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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-12-00326-CR

____________________

LEE ROY BIBLE, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 221st District Court 

Montgomery County, Texas

Trial Cause No. 11-08-08966 CR 

________________________________________________________ _____________

MEMORANDUM OPINION 

Lee Roy Bible was charged with sexually abusing his granddaughter, S.M. 

A jury convicted Bible of two counts of indecency with a child, and the trial court 

sentenced Bible to thirty years in prison on each count. In three appellate issues, 

Bible challenges the admission of extraneous-offense evidence. We affirm the trial 

court’s judgment.
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We review a trial court’s admission of extraneous-offense evidence under an 

abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. 

App. 1998) (op. on reh’g). Evidence of other crimes, wrongs, or acts may be 

admissible for purposes such as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b).

Even relevant evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, misleading 

the jury, or by considerations of undue delay or needless presentation of 

cumulative evidence. Tex. R. Evid. 403.

In issue one, Bible challenges the admission of evidence based on sexual 

abuse allegations made in 2000 by another granddaughter, S.B. According to 

Bible, this evidence was presented through S.M.’s testimony, Detective Melanie 

Wood’s testimony, and an audio recording of an interview between Wood and 

Bible in violation of Rule 403. At a pretrial motion in limine hearing, the State

explained that S.M. gave a delayed outcry because, in 2000, S.B. made sexual 

abuse allegations against Bible, which led to a physical altercation between S.B.’s 

father and Bible, after which Bible stopped abusing S.M. and S.M. did not want 

Bible to get into trouble. The defense argued that this evidence was highly 

prejudicial and not probative. The trial court withheld a ruling. At a later hearing, 
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the parties discussed the admissibility of an audio recording of Wood’s interview 

with Bible that contained discussions about S.B. The trial court ordered that the 

recording be redacted to omit references to S.B., subject to further rulings. 

During opening statements, defense counsel argued that S.M.’s father had 

molested her during the same time period and the evidence would show that: 

. . . there was an incident where . . . she got a little nervous and fidgety 

and shied away from a boy, from her boyfriend.

And she could see he was hurt by the way she was responding 

to him. And in explanation of that, what does she do? “My grandpa 

has been molesting me.” . . . But who is she closer to -- dad or step 

grandfather?

So, in explanation, she is not going to tell that boyfriend: My 

dad is doing this. She is going to tell: Granddad did it, step granddad

did it.

S.M. subsequently testified that she did not disclose the abuse because she was 

afraid Bible would get into trouble. On cross-examination, the following exchange 

occurred:

Defense Counsel: And you were not afraid your father was 

going to beat up Mr. Bible because you know what your father was 

doing to you, correct?

S.M.: Right.

Defense Counsel: So you really -- that’s not the reason for your 

delayed outcry, correct?

S.M.: No. I mean, you’re wrong. That is the reason.
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Defense Counsel: Because you were afraid of your father 

beating him up?

S.M.: Because I was afraid.

. . .

Defense Counsel: And this whole thing came about because 

you had to explain to a boyfriend why you didn’t want him touching 

you.

S.M.: Right.

Defense Counsel: Because you put it all on Mr. Bible, right?

S.M.: Right.

Defense Counsel: You didn’t tell him all the horrible things 

your dad was doing to you because you didn’t want to get your dad in 

trouble, right?

S.M.: Right.

Defense Counsel: And that’s the real reason you’re telling this 

story about Mr. Bible.

S.M.: Right.

On redirect, the State argued that the door had been opened to extraneous acts to 

explain S.M.’s delayed outcry, and the trial court agreed. Over the defense’s 

hearsay objections, S.M. testified that she had heard about a physical fight between 

Bible and her uncle over Bible’s inappropriate acts with S.B. S.M. denied 

fabricating the allegations against Bible. 
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Before Wood testified, the State expressed intent to offer the audio recording 

without redacting discussions about S.B. Over Bible’s Rule 403 objections, the 

trial court ruled that the conversations would be admitted and that Wood could 

testify to this subject. The record does not indicate that Bible obtained a running 

objection on Rule 403 grounds. Wood testified that she was involved in a 2000

indecency with a child case regarding sexual abuse of S.B. by Bible. Wood 

testified that S.B.’s father fought with Bible when he heard about the allegations. 

