                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00329-CR
                             ____________________

                       JAMES ARCENEAUX, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
_________________________________        ______________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                       Trial Cause No. 13-18199
____________________________________________                      ____________

                          MEMORANDUM OPINION

      A jury convicted James Arceneaux of aggravated sexual assault of a child

under section 22.021 of the Texas Penal Code and assessed punishment at thirty

years of confinement. In three appellate issues, Arceneaux contends that the trial

court erred by (1) admitting the recorded interview of the child, (2) allowing an

outcry witness to testify during trial, and (3) admitting extraneous offense

testimony. We affirm the trial court’s judgment.



                                         1
                                    Background

      The State charged Arceneaux with “intentionally and knowingly causing the

penetration of the FEMALE SEXUAL ORGAN of [R.H.] by inserting his

SEXUAL ORGAN; and [R.H.] was then and there younger than (14) years of

age[.]” During the trial, R.H. testified that Arceneaux touched her in a bad way

when she was at her aunt’s house. R.H. testified that Arceneaux touched the place

where she goes “pee pee” with his “dick.”

      Nancy Blitch, a forensic interviewer, who conducted an interview with R.H.,

also testified at trial. According to Blitch, R.H. was six years old when the

interview occurred, and R.H. was “very active throughout the interview.” R.H.

provided details that were consistent with the details that Blitch received from law

enforcement and other agencies. R.H. identified Arceneaux as the person who had

sexually abused her.

      The jury heard testimony from Walter Oliver, R.H.’s uncle, who the trial

court allowed to testify as the outcry witness. Oliver testified that R.H. told him

that Arceneaux had “stuck his thing inside of her thing[,]” and that when R.H. said

“thing,” she pointed to her vagina. R.F., R.H.’s sister, testified that Arceneaux had

touched R.F.’s genitals with his hand on more than one occasion and had shown

her his genitals. R.F. further testified that she saw Arceneaux touch R.H.’s genitals

                                         2
with his hand and put his “thing” in R.H. The jury found Arceneaux guilty of

sexually assaulting R.H. and assessed punishment at thirty years’ imprisonment.

The trial court sentenced Arceneaux to thirty years in prison. Arceneaux appeals

the trial court’s judgment.

                                      Analysis

      In issue one, Arceneaux complains that the trial court erred by admitting

R.H.’s recorded interview after R.H. had already testified at trial. During Blitch’s

testimony, the State offered into evidence a recording of R.H.’s interview. At that

point, Arceneaux’s counsel objected based on hearsay and argued that the

admission of the recording violated Rule 403. See Tex. R. Evid. 403. The

prosecutor argued that because the defense was trying to impeach R.H., the

recording was being offered to show that R.H.’s previous statement was consistent

with her trial testimony. The trial court overruled Arceneaux’s counsel’s objection

to the admission of the recording. The trial court found that R.H.’s recorded

interview was not hearsay, the recording was admissible under Rule 801 as a prior

consistent statement, and the recording was offered to rebut an express or implied

charge of recent fabrication, improper influence, or motive. See Tex. R. Evid.

801(e)(1)(B). The trial court further found that the “prejudice of its admission does

not substantially outweigh the probativeness.”

                                         3
      We review a trial court’s determination that a prior consistent statement is

admissible under an abuse of discretion standard, and we will not reverse as long

as the judge’s decision lies within the zone of reasonable disagreement. Hammons

v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007); Fears v. State, 479 S.W.3d

315, 332 (Tex. App.—Corpus Christi 2015, pet. ref’d). Rule 801 of the Texas

Rules of Evidence provides that a statement is not hearsay if the declarant testifies

at trial, is subject to cross-examination concerning the statement, and the statement

is consistent with the declarant’s testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper influence or

motive. Tex. R. Evid. 801(e)(1)(B). A trial court has substantial discretion to admit

a prior consistent statement even if there has been only a suggestion of conscious

alteration or fabrication. Fears, 479 S.W.3d at 332 (citing Hammons, 239 S.W.3d

at 804-05). In Hammons, the Texas Court of Criminal Appeals explained that:

      [A] reviewing court, in assessing whether the cross-examination of a
      witness makes an implied charge of recent fabrication or improper
      motive, should focus on the “purpose of the impeaching party, the
      surrounding circumstances, and the interpretation put on them by the
      [trial] court.” Courts may also consider clues from the voir dire,
      opening statements, and closing arguments. From the totality of the
      questioning, giving deference to the trial judge’s assessment of tone,
      tenor, and demeanor, could a reasonable trial judge conclude that the
      cross-examiner is mounting a charge of recent fabrication or improper
      motive? If so, the trial judge does not abuse his discretion in admitting
      a prior consistent statement that was made before any such motive to
      fabricate arose.
                                         4
Hammons, 239 S.W.3d at 808-09 (footnotes omitted).

