### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00085- CR

Mark A. Clar k, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR-20 10- 276, H ONO RAB LE LLOY D DOUGLAS S HAVER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury acquitted appellant Mark A. Clark of attempted ag g rava ted sexual assault but convicted him of attempted sexual perf ormanc e by a child and assessed punishment at seven y ear s’ imprisonment. See Tex. Penal Code §§ 43.25(b) (def ining offe nse of sexual perf ormanc e by a child), 15.01 (def

ining criminal attempt). The State’s case rested primarily on the minor co m p lainant’s 1 testimony that Clark, a lawy er, had asked the complainant to model linge rie for him at his law office in exchang e for money and free leg al s ervic es and on extraneous-off ense eviden ce t h at C l ark had propositioned another y oung client at h is la w office to model linge rie for him in exchang e for money . I n six issues, Clark argues: (1) the evidenc e was insufficient to support his conviction; (2) the trial
court improperly admitted the extraneous-off ense evidence; and (3) the trial court improperly excluded evidenc e of the complainant’s c hara cter . We affir m the trial court’ s judgme nt.

To protec t her identity , the minor complainant will be re fer red to a s “complaina

nt.” 1BACK GR OUND I n J une o f 2 0 09, the twelve- y ear -old complainant and her mother met Clark—a fifty -two-y ear ol d l aw y er

— s eeking his leg al service s in reg ard to an outcry of sexual abuse the complainant had made ag ainst her fathe r and g randf ather

. After discussing the alleg ed sexual abuse with Clark at his office , the complainant and her mother wer e prepa ring to leave and mentioned they

wer e g oing to g o to Wal-Mart next to buy the complainant something for a dollar. Clark told them they could not buy any

thing for a dollar an d gav e the complainant’s mother a $100 bill wra pped around his business ca

rd. L ater that day , Clark called the complainant at home and asked if she could come to his office the next day to assist him with paper work. The complainant’s mother drove her to Clark’s office the next day as planned. But afte r her mother left, the compl ainant testified that instead of g iving her p ap er wo rk , C lark g ave her a red plastic cup he said was filled with lemonade but that tasted like alcohol. He then, acc ording the complainant’s testimony , asked her to model linge rie for him in exchang e for $1,000 and Clark not char g ing her mother for leg al service s. The complainant descr ibed the linge rie as a black see- throug h shirt with long sleeve s that wer e “poofy at the end” and that Clark would have been a ble to see he r “pr ivate par ts” if she ha d modeled it. The complainant additionally testified that Clark made s ev era l other inappropriate

rema rks to her, including asking her if she thought any thing could fit in her “lower are a,” telling her that he had a big penis, asking her if she liked to watch pornog raphic movies, and asking her whether she thought it wa s wrong that the play boy bunnies lived with a

n old ma n. Whil e he was speaking , the complainant testified that Clark was petting a cat o n h i s l ap and told her that he wished she

2would be like the cat beca use it would let him pet it and pet it, but that he would stop whene ver the
cat wanted him to stop. After she ref used to model the linge rie, the complainant testified that Clark told her to call her mother. On the way home from Clark’s office , the complainant informed her mother of Clark’ s conduct, a nd they contac ted the police that day

. The police sear ched Clark’s office which was located in a n old home that had been

renovated i nto an office. I n the bathroom of the off ice, the police found a trash can containing an empty bottle of Mike’s Har d L emonade and red plastic cups wer e discovere d in the kitchen. I n the bathroom, the police also noticed a larg e pull-out cabine t used as a hamper

. Upon pulling the cabine t all the way out, the police discovere d a secr et space behind the cabine t draw er containing sever al plastic bag s filled with multi ple piece s of l inge rie, magnum-sized condoms, K- Y J elly , a six -pac k of Mike’s hard lemonade with one bottle missing, bottles of alcohol, and sex toy s. The complainant

was not able to identify the linge rie Clark alleg edly showed her from the bag s of linge rie discovere d in the bathroom.

