                                            SEPTEMBER 4, 2015
            No. ________________

                 IN THE

    COURT OF CRIMINAL APPEALS OF TEXAS

           ______________________

                KEN SCRIPA,

                               Petitioner

                    vs.



           THE STATE OF TEXAS,

                              Respondent




   PETITION FOR DISCRETIONARY REVIEW


                   GERALD FRY
                   Texas Bar No. 07493800
                   801 Congress St., Suite 350
                   Houston, Texas 77002
                   Tel. (713) 222-0860
                   Fax (713) 224-3111

                   ATTORNEY FOR PETITIONER,
                   KEN SCRIPA



PETITIONER DOES NOT REQUEST ORAL ARGUMENT
                         IDENTITY OF PARTIES & COUNSEL

Petitioner: Ken Scripa

         Trial Counsel: Judy Mingledorf
                        430 Hwy 6 South, Suite 215
                        Houston, Texas 77079

         Appellate Counsel : Gerald Fry
                             801 Congress St., Suite 350
                             Houston, Texas 77002



Respondent: State of Texas

          Trial Counsel: Collen Gaido
                         1201 Franklin Suite 600
                         Houston, Texas 77002

          Appellate Counsel: Alan Curry
                             1201 Franklin, 6th Floor
                             Houston, Texas 77002


         State Prosecuting Attorney: Lisa McMinn
                                     P.O. Box 12405
                                     Austin, TX 78711




                                      ii
                                TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ………………………………………………...ii

TABLE OF CONTENTS ………………………………………………….……………iii

INDEX OF AUTHORITIES…………………………………..……………………..….iv

STATEMENT OF THE CASE………………………………………….……..…………1

STATEMENT ON ORAL ARGUMENT…………………………………..…………....i

ISSUES PRESENTED………………………………………………..……………….....1

STATEMENT OF FACTS……………………………………….…………………....1-2

SUMMARY OF THE ARGUMENT……………………….…………………………....2

ARGUMENT…………………………………………………………….……….……2-4

Issue 1: Did The Court of Appeals err in ruling that the trial court did not abuse it’s
         discretion in admitting an extraneous offense against the Petitioner during the
         guilt-innocence stage of the trial in violation of Texas Rules of Evidence
         Section 404(b), 403 …………………………………………………………...1

PRAYER…………………………………………………………………….…..………4

CERTIFICATE OF SERVICE……………………………………………..…...……….4

APPENDIX ……………………………………………………………………………...5




                                        iii
                          INDEX OF AUTHORITIES

                                  CASES


Caldwell v. State, 477 S.W.2d 877, (Tex. Crim. App. 1979)……………………………..3

Deleon v. State, 77 S.W.3d 300 (Tex. App. Austin 1st Dist, 2001)……………………….3

Pavlacka v. State, 892 S.W.2d 897, (Tex. Crim. App. 1994)……………………….…….3

Webb v. State, 36 S.W.3d, (Tex. App. Houston 14th Dist. 2000)……………….…………3

Lewis v. State, 529 S.W.2d 533, (Tex. Crim. App. 1975) ……...…………………………3

Turner v. State, 754 S.W.2d 668, (Tex. Crim. App. 1988)……………………….………4




                                 STATUES

Texas Rules of Evidence Section 404(b)………………………………………………….3

Texas Rules of Evidence Section 403……………………………………………………..3




                                     iv
                             STATEMENT OF THE CASE

        Petitioner was charged by an Indictment filed October 24, 2012 with the Sexual

Assault of an Adult, Karen Hatchett, by placing his fingers in the sexual organ of the

Karen Hatchett, (CR-8).     On May 19, 2014 the Petitioner plead not guilty to the

Indictment and a jury was empaneled, (CR-321-326). The Jury Trial was from May 19,

2014 until May 22, 2014. On May 21, 2014 the jury returned a guilty verdict, (CR-336).

On May 22, 2014 the jury sentenced the Petitioner to 10 years in prison and a $10,000

fine, (CR-348). Notice of Appeal was filed on May 22, 2014, (CR-355). Opinion issued

on July 2, 2015 by the First court of appeals, (See Appendix). PDR due September 2,

2015.

