                                          NO. 07-08-0434-CR
                                          NO. 07-08-0435-CR
                                          NO. 07-08-0436-CR
                                          NO. 07-08-0437-CR
                                          NO. 07-08-0438-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL C

                                          OCTOBER 29, 2009

                               ______________________________


                                JOE MARVIN SLUTZ, APPELLANT

                                                     V.

                                THE STATE OF TEXAS, APPELLEE

                             _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                 NOS. 58,571-E, 58,572-E, 58,573-E, 58,574-E, & 58,575-E;
                        HONORABLE DAVID GLEASON, JUDGE1

                              _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                      MEMORANDUM OPINION


      Following pleas of not guilty, Appellant, Joe Marvin Slutz, was convicted by a jury

of six separate offenses and assessed the corresponding punishments: (1) Cause No.



      1
          David L. Gleason, (Ret.), sitting by assignm ent. Tex. Gov’t Code Ann. §75.002(a)(3) (Vernon 2005).
58,571-E, sexual assault of a child–twenty years confinement; (2) Cause No. 58,572-E,

Count I–aggravated sexual assault of a child–confinement for life; Count II–aggravated

sexual assault of a child–confinement for life; (3) Cause No. 58,573-E, aggravated sexual

assault of a child–confinement for life; (4) Cause No. 58,574-E, aggravated sexual assault

of a child–confinement for life; and (5) Cause No. 58,575-E, aggravated sexual assault of

a child–confinement for life. The trial court ordered the life sentences in Count I and Count

II of Cause No. 58,572-E to run concurrently; the twenty year sentence in Cause No.

58,571-E to run consecutive to the sentence in 58,572-E; the life sentence in Cause No.

58,573-E to run consecutive to the sentence in 58,571-E; the life sentence in Cause No.

58,574-E to run consecutive to the sentence in 58,573-E; and the life sentence in Cause

No. 58,575-E to run consecutive to the sentence in 58,574-E.


                                   Factual Background


       In 2005, Appellant became acquainted with the victim, Jonathan, and his mother,

Tara, when Jonathan was 12 years old. Jonathan had lived most of his life without a

father-figure and Appellant sought to fill that role. He helped Jonathan’s mother by giving

Jonathan rides to school and doing other favors. He was added as an emergency contact

at Jonathan’s school and he allowed Jonathan to use a spare bedroom in his house from

time to time. Jonathan also did odd jobs for Appellant in exchange for gifts.


       During the Christmas season in 2006, Appellant and Jonathan went to a Christmas

tree lot operated by Troop 80 of the Boy Scouts of America. Jonathan expressed to

Appellant an interest in joining the scouts program and, in January 2007, they pursued the


                                             2
idea with Douglas Walker, the Troop 80 committee chairperson. Jonathan immediately

joined and Appellant joined the next month as an assistant scoutmaster. According to

Walker, Appellant gave the impression that he was Jonathan’s stepfather and never

indicated otherwise.


        One of the first scouting events Appellant and Jonathan attended was swim night

at an indoor pool. Appellant changed clothes in the boys locker room. After Appellant was

informed that there was a separate locker room for adults, he nevertheless disrobed,

walked around naked, and showered in the boys locker room. According to the testimony

of several witnesses, the boys felt that Appellant was observing them as they showered.


        Over the course of the next few months, some of the scouts and adult volunteers

observed behavior by Appellant toward other scouts, which although not illegal, did violate

troop policy.2 Although the evidence showed that Appellant did not receive a policy or

procedure manual, the application he signed to join as an assistant scout master contained

information regarding the Boy Scouts of America youth protection policy. Walker also

spoke to Appellant about the youth protection policy after Appellant would not leave the

boys’ tent during a camping trip. At a scouting event in the summer of 2007, a teenage

scout patrol leader observed Appellant pull another teenage scout onto his lap and rub his

chest. The patrol leader reported the conduct to a scoutmaster. Other adult volunteers

also observed the incident and became alarmed. Thereafter, steps were immediately


        2
         Som e of the inappropriate conduct testified to by several witnesses included the swim night incident,
Appellant having teenage scouts rem ove their shirts during a shooting range exercise and putting his arm s
around them during lifeguard certification. A strict policy of the Boy Scouts of Am erica is two-deep leadership
which prohibits one-on-one contact, with the exception of that leader’s son.

