                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 MICHAEL WILLIAM WELLS,                          §
                                                                 No. 08-07-00062-CR
                   Appellant,                    §
                                                                   Appeal from the
 v.                                              §
                                                              59th Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                          of Grayson County, Texas
                                                 §
                   Appellee.                                       (TC# 051406-T)
                                                 §



                                          OPINION

       This is an appeal from three felony convictions of aggravated sexual assault of a child.

Appellant was convicted under three indictments by the jury. He was sentenced by the trial court

to 45 years confinement with the Institutional Division of the Texas Department of Criminal

Justice. On appeal, Appellant raises two issues arguing the trial court erred in failing to exclude

outcry testimony as hearsay and in allowing testimony of an extraneous offense.1 We affirm.

       In Cause No. 51406, Appellant was charged with intentionally or knowingly causing the

penetration of the female sexual organ of R.C., a child under the age of fourteen, with his finger.

In Cause No. 51407, Appellant was charged with touching the genitals of C.W., a child under the

age of 17, with the intent to sexually arouse and gratify himself. In Cause No. 51408, Appellant



       1
         This is the first of three identical opinions for the companion cases before the Court,
which all raise the same issues. See Wells v. State, 08-07-00063-CR (Tex.App.--El Paso
April 23, 2009, no pet.h.) and Wells v. State, 08-07-00064-CR (Tex.App.--El Paso April 23,
2009, no pet.h.).
was charged with intentionally and knowingly penetrating the female sexual organ of C.W., a

child under the age of fourteen with his finger.

       Officer Jack Melson testified that R.C. was brought in by her grandmother with reported

allegations of sexual abuse in August of 1997. R.C. told Officer Melson that her stepfather,

Mr. Wells, had sexually assaulted her. After getting out of the bathtub, R.C. complained to her

stepfather that it was hurting when she went to the restroom. He told her to go get on the bed and

get on her hands and knees. He then put his finger in her. Officer Melson stated R.C. had told

her of another incident after they had left Sherman, TX. Defense counsel objected on the basis of

hearsay, but was overruled by the trial court. R.C. said that Mr. Wells told her he was going to

take her to a cemetery and have sex with her. However, she started crying and told him to take

her home, which he did. The county attorney did not pursue the case because the victim no

longer wished to proceed.

       R.C. testified at trial as well. R.C. testified to the same events as Officer Melson. She

stated that she used to get urinary tract infections, and one night after she got out of the bathtub,

she told her stepfather about it, and he had her get on her hands and knees on top of the bed. He

put his finger inside of her, but she told him to stop. R.C. also testified that when she was fifteen

he told her he was going to take her to the cemetery, turn her over the hood, and “pop her

cherry.”

       R.C. also testified that her sister C.W. had come to stay with her at her home, and had

told her some things that Appellant had done to her. C.W. had told her that he would make her

watch adult videos, tried to penetrate her, and would “touch her down there.” R.C. told her

mother about it, who said she would handle it, but R.C. eventually called the district attorney and


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Sherman Police Department. On cross-examination, defense counsel solicited testimony that

R.C. and her grandmother were upset with Mr. Wells, and made up the allegations of sexual

assault.

           C.W. testified that when she was eleven, she was watching television with Appellant

when he put his hands on top of her “private area” and rubbed her. She testified to another

incident where he pulled over while they were driving home, and walked out into the woods and

had her perform oral sex on him. C.W. also testified that Appellant would have her watch dirty

movies and masturbate him. C.W. stated that Appellant had tried to have sex with her, but she

told him no and started to cry so he stopped. C.W. stated that on more than one occasion,

Appellant put his finger inside of her. On cross-examination, defense counsel questioned her

about being angry with her mother and Appellant for lying to her about Appellant being her

biological father.

           L.S. testified that she knew Mr. Wells because he was married to her aunt. When she was

fourteen or fifteen, she went into the bedroom and laid down beside him, and Mr. Wells

attempted to put his hand down her pants. She pushed him off and told him no. On cross-

examination, defense counsel questioned L.S. about meeting with her cousins, R.C. and C.W.,

before any police report was filed and discussing the incidents.

           Defense counsel called one witness, Joanna Wells, mother of Appellant. Ms. Wells

stated she had spoken with C.W. about the allegations she had made. She had asked C.W. why

she had not told the truth, and C.W. responded if she had then they would know she had lied.

Ms. Wells stated that C.W. has a problem telling the truth, and is a very good liar.

           In Issue One, Appellant argues the trial court erred in allowing Officer Jack Melson to


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testify to hearsay statements made by R.C. because no written notice or summary of the

statements were filed or provided to defense counsel. The State argues error was not properly

preserved, and we must agree. Appellant made no objection to the description of the initial

sexual abuse, and only a general hearsay objection to the statements regarding other occurrences.

