Donald Garland Roberts v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00266-CR
DONALD GARLAND ROBERTS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two points, Appellant Donald Garland Roberts appeals his conviction for
aggravated sexual assault of a child. We affirm.
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See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Cynthia Roberts, a bipolar diabetic, married Roberts when her daughter
Jane (a pseudonym) was around ten years old. Roberts began to control
Cynthia‘s medications; while she was sedated, he began molesting Jane in the
summer of 2005, when Jane was thirteen years old. Jane testified that over a six
month period, Roberts penetrated her sexual organ with his penis on multiple
occasions—around four times a week—and forced Jane to perform oral sex on
him around five times and that he performed oral sex on her around five times.
During the same time period, Jane‘s friend Susan (a pseudonym) lived
with the family. While both were clothed, Roberts had Susan get on top of him
and wiggle around with her ―crotch area . . . touching his crotch area‖2 to make
Jane jealous.3 He also had her pretend to give him oral sex to make Jane
jealous. Roberts received a limiting instruction before Susan was allowed to give
this testimony and the trial court included a limiting instruction in the jury charge.
Jane testified that she had been afraid of Roberts and felt compelled to
remain quiet about what happened because he hit her and her mother and they
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Susan clarified that by ―crotch area,‖ she meant the areas where
Roberts‘s penis and her female sexual organ were located.
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Jane testified about a similar incident during which her mother walked in
while Jane was straddling Roberts.
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were completely dependent upon him.4 Cynthia and Jane moved out in January
2006 and obtained a protective order against Roberts. Jane made an outcry
statement in June 2006, around six months after the last assault.
A jury convicted Roberts of nine counts of aggravated sexual assault of a
child and assessed punishment at seventy years‘ confinement and a $10,000
fine for each count. This appeal followed.
III. Extraneous Offenses
In both points, Roberts argues that the trial court abused its discretion by
admitting extraneous offense evidence during the guilt-innocence phase of trial of
an assault on Cynthia and his molestation of Susan.
A. Standard of Review
We review a trial court‘s decision to admit evidence for an abuse of
discretion, and the decision should be reversed on appeal only if there is a
showing of a clear abuse of discretion. Green v. State, 934 S.W.2d 92, 101–02,
104 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Miller v. State,
196 S.W.3d 256, 267 (Tex. App.—Fort Worth 2006, pet ref‘d). Only if the court‘s
decision falls outside the ―zone of reasonable disagreement‖ has it abused its
discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh‘g).
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Roberts received limiting instructions during Jane‘s testimony regarding
Roberts hitting her mother and during Cynthia‘s testimony regarding Roberts
hitting her.
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B. Extraneous Offense Evidence
During the guilt-innocence phase of trial and outside the jury‘s presence,
the State argued that its offer of evidence that Roberts had hit Cynthia was to
show that part of Roberts‘s plan was to scare Jane into keeping quiet about the
sexual abuse. That is, as set forth by the prosecutor,
He would not only strike [Jane], he would strike her mother Cynthia
and he would throw objects and he would break objects and all of
this put the victim in fear of him such that she delayed a long, long
time before she told anybody. So it was part off [sic] his overall plan
of violence and intimidation to keep her from reporting and it was
successful.
After discussion, the trial court stated,
With regard to what the State has anticipated in its proffering the
evidence is for the purpose of showing to the jury that there was an
ongoing systematic pattern of behavior involving violence towards
the family members within the household so that he could
manipulate the child into a sexual abuse situation. That seems
reasonable to the Court.
The trial court also overruled Roberts‘s subsequent rule 403 objection.
Before the jury, the State asked Jane if she had ever seen Roberts hit her
mother, Roberts renewed his rule 404(b) and 403 objections, and the trial court
overruled these objections again but gave a limiting instruction to the jury before
Jane answered.
