Th is i s th e fi rs t of thr e e ide nti c a l op ini on s f or the c omp anio n c a se s b e fo re the Court , 1 which all ra ise the same issues. Se e W e lls v . S tate , 0 8- 07 -0 00 62 -C R ( Te x.Ap p. -- El Pa so April 23, 2009, no pet.h.) a nd W e lls v . S tate , 08-07-00064- CR (Tex.App.--El Paso April 23, 2009, no pet.h.). C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

MI CH AE LWI L L I AM WEL L S, Ap pe lla nt,
v.
THE STATE OF TEXAS, Appellee
. § § § § § § No . 0 8- 07 -0 00 63 -C R

Appea l from the 59th J udicial District Court of Gr ay so n Co un ty , T e xas (TC# 051407-T)

O P I N I O N This is an appea l from three felony convictions of ag g ravated sexual assault of a c hild. Appellant wa s convicted unde r three indictments by the jury . He wa s sentence d by the trial cour

t to 45 y ear s confineme nt with the I nstitut ional Division of the Texas Depar tment of Criminal J ustice. On a

ppeal, Appe llant raises two issues ar g uing the trial court e rre d in failing to exclude
outc ry te sti mony

a s h e ars ay

and in a llo wi ngte sti mony

of an e xtra ne ou s o ff e ns e . We a ff

ir m. 1 In Cause No. 51406, Appe llant was cha rg ed with intentionally

or knowing ly

causingthe penetr ation of the fe male sexual org an of R.C., a c hild under the a g e of f ourtee n, with his finge r. In Cause No. 51407, Appe llant was cha rg ed with touchingthe g enitals of C.W., a child under the ag e of 17, w ith the intent to sex ually arouse and g ratify

himself. In Cause No. 51408, Appe llant-2-

was c harg ed with intentionally and knowing ly

penetr ating the fe male sexual org an of C.W., a child under the ag e of f

ourtee n with his finge r. Offic er Jack Melson testified that R.C. was brought in by her grandmother

with reporte d alleg ations of sexual abuse in August of 1997. R.C. tol d Offic er Me lson that her stepfather, Mr. Wells, had sexually

assaulted he r. Afte r g etting out of the bathtub, R.C. complained to her stepfathe r that it was hurtingwhen she went to the re stroom. He told her to g o g et on the bed a nd g e t on he r h and s and

kn e e s. He the n p ut h is f

ing e r i n h e r. Of

fi c e r M e lso n s tate d R. C. h a d to ld her of another incident af

ter they had lef t Sherman, TX. De fense counsel objec ted on the basis of he ars ay , b ut w a s o ve rr

ule d b y the tr ia l c ourt . R. C. s a id t hat Mr . We lls tol d h e r h e wa s g oin g to take he r to a c emeter

y and have sex wit h her. H oweve r, she star ted cr ying a nd told him t o take her home , which he did. The county attorney did not pursue the ca se bec ause the victim no longe r wished to proc eed. R.C. testi fied at trial as well. R.C. testified to the same e vents as Of fice r Melson. She stated that she use d to ge t urinary trac t infections, and one night a fter she g ot out of the bathtub, she told her stepf

ather about it, and he ha d her g et on her hands and kne es on top of the be d. He put his finge r inside of he r, but she told him to st op. R.C. also testified that when she wa s fiftee n he told her he was g oing to take her to the c emeter y , turn her ove r the hood, a nd “pop her cher ry .” R.C. also testified that her sister C.W. had come to stay with her at her home, a

nd had told her some thing s that Appellant had done to her. C.W. had told her that he w ould make her watch a dult videos, tried to penetrate her , and would “touc h her down there .” R.C. told her mother about it, who said she w ould handle it, but R.C. eventually called the district attorney and-3-

