                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-06-00328-CR

ELTON YARBROUGH,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 05-01239-CRF-361


                          MEMORANDUM OPINION


      Elton Yarbrough was convicted of sexual assault and sentenced to 18 years in

prison. He appeals his conviction. Because the trial court did not abuse its discretion in

admitting extraneous offense evidence, we affirm the trial court’s judgment.

                                     BACKGROUND

      Lisa Reynolds and her roommate, Rachel Wilson, were both foreign students

from Lancaster University, England, studying for one year at Texas A&M University.

Reynolds was originally from Dublin, Ireland, but had lived all over the world.

Reynolds met Yarbrough through Wilson’s registration on Facebook, an online website
for university students. Reynolds then also joined Facebook and communicated with

Yarbrough through that website and through Instant Messaging.               During the

Thanksgiving holidays, and after communicating for a few weeks, Reynolds and

Yarbrough went to a bar together to play pool. Afterwards, Yarbrough took Reynolds

back to her apartment and entered the apartment with her.          Reynolds hinted for

Yarbrough to leave, but he would not until Reynolds finally told him to leave because

she was tired.

       The next night, Reynolds invited Yarbrough over to her apartment and asked

him to bring some alcohol. He did so, and after a few drinks, he, Reynolds, Wilson,

Wilson’s boyfriend, and another friend went to a bar. Reynolds did not spend much

time at the bar with Yarbrough. At closing time, Yarbrough escorted Reynolds out of

the bar. They all went back to Reynolds’s apartment. The other friend then left.

       Yarbrough helped Wilson’s boyfriend into the apartment because he was

extremely intoxicated. Reynolds was drunk but not to the point where she could not

function. Yarbrough stayed at the apartment, wanting to take care of Reynolds. Later,

when Reynolds fell asleep on the couch, Wilson asked Yarbrough to carry Reynolds to

her bed. Wilson had to ask Yarbrough to leave the room while Wilson helped Reynolds

into her pajamas. Yarbrough returned to Reynolds’s room and remained there. He

later asked if he could remove his sweater, which he was allowed to do. He had on

another shirt underneath the sweater.      He lay down on the bed with Reynolds.

Yarbrough was on top of the covers while Reynolds was under the covers. Reynolds

asked Wilson to stay with her. She did, and crawled under the covers with Reynolds.

Yarbrough v. State                                                                 Page 2
       At some point, Wilson was pushed out of bed. Seeing both Yarbrough and

Reynolds asleep, she returned to her room. She then heard Reynolds’s door close. A

short time later, Reynolds awoke to Yarbrough on top of her, with his penis inside her.

Reynolds pushed Yarbrough off of her, ran to her door, struggled with it before it

opened, and ran to Wilson’s room. She screamed for Wilson to get Yarbrough out of

the house. Yarbrough, while buttoning his pants, exited Reynolds’s room and left the

apartment. A few days later, Yarbrough admitted to the sexual encounter on a taped

telephone conversation to Reynolds

                                 EXTRANEOUS OFFENSE

       In one issue, Yarbrough asserts that the trial court erred in admitting extraneous

offence evidence over his Rule 404(b) and Rule 403 objection.        The complained of

evidence involved testimony, offered by the State on rebuttal, from Heather Cahill

regarding a sexual assault on her by Yarbrough which was similar to the assault on

Reynolds.

RULE 404(B)

       When reviewing a trial court’s ruling on the admission of evidence, we apply an

abuse of discretion standard of review. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007). A trial court abuses its discretion when its decision lies outside the zone of

reasonable disagreement. Id.

       The text of rule 404(b) provides in pertinent part, “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. It may, however, be admissible for other purposes, such

Yarbrough v. State                                                                  Page 3
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . . ." TEX. R. EVID. 404(b). Thus, evidence that does not

have relevance apart from character conformity is inadmissible. Casey, 215 S.W.3d at

879.    Extraneous-offense evidence is not inadmissible under Rule 404(b) if the

extraneous-offense evidence is relevant to a fact of consequence apart from its tendency

to show conduct in conformity with character. Id. Further, extraneous-offense evidence

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.

       Yarbrough argues that the State had no reason, other than character conformity,

to request the admission of Cahill’s testimony. We disagree with Yarbrough. Although

Yarbrough contends otherwise, throughout the entire guilt innocence phase of the trial,

it was evident that Yarbrough’s defensive theory was that Reynolds consented to the

sexual encounter. In his opening statement, Yarbrough’s counsel wondered aloud what

kind of signals Reynolds was sending and what kind of signals Yarbrough was

receiving. During cross-examination of the State’s witnesses, some of whom Yarbrough

re-called as witnesses during the presentation of the defense’s case, Yarbrough

emphasized that Reynolds was educated, sophisticated, experienced with drinking and

socializing in different countries, and was not naive.     He also tried to establish that

Reynolds was more intoxicated than she originally led the jury to believe. Yarbrough

further emphasized that no one asked him to leave the apartment, no one asked him to

get off the bed, and no one asked him to leave his sweater on. During his examination

of Reynolds, Yarbrough stressed that Reynolds liked Yarbrough enough to: give him

Yarbrough v. State                                                                  Page 4
her phone number; refer to him in on-line communications as “Sweets” or “Sweetie;” go

out with him alone the night before the offense; allow him to enter the apartment the

night before the offense; invite him over again the next night; go to a bar with him;

place her hand on his leg (although Reynolds stated that it was due to lack of space in

the back seat of the car); and again allow him into the apartment.

