









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-06-00018-CR
______________________________


BOYCE DEE PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 102nd Judicial District Court
Red River County, Texas
Trial Court No. CR00032





Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

	Boyce Dee Phillips was found guilty by a jury for the aggravated sexual assault of
his stepgranddaughter, L.B.  See Tex. Penal Code Ann. § 22.021. (1)  The jury also
assessed punishment at life imprisonment, and Phillips was sentenced accordingly. 
Phillips now appeals, raising two formal points of error:  1) that the trial court abused its
discretion by admitting testimony of prior instances of past sexual abuse of other young
relatives and 2) that the State engaged in improper jury argument.  Although not
designated as a separate point of error, Phillips also complains of testimony elicited by the
State in violation of an order granting his motion in limine.  We overrule Phillips'
contentions and affirm the judgment.
I.	FACTUAL BACKGROUND
	The evidence at trial showed that L.B., stepgranddaughter to Phillips, was a ten-year-old mentally-challenged girl.  After attending a birthday party at Phillips' house, L.B.
returned to her home upset, shaking, and crying and complained to her mother, Diane
Durst, that Phillips touched her privates.  Diane doubted L.B.'s allegation at first, but later
became convinced when her husband, L.B.'s stepfather, confessed and pled guilty to
charges that he, too, sexually assaulted L.B. 
II.	ADMISSION OF EVIDENCE
	A.	Testimony at Issue
	Johnny Sue Payne testified that her mother and Phillips met when Payne was about
six years old and that Phillips began to abuse her at about the same time.  She explained
that Phillips would place his penis between her legs and rub it back and forth.  Phillips
would also put his fingers "on and around [her] bottom" and touch her breasts.  The abuse
lasted for several years.  Payne's older sister, Christy Hensley, testified that she was ten
years old when her mother met and married Phillips.  She detailed the abuse by Phillips,
explaining that, when Hensley was eleven years old, Phillips began to use his fingers to
penetrate her and that he did so several times over several years.  Hensley added that
Phillips threatened to "slice" her throat if she told anyone. 
	After the jury returned its guilty verdict, Gerald Durst, Phillips' adult son, testified that
Phillips also sexually assaulted him throughout Durst's childhood.  Durst admitted that he,
too, had sexually assaulted L.B.  Through cross-examination of Durst, Phillips raised the
issue that Phillips, too, had been sexually assaulted as a child. (2) 
	In his pretrial motion to suppress the evidence of "extraneous sexual conduct,"
Phillips challenged the admissibility of the testimony from his son and former
stepdaughters on the grounds that the prejudice of such testimony outweighs its probative
value and that such "propensity evidence" infringes on Phillips' presumption of innocence. (3) 
We construe Phillips' contention at trial as one challenging the admission of evidence
under Rules 404(b) and 403 of the Texas Rules of Evidence.
	B.	Standard of Review
	We review a trial court's decision to admit evidence under Rule 404(b) under an
abuse of discretion standard.  See Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App.
2005). 
	C.	Rule 404(b)
	As a general rule, to prevent an accused from being prosecuted for some collateral
crime or misconduct, the State may not introduce evidence of bad acts similar to the
offense charged.  Roberts v. State, 29 S.W.3d 596, 600-01 (Tex. App.--Houston [1st
Dist.] 2000, pet. ref'd).  Rule 404 provides that "[e]vidence of other crimes, wrongs or acts
is not admissible to prove the character of a person in order to show action in conformity
therewith."  Tex. R. Evid. 404(b).  However, evidence of extraneous acts and misconduct
is admissible when it is relevant to a noncharacter conformity "fact of consequence" in a
case, such as establishing motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or rebutting a defensive theory.  Id.; Robbins v.
State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002).
		1.	Intent as an Issue
	We begin by reiterating that, in order to prove Phillips was guilty of sexually
assaulting L.B., the State had to show Phillips acted "knowingly or intentionally."  See Tex.
Penal Code Ann. § 22.021(a)(1)(B).  In certain circumstances, both intent and knowledge
can be inferred from the act itself.  See Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim.
App. [Panel Op.] 1982); Dillon v. State, 574 S.W.2d 92, 95 (Tex. Crim. App. [Panel Op.]
1978).  In such circumstances, extraneous acts are inadmissible to show intent.  Therefore,
when the State's direct evidence shows the intent or knowledge element of the crime, and
that evidence is uncontradicted by the defendant, or not undermined by cross-examination
of the State's witnesses, evidence of extraneous offenses is inadmissible.  See Rankin v.
State, 974 S.W.2d 707, 719 (Tex. Crim. App. 1996) (op. on reh'g).
	In the instant case, however, Phillips both contradicted the State's evidence and
undermined the intent element through cross-examination.  Phillips called L.B. as a witness
and, during direct examination, advanced a theory suggesting the lack of intent:
		Q	[by counsel for Phillips]  Were y'all--were you ever--was he ever
tickling you and wrestling with you on the couch?
 
