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                                  MEMORANDUM OPINION

                                          No. 04-09-00094-CR

                                      Daniel Sebastian ABREGO,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                        From the 81st Judicial District Court, Frio County, Texas
                                   Trial Court No. 08-06-00057CVF
                              Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 16, 2009

AFFIRMED

           Daniel Abrego appeals his conviction for aggravated sexual assault, arguing the trial court

erred in admitting extraneous-offense evidence during the guilt/innocence phase of trial. We

overrule his sole issue on appeal, and affirm the judgment of the trial court.
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                                                    ANALYSIS

         Abrego was charged with penetrating the anus, vagina, and mouth of his daughter, K.A.1 The

defense made its opening statement immediately after the State’s opening. Defense counsel told the

jury that there was “ample motive . . . for the manufacturer [sic] of false allegations against Daniel

Abrego” because Abrego and K.A.’s mother were going through a divorce at the time the allegations

of sexual abuse arose. During cross-examination, the defense questioned K.A.’s mother, Adriana,

regarding her knowledge of the fact that Abrego had been previously charged with assaulting K.A.

Through questioning, Abrego established that Adriana knew those initial charges were dismissed by

the State before the filing of the current charges, and that the dismissal had upset Adriana. Adriana,

however, denied that the first charges were dismissed “right before” she went to the police with the

current allegations against Abrego. At the close of Abrego’s case-in-chief, the State argued that

defense counsel’s comments in opening statement and the cross-examination of Adriana opened the

door to the admission of extraneous offense evidence, and moved to introduce evidence that Abrego

sexually abused three of his other daughters and his former sister-in-law to rebut the defensive theory

that K.A. fabricated the allegations against Abrego. The trial court agreed that the questioning

regarding the dismissal of the original charges against Abrego imputed a motive for fabrication by

K.A. and found that the prior bad acts were admissible to refute the defensive theory. The defense

then requested that the trial court hear the witnesses’ proferred testimony to determine whether it

would be prejudicial.




         1
             … K.A. testified that Abrego sexually assaulted her on numerous occasions—at least 30— from the time she
was 4 or 5 years old until she was 10. She stated that on the majority of the occasions, he penetrated her anus with his
penis.

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       One of Abrego’s daughters, D.A., testified that her father penetrated her anally with his penis

when she was six or seven years old. A.A., Abrego’s former sister-in-law, testified that Abrego

touched her vagina with his hands when she was about sixteen or seventeen years old. S.R.A.

testified that her father, Abrego, vaginally penetrated her with his penis when she was eight or nine

years old. Another daughter, S.N.A., testified that Abrego touched her vagina with his hands when

she was between the ages of six and eight.

       After listening to the proferred testimony, the trial court found that the probative value of the

evidence outweighed its prejudicial nature. The trial court instructed the jury that they could only

consider the testimony to rebut the defendant’s evidence of fabrication by K.A. The jury found

Abrego guilty of all three counts, and the trial court sentenced him to 60 years’ imprisonment. On

appeal, Abrego contends the trial court abused its discretion in holding that the extraneous-offense

evidence was admissible to rebut the defensive theory of fabrication.

       We review the trial court’s ruling on the admissibility of extraneous offenses for an abuse

of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Prible v. State, 175

S.W.3d 724, 731 (Tex. Crim. App. 2005). The trial court does not abuse its discretion as long as its

ruling is within the “zone of reasonable disagreement.” De La Paz, 270 S.W.3d at 343-44;

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). “A trial court’s

ruling 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

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.”

De La Paz, 270 S.W.3d at 344.




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         While not permissible to show character conformity, evidence of other crimes, wrongs or acts

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

plan, knowledge, identity, or absence of mistake or accident.” TEX . R. EVID . 404(b). Extraneous

offense evidence is admissible to rebut a defensive theory raised in the defendant’s opening

statement. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). “The issue does not

necessarily turn on the type of defense presented, but on whether the extraneous-offense evidence

has noncharacter-conformity relevance by, for example, rebutting a defensive theory or making less

probable defensive evidence that undermines an elemental fact.” Id. at 563 n.8. Thus, we must

determine whether the extraneous-offense evidence has relevance apart from character conformity.

Id.

         Evidence is relevant if it “provides a small nudge toward proving or disproving some fact of

consequence.” Montgomery, 810 S.W.2d at 376. Here, the defense argued that K.A. had a motive

to fabricate the allegations against Abrego because her parents were divorcing.2 Additionally, the

defense elicited some evidence on cross-examination that K.A.’s mother had a motive to fabricate

the allegations against Abrego because she was upset that the first charges against Abrego had been

dismissed. Evidence that Abrego also assaulted three other daughters and his sister-in-law rebutted

the defense’s argument that K.A. fabricated the allegations against Abrego. Thus, it was at least

subject to reasonable disagreement whether the extraneous-offense evidence was admissible for the




         2
           … Abrego contends he did not argue the defensive theory of fabrication at trial; instead, his defensive theory
was that the assault never happened, or that he was not the one who did it. Although his opening statement was not as
blatant as the defendant’s in Bass, we disagree that Abrego did not raise the defensive theory of fabrication when counsel
argued that there was “ample motive . . . for the manufacturer [sic] of false allegations against Daniel Abrego.” See
Bass, 270 S.W .3d at 557-58.

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noncharacter-conformity purpose of rebutting the defensive theory of fabrication. Accordingly, we

cannot conclude the trial court abused its discretion in admitting the extraneous-offense evidence.

       Abrego alternatively argues that the extraneous-offense evidence was inadmissible under

Rule 403 because the evidence only served to inflame the jury and the State presented an excessive

amount of witnesses. We evaluate two factors in a Rule 403 analysis: (1) the inherent probative

force of the proffered item of evidence and (2) the proponent’s need for that evidence. Gigliobianco

v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006); TEX . R. EVID . 403. We then balance those

factors against the following four counter-factors: (1) unfair prejudice, i.e., any tendency of the

evidence to suggest decision on an improper basis; (2) confusion of the issues, i.e., any tendency of

the evidence to confuse or distract the jury from the main issues; (3) misleading the jury, i.e., 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 (4) undue delay or needless presentation of cumulative

evidence, i.e., the likelihood that presentation of the evidence will consume an inordinate amount

of time or merely repeat evidence already admitted. Gigliobianco, 210 S.W.3d at 641-42; TEX . R.

EVID . 403.

       Here, although the testimony regarding the extraneous sexual assaults had the potential to

inflame the jury, the evidence was relevant to rebut Abrego’s theory of fabrication. See Dennis v.

State, 178 S.W.3d 172, 181 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding evidence of

extraneous sexual assault of minor was admissible under Rule 403 balancing test where evidence

was relevant to rebut defense’s theory of fabrication). The testimony was not particularly graphic,

nor lengthy. Id. Further, the trial court instructed the jury to consider the testimony only for a




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limited purpose. Id. Accordingly, the trial court’s decision to admit the extraneous-offense evidence

was within the zone of reasonable disagreement.

       Abrego’s issue is overruled, and the judgment of the trial court is affirmed.



                                                       Phylis J. Speedlin, Justice



DO NOT PUBLISH




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