 Affirmed and Opinion Filed July 30, 2014




                                            S  In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-12-01018-CR

                       STEPHEN COLEMAN SHOCKLEY, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 366th Judicial District Court
                                    Collin County, Texas
                            Trial Court Cause No. 366-82727-09

                                             OPINION
                         Before Justices Moseley, O’Neill, and FitzGerald
                                  Opinion by Justice FitzGerald
       A jury convicted appellant of continuous sexual abuse of a child under fourteen years of

age and sentenced him to ninety-nine years’ imprisonment. In three issues on appeal, appellant

complains the trial court erred in admitting extraneous offense testimony. Concluding appellant’s

arguments are without merit, we affirm the trial court’s judgment.

                                            BACKGROUND
       Appellant’s niece, E.B., accused him of sexually assaulting her when she stayed with his

family on vacations and holidays. E.B. was approximately five years old when the abuse began

and fourteen when she testified at trial.

       During voir dire, defense counsel predicted that he might question E.B.’s truthfulness. He

asked the venire to articulate the circumstances under which a child might make a false

allegation of sexual abuse. After the panel identified several circumstances, defense counsel also
suggested that a child might fabricate such allegations when the child “hears about someone else

this has happened to, and . . . they add it into their own reality.” Counsel then told the jury an

anecdote about his niece fabricating things about her deceased father that could not have actually

happened.

       In opening statement, defense counsel described appellant as a twenty-year veteran,

decorated soldier, good father, and a good husband. He told the jury that E.B. had a troubled

early life, and characterized her version of events as “a strange set of facts,” because she alleged

she was molested while others were present. Counsel told the jury that the allegations had come

to light during a period of family turmoil, and hypothesized that E.B.’s father and grandmother

had suggested the abuse to her.

       E.B. testified that the abuse first occurred on a camping trip with fathers, daughters, and

nieces during the time appellant lived in Kansas. While E.B.’s cousins were sleeping on the bunk

bed above her, appellant slid his hand under E.B.’s pants and touched her “private parts.” On

other occasions, appellant would lie on the bed between E.B. and appellant’s daughter and tell

them a bedtime story. Appellant would rub E.B.’s private parts when his daughter fell asleep.

       Appellant moved to Alabama, and E.B. and her family visited him there. Appellant again

touched E.B.’s private parts under her clothes. Then, appellant moved to McKinney, Texas.

Between March and December 2008 in McKinney, the abuse happened repeatedly. Sometimes,

they would watch a movie and appellant would wait for his daughter to fall asleep and then put

his hand under E.B.’s clothes and rub her “tee tee.” On other occasions, appellant would get in

the middle of the children on the bed and read them a story. When appellant’s daughter fell

asleep appellant would rub E.B.’s private parts.

       E.B. finally disclosed the abuse when her father asked if anyone had touched her. During

a forensic and sexual assault exam, E.B. told the sexual assault nurse that appellant had touched

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her on and inside her “front part” with his hands and that it had occurred more than once at

appellant’s house in McKinney.

       On cross-examination, defense counsel asked E.B. how many times her father had asked

if someone had touched her, and she agreed it had probably been more than five times. He also

asked E.B. if her grandmother had told E.B. that she had been molested when she was a child.

E.B. testified that she did not remember any such conversation with her grandmother.

       During cross-examination of the forensic examiner, defense counsel elicited the

examiner’s agreement that E.B. had probably had a troubled early life because her birth mother

had not been stable and let E.B. wander away. As a result, her father sought and obtained

custody of her. Defense counsel also asked a series of questions about children who make false

allegations of sexual abuse, and whether a child with a troubled past would be more inclined to

fabricate such allegations. Counsel also asked whether a child sometimes gives a positive

response to a parent’s inquiry about abuse just to please the parent. The examiner agreed with

counsel that a child in a troubled environment might make false allegations of sexual abuse.

       E.B.’s grandmother also testified. She described a trip to Kansas when E.B. was almost

nine. The family was at a water park, and she observed E.B. in appellant’s lap sitting unusually

still. This gave her a “funny feeling.” Later, she saw appellant stroking E.B.’s back and buttocks

after a bath. She confronted appellant about what she had seen, and appellant expressed surprise

that his behavior might be considered inappropriate.