		A	[L.B]  I don't know.
 
		Q	You don't know?  You can't remember?
 
		A	Unh-unh.

Later, still during direct examination of L.B., Phillips again raised the idea that any touching
may have resulted from playing together:
		Q	[by counsel for Phillips]  And were you playing with him?
 
		A	[L.B]  Yes.
 
		Q 	Do you remember how you were playing with him?  What were
you playing.
 
		A	First we was [sic] playing cards.  Then, house.
 
		Q	How did you play house?
 
		A	I forgot.
 
		Q	Okay.  At any time did he ever--do you remember not
necessarily that day, if you can't remember, on any other days did he like to
tickle you?

		A	No.
 
		Q	Or wrestle with you?
 
		A	No.
 
		Q	No, you can't remember, or no, he didn't?
 
		A	Unh-unh.

L.B.'s responses to defense counsel's multifarious questioning do not consistently show
which portion of the question she is answering, making her testimony understandably
unclear.  Nevertheless, through this direct examination, and elsewhere in the record,
Phillips suggested that he lacked the requisite intent to commit the offense, even if he did
touch L.B.
	We see analogous facts in Brown v. State, 96 S.W.3d 508 (Tex. App.--Austin 2002,
no pet.).  In that case, the State presented three witnesses who described similar
encounters with Brown.  Brown, 96 S.W.3d at 513.  On all occasions, Brown had picked
up the women in similar neighborhoods, taken them to remote areas, sexually assaulted
them, and left them stranded with little or no clothing.  Id.  There were also similarities in
the women's lifestyles, such as histories of drug abuse and crime, to suggest they were
specifically selected as victims.  Id.  Although the court acknowledged there were
dissimilarities between the charged and extraneous offenses with respect to the location
of the assault and the nature of the sexual act, those differences did not significantly lessen
the relevance of the extraneous acts with respect to the issue of Brown's culpable mental
state.  Id.  The trial court could have reasonably concluded that the testimony tended to
make the existence of Brown's guilty intent more likely than it otherwise would have been. 
Id.
	The Austin court explained the rationale:
		When the defendant's intent to commit the offense charged is at
issue, the relevance of an extraneous offense derives from the doctrine of
chances-the instinctive recognition of that logical process which eliminates
the element of innocent intent by multiplying instances of the same result
until it is perceived that this element cannot explain them all.