A T T E M P T E D S E X U A L P E R F O R M A N C E B Y A C H I L D

I n his first two points of err or, Clark contends the evidenc e is insufficient to support his conviction for attempted sexual perf ormanc e by a child. See Tex. Penal Code §§ 15.01, 43.25(b). A person commits the offe nse of sexual perf ormanc e by a child “i f k n o wi ng the char acte r and
content there of, he employ s, authorizes, or induces a child

. . . to eng ag e in sexual co n d u ct or a sexual perf

ormanc e.” Id. § 43.25(b). A person comm i t s an attempted offe nse, “if, with specific intent to commit an offe nse, he does an act amounting to more than mere prepa ration that tends but fails to eff

ec t t h e commission of the offe nse intended.” Id. § 15.01(a) ; see also Y alch v. State , 3743 S.W .2d 231, 233 (Tex. Crim. App. 1988) (discussing elements of criminal attempt). There fore ,

the offe nse of attempted sexual perf ormanc e by a child is committed if: (1) the defe ndant; (2) with specific intent t o em ploy , authorize, or induce a child to eng ag e in sexual conduct or a sexual perf ormanc e; (3) do es an ac t amounting to more than mere prepa ration; (4) that tends but fails to eff ect the commission of sexual conduct or a sexual perf ormanc e by a child. Tex. Penal C o d e §§ 15.01, 43.25(b); see also Chen v . State , 42 S.W .3d 926, 929 (Tex. Crim. App. 2001).

Clark was char g ed wi t h at t empt ed sexual perf ormanc e by a child by attempting to induce the complainant to enga ge i n s ex ual conduct or a sexual perf ormanc e. The term “sexual perf ormanc e,” however , is define d as any perf ormanc e that includes “se x ual conduc t by a child.” Tex. Penal Code § 43

. 2 5 (a )( 1 ). There fore , the char g ed offe nse require d evidenc e that Clark attempted to induce the complainant to eng ag e in sexual conduct. “Sexual conduct” is define d as including, among other things, “sexual contac t” and “lewd exhibi tion of the g enitals, the anus, or any portion of the fe male bre ast below the top of the are ola.” Id. § 43.25(a) (2).

Clark argues there is no evidenc e t h at he attempted to induce the complainant to eng ag e in sexual conduct because the State did not prove the ling erie he asked the complainant to

wea r would have resulted in a lewd exhibi tion of her g enitals and there was no evidenc e he intended the complainant to eng ag e in sexual co ntact. In this case , Clark was char g ed with attempting to induce a child to eng ag e in sexual conduct. There fore , our focus is on whether Clark intended to commit the offense of sexual p er formanc e by a child, which can be inferr ed from his acts, words,

or conduct. See Alexande r v. State , 906 S.W .2d 107, 110–111 (Tex. A pp.—Dallas 1995, no pet.);

see also Chen , 42 S.W .3d at 930 (suffic ient evidenc e of intent when “appe llant’s g oal was to commit

4the offense of sexual perf ormanc e by a child”). The complainant testified t h at C lark asked her to model a piece of linge rie that was “see -throug h” and would have reve aled her “privat e p arts.” Fur ther, the compl ai nant testified that Clark g ave her an alcoholic drink, asked her if she liked to watch pornog raphic movies, told her that he had a big penis, asked her if she thought any thing “could fit in [her] lower are a,” and told her that he wished she would be like his cat who he could pet. We 2 conclude that this evidenc e, when taken toge ther, is sufficie nt to allow a rational trier of fac t to find beyond a rea sonable doubt that Clark intended to induce the complainant to eng ag e in sexual conduct by either sexual contac t or a lewd exhibi tion of her g enitals, and that he committed an act amounting
t o m o re than m ere prepa

ration t hat t ended but failed to eff ect the commission of t he offense. See Alexande r , 906 S.W .2d at 110–111 (evidence defe ndant asked complainant to re move her clothes

so that he could take her picture and told her he would show h er p ar t s she had never seen befor e while pointing at his lower body , when taken toge ther, sufficie nt to uphold conviction for attempted sexual performa

nce by a child). Cl a r k a d d it io n a ll y a

rg ues the evidenc e is insufficient to uphold his convict io n b e c a u s e there is no evidenc e he attempted to induce the complaint to eng ag e in a “per formanc e.” The statute, howeve r, “cr iminaliz es the inducement of a child’s sexual conduct reg ardle ss of whether it amounts to a sex ual performanc e.” Dornbusch v. State , 156 S.W .3d 859, 870 (Tex. App.—Corpus Christi

I n addition, the defe nse called two adult women who had eng ag ed in consenting s ex u al 2 relations with Clark and t es t i fi ed that he would bring linge rie to their meeting s for them to wea r befor e en gagi n g in sexual activity

