
 






NUMBER 13-05-188-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG




JOSE MORALES,	Appellant,


v.


THE STATE OF TEXAS,	Appellee.



On appeal from the 319th District Court
of Nueces County, Texas.




O P I N I O N


Before Chief Justice Valdez and Justices Yañez, and Castillo

Opinion by Justice Castillo


	A jury found appellant, Jose Morales, guilty of aggravated sexual assault of a child. 
He was sentenced to ninety-nine years and assessed a $5,000 fine.  Morales appeals.  We
affirm.
I.  FACTUAL BACKGROUND
	On May 9, 2002, Yvette Benavides (Mrs. Benavides) dropped off her two minor
daughters, B.B. and Y. B., at the home of her mother-in-law, Maria Benavides.  The
paternal grandmother provided child care for her two granddaughters between seven in the
morning until four-thirty in the afternoon.  Morales was married to Maria Benavides at this
time, (1) and was the girls step-grandfather.  The children in the Benavides family referred
to him as "Joe-Joe."
	Since the youngest daughter, Y.B., was still asleep, Mrs. Benavides laid her down
with the grandmother in the grandmothers room.  Meanwhile, the older daughter, B.B.,
then four years old, said she was not sleepy and wanted to watch cartoons.  B.B. was laid
on the living room couch to watch cartoons.  Morales was present in the kitchen, having
just returned home from working the night shift.  Mrs. Benavides left for work. 
	When Mrs. Benavides picked up her children after work, she observed B.B. wiggling
around as if she had to use the bathroom.  Mrs. Benavides, concerned she would have an
accident, prodded her into the bathroom, following her to help her undress.  B.B. then told
her mother she did not want to go to the bathroom because it would hurt her.  When asked
what she meant, B.B. said she was not supposed to tell but would if her mother promised
not to tell anyone else.  B.B. revealed that Joe-Joe sat on the floor next to her while she
was watching cartoons, and put his hands under her shorts and underwear, and then put
his finger into her private.  Jesse Benavides, B.B.'s father, arrived home soon after this
statement was made, and B.B. repeated the same thing to him.  He then called his mother
and niece to come over to his home.  Though they were in the house that morning, they
did not know what had happened until B.B. retold her story to them.  The grandmother then
examined B.B. and testified she saw an injury to B.B.'s "privates."
	B.B.'s parents took her to Driscoll Childrens Hospital where she received a sexual
assault examination.  Three tears and a labial agglutination were found.  A forensic
interviewer recorded B.B.'s statement as to the incidents.  The parents were told by Child
Protective Services not to talk to B.B. about what happened.  However,  Mrs. Benavides
testified at trial that B.B. stated, while being bathed, that she was mad at Joe-Joe for
hurting her.  Meanwhile, B.B.'s grandmother returned home to wait for Morales and
confront him.  She testified that when he returned from work the following morning, he
denied the allegations but would say nothing further until he spoke to a lawyer. 
	In a pretrial hearing, the State requested the trial court find B.B. an unavailable
witness under article 38.071 of the Texas Code of Criminal Procedure.  See Tex. Code
Crim. Proc. Ann. art. 38.071, §§ 1, 2 (Vernon 2005).  In making this determination, the
court considered an admitted affidavit of a licensed counselor who had been seeing B.B.
since the incident with Morales occurred, and the sworn testimony of Cynthia Villanueva,
then assistant D.A., who testified that B.B. would suffer serious and undue psychological
harm if made to testify.  The trial court found B.B. unavailable and she did not testify.  As
B.B. was found unavailable under article 38.071, two additional videotapes were made and
admitted into evidence at trial over Moraless objections.
	At trial, which commenced on February 22, 2005, Morales pled not guilty to the
offense of aggravated sexual assault of a child.  The State also tendered testimony of
another child, C.T., who subsequently made an outcry statement against Morales.  C.T.,
B.B.s cousin, lived in Moraless home and testified that on five separate occasions Morales
inappropriately touched her.  C.T.'s testimony was admitted over Moraless objections. II.  POINTS OF ERROR
	By two points of error, Morales asserts that the trial court erred in (1) allowing three
videotapes of the child victim's testimony into evidence, and (2) admitting extraneous
offense evidence.III.  ADMISSION OF THREE VIDEOTAPES INTO EVIDENCE 
UNDER ARTICLE 38.071, § 2
A. Relevant Facts	In his first point of error, Morales contends the trial court erred in admitting the three
videotapes of B.B.'s statement in evidence under article 38.071 of the code of criminal
procedure.  See Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon 2005).  In a pretrial
hearing on March 30, 2004, the state sought to admit tape one in lieu of B.B.s in-court
testimony.  Morales objected to the first recording as unfair and prejudicial.  The court
declared B.B. unavailable and allowed the parties to proceed under section 2(b) of article
38.071.   See  Tex. Code Crim. Proc. Ann. art. 38.071, § 2(b) (Vernon 2005).  Morales
objected to conducting a second recording without determining whether to admit the first
tape, arguing it would impair his rights under due process and due course of law
protections.  Morales then agreed to submit a list of questions for this second interview
pursuant to section 2(b) of article 38.071, so as to exercise his right to confrontation.  
	At a second pretrial hearing on June 3, 2004, Morales objected to the second
recording, arguing it failed to comply with article 38.071 because some of the questions he
had submitted were omitted.  Ms. Villanueva testified that at this pretrial hearing she,
defense counsel, and the trial court acknowledged that some of the questions on the list
for the second interview had been omitted. (2)  The forensic interviewer, Mr. Jimenez, who
was established as an expert witness, testified that in this second recording, he did omit
some questions that he felt were leading to ensure the tape would not be excluded from