      The record shows that defense counsel attacked R.H.’s credibility during the

trial. During voir dire, defense counsel questioned the prospective jurors about

their experiences with children lying. During defense counsel’s cross-examination

of R.H., defense counsel asked R.H. if somebody else had told her what she was

supposed to say. During opening statements, defense counsel stated that he

believed the evidence would show that the family has a history of making

accusations of molestation and that the “family continues to lie and [is] now

teaching the children to lie.” During closing arguments, defense counsel argued

that R.H. had “many different stories as far as how this sexual assault allegedly

happened.” Defense counsel argued that this case was about credibility and also

implied that the family was “us[ing] their children to get back at somebody else.”

       The trial court evidently interpreted the “tone, tenor, and demeanor” of

defense counsel as attacking R.H.’s credibility and raising a charge of fabrication.

See Hammons, 239 S.W.3d at 808. Thus, the purpose of the impeaching party, the

surrounding circumstances, and the trial court’s interpretation of the questioning all

support the trial court’s ruling. See id. Because the trial court has “substantial

discretion” to admit prior consistent statements after determining that the witness’s

credibility has been challenged, we conclude that the trial court did not abuse its
                                          5
discretion by determining R.H.’s recorded interview was admissible under Rule

801 as a prior consistent statement. See id. at 804-05.

      We further conclude the trial court did not abuse its discretion by

determining that the admission of the recording was more probative than

prejudicial. Rule 403 of the Texas Rules of Evidence provides as follows: “The

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence.” Tex. R. Evid. 403. “Rule 403 favors admissibility of

relevant evidence, and the presumption is that relevant evidence will be more

probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372, 389 (Tex.

Crim. App. 1990) (op. on reh’g).

      In determining whether the trial court abused its discretion by admitting the

evidence, we must balance the inherent probative force of the proferred item of

evidence along with the proponent’s need for that evidence against (1) any

tendency of the evidence to suggest a decision on an improper basis, (2) any

tendency of the evidence to confuse or distract the jury from the main issues, (3)

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) the likelihood that

                                          6
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). The trial court in this case concluded that:

      The fact of the matter is any of this evidence is going to be highly
      prejudicial, but the Court is inclined to admit it under the purposes
      and the reasons proffered by the State of Texas and would find that
      the prejudice of its admission does not substantially outweigh the
      probativeness. Any . . . evidence . . . presented that a child has been
      sexually assaulted is of the highest prejudicial nature. . . . And the
      question is in light of the circumstances of the testimony, whether it’s
      in the best interest of justice and under the rules of evidence to admit
      it; and the Court is going to allow its admission for the purposes that
      are being proffered by the State of Texas.

The trial court could have reasonably concluded that the State demonstrated it

needed the evidence to counter the defense’s theory that R.H. lacked credibility,

that the evidence did not consume an inordinate amount of time or merely repeat

evidence already admitted, and that the evidence did not have a tendency to

suggest a decision on an improper basis or to confuse or distract the jury from the

main issues in the case. See Gigliobianco, 210 S.W.3d at 641-42. Weighing the

above factors, we conclude the trial court’s determination that the admission of the

recording was more probative than prejudicial is within the zone of reasonable

disagreement. We overrule issue one.

      In issue two, Arceneaux argues that the trial court erred by allowing Oliver

to testify as the outcry witness because Oliver was not the first person over
                                         7
eighteen to whom R.H. spoke about the offense. Prior to trial, the State provided

Arceneaux with notice of its intent to have Oliver testify as the outcry witness.

Defense counsel objected to Oliver’s testimony based on hearsay. The trial court

conducted a hearing to determine the reliability of the outcry statement and to

determine whether Oliver was the first person R.H. had told in a discernible

manner. The State argued that Oliver was the first outcry witness whom R.H.

clearly relayed the allegations because Oliver was the only person that R.H. told

about Arceneaux “sticking his thing in her.” Defense counsel argued that Oliver

was not the first outcry witness, but also conceded that there was no evidence that

R.H. had outcried in a discernible fashion to someone other than Oliver.

