                                    NO. 07-08-0101-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    JUNE 30, 2009
                           ______________________________

                      GEORGE DEMPSY NORWOOD, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

                FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

            NO. 06-2835; HONORABLE CARTER T. SCHILDKNECHT, JUDGE
                         _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, George Dempsy Norwood, appeals the trial court’s judgment convicting

him of indecency with a child and subsequently sentencing him to seven years

incarceration in the Institutional Division of the Texas Department of Criminal Justice.1 It

is from this judgment and sentence that appellant appeals. We affirm.




       1
           See TEX . PENAL CODE ANN . § 21.11(a)(1) (Vernon 2003).
                           Factual and Procedural Background


       Appellant does not contest the legal or factual sufficiency of the evidence to sustain

his conviction, therefore, we will only discuss those factual elements that are germane to

our opinion. On May 8, 2007, Keiva Norwood, appellant’s biological granddaughter and

adopted daughter, reported to the Tahoka Police Department that appellant both attempted

to engage in intercourse with her on one occasion and had, on other occasions,

inappropriately touched her. These incidents occurred in 2001 and 2003 when Keiva was

a minor and living in the home of appellant. As a result of the allegations made by Keiva,

appellant was contacted by Chief Dorsey of the Tahoka Police Department and asked to

come in and speak to him about the allegations.


       On or about the same day that Keiva made her allegation of improper conduct

against appellant, appellant filed for divorce from Mae Dawn Norwood. It became the

contention of appellant’s attorneys that the allegations against appellant were instigated

as part of the effort of Mae Dawn to acquire most, if not all, of appellant’s and Mae Dawn’s

community property.


       Appellant’s primary contention regarding the challenged extraneous offense

evidence is that, while those offenses might have some relevance to the proceedings

appellant was being tried for, the State had forced appellant’s trial counsel to raise the

issue of the divorce through the State’s opening statement. During opening statements,

the State’s attorney made the following reference to the divorce proceeding,




                                             2
       Now, what I don’t expect you to hear is– Mae Dawn Norwood didn’t call the
       police. I’ll tell you that up front. And she should have. And the sad fact is,
       if it wasn’t for the fact that they got a divorce, she would be sitting on his side
       of the courtroom right now, because she didn’t do anything to stop this.


According to appellant, this forced his counsel to counter the issue of the divorce.

Appellant’s trial counsel referred to Mae Dawn’s motive for lying on at least two occasions

in her opening statement and talked about the motive for filing the charges against

appellant throughout the opening statement.


       Keiva testified about the facts relating to the charges against appellant. During

cross-examination, she denied making these allegations as part of a plot to make sure that

Mae Dawn received most, if not all, of the community property during her divorce from

appellant.   Keiva testified that the improper touching of her breasts occurred while

appellant was giving her a back rub. According to Keiva, appellant reached under her and

began fondling her breasts. As the fondling was occurring, Mae Dawn happened to come

into the bedroom. Mae Dawn testified that she came into the bedroom and caught

appellant in the act of fondling Keiva’s breasts. During cross-examination, Mae Dawn

admitted she did not report this to the police.


       Chief Dorsey then testified about his interviews with appellant. Appellant testified

that he had attempted to discuss these allegations with the police department earlier.

Dorsey testified that the first time appellant came forward was when Dorsey called

appellant. Dorsey testified that, during his interview with appellant, appellant stated that

the allegation regarding his touching of Keiva’s breasts was not true. Appellant stated that



                                               3
he may have come close to her breasts or have accidentally brushed a breast while giving

her a back rub.


       After Kevia, Mae Dawn, and Chief Dorsey testified, the State advised the trial court

that it wished to call two witnesses to testify about extraneous offenses of a like nature to

those appellant was being tried for. The two witnesses were Rebecca Aguero, appellant’s

stepdaughter, and Rosale Bohannon, appellant’s biological daughter. During a hearing

about the admissibility of the testimony, the State opined that the testimony should come

in to prove the issue of intent and to rebut appellant’s defensive theory that the allegations

are an attempt by Kevia to assist Mae Dawn in getting most of the community property

through the divorce. The trial court ruled that the evidence was relevant and more

probative than prejudicial. Accordingly, the trial court ruled that the testimony would be

allowed.


       Both witnesses testified to improper sexual conduct by appellant when each was a

young girl. In both instances, the alleged improper sexual conduct occurred approximately

30 years earlier.


       Appellant testified in his own behalf. During his cross-examination testimony,

appellant stated that, if he had contact with the breast of Keiva, it occurred while he was

giving her a back rub and the contact was accidental and totally unintentional. Further,

during cross-examination, appellant seemed to alternate between saying the incidents of

extraneous conduct either did not occur or that he could not remember the incidents.




