Opinion filed October 23, 2008




                                              In The


   Eleventh Court of Appeals
                                          ____________

                                    No. 11-07-00086-CR
                                        __________

                          ROBERT DEAN BRYAN, Appellant
                                      V.
                            STATE OF TEXAS, Appellee


                            On Appeal from the 32nd District Court
                                    Nolan County, Texas
                                Trial Court Cause No. 10192

                            MEMORANDUM OPINION

       The jury convicted Robert Dean Bryan of indecency with a child and assessed his punishment
at confinement for twenty years. We affirm.
                                        Background Facts
       Appellant was indicted for indecency with a child. S.P. was six years old at the time of the
offense and eight years old at the time of trial. Appellant’s wife and S.P.’s mother were good
friends. On the day of the charged offense, S.P. was spending the night with appellant and his wife.
She slept in the bed between appellant and his wife. S.P. woke up during the night because
appellant’s hand was touching her on “[her] private, [her] mouth, [her] thigh, and [her] chest.” S.P.
kept moving appellant’s hand away, and he kept putting it back. S.P. testified that appellant put his
mouth on her mouth and put his tongue in her mouth. S.P. made an outcry to her mom the next day.
       The State provided notice to appellant that it was going to offer evidence of appellant’s prior
bad acts and extraneous offenses under TEX . R. EVID . 404(b). Appellant filed a written objection
to the admission of this evidence, and the trial court held a pretrial hearing to determine the
admissibility of the evidence. After the hearing, the trial court ruled that it would allow the evidence
at trial.
                                               Issue on Appeal
            Appellant asserts that the trial court erred in admitting, over appellant’s objection, testimony
of three witnesses alleging unadjudicated extraneous offenses and prior bad acts to prove pattern and
intent and to bolster the credibility of the complainant contrary to TEX . R. EVID . 403 and 404(b).
                                             Standard of Review
            We review the trial court’s ruling on the admissibility of evidence under an abuse of
discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v.
State, 810 S.W.2d 372 (Tex. Crim. App. 1991). This standard requires an appellate court to uphold
a trial court’s admissibility decision when that decision is within the zone of reasonable
disagreement. Powell, 63 S.W.3d at 438.
                                      Rule 404(b) Character Evidence
            Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of showing
that the person acted in conformity therewith. Rule 404(b); Montgomery, 810 S.W.2d at 386-88.
However, this evidence may be admissible when it is relevant to a noncharacter-conformity fact of
consequence in the case, such as intent, motive, identity, opportunity, preparation, plan, knowledge,
or absence of mistake or accident. Rule 404(b); Powell, 63 S.W.3d at 438; Montgomery, 810
S.W.2d at 387-88. Evidence of extraneous offenses or prior bad acts may also be admissible to rebut
a defensive theory. Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). When
determining whether evidence of extraneous offenses is admissible to rebut defensive theories, a trial
court may consider a defensive theory raised in an opening statement or raised by cross-examination
of State’s witnesses. Powell, 63 S.W.3d at 439; Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim.
App. 1996). The mere fact that a party introduces evidence for a purpose other than character
conformity does not, in itself, make that evidence admissible. Admissibility of evidence hinges on
the relevancy of the evidence to a “fact of consequence” in the case. Rankin v. State, 974 S.W.2d
707, 709 (Tex. Crim. App. 1996). Evidence of other crimes, wrongs, or bad acts has noncharacter-
conformity relevance where it logically serves to make less probable defensive evidence that
undermines an elemental fact. Powell, 63 S.W.3d at 438.


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                                   Balancing Test Under Rule 403
        Even if evidence is admissible under Rule 404(b), the trial court may exclude the same
evidence if it determines that the probative value of such evidence is substantially outweighed by
its unfair prejudice. Rule 403. In determining whether the probative value of evidence of an
extraneous offense is outweighed by its prejudicial effect, we look to (1) how compellingly the
evidence serves to make a fact of consequence more or less probable, (2) the potential the evidence
has to impress the jury “in some irrational but nevertheless indelible way,” (3) the time the State will
need to develop the evidence, (4) the force of the State’s need for the evidence, and (5) whether the
misconduct was of such a nature that a jury instruction to disregard it for any but its proffered
purpose would likely have been without effect. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim.
App. 1999); Montgomery, 810 S.W.2d at 389-90; Rickerson v. State, 138 S.W.3d 528, 532 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d). Accordingly, when the record reveals that one or more
such relevant criteria reasonably contributed to a risk that the probative value of the tendered
evidence was substantially outweighed by unfair prejudice, the evidence should not have been
admitted. Montgomery, 810 S.W.2d at 392-93.
                                               Analysis
        A. Evidence at Trial.
        In its case-in-chief, the State first offered the testimony of S.P. On cross-examination,
appellant’s attorney attacked S.P.’s credibility by asking if she made up stories at school and by
asking if appellant was sleeping as she had testified then how could appellant have touched her.
        Next, the State offered the testimony of Officer Mark Taylor. Officer Taylor testified that
he was the lead investigator in this case. During the course of his investigation, he met with
appellant and appellant provided a statement. Officer Taylor read that statement into evidence.
Appellant said in his statement that S.P. stayed the night at his house and later got into bed with him
and his wife. Appellant denied ever touching S.P. except to move her when she turned sideways in
the bed. Officer Taylor testified that, after appellant finished giving the statement, he asked
appellant if there was anything else he wanted to add. Officer Taylor testified that appellant stated
that he believed that S.P. had been coached and that her testimony could be manipulated.
Officer Taylor testified that he asked appellant if he believed DNA evidence could be manipulated
and that appellant replied no. Officer Taylor testified that he asked appellant if he kissed S.P. on the