evidence. (3) 
	To ensure protection of Morales's right to confrontation, the trial court ordered a third
recording, over Moraless objection.  The trial court referred to this third tape as a
continuation of the second tape.  To again exercise his right to confront the witness,
Morales submitted questions to be asked at the third interview.  At the third interview, all
of Morales's questions were asked by the same interviewer.  However, Morales complains
that the manner in which the third interview was conducted destroyed any continuity it may
otherwise have had with the second interview.  
	In the second interview, the forensic interviewer appears relaxed and friendly.  He
offers B.B. markers and makes conversation with her about swimming.  His demeanor
demonstrates warmth and friendliness, and his voice is neutral, showing neither surprise
nor disdain in response to her answers.  In the third interview, while his demeanor remains
friendly he does not try to befriend B.B.  He comes into the room, sits down in front of her,
and explains that he is going to ask questions off the list.  He does not chat with her and
does not offer her any markers.  He asks the questions straight off the list, offering little to
no guidance when she appears confused.  
	In Smith v. State, 88 S.W.3d 652, 672 (Tex. App.-Tyler 2002, pet. refd), written
interrogatories, without added questions or comments, were not found to show lack of
neutrality when demeanor, manner, and vocal intonation remained the same. (4)  Here,
though the interviewer did not establish a rapport with B.B. the way he did in the second
interview, his demeanor, manner, and vocal intonations remained the same.	Ms. Villanueva testified that she told the interviewer to ask the questions in the third
interview verbatim from the list of submitted questions. (5)  She further testified that she told
the interviewer not to establish a rapport with the child as she understood the defense
desired no additional questions asked.  Morales contends that, when the State gave
direction to the interviewer, the requirement of neutrality was compromised especially since
neither the defense nor the trial court gave these directions to the interviewer.  Thus,
Morales complains the third interview fails to comply with article 38.071 because it is not
neutral.  
	At a third pretrial hearing held on February 22, 2005, and throughout the trial,
Morales objected that none of the three videos complied with article 38.071, sections 2, 4,
and 5. (6)
 See Tex. Code Crim. Proc. Ann. art. 38.071, §§ 2, 4, 5 (Vernon 2005).  Morales
argues impairment of his right to confrontation despite the existence of the multiple
recordings.B.  Standard of Review
	In reviewing a trial court's ruling on the admissibility of evidence, an appellate court
must first determine the applicable standard of review.  Guzman v. State, 955 S.W.2d 85,
87, 89 (Tex. Crim. App. 1997) (reviewing the appropriate levels of appellate review in a
motion-to-suppress proceeding). (7)  In considering a trial court's ruling, an appellate court
must determine whether the trial court abused its discretion. (8) Willover v. State, 70 S.W.3d
841, 845 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810 S.W.2d 372 (Tex. Crim.
App. 1991) (op. on reh'g)).  In other words, the appellate court must uphold the trial court's
ruling if it is reasonably supported by the record and is correct under any theory of law
applicable to the case.  Id.  (internal citations omitted).  Finally, an appellate court must
review the trial court's ruling in light of what was before the trial court at the time the ruling
was made.  Id. (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000));
Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990).  C.  Article 38.071
	A plain language reading of article 38.071 indicates that a child-complainant must
be unavailable to testify before a videotape of the childs testimony is admissible.  See Tex.
Code Crim. Proc. Ann. art., § 1 (Vernon 2005).  The purpose of the article is to provide a
way to protect child complainants while at the same time preserving the constitutional rights
of those who stand accused.  Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon 2005);
Smith v. State, 88 S.W.3d 652, 659 n.2 (Tex. App.-Tyler 2002, pet. ref'd) (concluding that
the interviewer was neutral).  Among those constitutional rights is the right to confrontation
which includes cross examination. (9)  U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann.
art. 38.071.  Under article 38.071, the right to confrontation is not violated if the defendant
is given the opportunity to submit written interrogatories to the unavailable witness.  See
Tex. Code Crim. Proc. Ann. article 38.071, § 2(b).  Article 38.071, § 2(b) is an effective
alternative to the traditional face-to-face confrontation provided at trial. (10) Id.  D.  Application	To preserve a complaint for appellate review, a party must present a timely request,
objection, or motion to the trial court stating the specific grounds for the desired ruling if the
specific grounds are not apparent from the context.  Tex. R. App. P. 33.1; Blue v. State, 41
S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc); Delacruz v. State, 167 S.W.3d 904,
905 (Tex. App.-Texarkana  2005, no pet.).  A partys failure to timely and specifically object
at trial forfeits any error on appeal.  Blue, 41 S.W.3d at 131.  Even constitutional error may
be waived by the failure to specifically object.  Briggs v. State, 789 S.W.2d 918, 924 (Tex.
Crim. App. 1990) (en banc).
1.  The Admissibility of Tape One The trial court overruled Morales objection to tape one as being unfair and
prejudicial.  It was recorded one day after the incident occurred.  We must look to article
38.071, § 2(c) since the tape was made before an indictment was returned or a complaint
was filed.  Article 38.071, § 2(c) provides:
(c)  A recording made under Subsection (a) of this section is not admissible
into evidence unless a recording made under Subsection (b) is admitted at
the same time if a recording under Subsection (b) was requested prior to the
time of the hearing or proceeding.

