                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-18-00443-CR
                                __________________

                    CAMERON KEITH BROWN, Appellant

                                          V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 221st District Court
                     Montgomery County, Texas
                   Trial Cause No. 17-02-01883-CR
__________________________________________________________________

                           MEMORANDUM OPINION

      Cameron Keith Brown appeals his first-degree felony conviction for the

offense of continuous sexual abuse of a child. A jury convicted Brown for the

repeated sexual assault of his thirteen-year-old daughter, M.G., between November

2016 and January 2017. 1 The jury assessed punishment at life in prison, and the trial



      1
        To protect the privacy of the victim, we refer to her and her family members
using their initials. See Tex. Const. art. I, § 30(a)(1) (granting victims of crime “the
                                             1
court sentenced Brown accordingly. In two issues, Brown challenges the trial court’s

admission of certain evidence of other sexual acts as testified to by a previous

girlfriend, T.F. Specifically, Brown asks: (1) whether the trial court abused its

discretion when it overruled his relevancy objection and allowed the State to elicit

testimony regarding “other crimes, wrongs, or acts” that were not sufficiently similar

to the charged offense; and (2) whether the trial court abused its discretion when it

overruled his objection and allowed the State to elicit testimony regarding “other

crimes, wrongs, or acts” when the probative value was clearly outweighed by the

danger of unfair prejudice. We affirm the trial court’s judgment.

                                   I. Background

      A.G., who is M.G.’s mother, and Brown had a dating relationship, which

began when A.G. was sixteen or seventeen and lasted for about a year and a half.

During that relationship, A.G. became pregnant and gave birth to M.G. in August of

2003. Brown questioned M.G.’s paternity and requested a paternity test before

M.G.’s birth, but one was not performed. A.G. raised M.G. alone, and Brown was

not a part of M.G.’s life from infancy. Around August of 2016, M.G. decided she




right to be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process[.]”)

                                          2
wanted to meet Brown and that side of her family, so A.G. reached out to Brown via

social media. Brown responded that he wanted to get to know M.G. and spoke with

M.G. by phone several times before they met in person.

      Eventually, M.G. and A.G. met Brown at a local restaurant. Following the

initial meeting, M.G. and A.G. had dinner with Brown and his parents a few times

between August 2016 and November 2016. A paternity test ultimately confirmed

Brown was M.G.’s father.

      In November 2016, Brown’s parents planned to go on a cruise and decided to

take M.G. with them. Brown was not supposed to go on the trip, but at the last

minute, his schedule cleared, and he decided to go. M.G. testified that Brown began

performing various sexual acts with her while on the cruise, including sexual

intercourse and oral sex.

      Once they returned from the cruise, A.G. had a standard possession order put

in place which gave Brown access to M.G. every Thursday and every other weekend.

Additionally, Brown began paying child support. During this time, Brown and M.G.

communicated by text and via What’s App because they could delete messages sent

through the app. M.G. testified they used What’s App for communicating about

sexual things. M.G. also testified that it was Brown’s idea to use the code word

“gummy bears” for sex.

                                        3
      A.G. testified that she noticed strange texts between M.G. and Brown in late

January of 2017 and that they used What’s App, but she did not initially read through

all the messages. However, once A.G. read the messages in more detail and

determined they were inappropriate, she contacted the police on February 2nd and

turned M.G.’s phone over to the police. A.G. testified that she questioned M.G. about

the texts and M.G. asked her what it would mean if M.G. and Brown had had sex,

but then M.G. denied that they had had sex. When M.G. learned that her mother had

given her phone to police, M.G. told her mother about the abuse.

      M.G. testified that she and Brown engaged in sexual activity anytime they

were alone together, and it happened “so many times” that she “lost count.” Brown

worked offshore and he did not have a home, so while in town, he stayed with his

parents. A recent flood made their house uninhabitable, however, so it was not

uncommon for Brown to rent rooms at hotels in November and December of 2016.

M.G. testified that the sexual encounters occurred at these hotels and in Brown’s

truck in public parking lots.

