                                   IN THE
                           TENTH COURT OF APPEALS

                                No. 10-13-00006-CR

VIRGIL LEE JONES,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 272nd District Court
                                Brazos County, Texas
                          Trial Court No. 12-00451-CRF-272


                           MEMORANDUM OPINION


      In two issues, appellant, Virgil Lee Jones, challenges his conviction for indecency

with a child by contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1)

(West 2011). We affirm.

                                     I. BACKGROUND

      In this case, appellant was charged by indictment with one count of indecency

with a child by contact, a second-degree felony that was enhanced to a life sentence

based on appellant’s prior conviction for indecency with a child. See id.; see also id. §
12.42(b), (c)(2) (West Supp. 2012). The charge stems from an incident involving a five-

year-old child, A.H.

        At trial, A.H. testified that she lives with her aunt, uncle, and four brothers. A.H.

noted that she often called appellant “dad” because he acted like he was her father. 1 Of

the four brothers living in the house, the youngest, Jeremiah, is appellant’s child.

Apparently, appellant and A.H.’s mother, Becky, were married.2 However, pursuant to

investigations by Child Protective Services (“CPS”), the children were removed from

appellant’s home and placed with A.H.’s aunt and uncle. A.H.’s aunt and uncle had

adopted all of the children, except for Jeremiah. The allegations as to A.H. surfaced

around the same time that appellant and A.H.’s aunt and uncle were fighting over

custody of Jeremiah.

        In any event, A.H. testified that appellant previously lived with her and her

mother. Though she could not recall the precise dates, A.H. recounted that appellant

touched her vagina several times while she was in her bedroom.                 The indictment

alleged that the incidents transpired on or about June 1, 2010.

        In July 2011, A.H.’s aunt found A.H., who was six years old at the time,

masturbating while lying naked on her bed. When asked what was going on, A.H.

replied, “Nothing.” A.H.’s aunt then asked A.H. if someone had showed her how to

masturbate.         A.H. eventually acknowledged that appellant had shown her how to

masturbate. A.H.’s aunt then called a CPS caseworker, who told her to take A.H. to


        1   Testimony at trial revealed that appellant is not A.H.’s father.

        2   Becky is A.H.’s uncle’s sister.

Jones v. State                                                                          Page 2
Scotty’s House Child Advocacy Center (“Scotty’s House”) in Bryan, Texas, to be

interviewed.

        Nick Canto, a forensic interviewer at Scotty’s House, testified that he interviewed

A.H. three times about the incidents. In the first two interviews, A.H. recognized that

no one is supposed to touch her on the part of her body she used “to pee and poo” and

noted that no one had touched her there. However, in the third interview, A.H. told

Canto that appellant had pulled down her pants and panties and stuck his finger in her

private part. According to Canto, A.H. stated that appellant had threatened that she

would get in trouble if she told someone about the incident. A.H. also told Canto that

appellant did not do it again after the fifth time and that she was “shocked.” She also

stated that she did not feel much because she was asleep at the time the incidents

occurred.

        At trial, the State alleged that defense counsel repeatedly questioned the

truthfulness of A.H.’s testimony in his voir dire, opening and closing statements, and

his questioning of witnesses. The State also argued in the trial court that defense

counsel suggested that A.H.’s outcry was fabricated because of the ongoing custody

battle between appellant and A.H.’s aunt and uncle regarding Jeremiah. To rebut

appellant’s purported defensive theory, the State called two witnesses—Angela H. and

L.M.—both of whom testified that, when they were teenagers, appellant touched their

vaginas while they were asleep. Defense counsel objected to this testimony under Texas

Rules of Evidence 403 and 404(b). See TEX. R. EVID. 403, 404(b). However, after a




Jones v. State                                                                       Page 3
hearing, the trial court overruled appellant’s objections and admitted the testimony. It

is this testimony that is the focus of appellant’s appellate complaints.

        At the conclusion of the evidence, the jury found appellant guilty of the charged

offense. The trial court found the enhancement paragraph contained in the indictment

to be true and sentenced appellant to life imprisonment in the Institutional Division of

the Texas Department of Criminal Justice. Appellant filed a pro se motion for new trial,

which was overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal

followed.

                             II. EXTRANEOUS-OFFENSE EVIDENCE

        In both of his issues on appeal, appellant contends that the trial court abused its

discretion in overruling his objections to the testimony of Angela H. and L.M.

Specifically, appellant argues that he did not assert a defense of fabrication at trial, and

as such, extraneous-offense evidence was not admissible for rebuttal. We disagree.

A.      Applicable Law

        We review the trial court’s admission of extraneous-offense evidence for an

abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If

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

of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s

ruling on the admissibility of an extraneous offense is generally within this zone if the

evidence shows that:     (1) an extraneous transaction is relevant to a material, non-

propensity issue; and (2) the probative value of that evidence is not substantially



Jones v. State                                                                        Page 4
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. De La Paz, 279 S.W.3d at 344.

        Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person to show action in conformity therewith. TEX. R. EVID. 404(b). But it may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, or knowledge. Id. Rebuttal of a defensive theory is one of the “other purposes”

for which extraneous-offense evidence may be admitted under Rule 404(b). Williams v.

State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see Dennis v. State, 178 S.W.3d 172, 180

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Though appellant lodged objections

under Rules 403 and 404(b) in the trial court, he focuses his appellate complaints on

Rule 404(b). Accordingly, we will focus our analysis on Rule 404(b).

B.      Discussion

        As argued in the trial court, the State argues on appeal that the complained-of

testimony was offered to rebut appellant’s defensive theory of fabrication. This Court

has stated the following regarding the admission of extraneous-offense evidence used

to rebut a fabrication defense:

        To be admissible for rebuttal of a fabrication defense, “the extraneous
        misconduct must be at least similar to the charged one.” Wheeler v. State,
        67 S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002); Galvez v. State, No. 10-06-
        00332-CR, 2009 Tex. App. LEXIS 6300, at *8 (Tex. App.—Waco Aug. 12,
        2009, pet. ref’d) (not designated for publication); accord Dennis v. State, 178
        S.W.3d 172, 178 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
        Although some similarity is required, the requisite degree of similarity is
        not as exacting as necessary when extraneous-offense evidence is offered
        to prove identity by showing the defendant’s “system” or modus
        operandi. Dennis, 178 S.W.3d at 179; see Galvez, 2009 Tex. App. LEXIS
        6300, at *8.

Jones v. State                                                                            Page 5
Newton v. State, 301 S.W.3d 315, 317-18 (Tex. App.—Waco 2009, pet. ref’d) (op. on

remand).

        Appellant concedes that the State may present extraneous-offense evidence to

rebut a theory of fabrication. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App.

2008) (“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. . . .      This case law makes no categorical distinctions between

‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses.” (internal citations

omitted)).       The issue turns on whether the extraneous-offense evidence has non-

character-conformity relevance by, for example, rebutting a defensive theory or making

less probable defensive evidence that undermines an elemental fact. See id. at 563 n.8;

see also Galvez, 2009 Tex. App. LEXIS 6300, at *5. Instead, appellant argues that he did

not assert a fabrication defensive theory during trial.

        A review of the record proves otherwise. In his opening statement, defense

counsel stated the following:

               As you can imagine, we’re dealing with a small child. It’s not as
        clean-cut as the State would have you believe. When you watch the
        evidence, when you watch these videos, listen very carefully to the
        content of what happened when. The story changes. There’s conflicts in
        the story.

                 ....

               The outcry, pay particular attention to the outcry. It’ll catch your
        attention. It doesn’t pass the smell test. Something else was going on.

Jones v. State                                                                        Page 6
               And I believe that the evidence will also show that early or mid
        2010, which the State is telling you about, Virgil had no more access to
        these children. None. Supervised visitation only, if he had it, was done
        through the CPS officers or through [A.H.’s aunt]. He had no access to
        this child. He had no access to any of the children.

               The evidence will show you this. He didn’t have the means. He
        didn’t—he wasn’t in contact. Something doesn’t match. The road map
        goes askew. The time line goes askew.

                 ....

        You’re going to hear from Nick Canto. He’s the interviewer from Scotty’s
        House.

                 ....

               Listen to the way his questions are asked. He follows a pattern.
        That pattern is a pattern that’s recognized for child interviewers. And
        then listen—watch [A.H.’s] response. The first two videos she’s going to
        look like a normal child, appropriate for her age. When that third video
        comes, everything is different. Something doesn’t match. There’s
        inconsistencies. Some of them are small. Some of them are huge.

               But when you follow this road map and you listen to the evidence
        carefully, pay close attention to what happens to [A.H.]. Something else is
        going on in that 13 or 14 months between Interview No. 2 and Interview
        No. 3. The evidence is going to show you. You’re going to watch the
        video. Something doesn’t make any sense.

               Now, the State would have you believe that she has an outcry, that
        she’s finally come to the point that she’s going to tell somebody. She
        didn’t tell anybody the first time. She didn’t tell anybody the second time.
        Thirteen months with her aunt and uncle in the middle of a custody battle.
        There it is.




Jones v. State                                                                         Page 7
        Defense counsel’s opening statement suggests that A.H. changed her story

during the thirteen months between the second and third interviews with Canto. 3

According to defense counsel, this time frame coincides with the time A.H. lived with

her aunt and uncle, both of whom were locked in a custody battle with appellant over

Jeremiah. Implicit in defense counsel’s opening statement is that A.H. fabricated her

outcry. And as such, we believe that appellant opened the door to the admission of

extraneous-offense evidence to rebut his defensive theory of fabrication.

        Our conclusion is further supported by other portions of the record evidence. In

his cross-examination of several witnesses, defense counsel repeatedly asked witnesses

about the custody battle between appellant and A.H.’s aunt and uncle and A.H.’s

truthfulness. Moreover, to further support our conclusion, we note that defense counsel

emphasized the following during his closing argument:

               There’s two whos [sic] in this one, and one of them is obviously
        [A.H.]. And [A.H.], what can you say about that seven-year-old child
        right there? What can you do to make that child feel better? Can you
        believe her? Is that going to make her feel better? Can you convict that
        man? Is that going to make her feel better?