Tex. Code Crim. Proc. Ann. art. 38.071, § 2(c) (Vernon 2005).  Thus, this first tape cannot
be admitted into evidence unless tape two or three is admitted simultaneously.2.  The Admissibility of Tapes Two and Three
	The State argues that Morales is estopped from making an appellate error of an
action it induced according to the doctrine of invited error.  Prystash v. State, 3 S.W.3d
522, 531 (Tex. Crim. App. 1999) (en banc).  If a party affirmatively seeks action by the trial
court, that party cannot later contend that the action was error.  Id.   
	There is no violation of the right to confrontation with the admission of videotaped
testimony if the defendant has the opportunity to cross-examine the witness.  See Fultz v.
State, 940 S.W.2d 758, 761 (Tex. App.-Texarkana 1997, pet. ref'd) (citing Carson v.
Collins, 993 F.2d 461, 464 (5th Cir. 1993)).  In fact, article 38.071, section 3 provides an
alternative method of confrontation that Morales could have elected to use:
Sec. 3. (a)  On its own motion or on the motion of the attorney representing
the state or the attorney representing the defendant, the court may order that
the testimony of the child be taken in a room other than the courtroom and
be televised by closed circuit equipment in the courtroom to be viewed by the
court and the finder of fact.  To the extent practicable, only the judge, the
court reporter, the attorneys for the defendant and for the state, persons
necessary to operate the equipment, and any person whose presence would
contribute to the welfare and well-being of the child may be present in the
room with the child during his testimony.  Only the attorneys and the judge
may question the child.  To the extent practicable, the persons necessary to
operate the equipment shall be confined to an adjacent room or behind a
screen or mirror that permits them to see and hear the child during his
testimony, but does not permit the child to see or hear them.  The court shall
permit the defendant to observe and hear the testimony of the child and to
communicate contemporaneously with his attorney during periods of recess
or by audio contact, but the court shall attempt to ensure that the child
cannot hear or see the defendant.  The court shall permit the attorney for the
defendant adequate opportunity to confer with the defendant during
cross-examination of the child.  On application of the attorney for the
defendant, the court may recess the proceeding before or during
cross-examination of the child for a reasonable time to allow the attorney for
the defendant to confer with defendant.

