Opinion

Bobby Blake Newton v. State

Court: Texas Court of Appeals, 10th District (Waco)
Filed: Jun 13, 2007
Status: Published
Cited by: 0 cases
Authority: More cited than 37.4%

only “affirmative and conclusive proof in the record that the venue of prosecution was improperly laid” avoids presumption

How later courts described this case

only “affirmative and conclusive proof in the record that the venue of prosecution was improperly laid” avoids presumption

Written by the judges who cited it.

The opinion

IN THE

TENTH COURT OF APPEALS

No. 10-06-00160-CR

Bobby Blake Newton ,

Appellant

The State of Texas ,

Appellee

From the 272nd District Court

Brazos County , Texas

Trial Court No. 05-00731-CRF-272

DISSENTING Opinion

ON PETITION FOR DISCRETIONARY REVIEW

of April 30, 2007, the statewide average number of cases pending per

intermediate appellate court justice was 99.2 cases. Justice Reyna had 148

pending cases as of May 31, 2007, down from 153 cases pending at the end of

April. This is 43 pending cases more than Justice Vance, the justice on this

Court with the next most pending cases. The problem is that a majority of this

Court has developed a pattern of processing the same proceeding multiple times,

some by choice and some by having been reversed by a higher court and the

proceeding remanded for further review. E.g., City of Waco v. Kelley, No. 10-03-00214-CV, 2004 Tex. App. LEXIS 9828 (Tex. App.—Waco Oct. 29, 2004) (mem. op.) (Reyna, J.), rev’d, 197

S.W.3d 324 (Tex. 2006) (per curiam), on remand, No. 10-03-00214-CV,

2007 Tex. App. LEXIS 3409 (Tex. App.—Waco May 2, 2007, no pet. h.) (Reyna, J.) ; Pena

v. State, 166 S.W.3d 274 (Tex.

App.—Waco 2005) (Reyna, J.), vacated, 191 S.W.3d 133 (Tex. Crim. App.

2006), on remand, No. 10-03-00109-CR, 2007 Tex. App. LEXIS 3417 (Tex.

App.—Waco May 2, 2007, no pet. h.) (Reyna, J.) .

keep up with our work, it is critical that we process each proceeding only one

time. But we have issued an opinion in this proceeding before. See Newton v. State, No. 10-06-00160-CR, 2007 Tex. App. LEXIS 2477 (Tex. App.—Waco Mar. 28, 2007, pet. dism’d) (mem. op.). And the prior memorandum opinion was

unanimous in the decision to affirm the conviction. [1] If the majority thought that result was wrong,

why did the majority not just rewrite the opinion and judgment rather than

voting to grant a motion to publish that prior memorandum opinion? See Newton v. State, No. 10-06-00160-CR, slip op. (Tex. App.—Waco May 9, 2007, order) .

Instead the majority waited to prepare its

new opinion until we were put under the thirty-day deadline of Rule 50 after a

petition for discretionary review was filed, a time in which the State does not

have the opportunity to provide additional briefing nor do I have adequate time

to conduct additional research. See Tex.

R. App. P. 50. In that new opinion the majority now reverses the

conviction. The majority must

have something larger at work here than just getting to what the majority

believes is the correct judgment, because there is no issue raised in the

petition for discretionary review that had not already been presented to us.

But the result of whatever is at work is

sub-standard based upon the history of the review of this Court’s work product

by the higher courts. This is the most reversed court in the State. Based on the number of this Court’s decisions

which have been reversed, this calendar year does not look good. [2] And reversals in t he last full calendar year made it an extraordinarily bad year. [3] It is of little solace to me that in most of

these reversals I had dissented to the majority’s opinion and judgment. And again I must dissent.

I attach as an appendix the body of this

Court’s memorandum opinion of March 28, 2007, which the majority ordered

published on May 9, 2007, but now withdraws. I adopt that memorandum opinion

as my dissenting opinion. Because the majority withdraws our prior opinion

affirming Newton’s conviction, and issues a new opinion and judgment which now

reverse Newton’s conviction for the aggravated sexual assault of a child, I respectfully dissent.