      M.G. testified that Brown never used a condom but provided her with Plan B

pills after they had sex. When asked to describe some of these sexual encounters on

direct examination, M.G. testified that Brown had her straddle the console in the

truck with her legs on either side. M.G. also described an incident where Brown

                                         4
choked her and pulled her hair. She explained that Brown did not try to strangle her,

but his hands were wrapped around her neck.

      During their opening statement, the defense addressed false allegations,

referenced Brown’s large body size, and focused on the fact that the sexual

misconduct allegedly occurred in a very small pickup truck in public places which

the defense asserted would be impossible. The defense implied that Brown lacked

the opportunity due to the public locations. Similarly, during cross-examination of

various witnesses, the defense focused on the implausibility of these occurrences,

insinuating the allegations were fabricated and challenged M.G.’s credibility. They

pointed to Brown’s large build, the fact that the truck was small, the truck’s windows

were not tinted, the incidents allegedly occurred in public parking lots, there were

no marks on M.G.’s neck and that M.G. never mentioned Brown pulling her hair or

choking her to her counselor.

      To rebut the defense’s fabrication theory and the implausibility of these

assaults occurring in the truck and in public parking lots, the choking and hair

pulling, the State sought to introduce the testimony of Brown’s former girlfriend,

T.F. During a hearing outside the jury’s presence, the defense argued that T.F.’s

testimony was not relevant in a child sex abuse case, because T.F. is an adult. The

State argued that the defense made much of the choking, hair pulling, and sex in a

                                          5
vehicle, and T.F. could testify that that is how Brown had sex and that they also had

sex in vehicles in the same position as M.G. described. The trial court noted that the

State wanted to rebut the defense’s extensive cross-examination about the small

truck and Brown’s large build.

      The defense countered that their cross was in rebuttal to the State’s case in

chief. The defense maintained its Rule 404 objection, which it understood was

overruled by the trial court. The trial court also noted upon balancing, there was a

lot of questioning about Brown being a larger man and it would be difficult for him

to have sex in a vehicle of any sort and the truck cab was small. Therefore, the trial

court allowed the evidence to come before the jury. The court stated it would limit

the State to testimony regarding sex in a car, in a public place, and the sexual

position.

      The State also explained that it wanted to get into the fact that when Brown

and T.F. had sex, he choked her and pulled her hair, because the defense “seemed to

make that some ridiculous or preposterous assertion.” The defense argued that it had

not opened the door but merely tried to impeach M.G. with prior inconsistent

statements. The trial court noted that while T.F. was an adult and the sex was

consensual, it would allow T.F.’s testimony for the limited purpose of rebutting the

defense’s theory. The court ruled the choking and hair pulling would come in along

                                          6
with the public place and similarity of the position. The defense objected based on

Texas Rules of Evidence 401, 402, 403, and 404 and asked for a contemporaneous

limiting instruction and one in the charge. 2

      T.F. testified that she and Brown began dating in September 2014. After they

broke up, they continued to have an “on and off” relationship. T.F. knew who M.G.

was from Brown, but they did not date while Brown had contact with M.G. between

August 2016 and January 2017. After Brown was charged in this case, he and T.F.

reunited, but she did not know the details of the allegations against him. T.F. testified

that Brown choked her, covered her mouth, and pulled her hair during sex, but the

choking did not always leave physical markings on her neck. T.F. said they engaged

in sex in her car, a four-door Corolla, in parking lots, on the street, and in

neighborhoods. T.F. described having sex with Brown in her vehicle in the same

position M.G. described, with her legs straddling the console. Following her

testimony, the trial court read a limiting instruction to the jury. 3


      2
        At trial, Brown additionally argued that it did not have proper notice under
Rule 404 and mentions it in passing in his appellate brief in the statement of facts;
however, Brown does not raise lack of notice as an issue for our consideration on
appeal.
      3
        The trial court instructed the jury as follows:

      You are instructed if there is any testimony before you in this case
      regarding the Defendant having committed another offense or bad act,
      other than the offense alleged in the Indictment in this case, you cannot
                                          7
         The State’s crime scene investigator testified they tested the interior of

Brown’s truck but did not detect the presence of semen. An investigator who

examined Brown’s computer testified he found Google searches for how to delete

What’s App messages. Other evidence admitted at trial included hundreds of pages

of text messages and What’s App messages between Brown and M.G., a report of

the results of the forensic computer search, various hotel receipts, photographs of

locations where M.G. alleged the assaults occurred, and photographs of Brown’s

truck.