       When the State rested, appellant called his daughter to testify. She testified that she had

never seen her father do anything to E.B. when E.B. was at their house. Appellant’s daughter

further testified that she and E.B. would argue over the fact that she had a father who loved her

but E.B. did not.




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             After the defense rested, the State called appellant’s former foster daughter, Kristen

Chandler, to testify. Defense counsel objected to the testimony on several grounds, including

relevance, rule 403, and rule 404(b). These objections were overruled.

             Chandler was thirty years old at the time of trial. Chandler testified that she was placed in

the foster care of appellant and his former wife when she was thirteen years old. During that

time, appellant came into her bedroom while she was sleeping and touched the front part of her

genitals with his hand. The abuse progressed to oral sex and intercourse until she was sixteen or

seventeen years old. Chandler never reported the abuse because she had made friends in the area

and did not want to be removed from foster care.

                                                          DISCUSSION
             Appellant asserts the trial court erred in admitting Chandler’s extraneous offense

testimony because it was not relevant or admissible under Rule 404(b) and the prejudicial effect

of the testimony outweighed any probative value. We review a trial court’s decision to admit

evidence under Rules 404(b) and 403 for an abuse of discretion.1 “As long as the trial court’s

ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the

trial court's ruling will be upheld.”2 If the trial court’s decision is correct on any theory of law

applicable to the case, we will uphold the decision.3

Relevance and Admissibility Under Rule 404(b).

             Rule 404(b) expressly provides that evidence of other crimes, wrongs, or acts is not

admissible to prove the character of the defendant in order to show he acted in conformity

therewith.4 Rule 404(b) codifies the common law principle that a defendant should be tried only

   1
       See De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009).
   2
       Id.
   3
       Id.
   4
       See TEX. R. EVID. 404(b).



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for the offense for which he is charged and not for being a criminal generally.5 But the rule

provides a list of exceptions to the general rule of inadmissibility, and states that 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.6 The list of

exceptions providing for the admission of such evidence, however, is nonexhaustive.7

            Here, the trial court allowed the extraneous offense testimony to rebut a defensive theory

of fabrication. The court of criminal appeals has stated that rebuttal of a defensive theory is one

of the permissible purposes for which relevant evidence may be admitted under rule 404(b).8 A

defendant’s presentation of a defensive theory in an opening statement, for example, may open

the door to the admission of extraneous offense evidence to rebut the defensive theory.9

Extraneous offenses are admissible to rebut defensive theories raised by the testimony of a

defense witness during direct examination or a State’s witness during cross-examination.10

Furthermore, evidence of extraneous offenses in sexual assault cases is properly admitted under

rule 404(b) to rebut a defensive theory of retaliation or fabrication or that the defendant is “the

innocent victim of a ‘frame-up’ by the complainant or others.”11 “In such a situation, the

extraneous misconduct must be at least similar to the charged one and an instance in which the

‘frame-up’ motive does not apply.”12

     5
       Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)
(explaining defendant is generally to be tried only for the offense charged, not for any other crimes).
     6
         TEX. R. EVID. 404(b).
     7
         See Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).



         See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
     8

     9
         See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).
     10
          See Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996).
     11
          Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002); see also Bass, 270 S.W.3d at 563 & n.8.
            12
                 Wheeler, 67 S.W.3d at 888 n.22; see also Dennis v. State, 178 S.W3d 172, 179 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).



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           Appellant asserts that nothing about the extraneous offense testimony refutes the

defense’s contention that E.B. was not truthful. He further asserts that Chandler’s testimony

about “substantially different” events that occurred seventeen years ago served only to sully the

character of appellant and persuade the jury that he was acting in conformity with a

particularized character trait. We disagree.

           There is no question that the defensive theory of the case centered on the veracity of

E.B.’s allegations. Indeed, appellant describes the “sum and substance” of the case as involving

the “truthful nature of the victim’s allegations.” Counsel suggested that E.B. fabricated the

allegations, and that such fabrication resulted from a troubled past, from suggestive comments

made by her father and grandmother, and from E.B.’s need for acceptance in the family. This

defensive theory was introduced during voir dire, repeated throughout trial, and argued in closing

argument. During closing argument, defense counsel argued that it was implausible that E.B. had

been molested while appellant’s daughter was present. Counsel further argued that if someone

tells a child something repeatedly, they begin to believe it “and then it becomes not so hard to

repeat the story back.”