Sherman Police De partment. On c ross-examination, defe nse counse l solicited testimony that R.C. and her g randmother wer e upset with Mr. Wells, and made up the alleg ations of sexual
a ssa ult
. C.W . testified that when she was e leven, she was watching television with Appellant when he put his hands on top of her “ private a rea ” and r ubbed her . She testified to another incident wher e he pulled ove r while they wer e drivinghome, and wa lked out into the woods and ha d h e r p e rf

or m or a l se x on h im. C.W. a lso te sti fi e d th a t App e lla nt w ou ld h ave he r w a tc h d ir ty movies and masturbate him. C.W . stated that Appe llant had tried to have sex wit h her, but she told him no and started to cry so he stopped. C.W. stated that on more than one occa sion, Appellant put his fing er inside of her. O n cross-e x amination, defe nse counse l questioned her about beingang ry

with her mother a

nd Appellant for

lying to he r about Appe llant being her biologica l father
. L .S. testified that she knew Mr . Wells because he was mar ried to her

aunt. When she wa s fo ur te e n o r f if te e n, sh e we nt i nto the be dr oo m and la id d ow n b e sid e him , a

nd Mr . We lls
a tte mpt e d to put hi s h and do wn he r p ants . Sh e pu sh e d h im o ff and tol d h im n o. On

c ro ssexamination, defense c ounsel questioned L .S. about meeting with her c ousins, R.C . and C.W., be fo re any

po lic e re po rt

wa s f ile d a nd dis c us sin g the inc ide nts
. De fe ns e c ouns e l c a lle d o ne wi tne ss, Joanna Wel ls, mot

he r o f A pp e lla nt. Ms. Wel ls stated she ha d spoken with C.W. about the alleg ations she had made . She had aske d C.W . why she had not told the truth, and C.W. responded if she had then they would know she ha d lied. Ms. Wells stated that C.W. has a problem telling the truth, and is a ve ry g ood liar. In I ssu e On e , App e lla

nt a rgue s th e tr ia l c ou

rt e rr e d in a llo wi ngOf

fi c e r Ja c k M e lso n to-4-

testify to hear say

statements made by

R.C. because no written notice or summary of the state me nts we re fi le d o r p ro vid e d to de fe ns e c ouns e l. T he State argue s e rr or wa s n ot p ro pe rl y prese rved, a

nd we must ag ree . Appellant made no objection to the desc ription of the initial sexual abuse, and only

a g ener al hea

rsay objection to the statements re g ardingother oc curr ence s. Appellant did not object on the g rounds of fa iling to comply with the notice re quirements under Article 38.072. T EX .C ODE C R IM .P R OC .ANN . art. 38.072 (V ernon 2005) . Appellant has not prese rved this issue for r eview. T EX .R.A PP .P. 33 .1 (a ); se e Ga rc ia v . S tate , 907 S.W .2d 635, 637 (Tex.App.--Corpus Christi 1995), aff’d , 9 81 S.W. 2d 68 3 ( Te x.Cr im. Ap p. 19 98 ); Aa ro n v . S tate , 2008 WL2426667 at *1-2, (T ex.App.--Dallas, June 17, 2008, no pet.)(not de signated for publication). I ssue One is ove rruled. In I ssue Two, Appe llant argues the trial c ourt err ed in admitting testimony and evide nce of an e x trane ous offe nse committed by Appellant ag ainst a third par ty beca use the off

ense w as
no t pr op e rl y

pr ov e n a nd the e vid e nc e is n ot r e le va nt t o a mate ri a l is su e in t

he c a se oth e r t

ha n to sh owthe de fe nd ant’ s c ha ra c te r. Th e State argue s th e e xtra ne ou s o ff e ns e e vid e nc e wa s p ro pe rl y
a dmi tte d b e c a

us e it r e buts a

de fe ns ive the or

y ra ise d b y Ap pe lla nt. The a dmission of ex trane ous offe nses is review ed for abuse of discretion. Mo se

s v . S tate , 10 5 S. W.3 d 6 22 , 6 27 (T e x.Cr im. Ap p. 20 03 ). We m us t up ho ld t

he tr ia l c ourt ’s de c isi on

to a dmi t evidenc e as longas it falls within the zone of rea sonable disag ree ment. W he e le r v . S

