NUMBER 13-15-00176-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SEAN QUINN JULIAN, Appellant,

 

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of 

DeWitt County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Perkes and Longoria 

Memorandum Opinion by Justice Longoria

Appellant Sean Quinn Julian was charged by indictment with indecency with a child 

by contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West, 

Westlaw through 2015 R.S.). The jury found Julian guilty, and the trial court assessed 

punishment of 20 years’ confinement in the Texas Department of Criminal Justice—

Institutional Division. In one issue on appeal, Julian argues that the trial court erroneously 
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admitted extraneous offense evidence. We conclude that the trial court did not abuse its 

discretion in admitting the extraneous offense evidence. We affirm.

I. BACKGROUND

Julian was indicted for indecency with a child in January of 2014. The State alleged 

that Julian touched the breast of his youngest biological child, then fifteen years old, with 

the intent to arouse or gratify his sexual desire. The daughter testified that she was lying 

on her bed when her father laid behind her. Both of them were facing the same direction

and underneath a blanket. She asserted that in an instant, Julian was rubbing her nipples 

underneath her bra with his hands. She testified that she could feel his erect penis on 

her back and that he slowly massaged his way down towards her panty line.

In a hearing outside the presence of the jury, the State requested to introduce two 

pieces of extraneous offense evidence: 1) testimony from Julian’s eldest daughter, who 

was seventeen years old at the time, alleging that Julian molested her for many years by 

lying down on the couch behind her and fondling her breasts and vagina underneath her 

clothes; and 2) testimony from a police officer that Julian admitted to “groping [his eldest 

daughter’s] breast and vagina underneath her clothing.” Julian objected to this evidence 

being introduced and argued that he had not “opened the door” to allow the State to 

introduce extraneous offense evidence. The trial court allowed the State to present both 

pieces of extraneous offense evidence.

The jury found Julian guilty. The trial court sentenced him to 20 years’ 

confinement. This appeal followed.

II. EXTRANEOUS OFFENSE EVIDENCE

In his sole issue on appeal, Julian asserts the trial court improperly admitted 

extraneous-offense evidence that he molested his eldest daughter because he “did not 
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open the door to the admission of the extraneous offense” and “the State failed to 

articulate a precise reason for offering the extraneous offense for admission into evidence 

other than the vague and nebulous concept of modus operandi.”

A. Standard of Review and Applicable Law

We review the admission of extraneous offense evidence for abuse of discretion. 

See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the 

trial court's ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of 

discretion, and the trial court's ruling will be upheld.” Id. at 304. The trial court does not 

abuse its discretion in admitting extraneous offense evidence if there is reasonable 

disagreement as to whether the evidence made the defensive theories less probable. 

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

Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to 

prove a person's character in order to show that on a particular occasion the person acted 

in accordance with the character.” TEX. R. EVID. 404(b)(1). However, extraneous-offense 

evidence may be admissible for other purposes, “such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 

Id. R. 404(b)(2). Extraneous offense evidence can also be used to prove the “system” or 

“modus operandi” of the defendant if that system tends to prove a material issue at trial. 

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

The Court of Criminal Appeals has stated that 

Rule 404(b) is a rule of inclusion rather than exclusion—it excludes only 

evidence that is offered solely for proving bad character and conduct in 

conformity with that bad character. While Rule 404(b) requires the State to 

provide notice of other crimes, wrongs, or acts it plans to introduce in its 

case-in-chief, there is an exception to this notice requirement when the 

defense opens the door to such evidence by presenting a defensive theory 

that the State may rebut using extraneous-offense evidence. To hold 

otherwise would impose upon the State the impossible task of anticipating, 
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prior to the beginning of trial, any and all potential defenses that a defendant 

may raise. 

Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (internal citations omitted). 