                                              4
        Appellant was tried under an indictment that included one count of attempted sexual

assault and two counts of indecency with a child. At the close of the State’s case-in-chief,

the trial court granted a directed verdict as to the attempted sexual assault of a child count.

The jury subsequently acquitted appellant of Count 3 of the indictment, indecency with a

child, and convicted appellant of Count 2 of the indictment, also alleging indecency with

a child. Count 2 was the count that involved the touching of the breasts of Keiva. The jury

subsequently assessed appellant’s sentence at confinement in the Institutional Division of

the Texas Department of Criminal Justice for seven years.


        Appellant contends that the trial court abused its discretion and committed reversible

error by: 1) allowing evidence of extraneous offenses to be placed before the jury when

such evidence proved nothing except character conformance and, 2) finding that the

extraneous offense evidence was not substantially more prejudicial than probative in

contravention of Rule 403 of the Texas Rules of Evidence.2 See TEX . R. EVID . 403.3

Disagreeing with appellant’s contentions, we affirm.


                                     Standard of Review


        We review a trial court's decision regarding the admissibility of evidence under an

abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.


        2
        Additionally, appellant alleged in his brief, under the section titled Appellant’s
Points of Error, that the trial court erred in not conducting a hearing on appellant’s motion
for new trial. However, that issue was not addressed in the body of the brief and is,
thereby, waived for insufficient briefing. See TEX . R. APP. P. 38.1(I).
        3
            Further reference to the Texas Rules of Evidence will be by reference to “Rule
___.”

                                              5
2007). Because trial courts are in the best position to decide questions of admissibility,

appellate courts will uphold a trial court's admissibility decision when that decision is within

the zone of reasonable disagreement. Id. An appellate court may not reverse a trial

court's decision regarding the admissibility of evidence solely because the appellate court

disagrees with the decision. Id. A trial court abuses its discretion when its decision lies

outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372,

391 (Tex.Crim.App. 1990) (op. on reh’g).


Texas Rules of Evidence 404(b) Objection


       By his first issue, appellant complains that the trial court improperly allowed the

introduction of evidence regarding extraneous offenses. The trial court allowed Rebecca

Aguero, appellant’s stepdaughter, and Rosale Bohannon, appellant’s daughter, to testify

about incidents of sexual misconduct on the part of appellant with each of them that had

occurred approximately 30 years before. Appellant contends that the evidence was not

admissible because the State initially made assertions regarding the nature of the evidence

involved in the present case that required appellant’s counsel to answer those statements.

Therefore, according to appellant, he did not open the door for the admission of evidence

of extraneous offenses.


       Initially, we observe that, according to the rules of evidence, evidence of other

crimes, wrongs, or acts that do not have relevance apart from character conformity is

inadmissible.   See Rule 404(b).       However, evidence of extraneous offenses is not

inadmissible if it is relevant to a fact of consequence apart from the tendency to show


                                               6
conduct in conformity with character.       See Casey v. State, 215 S.W.3d 870, 879

(Tex.Crim.App. 2007). Further, evidence of extraneous offenses is not inadmissible under

Rule 404(b) when it is offered to rebut an affirmative defense or a defensive issue that

negates one of the elements of the crime. Id.


       The record reveals that the State made a passing reference to the divorce

proceeding between appellant and Mae Dawn in its opening statement. The reference was

directed to the reason Mae Dawn had not initially reported what she saw on the day she

found appellant giving a back rub to Keiva. The State opined that it was because she was

married to appellant. The State’s attorney ended his reference to the divorce by stating

that Mae Dawn’s failure to report the incident was inexcusable. Subsequently, in the

appellant’s opening statement, trial counsel stated:


       I think what the evidence is going to show you is that Mae Dawn has a
       motive to lie in this case, that she had a motive to bring these allegations,
       and that she talked Keiva into bringing these allegations against my client,
       George Norwood.


Trial counsel subsequently stated that the evidence in the case is “layer after layer after

layer of lies and lies.” Trial counsel then proceeded to tell the jury that the evidence would

show that appellant let it be known, on May 1, 2006, that he intended to file for divorce

against Mae Dawn. Trial counsel went on to advise that, within days of finding out

appellant intended to file for divorce, his biological daughter and his wife filed the police

report that led to the indictment of appellant. Trial counsel then asked the question,

“Why?” And answered the question, “Leverage in a divorce, maybe.”



                                              7
       From the record before us, it is apparent that appellant’s opening statement was

setting forth his theory of defense. Specifically, that Mae Dawn and Keiva were fabricating

these allegations in order for Mae Dawn to gain an advantage in the divorce proceedings.