TOM GRAY

Chief

Justice

Dissenting

opinion delivered and filed June 13, 2007

Publish

APPENDIX

Newton appeals his convictions

for aggravated sexual assault of a child, and for indecency with a child by

sexual contact, against the victim named in the indictment as Jane Doe, the

daughter of Newton’s former wife. See Act of May 28, 1997, 75th Leg.,

R.S., ch. 1286, § 1, 1997 Tex. Gen. Laws 4911 , 4911 (amended 1999)

(current version at Tex. Penal Code Ann.

§ 22.021(a) (Vernon Supp. 2006)); Act of May 29, 1993, 73d Leg., R.S., ch.

900, art. 1, § 1.01, sec. 21.11(a), 1993 Tex. Gen. Laws 3586 , 3616

(amended 2001) (current version at Tex.

Penal Code Ann. § 21.11(a) (Vernon 2003)). We affirm.

Venue. In Newton’s fourth issue, he contends that the

evidence of indecency with a child was legally insufficient. Specifically, Newton argues that there was no evidence of venue in Brazos County.

“Unless . . .

disputed in the trial court, or unless the record affirmatively shows the

contrary, the court of appeals must presume . . . that venue was

proved in the trial court.” Tex. R.

App. P. 44.2(c); see id. 33.1(a); Henley v. State, 98

S.W.3d 732, 734 (Tex. App.—Waco 2003, pet. ref’d). In order to dispute proof

of venue, the defendant must raise the issue specifically in the trial court. See

Tex. R. App. P. 33.1(a); Etchieson

v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978); Bass v. State, 464

S.W.2d 668, 669 (Tex. Crim. App. 1971); Romay v. State, 442 S.W.2d 399,

400 (Tex. Crim. App. 1969); Martin v. State, 385 S.W.2d 260, 261 (Tex.

Crim. App. 1964) (op. on orig. submission); Atwood v. State, 120 S.W.3d

892, 894-95 (Tex. App.—Texarkana 2003, no pet.); Mosley v. State, 643

S.W.2d 212, 216 (Tex. App.—Fort Worth 1982, no pet.); see Henley at

734 . In order for the record to show affirmatively that the State did not

prove venue, “the record [must] affirmatively negate[] whatever proof was made

by the State on the matter of venue.” Holdridge v. State, 707 S.W.2d

18, 21-22 (Tex. Crim. App. 1986); see Holdridge v. State, 684 S.W.2d

766, 767 (Tex. App.—Waco 1984) (only “affirmative and conclusive proof in the

record that the venue of prosecution was improperly laid” avoids presumption), aff’d,

Holdridge, 707 S.W.2d 18 .

Newton points to evidence that

the abuse began in San Antonio. The State points to Doe’s testimony that Newton’s “sexual abuse” of Doe began when Doe moved to San Antonio and continued until she

moved to Franklin. (Br. at 50 (quoting 3 R.R. at 132).) Doe moved to San Antonio before moving to College Station in Brazos County, and then to Franklin. The State also points to evidence that Newton “insert[ed] a finger into [Doe’s]

private area” once in Brazos County. ( Id. (quoting 3 R.R. at

170).) The indictment alleged that Newton committed indecency with a child by

“engag[ing] in sexual contact by touching the genitals of Jane Doe.” [4] (I C.R. at 1.)

Newton does not point in the

record to any dispute of venue in the trial court, nor does he attempt to show

that the record affirmatively negates the State’s proof of venue or that the

record affirmatively shows that mandatory venue lay elsewhere than in Brazos

County. We presume that the State proved venue in the trial court. We

overrule Newton’s fourth issue.

Evidence . In Newton’s first three issues, he

complains concerning the trial court’s overruling of Newton’s objections to

evidence.

“An appellate court reviews a

trial court’s decision to admit or exclude evidence under an abuse of

discretion standard.” Shuffield v. State, 189 S.W.3d 782, 793 (Tex.

Crim. App.), cert. denied, 127 S. Ct. 664 (2006); accord Rachal

v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996); Montgomery v.

State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh’g). “If

the trial court’s decision was within the bounds of reasonable disagreement,

the appellate court should not disturb its ruling.” Shuffield at 793

(citing Rachal at 816); accord Montgomery at 390-92 (op. on

reh’g).

Hearsay. In Newton’s first issue, he contends that

the trial court erred in overruling Newton’s hearsay objection to outcry

evidence. See Tex. Code Crim.

Proc. Ann. art. 38.072 (Vernon 2005); Tex.