Tex. Code Crim. Proc. Ann. art. 38.071, § 3 (Vernon 2005). (11)  Under the statute, Morales
could have utilized section 3 as an opportunity to cross-examine the victim under oath in
a manner that would have preserved the welfare and well-being of B.B. (12) See Tex. Code
Crim. Proc. Ann. art. 38.071, § 3(b).  In the first pretrial hearing on March 30, 2004, the
trial court stated it presumed that, even if the two tapes were made, defense counsel would
still request that the child be interviewed via closed-circuit television at the time of the trial. 
The State acknowledged such a request would be permissible as the statute does not bar
the use of both sections in preserving the right to confrontation.  However, Morales did not
take advantage of this opportunity and now cannot claim that he was denied any rights
under the confrontation clause. (13) Fultz, 940 S.W.2d at 761.  
	Morales argument that the code does not provide for multiple recordings is also
invalid under the doctrine of invited error as in both instances, regarding the second and
third tapes, he acquiesced by submitting questions under section 2 and electing to request
a recording under section 3. By failing to utilize all the provisions available under article
38.071, Morales opted not to exercise his right to confrontation as authorized under section
3.  Thus, Morales is estopped from complaining on appeal that admitting the tapes in
evidence denied him his right to confrontation when the trial court afforded the relief he
requested on the method of confrontation he chose.  See Fultz, 940 S.W.2d at 761; see
also Prystash, 3 S.W.3d at 531.  
	Moreover, in response to Morales's complaints as to each tape at each pretrial
hearing, the trial court responded by affording him an opportunity to exercise his right to
confront B.B. under the specific provisions of article 38.071 that Morales used as grounds
for his complaints.  Importantly, Morales did not complain below nor does he now on
appeal that the trial court improvidently declared  B.B. unavailable to testify under section
1 of article 38.071.  See Tex. Code Crim. Proc. Ann. art. 38.071, § 1.
Rather, seeking to exercise his right to confront B.B., he agreed to propound questions for
purposes of the second interview and that procedure is statutorily authorized.  See Tex.
Code Crim. Proc. Ann. art. 38.071, § 2(b).  Because Morales complained that his
questions were not asked, (14) the trial court responded by ordering a continuation of that
interview.  Thus, we further conclude that Morales has not shown deprivation of his
constitutional right to cross-examine the child because (1) he did not object to the trial
court's declaration that B.B. was unavailable, (2) the trial court provided him the redress
he sought, and (3) he has not shown that the trial court disregarded his substantial rights. 
See Tex. R. App. P. 44.2.  
	Even assuming the trial court erred, we conclude that Morales has not shown the
tapes are incomplete. (15)  Further, he has not demonstrated reversible error.  See Tex. R.
App. P. 44.2; Weatherred, 15 S.W.3d at 542.  Further still, his objection as to the neutrality
of the interviewer  was untimely.  See Tex. R. App. P. 33.1(a); Martinez v. State, 22 S.W.3d
504, 507 (Tex. Crim. App. 2000) (stating that the purpose of a timely objection is to "give
to the trial court or the opposing party the opportunity to correct the error or remove the
basis for the objection").  
	Morales did not present a neutrality complaint to the first tape or the second tape
and he waited until the eve of trial, when the trial court could not effect a remedy, to
complain.  We conclude the objection was untimely.  Martinez, 22 S.W.3d at 507. 
Moreover, we have reviewed the recordings and addressed in this opinion the question of
neutrality.  We will not disturb the trial court's evidentiary rulings under article 38.071 unless
the trial court abused its discretion by reaching a decision that falls outside the zone of
reasonable disagreement.  See Weatherred, 15 S.W.3d at 542; Garcia, 792 S.W.2d at 92. 
We conclude that the trial court's ruling is supported by the record and is not an abuse of
discretion.  
E.  Disposition
	Morales consistently chose to submit written interrogatories as his method of
confrontation rather than consider the suggestion by the trial court that section 3 was also
available.  Using article 38.071 as its guiding rule or principle, the trial court chose to order
a continuation of tape two, by conducting a third recording so as to preserve Morales right
to confrontation.  See Tex. Code Crim. Proc. Ann. art. 38.071, §§ 1, 2(b).  In light of what
was before the trial court at the time each complained-of ruling was made, we conclude
that the trial court did not abuse its discretion in admitting the videotapes.  See Tex. Code
Crim. Proc. Ann. art. 38.071, §§ 1, 2(b); Willover, 70 S.W.3d at 845.  We overrule Morales
first point of error.
IV.  BALANCING THE PREJUDICIAL EFFECTS OF EXTRANEOUS OFFENSE
EVIDENCE
A.  Relevant Facts
	In his second point of error, Morales contends that the trial court erred in admitting
evidence of extraneous offenses regarding C.T., the victim's cousin and Morales step-granddaughter, because its prejudicial effect outweighed its probative value.  C.T.s outcry
was made subsequent to B.B.s.  C.T. testified that, beginning at age ten, Morales sexually
assaulted her several times.  The instances she testified to included Morales
inappropriately touching her, sticking his tongue into her mouth while kissing her, touching
her vaginal area, rubbing her leg while attempting to reach up her shorts, and attempting
to bite her breast.  
	Morales argues that extraneous offense evidence was not necessary to prove
opportunity or intent.  He asserts that jury had already heard evidence that he was alone
with B.B. and, thus, extraneous offense evidence was not necessary to prove opportunity
to commit the offense.  He further argues that, because the jury had already heard no one
else was present, extraneous offense evidence was not necessary to prove  intent.  The
State responds this extraneous evidence was necessary to establish (1) why its expert
witness had reason to believe Morales committed the act in question, and (2) his state
of mind at the time, an essential element of  the crime.  The State further responds that
Morales opened the door by attacking the credibility of the victim, suggesting he had been
framed by family members, and suggesting fabrication and conspiracy. B. Standard of Review 
	We review the trial courts ruling concerning the rules of evidence for an abuse of
discretion.  Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (en banc) (citing
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)).  We uphold the trial
courts ruling on the admissibility of evidence so long as the ruling falls within the zone of
reasonable disagreement.  Id. (quoting Montgomery, 810 S.W.2d at 391).  
C.  Preservation of Error	Requisite for review of any complaint on appeal is preservation of error.  Tex. R.
App. P. 33.1(a); Blue, 41 S.W.3d at 131.  To preserve a complaint for appellate review, a
party must present a timely request, objection, or motion to the trial court stating the
specific grounds for the desired ruling if the specific grounds were not apparent from the
context.  Adams v. State, 180 S.W.3d 386, 399 (Tex. App.-Corpus Christi 2005, no pet.)
(citing Tex. R. App. P. 33.1(a); Blue, 41 S.W.3d at 131).  The complaining party must also
obtain an adverse ruling on the objection.  Id.  Generally, a partys failure to timely and
specifically object at trial forfeits any error.  Tex. R. App. P. 33.1; see Blue, 41 S.W.3d at
131.
D.  Application
	An objection must be made under both rules 404(b) and 403 to preserve error
regarding the admission of evidence of an extraneous offense.  Montgomery, 810 S.W.2d
at 388 (stating that an objection under rule 404(b) must now be followed by a further
objection based on rule 403); see Tex. R. Evid. 403, 404(b).  Extraneous offense evidence
is admissible under both rules 404(b) and 403 if it satisfies the two-part test set out in
Martin: 
(1)  whether the extraneous offense evidence is relevant to a fact of
consequence in the case apart from its tendency to prove conduct in
conformity with character; and (2) whether the probative value of the
evidence is not substantially outweighed by unfair prejudice.