                        ISSUE PRESENTED FOR REVIEW

Issue 1: The Court of Appeals erred in ruling that the trial court did not abuse it’s
         discretion in admitting an extraneous offense against the Petitioner during the
         guilt-innocence stage of the trial in violation of Texas Rules of Evidence
         Section 404(b), 403
                               STATEMENT OF FACTS

        Petitioner is the owner of a massage business, Scripa Wellness Center. Complaint

stated that on August 6, 2014 she went there for a massage. Complaint testified that the

Appellant was giving her a massage and asked her to lay on her back and then shoved his

fingers into her vagina, (3 RR 9-127). After the Petitioner presented testimony the State

presented an extraneous offense of Jennifer Peterson being sexually assaulted by

Petitioner during her massage on March 12, 2011.



                                            1
She testified that Petitioner rubbed his penis, that was inside his shorts, against her hand,

(4 RR 87) and then also touched her vagina, (4 RR 90) during her massage.

                          SUMMARY OF THE ARGUMENT

        The trial court abused its discretion and committed reversible error by allowing

the State to present in their rebuttal testimony the extraneous offense of the alleged sexual

assault of Jennifer Peterson.

                                     ARGUMENT

Issue 1: The Court of Appeals erred in ruling that the trial court did not abuse it’s
         discretion in admitting an extraneous offense against the Petitioner during the
         guilt-innocence stage of the trial in violation of Texas Rules of Evidence
         Section 404(b), 403

                                 Argument & Authorities

       The standard of review is whether the trial court abused its discretion by allowing

the extraneous offense evidence in over Petitioner’s objections. The Petitioner did not

testify at the guilt-innocence stage of the jury trial. The State in   rebuttal   after   the

Defense rested brought Jennifer Peterson in to testify about an extraneous sexual offense

that the Petitioner committed against her, ( 4 RR 75-94). Petitioner filed a Motion in

Limine, ( 1 CR 282). The court granted this motion. The Court granted the State’s motion

to allow the extraneous offense to come into evidence, (4 RR 59). The State claims that

they are allowed to bring the extraneous offense in to rebut the defensive theory that the

complaint fabricated her testimony, ( RR 235-240). Texas Rules of Evidence 404(b)

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

                                              2
of a person in order to show action in conformity therewith”. Petitioner cross-examined

the Complaint but the exercise of the right of cross-examination will not, in and of itself,

open the door to the admission of extraneous offenses, Caldwell v. State, 477 S.W.2d 877,

(Tex. Crim. App. 1979). The cross-examination must effectively contest a fact that

testimony was offered to prove, Deleon v. State, 77 S.W.3d 300 (Tex. App. Austin 1st

Dist., 2001). The cross-examination of the Complaint was not vigorous and no defensive

theory was raised by this cross-examination. If the complainant is not vigorously cross-

examined concerning fabricated testimony and the Petitioner didn’t testify then an

extraneous offense is not admissible on this ground, Pavlacka v. State, 892 S.W.2d 897,

(Tex. Crim. App. 1994), see also Lewis v. State, 529 S.W.2d 533, (Tex. Crim. App. 1975).

The Complaint was not cross-examined at all concerning fabrication, (3 RR 48-77, 83-

88). Webb v. State, 36 S.W.3d, (Tex. App. Houston 14th Dist.) held that testimony about

an extraneous offense involving another person does not rehabilitate the complainant.

The only purpose in admitting the extraneous offense was to show that Petitioner

commits sexual assaults in general and therefore probably committed the sexual assault

he is on trial for.

       Even if this court determines that the evidence is relevant and not in violation of

Texas Rules of Evidence 404(b), then the court must do a balancing act under Texas Rules

of Evidence 403. Texas Rules of Evidence 403 states , although relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, Deleon v. State, 77 S.W.3d 300 (Tex. App. Austin 1st Dist., 2001), see also

                                             3
Turner v. State, 754 S.W.2d 668, (Tex. Crim. App. 1988). Sexual extraneous offenses in a

sexual assault trial tend to allow the jury to convict the Petitioner on the basis that he is a

sexual predator. The probative value of the extraneous offense is very small and the

danger of unfair prejudice is very high.