Roberts acknowledged prior to his cross-examination of Susan that the
defense‘s theory was that Jane had fabricated her sexual abuse accusation. The
State argued that the defense‘s cross-examination of Jane and Cynthia, that
demonstrated this theory, opened the door to Roberts‘s extraneous sexual abuse
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of Susan. Roberts disagreed, but the trial court overruled his rule 404(b) and 403
objections and allowed the State to develop the evidence concerning Susan after
giving the jury a limiting instruction.
C. Applicable Law
Rule 404(b), ―Other Crimes, Wrongs or Acts,‖ provides,
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, provided that upon timely
request by the accused in a criminal case, reasonable notice is given
in advance of trial of intent to introduce in the State‘s case-in-chief
such evidence other than that arising in the same transaction.
Tex. R. Evid. 404(b). As noted by the court of criminal appeals, rule 404(b)‘s
purpose is to see that a defendant is ―tried only for the offense for which he is
charged and not for being a criminal generally.‖ Rogers v. State, 853 S.W.2d 29,
32 n.3 (Tex. Crim. App. 1993); see also Davis v. State, 955 S.W.2d 340, 348
(Tex. App.—Fort Worth 1997, pet. ref‘d) (―If evidence is relevant to any issue in a
case ‗apart from or beyond‘ its tendency to prove the defendant‘s character to
show that he acted in conformity with it, rule 404(b) does not bar its admission.‖).
If a trial court determines that evidence of other crimes or extraneous misconduct
has relevance aside from character conformity, and a timely, proper rule 403
objection is made, the trial court must make a balancing determination under rule
403. Karnes v. State, 127 S.W.3d 184, 191 (Tex. App.—Fort Worth 2003, pet.
ref‘d) (citing Montgomery, 810 S.W.2d at 388–89).
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Rule 403, ―Exclusion of Relevant Evidence on Special Grounds,‖ provides
that ―[a]lthough 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.‖ Tex. R. Evid. 403. The relevant criteria in
determining whether the prejudice of an extraneous offense substantially
outweighs its probative value include
(1) how compellingly the extraneous offense evidence serves to
make a fact of consequence more or less probable—a factor which
is related to the strength of the evidence presented by the proponent
to show the defendant in fact committed the extraneous offense; (2)
the potential the other offense evidence has to impress the jury ‗in
some irrational but nevertheless indelible way‘; (3) the time the
proponent will need to develop the evidence, during which the jury
will be distracted from consideration of the indicted offense; and (4)
the force of the proponent‘s need for this evidence to prove a fact of
consequence, that is, does the proponent have other probative
evidence available to him to help establish this fact, and is this fact
related to an issue in dispute.
Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—Fort Worth 2008, pet. ref‘d)
(citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
D. Analysis
1. Extraneous Offense Evidence—Cynthia
With regard to Roberts‘s rule 404(b) objection to the extraneous offense
evidence pertaining to Roberts hitting Cynthia, ―[a]n extraneous offense is
admissible to explain why a victim of sexual assault did not make a prompt
outcry.‖ Wilson v. State, 90 S.W.3d 391, 394 (Tex. App.—Dallas 2002, no pet.)
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(citing Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983)). In Wilson,
the complainant did not tell the police for two years that she had been sexually
assaulted because she was scared the assailant would hurt her mother if she
told anyone about the sexual abuse. Id. The court held that ―[b]ecause the State
is allowed to present evidence on why [the minor complainant] did not promptly
report the abuse, the trial court did not err by admitting [her] testimony that [the
assailant] had assaulted her mother.‖ Id. Here, on similar facts, we hold that the
trial court did not abuse its discretion by overruling Roberts‘s rule 404(b)
objection to the extraneous offense evidence about Roberts hitting his wife.