         Other witnesses included M.G.’s forensic interviewer, M.G.’s counselor, and

the Sexual Assault Nurse Examiner (“SANE”). The SANE testified that she did not

find any evidence of trauma during her exam, but that is not uncommon as that area

heals quickly and the last assault occurred ten to fourteen days before the exam. A

defense physician expert countered her testimony and testified that based on M.G.’s




         consider said testimony for any purpose unless you find and believe
         beyond a reasonable doubt the Defendant committed such other act or
         offense or bad act, if any; and even then you may only consider the
         same in determining the motive, opportunity, intent, preparation, plan,
         knowledge, identity or absence of mistake or accident, if any, in
         connection with the offense alleged against him in the Indictment in
         this case and for no other reason.

The court’s charge to the jury included the same limiting instruction.
                                           8
allegations, he would not have expected a completely normal exam, and “there is no

objective forensic evidence to support the allegations of sexual assault in this case.”

M.G.’s counselor testified that M.G. was still in counseling at the time of trial and

had been through more sessions than most children. The counselor also outlined the

symptoms M.G. reported. The counselor testified that M.G. mentioned Brown

choking her and pulling her hair during a sex act in his truck. The forensic

interviewer described M.G.’s allegations and testified that M.G. provided sensory

details and reported that she had sex with Brown inside his truck, among other

places.

      The jury convicted Brown of continuous sexual abuse of a child and sentenced

him to life in prison. Brown timely appealed.

                              II. Standard of Review

      We review a trial court’s decision on the admission of evidence under Rule

404(b) for an abuse of discretion. See Dabney v. State, 492 S.W.3d 309, 318 (Tex.

Crim. App. 2016); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

“The trial court’s ruling on whether extraneous-offense evidence was admissible to

rebut a defensive theory should be upheld if it is within the zone of reasonable

disagreement.” Dabney, 492 S.W.3d at 318. A trial court’s ruling is generally

considered to fall within this zone if the evidence establishes “1) an extraneous

                                          9
transaction is relevant to a material, non-propensity issue, and 2) the probative value

of that evidence is not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” De La Paz, 279 S.W.3d at 344. If a

trial court’s evidentiary ruling is correct under any applicable theory of law, we do

not disturb it even if the trial judge articulates an incorrect reason for the correct

ruling. See id.

                                     III. Analysis

A. Applicable Evidentiary Rules

      Evidence having “any tendency to make a fact more or less probable than it

would be without the evidence; and [ ] the fact is of consequence in determining the

action” is relevant. Tex. R. Evid. 401. Generally, relevant evidence is admissible,

and irrelevant evidence is inadmissible. See id. 402. However, a 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.” Id. 403. Typically,

evidence of a person’s character is inadmissible to prove that a person acted in

conformance with that trait on a particular occasion. Id. 404(a)(1). However, subject

to Rule 412, a defendant in a criminal case may offer evidence of a victim’s character

trait, and if admitted, the prosecutor may offer evidence to rebut it. Id. 404(a)(3)(A).

                                          10
Likewise, evidence of other crimes, wrongs or acts is inadmissible to prove that a

person acted in conformance with that trait on a particular occasion. Id. 404(b)(1).

Although this evidence may be admissible for other purposes, “such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Id. 404(b)(2).