                                              Prayer for Relief

          For the above reasons, your Petitioner respectfully requests that this Court order

the case reversed and render a judgment of acquittal. In the alternative, Petitioner prays

that the case be remanded to the trial court for a new trial.



                                                     Respectfully submitted,


                                                     /S/ Gerald Fry
                                                     Gerald Fry
                                                     Texas Bar Number 07493800
                                                     801 Congress, Suite 350
                                                     Houston, TX 77002
                                                     (713) 222-0860; (713) 224-3111 Fax

                             CERTIFICATE OF SERVICE
        I hereby certify that a true and correct copy of Petitioner’s PDR Brief was faxed to the
Harris County District Attorney’s Appellate Section and mailed to the State Prosecuting
Attorney, Lisa McMinn, P.O. Box 12405, Austin , TX 78711 on this the 2nd day of September
2015.
                                                     /S/ Gerald Fry
                                                     Gerald Fry




                                                 4
APPENDIX




   5
Opinion issued July 2, 2015




                                    In The

                              Court of Appeals
                                    For The

                         First District of Texas
                         ————————————
                              NO. 01-14-00477-CR
                          ———————————
                          KEN SCRIPA, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 174th District Court
                          Harris County, Texas
                      Trial Court Case No. 1365724


                        MEMORANDUM OPINION

     A jury found Appellant guilty of the offense of sexual assault. 1 It assessed

Appellant’s punishment at 10 years in prison and a $10,000 fine. On appeal,



1
     See TEX. PEN. CODE ANN. § 22.011(a)(1) (Vernon 2011).
Appellant raises one issue, asserting that the trial court abused its discretion in

admitting extraneous-offense evidence during the guilt-innocence stage of trial.

      We affirm.

                                   Background

      The complainant decided to treat her close friend, H.G., to a massage to

celebrate H.G.’s birthday. The complainant found an on-line coupon to Scripa

Massage and purchased a massage for herself and for H.G. The complainant

scheduled the massages for August 6, 2011.

      Two massage therapists worked at Scripa Massage, Appellant and a female

massage therapist, P. Geraldo.       After arriving for their appointment, the

complainant and H.G. were directed to separate areas to have their massages.

Appellant was the complainant’s massage therapist, and Geraldo was H.G.’s

therapist.

      Before her massage, the complainant disrobed completely and lay down on

the massage table. Her body was completely covered by a sheet. Appellant began

the massage with the complainant lying on her stomach. He then asked her to turn

onto her back.     Appellant continued the massage.        He first massaged the

complainant’s left leg then moved to her right leg. Appellant began by massaging

the complainant’s right foot and then moved up her leg massaging it. As he

massaged the complainant’s right thigh, Appellant suddenly threw the sheet off the


                                         2
complainant’s body and stuck his fingers inside her vagina. The complainant sat

up and said, “Oh, hell no you don’t.” She would later testify that she did not shout

but said this loud enough for Appellant to hear her. As she sat up, she saw that

Appellant’s erect penis was hanging out of the top of his gym shorts. She also saw

that Appellant had his right knee on the massage table and appeared positioned to

climb on top of her.

      Because of the complainant’s reaction, Appellant removed his fingers,

looked at the complainant, walked to the door, and said, “I’m sorry that we didn’t

get to finish your massage, but if you’ll get dressed and come out, I’ll schedule you

another appointment for free.” The complainant got dressed and left. As she

walked out, she noticed a man and a woman waiting in the lobby.                  The

complainant went outside and waited for about 15 minutes for H.G. to come out of

the building.

      H.G. knew the complainant was upset when she saw her waiting outside.

On the drive home, the complainant told H.G. what Appellant had done to her.

The complainant reported what had happened to the Houston Police Department

and to the Texas Department of State Health Services (TDSHS), licensing agency

for massage therapists.    After the TDSHS began its investigation, Appellant

voluntarily surrendered his licenses to be a massage therapist and to operate a

massage therapy establishment.


                                         3
      Appellant was indicted for the sexual assault of the complainant.          He

pleaded not guilty, and the case went to trial.