      The trial court noted that “to qualify as an outcry statement . . . an outcry

statement must be more than a general [a]llusion [to] sexual abuse and the child

must have described the alleged offense in some discernible way amounting to

more than words which give a general [a]llusion that something in the area of child

abuse was going on.” Oliver testified outside the presence of the jury concerning

the circumstances surrounding R.H.’s outcry statement and the contents of her

statement. After hearing Oliver’s testimony, the trial court allowed Oliver to testify

as the outcry witness under article 38.072 of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2015). The

                                          8
trial court found that the “statement has reliability sufficient under the law for its

admissibility based upon the time, content[,] and circumstances of the making of

the statement[,]” and that R.H.’s statement to Oliver “is clear and unambiguous

and is consistent with other evidence that has been received so far in this trial[.]”

The trial court further found that there was no suggestion that the child had any

basis to fabricate this story or motive to do so, the child appreciated the difference

between truth and falsity, and under the circumstances of the evidence, the accused

had the opportunity to commit the offense as alleged.

      We review a trial court’s decision to admit an outcry statement under an

abuse of discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim.

App. 1990); Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008,

pet. ref’d). A trial court has broad discretion in determining the admissibility of the

proper outcry witness, and we will uphold the trial court’s finding so long as the

finding is supported by the evidence. Reyes, 274 S.W.3d at 727.

      Article 38.072 allows for the admission of otherwise inadmissible hearsay in

the prosecution of offenses against children fourteen years and younger. See Tex.

Code Crim. Proc. Ann. art. 38.072. The statute applies to statements describing the

alleged offense that are made by the child against whom the offense was allegedly

committed, and that are made to the first person, eighteen years of age or older,

                                          9
other than the defendant. Id. § 2(a)(2), (3). “To qualify as an outcry statement

under article 38.072, the statement must be more than a general allusion of sexual

abuse and the child must have described the alleged offense in some discernible

way, that being ‘more than words which give a general allusion that something in

the area of child abuse was going on.’” Reyes, 274 S.W.3d at 727 (quoting Garcia,

792 S.W.2d at 91). The trial court must conduct a reliability hearing outside the

presence of the jury to determine whether the statement is reliable and whether the

witness may be designated as an outcry witness. Id.; see Tex. Code Crim. Proc.

Ann. art. 38.072, § 2(b)(1)(C)(2); Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim.

App. 2011).

      The record shows that the trial court conducted a hearing outside the

presence of the jury to determine the reliability of the outcry statement, and during

that hearing, Arceneaux’s counsel admitted there was no evidence showing that

R.H. had outcried in a discernible fashion to someone other than Oliver. The

record reflects that R.H.’s statements to Oliver included a description of the

alleged offense with R.H. describing how Arceneaux had put his “thing” into her

“thing.” According to Oliver, it was clear to him that R.H. had alleged that

Arceneaux put his penis in R.H.’s vagina. The trial court found that the outcry

statement was reliable and admitted Oliver’s testimony as the outcry witness under

                                         10
article 38.072. We hold that the trial court did not abuse its discretion in

determining that Oliver was the proper outcry witness or in allowing Oliver to

testify as the outcry witness. See Garcia, 792 S.W.2d at 92; Reyes, 274 S.W.3d at

727. We overrule issue two.

      In issue three, Arceneaux contends that the trial court erred by allowing R.F.

to testify concerning other criminal acts Arceneaux had allegedly committed in

violation of Rule 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 404(b).

Arceneaux also argues that R.F.’s testimony was more prejudicial than probative.

See Tex. R. Evid. 403.

      We review a trial court’s decision to admit extraneous offense evidence

under an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343-44

(Tex. Crim. App. 2009); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003). We also give deference to a trial court’s ruling on the balance between the

probative value of the evidence and the danger of unfair prejudice. De La Paz, 279

S.W.3d at 343; see Tex. R. Evid. 403. We will uphold the trial court’s ruling as

long as it is within the zone of reasonable disagreement. Moses, 105 S.W.3d at 627

(citing Montgomery, 810 S.W.2d at 391). A trial court’s ruling is generally within

the zone of reasonable disagreement if the extraneous offense evidence is relevant

to a material, non-propensity issue, and if the probative value of the evidence is not

                                         11
substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury. De La Paz, 279 S.W.3d at 344.

      “Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Tex. R. Evid. 404(b)(1). However, extraneous

offense evidence may be admissible for other purposes, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident. Tex. R. Evid. 404(b)(2). Rebuttal of a defensive theory is also one

of the permissible purposes for which relevant evidence may be admitted under

Rule 404(b). Moses, 105 S.W.3d at 626.