. The jury was fre e to consider this evidenc e on the attempted sexual perf

ormanc e by a child char g e. See Atkins v. State , No. 05-07-00586- CR, 2008 WL 2815087, at *4 (Tex. App.—Dallas J uly 23, 2008, pet. ref ’d) (mem. op.) (holding sufficie n t ev idence that defe ndant had intende d to induce minor to e ng ag e in se x ual conduct whe n defe ndant had e ng ag ed in simi lar c onduct with adults that had re sulted in sex ual ac tivity ). 52005, pet. re f’d) ; see also Summers v. State , 845 S.W .2d 440, 442 (Tex. A pp.—Eastland 1992, no pet.). As we ha

ve alr eady

deter mined there was suff

icient evidenc e Clark attempted to induce the

co m p l ai nant to eng ag e in sexual conduct, the State is not require d to further prove an attempt ed sexual performa

nce. See D ornbusch , 156 S.W .3d at 870; Summers , 845 S.W .2d at 442. Reg ardle ss, we conclude there is also su ff i ci en t evidenc e that Clark attempted to induce the complainant to eng ag e in a sexual perf ormanc e. “Sexual perf

ormanc e” means any “p erf ormanc e or part there of that includes sexual conduct by a child.” Tex. P en al C o d e § 43.25(a) (1). “Perf

ormanc e” is de fined as “any play , motion picture , photogr aph, dance , or other visual repr esentation t h at ca n b e exhibi ted befor e an audienc e of one or more persons.” Id

. § 43.25(a) (3). Under the statute, the term “sexual perf ormanc e” includes non-pornog raphic and

non-commer cial sexual conduct by children, and rec ording the sexual perf ormanc e on film or other media is not an element of the offe nse. S ee Do rnbusch , 156 S.W .3d at 871; see also Emenhiser

v. S tate , 196 S.W .3d 915, 930 (Tex. App.—For t Worth 2006, pet. ref

’d). Fur ther, nothing in the d ef i n i t i o n o f perf

ormanc e “sug g ests that the exhibi tion induced by the acc used must be for the benef it of a third person as opposed to the acc used himself.” Emenhiser , 196 S.W .3d at 930. Rather, the definiti on specific ally provides that the ex hibition can be for an audience of on l y one person. See id. ; see also Tex. P enal Code § 43.25( a)( 3).

A s exual perfor

mance there fore is an exhibi tion of sexual conduct to be viewed by

an audienc e of at least one, and as previously discussed, sexual conduct includes a lewd exhibi tion of the g enitals, the anus, or any portion of the fema le brea st below the top of the are ola. Tex. Penal Code § 43.25(a) (1) & (2 ). He re , the complainant testified that Clark asked her to model for him

6linge rie that was “see -throug h” and would have shown her “private parts.” The s t an d ar d for

deter mining whether the evidenc e i s l ega l ly sufficie nt to support a conviction is “whe ther, afte r viewing the evidenc e in the light most fa vorable to the prosec ution, anyrational trier of fac t c ould have found the essential elements of the cr i m e b ey o n d a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 315–19 (1979) (empha sis in orig inal); see also Garcia v. State , 367 S.W .3d 683, 686–67 (Tex. Crim. App. 2012). We conclude this evidenc e is sufficie nt to allow a rational trier of fac t to conclude beyond a rea sonable doubt that Clark attempted to induce the complainant to eng ag e in an exhibit ion of sexual conduct to be viewe d by him. Having found sufficie nt evidenc e to uphold the conviction fo r att empted sexual perf ormanc e by

a child, we overr

ule Clark’s f

irst and sec ond points of error

.

A D M I S S I O N O F E X T R A N E O U S O F F E N S E Du ri n g o pening statements, Clark’s attorney argued that the complainant had a char acte r for ly ing, that she had lied to the authorities befor e, and that she was motivated to lie in this

case for money . I n rebuttal, the State during its case -in-chie f called, K.E., another former client of 3 Clark’s, who testified that when she was sevente en y ear s old a nd preg nant, Clark had a sked her to

come to his office beca

use he had a job for her. Upon arr iving at his office , K.E. testified that Clark showed he r a pic ture in a ma g azine of a w oman wea ring red linger ie, asked her if she would wea r the linge rie in the picture in exchang e for money , and asked her to acc ompany him to a motel wher e he would take pictures of her in the ling erie . K.E. re fused Clark’ s offe r and c ontacted the police.

We will refer

to the witness by

her initials to protect he r identity

. 3 7I n his third point of err or, C lark contends the trial court abused its discretion by

admitting K.E’s testimony

. The State argues the evidenc e was admissible beca use Clark advanc ed

a theory of fabr ication during his opening statement, there by opening the door for the State to admit evidenc e of simil ar extraneous offe nses committed by Clark for the purpose of rebutting his sug g estion that the complainant was fabr icating her testimony

. See Bass v. State , 270 S.W .3d 557, 563 (Tex. Crim. Ap p . 2 008). Clark acknow ledg es that he acc used the complainant during his opening argument of fabr icating her alleg ations and that his fabr ication defe nse entitled the State to introduce extraneous-off

ense evidenc e in rebuttal. See i d. Clark, howeve r, argues that K.E.’s testimony was inadmissible beca use the extraneous offe nse was not sufficie ntly s imilar to the char g ed offe nse to be rele vant rebuttal evidenc e. We revie w a trial co u rt ’s admission of 4 extraneous-off

ense evidenc e for an abuse of discretion. Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1991).