                                                       3
taken to remove Appellant as an assistant scoutmaster, and he was instructed not to

contact any scouts. According to scoutmaster James Spencer, Appellant reacted to his

expulsion lightly, laughed, and informed Spencer that a scout named Christian would have

to come by his house and “pick up his stuff.”3


       Jonathan eventually left the scout program. He was not a model student and he

suffered from behavioral problems in middle school. According to Glenda Utsey, the

liaison officer for Jonathan’s school cluster, he engaged in fighting, had poor attendance,

and frequent office referrals. He was not, however, a major offender.


       In early September of 2007, after Appellant had been expelled from Troop 80,

Jonathan’s mother called Spencer to report that Jonathan was upset, crying, and would not

talk to her.        She asked him to speak with Jonathan.                       Accompanied by another

representative of Troop 80, Spencer went to Jonathan’s house one evening to speak with

him. Jonathan had invited a close friend of his, Robert, to be there that evening.4

According to Spencer, Jonathan was nervous, anxious, upset, and very embarrassed, but

eventually confided in him that Appellant had sexually abused him. They talked until 1:30

the next morning.


       Jonathan revealed to Spencer that he and Appellant had engaged in oral sex,

Appellant had anally raped him, and Appellant had watched him while he showered.

Jonathan also claimed that Appellant threatened to hurt him if he told anyone about the


       3
           According to the record, Christian is the son of Appellant’s girlfriend.

       4
           Spencer did not know Robert and he was not a boy scout.

                                                         4
abuse.5 Spencer recommended to Jonathan’s mother that she get him some professional

help in the form of counseling. According to Spencer, Jonathan’s mother sought financial

assistance from the State for counseling but was unsuccessful due to “political stuff.” He

then recommended an attorney she should consult who might be able to help.


         After speaking with Jonathan, Spencer contacted Detective Jeff Higley of the

Amarillo Police Department. He was assigned to investigate the case on September 5,

2007. To gather evidence, Detective Higley arranged for a single party consent call to be

made by Jonathan to Appellant.6 Guided by Detective Higley, Jonathan had the following

telephone conversation with Appellant:


         [Jonathan]:       I’m kind of scared.

         [Appellant]: Why?

         [Jonathan]: I told Robert about you touching and sucking my dick, and he
         told my mom. She wants me to go take . . . talk to . . take me up to talk to
         the cops.

         [Appellant]: Figures.

         [Jonathan]:       What should I tell them.

                                                     *    *     *

         [Jonathan]:       What will happen to you if I tell them what you did?

                                                     *     *    *


         5
          Jonathan testified to at least two instances of Appellant striking him with his vehicle and one incident
during a hunting trip in which Appellant fired a rifle shot near him while saying, “piss m e off and I’ll m ake it look
like an accident.” He also testified to Appellant punching him in the chest.

         6
         A single party consent phone call is one in which one of the parties, but not both parties, have
consented to the call being recorded. If properly authenticated, single party consent phone calls are
adm issible in evidence. See generally Tex. Code Crim . Proc. Ann. art. 18.20 (Vernon Supp. 2009).

                                                          5
      [Jonathan]: I don’t know . . . . Did you do that to Robert, too?

      [Appellant]: I think so . . . once. But, that’s between Robert and me. Course,
      now it’s between you and me. I don’t know. Maybe I should go to prison and
      die. That would be a good thing.

      [Jonathan]: Why’d you do that to me?

      [Appellant]: Why did you do it to me?

      [Jonathan]: I never did it to you.

      [Appellant]: laughs OK . . . alright. I don’t know. Suppose I . . . I suppose
      you could, uh, change the time frame, that it happened while I was, uh, you
      know, having back surgery and under. Cause a lot of people came to visit
      me, and I don’t remember anybody. I remember you and [A]. I don’t
      remember any of the rest . . . . You could just deny it, it’s up to you. . . .

                                           *   *   *

      [Jonathan]: What would happen to you if I told them?

      [Appellant]: I don’t know. Lose my business, go to prison. . . .