Id. at 512 (citing Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987); Wiggins v.
State, 778 S.W.2d 877, 885 (Tex. App.--Dallas 1989, pet. ref'd)).
	Here, the fact that Phillips suggested he was only wrestling with or tickling L.B.
brings into issue his intent.  The evidence of prior instances of sexual conduct with
children, then, becomes relevant.  The trial court did not abuse its discretion by admitting
the evidence of prior acts of sexual misconduct with other children. 
		2.	Defensive Theory of Retaliation by Mother
	Through cross-examination of the State's witnesses, Phillips also advanced his
theory that L.B. fabricated the allegations against him at the urging of her mother, Diane. (4) 
Phillips suggested that Diane was angry at him and encouraged L.B. to make false
allegations against him in retaliation.  Diane denied that she encouraged L.B. to make
these allegations. 
	The Tyler Court of Appeals visited this issue in Matthews v. State, 152 S.W.3d 723,
731 (Tex. App.--Tyler 2004, no pet.).  There, Matthews appealed his convictions for one
count of aggravated sexual assault of a child and ten counts of indecency with a child.  The
underlying defensive theory in the case was that 
	the allegations against him were concocted to extort the proceeds of an
insurance check from him, or otherwise, as a result of lack of parental
attention, anger, resentment, or general exposure to familial dysfunction. 

