Opinion issued March 13, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-13-00235-CR

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RONALD EUGENE DIBELLO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Case No. 1263067

O P I N I O N

A jury convicted Ronald Dibello of indecency with a child and assessed 

punishment at three years’ confinement. On appeal, Dibello contends that the trial 

court abused its discretion in admitting a videotaped interview of B.C., the 

complainant. Finding no error, we affirm.
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Background

In 2008, B.C. and his mother, Christy Cushman, moved from Harris County, 

Texas to Tennessee. In January 2010, B.C., an eleven–year–old child who lived in 

Tennessee at the time, complained to his mother, Christy Cushman, that his penis 

hurt. Christy was concerned because B.C. had complained to her of similar pain 

several times. She explained to B.C. that it was inappropriate for anyone to touch 

his penis and told him that she had been inappropriately touched when she was a 

young girl. Ten minutes later, B.C. called for Christy. B.C. told her that Dibello, 

his step–grandfather, had touched his penis during a visit to Dibello’s residence in 

Harris County, Texas. 

The following month, B.C. participated in a videotaped interview with a 

children’s services agency in Tennessee. In the interview, B.C. stated that (1) B.C. 

had seen Dibello ejaculate; (2) Dibello had touched B.C.’s penis; (3) Dibello had 

placed B.C.’s hand on Dibello’s penis; (4) Dibello had tried to perform anal sex on 

B.C.; and (5) Dibello had asked B.C. to perform anal sex on Dibello. In May 

2010, B.C. filed a complaint in Harris County, Texas. In August 2010, a Harris 

County grand jury indicted Dibello for indecency with a child. 

Course of proceedings

At trial, B.C. testified that Dibello had committed the five acts that he had 

described in his earlier interview. During cross–examination, Dibello’s counsel 
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stated, “So, we know what your counselors have told you and what the D.A.’s have 

told you and the police have told you . . . I want to know what you know.” Over 

Dibello’s hearsay objection, the State proffered B.C.’s videotaped interview as a 

prior consistent statement under Texas Rule of Evidence 801(e)(1)(B). During 

closing argument, Dibello’s counsel argued, “[O]bviously [B.C.] didn’t know what 

happened to him except for what was put in his mind.” Dibello’s counsel also 

argued that B.C. changed his story between the interview and the trial. 

Discussion

Dibello contends that the trial court abused its discretion in admitting the 

videotaped interview of B.C., asserting that the recorded interview does not fit 

within the prior–consistent–statement hearsay exception. See TEX. R.

EVID. 801(e)(1)(B). Dibello complains that (1) B.C.’s earlier interview is 

inconsistent with his testimony at trial; and (2) B.C.’s interview does not predate 

improper influences on B.C., and thus the statement is unreliable as a prior 

consistent statement.

Standard of Review 

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A 

trial court abuses its discretion only if its decision is “so clearly wrong as to lie 

outside the zone within which reasonable people might disagree.” Taylor v. State, 
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268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its 

discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d 

531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it 

was correct on any theory of law applicable to the case. De La Paz v. State, 279 

S.W.3d 336, 344 (Tex. Crim. App. 2009).

Consistency 

A prior statement may be admitted if it is “consistent with the declarant’s 

testimony and is offered to rebut an express or implied charge against the declarant 

of recent fabrication or improper influence or motive.” TEX. R.

EVID. 801(e)(1)(B). Both in the interview and at trial, B.C. testified consistently to 

the elements of the offense. But Dibello contends that B.C. provided details in his 

testimony that he did not mention in his earlier interview, and thus the trial court 

erred in admitting it. Dibello’s argument is without merit. A prior consistent 

statement need only be “generally consistent” with the declarant’s testimony. 

Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007); see also

Williams v. State, No. 14-11-01068-CR, 2013 WL 84903, at *7 (Tex. App.—

Houston [14th Dist.] Jan. 8, 2013, pet. ref’d) (mem. op., not designated for 

publication) (holding there was no inconsistency where victim’s testimony 

described forcible sexual contact whereas victim’s prior journal entries merely 

described defendant trying to get victim to perform sex act). Because B.C.’s 
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earlier statement did not differ in relevant substance with his in–court testimony, 

we hold that the statement was generally consistent and thus could rebut a charge 

of recent fabrication. See Hammons, 239 S.W.3d at 804.

Timing 

In his cross–examination of B.C. at trial, Dibello’s counsel suggested that 

prosecutors and police officers had improperly influenced or suggested B.C.’s 

testimony. B.C.’s Tennessee interview occurred in February 2010 in Tennessee. 

In May 2010, B.C. filed a complaint in Harris County, Texas, and in August 2010, 

a Harris County grand jury indicted Dibello for indecency with a child. B.C.’s 

interview thus predates the prosecution’s alleged improper influences. 

Additionally, during closing argument, Dibello’s counsel claimed that, in the 

interview, B.C. stated that Dibello ejaculated onto a mattress, whereas at trial, B.C. 

testified that Dibello ejaculated onto his own leg. Dibello’s counsel argued that 

“adults” told B.C. to change this detail because, otherwise, the State would be 

forced to find and recover Dibello’s DNA from the mattress to prove its case. See 

Hammons, 239 S.W.3d at 808 (holding that appellate court may consider closing 

argument in determining whether there was implied charge of improper influence).

Dibello observes that B.C.’s interview does not predate each of the improper 

influences that Dibello’s counsel suggested in cross–examination. For instance, 

Dibello’s counsel suggested that, before the interview, Christy improperly 
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influenced B.C. by telling B.C. that she was inappropriately touched when she was 

a young girl. A prior consistent statement, however, need not predate each alleged 

improper influence; it need only predate one alleged improper influence. Dowthitt 

v. State, 931 S.W.2d 244, 264 (Tex. Crim. App. 1996) (“The rule requires merely 

that the witness’ prior consistent statement be offered “to rebut an express or 

implied charge against him or recent fabrication or improper influence or 

motive.”). We hold that B.C.’s Tennessee interview predated at least one of the 

improper influences alleged by Dibello’s counsel.

Conclusion

Because B.C.’s interview was consistent with his trial testimony, and it 

predated an alleged improper influence on B.C.’s testimony, the trial court did not 

abuse its discretion in admitting the statement into evidence to rebut an allegation 

of recent fabrication. Accordingly, we affirm the judgment of the trial court.

Jane Bland

Justice 

Panel consists of Justices Keyes, Bland, and Brown.

Publish.