       Even the trial court acknowledged, out of the presence of the jury, that “…this

whole case is consent.” At that point in time, Yarbrough remained silent as to whether

or not he was contesting the issue of consent. It was not until the State offered the

admission of the extraneous offense that Yarbrough denied developing the theory of

consent. And when the defensive theory of consent is raised in a prosecution of sexual

assault, the defendant necessarily disputes his intent to engage in the alleged conduct

without the complainant’s consent and places his intent to commit sexual assault at

issue. Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).

       Based on a review of the record, we cannot conclude the trial court's ruling was

outside the zone of reasonable disagreement. Therefore, the trial court did not abuse its

discretion in admitting the extraneous evidence over Yarbrough’s Rule 404(b) objection.

Rule 403

       The trial court is given very substantial discretion in balancing probative value

on the one hand and unfair prejudice on the other; and the trial court should not be

reversed simply because an appellate court believes it would have decided the matter

differently. Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006); Hernandez v.

State, 203 S.W.3d 477, 481 (Tex. App.—Waco 2006, pet. ref’d). Recently, in Gigliobianco v.

Yarbrough v. State                                                                  Page 5
State, the Court of Criminal Appeals clarified its precedents explaining the application

of Rule 403 to "bring it in line with the plain text of 403." Gigliobianco v. State, 210 S.W.3d

637, 642 n.8 (Tex. Crim. App. 2006). Under the clarified standard, a trial court, when

undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the

proffered item of evidence—that is, how strongly it serves to make more or less

probable the existence of a fact of consequence to the litigation—along with (2) the

proponent's need for that evidence against (3) any tendency of the evidence to suggest a

decision on an improper basis, (4) any tendency of the evidence to confuse or distract

the jury from the main issues, (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 merely repeat evidence already admitted. Gigliobianco,

210 S.W.3d at 641-642 (Tex. Crim. App. 2006).

       Contrary to the argument made by Yarbrough, Cahill’s testimony strongly

served to make the sexual assault on Reynolds more probable. The offenses were very

similar. After becoming highly intoxicated at a local bar, Cahill was offered a ride home

by Yarbrough. He took her to his fraternity house and placed her on the couch. Cahill

passed out and woke up to Yarbrough performing oral sex on her. She told him to stop,

and she pushed him away. Further, the State had a great need for this evidence.

Consent was the only issue in this case, and Yarbrough vigorously asserted throughout

the trial that Reynolds consented to the sexual encounter. The State had no uncontested



Yarbrough v. State                                                                       Page 6
evidence to prove that Yarbrough’s sexual encounter with Reynolds was without her

consent.

       An extraneous sexual assault can present the danger of the jury making a

decision on an improper, emotional basis. See Wheeler v. State, 67 S.W.3d 879, 889 (Tex.

Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372, 397 (Tex. Crim. App. 1990) (op.

on reh’g). But the presentation of Cahill’s testimony did not take such a great amount

of time as to confuse or distract the jury from the main issue of the case. Yarbrough

argues that Cahill’s testimony was a distraction to the jury because the direct

examination lasted longer than all of the State’s witnesses except Reynolds and her

roommate, Wilson. However, those other witnesses only set the stage for the testimony

for Reynolds and Wilson and therefore, should not have been lengthy. Further, Cahill’s

direct examination consumed less than 20 pages of a two-day trial on guilt/innocence.

Next, there is nothing to suggest that the jury was not equipped to evaluate the

probative force of the evidence, and as stated previously, the evidence was not unduly

lengthy and did not present unnecessary cumulative evidence.

       Based on a review of the relevant factors, we cannot conclude that the trial court

abused its discretion in admitting the extraneous offense evidence over Yarbrough’s

Rule 403 objection.




Yarbrough v. State                                                                 Page 7
                                      CONCLUSION

       Because the trial court did not abuse its discretion in admitting the extraneous

offense evidence, Yarbrough’s sole issue is overruled. The trial court’s judgment is

affirmed.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Justice Vance concurs in the judgment with a note) *
Affirmed
Opinion delivered and filed November 26, 2008
Do not publish
[CR25]


        * “(The admissibility of the extraneous-offense evidence is a close call but within
the zone of reasonable disagreement. Applying all the applicable factors, I agree that
the trial court did not abuse its discretion, so I concur in the judgment.)”




Yarbrough v. State                                                                   Page 8