Id.  The Tyler court concluded the trial court properly refused to sever the various charges
against Matthews because, even if the cases were tried separately, it is probable the
testimony of the other victims would have been admissible to refute the defensive theory
that the complainants concocted the story for a specific purpose.  See id.; Salazar v. State,
127 S.W.3d 355, 365 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd); Castoreno v.
State, 932 S.W.2d 597, 600 (Tex. App.--San Antonio 1996, pet. ref'd).
	Here, similarly, the extraneous acts against the other children are relevant to rebut
the defensive theory that L.B. fabricated the allegations to satisfy her mother's desire for
retaliation against Phillips. (5)  Such relevance serves as an alternative basis for the trial
court's admission of the evidence.
 	3.	Defensive Theory of Mother as Sexual Deviant
	Phillips also suggested that Diane, L.B.'s mother, was the sexual predator and used
L.B. as a lure.  In opening arguments and during cross-examination, defense counsel
emphasized that Diane created a pattern of these allegations and that L.B. was forced to
live in an overtly sexual environment.  Through hypothetical questions posed during cross-examination of the State's licensed sex offender therapist, and the therapist's qualified
answers to those questions, Phillips intimated that Diane used these allegations as a
"vicious" means of getting rid of Phillips as her lover after she used L.B. to attract him. 
	While Diane generally denied that she urged L.B. to fabricate the allegations against
Phillips, the State was permitted to rely on evidence of prior sexual misconduct by Phillips
to rebut the specific theory that Diane was the sexual predator and that these allegations
stemmed from her own deviant sexual behavior.  The testimony of Payne and Hensley also
served to rebut this defensive theory and, therefore, was properly admitted.
	D.	Rule 403
	Evidence admitted as relevant under Rule 404(b) may nonetheless be excluded
under Rule 403 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; Mozon v. State,
991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999).  Evidence is unfairly prejudicial when it
has an undue tendency to suggest that a decision be made on an improper basis,
commonly, but not necessarily, an emotional one.  Mozon, 991 S.W.2d at 847 n.7. 
	In conducting a Rule 403 balancing test, a trial court should consider the following
factors:  (1) the probative value of the evidence; (2) the potential of the evidence to impress
the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs
to develop the evidence; and (4) the proponent's need for the evidence.  Wyatt v. State,
23 S.W.3d 18, 26 (Tex. Crim. App. 2000).  The Texas Court of Criminal Appeals has held
that the balancing test under Rule 403 weighs in favor of the admission of relevant
evidence and carries a presumption that relevant evidence will be more probative than
prejudicial.  See Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003); Williams
v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).  With these principles in mind, we
now examine the admissibility of the evidence at issue here under Rule 403. 
		1.	Probative Value
	Regarding the first factor, and as discussed earlier in our Rule 404(b) analysis,
evidence of the extraneous offenses was probative to rebut the defensive theories that the
allegations were fabricated at the urging of Diane.  See Powell v. State, 63 S.W.3d 435,
438 (Tex. Crim. App. 2001) (concluding State may offer evidence of extraneous offense
to rebut defense of "lack of opportunity"); Waddell v. State, 873 S.W.2d 130, 136 (Tex.
App.--Beaumont 1994, pet. ref'd) (concluding extraneous acts were logical and necessary
rebuttal of defensive theory of fabrication).  Additionally, the evidence undermined the
defensive theory that Phillips touched L.B. while Phillips tickled or wrestled with her.  
 	2.	Potential Impact on Jury
	As to the second factor, we find the extraneous offense evidence has the potential
to impress the jury in some irrational, yet indelible way.  Evidence that Phillips sexually
assaulted his own son and two young stepdaughters could likely have an emotional impact
on a jury.  The fact that the evidence, too, demonstrates that Phillips has been a continuing
offender for years would also likely impact the jury.  This factor lends itself to exclusion of
the evidence.
 	3.	Time Necessary for Development
	The third factor weighs in favor of the State.  Payne's direct testimony consisted of
approximately five pages of the six-volume reporter's record.  Similarly, Hensley's direct
examination took approximately six pages of the reporter's record.  Phillips conducted only
very limited cross-examination of Payne and did not cross-examine Hensley.  The limited
time needed to develop the testimony of the two sisters lends itself to the admission of the
evidence.
		4.	Need for Evidence
	The fourth factor also weighs in favor of the State.  The State presented no other
witnesses to dispute the suggestion that Phillips inadvertently touched L.B. as the two
played together or that L.B.'s mother had encouraged L.B. to fabricate the allegations.  We
point out that the State chose not to call L.B. as a witness, that Phillips did so, and that
L.B.'s testimony, even if read to favor the State's allegations, is confusing and disjointed. 
With only the reluctant and, perhaps, confused testimony from L.B. on which to rely as
rebuttal, the State's need for the evidence of prior acts was rather high.  
	Based on our evaluation of the factors to consider with respect to Rule 403, we
conclude the trial court did not abuse its discretion in concluding that the danger of unfair
prejudice did not substantially outweigh the probative value of this evidence.  We overrule
this contention.
III.	JURY ARGUMENT
	A.	The Argument at Issue
	Phillips complains that, in its argument to the jury at the end of the guilt/innocence
stage, the State improperly referred to past and present sexual abuse victims.  He also
contends there was error in the State's argument at the punishment phase when it referred
to Payne and Hensley's brother as a nontestifying victim of abuse, and when it referred to
selling drugs. 
 B.	Preservation of Error
	Rule 33.1 of the Rules of Appellate Procedure dictates that an appellant make a
timely objection, stating the specific grounds for the ruling sought, and receive a ruling from
the trial court on that objection in order to preserve error for appellate review.  See Tex. R.
App. P. 33.1.  We point out that even constitutional errors, such as due process complaints,
are waived if not raised first in the trial court.  See Jimenez v. State, 32 S.W.3d 233, 235
(Tex. Crim. App. 2000).  To preserve jury argument error in a criminal case, a defendant
must (1) object to the argument, (2) if the objection is sustained, move for an instruction
to disregard, and (3) if the instruction is given, move for a mistrial.  Cook v. State, 858
S.W.2d 467, 473 (Tex. Crim. App. 1993).  Here, Phillips did not object to any of the State's
arguments of which he now complains.  He, therefore, did not preserve his contention
regarding improper jury argument for our review.  We overrule this point of error.
IV.	IMPROPER TESTIMONY BY PAYNE
	Phillips also complains that the following exchange between the State and its
witness, Payne, violated the trial court's order granting his motion in limine:
		Q	[By the State]  Were you the only one this was happening to?
 
				[Counsel for Phillips]:  Objection.  It would be
hearsay unless she has some direct testimony.
 
				THE COURT:  I'll sustain the objection.
 
		Q	[By the State]  And you have a brother, is that right, that's
younger than you?
 
		A	[Witness Payne]  Yes.
 
		Q	And a sister that's older, and your sister is here to testify today? 
Is that right?
 
		A	Yes.
 
		Q	And your brother, where is he now?

		A	He is in Charlottesville.
 
		Q	. . . and how does he get on with his life now?
 