Whil e extraneous-off

ense evidenc e is inadmissible to show charac ter confor mity , when the defe nse in its opening statement advanc es a theory that a minor complainant has fabr icated alleg ations of sexual abuse—a s in this case—the State is entitled to rebut the defe nse’s fabr ication theory with evidenc e “that a defe ndant has committed simil ar sexual assaults ag ainst unrela ted and

unconnec ted childre n.” Bass , 270 S.W .3d at 562. To be admissible f or the purpose of re butting a fabr ication or “fr ame- up” defe nse, howeve r, the “extraneous misconduct must be at least simil ar to

The S tate arg ues C lark failed t o prese rve this objection for appea l

. W e d i s agr ee . Clark 4 objected to the testimony on the g rounds that the extraneous offe nse was not rele vant beca use of the differ ence in the victims’ ag es and t h at the extraneous offe nse did not constitute a sexual perf ormanc e by a child. We conclude the objection suff iciently apprised the trial court that Clark was objecting to the testimony on the g rounds that the extraneous offe nse was not sufficie ntly simil ar to the char g ed off

ense to be rele vant and a dmissibl e. See Tex. R. App. P . 33.1. 8the char g ed offe nse.” W heele r v. State , 67 S.W .3d 879, 887 n.22 (Tex. Crim. App. 2002); see also Blackwel l v. S t a t e , 193 S.W .3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet. ref ’d) (“To be probative, the extraneous offe nse evidenc e admitted to r ebut a def ensive theor

y must be simil ar to the cha rg ed off ense.” ). Her e, both the extraneous offe nse and the char g ed offe nse involved g irls se ventee n y ear s of ag e or y oung er who had soug ht Clark’s leg al service s; both occur red in Clark’s office afte r Clark had lured them there under false pre t en s es ; an d in both instances, Clark asked the y oung

women to model linge rie for him in exchang e for money . Thus, the extraneous-off ense evidenc e tended to disprove Clark’s fabr ication defe nse as it showed that, under simil ar circ umstances, Clark had propositioned another y oung client to model linge rie for him in exchan ge fo r money . See Halliburton v. State , 528 S.W .2d 216, 219 (Tex. Crim. App. 1975) (“The ult i m at e q u es t ion is whether the extraneous offe nse tends to disprove the appellant’ s explanation of the primary offe nse.”)

. Acc ording ly , we conclude the extraneous-off ense evidence was sufficiently simil ar to the char g ed offe nse to ref

ute the defe nse ’ s th e ory that the complainant had fabr icated her alleg ations. See Bass , 270 S.W .3d at 563. As we conclude the trial court did not abuse its discretion by admitting K.E.’s testimony , we ove rrule Clar k’s third point of err or. 5

E X C L U S I O N O F C O M P L A I N A N T ’ S C H A R A C T E R E V I D E N C E At trial, Clark s oug ht to call three wit nesses for the purpose of proving “numer ous specific incidents in which the complainant had made false alleg ations ag ainst people and told lies The State additionally argues on appeal the e x trane ous-offe nse evide nce w as admissible 5 under Texas Rule of Evidence 404(b) to prove Clark’s intent. As we have conclude d the evidenc e was a dmissibl e to re fute Clark’ s alleg ations of fa brication, we do not addre ss this i ssue. 9on various topics.” Clark argued only one theory of admiss i bility at trial: that the evidenc e was

admissi b l e u n der Texas Rule of Evidence 404(a) (2) to prove a pertinent char acte r trait of the complainant, which he descr ibed to the trial court as a trait of “consistently making false claims to law enfor ceme n t

. ” T h e State raised numerous objections, including an objection under Rule of Evidence 608(b) that Clark was improperly attempting to introduce specific instances of conduct by the complainant for the purpose of attacking her g ener al cre dibilit y . See Tex. R. Evid. 608(b). The trial court allowed Clark’s witnesses to testify as to their opinion of the complainant’s char acte r for truthfulness but excluded testimony reg arding any specific instance of conduct by the complainant.

