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                                  MEMORANDUM OPINION

                                          No. 04-08-00699-CR

                                         Reynaldo REYES, Jr.,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-2504
                        Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: November 18, 2009

AFFIRMED

           In view of the appellant’s petition for discretionary review filed on October 6, 2009, we

withdraw this court’s opinion and judgment dated September 2, 2009, and substitute this opinion and

judgment.

           Reynaldo Reyes, Jr. was convicted of aggravated sexual assault and sentenced to life in

prison. On appeal, he complains the trial court erred in 1) refusing to allow him to elicit testimony
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regarding the victim’s prior sexual activity and 2) admitting extraneous-offense evidence during the

guilt/innocence phase of trial. We affirm the judgment of the trial court.

                                             BACKGROUND

       A.G. testified that she was thirteen years old when she was dating Reyes’ step-son, Thomas.

Her parents had forbidden her to date boys, but she often lied to them and went to Thomas’ house

before or after school. One morning, A.G. was hanging out at Thomas’ house, eating breakfast tacos

with him and Reyes. After Thomas went to the bathroom to shower, Reyes asked A.G. to pull her

pants down. When she did not, he pulled them down himself and started licking her vagina and

putting his fingers inside her vagina. Reyes then asked A.G. to put her mouth on his penis, which

he exposed to her, but she said no. Soon after, Thomas finished showering and came out of the

bathroom. Reyes drove A.G. and Thomas to school, where A.G. started crying and told Thomas

what happened with his step-father; Thomas did not believe her. A.G.’s mother found out about the

alleged assault later that night and took A.G. to the hospital for a sexual assault exam the next

evening.

       Reyes was charged in a four-count indictment with the offenses of aggravated sexual assault

and indecency with a child by sexual contact.1 The indictment contained an enhancement paragraph.

In addition to A.G.’s testimony, the State introduced evidence that Reyes’ saliva was found on the

underwear A.G. gave to the sexual assault nurse examiner at the hospital. The jury returned a verdict

of guilty on the two counts of aggravated sexual assault and a verdict of not guilty on the exposure

count. The trial court found the enhancement paragraph to be true, and assessed a life sentence in

both counts. Reyes now appeals.



       1
        … The State waived and abandoned Count III.

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                                                    DISCUSSION

         In his first issue, Reyes argues that the trial court’s refusal to allow him to elicit testimony

regarding A.G.’s sexual activity during the time period of the offense violated his right of

confrontation under the Sixth Amendment to the United States Constitution.2 During a pretrial

hearing, the defense requested to be allowed to elicit testimony regarding the fact that A.G. was

sexually active with several partners during the pertinent time frame in which the sexual assault was

alleged to have occurred. After an in-camera hearing, the trial court denied the request, and issued

an order on the State’s motion in limine prohibiting the defense from raising the issue of A.G.’s

sexual activity, with the exception of her relationship with Thomas.

         Evidence of a complaining witness’s past sexual behavior, either in the form of specific

instances of conduct or reputation or opinion evidence, is not admissible in a criminal trial for

aggravated sexual assault. See TEX . R. EVID . 412(a), (b); State v. Dudley, 223 S.W.3d 717, 724

(Tex. App.—Tyler 2007, no pet.). There are exceptions for evidence that (A) is necessary to rebut

or explain scientific or medical evidence offered by the State, (B) is of past sexual behavior with the

accused offered by the accused upon the issue of whether the alleged victim consented to the charged

sexual behavior, (C) relates to the motive or bias of the alleged victim, (D) is admissible under Rule

609, or (E) is constitutionally required to be admitted. TEX . R. EVID . 412(b)(2)(A)-(E). Even if it

meets one of the exceptions, such evidence is inadmissible unless its probative value outweighs the

danger of unfair prejudice. TEX . R. EVID . 412(b)(3).




         2
           … The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” U.S. C O N ST . amend. VI.