      During voir dire, the defense spent a significant portion of its time

questioning the venire regarding the members’ views relating to issues of

fabrication by women claiming they have been sexually assaulted.          First, the

defense asked the venire, row by row, whether they had ever heard of someone

being falsely accused of sexual assault. Defense counsel had discussions with

several venire members regarding instances of when they had heard of someone

being falsely accused of sexual assault.

      The defense also asked the venire, “Who can think of a reason why a woman

would falsely accuse a man of sexual assault?” The venire members offered

several reasons such as: “money,” “revenge,” “regret,” “anger,” and “blackmail.”

      The defense then asked each member of the venire to indicate whether he or

she strongly agreed or disagreed with the following statement: “A woman would

not claim that she was sexually assaulted unless it was the truth.” Defense counsel

then had each of the 65 venire members individually state his or her response.

      At trial, Appellant’s defense focused on discrediting the complainant’s

allegations by showing that, if the assault had occurred as she claimed, someone

would have heard her say to Appellant, “Oh, hell no you don’t.” H.G. testified at




                                           4
trial. On cross-examination, H.G., testified that she did not hear any talking during

her massage and did not hear the complainant say, “Oh, hell no you don’t.”

      The complainant’s husband also testified at trial. On cross-examination, the

defense elicited testimony from him that he had telephoned Appellant and

threatened to file a lawsuit against him, thus suggesting a motive for the false

accusation.

      During the presentation of its case, the defense offered the testimony of the

other massage therapist, P. Geraldo, who had been working on the day of the

incident. She testified that Scripa Massage occupied a tiny space. It had a small

lobby, two areas with massage tables, and a restroom.         Because of its small

footprint and its layout, she stated that noise and conversations in one part of the

facility would be heard in other parts of the space. Geraldo testified that customers

complained that they could hear other conversations during their massages. She

stated that the two massage areas were part of one room that had a divider

separating the two spaces. The divider had an open space at the top and at the

bottom. According to Geraldo, she could hear when people were speaking in the

other massage area. She admitted, however, she could not hear everything that

was said in the other area.     Geraldo testified that she did not hear anything

noteworthy while the complainant was having her massage. Geraldo stated that




                                         5
she remembered the complainant leaving with her friend, H.G, that day. Geraldo

testified that the complainant did not appear upset.

      The defense also offered the testimony of the husband and wife who had a

massage after the complainant and H.G. left. They testified that they did not

remember seeing anyone leave upset that day. They also stated that, during their

massages, they were able to have a conversation using normal voices through the

divider that separated the two massage areas.

      The defense also offered video evidence showing the interior of the facility.

The defense emphasized the smallness of the space and showed that the divider

between the two massage areas was made of a thin plastic material. The video also

showed that there was a 13-inch space at the top of the divider and a six-inch space

at the bottom. With the aid of a tape measurer, the video showed that the distance

between the two massage tables was only 56 inches.

      The defense recalled the complainant to testify in an attempt to show that her

allegations had changed over time. The defense pointed out that, during the State’s

direct examination of her, the complainant had testified that there were “three

different aspects of offensive activity” that occurred at the time of the incident.

These were (1) Appellant inserting his fingers into her vagina, (2) Appellant

exposing his penis, and (3) Appellant attempting to climb on top of her. The

defense showed the complainant the police report that she had made following the


                                          6
incident. The complainant acknowledged that she had not stated in the police

report that Appellant had attempted to climb on top of her, even though on direct

examination she had testified that this was part of Appellant’s offensive activity.

      The State requested to introduce testimony from another woman who

claimed that Appellant had touched her vaginal area while he was giving her a

massage. The State asserted that it sought to introduce the extraneous-offense

evidence to rebut Appellant’s fabrication defense. The prosecutor averred:

      It is clear both through cross-examination of the State’s witnesses and
      through the testimony proffered by the defense itself that the defense
      to this case is fabrication, that the complainant and the witnesses that
      were there are fabricating this story. With that in mind, the State’s
      position is that the extraneous offenses come in, that the extraneous
      witnesses should be allowed to testify.