R. Evid. 801(d), 802. Texas Code of Criminal Procedure Article 38.072

“makes an ‘outcry’ exception to the hearsay rule for the first report of sexual

abuse that [a] child” victim “makes to an adult.” In re Z.L.B., 102

S.W.3d 120, 121 (Tex. 2003) (juvenile adjudication); accord Thomas v. State,

1 S.W.3d 138, 140 (Tex. App.—Texarkana 1999, pet. ref’d); see Holland v. State, 802 S.W.2d 696, 699 (Tex. Crim. App. 1991). “When offered for the

truth of the matters asserted, so called ‘outcry testimony’ is hearsay; as

such, it is objectionable unless the testimony is permitted by a prescribed

exception to the hearsay rule.” Dorado v. State, 843 S.W.2d 37, 38

(Tex. Crim. App. 1992); see Martinez v. State, 178 S.W.3d 806, 810-811

(Tex. Crim. App. 2005).

In prosecutions for certain

offenses, however, including prosecutions for sexual offenses under Texas Penal

Code Chapter 21 committed against child victims twelve years of age or younger,

subject to procedural requirements, the victim’s outcry “statements that

describe the alleged offense” are “not inadmissible because of the hearsay

rule” if the statements “were made to the first person, 18 years of age or

older, other than the defendant, to whom the child made a statement about the

offense.” Tex. Code Crim. Proc. Ann.

art. 38.072, § 2(a), (b), § 2(a)(2); see id. § 1.

Article 38.072 “strik[es] a balance between the general prohibition against

hearsay and the specific societal desire to curb the sexual abuse of

children.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)

(citing Osborne v. Ohio, 495 U.S. 103 (1990)). The statute’s

purpose is to “admit the testimony of the first adult a child confides in

regarding the abuse.” Martinez , 178 S.W.3d at 811 . Otherwise,

“the people whom these children trust and in whom they have confided

. . . are barred from repeating what they have been told

. . . .” Id. n.15 (quoting House Comm. on Crim. Jurisprudence, Bill Analysis , Tex. H.B.

579, 69th Leg., R.S. (1985)).

“But the societal interest in

curbing child abuse would hardly be served if all that ‘first person’ had to

testify to was a general allegation from the child that something in the area

of child abuse was going on at the home.” Garcia, 792 S.W.2d at 91 . In

the context, then, of determining which witness, as the “first person

. . . to whom the child made a statement about the offense” committed

by the defendant was the proper outcry witness, Article 38.072 “demands more

than a general allusion of sexual abuse”; that is, the statutory language

“statement about the offense” does not “mean[] that any statement that arguably

relates to what later evolves into an allegation of child abuse against a

particular person will satisfy the requirements of” the statute. Id. (citing Tex. Code Crim. Proc. Ann.

art. 38.072, § 2(a)(2)) (complainant testified that she told her teacher

“what happened”); see Villanueva v. State , 209 S.W.3d 239, 247 (Tex.

App.—Waco 2006, no pet.); Hanson v. State, 180 S.W.3d 726, 727 (Tex.

App.—Waco 2005, no pet.). A “statement about the offense” means “a statement

that in some discernible manner describes the alleged offense.” Garcia at

91 (interpreting Tex. Code Crim. Proc.

Ann. art. 38.072, § 2(a)(2)).

“We review the trial court’s

decision to admit or exclude a hearsay statement that may fall within the

article 38.072 hearsay exception under an abuse of discretion standard.” Klein

v. State, 191 S.W.3d 766, 779 (Tex. App.—Fort Worth 2006, pet. granted on

other grounds); accord Villanueva, 209 S.W.3d at 247 ; see Garcia, 792

S.W.2d at 91 .

The outcry witness, a

psychotherapist who treated Doe, testified outside the presence of the jury

that her notes for a date certain stated that Doe disclosed “that [Newton] had sexually abused [Doe] in the past.” (3 R.R. at 6, 7; see id. at 5-7.)

Newton argues that the

witness’s “testimony was a general conclusion of abuse that did not describe

the act in a discernible manner.” (Br. at 5); see Garcia, 792 S.W.2d at

91 . Newton conceded that the witness was the first adult to whom Doe made a

statement concerning Newton’s offenses. Although the witness’s testimony

concerning Doe’s statement to her did not specify the manner or means of Newton’s offenses, Doe’s statement did clearly allege sexual abuse and clearly identified Newton as the abuser. The trial court did not abuse its discretion in finding that the

witness’s testimony was admissible under Article 38.072. [5] The trial court did not err in overruling Newton’s hearsay objection. [6] We overrule Newton’s first issue.