As noted by the Court of Criminal Appeals in the recent case of Bass v. State, a defense

opening statement may open the door to the admission of extraneous offense evidence.

See Bass v. State, 270 S.W.3d 557, 563 (Tex.Crim.App. 2008) (In Bass, immediately after

the State’s opening statement, the defense made an opening statement in which it claimed

that the complainant’s allegations were “pure fantasy” and “pure fabrication,” which led to

the State being allowed to introduce evidence of two other extraneous offenses during the

State’s case-in-chief.). As the Court pointed out, “When, as here, the defense chooses to

make its opening statement immediately after the State’s opening statement, the State

may reasonably rely on this defensive opening statement as to what evidence the defense

intends to present and rebut this anticipated defensive evidence during its case-in-chief as

opposed to waiting until rebuttal. Id. at n.7. It is apparent from the record that the State

was, in fact, reasonably relying on the evidence that the defense intended to produce.

Accordingly, we hold that the trial court did not err in admitting the evidence of the

extraneous offenses under Rule 404(b). Id. However, this does not end our inquiry as

appellant also objected on the basis of Rule 403. See Rule 403.


Texas Rules of Evidence 403 Objection


       At the same time appellant objected to the admission of the extraneous offense

evidence under Rule 404(b), he also objected that, if the evidence was otherwise relevant,

the probative value of the evidence was far outweighed by the unfair prejudicial impact.

                                             8
However, appellant now contends that the admission of the extraneous offense evidence

violates Rule 401 in that it is not relevant, due to the age of the alleged extraneous

offenses, 30 years. Further, appellant contends that the danger of unfair prejudice far

outweighs the probative value of this evidence. As a result of these two contentions,

appellant insists that the trial court committed reversible error in admitting the extraneous

offense evidence.


       In reviewing the objection that appellant lodged against the extraneous offense

evidence, we do not find where appellant brought the issue of relevancy, pursuant to Rule

401, to the attention of the trial court. At best, all we can say is that appellant made a

passing reference to the issue while arguing his Rule 404(b) objection. However, rather

than rule the issue has been waived for failure to preserve, we shall address the issue.

See TEX . R. APP. P. 33.1(a)(1)(A).


       Under the Texas Rules of Evidence, evidence is relevant if it makes the existence

of a fact that is of consequence to the determination of the action more probable than it

would be without the evidence. See Rule 401; Watterson v. State, No. 07-07-0153-CR,

2009 Tex.App. LEXIS 2938, at *7 (Tex.App.–Amarillo April 29, 2009, no pet.) (mem. op.

not designated for publication) (citing Moses v. State, 105 S.W.3d 622, 625 (Tex.Crim.App.

2003)). As explained above, the evidence of the extraneous offenses became relevant to

combat the defensive theory of fabrication by Mae Dawn and Keiva in order to secure for

Mae Dawn a more favorable divorce settlement. Further, the evidence was relevant to

combat appellant’s claim that the contact was not intentional or was the result of an

accident. See Rule 404(b).

                                             9
       Having determined that the evidence was relevant, we next turn to ascertaining

whether the probative value of this evidence is substantially outweighed by the danger of

unfair prejudice. See Rule 403. As in the Rule 404(b) arena, we will again apply an abuse

of discretion standard in analyzing the trial court’s decision to admit this evidence over a

Rule 403 objection. See Montgomery, 810 S.W.2d at 391. In conducting the balancing

test regarding admissibility, the trial 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 issue, 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 repeat evidence already admitted. See Casey,

215 S.W.3d at 880.


       Having reviewed the record, we find that the evidence in question is strongly

probative to rebut the appellant’s contention that the alleged offense was fabricated by

Mae Dawn and Keiva. Further, it is probative to rebut the statements by appellant that if

he did, in fact, touch Keiva’s breasts, he did so accidentally. The State, as proponent of

the evidence, needed this evidence to rebut the fabrication theory of appellant. This was

virtually the only evidence that the State had that placed the defensive theory in doubt. It

must, however, be conceded that this evidence did have a tendency to suggest conviction

on an improper basis because the very nature of the extraneous offenses could lead to a

suggestion that, if appellant had done it before, he must have done it this time. However,


                                             10
the record reflects that the jury was properly charged about their consideration of this

evidence. This charge focused the jury on the proper consideration of the extraneous

offense evidence. Finally, the presentation of the extraneous offense evidence took only

a minimal amount of time and did not involve repeating evidence that had previously been

admitted. When all of these factors are viewed in toto, we find no abuse of discretion in

overruling appellant’s Rule 403 objection. Montgomery, 810 S.W.2d at 391. Therefore,

appellant’s second issue is overruled.


                                         Conclusion


      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                 Mackey K. Hancock
                                                      Justice



Do not publish.




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