The trial court gave the jury a limiting instruction regarding Wood’s testimony. 

The State subsequently played the audio recording for the jury. 

We first address the State’s contention that Bible has failed to preserve this 

issue for appellate review. Bible objected to admission of evidence concerning the 

2000 allegations at the pre-trial motion in limine hearing, but did not obtain a 

ruling on his objection at that time. See Tex. R. App. P. 33.1(a). Moreover, “[f]or 

error to be preserved with regard to the subject of a motion in limine, an objection 

must be made at the time the subject is raised during trial.” Fuller v. State, 253 

S.W.3d 220, 232 (Tex. Crim. App. 2008). When S.M. testified, however, Bible 

objected solely on hearsay grounds. A hearsay objection does not constitute the 

proper evidentiary basis for challenging extraneous-offense evidence. See 

Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (“An objection 
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stating one legal theory may not be used to support a different legal theory on 

appeal.”).

Regarding the recorded interview, the trial court initially agreed that 

references to S.B. should be redacted. Absent an adverse ruling, however, nothing 

was preserved for review at that time. See Flores v. State, 871 S.W.2d 714, 723 

(Tex. Crim. App. 1993). By the time Wood testified, without a Rule 403 objection,

and the jury heard the audio recording, S.M. had already testified to the 2000 

allegations without a Rule 403 objection. Additionally, one of the defense’s own 

witnesses, Bible’s wife, acknowledged that she was aware of a situation involving 

S.B. that occurred in 2000 and that she did not know anyone who saw anything 

happen between S.B. and Bible. On cross-examination, without an objection from 

the defense, Bible’s wife testified that she was aware of a 2000 physical altercation 

between Bible and his son. 

Even the erroneous admission of evidence will not require reversal when the 

same or similar evidence was received without objection, either before or after the 

complained-of evidence. See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. 

App. 2010). Bible’s hearsay objections to S.M.’s testimony cannot be used to 

support a different legal theory, violation of Rule 403, on appeal. See Clark v. 

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also Camacho, 864 
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S.W.2d at 533. Because the same or similar evidence was admitted through S.M.’s 

testimony, without an objection on the proper evidentiary basis, and Bible’s own 

defense witness, Bible has forfeited any complaint regarding the interview and 

Wood’s testimony on the same subject matter. See Coble, 330 S.W.3d at 282. We 

overrule issue one.

In issues two and three, Bible challenges the admission of testimony from 

A.W., the victim of a 1983 sexual abuse offense involving Bible. Bible contends 

that A.W.’s testimony was admitted into evidence in violation of Rules of 

Evidence 403 and 404. During discussions regarding Wood’s recorded interview 

with Bible, the trial court ordered that the recording be redacted to exclude any 

conversations related to A.W. Before A.W. testified, the defense argued that her 

testimony was irrelevant, not probative, and prejudicial. The trial court overruled 

the objection on grounds that the evidence was admissible to rebut the defensive 

theory of recent fabrication, but stated that A.W. could not testify that Bible went 

to prison for the offense. The trial court gave the jury a limiting instruction before 

A.W.’s testimony. A.W. testified that Bible was a family friend and that when she 

was seven years old, Bible sexually assaulted her. 