Extraneous Offenses. In Newton’s second and

third issues, he contends that the trial court erred in overruling Newton’s objections to evidence of extraneous offenses.

“A trial court’s ruling on the

admissibility of extraneous offenses is reviewed under an abuse of discretion

standard.” Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App.), cert.

denied, 126 S. Ct. 481 (2005); accord Montgomery, 810 S.W.2d at

391-93 (op. on reh’g).

Newton complains of testimony

of his stepdaughter L. D.: “L.D. testified before the jury that Appellant

sexually abused her when she was nine or ten when they lived in Houston. (4 RR at 99-100). Appellant made L.D. perform oral sex on him and then forced

her to rub on his scrotum while he had sexual intercourse with an unknown

individual. (4 RR at 100).” (Br. at 17.)

Rule 404. In

Newton’s second issue, he argues under Texas Rule of Evidence 404(b). See

Tex. R. Evid. 404(b). Under

that rule, “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 as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident . . . .” Id . “Rule

404(b) allows evidence of other crimes, wrongs, or acts if the evidence has

relevance apart from character conformity.” Moses v. State, 105 S.W.3d

622, 626 (Tex. Crim. App. 2003); accord Montgomery, 810 S.W.2d at 387

(op. on reh’g); see Tex. R. Evid.

401-402; Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).

“‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. To be probative,

extraneous-offense evidence need only provide a “‘small nudge’ towards

contradicting [an] appellant’s defensive theories and towards proving that

. . . molestation did occur.” Wheeler v. State, 67 S.W.3d

879, 889 (Tex. Crim. App. 2002) (internal footnote omitted) (quoting Montgomery , 810 S.W.2d at 381 (1990) (op. on orig. submission)).

“A trial court’s Rule 404(b)

ruling is reviewed under an abuse of discretion standard.” Page v. State, 137

S.W.3d 75, 78 (Tex. Crim. App. 2004) (citing Lane v. State, 933 S.W.2d

504, 519 (Tex. Crim. App. 1996)); accord Montgomery, 810 S.W.2d at

390-91 (op. on reh’g); see Qualley v. State, 206 S.W.3d 624, 638 (Tex.

Crim. App. 2006) (per curiam). “Whether extraneous offense evidence has

relevance apart from character conformity, as required by Rule 404(b), is a

question for the trial court” in its discretion. Martin, 173 S.W.3d at

466 (quoting Moses, 105 S.W.3d at 627 ); accord Montgomery at 391

(op. on reh’g).

Defensive Issue. First,

Newton argues that the extraneous-offense evidence was not admissible to

rebut a defensive issue, as the State argued at trial that it was.

“Rebuttal of a defensive theory . . . is

. . . one of the permissible purposes for which relevant evidence may

be admitted under Rule 404(b).” Moses, 105 S.W.3d at 626 (citing Crank

v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988), disavowed on other

grounds, Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993)); see

Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004); Albrecht

v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972) (common law); Wingfield

v. State, 197 S.W.3d 922, 925 (Tex. App.—Dallas 2006, no pet.); e.g.,

Wheeler, 67 S.W.3d at 886-87 (fabrication).

A defensive issue can be

raised for purposes of Rule 404 otherwise than by evidence admitted by the

defense. “[E]xtraneous offenses are admissible to rebut defensive theories

raised by the testimony of a State’s witness during cross-examination.” Ransom

v. State, 920 S.W.2d 288 , 301 (Tex. Crim. App. 1994); accord Crank, 761

S.W.2d at 341 ; see Powell v. State, 63 S.W.3d 435, 437-39 (Tex. Crim.

App. 2001); Walker v. State, 201 S.W.3d 841, 852 (Tex. App.—Waco 2006,

pet. ref’d). “The mere fact that the state’s witness was crossexamined will

not, in and of itself, authorize the state to introduce evidence of extraneous

offenses. Rather, it is the responses elicited from a state’s witness on

crossexamination which may allow the state to subsequently introduce extraneous

offense evidence.” Crank at 341 (citing Albrecht, 486 S.W.2d at

101-102 ); accord DeLeon v. State, 77 S.W.3d 300, 314 (Tex. App.—Austin

2001, pet. ref’d). The defense may also raise a defensive theory in its

examination of the venire panel. See Person v. State, No.