B. Issue One: Relevance

      In his first issue, Brown contends the trial court abused its discretion in

overruling his relevancy objection and allowing an ex-girlfriend to testify regarding

other sexual acts that were not substantially similar. Rebuttal of a defensive theory

is one of the permissible purposes for which relevant evidence may be admitted

under Rule 404(b). Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).

The Court of Criminal Appeals has explained extraneous-offense evidence is

relevant for noncharacter conformity and can be admitted to rebut a defensive theory

presented in the defense’s opening statement or during cross-examination. See Bass

v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (addressing defensive theory

presented in opening statement as opening the door to extraneous offense

information); Powell v. State, 63 S.W.3d 435, 438–40 (Tex. Crim. App. 2001)

(explaining that defense’s opening statement asserting he lacked opportunity to

molest the complainant under the charged circumstances opened the door to

                                         11
admission of extraneous-offense evidence that defendant molested others under

almost identical circumstances to rebut the defense’s lack of opportunity defensive

theory); Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1996) (op. on

reh’g) (noting admissibility of extraneous offenses to rebut defensive theories raised

by State’s witness during cross-examination).

      In support of his argument that other acts T.F. described were not substantially

similar, Brown focuses on the fact that T.F. is an adult, and the sexual acts she

described did not involve a crime but rather consensual conduct. There is no

requirement that evidence be of a criminal offense or even misconduct to fall within

Rule 404(b)’s purview. See Bishop v. State, 869 S.W.2d 342, 344–45 (Tex. Crim.

App. 1993) (explaining evidence of defendant’s sexual proclivities and practices

qualified as “other acts” under Rule 404(b)). Evidence of extraneous offenses or

other acts may be admitted to rebut a defensive theory that he is the innocent victim

of a “‘frame-up’ by the complainant or others.” Wheeler v. State, 67 S.W.3d 879,

887 n.22 (Tex. Crim. App. 2002); Dennis v. State, 178 S.W.3d 172, 177 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d).

      We disagree with Brown’s argument that the evidence was irrelevant because

the extraneous acts were not substantially similar. In cases where the evidence is

admitted to rebut a defensive theory, the same exacting standard of similarity of

                                         12
evidence admitted to show the defendant’s “system” or “modus operandi” is not

required. 4 See Dennis, 178 S.W.3d at 178–79. The trial court explained that T.F.’s

testimony was admissible for the purpose of rebutting a defensive theory.

      Brown challenged M.G.’s credibility regarding claims that he choked her and

pulled her hair during a sexual encounter. The defense further challenged her

credibility regarding allegations that Brown assaulted her in his truck, specifically

questioning her about how large Brown was, how small his truck was, the fact that

the windows were not tinted, and that these incidents allegedly occurred in public

parking lots. The defense made M.G.’s credibility a key issue in the case through its

opening statement and extensive cross-examination of multiple witnesses

questioning the plausibility of her allegations. Although Brown’s ex-girlfriend, T.F.,

testified regarding sexual acts she and Brown engaged in as adults, she described

Brown’s propensity to pull her hair and choke her during sex. Additionally, T.F.

testified that Brown had sex with her on multiple occasions inside her small vehicle

in parking lots and in a position almost identical to the one M.G. described.

      The trial court noted that despite the fact that T.F. was an adult and the sex

was consensual, she would allow the testimony for the limited purpose of rebutting



      4
        The trial court noted that the choking and hair pulling “seem[ed] to be kind
of a signature.”
                                          13
the cross-examination. The trial court could have reasonably concluded that T.F.’s

testimony was admissible to rebut Brown’s defensive theory that M.G. lacked

credibility, fabricated the allegations, and that Brown lacked an opportunity to

commit the abuse, and thus the evidence had relevance apart from its tendency to

show Brown’s character and that Brown acted in conformity therewith. See Tex. R.

