providing that expert testimony may aid a factfinder by providing information that sexually abused children sometimes offer conflicting accounts
How later courts described this case
- providing that expert testimony may aid a factfinder by providing information that sexually abused children sometimes offer conflicting accounts
- Defendant’s denials of sexual assaults upon the child victim did not alone provide a proper purpose for introduction of child’s testimony about other crimes; since State suggested no theory of relevance other than character conformity, the testimony would only have shown that defendant was acting in conformity with his character when he allegedly assaulted the victim.
- though victim's testimony was impeached on cross-examination testimony of other molestations allegedly committed by the defendant were not admissible to rehabilitate complainant because the testimony did not render the victim any more credible
- State, as proponent of the evidence, suggested no theory of logical relevance other than character conformity by which rebuttal testimony can be said genuinely to rebut appellant's denials
Written by the judges who cited it.
The opinion
CAMPBELL, Judge,
dissenting.
Despite the majority’s labored analysis, this is not a difficult case. The question presented is simply whether the court of appeals erred in holding that the trial court did not abuse its discretion in admitting evidence of uncharged sexual misconduct on the part of appellant. The majority concludes that, “[bjecause the State [at trial] identified no viable theory of admissibility ... under Rule 404(b) [of the Texas Rules of Criminal *904 Evidence], the trial court abused its discretion [in admitting the evidence],” and “[t]he court of appeals erred to conclude [sic] otherwise.” 1 The reality, however, is that the court of appeals did not err and the trial court did not abuse its discretion, because the uncharged misconduct evidence was admissible under Rule 404(b) to prove appellant’s motive to commit the charged offense. It is quite irrelevant that the State did not propound this theory of admissibility at trial. IVhat is relevant is that the trial court made the right decision, even if it did so for the wrong reason. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (“If the trial judge’s decision [to admit evidence] is correct on any theory of law applicable to the case, ..., it will be sustained.”).
The complainant, appellant’s teenage stepson, testified at trial that, on an unspecified occasion in March 1991, he was in the bathroom of his home urinating when appellant, who was intoxicated, came into the bathroom and shut the door behind him. Appellant then walked over to the complainant, knelt down, and fellated him. This was the conduct for which appellant was charged.
The complainant also testified, over appellant’s objection, 2 about uncharged sexual misconduct on appellant’s part. The complainant testified that, on an unspecified occasion, he was lying on his stomach in his bedroom watching television when appellant, who was again intoxicated, came into the room, climbed on top of him, and moved his groin area “up and down” on the complainant’s buttocks. According to the complainant, both he and appellant were fully clothed at the time of the misconduct.
It is a fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not for being a criminal generally. Owens v. State, 827 S.W.2d 911, 914 (Tex.Crim.App.1992). Rule 404(b) incorporates this tenet by prohibiting the admission of uncharged misconduct evidence that shows nothing more than the accused’s general propensity to commit criminal acts. Id. Thus, under Rule 404(b), uncharged misconduct evidence is admissible only if it helps prove something other than simple propensity to commit crimes. In other words, the admission of the uncharged misconduct evidence must be supported by a theory of relevance beyond propensity.
Motive is such a theory of relevance, and it is explicitly recognized in Rule 404(b). The uncharged misconduct evidence presented at appellant’s trial was admissible to prove his motive for the charged offense — that motive being his abnormal sexual desire for the complainant — regardless of whether the complainant’s credibility was challenged. As we explained in Brown v. State, 657 S.W.2d 117, 118 (Tex.Crim.App.1983) (quoting Texas Law of Evidence):
The sexual passion or desire of X for Y is relevant to show the probability that X did an act realizing that desire. On the principle set out above, this desire at the time in question may be evidenced by proof of its existence at a prior or subsequent time. Its existence at such other time may, of course, be shown by any conduct which is the natural expression of such desire.
No less an authority than Professor Wig-more agreed that uncharged sexual misconduct evidence is admissible to prove the motive of the defendant to commit the charged offense. Wigmore explained that “[t]he prior or subsequent existence of a sexual passion in A for B is relevant ... to show its existence at the time in issue.” 2 Wigmore, Evidence § 398, at 445 (Chadbourn rev.1979).
*905 In prosecutions for sexual abuse of children by those in loco parentis, evidence of motive may be critical because it helps counteract jurors’ “aversion to the notion that parents or others in loco parentis would actually commit sexual crimes against their own children.” Montgomery v. State, 810 S.W.2d 872, 394 (Tex.Crim.App.1990).
Several other jurisdictions have already addressed the admissibility of uncharged sexual misconduct evidence in child sex abuse prosecutions. They have held that, in such prosecutions, evidence of uncharged sexual misconduct involving the defendant and the same or other children is admissible under Rule 404(b) to prove the defendant’s motive in committing the charged offense. See, e.g., State v. Martin, 242 Neb. 116 , 493 N.W.2d 191, 194-196 (1992) (in prosecution of defendant for sexual assault of minor daughter, daughter’s testimony regarding defendant’s uncharged sexual misconduct with her held admissible under Rule 404(b) to prove defendant’s motive to commit charged offense); State v. Roman, 622 A.2d 96, 98-99 (Me.1993) (in prosecution of defendant for sexual assault of 8-year-old female, evidence of defendant’s uncharged sexual misconduct with same child held admissible under Rule 404(b) to prove defendant’s sexual attraction toward child); State v. Tobin, 602 A.2d 528, 531-532 (R.I.1992) (in prosecution of defendant for sexual assault of minor niece, niece’s testimony regarding defendant’s uncharged sexual misconduct with her held admissible under Rule 404(b) to prove defendant’s sexual attraction toward niece); State v. Plymesser, 172 Wis.2d 583 , 493 N.W.2d 367 , 372-373 (1992) (in prosecution of defendant for sexual assault of female child, evidence of defendant’s uncharged sexual misconduct with another female child held admissible under Rule 404(b) to prove defendant’s motive to commit charged offense); Brown v. State, 817 P.2d 429, 433-434 (Wyo.1991) (in prosecution of defendant for sexual assault of two minor stepdaughters, stepdaughters’ testimony regarding defendant’s uncharged sexual misconduct with them held admissible under Rule 404(b) to prove defendant’s motive to commit charged offense); see also Bowden v. State, 538 So.2d 1226, 1235 (Ala.1988) (in prosecution of defendant for rape of child, evidence regarding defendant’s uncharged sexual misconduct with child admissible to prove his motive to commit charged offense); State v. Garner, 116 Ariz. 443 , 569 P.2d 1341, 1344-1346 (1977) (in prosecution of defendant for sexual assault of child, evidence of defendant’s uncharged sexual misconduct with same child admissible to prove defendant’s sexual attraction toward child).
From the dicta in Montgomery , and from the holdings of many of our sister courts around the country, it is plain to me that the trial judge in this case properly admitted evidence of uncharged sexual misconduct, under Rule 404(b), as valid, non-propensity evidence that tended to prove motive. From the majority’s failure to so hold, I dissent. I would affirm the judgment of the court of appeals.
McCORMICK, P.J., and WHITE, J., join.
. Rule 404(b) provides in relevant part: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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....”
. Appellant timely objected that the uncharged misconduct evidence had "no bearing whatsoever on the matter before ... the jury” and that “[the] rules for why extraneous offenses are not allowed to be brought in ... should be adhered to.” Thus, it was reasonably apparent that appellant was relying upon Rule 404(b). See Tex. R.Crim.Evid. 103(a).