		A	He's doing okay.  He has three kids of his own, and he is--he
chose to put it out of his mind, and he said he wasn't strong enough to do
anything about it.

		Q	Didn't feel strong enough to come here and testify?
 
		A	Right.
 
		Q	Okay.
 
		A	He was only a baby when it started.  He was a year old when
mom . . .
 
				[Counsel for Phillips]:  Objection.  This is hearsay.
				THE COURT:  All right.
	Phillips complains that the preceding exchange "injected new and harmful facts that
were not cured by the Court's instruction."  We note, however, that the trial court did
sustain defense counsel's first hearsay objection and that counsel failed to obtain a
definitive ruling on his second hearsay objection.  Further, Phillips did not request an
instruction to disregard the testimony; nor did the trial court issue such an instruction on
its own initiative.  The trial court granted Phillips the relief he requested and did not make
an adverse ruling from which Phillips can appeal.
V.	CONCLUSION
	Because the testimony from Payne and Hensley detailing prior abuse by Phillips
was probative of the challenged issue of intent, and because such testimony also served
to rebut at least two defensive theories urged by Phillips, the trial court properly admitted
the testimony.  Considering the probative value of this evidence, the short amount of time
to develop the testimony, and the State's need for this evidence, the trial court properly
concluded that the testimony's probative value was not substantially outweighed by its
prejudicial effect.  Phillips failed to preserve error with respect to his contentions of
improper jury argument.  The trial court granted Phillips the relief he requested regarding
specified testimony from Payne.  
	Accordingly, we overrule Phillips' contentions of error and affirm the judgment.