      The defense responded, “We have not presented any evidence of a

fabrication defense at this point. All we’ve done is put on witnesses who said they

couldn’t hear.” The defense further objected that the probative value of such

evidence would be outweighed by unfair prejudice resulting from it.

      The trial court granted the State’s request to admit the extraneous-offense

evidence. After the defense had put on its last witness, the State called J.P. to

testify. Before J.P. testified, the trial court verbally gave the following limiting

instruction to the jury, which was also included in the court’s written charge:

      You are further instructed that if there is any evidence before you in
      this case regarding the defendant committing an alleged offense or
      offenses other than the offense charged against him in this indictment

                                          7
      or the indictment of this case, you cannot consider such evidence for
      any purpose unless you find from—unless you find and believe
      beyond a reasonable doubt that the defendant committed such other
      offense or offenses, if any, and even then you may only consider the
      same in determining the motive, opportunity, intent, preparation,
      [plan], knowledge, identity or absence of mistake or accident of the
      defendant, if any, in connection with the offense, if any, alleged
      against him in the indictment and for no other purpose.

      J.P. testified that, on March 12, 2011, she went for a massage at Scripa

Massage after obtaining an online coupon. J.P.’s boyfriend accompanied her and

waited for her in the lobby while Appellant gave her the massage.

      J.P. testified that Appellant spent the majority of the time massaging her

buttocks with the sheet pulled down, which made her uncomfortable. Then, while

J.P. was lying on her stomach, Appellant pressed his genitalia into her hand. J.P.

jerked her hand away. She stated that she did not leave because she thought it

might have been a mistake when he was leaning over her.

      J.P. stated that Appellant then told her to roll onto her back, and she

complied.   Appellant continued to massage J.P.        She testified that Appellant

massaged her upper body, her left leg, and then her right calf. She stated it all

seemed normal. However, after massaging her right calf for short time, Appellant

quickly slid his hand up her leg and touched her genitalia.

      J.P. told Appellant to take his hands off of her, and she left the massage

room. After they left, J.P. told her boyfriend what had happened. J.P. filed a

report with the TDSHS regarding the incident.

                                         8
       J.P.’s boyfriend, Evan, also testified. He stated that, while in the waiting

room, he could hear people speaking in the massage room, but he could not

understand what they were saying. Evan said that after they left, J.P. initially

would not tell him what had happened. However, Evan stated that J.P. soon began

crying and told him what Appellant had done to her.

       In her closing argument to the jury, defense counsel told the jury that no one

may ever know why the complainant “made up” the sexual-assault claim against

Appellant. The defense stated that people make false claims for a variety of

reasons, such as “a psychotic episode, fantasy, imagination, anger, [or]

depression . . . .”

       The jury found Appellant guilty of the offense of sexual assault. Following

the punishment phase, the jury assessed Appellant’s punishment at 10 years in

prison and a $10,000 fine. 2

       This appeal followed. In one issue, Appellant complains that the trial court

abused its discretion in admitting evidence of the extraneous offense committed

against J.P.    More particularly, Appellant asserts that the extraneous-offense


2
  During the punishment phase, the jury heard from yet another woman, R.M., who
testified that she was victimized by Appellant during a massage. R.M. testified that, in
February 2008, she went to Scripa Massage for a pregnancy massage. She was seven
months pregnant at the time. R.M. testified that, during the massage, Appellant placed
his penis in her hand three separate times. She stated that she did not leave immediately
because she was afraid.


                                           9
evidence was inadmissible under Rules of Evidence 404(b) and 403.3 TEX. R.

EVID. 403, 61 TEX. B.J. 374, 376 (Tex. & Tex. Crim. App. 1998, amended 2015);

TEX. R. EVID. 404(b), 61 TEX. B.J. 374, 378 (Tex. & Tex. Crim. App. 1998,

amended 2015).




                            Extraneous-Offense Evidence

A.     Standard of Review

       We review trial court rulings on the admissibility of evidence for abuse of

discretion. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). A

trial court abuses its discretion when its ruling is arbitrary or unreasonable. State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court does not

abuse its discretion if its decision is within “the zone of reasonable disagreement.”