      [Jonathan]:   Have you done it to anybody else?

      [Appellant]: No.

      [Jonathan]: Just me and Robert.

      [Appellant]: Yeah. And I don’t know why I did that since then either. Maybe
      cause it’s been so long since I had [my wife]. Been two years now.


The transcript was read to the jury during Detective Higley’s testimony.


      On September 10, 2007, Appellant was asked to come to the police station for an

interview. When Detective Higley confronted him with the recorded phone call, he laughed.

He gave a written statement in which he claimed to be nothing more than a “fill-in Dad,”

and denied having any sexual contact with Jonathan.


                                               6
        On September 21, 2007, Jonathan’s mother filed a civil lawsuit against Appellant

on Jonathan’s behalf. She alleged that Appellant coerced Jonathan into an “inappropriate

homosexual relationship” and sought actual and punitive damages for various complaints

including, but not limited to, sexual offenses and intentional infliction of emotional distress.


        A year after the civil suit was filed, Appellant gave his deposition on September 17,

2008.7 During the criminal trial, the State sought to have Exhibits 2 and 3, both excerpts

from Appellant’s civil deposition, introduced into evidence. Based on an extraneous

offense contained in the deposition, defense counsel strenuously lodged relevance

objections and objections pursuant to Rule 404(b) of the Texas Rules of Evidence.8 The

trial court admitted both exhibits and the excerpts were read to the jury.


        As the excerpts were read, the jury heard denials from Appellant regarding any

inappropriate conduct with Jonathan.                    In fact, Appellant accused Jonathan of

inappropriately touching him. When questioned whether he had ever had sexual contact

with other males, Appellant answered, “I would say yes, but that’s really none of anybody’s

business but mine.” Appellant then alluded to sexual experimentation being something all

males do. The deposition continued:




        7
            The civil suit was eventually non-suited.

        8
          The State contends that Appellant waived any com plaints regarding Rule 403 by failing to object on
that basis. Part B of Appellant’s Motion in Lim ine, entitled Extraneous Offenses, does request that the trial
court weigh the probative value of extraneous offenses against their unfair prejudice. Although a m otion in
lim ine norm ally preserves nothing for appellate review, Gonzales v. State, 685 S.W .2d 47, 50 (Tex.Crim .App.
1985), during trial, defense counsel did “reurge” his m otion in lim ine in response to the objectionable
testim ony. In the interest of justice, we conclude any argum ents based on Rule 403 were preserved for
review. See Tex. R. App. P. 33.1(a).

                                                        7
       Q.     Have you ever had homosexual sex with another male?

       A.     No, sir.

       Q.     Okay. And by that, I would include oral sex, anal sex –

       A.     Oh, well, oral – oral, yes.

       Q.     Okay, Have you ever had oral sex with – as an adult with a child?

       A.     No, sir. Oh, well, other than with [Robert], and that’s none of your
              business either, but –

       Q.     Who’s [Robert]?

       A.     That’s a friend of [Jonathan’s].

       Q.     Okay. So you had oral sex with [Robert]?

       A.     Uh-huh.

                                            *   *   *

       Q.     When was this that you had oral sex with Robert?

       A.     Right after I had back surgery.

       Q.     And when was that?

       A.     I think it was in May of 2007.

       Q.     How old was [Robert] at the time?

       A.     Fourteen.


Appellant again denied any inappropriate sexual conduct with Jonathan.


       Before Jonathan was called to testify during the criminal trial, the State called Robert

to the stand. Defense counsel reurged his motion in limine objections (Rule 404(b) and

Rule 403), and the trial court instructed the parties to approach before violating the motion


                                                8
in limine. The State expressed its intent to question Robert about what he told Spencer

the night Spencer visited Jonathan’s house.


      During his testimony, Robert claimed he did not disclose specifics to Spencer about

Appellant’s conduct and just told him that “stuff that had gone on” because he did not know

Spencer and felt uncomfortable telling him things. He did, however, testify that he told

Spencer Appellant would make him take his clothes off and shower while he washed his

clothes. Oftentimes, the laundry was not done until the next day and he would sit around

Appellant’s house naked. Some times Appellant was also naked.