             Under these circumstances, we cannot conclude the evidence was not relevant.

“Relevant evidence” means evidence having 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.”13 This definition is necessarily broad.14 Even evidence that is

inadmissible character evidence may be relevant.15 Extraneous offense evidence is admissible if




   13
        TEX. R. EVID. 401.
   14
        Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on rehearing).
   15
        Id. at 386.



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it has some logical relevance aside from character conformity.16 A similar sexual assault against

another unrelated child has a tendency to show that E.B.’s allegations were less likely to have

been fabricated. Because the extraneous evidence tends to make the defensive claim of

fabrication less probable, the evidence has some relevance aside from character conformity.

          We are similarly unpersuaded by appellant’s assertion that the extraneous offense was not

sufficiently similar to the charged offense. An exacting degree of similarity is not required.17

The similarities between the two offenses must only be such that the evidence is still relevant.18

Here, the two offenses involved young girls in appellant’s home who were inappropriately

touched by appellant as they prepared for sleep or while they were asleep. This similarity is

sufficient to survive the test of relevance.

          Because the extraneous evidence was relevant and admissible to rebut the defensive

claim of fabrication, the trial court did not err in refusing to exclude it. Appellant’s first two

issues are overruled.

Probative Value and Prejudicial Effect.

          Appellant also contends the trial court erred in admitting the testimony because the

prejudicial effect outweighed the probative value. Rule 403 provides that “[a]lthough 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.”19 In conducting a Rule 403 balancing

test, courts consider factors which include, but are not limited to: (1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time

   16
        Bass, 270 S.W.3d at 557.
   17
        See Dennis, 178 S.W.3d at 179.
   18
        See Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2003, pet ref’d).
   19
        TEX. R. EVID. 403.



                                                                   –7–
needed to develop the evidence; and (4) the proponent’s need for the evidence.20 The rules of

evidence favor the admission of relevant evidence and carry a presumption that relevant

evidence is more probative than prejudicial.21 We should reverse the trial court’s balancing

determination “rarely and only after a clear abuse of discretion.”22 In addition, because rule 403

permits the exclusion of admittedly probative evidence, “it is a remedy that should be used

sparingly,” particularly in “sexual-molestation cases that must be resolved solely on the basis of

the testimony of the complainant and the defendant.”23

          The rule 403 factors weigh in favor of admission. The extraneous offense evidence was

probative to rebut appellant’s defensive theories that appellant was not the type of person who

would sexually abuse a child and that the abuse allegations were fabricated. The testimony was

also probative as to the veracity of the complainant’s testimony. Moreover, the State’s need for

such evidence was considerable. There was no physical evidence of abuse to corroborate the

complainant’s testimony, and the defense painted a picture of a troubled young girl with a motive

to fabricate her testimony. The extraneous offense evidence pertained to an incident that was

very similar to the charged offense — touching the victim’s private parts while she was asleep or

preparing for sleep. Thus, the extraneous offense evidence suggests that E.B.’s allegations did

not result from a troubled early childhood, suggestions from her grandmother, or prodding by her

father. In addition, E.B. and appellant’s foster daughter had never met. Their accounts of abuse,

however, were too similar to explain by chance or false accusation. Although the extraneous

offense testimony had the potential to impress the jury in an indelible way, there is no indication


   20
        Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
   21
        Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).
   22
        Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991) (op. on reh’g).
   23
        Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).




                                                                      –8–
the jury was confused or distracted from the main issue. The testimony was relatively brief. The

trial court gave the jury a limiting instruction. Weighing these considerations, we cannot say the

trial court abused its discretion in concluding that the probative value of the extraneous offense

evidence was not outweighed by the danger of unfair prejudice. Appellant’s third issue is

overruled.

       Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE
       Do Not Publish
       TEX. R. APP. P. 47
       121018F.U05




                                               –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

STEPHEN COLEMAN SHOCKLEY,                          On Appeal from the 366th Judicial District
Appellant                                          Court, Collin County, Texas
                                                   Trial Court Cause No. 366-82727-09.
No. 05-12-01018-CR        V.                       Opinion delivered by Justice FitzGerald.
                                                   Justices Moseley and O'Neill participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 30, 2014




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