                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00266-CR


DONALD GARLAND ROBERTS                                             APPELLANT

                                           V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   I.    Introduction

      In two points, Appellant Donald Garland Roberts appeals his conviction for

aggravated sexual assault of a child. We affirm.




      1
       See Tex. R. App. P. 47.4.
                      II.   Factual and Procedural Background

      Cynthia Roberts, a bipolar diabetic, married Roberts when her daughter

Jane (a pseudonym) was around ten years old.              Roberts began to control

Cynthia‘s medications; while she was sedated, he began molesting Jane in the

summer of 2005, when Jane was thirteen years old. Jane testified that over a six

month period, Roberts penetrated her sexual organ with his penis on multiple

occasions—around four times a week—and forced Jane to perform oral sex on

him around five times and that he performed oral sex on her around five times.

      During the same time period, Jane‘s friend Susan (a pseudonym) lived

with the family. While both were clothed, Roberts had Susan get on top of him

and wiggle around with her ―crotch area . . . touching his crotch area‖2 to make

Jane jealous.3 He also had her pretend to give him oral sex to make Jane

jealous. Roberts received a limiting instruction before Susan was allowed to give

this testimony and the trial court included a limiting instruction in the jury charge.

      Jane testified that she had been afraid of Roberts and felt compelled to

remain quiet about what happened because he hit her and her mother and they




      2
      Susan clarified that by ―crotch area,‖ she meant the areas where
Roberts‘s penis and her female sexual organ were located.
      3
       Jane testified about a similar incident during which her mother walked in
while Jane was straddling Roberts.


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were completely dependent upon him.4 Cynthia and Jane moved out in January

2006 and obtained a protective order against Roberts. Jane made an outcry

statement in June 2006, around six months after the last assault.

      A jury convicted Roberts of nine counts of aggravated sexual assault of a

child and assessed punishment at seventy years‘ confinement and a $10,000

fine for each count. This appeal followed.

                            III. Extraneous Offenses

      In both points, Roberts argues that the trial court abused its discretion by

admitting extraneous offense evidence during the guilt-innocence phase of trial of

an assault on Cynthia and his molestation of Susan.

A. Standard of Review

      We review a trial court‘s decision to admit evidence for an abuse of

discretion, and the decision should be reversed on appeal only if there is a

showing of a clear abuse of discretion. Green v. State, 934 S.W.2d 92, 101–02,

104 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Miller v. State,

196 S.W.3d 256, 267 (Tex. App.—Fort Worth 2006, pet ref‘d). Only if the court‘s

decision falls outside the ―zone of reasonable disagreement‖ has it abused its

discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh‘g).


      4
        Roberts received limiting instructions during Jane‘s testimony regarding
Roberts hitting her mother and during Cynthia‘s testimony regarding Roberts
hitting her.


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B. Extraneous Offense Evidence

      During the guilt-innocence phase of trial and outside the jury‘s presence,

the State argued that its offer of evidence that Roberts had hit Cynthia was to

show that part of Roberts‘s plan was to scare Jane into keeping quiet about the

sexual abuse. That is, as set forth by the prosecutor,

      He would not only strike [Jane], he would strike her mother Cynthia
      and he would throw objects and he would break objects and all of
      this put the victim in fear of him such that she delayed a long, long
      time before she told anybody. So it was part off [sic] his overall plan
      of violence and intimidation to keep her from reporting and it was
      successful.

      After discussion, the trial court stated,

      With regard to what the State has anticipated in its proffering the
      evidence is for the purpose of showing to the jury that there was an
      ongoing systematic pattern of behavior involving violence towards
      the family members within the household so that he could
      manipulate the child into a sexual abuse situation. That seems
      reasonable to the Court.

The trial court also overruled Roberts‘s subsequent rule 403 objection.

      Before the jury, the State asked Jane if she had ever seen Roberts hit her

mother, Roberts renewed his rule 404(b) and 403 objections, and the trial court

overruled these objections again but gave a limiting instruction to the jury before

Jane answered.

      Roberts acknowledged prior to his cross-examination of Susan that the

defense‘s theory was that Jane had fabricated her sexual abuse accusation. The

State argued that the defense‘s cross-examination of Jane and Cynthia, that

demonstrated this theory, opened the door to Roberts‘s extraneous sexual abuse


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of Susan. Roberts disagreed, but the trial court overruled his rule 404(b) and 403

objections and allowed the State to develop the evidence concerning Susan after

giving the jury a limiting instruction.

C. Applicable Law

      Rule 404(b), ―Other Crimes, Wrongs or Acts,‖ provides,

      Evidence of other crimes, wrongs or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident, provided that upon timely
      request by the accused in a criminal case, reasonable notice is given
      in advance of trial of intent to introduce in the State‘s case-in-chief
      such evidence other than that arising in the same transaction.

Tex. R. Evid. 404(b). As noted by the court of criminal appeals, rule 404(b)‘s

purpose is to see that a defendant is ―tried only for the offense for which he is

charged and not for being a criminal generally.‖ Rogers v. State, 853 S.W.2d 29,

32 n.3 (Tex. Crim. App. 1993); see also Davis v. State, 955 S.W.2d 340, 348

(Tex. App.—Fort Worth 1997, pet. ref‘d) (―If evidence is relevant to any issue in a

case ‗apart from or beyond‘ its tendency to prove the defendant‘s character to

show that he acted in conformity with it, rule 404(b) does not bar its admission.‖).

If a trial court determines that evidence of other crimes or extraneous misconduct

has relevance aside from character conformity, and a timely, proper rule 403

objection is made, the trial court must make a balancing determination under rule

403. Karnes v. State, 127 S.W.3d 184, 191 (Tex. App.—Fort Worth 2003, pet.

ref‘d) (citing Montgomery, 810 S.W.2d at 388–89).