      Jonathan testified after Robert.     According to Jonathan, his relationship with

Appellant became “weird” in 2006. Appellant began “touching, feeling, taking off his shirt

and sitting me on his lap.” The two began engaging in oral sex and according to Jonathan,

about a month later, Appellant’s conduct escalated to anal rape. Jonathan testified that

the threats made by Appellant began after the anal assaults started. Jonathan also

described an incident while he was in the shower in which Appellant got in with him and

washed him and touched his private parts.


      The final witness to testify for the State was Becky O’Neal, the SANE examiner.

According to her testimony, Jonathan was extremely uncomfortable with the exam and had

poor eye contact throughout. Jonathan reported that the abuse began in sixth grade and

continued through eighth grade. He claimed to have been anally raped 75 times. O’Neal

did not find any evidence of trauma to Jonathan’s body; however, the exam showed that

Jonathan had suffered multiple penetration of the anus which wore down the area and


                                            9
healed in the form of a scar. She concluded that Jonathan’s story was consistent with the

results of her exam.


       After the State rested, the defense offered its only exhibit in the form of Plaintiff’s

Original Petition in the civil suit filed by Jonathan’s mother. No other evidence was offered

and the defense rested.


                                         Analysis


       By a sole issue, Appellant contends the trial court abused its discretion in admitting

extraneous evidence of him assaulting another child. Specifically, Appellant’s complaints

are directed at the trial court’s admission of Appellant’s deposition excerpts (State’s

Exhibits 2 and 3) and the testimony of Robert. These errors, he maintains, caused him

harm due to the severity of his cumulative sentences. We disagree.


       I.     Standard of Review–Admissibility of Evidence


       We review a trial court’s ruling admitting evidence for abuse of discretion. Casey

v. State, 215 S.W.3d 870, 879 (Tex. 2007) (citing Montgomery v. State, 810 S.W.2d 372,

391 (Tex.Crim.App. 1990) (op. on reh’g)). A trial court abuses its discretion when its

decision is outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92,

102 (Tex.Crim.App. 1996). Otherwise we are required to uphold a trial court’s admissibility

decision. Montgomery, 810 S.W.2d at 391.




                                             10
       II.    Extraneous Offense Evidence


       Rule 404(b) of the Texas Rules of Evidence provides that extraneous offense

evidence is not admissible to prove the character of a person in order to show action in

conformity therewith. Tex. R. Evid. 404(b). However, it is not rendered inadmissible if the

extraneous offense evidence is relevant to a fact of consequence apart from its tendency

to show conduct in conformity with character. Johnston v. State, 145 S.W.3d 215, 221-22

(Tex.Crim.App. 2004).


       Rule 403 provides in part that relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.

Relevant evidence is generally admissible. Tex. R. Evid. 402. In keeping with the

presumption of admissibility of relevant evidence, trial courts should favor admission in

close cases. Casey, 215 S.W.3d at 879.


       For extraneous offense evidence to be admissible under both Rule 404(b) and Rule

403, that evidence must satisfy the following two-prong test:


       C      Is the extraneous offense evidence relevant to a fact of consequence
              in the case apart from its tendency to prove conduct in conformity with
              character?
       C      Is the probative value of the evidence sufficiently strong so that it is
              not substantially outweighed by unfair prejudice?


See Johnston, 145 S.W.3d at 220.




                                             11
       “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 evidence.

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App. 2006). “Unfair prejudice” refers

to a tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one. Id. Only unfair prejudice provides the basis for exclusion

of relevant evidence. Montgomery, 810 S.W.2d at 389.


