Opinion issued March 13, 2014.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00235-CR
                           ———————————
                  RONALD EUGENE DIBELLO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Case No. 1263067


                                 OPINION
      A jury convicted Ronald Dibello of indecency with a child and assessed

punishment at three years’ confinement. On appeal, Dibello contends that the trial

court abused its discretion in admitting a videotaped interview of B.C., the

complainant. Finding no error, we affirm.
                                   Background

      In 2008, B.C. and his mother, Christy Cushman, moved from Harris County,

Texas to Tennessee. In January 2010, B.C., an eleven–year–old child who lived in

Tennessee at the time, complained to his mother, Christy Cushman, that his penis

hurt. Christy was concerned because B.C. had complained to her of similar pain

several times. She explained to B.C. that it was inappropriate for anyone to touch

his penis and told him that she had been inappropriately touched when she was a

young girl. Ten minutes later, B.C. called for Christy. B.C. told her that Dibello,

his step–grandfather, had touched his penis during a visit to Dibello’s residence in

Harris County, Texas.

      The following month, B.C. participated in a videotaped interview with a

children’s services agency in Tennessee. In the interview, B.C. stated that (1) B.C.

had seen Dibello ejaculate; (2) Dibello had touched B.C.’s penis; (3) Dibello had

placed B.C.’s hand on Dibello’s penis; (4) Dibello had tried to perform anal sex on

B.C.; and (5) Dibello had asked B.C. to perform anal sex on Dibello. In May

2010, B.C. filed a complaint in Harris County, Texas. In August 2010, a Harris

County grand jury indicted Dibello for indecency with a child.

      Course of proceedings

      At trial, B.C. testified that Dibello had committed the five acts that he had

described in his earlier interview. During cross–examination, Dibello’s counsel


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stated, “So, we know what your counselors have told you and what the D.A.’s have

told you and the police have told you . . . I want to know what you know.” Over

Dibello’s hearsay objection, the State proffered B.C.’s videotaped interview as a

prior consistent statement under Texas Rule of Evidence 801(e)(1)(B). During

closing argument, Dibello’s counsel argued, “[O]bviously [B.C.] didn’t know what

happened to him except for what was put in his mind.” Dibello’s counsel also

argued that B.C. changed his story between the interview and the trial.

                                    Discussion

      Dibello contends that the trial court abused its discretion in admitting the

videotaped interview of B.C., asserting that the recorded interview does not fit

within the prior–consistent–statement hearsay exception.             See TEX. R.

EVID. 801(e)(1)(B).     Dibello complains that (1) B.C.’s earlier interview is

inconsistent with his testimony at trial; and (2) B.C.’s interview does not predate

improper influences on B.C., and thus the statement is unreliable as a prior

consistent statement.

      Standard of Review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,


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268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its

discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d

531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it

was correct on any theory of law applicable to the case. De La Paz v. State, 279

S.W.3d 336, 344 (Tex. Crim. App. 2009).

      Consistency

      A prior statement may be admitted if it 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). Both in the interview and at trial, B.C. testified consistently to

the elements of the offense. But Dibello contends that B.C. provided details in his

testimony that he did not mention in his earlier interview, and thus the trial court

erred in admitting it. Dibello’s argument is without merit. A prior consistent

statement need only be “generally consistent” with the declarant’s testimony.

Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007); see also

Williams v. State, No. 14-11-01068-CR, 2013 WL 84903, at *7 (Tex. App.—

Houston [14th Dist.] Jan. 8, 2013, pet. ref’d) (mem. op., not designated for

publication) (holding there was no inconsistency where victim’s testimony

described forcible sexual contact whereas victim’s prior journal entries merely

described defendant trying to get victim to perform sex act). Because B.C.’s


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earlier statement did not differ in relevant substance with his in–court testimony,

we hold that the statement was generally consistent and thus could rebut a charge

of recent fabrication. See Hammons, 239 S.W.3d at 804.

      Timing

      In his cross–examination of B.C. at trial, Dibello’s counsel suggested that

prosecutors and police officers had improperly influenced or suggested B.C.’s

testimony. B.C.’s Tennessee interview occurred in February 2010 in Tennessee.

In May 2010, B.C. filed a complaint in Harris County, Texas, and in August 2010,

a Harris County grand jury indicted Dibello for indecency with a child. B.C.’s

interview   thus   predates   the   prosecution’s   alleged   improper    influences.

Additionally, during closing argument, Dibello’s counsel claimed that, in the

interview, B.C. stated that Dibello ejaculated onto a mattress, whereas at trial, B.C.

testified that Dibello ejaculated onto his own leg. Dibello’s counsel argued that

“adults” told B.C. to change this detail because, otherwise, the State would be

forced to find and recover Dibello’s DNA from the mattress to prove its case. See

Hammons, 239 S.W.3d at 808 (holding that appellate court may consider closing

argument in determining whether there was implied charge of improper influence).

      Dibello observes that B.C.’s interview does not predate each of the improper

influences that Dibello’s counsel suggested in cross–examination. For instance,

Dibello’s counsel suggested that, before the interview, Christy improperly


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influenced B.C. by telling B.C. that she was inappropriately touched when she was

a young girl. A prior consistent statement, however, need not predate each alleged

improper influence; it need only predate one alleged improper influence. Dowthitt

v. State, 931 S.W.2d 244, 264 (Tex. Crim. App. 1996) (“The rule requires merely

that the witness’ prior consistent statement be offered “to rebut an express or

implied charge against him or recent fabrication or improper influence or

motive.”). We hold that B.C.’s Tennessee interview predated at least one of the

improper influences alleged by Dibello’s counsel.

                                    Conclusion

      Because B.C.’s interview was consistent with his trial testimony, and it

predated an alleged improper influence on B.C.’s testimony, the trial court did not

abuse its discretion in admitting the statement into evidence to rebut an allegation

of recent fabrication. Accordingly, we affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish.



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