tate , 67 S.W. 3d 87 9, 88 9 ( Te x.Cr im. Ap p. 20 02 ); Mo ntg om e ry v . S tate , 810 S.W .2d 372, 391-92 (Tex.Crim.App. 1991). Evidence of other c rimes, wrong s, or ac ts is not admis sible to prove the char acte r of a

person in orde r to show ac tion in conformity there with. T EX .R.E V ID . 404(b). Ex trane ous offe nse evide nce ma y be admissible, howeve r, whe n it has releva nce be y ond-5-

char acte r conf

ormity to show proof of motive, oppor tunity , intent, prepa

ration, plan, knowle dg e, identity , or abse nce of

mistake or ac cident. T EX .R.E V ID . 404(b). Rebuttal of a defe nsive theory is one of the pur

poses for which re levant evide nce ma y be admitted under

Rule 404(b). Moses , 105 S.W .3d at 626. Evidenc e of a n extraneous offe nse is admissible to rebut a de fensive the ory of “f abric ation” or “ fra

me-up,” wher e the de fenda nt has opene d the door to its admission. Ba ss
v . S tate , 270 S.W .3d 557, 563 (Tex.Crim.App. 2008). The De fense delivere d its opening a rgument immediately

afte r the State. Dur ing ope ning statements, the def

ense c ounsel stated: Ithink y ou’re g oing to he ar the re w ere problems g oing on in the f amily , and I think that y ou’re g oing to he ar those a lleg ations came up and then they wer e withdrawn. What Ithink y ou’re further g oing to he ar is that, ag ain, in 2003 that additional problems in the family came up and now you have two da ug hters that make r emar

kably simil ar a lleg ations, and it points along the w ay those alleg ations wer e withdra

wn. I think y ou’re g oing to he ar e vidence of that, and that these ar e alleg ations that are put out there a nd withdrawn a

nd put out there a

nd then withdrawn f

ollowing the c y cle of

how Mr. Wells and his wife at the time were get t i n g al o n g. And what I

think y ou’re g oing to se e is the drivingforc e behind e ach a nd ever y alleg ation is, is [ sic] L aver ne Ar chie, the mother

of Mr. Wells’ wife, a

nd that she is the one who a lway s bring s these alleg ations to the fore front. And I thi nk y ou ’r e g oin g to h e ar t

hat sh e ha s v e ry

se ri ou s r e a so ns , mo tiv e , a nd bia s to push these childre n to make these statements about Mr. Wells. But what y ou need to pay particula r attention to is the overa ll inconsistency of the stateme nts made by these c hildren, that they

do not stick to their guns, that they do not stick to the sto ry , a nd that th is i s a

we ll- or c he str a te d b ro ug ht a bo ut e ve nt. In the def ense’ s case -in-chie f, they called only

one witness, Joanna Wells. Ms. W ells questioned C.W . about lying a

bout the alleg ations, and C.W. responded that if she told the truth then the y would know she wa s ly ing. D uringclosing argument, defe nse counse l stated:

Now, six y ear s elapsed. N ow, we know from R.C.’s testimony

she runs awa y with a boy friend a s the family is moving to College Station. S he finds out-6-

while she’s r

un awa y that the family

has moved off

to Coll eg e Station and she’s mad and she ’s upset and she ’s ang ry and she’ s hurt and she g oes to her g ra ndmot he r who ’s -- the re ’s be e n s ome e vid e nc e ha s a pr ob le m w ithMr . We lls , and su dd e nly wh a t w a s Mr . We lls e xami nin g he r f or a ur ina ry tr a c t in fe c tio n s ix y e ars late r at 15 no w h a s b e c ome a se xua l a ssa

ult
. And then ther e’s a lso the story thrown in about g oing to the c emeter y or threatening to go to the c emeter y , but if y ou listen to what was said, nothingever actua lly took place. She ne ver sa id he took her to a ceme tery and had se x with her or tried to do any

thing. It’s a stateme nt she say s he made , but of course nothing e lse c ame out a

bo ut t hat until a ll the se oth e r t

umu ltu ou s e ve nts in t

he ir fa mil y is g oing on. N othing is said about that. It all becomes ve ry convenie nt. Now, she make s th e se state me nts wh ile sh e ’s ru n a wa y . Sh e ’s g ot n ow he re to l ive be c a us e her f amily ’s moved off