B14-91-00503-CR, 1993 Tex. App. LEXIS 1050 , at *15 (Tex. App.—Houston [14th

Dist.] Apr. 8, 1993, no pet.) (not designated for publication).

The State argues that Newton raised the defensive issue that Doe fabricated her allegations, either out of her

own ill will toward him or at her mother’s prompting, in his examination of the

venire panel, in cross-examination of the State’s witnesses, and in argument. [7] The State points, and pointed in the trial court, to Newton’s cross-examination of Doe. [8] Much of that concerns general impeachment of Doe

by prior inconsistent statements; some of the cross-examination, however, does

tend to raise the issue of fabrication. For example, Newton brought out that

Doe hated and had no respect for Newton, disliked that he was “bossy,” resented

that he came between her and her mother, felt better when she moved away from

him, and first alleged that he abused her after she learned that her mother

might reconcile with him. (State Br. at 38 (citing 3 R.R. at 173).)

The State also points to Newton’s voir-dire examination, in which he asked:

Do you think that someone is—when I

say a ‘child’ in their teens—do you think someone in their teens is able to

make up a story that’s not true? Does everybody agree with that?

Do you think that—we talked

about—[the State] talked about the reason why people don’t make outcries is

because they’re scared to say something about it. I forgot who said something,

but they basically said that a child can be manipulated not to tell what has

happened by an adult.

The adult has

told them either by force or, you know, ‘This will happen to you if you say

this.’ But do you think the converse of that, do you think that basically an

adult can manipulate a child to say something? When I say ‘child’—again,

teenagers. Does everybody agree with that?

[sic] (2 R.R. at 103 (bracketed

alteration added).) [9]

The trial court was in a

position to observe Newton’s voir-dire examination and cross-examination, and

the responses of the panelists and witnesses, and the effect of those

examinations and responses on the jurors. The trial court did not abuse its

discretion in finding that Newton raised the issue of Doe’s fabricating her

testimony.

Similarity. Next, Newton argues that the extraneous offenses were not sufficiently similar to the offenses

of which he was convicted.

“To be probative, the

extraneous offense evidence admitted to rebut a defensive theory must be

similar to the charged offense.” Blackwell v. State, 193 S.W.3d 1, 13

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see Wheeler, 67 S.W.3d

at 888 .

Newton argues that “this Court should hold that the State must prove the extraneous

offense is similar enough to the charged offense to ‘earmark [it] as the

handiwork of the accused’ . . . .” (Br. at 30 (quoting Owens

v. State, 827 S.W.2d 911, 914-15 (Tex. Crim. App. 1992)) (bracketed

alteration by Newton).) Owens is distinguishable. Owens concerned

evidence of “system,” that is, “‘modus operandi’ or ‘methodology,’” or “a

defendant’s distinctive and idiosyncratic manner of committing criminal acts,”

to prove the defendant’s identity. Owens , 827 S.W.2d at 915 ; see id.

at 916 . Under Rule 404(b), “[w]hen the State seeks to admit extraneous offense

evidence under a theory of ‘system’ or modus operandi, ‘there must be a showing

that the extraneous offense which was committed by the defendant was “so nearly

identical in method [to the charged offense] as to earmark them as the

handiwork of the accused.”’” Id. at 915 (quoting Collazo v.

State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) (quoting E. Cleary, McCormick’s Handbook of the Law of

Evidence 449 (2d ed. 1972))); see Moore v. State, 700 S.W.2d 193,

201 (Tex. Crim. App. 1985); Dickey v. State, 646 S.W.2d 232, 235 (Tex.

Crim. App. 1983). To prove system, “the prior bad act ‘must be so

distinctively similar’ to the present offense ‘as to constitute a “signature”

act.’” Qualley, 206 S.W.3d at 638 (quoting Johnston , 145

S.W.3d at 221 n.16 (internal footnote omitted)); see Bishop v. State, 869

S.W.2d 342, 346 (Tex. Crim. App. 1993).

But whether extraneous

offenses are sufficiently similar to charged offenses to be admissible is a

matter of degree. For example, “the degree of similarity required is not so

great where intent is the material issue” that the extraneous offenses rebut

“as when identity is the material issue, and extraneous offenses are offered to

prove modus operandi.” Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim.