Evid. 404(b); Montgomery v. State; 810 S.W.2d 372, 377 (Tex. Crim. App. 1990)

(op. on reh’g); Self v. State, 860 S.W.2d 261, 263 (Tex. App.—Fort Worth 1993,

pet. ref’d) (explaining that when a defendant accused of sexually assaulting a child

challenges the child’s credibility, proof of similar acts may be admissible under

404(b) to rebut the credibility challenge). Based on the record in this case, the trial

court could have reasonably concluded that the defense’s opening statement and

cross-examination opened the door to this evidence. See Bass, 270 S.W.3d at 563;

Ransom, 920 S.W.2d at 301. We overrule Brown’s first issue.

C. Issue Two: Probative Value Substantially Outweighed by Prejudice

      In his second issue, Brown argues that even if relevant, the trial court erred by

allowing T.F.’s testimony because its probative value was substantially outweighed

by the danger of unfair prejudice. Determining evidence may be relevant does not

end our inquiry, and we must now determine whether the probative value of the

evidence was substantially outweighed by the danger of unfair prejudice. See

                                          14
Montgomery, 810 S.W.2d at 377–80; see also Tex. R. Evid. 403. When conducting

a 403 analysis, a court must balance:

      (1) the inherent probative force of the proffered item of evidence along
      with (2) the proponent’s need for that evidence against (3) any tendency
      of the evidence to suggest decision on an improper basis, (4) any
      tendency of the evidence to confuse or distract the jury from the main
      issues, (5) 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 (6) the likelihood that 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). “Rule 403

favors the admission of relevant evidence” carrying with it the presumption that

relevant evidence is more probative than prejudicial. Davis v. State, 329 S.W.3d 798,

806 (Tex. Crim. App. 2010). Rule 403 “envisions exclusion of evidence only when

there is a ‘clear disparity between the degree of prejudice of the offered evidence

and its probative value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App.

2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001); Joiner

v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (emphasis added)).

      T.F.’s testimony that Brown consensually engaged in sex with her in a

position nearly identical to that described by M.G., in a small car in numerous public

places, including parking lots, directly rebutted the defensive theories that Brown

lacked the opportunity to engage in such activity and that M.G.’s claims were

                                         15
implausible or lacked credibility. Therefore, such evidence was highly probative in

rebutting Brown’s defensive theory that it was implausible for him to engage in a

similar sexual encounter in a small vehicle because of his large build and in rebutting

a lack of opportunity because of the public locations. See e.g., Buxton v. State, 526

S.W.3d 666, 690–91 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (noting

extraneous evidence that defendant abused another child alone and in the presence

of others rebuts both defensive theories). While there may have been some chance

that the evidence would impress the jury in some irrational way, the fact that T.F.’s

testimony involved consensual acts and the trial court limited the scope of the

testimony reduced this potential. The record reveals that T.F.’s testimony did not

require an inordinate amount of time to develop. 5 Finally, the State’s need for the

evidence was great, as it directly rebutted several defensive theories that no other

evidence could, including M.G.’s lack of credibility, Brown’s lack of opportunity,

and the implausibility of the locations and manner of the assaults. On balance, we

conclude there is not a “clear disparity” between the prejudicial impact of the

evidence and its probative value. See Hammer, 296 S.W.3d at 568. The trial court’s

admission of T.F.’s testimony fell within the zone of reasonable disagreement and



      5
       The record shows T.F.’s testimony lasted approximately twelve minutes and
spanned less than ten pages in the transcript.
                                         16
therefore, did not constitute an abuse of discretion. See Wheeler, 67 S.W.3d at 889;

McCulloch v. State, 39 S.W.3d 678, 681–82 (Tex. App.—Beaumont 2001, no pet.)

(weighing 403 factors and concluding evidence of other “acts” was relevant and

probative value not substantially outweighed by danger of unfair prejudice).

                                  IV. Conclusion

      We hold the trial court did not abuse its discretion in determining the evidence

of other “acts” was relevant and that the danger of unfair prejudice did not

substantially outweigh the probative value in this case. We affirm the trial court’s

judgment.

      AFFIRMED.

                                                    _________________________
                                                         CHARLES KREGER
                                                              Justice

Submitted on February 3, 2020
Opinion Delivered April 22, 2020
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




                                         17