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      Rule 403, ―Exclusion of Relevant Evidence on Special Grounds,‖ provides

that ―[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.‖ Tex. R. Evid. 403. The relevant criteria in

determining whether the prejudice of an extraneous offense substantially

outweighs its probative value include

      (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; and (4)
      the force of the proponent‘s need for this evidence to prove a fact of
      consequence, that is, 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.

Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—Fort Worth 2008, pet. ref‘d)

(citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

D. Analysis

      1. Extraneous Offense Evidence—Cynthia

      With regard to Roberts‘s rule 404(b) objection to the extraneous offense

evidence pertaining to Roberts hitting Cynthia, ―[a]n extraneous offense is

admissible to explain why a victim of sexual assault did not make a prompt

outcry.‖ Wilson v. State, 90 S.W.3d 391, 394 (Tex. App.—Dallas 2002, no pet.)



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(citing Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983)). In Wilson,

the complainant did not tell the police for two years that she had been sexually

assaulted because she was scared the assailant would hurt her mother if she

told anyone about the sexual abuse. Id. The court held that ―[b]ecause the State

is allowed to present evidence on why [the minor complainant] did not promptly

report the abuse, the trial court did not err by admitting [her] testimony that [the

assailant] had assaulted her mother.‖ Id. Here, on similar facts, we hold that the

trial court did not abuse its discretion by overruling Roberts‘s rule 404(b)

objection to the extraneous offense evidence about Roberts hitting his wife.

      Turning to Roberts‘s rule 403 objection, the State argued that the evidence

tended to show that Roberts used violence to silence Jane and that it

corroborated her testimony that Roberts had used violence against her too. The

testimony was clear, direct, and tied Roberts‘s physical abuse of Cynthia to his

physical abuse of Jane both as a plan and as to the reason for the plan. Further,

a class A misdemeanor assault on Cynthia pales in comparison to the six months

of sexual abuse testified about by Jane and therefore would not indelibly and

irrationally impress the jury. And the overall time spent on the incident was slight

in comparison to the State‘s overall case; therefore, any distraction of the jury

from the State‘s case in chief was minimal. Finally, the State‘s need for the

evidence was great in order to rebut Roberts‘s theory that Jane‘s accusation was

fabricated and to provide a reason—physical abuse and fear—for the delayed

outcry about the sexual abuse. See Sanders, 991 S.W.2d at 847. We hold that


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the trial court did not abuse its discretion by overruling Roberts‘s rule 403

objection with regard to the extraneous offense evidence pertaining to hitting

Cynthia.

       2. Extraneous Offense Evidence—Susan

       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), cert. denied, 130 S. Ct. 3411

(2010); see also Isenhower v. State, 261 S.W.3d 168, 181 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (―A trial court does not abuse its discretion in admitting

extraneous offense evidence to rebut a defensive theory of frame-up or

retaliation.‖).

       For example, in Bass v. State, a jury convicted the appellant of two counts

of indecency with a child, primarily based on the complainant‘s testimony and

extraneous offense evidence of two other cases of child molestation.             270

S.W.3d 557, 557 (Tex. Crim. App. 2008). The court of appeals reversed, holding

that the trial court abused its discretion by admitting the extraneous offense

evidence, which resulted in harmful error. Id. In reversing the court of appeals‘s

decision, the court of criminal appeals noted that in his opening statement, Bass

presented a fabrication defense. Id. at 557–58. The State argued, and the court

of criminal appeals agreed, that as to the extraneous offense evidence

concerning the two other instances of child molestation,




                                          8
      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. By showing that the victim‘s
      allegations are less likely to be fabricated, the evidence directly
      rebuts the defensive claims and has logical relevance aside from
      character conformity.

Id. at 562–63 (holding that such a defense opening statement opened the door to

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

Further, the court noted that the case law makes no categorical distinctions

between a ―fabrication‖ defense and a ―retaliation‖ defense.      See id. at 563.

Roberts relied on both theories at trial—that Cynthia and Jane had made up the

sexual abuse accusation to retaliate for Roberts‘s refusal to share with Cynthia

the proceeds of his personal injury lawsuit.

      Here, although Roberts delayed making his opening statement until after

Jane and Cynthia had testified, his cross-examination of both Jane and Cynthia

and the discussions outside the jury‘s presence revealed that fabrication and

retaliation were his defensive theories. We conclude that the trial court properly

overruled Roberts‘s rule 404(b) objection and admitted the extraneous offense

evidence of Roberts molesting Susan to rebut his defensive theories of

fabrication by Jane and retaliation by Cynthia.     See id. at 562–63; see also

Bargas v. State, 252 S.W.3d 876, 892 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (stating that extraneous-offense evidence was probative to rebut defense‘s

fabrication and retaliation theory because it consisted of testimony that appellant




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had sexually touched another pre-teen girl living in appellant‘s residence at the

time he touched the pre-teen complainant in a similar manner).

      And as to Roberts‘s rule 403 objection, Susan‘s testimony was clear and

direct and addressed the probability of Jane fabricating her allegations; its

potential for impressing the jury in some irrational and indelible way was minimal

since Susan‘s allegations were significantly less egregious than Jane‘s; Susan‘s

testimony was not lengthy or of such nature as to distract the jury from Jane‘s

allegations; and the State‘s need for Susan‘s testimony was great in that it

addressed the probability of fabrication by Jane, Roberts‘s defensive theory. See

Sanders, 991 S.W.2d at 847. We conclude that the trial court did not abuse its

discretion by overruling Roberts‘s rule 403 objection.

                                  IV. Conclusion

      Having overruled Roberts‘s two points, we affirm the trial court‘s judgment.



                                                   BOB MCCOY
                                                   JUSTICE


PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 17, 2011




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