Martin, 173 S.W.3d at 467.  
	The State contends the defense failed to raise a rule 404(b) objection.  In the instant
case, Morales objected that the States attempt to admit evidence during the culpability
phase of the trial violated part of the 38.37 on the extraneous offense.  And certainly 403,
and possibly 404(b) with the prejudicial effect it would have on this particular case. (16)  The
court declined to rule at that instant, reserving its decision until it had time to review case
law.  Later, the objection was overruled and the extraneous evidence was admitted. 
Morales agreed to limit the expert witnesss testimony to the contents of the report, but
maintained his objection.  The trial court noted Morales had not waived anything and that
his objection was noted.  Thus, Morales preserved error by securing a ruling on a timely
and specific objection. 
1.  Applying the Two Prongs of the Martin Test
a.  Part 1:  Relevance of extraneous offense evidence apart
from tendency to prove conduct in conformity with character

	Evidence is relevant if it has any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.  Tex. R. Evid. 401.  However, not all relevant evidence
is admissible.  See Tex. R. Evid. 402.  Some relevant evidence of other crimes, wrongs or
acts is not admissible to prove the character of a person in order to show that he acted in
conformity therewith.  Tex. R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex.
Crim. App. 2004).  However, under rule 404(b), extraneous offense evidence 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 may also be admissible when a defendant raises a defensive
issue that negates an element of the offense with which he is charged. (17) Martin, 173
S.W.3d at 466.  Determining the relevance of extraneous evidence apart from character
conformity is a decision for the trial court.  Id. (quoting Moses v. State, 105 S.W.3d 622,
627 (Tex. Crim. App. 2003)).
	In this case, the trial court's ruling to allowing the evidence under rule 404(b) is
supported by the record and, thus, was not outside the zone of reasonable disagreement. 
Extraneous evidence, as noted above, can be admitted to prove opportunity, or an
essential element if the defendant raises an issue that negates it.  Morales presented
evidence that he was away from the house for most of the day obtaining stickers for both
his and his ex-wifes vehicles.  This permitted the court to make a reasonable inference
that Morales was suggesting he did not have the time to commit the alleged acts.  By
presenting his activities on the day in question to demonstrate lack of opportunity to commit
the crime, he opened the door to admission of the extraneous evidence.  Powell v. State,
63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (during opening statement and in cross-examination of State's witnesses, defense counsel raised issue of lack of opportunity for
the defendant to have committed the sexual offenses); Wolfberg v. State, 73 S.W.3d 441,
443 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (permitting child victims sister to testify
that defendant had sexually assaulted her to show opportunity).  
	The Court of Criminal Appeals has recognized that extraneous sexual misconduct
evidence may be relevant to counteract a perceived societal aversion to the idea that
parents or those standing in loco parentis can commit sexual crimes against their own
children.  Boutwell v. State, 719 S.W.2d 164, 175-76 (Tex. Crim. App. 1986).  This
evidence may be needed because the State's case may depend upon the credibility of the
child-complainant, as most incestuous crimes occur in secrecy.  Montgomery, 810 S.W.2d
at 394.  When the credibility of the child-complainant is challenged by the accused,
evidence of other identical or similar acts of sexual misconduct may be used to support the
testimony of the child-complainant if it logically shows a lascivious attitude (relevant to
culpable intent) and a willingness to act on that attitude (relevant to prohibited conduct) that
a jury might not otherwise want to acknowledge as existing in some familial relationships. 
Id.  When the circumstances of the case show the evidence logically serves its purpose,
it may be relevant under rule 404(b) apart from showing character conformity.  Id.  In the
instant case, C.T.'s testimony logically demonstrates that B.B. is a credible witness by
showing that an incestuous relationship could arise between a step-grandfather and his
step-grandchildren.
	The trial court did not err in admitting the extraneous sexual offenses as they were
admissible under rule 404(b) to show opportunity, Powell, 63 S.W.3d at 438, Wolfberg, 73
S.W.3d at 443, and to prove an essential element.  Contreras v. State, 838 S.W.2d 594,
600 (Tex. App.-Corpus Christi 1992, pet. ref'd) (allowing similar burglary and sexual
offenses to show intent and identity); Johnson v. State, 932 S.W.2d 296, 302-04 (Tex.
App.-Austin 1996, pet. ref'd) (admitting substantially similar extraneous offense to show