App. 1987); cf. Owens, 827 S.W.2d at 914-15 . The degree of similarity

required to rebut a defensive issue, likewise, is not great. See Blackwell,

193 S.W.3d at 13 ; Dennis v. State, 178 S.W.3d 172, 178-79

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). For example, in Mendiola

v. Texas, the trial court admitted extraneous offenses in part to rebut

Mendiola’s defense that Mendiola was impotent and thus incapable of committing

the charged offense. Mendiola v. State, 995 S.W.2d 175, 178-81 (Tex.

App.—San Antonio 1999), rev’d on other grounds, 21 S.W.3d 282 (Tex.

Crim. App. 2000). There, in order to rebut that defense, the extraneous

offenses need only tend to prove that Mendiola was not impotent. The probative

value of the extraneous offenses did not flow from their close factual

similarity to the charged offense, but only from their force to prove that the

defendant was not impotent. Likewise, the probative value of Newton’s extraneous

offenses to rebut circumstantially Newton’s fabrication issue does not flow

from a close similarity to the charged offenses.

The State pointed primarily to

the evidence that Newton sexually assaulted both stepdaughters when they were

about the same age and that the abuse continued as long as Newton was in the

home. If the jury believed that Newton committed those extraneous offenses,

that would make it more probable that Doe was not fabricating her allegations

against Newton. The trial court did not abuse its discretion in finding that

the extraneous offenses were not so dissimilar from the charged offenses as to

be without probative value.

Remoteness. Lastly, Newton argues that the extraneous offenses were “too remote to have any probative value.”

(Br. at 34.)

However, “Rule 404 imposes no

time limitations . . . .” Hernandez v. State, 203 S.W.3d

477, 480 (Tex. App.—Waco 2006, no pet.). Rather, the Rules of Evidence “favor

the admission of all logically relevant evidence for the jury’s consideration.”

Montgomery , 810 S.W.2d at 376 (op. on orig. submission); accord

Hernandez at 480 ; Prince v. State, 192 S.W.3d 49, 55 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

The cases cited by Newton are distinguishable. With the exception of one case, all of the cases cited by Newton were decided under the common law of evidence that existed prior to the adoption of

the Rules of Evidence, which common law “tended to favor the exclusion of

evidence.” Montgomery , 810 S.W.2d at 375 (op. on orig. submission);

s ee Prince, 192 S.W.3d at 55 ; e.g. Messenger v. State, 638 S.W.2d

883 (Tex. Crim. App. [Panel Op.] 1982). The other case, assuming that it was

correctly decided, concerned extraneous-offense evidence admitted to prove

system, which, for the reasons stated above, requires a high degree of

similarity; and was decided under Rule of Evidence 403, not Rule 404. See

Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi 2002, pet.

ref’d).

The trial court did not abuse

its discretion in finding that the remoteness of the extraneous offenses did

not render them without probative value.

The trial court did not abuse

its discretion in overruling Newton’s objection under Rule 404. [10] We overrule Newton’s second issue.

Rule 403. In

Newton’s third issue, he argues under Rule of Evidence 403. [11] See Tex. R. Evid.

403. Under that rule, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.” Id . We

understand Newton to argue unfair prejudice. “‘[U]nfair prejudice’ refers to

‘an undue tendency to suggest decision on an improper basis, commonly, though

not necessarily, an emotional one.’” Erazo v. State, 144 S.W.3d 487,

501-502 (Tex. Crim. App. 2004) (quoting Rogers v. State, 991 S.W.2d 263,

266 (Tex. Crim. App. 1999)); accord Cohn v. State, 849 S.W.2d

817, 820 (Tex. Crim. App. 1993).

“[A] trial court is entitled

to broad discretion in ruling on a Rule 403 objection.” State v. Mechler, 153

S.W.3d 435, 439 (Tex. Crim. App. 2005) (citing Manning v. State, 114

S.W.3d 922, 926 (Tex. Crim. App. 2003)); accord Powell v. State, 189

S.W.3d 285, 288 (Tex. Crim. App. 2006); Martin, 173 S.W.3d at 467 ; Montgomery,

810 S.W.2d at 391-93 (op. on reh’g). “. . . Rule 403’s ‘use of

the word “may” reflects the draftsman’s intent “that the trial judge be given a

very substantial discretion in ‘balancing’ probative value on the one hand and

‘unfair prejudice’ on the other, and that he should not be reversed simply

because an appellate court believes that it would have decided the matter

otherwise.”’” Powell, 189 S.W.3d at 288 (quoting Manning

at 926 ).