Thus, extraneous offense evidence may be admitted specifically to rebut a defensive 

theory raised in the opening statements or raised by the State’s witnesses during crossexamination. See Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 

2008, no pet.). “To raise a defensive theory sufficient to open the door to the introduction 

of the extraneous-offense evidence, the cross-examination responses must undermine 

the State's testimony and effectively place in controversy a fact that testimony was offered 

to prove.” Id. For example, extraneous offense evidence may be admitted to rebut the 

defendant’s theory that the child complainant’s allegations of sexual abuse are “pure 

fabrication.” See Bass, 270 S.W.3d at 563.

When an objection is made to extraneous offense evidence under Rule 404, the 

proponent of the evidence has the burden of persuading the trial court that the evidence 

has relevance apart from character conformity. See Montgomery v. State, 810 S.W.2d 

372, 388 (Tex. Crim. App. 1990) (en banc) (op. on reh’g).

B. Rule 404 of the Texas Rules of Evidence

Julian argues that he did not open the door to allow the State to present the 

extraneous-offense evidence regarding his eldest daughter. The youngest daughter 

testified for the State during the trial and discussed the alleged abuse. However, through 

his cross-examination, Julian expressly suggested that the youngest daughter’s 

explanation of events was physically impossible. Julian argued that based on his size, 

her size, the size of the twin bed, and where the complainant claims her head was resting 

on the bed, it was impossible for his erect penis to have been pressed against her back. 

Julian also insinuated that the complainant was framing him because she was upset that 
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their current house in Texas was not as spacious as their previous home. Also, Julian 

implied his youngest daughter was motivated to lie about the alleged sexual contact 

because she was upset that he failed to check on her well-being while she was in the 

hospital. We hold that the defensive theories Julian raised through cross examination 

opened the door to the State’s extraneous-offense evidence. See Dabney, 492 S.W.3d 

at 317; Bass, 270 S.W.3d at 563. 

Julian also asserts that “the State failed to articulate a precise reason for offering 

the extraneous offense for admission into evidence other than the vague and nebulous 

concept of modus operandi.” We disagree. To the contrary, the State offered the 

evidence quite clearly for the purpose of demonstrating Julian’s “MO,” or “modus 

operandi,” and to rebut Julian’s defensive theory that the complainant’s description of

events was pure fabrication. Julian then argues that the extraneous-offense evidence 

does not show or specifically articulate “a plan.” However, the State never argued that 

the evidence was being offered under Rule 404 to show that Julian had a “plan,” one of 

the noncharacter-conformity purposes for which evidence may be admitted under Rule 

404. TEX. R. EVID. 404(b)(1). Instead, the State argued that the extraneous offense 

evidence showed Julian’s modus operandi, another legitimate purpose for which 

evidence is admissible under Rule 404. See id.; see also Owens, 827 S.W.2d at 914.

We also disagree with Julian’s argument that it was improper for the State to offer 

the extraneous offense evidence as modus operandi evidence. Although Julian argues 

that the concept of modus operandi is “vague and nebulous,” admitting evidence under 

Rule 404(b) to show modus operandi is perfectly valid. See Martin v. State, 173 S.W.3d 

463, 468 (Tex. Crim. App. 2005); Grant v. State, 475 S.W.3d 409, 419 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref'd). The State offered the extraneous offense evidence 
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to show the identical manner of committing the alleged offenses. Both offenses were 

sexual assaults committed against minor females, both of whom were Julian’s biological 

daughters. In both cases, Julian would lie down behind his daughter, under a blanket, 

and massage his daughters’ breasts underneath their bras, gradually massaging down 

towards the panty line. See id. We find that the extraneous-offense evidence was 

admissible for the noncharacter-conformity purpose of showing modus operandi. See 

Bass, 270 S.W.3d at 563; Owens, 827 S.W.2d at 914.

We conclude that the trial court did not abuse its discretion by admitting the 

extraneous offense evidence. See De La Paz, 279 S.W.3d at 343. We overrule Julian’s 

sole issue.

III. CONCLUSION

We affirm the trial court’s judgment.

/s/ Nora L. Longoria

Nora L. Longoria

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

22nd day of November, 2016.