						Donald R. Ross
						Justice

Date Submitted:	August 29, 2006
Date Decided:	December 14, 2006

Do Not Publish
1. A person commits aggravated sexual assault if he or she "intentionally and
knowingly causes the penetration of the anus or sexual organ of a child by any means" and
"the victim is younger than 14 years of age."  Tex. Penal Code Ann. § 22.021(a)(1)(B),
(2)(B) (Vernon Supp. 2006).
2. Durst testified in the punishment phase of trial.  Therefore, Article 37.07 applied to
the admission of his testimony and, in pertinent part, provides for the admission of "any
matter the court deems relevant to sentencing."  See Tex. Code Crim. Proc. Ann. art.
37.07, § 3(a)(1) (Vernon 2006); Enlow v. State, 46 S.W.3d 340, 343 n.1 (Tex.
App.--Texarkana 2001, pet. ref'd).  This includes, but is not limited to:  (1) the prior criminal
record of the defendant; (2) the defendant's general reputation; (3) the defendant's
character; (4) an opinion regarding the defendant's character; (5) the circumstances of the
offense being tried; and (6) notwithstanding Texas Rules of Evidence 404 and 405, any
other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt
by evidence to have been committed by the defendant or for which the defendant could be
held criminally responsible, regardless of whether the defendant has previously been
charged with or finally convicted of the crime or act.  See Tex. Code Crim. Proc. Ann. art.
37.07, § 3(a)(1).
	Phillips did not raise the issue of admission in terms of Article 37.07 in his motion
to suppress.  Nor did he object at trial to Durst's testimony during the punishment phase. 
Likewise, Phillips did not brief the Article 37.07 issue to this Court.  Because we conclude
Phillips did not preserve error with respect to the admission of Durst's testimony at
punishment, and because the inquiry under Rule 404 is specifically deemed irrelevant to
the inquiry under Article 37.07, we need not address the admissibility of Durst's testimony
during the punishment phase of trial.  See Tex. R. App. P. 33.1.
3. The motion to suppress preserved error as to the admission of the evidence on
these grounds.  See Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004) (holding
that "[w]hen a court overrules a pretrial motion to suppress evidence, the defendant need
not subsequently object to the admission of the same evidence at trial to preserve error")
(citing Ebarb v. State, 598 S.W.2d 842 (Tex. Crim. App. 1980)).
4. In his brief, Phillips emphasizes the length of time that had passed since the
alleged prior misconduct.  We first point out that there is no per se rule regarding when an
offense is too remote in time to be introduced into evidence.  See Templin v. State, 711
S.W.2d 30, 34 (Tex. Crim. App. 1986); Corley v. State, 987 S.W.2d 615, 620 (Tex.
App.--Austin 1999, no pet.).  But see Bachhofer v. State, 633 S.W.2d 869, 872 (Tex. Crim.
App. [Panel Op.] 1982) (holding an extraneous offense committed four years and four
months before instant offense too remote); Robledo v. State, 480 S.W.2d 401 (Tex. Crim.
App. 1972) (holding prior conviction for nearly identical offense which occurred four years
and three months too remote to be probative of intent).  While remoteness is a factor
regarding the admission of the evidence, it is not a chief factor and must be considered
among all other relevant factors.  See Templin, 711 S.W.2d at 34; Corley, 987 S.W.2d at
620-21. 
	The Texas Court of Criminal Appeals has effectively limited the application of
Robledo to instances where only intent is at issue.  See Templin, 711 S.W.2d at 34 & n.2. 
Here, Phillips challenges not only intent, but also advances specific defensive theories that
might explain L.B.'s allegations.  Further, as sister courts have pointed out, the holdings
in Bachhofer and Robledo came under common-law principles "which tended to favor
exclusion of evidence."  See Corley, 987 S.W.2d at 621 (citing Montgomery v. State, 810
S.W.2d 372, 375 (Tex. Crim. App. 1990)); see also Prince v. State, 192 S.W.3d 49, 55
(Tex. App.--Houston [14th Dist.] 2006, pet. ref'd); Lavarry v. State, 936 S.W.2d 690, 695
(Tex. App.--Dallas 1996, pet. dism'd).
5. We recognize that the mere challenge to the credibility of the complainant through
argument or cross-examination does not open the door to extraneous offenses.  However,
because the defensive issues here go beyond a mere challenge and into motivations and
alternative theories, we distinguish these circumstances from those in which a defendant
merely challenges the credibility of a complainant.  See DeLeon v. State, 77 S.W.3d 300,
314 (Tex. App.--Austin 2001, pet. ref'd).  Rather than simply questioning L.B.'s ability or
motivation to tell the truth, Phillips specifically suggested that Diane emotionally
manipulated her developmentally-challenged daughter into making allegations against
Phillips as either retaliation or as a part of the mother's scheme to use her daughter as a
lure in Diane's own sexual deviance.

on
[14th Dist.] 1998, pet. denied), asserted at oral argument that Rule 3.8 could not provide the standard
of care because surface owners are not, for any purposes, among the class intended to be protected
by Railroad Commission regulations.  Sendero grossly misstated the Hicks holding and applicability
to this case.  See id. at 95; see also Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 305 (Tex.
App.--Houston [1st Dist.] 2005, no pet.) ("Rule 8 [3.8] clearly affords protection to the class of
persons to which appellants belong, i.e., surface owners, against the hazard involved, i.e., pollution
of surface and subsurface water."). 
7. Also, it should be noted that the oil and gas lessee's estate is the dominant estate and the
lessee has an implied grant, absent an express provision for payment, of free use of such part and so
much of the premises as is reasonably necessary to effectuate the purposes of the lease, having due
regard for the rights of the owner of the surface estate.  Humble Oil & Ref. Co. v. Williams, 420
S.W.2d 133 (Tex. 1967); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); Warren Petroleum
Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362 (1957); Warren Petroleum Corp. v. Martin, 153
Tex. 465, 271 S.W.2d 410 (1954).  The rights implied from the grant are implied by law in all
conveyances of the mineral estate and, absent an express limitation thereon, are not to be altered by
evidence that the parties to a particular instrument of conveyance did not intend the legal
consequences of the grant.  Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 811 (Tex. 1972).  The oil and
gas lease under which Sendero was operating provided for the payment of surface damages only as
such damages would be inflicted on crops and growing timber.