        [A.H.] sat right here where I’m standing, and she told you that Virgil
        touched her down there in her crotch area, in her genital area. Can you
        believe that in this instance? Why can you believe? Why can you not
        believe it?



        3  We note that, although a defensive opening statement is not itself evidence, it does inform the
jury of “the nature of the defenses relied upon and the facts expected to be proved in their support.” Bass
v. State, 270 S.W.3d 557, 563 n.7 (Tex. Crim. App. 2008) (citing TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(5)
(West 2007); Norton v. State, 564 S.W.2d 714, 717-18 (Tex. Crim. App. 1978)). “When, as here, the defense
chooses to make its opening statement immediately after the State’s opening statement, the State may
reasonably rely on this defensive opening statement as to what evidence the defense intends to present
and rebut this anticipated defensive evidence during its case-in-chief” instead of “waiting until rebuttal.”
Id. (citing TEX. CODE CRIM. PROC. ANN. art. 36.01(b)).

Jones v. State                                                                                       Page 8
                 ....

               Children are susceptible to having answers to questions suggested
        to them. I invite you—you will have the ability to take 1, 2[,] and 3 back
        there with you. And I invite you—I implore you to watch all of 1, 2[,] and
        3 and watch the child’s reactions and ask yourself what is authentic?
        What is authentic? What can I believe beyond a reasonable doubt?

            ....

        The child’s reputation for truthfulness? She’s a seven-year-old, okay.
        That’s what her aunt . . . had to say. The child, by her adopted mother’s
        testimony, would pinch herself. She will bruise herself, and she will
        threaten to call CPS. She will threaten to blame somebody else for an
        action that person did not do to her. Put that in the context of Exhibit 1,
        State’s Exhibit 1.

              When you think about State’s Exhibit 1, you think about the
        proximity to the event.  You think about the opportunity for
        suggestibility.

                 ....

                You don’t know, but you know a kid can be contaminated. Their
        memory can be contaminated. Their motives can be contaminated. Why?
        Why are these motives contaminated? Why did that little child lie at some
        point? Because you know what? She did. Because as much as it hurts to
        sit there and say that that sweet little precious child lied, she lied, all right?
        You’ve got the evidence of that. This isn’t anyone’s hearsay. This isn’t
        anything right here. It’s on 1, 2[,] and 3. She’ll lie about what that man
        did or didn’t do to her.

                 ....

               When you start breaking these things down and you start breaking
        down the evidence and you start trying to apply the investigation that
        happened, the only thing that you’re really left with is the words of a
        child; a child who has shown her ability to manipulate, a child who has
        been removed from a hotel from her—from her mother and stepfather; a
        child who has been taken home and has been given a new life, a better life.
        That’s not an issue for us to decide. But I’ll submit to you that it is.




Jones v. State                                                                               Page 9
              She likes that life. She’s comfortable. She’s secure. Nobody’s
        touching her there.

                 ....

               And what happened in the intervening time? Well, all those
        counselors were involved. And guess what? There’s a divorce that’s
        filed. And guess what? [A.H.] knows that her name is going to change.
        And guess what? These kids are very close together, and they are very
        protective of each other.

                 ....

               Evidence of a child who contradicts herself, evidence of an ongoing
        custody issue, evidence of a horrible, horrible situation that you cannot fix
        on this evidence. You can’t fix it. That’s the reality of this situation. And
        you have to—you have a duty at this point to work against your gut
        because your gut’s probably telling you to believe the kid, believe the kid,
        believe the kid, believe the kid. You can’t.

        Based on the foregoing, we conclude that appellant opened the door to the

admission of extraneous-offense evidence to rebut the defensive theory of fabrication.

See Williams, 301 S.W.3d at 687; Dennis, 178 S.W.3d at 180; see also Galvez, 2009 Tex. App.

LEXIS 6300, at *7 (“Galvez opened the door to admission of the extraneous-offense

evidence to rebut the defensive theory of fabrication. He essentially argued that L.H.

fabricated the story out of anger and revenge because of a dispute over money and/or

because Galvez assaulted her. It is at least subject to reasonable disagreement whether

the extraneous-offense evidence was admissible for the non[-]character-conformity

purpose of rebutting [Galvez’s] defensive theory that the complainant fabricated her

allegations against him and made this defensive theory less probable.” (internal

quotations & citations omitted)). Accordingly, we cannot say that the trial court abused




Jones v. State                                                                          Page 10
its discretion in admitting the complained-of testimony. See De La Paz, 279 S.W.3d at

343; see also Prible, 175 S.W.3d at 731. We overrule appellant’s issues on appeal.

                                      III. CONCLUSION

        Having overruled both of appellant’s issues on appeal, we affirm the judgment

of the trial court.




                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2013
Do not publish
[CRPM]




Jones v. State                                                                       Page 11