Appellant did not object on the grounds of failing to comply with the notice requirements under

Article 38.072. TEX .CODE CRIM .PROC.ANN . art. 38.072 (Vernon 2005). Appellant has not

preserved this issue for review. TEX .R.APP .P. 33.1(a); see Garcia v. State, 907 S.W.2d 635, 637

(Tex.App.--Corpus Christi 1995), aff’d, 981 S.W.2d 683 (Tex.Crim.App. 1998); Aaron v. State,

2008 WL 2426667 at *1-2, (Tex.App.--Dallas, June 17, 2008, no pet.)(not designated for

publication). Issue One is overruled.

       In Issue Two, Appellant argues the trial court erred in admitting testimony and evidence

of an extraneous offense committed by Appellant against a third party because the offense was

not properly proven and the evidence is not relevant to a material issue in the case other than to

show the defendant’s character. The State argues the extraneous offense evidence was properly

admitted because it rebuts a defensive theory raised by Appellant.

       The admission of extraneous offenses is reviewed for abuse of discretion. Moses v. State,

105 S.W.3d 622, 627 (Tex.Crim.App. 2003). We must uphold the trial court’s decision to admit

evidence as long as it falls within the zone of reasonable disagreement. Wheeler v. State, 67

S.W.3d 879, 889 (Tex.Crim.App. 2002); Montgomery v. State, 810 S.W.2d 372, 391-92

(Tex.Crim.App. 1991). Evidence 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).

Extraneous offense evidence may be admissible, however, when it has relevance beyond


                                                -4-
character conformity to show proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. TEX .R.EVID . 404(b). Rebuttal of a defensive theory

is one of the purposes for which relevant evidence may be admitted under Rule 404(b). Moses,

105 S.W.3d at 626. Evidence of an extraneous offense is admissible to rebut a defensive theory

of “fabrication” or “frame-up,” where the defendant has opened the door to its admission. Bass

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

       The Defense delivered its opening argument immediately after the State. During opening

statements, the defense counsel stated:

       I think you’re going to hear there were problems going on in the family, and I
       think that you’re going to hear those allegations came up and then they were
       withdrawn.
               What I think you’re further going to hear is that, again, in 2003 that
       additional problems in the family came up and now you have two daughters that
       make remarkably similar allegations, and it points along the way those allegations
       were withdrawn. I think you’re going to hear evidence of that, and that these are
       allegations that are put out there and withdrawn and put out there and then
       withdrawn following the cycle of how Mr. Wells and his wife at the time were
       getting along.
               And what I think you’re going to see is the driving force behind each and
       every allegation is, is [sic] Laverne Archie, the mother of Mr. Wells’ wife, and
       that she is the one who always brings these allegations to the forefront. And I
       think you’re going to hear that she has very serious reasons, motive, and bias to
       push these children to make these statements about Mr. Wells. But what you need
       to pay particular attention to is the overall inconsistency of the statements made
       by these children, that they do not stick to their guns, that they do not stick to the
       story, and that this is a well-orchestrated brought about event.

In the defense’s case-in-chief, they called only one witness, Joanna Wells. Ms. Wells questioned

C.W. about lying about the allegations, and C.W. responded that if she told the truth then they

would know she was lying. During closing argument, defense counsel stated:

             Now, six years elapsed. Now, we know from R.C.’s testimony she runs
       away with a boyfriend as the family is moving to College Station. She finds out


                                                -5-
       while she’s run away that the family has moved off to College Station and she’s
       mad and she’s upset and she’s angry and she’s hurt and she goes to her
       grandmother who’s -- there’s been some evidence has a problem with Mr. Wells,
       and suddenly what was Mr. Wells examining her for a urinary tract infection six
       years later at 15 now has become a sexual assault.
               And then there’s also the story thrown in about going to the cemetery or
       threatening to go to the cemetery, but if you listen to what was said, nothing ever
       actually took place. She never said he took her to a cemetery and had sex with her
       or tried to do anything. It’s a statement she says he made, but of course nothing
       else came out about that until all these other tumultuous events in their family is
       going on. Nothing is said about that. It all becomes very convenient. Now, she
       makes these statements while she’s run away. She’s got nowhere to live because
       her family’s moved off. She’s 15 years old. She makes these statements. It’s
       reported to the police. She then goes back and lives with Mr. Wells and her
       mother, and once she’s back at home and the tumultuous situation is over there is
       no crisis anymore. The DA drops the case after 11 days of investigation because
       she’s withdrawn her desire to pursue the case.
               Six more years pass and we are now in 2003. C.W. has found out the man
       she believed -- has recently found out that the man she believed to be her
       biological father, Michael Wells, through her mother, her family, Mr. Wells
       himself, said was her father is, in fact, not her father. And she told you she felt
       hurt and she felt betrayed by Michael for that.
                                        .          .          .