       In our review, we presume that probative value substantially outweighs the danger

of unfair prejudice. Id. Thus, the defendant bears the burden to demonstrate that the

danger of unfair prejudice substantially outweighs the probative value of evidence. Poole

v. State, 974 S.W.2d 892, 897 (Tex.App.–Austin 1998, pet. ref’d). In reviewing a trial

court’s Rule 403 ruling, we are to reverse the judgment “rarely and only after a clear abuse

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


              A.     Rule 404(b)


       In support of offering excerpts of Appellant’s deposition and the testimony of Robert,

the State relied on Powell v. State, 63 S.W.3d 435 (Tex.Crim.App. 2001). In Powell, the

Court reversed the appellate court’s decision reversing the trial court for abusing its

discretion in admitting extraneous offense evidence. Id. at 436. At trial, the defense

presented its theory during its opening statement that the defendant could not have

molested the child victim because of the presence of his daughters and others who slept

in the living room. Id. at 436-37. This theory was also advanced during cross-examination


                                             12
of the victim. The victim testified that she was never alone with the defendant. During its

case-in-chief, the State contravened the defensive theory with four witnesses who testified

that the defendant had molested them under almost identical circumstances as the

charged offense. Id. at 437.


        The defense presented testimony from dozens of girls who spent the night at the

defendant’s house without anyone being molested. Id. The State then rebutted that

evidence with two additional witnesses who testified similar to the four who had already

testified during the State’s case-in-chief. Id. On appeal, the defendant argued the trial

court erroneously admitted the testimony of the State’s six witnesses because their

testimony was admitted solely for the purpose of character conformity, to-wit: the

defendant is a child molester. Id.


        The relevant inquiry under the facts of Powell was whether the evidence was

admissible for its non-character conformity purpose. Id. at 439. Such evidence was

admissible to rebut a defensive theory which gave the evidence relevance apart from

character conformity. Id. The Powell Court added that the trial court’s limiting instruction

clearly showed the evidence was admitted for its non-character conformity purpose. Id.9


        Some years after Powell, the Court decided in Bass v. State, 270 S.W.3d 557, 563

(Tex.Crim.App. 2008), that case law supports a decision that a defense opening statement

may open the door to the admission of extraneous offense evidence to rebut the defensive


        9
          The Court disagreed with Judge Johnson’s concurring opinion that because an opening statem ent
is not evidence, it is never within the trial court’s discretion to adm it extraneous offense evidence to rebut a
defensive theory raised in an opening statem ent. Powell, 63 S.W .3d at 439-40.

                                                       13
theory presented in the defense opening statement.10 In Bass, defense counsel alleged

in his opening statement that the victim’s allegations of molestation were “pure fantasy”

and “pure fabrication.” Id. at 557. Defense counsel continued that the allegations were

contrary to the defendant’s character because he was a pastor and minister; “he is the real

deal and the genuine article.” Id. at 558. During its case-in-chief, the State was permitted

to present extraneous offense evidence of other girls who had been molested in the

defendant’s church office. Id. at 558-59.


        Bass complained on direct appeal that the extraneous offense evidence was

inadmissible under Rule 404(b) because it was offered solely for the purpose of character

conformity. Id. at 562. The appellate court held the trial court abused its discretion in

admitting the evidence to rebut a “fabrication” defense even though the evidence would

have been admissible to rebut a “frame-up” or “retaliation” defense. Bass v. State, 222

S.W.3d 571, 575-78 (Tex.App.–Houston [14th Dist.] 2007).                      Finding no categorical

distinctions between “fabrication” defenses and “frame-up” or “retaliation” defenses, the

Court of Criminal Appeals concluded the trial court did not abuse its discretion in admitting

the extraneous offense evidence to rebut the defensive theory of fabrication and reversed

the appellate court. Bass, 270 S.W.3d at 563.


        In the instant case, the defense made its opening statement immediately after the

State’s opening statement. Defense counsel recalled the movie “Wall Street” and quoted


        10
           W hen the defense chooses to m ake an opening statem ent im m ediately after the State’s opening
statem ent, the State m ay reasonably rely on this defensive opening statem ent as to what evidence the
defense intends to present and rebut the anticipated defensive evidence during its case-in-chief as opposed
to waiting until rebuttal. Bass, 270 S.W .3d at 563 n.7.

                                                    14
the main character saying, “greed is good, greed is the American way.“ Counsel continued

with his defensive theory that Jonathan’s allegations against Appellant were motivated by

money. Counsel then mentioned the civil lawsuit for monetary damages to which the State

objected as being improper opening argument. The trial court overruled the State’s

objection and defense counsel continued to talk about the civil lawsuit. “The evidence is

going to show in this case that shortly after the Boy Scouts said [Appellant] get out, that an

opening was seen, a chance to get money was seen.” Counsel then suggested that

Jonathan’s allegations worsened as the civil lawsuit progressed. In his closing argument,

defense counsel reiterated the theory that the civil lawsuit for damages was the motive

behind the allegations Jonathan made against Appellant.


