. The only “theory”

being argued by the defendant is that the victim is not being truthful; that in this instance,

she is lying.

       In its opinion, the Court equates any attack on the victim’s truthfulness as raising

the defensive theory of fabrication.

       Maybe the line is not there. Maybe the line is too subtle to draw/see/make in

practice. But I believe there is a distinction to be made under Texas Rule of Evidence

404(b) between rebuttal of a defensive theory and attorneys simply doing their job and

advocating for their client by making the State prove its case. Specifically, doing nothing

more than revealing the inconsistencies in the victim’s story in an effort to create

reasonable doubt in the minds of the jury, which is nothing more than the most basic

form of trial advocacy, should not open the door to the admission of extraneous offense

evidence.



Webb v. State                                                                           Page 4
       Moreover, if there is not a distinction, the defendant’s attorney is on the horns of

a dilemma. If the attorney does not engage in basic cross-examination or take other

available steps to cast doubt on the credibility of the State’s witnesses, most often the

victim, then the attorney will be deemed ineffective. But if the attorney does engage in

what some would characterize as an “attack” on the victim’s credibility, the attorney will

have opened the door to the introduction of extraneous offenses and then be deemed

ineffective. Damned if you do and damned if you don’t; and either way, the defendant

is essentially left without a zealous advocate.

       We need a brighter line; or possibly, we need a line.

       In this case, Webb’s attorney did not cross the line that I think is there. The trial

court erred in holding that the line was crossed and, thus, in allowing the introduction of

the damning extraneous offense evidence. The very fact that the State needed this

evidence, as found by the Court in its subsequent Rule 403 analysis, suggests just how

important it was in swaying the jury. Admission of the extraneous offenses allowed the

jury to convict Webb using this character conformity evidence. I would reverse the trial

court’s judgment and remand this proceeding for a new trial so that the State will be

required to try Webb on the charged offense and not simply for a determination of

whether the allegations are in conformity with his character.



                                   TOM GRAY
                                   Chief Justice

Dissenting opinion issued and filed May 15, 2019


Webb v. State                                                                         Page 5