       To say that she has an unstable family life and environment would be such a gross
       understatement of what I believe the situation to be you can’t even imagine. And
       that’s not C.W.’s fault. It’s not her fault that her mom uses alcohol and drugs and
       comes up to her grandmother like that at work. It’s not her fault. But can it affect
       what she says and what she does? Yeah. Can it make her make some bad
       decisions without understanding the full consequences because she’s acting out of
       anger and betrayal and hurt? Absolutely, it can.

Defense counsel continues argument by discussing the testimony of L.S.:

       Here’s what concerns me so much about this case, and if we’re talking about
       three-year-old children or four-year-old children like we were in voir dire, brutally
       honest and tell you the truth it wouldn’t be a concern but we’re not talking about
       that. We’re talking about kids hitting teenagedom [sic], puberty. We’re talking
       about kids who come from a situation at home that is obviously not good. But
       what does L.S. tell us? She says that C.S., R.C. and her talked about all this up in
       Hugo, Oklahoma, before any report was ever made to the police. Well, we’ve
       been told by everybody else making these accusations that the first time any of
       this is brought up and discuss is C.W. has this outpouring of emotion down in


                                                -6-
       College Station to her sister, R.C. L.S. is telling you that’s not what happened.
       That they discussed this up in Hugo, Oklahoma, the three of them together before
       that ever happened.
                                       .          .          .

       But I think if you think about what L.S. testified to, she said the three of them
       talked about it before the police were ever notified, before any kind of report was
       ever made, and the other problem is is [sic] that C.W. says the only time she ever
       remember R.C. talking to her about what happened to her was when she was
       about four years old. R.C. told you they talked about it within a year before C.W.
       made her outcry.
                                       .         .          .

       But think about it, recall what they said, and they’ve all got different version about
       when they began talking about this. Now, what do I think? Unfortunately it may
       have happened. If you’ve got an older sister and an older cousin who are upset,
       who are mad about the situation, things that are going on, and they may even have
       convinced C.W. this happened. I think that’s perfectly possible. I think it’s
       perfectly plausible. And now everybody is trying to fill in the blanks of 15 years.
               Unfortunately, these events just don’t link up with each other very well.
       The claimed pattern of abuse, the starting and stopping, and not -- nothing
       happening for six years and starting up again, it just doesn’t follow. The only
       time allegations are made is when there is trouble going on in the family, when
       there’s a crisis. And maybe that’s how they deal with it. Maybe that’s how focus
       gets attention back on them. Sometimes people make false wrongful allegations
       out of spite, and sometime they do it because they don’t realize exactly what it’s
       going to cause and the damage they are going to cause and people do get wrongly
       accused.

Defense counsel also summarized the testimony of Joanna Wells:

       [H]er testimony is is [sic] that C.W.’s told her she didn’t want to get caught in a
       lie and that she’s got a problem telling the truth. When the police come get you
       out of class in seventh grade to verify what’s been reported and you don’t have a
       parent or anybody else there to talk to you, you wouldn’t imagine the pressure to
       follow through with what has been started.

The extraneous offense evidence was properly admitted to rebut a defensive theory. See Bass,

270 S.W.3d at 563. Appellant argues that the extraneous offense was not clearly proven.

However, L.S. identified Appellant in court, and testified he tried to put his hands down her



                                                -7-
pants. The statute provides for the admission of other crimes, wrongs, or acts properly proven,

thus Appellant’s argument fails. TEX .R.EVID . 404(b).

       Appellant next argues that the prejudicial impact of the evidence outweighs its probative

value. In determining whether the prejudicial effect of the evidence substantially outweighs its

probative value, the court looks at how compellingly evidence of the extraneous offense serves to

make a fact of consequence more or less probable, the extraneous offense’s potential to impress

the jury in some irrational but indelible way, the trial time needed to develop the evidence, and

the proponent’s need for the extraneous offense evidence. Wheeler, 67 S.W.3d at 888. The

testimony of L.S. depicts an event similar to those testified to by R.C. and C.W., which makes

their testimony of the assaults much more probable. It also makes defense’s theory of fabrication

less probable. While certainly any sexual assault, especially one on a minor, has the potential to

impress the jury in some irrational and indelible way, we cannot say L.S.’s testimony of an

attempted touching had that effect on the jury. The direct and cross-examination of L.S. was

extremely short in duration encompassing only six pages out of hundreds of pages of the trial

record. Finally, the State needed the evidence to rebut Appellant’s defensive theory of

fabrication and frame-up, which was promulgated in opening statements, on cross-examination,

during the defense’s case-in-chief, and during closing arguments. We find the trial court did not

abuse its discretion in admitting the evidence.

       Having overruled all of Appellant’s issues, we affirm the conviction and the judgment.



April 23, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice



                                                  -8-
Before Chew, C.J., McClure, and Carr, JJ.
Carr, J. (Not Participating)

(Do Not Publish)




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