intent).  Nor was it error to allow the extraneous sexual offense to serve as the basis for
the State's expert witness's reason to believe Morales committed the charged act. 
Blacklock v. State, 820 S.W.2d 882, 884-85 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd)
(demonstrating that extraneous sexual offenses were relevant in a sexual assault case in
the pretrial competency hearing to prove a pattern of behavior on which the expert relied
for his testimony). b.  Part 2: Probative value of the evidence 
must substantially outweigh unfair prejudice	In addition to challenging relevancy, Morales also successfully preserved his
objection that the prejudicial effect of the extraneous offense evidence outweighed its
probative value.  This balancing test is expressed in rule 403, which states, 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.  A
presumption exists whereby relevant evidence is more probative than it is prejudicial. 
Rivera v. State, 130 S.W.3d 454, 460 (Tex. App.-Corpus Christi 2004) (citing Phelps v.
State, 5 S.W.3d 788, 795 (Tex. App.-San Antonio 1999, pet. ref'd)).  
	A rule 403 analysis should consider the following factors:  (1) the probative value
of the evidence, (2) the potential to impress the jury in some irrational, yet indelible way,
(3) the time needed to develop the evidence, and (4) the proponents need for the
evidence.  Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing
Montgomery, 810 S.W.2d at 372).  When considering a trial court's rule 403 balancing test
determination, the appellate court is not to conduct a de novo review of the record.  See
Montgomery, 810 S.W.2d at 392.  The result a trial court reaches in conducting its rule 403
balancing test is to be reversed rarely and only after a clear abuse of discretion is found. 
Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810
S.W.2d at 389).  Thus, we apply the facts of the instant case to these factors.
	C.T.'s testimony, as direct evidence, has great probative value and provided strong
and compelling evidence to establish (1) opportunity and (2) state of mind.  Further, there
were significant similarities and circumstances between the instant offense and the
conduct C.T. described in her testimony.  See Boutwell, 719 S.W.2d at 176 (noting
extraneous sexual offenses between a defendant and a third party are not always
inadmissible if they are relevant to a material issue in the case, and the relevancy value
outweighs its prejudicial potential).  Through her testimony, a pattern showing Moraless
increasing brazenness developed.  His inappropriate touches soon turned into an
aggressive attempt to bite her breast.  C.T. testified that this last incident occurred a month
before the incident involving B.B.  
	The extraneous offenses introduced were not so inherently inflammatory that they
would have swayed the jury in some irrational and indelible manner.  See Alexander v.
State, 88 S.W.3d 772, 778 (Tex. App.-Corpus Christi 2002).  Time needed to develop the
evidence weighs in favor of admissibility.  Erazo, 144 S.W.3d at 489.  C.T. outcried soon
after B.B. did, and despite Moraless objections, was readily available to testify.  
	When considering the last factor, the proponents need for evidence, the reviewing
court should address three questions:  (1) Does the proponent have other available
evidence to establish the fact of consequence that the evidence is relevant to show? (2)
If so, how strong is that other evidence? and (3) Is the fact of consequence related to an
issue that is in dispute?  Erazo, 144 S.W.3d at 495-96 (citing Montgomery, 810 S.W.2d at
390).  The State adduced other relevant evidence.  It had the testimony of various family
members that Morales was alone that morning with B.B.  Raising the defensive theory of
lack of opportunity is sufficient to justify admission of extraneous offense evidence under
404(b).  Powell, 63 S.W.3d at 438; Wolfberg, 73 S.W.3d at 443.  Here, this other evidence
was not as strong as C.T.s first-hand account.  Although the State had other evidence, the
factors under rule 403 are merely factors included among other factors to be considered. 
See Hayden v. State, 155 S.W.3d 640, 646 (Tex. App.-Eastland, 2005) (citing Wyatt v.
State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)).  All of the other evidence was related to
the issue in dispute as, taken together, it showed similar circumstances and close temporal
proximity to B.B.s outcry.  
E.  Disposition
	A balancing of the factors does not reveal a clear abuse of discretion on the part
of the trial court.  Mozon, 991 S.W.2d at 847 (quoting Montgomery, 810 S.W.2d at 389).
Therefore, we conclude the trial court properly conducted the rule 403 balancing test and
did not abuse its discretion in concluding that the probative value of the extraneous offense
evidence was not substantially outweighed by any prejudicial effect.  We overrule Moraless
second point of error.IV.  CONCLUSION
	Having overruled Moraless two points of error on appeal, we affirm. 
								ERRLINDA CASTILLO
								Justice