[A] Rule 403 analysis should include, but

is not limited to, the following factors:

(1) how probative the evidence is;

(2) the potential of the evidence to

impress the jury in some irrational, but nevertheless indelible way;

(3) the time the proponent needs to develop

the evidence; and

(4) the proponent’s need for the

evidence.

Shuffield, 189 S.W.3d at 787 (quoting Montgomery , 810

S.W.2d at 389-90 (op. on reh’g)) (alteration added); see Powell, 189

S.W.3d at 287 .

As to the second factor,

“[b]oth sexually related misconduct and misconduct involving children are

inherently inflammatory.” Montgomery , 810 S.W.2d at 397 (op. on

reh’g); accord Bishop, 869 S.W.2d at 346 ; Whitmire v. State, 183

S.W.3d 522, 529 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Rickerson v.

State, 138 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2004, pet

ref’d). In evaluating the prejudicial effect of evidence, we take into account

whether the trial court gave an instruction limiting the jury’s consideration

of the evidence to its proper purpose. Blackwell, 193 S.W.3d at 16-17 ; Dennis,

178 S.W.3d at 181 . We also consider whether the parties argued that the

jury could only consider the evidence for its proper purpose. Blackwell at

17 .

As to the third factor, “[t]he

potential for unfair prejudice occurs if the State spends an undue amount of

time presenting the extraneous offense to the jury.” Dennis, 178 S.W.3d

at 181 n.2.

As to the fourth factor,

“[t]here are three questions that the reviewing court should

answer . . . : ‘[1] Does the proponent have other

available evidence to establish the fact of consequence that the [evidence] is

relevant to show? [2] If so, how strong is that other evidence? And

[3] is the fact of consequence related to an issue that is in dispute?’” Erazo,

144 S.W.3d at 496 (quoting Montgomery , 810 S.W.2d at

390 (op. on reh’g)) (bracketed numerals added); accord Reese v. State, 33

S.W.3d 238, 242 (Tex. Crim. App. 2000).

As to the extraneous-offense

evidence’s probative value, for the reasons stated above, although the evidence

did not tend to disprove fabrication directly, it tended circumstantially to

prove that Doe did not fabricate her allegations. As to the evidence’s

prejudicial effect, the trial court carefully instructed the jury on the

circumstances under which and the purpose for which the jury could consider the

evidence, in limiting instructions both immediately after the witness

testified, and in the trial court’s charge. Moreover, both parties argued to

the jury that it could not consider the evidence apart from those circumstances

and for that purpose. As to the time that the State needed to develop the

evidence, Newton argues that it was extensive. Newton points to bench

conferences on the admissibility of the evidence, to L. D.’s testimony generally,

to the testimony of a witness apparently called to bolster L. D.’s

credibility, to Newton’s general cross-examination of L. D., and to

Newton’s direct examination of one of his witnesses. We do not attribute such

matters to the State, as proponent of the evidence, in developing the

extraneous-offense evidence. The State’s presentation of the testimony of

which Newton complains was brief. As to the State’s need for the

extraneous-offense evidence, Newton does not point to direct evidence tending

to disprove Newton’s fabrication issue, and the State points to the lack of

evidence corroborating Doe’s testimony.

On those factors, the trial

court did not abuse its discretion in finding that the prejudicial effect of

the extraneous-offense evidence did not substantially outweigh the evidence’s

probative value. The trial court did not err in overruling Newton’s Rule 403

objection. [12] We overrule Newton’s third issue.

ouHoust

CONCLUSION.

Having overruled Newton’s issues, we affirm.

[1] Justice

Vance would have addressed one particular argument raised by Newton that was

not specifically discussed in the prior memorandum opinion.

[2] See,

e.g., Sonnichsen v. Baylor Univ., No. 10-02-00125-CV, 2004 Tex. App. LEXIS

7774 (Tex. App.—Waco Aug. 25, 2004) (mem. op.) (Reyna, J.), rev'd &

judgm't rendered, 50 Tex. Sup. Ct. J. 618 , 2007 Tex. LEXIS 319 (Tex. Apr. 20, 2007) (per curiam); Coley v. Baylor Univ., 147 S.W.3d 567 (Tex. App.—Waco

2004) (Reyna, J.), rev'd & judgm't rendered, 50 Tex. Sup. Ct. J.