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

B.     Rule 404(b)




3
 Effective April 1, 2015, the Supreme Court of Texas has adopted amendments to the
Texas Rules of Evidence. See 78 TEX. B.J. 42, 42 (Tex. 2015). The changes to Rules
403 and 404 are stylistic. See id. at 49. All further citations to Rules 403 and 404 in this
opinion refer to the rules as they existed during Appellant’s trial.
                                            10
      Rule of Evidence 404(b) prohibits the admission of extraneous offenses to

prove a person’s character or to show that the person acted in conformity with that

character. See TEX. R. EVID. 404(b). However, when a party “opens the door,”

evidence that is otherwise inadmissible may become admissible. Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009). A party opens the door by leaving a

false impression with the jury that invites the other side to respond. Hayden v.

State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). When a party opens the door,

opposing counsel is permitted to present evidence to correct the mistaken

impression. Houston v. State, 208 S.W.3d 585, 591 (Tex. App.—Austin 2006, no

pet.); see Hayden, 296 S.W.3d at 554.

       “‘Rule 404(b) is a rule of inclusion rather than exclusion.’” De La Paz v.

State, 279 S.W.3d 343, 336 (Tex. Crim. App. 2009) (quoting United States v.

Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). “The rule excludes only that evidence

that is offered (or will be used) solely for the purpose of proving bad character and

hence conduct in conformity with that bad character.” Id. (citing Rankin v. State,

974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).

      Extraneous-offense evidence may be admissible when it has relevance apart

from character conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.

2011). Extraneous offenses may be admissible for some other purpose such as to

show motive, opportunity, intent, preparation, plan, knowledge, identity, or


                                         11
absence of mistake or accident. TEX. R. EVID. 404(b); Montgomery v. State, 810

S.W.2d 372, 387–88 (Tex. Crim. App. 1990). However, this list is illustrative; the

listed exceptions are neither mutually exclusive nor collectively exhaustive. See

De La Paz, 279 S.W.3d at 343.

      In addition to the listed exceptions, one rationale allowing admission of

character evidence is to rebut a defensive theory. Id.; see also Moses v. State, 105

S.W.3d 622, 626 (Tex. Crim. App. 2003) (stating rebuttal of defensive theory is

“one of the permissible purposes for which relevant evidence may be admitted

under Rule 404(b)”).     The Court of Criminal Appeals has determined that

extraneous offenses are admissible to rebut a fabrication defense. See De La Paz,

279 S.W.3d at 349–50.

      In his brief, Appellant claims that the State did not raise the defense of

fabrication because the defensive theory was not raised by his cross-examination of

the complainant. Appellant asserts, “If the complainant is not vigorously cross-

examined concerning fabricated testimony then an extraneous offense is not

admissible on this ground.” Appellant’s assertion, however, is contrary to the

holding in Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). There, the

Court of Criminal Appeals held that remarks made by a defendant during opening

statement, raising a defensive theory, may open the door to the admission of

extraneous-offense evidence needed by the State to rebut that theory. Id.


                                        12
      Here, Appellant first raised the defensive theory of fabrication during voir

dire. Defense counsel spent much of her time questioning the venire members

regarding their views on whether they believed sexual assault victims frequently

fabricate their allegations and whether they knew anyone against whom false

charges had been made. Defense counsel also solicited reasons from the venire for

why a woman might fabricate accusations of sexual assault.           By thoroughly

questioning the venire regarding issues related to fabrication, the defense indicated

that the theory of fabrication was important to its case.

      The defense continued to advance the defense of fabrication during its cross-

examination of the State’s witnesses. Defense counsel questioned the complainant

regarding why she went home to call the police, rather than going directly to a

police station near Scripa Massage. The defense suggested that if the complainant

had gone directly to a police station perhaps forensic evidence could have been

collected from the complainant’s body.         Counsel’s questioning suggested the

complainant did not immediately report the crime or otherwise act like a victim

because, in fact, no assault was committed; that is, it was fabricated by the

complainant. This theory was further suggested by the defense’s questioning of

the complainant about why she had failed to tell police that Appellant had

attempted to climb on top of her during the incident.