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        A trial court has considerable discretion in determining whether to exclude or admit

evidence. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

Absent an abuse of discretion, we will not disturb a trial court’s decision to admit or exclude

evidence. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under this standard,

we will uphold a trial court’s evidentiary ruling so long as the ruling is reasonably supported by the

record and is correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d

410, 418 (Tex. Crim. App. 2008).

        Here, Reyes contends he needed to introduce the prior sexual history to attack A.G.’s

credibility because, according to her own testimony outside the presence of the jury, she had had

several consensual sexual encounters by the time she was 13 years-old and often lied to her parents

to facilitate the relationships. In addition, Reyes sought to introduce the prior sexual history to rebut

the State’s medical/scientific evidence. Specifically, the State’s expert witness told the jury that

pursuant to Y-STR DNA testing—which examines the DNA strand associated with the Y

chromosome—the saliva sample taken from A.G.’s underwear did not exclude Reyes as the donor,

but did exclude his step-son Thomas. Accordingly, Reyes contends the jury, having been told only

that A.G. was sexually involved with Thomas at the time of the assault, would have thought the

DNA necessarily belonged to Reyes.

        We disagree that the medical evidence presented at trial was so vague, and therefore cannot

conclude that the prior sexual history was admissible to rebut or explain the scientific evidence

offered by the State. Although the State’s expert witness testified that according to Y-STR DNA

testing Reyes could not be excluded as the donor of the saliva on A.G.’s underwear, the expert also

stated that the inverse was true, meaning that either Reyes or a direct descendant or ancestor or



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brother was included as the donor of the saliva. There was no indication that A.G.’s sexual history

would reveal that A.G. had a relationship with any of Reyes’ male blood relatives. Accordingly, the

prior sexual history was not admissible to rebut or explain scientific evidence offered by the State.

We likewise disagree that the prior sexual history was necessary to attack A.G.’s credibility because

the evidence does not meet any of the exceptions listed in Rule 412. See TEX . R. EVID . 412(b)(2).

Thus, the trial court did not err in refusing to admit A.G.’s prior sexual history. Reyes’ first issue

is overruled.

       In his second issue, Reyes contends the trial court erred in admitting extraneous-offense

evidence during the guilt/innocence phase of trial. We review the trial court’s ruling on the

admissibility of extraneous offenses for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336,

343 (Tex. Crim. App. 2009); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). The trial

court does not abuse its discretion as long as its ruling is within the “zone of reasonable

disagreement.” De La Paz, 279 S.W.3d at 343-44; Montgomery, 810 S.W.2d at 391. “A trial court’s

ruling is generally within this zone if the evidence shows that 1) an extraneous 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 of the jury.”

De La Paz, 279 S.W.3d at 344.

       “It is a fundamental tenet of our system of jurisprudence that an accused must only be tried

for the offense of which he is charged and not for being a criminal in general.” Owens v. State, 827

S.W.2d 911, 914 (Tex. Crim. App. 1992). Because extraneous offense evidence carries with it the

inherent risk that a defendant may be convicted because of his propensity for committing crimes

generally, i.e., his bad character, rather than for the commission of the charged offense, courts have



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historically been reluctant to allow evidence of an individual’s prior bad acts or extraneous offenses.

Under Rule 404(b) extraneous offense evidence may be admissible only if it tends to prove a

material fact in the State’s case, apart from its tendency to demonstrate an accused’s general

propensity for committing criminal acts. See TEX . R. EVID . 404(b).

       Carolyn Rice Wisenbaker testified that, in 1987, she was an eleven or twelve year-old girl

spending the night at her friend’s aunt’s house. She awoke in the middle of the night to find Reyes,

the aunt’s boyfriend, licking her anus. She was scared and shaking and walked home by herself in

the middle of the night. Reyes was charged with aggravated sexual assault and pleaded no contest

to injury to a child. The State argued that the door to this evidence was opened by Reyes during

questioning of Wanda Reyes, Reyes’ wife, and Thomas. When the defense asked Wanda whether

she believed Reyes assaulted A.G., she answered, no, “because I know how Rey believes about stuff

like that.” On cross-examination, the prosecutor asked Wanda to tell her how Reyes feels about