      The record shows that the trial court conducted a hearing outside the

presence of the jury regarding the extraneous offense evidence. During the hearing,

R.F. testified that when she and R.H. went to their aunt’s house, Arceneaux would

put them on his lap and touch their private areas with his hand. R.F. further

testified that Arceneaux had shown them his private parts more than once.

Arceneaux’s counsel objected to R.F. testifying during trial about any extraneous

offenses Arceneaux allegedly committed because they were inadmissible under

Rule 404(b). The trial court found that R.F.’s testimony was admissible under Rule

404(b) for the following reasons:

                                         12
      Under Rule 404(b), it does rebut the inference of the defendant’s
      strategy that this Court has drawn that the complainant lacks
      credibility; and this supports the credibility of the complainant’s
      testimony. It also shows a common scheme of conduct of sexual
      assault involving children and whether [it’s] indecency with a child or
      actually sexual assault, those are sexual assault offenses under the
      sexual assault chapter. They are all dealt with as the same subject
      matter. It also shows an opportunity for the defendant to commit these
      offenses because he’s alleged in this instance of this witness and the
      complainant occurring at the same location under similar
      circumstances. And also, it shows a motive and that is the propensity
      of sexual acts involving victimization of children[.]

      Based on the record, the trial court could have reasonably concluded that

R.F.’s testimony was admissible to rebut Arceneaux’s defensive theory that R.H.

lacked credibility, and thus had relevance apart from its tendency to show

Arceneaux’s character and that Arceneaux acted in conformity therewith. See Tex.

R. Evid. 404(b); Montgomery, 810 S.W.2d at 394; Self v. State, 860 S.W.2d 261,

263 (Tex. App.—Fort Worth 1993, pet. ref’d) (holding that proof of similar acts

may be admissible when one accused of sexually assaulting a child challenges the

credibility of the complainant). The record shows that during R.H.’s cross-

examination, defense counsel asked R.H. if someone had told R.H. what to say

during trial. Defense counsel also questioned Oliver about whether R.H. had a

tendency to lie. R.F.’s testimony was relevant because it had a tendency to make

the determination that Arceneaux sexually assaulted R.H. more or less probable.

See Tex. R. Evid. 401. R.F.’s testimony was also relevant to show a common
                                        13
scheme, opportunity, and motive. See Tex. R. Evid. 404(b)(2); Montgomery, 810

S.W.2d at 387. We hold that the trial court did not abuse its discretion by

determining that R.F.’s testimony was admissible under Rule 404(b).

      Arceneaux also argues that even if R.F.’s testimony is admissible under Rule

404(b), the trial court should have excluded the testimony because it was more

prejudicial than probative. See Tex R. Evid. 403. Once a trial court determines that

extraneous offense evidence is admissible under Rule 404(b), the trial court must,

upon proper objection by the opponent of the evidence, weigh the probative value

of the evidence against its potential for unfair prejudice. Gigliobianco, 210 S.W.3d

at 641-42.

      Having held that the trial court did not abuse its discretion by finding that

R.F.’s testimony was admissible under Rule 404(b), we must now determine

whether the trial court abused its discretion by determining that the probative value

of R.F.’s testimony outweighed any unfair prejudicial impact. See Gigliobianco,

210 S.W.3d at 641-42; Rivera v. State, 269 S.W.3d 697, 706-07 (Tex. App.—

Beaumont 2008, no pet.) (conducting a Rule 403 analysis to determine whether

extraneous offense evidence is more probative than prejudicial). Our review of the

record shows that the trial court could have reasonably concluded that the State’s

need for the evidence was considerable since Arceneaux’s defensive theory

                                         14
challenged R.H.’s credibility. See generally Gigliobianco, 210 S.W.3d at 641-42.

The trial court could have reasonably concluded that R.F.’s testimony did not tend

to suggest that the jury decide the case on an improper basis or tend to confuse or

distract the jury from the primary issues. See generally id. The trial court could

have also reasonably concluded that R.F.’s testimony would not consume an

inordinate amount of time or repeat evidence already admitted. See generally id.

      We conclude that the trial court did not abuse its discretion by determining

that the probative value of R.F.’s testimony outweighed the potential prejudice to

Arceneaux. Because the trial court’s decision to admit the extraneous offense

evidence is within the zone of reasonable disagreement, we conclude that the trial

court did not abuse its discretion by overruling Arceneaux’s objections to the

extraneous offense evidence. See De La Paz, 279 S.W.3d at 343-44. We overrule

issue three. Having overruled all of Arceneaux’s issues, we affirm the trial court’s

judgment.

       AFFIRMED.

                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice
Submitted on June 23, 2015
Opinion Delivered September 28, 2016
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.
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