                                          13
      Under the defense’s cross-examination, the complainant’s husband admitted

that he had called Appellant and threatened to file a civil lawsuit. Such testimony

suggested a motive for the complainant to fabricate the sexual-assault allegations.

      The defense further developed its defensive theory of fabrication during the

presentation of its evidence. As had H.G., Geraldo testified that she did not hear

the complainant say, “Oh, hell no you don’t.” This testimony tied in with other

evidence offered by the defense to demonstrate that it was highly unlikely that the

complainant could have said this and not have been heard by either H.G. or

Geraldo. The defense’s evidence suggested that the assault never occurred because

no one heard the complainant make the statement despite the cramped quarters and

the building’s acoustics. This in turn implied that the assault never occurred and

that the complainant fabricated the allegations. This culminated in the presentation

of the fabrication theory during closing argument:

      [I]magine any scenarios you can think of, anything where a man has
      just stuck his fingers into a woman’s vagina and she says, “Oh, hell no
      you don’t.” Imagine any scenario where she says that nobody within
      an arm’s reach can hear her. There is no scenario where that can
      happen. Nobody heard her say that. She says she said that, but
      nobody heard her say that. She says he had his penis out. When she’s
      saying, “Oh, hell no you don’t,” her friend didn’t hear her, [Geraldo]
      didn’t hear her. And now, remember, this is a space that when
      measured—I don’t know how long my arms are (indicating), but
      assuming they’re a couple of feet each, that’s—I mean my arm length
      is greater than the distance between these two massage tables. And
      there was no obstacle to sound. There’s a 13-inch gap along the
      ceiling (indicating), a 6-inch gap in the bottom, gaps in the door and
      material like (indicating) would, if anything, certainly wouldn’t

                                         14
      absorb any sound. I mean, there was nothing to prevent the sound of
      [the complainant’s] voice carrying over to her friend next door. Yet,
      she heard nothing. She heard nothing. Now, [Geraldo] told you that
      she not only could hear voices and conversation. In fact, some of
      her—some of her massage clients had complained, asked them to quit
      talking. It’s disturbing me. She not only could hear sounds of voices
      when there was conversation, but she could even hear the sheets hit
      the floor. She could hear the table when it moved because it
      squeaked. And you could see those massage tables in the pictures.
      And you’ll get the pictures back there, but you could see the massage
      tables. They’re just . . . like little plastic cots that sit up on tall legs. If
      you move on it, it’s going to do something. She said it squeaked. She
      said she could hear sheets hit the floor. So, is it possible somebody
      could say in the throes of being violated as described to you, that
      somebody could say the words, “Oh, hell no you don’t,” jump off the
      table, the sheet hits the floor, and nobody heard anything? There’s
      something wrong here. There’s something wrong here. There’s some
      question here.

(Emphasis in original.)

      In sum, the trial record shows that Appellant was not simply attempting to

demonstrate that the complainant generally lacked credibility or had a reputation

for untruthfulness; rather, the defense was making accusations that the complainant

had lied about a specific event—Appellant’s penetration of her vagina with his

fingers—under a specific set of circumstances. Given the record, it is at least

subject to reasonable disagreement whether the extraneous-offense evidence was

admissible for the non-character-conformity purpose of rebutting Appellant’s

defensive theory that the complainant was lying about Appellant’s sexual assault of

her; that is, that she had fabricated her testimony. See See De La Paz, 279 S.W.3d

at 346–47. Thus, we hold that the court did not abuse its discretion in admitting

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the extraneous-offense evidence under Rule 404(b) to rebut the defense’s theory

that the complainant was lying about the occurrence of the sexual assault. See id.

at 347.

C.    Rule 403

      Appellant further asserts that, even if he opened the door to the extraneous

assault of J.P., the evidence was nonetheless inadmissible under Rule of Evidence

403. Rule 403 permits the exclusion of otherwise relevant evidence when its

probative value is substantially outweighed by the danger of unfair prejudice. TEX.

R. EVID. 403. When undertaking a Rule 403 analysis, a trial court must balance the

following factors: (1) the inherent probative force of the proffered item of evidence

along with (2) the proponent’s need for that evidence against (3) any tendency of

the evidence to suggest decision on an improper basis, (4) any tendency of the

evidence to confuse or distract the jury from the main issues, (5) any tendency of

the 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 of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006).