621 , 2007 Tex. LEXIS 322 (Tex. Apr. 20, 2007); In re Guardianship of Keller,

171 S.W.3d 498 (Tex. App.—Waco 2005) (Reyna, J.), rev'd sub nom. Zipp v.

Wuemling, 218 S.W.3d 71 (Tex. 2007) (per curiam); State Farm Life Ins.

Co. v. Martinez, 174 S.W.3d 772 (Tex. App.—Waco 2005) (Vance, J.), rev'd,

216 S.W.3d 799 (Tex. 2007); Wachovia Bank of Del., N.A. v. Gilliam, No.

10-04-00038-CV, 2005 Tex. App. LEXIS 5039 (Tex. App.—Waco June 29, 2005

(mem. op.) (Reyna, J.), rev'd & judgm't vacated, 215 S.W.3d 848 (Tex. 2007) (per curiam); Archie v. State, 181 S.W.3d 428 (Tex. App.—Waco 2005)

(Reyna, J.), rev’d, No. PD-0051-06, 2007 Tex. Crim. App. LEXIS 606 (Tex. Crim. App. May 2, 2007); Hooper v. State, 170 S.W.3d 736 (Tex. App.—Waco

2005) (Vance, J.), remanded, 214 S.W.3d 9 (Tex. Crim. App. 2007); Griggs

v. State, 167 S.W.3d 74 (Tex. App.—Waco 2005) (Vance, J.), rev'd,

213 S.W.3d 923 (Tex. Crim. App. 2007).

[3] See,

in criminal cases, e.g., Westerman v. State, No. 10-04-00292-CR,

2005 Tex. App. LEXIS 4842 (Tex. App.—Waco June 22, 2005) (not designated for

publication) (mem. op.) (Reyna, J.), rev’d, No. PD-1314-05, 2006 WL

2694388 (Tex. Crim. App. Sept. 20, 2006) (not designated for publication); Meza

v. State, No. 10-05-00037-CR, 2005 Tex. App. LEXIS 5566 (Tex. App.—Waco July 13, 2005) (mem. op.) (not designated for publication) (Gray, C.J.), remanded,

206 S.W.3d 684 (Tex. Crim. App. 2006) (sua-sponte discretionary review); Kniatt

v. State, 157 S.W.3d 83 (Tex. App.—Waco 2005) (Vance, J.), rev’d, 206

S.W.3d 657 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 667

(2006); Olivas v. State, 153 S.W.3d 108 (Tex. App.—Waco 2004) (Vance,

J.) (3 cases), rev’d, 202 S.W.3d 137 (Tex. Crim. App. 2006); Olivas

v. State, No. 10-02-00311-CR, 2004 Tex. App. LEXIS 10131 (Tex. App.—Waco Nov. 10, 2004) (not designated for publication) (mem. op.) (Gray, C.J.), rev’d, 203

S.W.3d 341 (Tex. Crim. App. 2006); Watson v. State, 160 S.W.3d 627 (Tex.

App.—Waco 2005) (Reyna, J.), rev’d, 204 S.W.3d 404 (Tex. Crim. App.

2006); Herring v. State, 160 S.W.3d 618 (Tex. App.—Waco 2005) (mem. op.)

(Reyna, J.), rev’d, 202 S.W.3d 764 (Tex. Crim. App. 2006), cert.

denied, 127 S. Ct. 2107 (2007); State v. Stanley, 171 S.W.3d

516 (Tex. App.—Waco 2005) (per curiam), rev’d, 201 S.W.3d 754 (Tex.

Crim. App. 2006); State v. Adams, No. 10-05-00102-CR, 2005 Tex. App.

LEXIS 5971 (Tex. App.—Waco July 27, 2005) (not designated for publication)

(mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754 ; State v.

Rodriguez, No. 10-05-00103-CR, 2005 Tex. App. LEXIS 5914 (Tex. App.—Waco

July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d,

Stanley, 201 S.W.3d 754 ; State v. Wachsmann, No. 10-05-00104-CR,

2005 Tex. App. LEXIS 5915 (Tex. App.—Waco July 27, 2005) (not designated for