molestation. Wanda replied that he “doesn’t like people that do that,” and when they watched a

news report about molesters on television together, Reyes would say, “assholes or whatever.” On

direct examination, Thomas stated that if Reyes had assaulted A.G., he would not testify on Reyes’

behalf and also stated, “I don’t think [Reyes] would do nothing like that.” The State argued that the

extraneous-offense evidence should come in because both Wanda and Thomas knew that Reyes had

been convicted of the prior offense involving Ms. Wisenbaker and therefore left a false impression

in the jurors’ minds that Reyes would never commit this type of offense. Additionally, the State

argued that the extraneous-offense evidence should come in to rebut 1) the defensive theory that

A.G. planted the saliva on her underwear using Reyes’ snuff spit cup and 2) the theory of lack of

opportunity which was brought up by Thomas’ testimony that he did not shower that morning, but



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instead only washed up in the bathroom with the door open and therefore Reyes did not have an

opportunity to assault A.G.

       After taking the issue under advisement overnight, the trial court ruled that the extraneous-

offense evidence was admissible, stating that there had been a vigorous and impugning cross-

examination of A.G. and that there was significant cross-examination regarding the fact that A.G.

may have planted the DNA evidence. Additionally, there was questioning regarding the lack of

opportunity for Reyes to have committed the offense when Thomas was nearby. The trial court also

stated that it had conducted a balancing test and found that the extraneous-offense evidence was

more probative than prejudicial. Before Ms. Wisenbaker testified, the trial court instructed the jury

that they could only consider the following testimony “in helping you, if it does, to determine bias

or motive, identity, opportunity, or to rebut a defensive theory.” The same instruction was contained

in the jury charge, which further instructed the jury that the extraneous-offense evidence could be

used to pass upon the credibility of the defendant who testified as a witness in his own behalf.

       Reyes argues that he did not open the door through questioning of Wanda or Thomas and that

both witnesses merely gave opinion testimony, which cannot be rebutted or impeached. He further

contends that the extraneous-offense evidence was not relevant to a material issue in the case, and

the State failed to articulate how Ms. Wisenbaker’s testimony would help to establish that Reyes had

ample opportunity to assault A.G. Reyes also argues that the extraneous-offense evidence was

inadmissible to rebut the defensive theory that A.G. planted the saliva on her underwear and to show

that the allegations were fabricated by A.G. Reyes further contends that even if the evidence is

relevant, it was so inherently prejudicial that its potential to improperly inflame the jury far

outweighed its relevance under Rule 403.



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       The State responds that the defense opened the door to the admission of the extraneous-

offense evidence and that the evidence was also admissible under the “doctrine of chances.” See De

La Paz, 279 S.W.3d at 347 (discussing Wigmore’s theory that highly unusual events are unlikely to

repeat themselves inadvertently or by happenstance). While we disagree that the extraneous-offense

evidence was admissible under the “doctrine of chances,” we conclude that the defense did open the

door to Ms. Wisenbaker’s testimony when it left a false impression with the jury that Reyes would

never commit this type of act. See Daggett v. State, 187 S.W.3d 444, 453 n.24 (Tex. Crim. App.

2005) (holding that extrinsic evidence may be offered to rebut witness’s global disclaimer of

misconduct where directly relevant to the offense charged). While the evidence was certainly

prejudicial to Reyes, the probative value of the evidence was not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury. Ms. Wisenbaker’s

testimony was brief and not cumulative, and it could even be argued that it had the potential to assist

Reyes because, in closing, the defense compared her shaky demeanor to A.G.’s calm composure and

suggested that if Reyes had actually assaulted A.G., she would have been as upset as Ms. Wisenbaker

had been while testifying. We cannot say the trial court’s decision to allow the evidence was outside

the zone of reasonable disagreement. Accordingly, the evidence was properly admitted before the

jury, and we overrule Reyes’ second issue.

                                            CONCLUSION

       The judgment of the trial court is affirmed.



                                                        Phylis J. Speedlin, Justice

DO NOT PUBLISH



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