Turning to Roberts‘s rule 403 objection, the State argued that the evidence
tended to show that Roberts used violence to silence Jane and that it
corroborated her testimony that Roberts had used violence against her too. The
testimony was clear, direct, and tied Roberts‘s physical abuse of Cynthia to his
physical abuse of Jane both as a plan and as to the reason for the plan. Further,
a class A misdemeanor assault on Cynthia pales in comparison to the six months
of sexual abuse testified about by Jane and therefore would not indelibly and
irrationally impress the jury. And the overall time spent on the incident was slight
in comparison to the State‘s overall case; therefore, any distraction of the jury
from the State‘s case in chief was minimal. Finally, the State‘s need for the
evidence was great in order to rebut Roberts‘s theory that Jane‘s accusation was
fabricated and to provide a reason—physical abuse and fear—for the delayed
outcry about the sexual abuse. See Sanders, 991 S.W.2d at 847. We hold that
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the trial court did not abuse its discretion by overruling Roberts‘s rule 403
objection with regard to the extraneous offense evidence pertaining to hitting
Cynthia.
2. Extraneous Offense Evidence—Susan
Rebuttal of a defensive theory is one of the ―other purposes‖ for which
extraneous offense evidence may be admitted under rule 404(b). Williams v.
State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411
(2010); see also Isenhower v. State, 261 S.W.3d 168, 181 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (―A trial court does not abuse its discretion in admitting
extraneous offense evidence to rebut a defensive theory of frame-up or
retaliation.‖).
For example, in Bass v. State, a jury convicted the appellant of two counts
of indecency with a child, primarily based on the complainant‘s testimony and
extraneous offense evidence of two other cases of child molestation. 270
S.W.3d 557, 557 (Tex. Crim. App. 2008). The court of appeals reversed, holding
that the trial court abused its discretion by admitting the extraneous offense
evidence, which resulted in harmful error. Id. In reversing the court of appeals‘s
decision, the court of criminal appeals noted that in his opening statement, Bass
presented a fabrication defense. Id. at 557–58. The State argued, and the court
of criminal appeals agreed, that as to the extraneous offense evidence
concerning the two other instances of child molestation,
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if the State can show that a defendant has committed similar sexual
assaults against unrelated and unconnected children, an affirmative
defense allegation that the victim [of the charged offense] fabricated
her claims is less likely to be true. By showing that the victim‘s
allegations are less likely to be fabricated, the evidence directly
rebuts the defensive claims and has logical relevance aside from
character conformity.
Id. at 562–63 (holding that such a defense opening statement opened the door to
the admission of extraneous-offense evidence to rebut the defensive theory).
Further, the court noted that the case law makes no categorical distinctions
between a ―fabrication‖ defense and a ―retaliation‖ defense. See id. at 563.
Roberts relied on both theories at trial—that Cynthia and Jane had made up the
sexual abuse accusation to retaliate for Roberts‘s refusal to share with Cynthia
the proceeds of his personal injury lawsuit.
Here, although Roberts delayed making his opening statement until after
Jane and Cynthia had testified, his cross-examination of both Jane and Cynthia
and the discussions outside the jury‘s presence revealed that fabrication and
retaliation were his defensive theories. We conclude that the trial court properly
overruled Roberts‘s rule 404(b) objection and admitted the extraneous offense
evidence of Roberts molesting Susan to rebut his defensive theories of
fabrication by Jane and retaliation by Cynthia. See id. at 562–63; see also
Bargas v. State, 252 S.W.3d 876, 892 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (stating that extraneous-offense evidence was probative to rebut defense‘s
fabrication and retaliation theory because it consisted of testimony that appellant
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had sexually touched another pre-teen girl living in appellant‘s residence at the
time he touched the pre-teen complainant in a similar manner).
And as to Roberts‘s rule 403 objection, Susan‘s testimony was clear and
direct and addressed the probability of Jane fabricating her allegations; its
potential for impressing the jury in some irrational and indelible way was minimal
since Susan‘s allegations were significantly less egregious than Jane‘s; Susan‘s
testimony was not lengthy or of such nature as to distract the jury from Jane‘s
allegations; and the State‘s need for Susan‘s testimony was great in that it
addressed the probability of fabrication by Jane, Roberts‘s defensive theory. See
Sanders, 991 S.W.2d at 847. We conclude that the trial court did not abuse its
discretion by overruling Roberts‘s rule 403 objection.
IV. Conclusion
Having overruled Roberts‘s two points, we affirm the trial court‘s judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 17, 2011
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