I n his last three points of err or, Clark contends the trial court abused its discretion by excluding the witnesses’ testimony

. We revie w a trial court’s exclusion of ev i d en ce for abuse of discretion. W

eatherred v. State , 15 S.W .3d 540, 542 (Tex. Crim. App

. 2000). An abuse of discretion occur s when a trial court’s dec i s i o n i s s o cl ear ly wrong that it lies outside the zone of

rea sonable disag ree ment. Gonzales v. State , 117 S.W .3d 831, 839 (Tex. Crim. App. 2003). As Clark does not addre ss eac h witness’s testimony individually but consolidates his points of err or and collectively asser

ts all of the testimony was admissible under a single leg al theory , we likewise will addre ss these issues collec tively

.

I n g ener al, evidenc e of a person’ s char acte r may not be used to prove that she behave d in a particula

r way at a g iven time. Tex. R. Evid. 404(a) ; Tate v. State , 981 S.W .2d 189, 192 (Tex. Crim. App. 1998). Texas Rule of Evidence 404(a) (2) creates an exception to this rule, permitting

an acc used in a criminal case to introduce evidenc e of a pertinent char acte r trait of the alleg ed victim of the offe nse on trial. See Tex. R. Evid. 404(a) (2); Martinez v. State , 17 S.W .3d 677, 6 8 7 (Tex

.

10Crim. App. 2000). But under Texas Rule of Evidence 405, such evidenc e g ener ally must only take

the form of reputation or opinion testimony

. Tex

. R

. Evid. 405(a) ; Martinez , 17 S.W .3d at 687. Only if the alleg ed victim’s char acte r trait is an essential element of a char g e, claim, or defe nse may the acc used introduce specific instances o f t h e victim’s conduct under Rule 405(b). See Tex. R. Evid. 405(b). Clark argues on appea l that the complainant’s alleg ed char acte r trait of lying to la w enfor ceme nt was an es s enti al element of his defe nse that she had fabr icated the alleg ations in the

curr ent case , and there fore , he was entitled to introduce specific instances of her lying at trial. Clark did not, howeve r, argue at trial th at t h e complainant’s char acte r was an essential element of his defe nse nor argue the evidenc e was admissible under Rule 405(b). Acc ording ly , we conclude he has waived this issue on appe al. SeeTex. R. App. P . 33.1.

Even if Clark had prese rved err or, we would still conclude his argument has no meri t. Charac ter per se is almost never an essential element o f a ch arg e or defe nse in criminal case s. Gilbert v. State , 808 S.W .2d 467, 471 n.5 (Tex. Crim. App. 1991); Tate , 981 S.W .2d at 192 & n.5. Her e, proving that the complainant had fabr icated her alleg ations is not depende nt exclusively upon the char acte r of the victim. Acc ording ly , we would conclude the testimony was not admissible under Rule 405(b). See Tate , 981 S.W .2d at 192 & n.5 (victim’s char acte r not essential element of a claim of sel f- d ef

en se beca use proving who was ag g ressor did not depend exclusively upon char acte r of victim). Fur

ther, Clark expl ai ned to the trial court that he soug ht to introduce the witnesses’ testimony beca

use it showed “ag ain in t h i s case [t he complainant] acte d in confor mity with that pertinent char acte r trait and ag ain made a false repor t to law enfor ceme nt about alleg ed law

11violations.” This is prec isely the infere ntial chain of logic barr ed by Texas Rule of Evidence 608(b),

which mandates that “spec ific acts not resulting in conviction may not be used to demonstrate the witness’s untrustworthy nature .” See Lopez v. State , 18 S.W .3d 220, 225 (Tex. Crim. App. 2000); 6

see also Hamme r v. State , 296 S.W .3d 555, 564 (Tex. Crim. App. 2009). Acc ording ly , we would 7 conclude the trial court did not abuse its discretion in excluding the testimony

. We overr ule Clark’s fourth, fifth, a

nd six th points of error

.

C O N C L U S I O N For the fore g oing r easons, we aff irm the judg ment of the trial c ourt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: F ebrua

ry 19, 2014 Do Not Publish

Texas Rule of Evidence 608(b) pr ovides “spec ific i nstance s of t he conduct of a witness, 6 for the purpose of attacking or supporting the witness’ cre dibilit y , other than conviction of crime as provided in Rule 609, may not be inquired into on cross-e x amination of the witness nor proved by extrinsi c evide nce.” Tex. R. Evi d. 608(b). C l ark did not argue the evidenc e was admissible to show bias, motive, or some other 7 rele vant non-cha

rac ter purpose. See Hamme r v. S t a t e , 2 96 S.W .3d 555, 564–566 (Tex. Crim. App. 2009). 12