      Rule 403 favors the admission of relevant evidence, and it carries the

presumption that relevant evidence will be more probative than prejudicial. Davis


                                         16
v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Martinez, 327 S.W.3d at

737. Further, Rule 403 does not require exclusion of evidence because it creates

prejudice; rather, it must be shown that the prejudice is “unfair.” Martinez, 327

S.W.3d at 737; Mechler, 153 S.W.3d at 440. Rule 403 contemplates the exclusion

of evidence only when a clear disparity exists between the degree of prejudice of

the offered evidence and its probative value. Davis, 329 S.W.3d at 806; Gayton v.

State, 331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d) (citing Hammer

v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)).

      Applying the first two factors, we examine the probative value of the

evidence. The term “probative value” refers to “the inherent probative force of an

item of evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation—coupled with the proponent’s

need for that item of evidence.” Davis, 329 S.W.3d at 806 (citing Casey v. State,

215 S.W.3d 870, 879 (Tex. Crim. App. 2007)); Gigliobianco, 210 S.W.3d at 641.

      In our Rule 404(b) analysis, we determined that the extraneous-offense

evidence was probative to rebut Appellant’s defensive theory of fabrication. See

Newton v. State, 301 S.W.3d 315, 320 (Tex. App.—Waco 2009, pet. ref’d). The

extraneous offense is sufficiently similar to the charged offense to have probative

value on this issue. Id.; Bargas v. State, 252 S.W.3d 876, 892–93 (Tex. App.—

Houston [14th Dist.] 2008, no pet.).


                                        17
      Furthermore, the trial court could have concluded that the State’s need for

the extraneous-offense evidence was considerable. Whether the assault occurred at

all was the contested issue. There were no eyewitnesses and no physical evidence

available to corroborate the complainant’s testimony. See Newton, 301 S.W.3d at

320; Bargas, 252 S.W.3d at 893.

      With respect to the third factor, extraneous-offense evidence of this nature

does have a tendency to suggest a verdict on an improper basis because of the

inherently inflammatory and prejudicial nature of crimes of a sexual nature. See

Newton, 301 S.W.3d at 320. In addition, there is a tendency for evidence to

suggest a decision on an improper basis when the subject matter is prior criminal

conduct, particularly when the offenses are similar. Likewise, with respect to the

fourth factor—“confusion of the issues”—a slight possibility existed that the jury

would focus on the prior assaultive conduct rather than focusing on the charged

offense. However, the danger of unfair prejudice and confusion of the issues were

counter-balanced by the trial court’s verbal and written limiting instruction. See id.

Nevertheless, these two factors weigh slightly in favor of exclusion of the

evidence. Id.

      Under the fifth factor, we weigh any tendency of the evidence to be given

undue weight by a jury that has not been properly equipped to evaluate the

probative force of the evidence. This factor concerns “a tendency of an item of


                                         18
evidence to be given undue weight by the jury on other than emotional grounds.

For example, ‘scientific’ evidence might mislead a jury that is not properly

equipped to judge the probative force of the evidence.” Gigliobianco, 210 S.W.3d

at 641 (citation omitted). Here, the complained-of testimony was not prone to this

tendency, as it concerned matters easily comprehensible by the average person.

This factor weighs in favor admissibility.

      The final factor concerns whether the presentation of the extraneous offense

evidence consumed an inordinate amount of time. See id. at 641–42. This factor

focuses on the time needed “to develop the evidence, during which the jury [is]

distracted from consideration of the indicted offense.” Mechler, 153 S.W.3d at

441. Our review of the record shows that the testimony of J.P. and her boyfriend

consisted of approximately 36 pages out of the approximately 350 pages

comprising the presentation of evidence during the guilt-innocence phase. This

factor weighs in favor of admission.

      To summarize, four factors weigh in favor of admission and two factors

weigh only slightly in favor of exclusion. After reviewing the record and weighing

the necessary factors, we hold that the trial court did not abuse its discretion under

rule 403 in admitting the extraneous-offense evidence.

      We overrule Appellant’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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