       The defense waved the lawsuit in the face of the jury during opening argument, yet

vehemently objected during trial when the State offered excerpts from Appellant’s civil

deposition. Under Bass, the defense opening statement opened the door to admission of

extraneous offense evidence. 270 S.W.3d at 558. The defense was theorizing that

Jonathan fabricated the allegations against Appellant. By offering the excerpts from

Appellant’s deposition in which he admitted to performing sexual acts with Robert, and by

offering Robert’s testimony that “stuff had gone on” with Appellant, the State was

attempting to show that Appellant’s claim of fabrication-for-money defense was less

probable. By showing that the allegations were less likely to be fabricated, the extraneous

offense evidence directly rebutted Appellant’s defensive theory and had logical relevance

apart from character conformity. Id. at 562-63.




                                             15
       Additionally, the trial court gave the jury the following limiting instruction in all five

charges:


       [Appellant] is on trial solely on the charge contained in the indictment. In
       reference to evidence, if any, that [Appellant] has previously participated in
       recent transactions or acts, other than that which is charged in the indictment
       in this case, you are instructed that you can not consider such other
       transactions or acts, if any, for any purpose unless you find and believe
       beyond a reasonable doubt that [Appellant] participated in such transactions
       or committed such acts, if any; and even then you may only consider the
       same for the purpose of determining intent or knowledge or motive or
       opportunity or preparation or plan or identity or absence of mistake or
       accident, if it does, and for no other purpose.


       Appellant relies on Daggett v. State, 187 S.W.3d 444 (Tex.Crim.App. 2005), in

which the Court found error in the admission of extraneous offense evidence which was

similar to the charged offense and reversed the case and remanded it for a harm analysis.

Daggett, however, involved the “plan” exception to the admission of extraneous offense

evidence and not evidence to rebut a defensive theory. Additionally, the court’s limiting

instruction in Daggett, when considered with the State’s closing argument, improperly

permitted the jury to consider the challenged evidence for its substantive value. We

choose to apply Bass, a more recent pronouncement from the Court of Criminal Appeals,

which permits the admission of extraneous offense evidence to rebut the defensive theory

of fabrication. 270 S.W.3d at 562-63.


       We conclude that the extraneous offense evidence had relevance apart from

character conformity. Thus, we must now evaluate the evidence under Rule 403 to see

if its probative value outweighed its prejudicial effect.



                                               16
       B.     Rule 403


       While evidence may be admissible under Rule 404(b), the trial court may exercise

its discretion to exclude the evidence if its probative value is substantially outweighed by

the danger of unfair prejudice. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.

2003). The trial court must balance (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 repeat evidence already admitted. See Casey, 215 S.W.3d

at 879.


       Based on a review of the entire record, we find the deposition excerpts and Robert’s

testimony were strongly probative to rebut the defensive theory that Jonathan fabricated

the allegations. Thus, as proponent of the evidence, the State established a need for the

evidence. Although the evidence could have had a tendency to suggest conviction on an

improper basis, the trial court properly instructed the jury on the limited purpose for which

the extraneous offense evidence was admitted. The evidence was not the sort that would

have caused confusion or distraction of the main issue. Finally, Robert’s testimony was

very brief compared to that of eight other witnesses, and the reading of the two deposition

excerpts which amounted to approximately sixteen pages of text from a record containing



                                             17
multiple volumes and hundreds of pages did not consume an inordinate amount of time.

Viewing the totality of the factors, we conclude the trial court did not abuse its discretion

in admitting the challenged extraneous offense evidence.          Appellant’s sole issue is

overruled.


                                        Conclusion


       The trial court did not abuse its discretion in admitting State’s Exhibits 2 and 3 and

the testimony of Robert to rebut Appellant’s defensive theory that Jonathan had fabricated

the allegations against him for financial gain from a civil lawsuit.


       Consequently, the trial court’s judgments are affirmed.



                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




                                             18