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mouth. Appellant stated that he forgot about that and asked to make a second statement.
Officer Taylor testified that in the second statement appellant said that, when he woke up, S.P. was
on top of him kissing him. Appellant told S.P. to get off him because she was too young to play
games like that.
       B. Evidence of Extraneous Offenses and Prior Bad Acts.
       Amanda Bryan, appellant’s daughter, testified that, when she was about seven, appellant
touched her in the pubic area while she was sleeping. She also testified that, when she was sixteen,
appellant went into her room while she was sleeping and touched her on her breast under her clothes.
She reported this incident and charges were filed, but the charges were later dropped at her request.
       Susan Bryan Williams, appellant’s ex-wife and the mother of Amanda Bryan, testified that,
after she and appellant were divorced, appellant visited the kids at her home in Monahans. She
stated that, on one occasion, appellant visited the children and stayed the night on the couch. When
she woke up, appellant was in her bed touching her breasts and butt under the covers.
       Cynthia Ann Bundick, a cousin of Susan Williams, testified that, when she was seventeen
and pregnant, she was visiting appellant and Williams while they were still married. She testified
that she was sleeping and that, when she woke up, appellant was rubbing her belly underneath her
clothes.
       C. Application of Law to the Facts.
       In this case, the State argues that the evidence was used to rebut the defensive theories that
the incident that formed the basis for the indictment was not one that demonstrated an intent to
gratify appellant’s sexual desires and that S.P. was the one who initiated the contact with appellant.
The State further argues that the extraneous evidence goes to show appellant’s modus operandi in
committing the offense. Modus operandi refers to a defendant’s distinctive and idiosyncratic manner
of committing criminal acts. Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). Modus
operandi usually refers to evidence offered to prove identity. However, evidence of similar acts
might be admissible to show lack of consent, motive, and the manner of committing an offense under
the doctrine-of-chances theory. Id. at 881. The doctrine-of-chances theory is the instinctive
recognition that eliminates the element of innocent intent by multiplying instances of the same result
until it is perceived that this element cannot explain them all. Plante v. State, 692 S.W.2d 487,




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491-92 (Tex. Crim. App. 1985). The similarity required of the extraneous offenses is less stringent
under this theory than the similarity required to show identity. Plante, 692 S.W.2d at 492.
       The evidence of appellant’s extraneous offenses and prior bad acts was admissible under
Rule 404(b). The evidence was not used to show appellant’s propensity for committing crimes or
his bad character in general. Appellant relied on the defensive theory of lack of intent in that he had
no intent to gratify his sexual desire because he was merely adjusting S.P.’s position in bed or was
asleep when he touched her. Appellant also raised the defense of consent by saying that S.P.
climbed on top of him and kissed him. The extraneous offenses and prior bad acts rebutted these
defensive theories and were used to show appellant’s intent and S.P.’s lack of consent. Further,
because the prior bad acts were similar in that the victims were asleep when appellant touched them,
the evidence tends to show appellant’s modus operandi under the doctrine-of-chances theory.
       The evidence was admissible under Rule 403 because the probative value of the evidence was
not substantially outweighed by its prejudicial effect. Because this was a case of “he said, she said”
and intent is difficult to show in an indecency with a child case, the evidence had great probative
value for the State. The evidence was not graphic but, rather, similar to the evidence that the jury
had already heard from S.P. in the charged offense. The evidence did not affect the jury in an
indelible way and was not so outrageous that a jury instruction would not have any effect. Further,
the evidence was quickly and clearly presented such that it did not take too much time and was not
confusing. The trial court did not err in allowing the evidence of appellant’s extraneous offenses and
prior bad acts. We overrule appellant’s issue on appeal.
                                             Conclusion
       We affirm the judgment of the trial court.




                                                               RICK STRANGE
                                                               JUSTICE
October 23, 2008
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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