Concurring Opinion by Justice Yañez.
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 9th day of November, 2006.
1.  Jose Morales and Maria Morales divorced two months after B.B.'s outcry of sexual abuse.
2.  From the trial court's recitation, we note that the omitted questions are:

	What's your address?
	What's the name of your teacher?
	Do you like Joe-Joe?
	Why don't you like him or why do you like him?
	Did you tell your cousins Joe-Joe had touched you? (With a follow up question).
3.  Leading questions that are isolated, or those concerning the details of testimony already given in
response to proper interrogation, or those concerning matters not directly relating to the offense, will not
destroy the videotape's admissibility so long as the overall product is not the result of suggestion.  Carlock v.
State, 99 S.W.3d 288, 292 (Tex. App.-Texarkana 2003, no pet.).
4.  In Smith v. State, 88 S.W.3d 652, 671 (Tex. App.-Tyler 2002, pet. ref'd.), our sister court
analyzed the first interview of the child complainant made under article 38.071, § 2(a).  See id.; see also
Tex. Code of Crim. Proc. Ann. §38.071, § 2(a), (b) (Vernon 2005).  The second interview, made under
section 2(b), was conducted solely to ask the written interrogatories propounded by counsel.  Smith,
88 S.W.3d at 671; see also Tex. of Crim. Proc. Ann. §38.071, § 2(a), (b).  The court concluded that the
interview was objective and thus the interviewer was neutral, because the demeanor, mannerisms, and
vocal intonations of the interviewer did not suggest answers or reveal her reaction to the child victim's
responses.  Smith, 88 S.W.3d at 672.
5.   Ms. Villanueva testified at trial that she was operating according to her understanding of the trial
court's instructions.
6.  All of Moraless pretrial objections were carried over and overruled at trial.
7.  In Guzman, the Court of Criminal Appeals observed that, "An appellate court's review of a trial court's
evidentiary rulings generally does not involve an 'application of law to fact question' or a 'mixed question of
law and fact.'"  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  The Court further noted that trial
courts have broad discretion in their evidentiary rulings and are usually in the best position to make the call
on whether certain evidence should be admitted or excluded.  Id. 
8.  A trial court has wide discretion in its decision to admit or exclude evidence.  Montgomery v. State,
810 S.W.2d 372, 392 (Tex. Crim. App. 1991) (en banc); Reyes v. State, 69 S.W.3d 725, 735 (Tex.
App.-Corpus Christi 2002 pet. ref'd).  An abuse of discretion occurs when the trial court acts arbitrarily or
unreasonably, without reference to guiding rules or principles.  Montgomery, 810 S.W.2d at 380.  Therefore,
the trial court's ruling must be at least within the zone of reasonable disagreement to prevent reversal.  Id. at
391.  The inquiry on appeal is whether the result was reached in an arbitrary or capricious manner.  Id. at 380. 
9.  The common law guarantee of the right to cross examine witnesses exists to tease out the
truth.  Reyna v. State, 168 S.W.3d 173, 182-83 (Tex. Crim. App. 2005) (citing Crawford v. State, 541
U.S. 36, 43-46 (2004)).  The elements of confrontation guaranteed by the Sixth Amendment include
the physical presence of the witness, an oath, cross-examination, and observation of the witness's
demeanor by the trier of fact."  Craig, 497 U.S. at 846.  
10.  Section 2 of article 38.071 of the code of criminal procedure reads in part: 
	(a) The recording of an oral statement of the child made before the indictment is
returned or the complaint has been filed is admissible into evidence if the court makes a
determination that the factual issues of identity or actual occurrence were fully and fairly
inquired into in a detached manner by a neutral individual experienced in child abuse cases
that seeks to find the truth of the matter.