. She’s 15 y ear s old. She makes these state ments. I t’s repor ted to the police. She then g oes bac k and lives with Mr. Wells and her mot he r, and on c e sh e ’s ba c k at ho me and the tum ult uo us sit uatio n is ov e r t

he re is no c ri sis any

mor e . T he DAdr op s th e c a se a ft e r 1 1 d ay s o f i nv e sti g a tio n b e c a us e she’s withdra

wn her desire to pur sue the c ase. Six more y ear s pass and we are now in 2003. C.W . has found out the man she believe d -- ha s rec ently found out that the man she be lieved to be he r bio log ic a l f

a the r, Mic ha e l We lls , thro ug h h e r m oth e r, he r f amil y , M r. Wel ls him se lf , s a id w a s h e r f

a the r i s, in f

a c t, n ot h e r f

a the r. An d s he tol d you

sh e fe lt hurt and sh e fe lt b e tr ay e d b y

Mic ha e l f

or that.

. . . To say that sh e ha s an uns ta

ble fa mil y lif e and e nv ir onme nt w ou ld b e su c h a g ro ss understate ment of what Ibelieve the situation to be y ou can’ t even imag ine. And that’s not C.W .’s fa

ult. I t’s not her fa

ult that her mom uses alcohol a nd drug s and comes up to her

g randmother

like that at work. It’s not her fa ult. But ca

n it affe ct what she sa

y s and what she does? Yea h. Can it make her

make some ba d decisions without understandingthe full conseque nces be cause she’s a cting out of ang er a nd betra y al and hur

t? Absolutely , it can. Def ense c ounsel continues ar g ument by discussing the testimony of L .S.: Her e’s what conce rns me so much a bout this case, and if

we’ re ta lking a

bout thr e e -ye ar- old

c hil dr e n o r f

our- y e ar- old

c hil dr e n li ke we we re in v oir dir e , b ruta lly honest and tell you the truth it wouldn’t be a c oncer n but we’r e not talking about that. We’re ta lking a

bout kids hit ting tee nag edom [sic] , puberty . We’re ta lking about kids who come f

rom a situation at home that is obviously not good. B ut wh a t do e s L .S. te ll u s? She s ay s th a t C. S., R.C . a nd he r t a lke d a

bo ut a ll this up in Hug o, Oklahoma, be fore any repor t was eve r made to the police. Well, we’ve been told by

ever y body else makingthese a ccusations that the first time any of thi s is br ou g ht u

p a nd dis c us s is C.W. ha s th is o utp ouri ngof e mot ion do wn in-7-

College Station to her sister, R.C. L .S. is t elling you that’s not what happe ned. That they discussed this up in Hugo, O klahoma, the thre e of the m toge ther be fore that ever happene d.

. . . But I think if y ou think about what L .S. testified to, she said the three of them talked about it bef

ore the police we re e ver notified, be fore any kind of repor

t was ever made, a nd the other pr oblem is is [ sic] that C .W. say s the only time she eve r reme mber R.C. talking to he r about what happene d to her wa s when she w as a b o u t f o ur y e ar s o ld
. R. C. to ld

y o uth e y ta lk e d a b o u t i t w it

h in a y e ar b e f o r e C. W. m a d e h e r o u t c r y.