Rebuttal of a defensive theory is a permissible purpose for which evidence 

may be admitted under Rule 404(b). Williams v. State, 301 S.W.3d 675, 687 (Tex. 
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Crim. App. 2009). Specifically, extraneous-offense evidence is admissible to rebut 

the defensive theory that the complainant fabricated the allegations against the 

defendant. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). In this 

case, the defense raised the issue of fabrication by arguing that S.M. lodged 

allegations against Bible because she did not want her boyfriend to know that her 

father was her abuser and by questioning S.M. on this topic. On appeal, Bible 

contends that A.W.’s testimony could not be used to rebut his defense because the 

1983 offense is not sufficiently similar to the charged offense. 

An extraneous offense offered to rebut a defensive theory of fabrication does 

not require the same degree of exacting similarity between the extraneous and 

charged offenses as does an extraneous offense offered to prove a defendant’s 

system of committing criminal acts. Dennis v. State, 178 S.W.3d 172, 179 (Tex. 

App.—Houston [1st Dist.] 2005, pet. ref’d). The charged offense and the 

extraneous offense must at least be similar. See Wheeler v. State, 67 S.W.3d 879, 

887 n.22 (Tex. Crim. App. 2002). In this case, both S.M. and A.W. are female, 

both were children at the time of the abuse, both were around the same age at the 

time of the abuse, Bible knew both of the victims, and though not identical, both 

offenses involved similar sexual acts. It is subject to reasonable disagreement 

whether A.W.’s testimony was admissible for the noncharacter-conformity purpose 
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of rebutting Bible’s defensive theory that S.M. fabricated her allegations against 

him. See Bass, 270 S.W.3d at 563. It is also subject to reasonable disagreement 

whether A.W.’s testimony made Bible’s defensive theory of fabrication less 

probable. See id. Under these circumstances, the trial court did not abuse its 

discretion by concluding that A.W.’s testimony was admissible to rebut Bible’s

defensive theory of fabrication. 

Nevertheless, even relevant evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. A 

Rule 403 balancing test considers:

(1) the inherent probative force of the proffered item of evidence 

along with (2) the proponent’s need for that evidence against (3) any 

tendency of the evidence to suggest 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 v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Rule 403 

envisions exclusion of evidence only when there is a clear disparity between the 

degree of prejudice of the extraneous-offense evidence and its probative value.

Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). Rule 403 favors 

the admission of relevant evidence and presumes that relevant evidence will be 
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more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. 

App. 2007).

On appeal, Bible complains that the 1983 offense was too remote from the 

charged offense and that the State had already introduced evidence of the 2000 

offense, thereby reducing the probative value of A.W.’s testimony. Although the 

remoteness of an extraneous offense impacts its probative value, there is no 

“presumptive time limitation which must be met for an extraneous offense to have 

probative value.” Newton v. State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, 

pet. ref’d). A.W.’s testimony was probative to rebut Bible’s defensive theory of 

fabrication, but this factor weighs only slightly in favor of admissibility, given the 

remoteness of the 1983 offense. See id. at 320. While the State had presented 

evidence of the 2000 offense, because there were no witnesses to the abuse of S.M. 

and Bible claimed S.M. fabricated her allegations, the trial court could have 

determined that the State had a considerable need for evidence of the 1983 offense.

See id. 

A.W.’s testimony consumed a relatively small portion of the evidence 

presented at trial, was not cumulative, and, in closing, the State argued that A.W.’s 

testimony was offered as evidence to rebut Bible’s defensive theory of fabrication. 

Additionally the trial court’s limiting instruction, which restricted the jury’s 
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consideration of A.W.’s testimony to rebut the defensive theory of fabrication and 

for no other purpose, minimized any impermissible inference of character 

conformity. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996).

Finding no clear disparity between the degree of prejudice of the 1983 offense and 

its probative value, we hold that the trial court did not abuse its discretion by 

admitting A.W.’s testimony into evidence. See Hammer, 296 S.W.3d at 568. We 

overrule issues two and three and affirm the trial court’s judgment.

AFFIRMED.

 ________________________________

 STEVE McKEITHEN

Chief Justice

Submitted on June 19, 2013

Opinion Delivered July 10, 2013

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.