	(b) If a recording is made under Subsection (a) of this section and after an indictment
is returned or a complaint has been filed, by motion of the attorney representing the state or
the attorney representing the defendant and on the approval of the court, both attorneys may
propound written interrogatories that shall be presented by the same neutral individual who
made the initial inquiries, if possible, and recorded under the same or similar circumstances
of the original recording with the time and date of the inquiry clearly indicated in the recording.

	(c) A recording made under Subsection (a) of this section is not admissible into
evidence unless a recording made under Subsection (b) is admitted at the same time if a
recording under Subsection (b) was requested prior to the time of the hearing or proceeding.

Tex. Code Crim. Proc. Ann. art. 38.071, § 2 (Vernon 2005).  
11.  This provision is to be utilized after charges have been filed against a specific defendant or
defendants and its focus is upon the exercise of the right of counsel, and the right of confrontation
which includes the right of cross-examination.  See Lawson v. State, 697 S.W.2d 799, 802 (Tex.
App.-Houston [1st Dist.] 1985), rev'd on other grounds, 752 S.W.2d 572 (Tex. Crim. App. 1988).  Thus,
section 3 is an appropriate means of confronting a child-complainant that Morales failed to utilize.  See
Tex. Code Crim. Proc. Ann. art. 38.071, § 3 (Vernon 2005).
12.  We recognize that belated cross-examination, under certain circumstances, can serve as a
constitutionally adequate substitute for cross-examination contemporaneous with the original statement. 
Buckley v. State, 786 S.W.2d 357, 360 (Tex. Crim. App. 1990) (en banc).
13.  Alternatively, article 38.071 section 2 reads may propound, and so Morales was not constrained
to choose this method.  He could have not asked any questions at all and allowed only the first tape in or he
could have requested to be present when the questions were propounded.  He chose the former and then
complained.
14.  See note 2.  As to the propounded questions, we note that in the first videotaped interview, the
interviewer asked B.B. where she lived and she responded she lived with her parents.  Before reaching the
sexual contact matter, the interviewer also asked B.B. whether Joe-Joe was nice to her and she responded
that he was.  The interviewer also asked her if she told anyone that Joe-Joe touched her and if anyone told
her whether he did anything to them.  Morales has not shown that, absent answers to the remaining two
unanswered questions (as to her teacher's name and why B.B. did or did not like Joe-Joe) affected his
substantial rights.  See Tex. R. App. P. 44.2.  
15.  As discussed in note 15, the record shows that B.B. had already provided information Morales
sought and, to the extent she did not, Morales has not shown deprivation of his substantial rights.
16.  The best objection would be that such evidence is inadmissible under rule 404(b), but an
objection that the evidence is not relevant, constitutes an extraneous offense or extraneous
misconduct, though not precise, ought ordinarily [be] sufficient under the circumstances to apprise
the trial court of the nature of the complaint.  Montgomery, 810 S.W.2d at 387 (citing Zillender v. State,
557 S.W.2d 515 (Tex. Crim. App. 1977)).
17.  A party may introduce extraneous evidence if that evidence logically tends to make an elemental
fact more or less probable, inferentially leads to an elemental fact, or is defensive evidence that undermines
the elemental fact.  Montgomery, 810 S.W.2d at 372.  