. . . But think about it, rec all what they said, and they ’ve a ll got diffe rent ve rsion about when they

beg an talkingabout this. Now, what do I think? Unfortunately

it may have ha pp e ne d. I f you ’v e g ot a

n o lde r s ist e r a

nd an o lde r c ou sin

wh o a re up se t, who ar e mad a

bout the situation, thi ng s that are g oing on, a nd they may even ha ve convince d C.W . this happened. I think that’s perfe ctly

possible. Ithink it’s pe rf e c tly pla us ibl e . A nd

no w e ve ry

bo dy is try ingto f ill in t he bla nk s o f 1 5 y e ars . Unfortunately , these e vents just don’t link up wit h eac h other ve ry well. The c laimed patter

n of abuse , the startingand stopping , and not -- nothing ha pp e nin g fo r s ix y e ars and sta rt ingup a g a in, it j us t do e sn ’t fo llo w. Th e on ly time alleg ations are made is whe n there is trouble g oing on in the f amily , when there ’s a c risis. And may be that’s how the y

deal with it. May

be that’s how f

ocus g ets attention bac k on them. Sometimes people make f alse wr ong ful alleg ations out of spite, and sometime they do it because they

don’t rea liz e exactly

what it’s g oin g to c a

us e and the dama g e the y

are g oin g to c a

us e and pe op le do g e t w ro ng ly acc used. De fe ns e c ouns e l a lso summa ri zed the te sti mony

of Joanna Wel ls: [H] er te stimony

is is [ sic] that C .W.’s told her she didn’t want to g et ca ug ht in a lie and that she’ s g ot a problem tellingthe truth. When the police c ome g et y ou out of class in seve nth gr ade to ve rify what’s be en re ported a

nd y ou don’t have a pa re nt o r a ny bo dy e lse the re to t a lk t o you , you wo uld n’ t im a g ine the pr e ssu

re to follow throug h with what has be en starte d. The e x trane ous offe nse evide nce w as prope rly admitted to rebut a de fensive the ory . Se e Ba ss , 270 S.W .3d at 563. Appellant a rgues that the e x trane ous offe nse wa s not clear ly proven. Howeve r, L .S. identified Appellant in court, a nd testified he trie d to put his hands down her-8-

pants. The statute pr ovides for the admission of other cr imes, wrong s, or ac ts properly proven, thus Appellant’s ar g ument fails. T EX .R.E V ID . 404(b). Appellant next argues that the pre judicial impact of the e vidence outweig hs its probative
va lue . In d e te rm ini ngwh e the r t he pr e jud ic ia l e ff

e c t of the e vid e nc e su

bs tanti a lly

outw e ig hs its pr ob a tiv e va lue , th e c ourt loo ks a t ho w c omp e lli ng ly e vid e nc e of

the e xtra ne ou s o ff e ns e se rv e s to
make a fa c t of c on se qu e nc e mor e or

le ss p ro ba

ble , th e e xtra

ne ou s o ff e ns e ’s po te nti a l to imp re ss the jury in some irrational but indelible wa y , the trial time nee ded to deve lop the evidenc e, and the propone nt’s need f

or the e x trane ous offe nse evide nce. W heele r , 67 S.W .3d at 888. The testimony of L .S. depicts an eve nt simi lar to those testified to by R.C. and C.W ., which make s their testimony

of the a ssaults much more proba ble. I t also makes def

ense’ s theory

of fa brication le ss p ro ba ble . Wh ile c e rt a inl y

any se xua l a ssa

ult , e sp e c ia lly

on e on a min or , h a s th e po te nti a l to impress the jury

in some irrational a

nd indelible way , we c annot say L .S.’s testimony

of an attempted touchinghad that ef fec t on the jury . The dire ct and c ross-examination of L .S. was extremely short in duration enc ompassing only six pag es out of hundre ds of pag es of the tr ial
rec ord. F inally , the State nee ded the e vidence to rebut Appe llant’s defe nsive theory of fabr ication and f

rame -up, which w as promulg ated in openingstatements, on cr oss-examination, duringthe def

ense’ s case -in-chie f, and dur ing c losing a rguments. We find the trial court did not abuse its discre tion in admitt ing the evidenc e. Ha vin g ov e rr

ule d a ll o f A

pp e lla nt’ s is su e s, we a ff

ir m th e c onvic tio n a

nd the jud g me nt.
April 23, 2009 DAVI D WEL L I NGTONCHEW, C hief Just ice-9-

B e f o r e C h e w , C
. J. , M c C l ur e , a n d C ar r , JJ. C arr, J
. (N o tP art i ci p at i n g) (Do Not Publish)