Opinion issued July 2, 2015

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 14
- 00477
- CR

——————————— KEN SCRIPA , Appella nt V. THE STATE OF TEXAS , Appell e e

On Appeal from the 174th District Court Harris County, Texas Trial Cou rt Ca se No. 1365724

MEMORANDUM OPINION A jury found Appellant guilty of the offense of sexual assault. 1 It assessed Appellant’s punishment at 10 years in prison and a $10,000 fine

. On appeal,

1 See T EX
. P EN
. C ODE A NN
. § 22.011( a )(1) ( Vernon 2011).2 Appellant raises one issue, asserting that the trial court a bused its discretion in admitting extraneous

- offense evidence during the guilt

- innocence stage of trial. We affirm. Background The complainant decided to treat her close friend, H.G., to a m a ssage to celebrate H.G.’s birthday. The complainant found an on - line coupon to Scripa Massage and purchased a massage for herself and for H.G. The complainant scheduled the massages for August 6, 2011. Two massage therapists worked a t Scripa Massage, Appellant and a female massage therapist, P. Geraldo. After a rriving for their appointment, the complainant and H.G. were directed to separate areas to have their massages. Appellant was the complainant’s massage therapist , and Geraldo was H.G.’s therapist. Before her massage, the complainant disrobed completely and lay down on the massage table. Her body was completely covered by a sheet. Appellant began the massage with the complainant lying on her stomach. He then asked her to turn onto her back. Appellant continued the massage. He first massaged the
comp lainant’s left leg then moved to her right leg. Appellant began by massaging the complainant’s right foot and then moved up her leg massaging it. As he massaged the complainant’s right thigh, Appellant suddenly thr e w the sheet off the3 complainant’s body and stuck his fingers inside her vagina. The complainant sat up and said, “Oh, hell no you don’t.” She would later testify that she did not shout but said this loud enough for Appellant to hear her . As she sat up, she saw that Appellant’s erect penis wa s hanging out of the top of his gym shorts. She also saw that Appellant had his right knee on the massage table and appeared positioned to climb on top of her. Because of the complainant’s reaction, Appellant removed his fingers, looked at the complain ant, walked to the door, and said, “I’m sorry that we didn’t get to finish your massage, but if you’ll get dressed and come out, I’ll schedule you another appointment for free.” The complainant got dressed and left. As she walked out, she noticed a man a nd a woman waiting in the lobby. The complainant went outside and waited for about 15 minutes for H.G. to come out of the building. H.G. knew the complainant was upset when she saw her waiting outside

. On the drive home, the complainant told H.G. what Appellant had done to her. The complainant reported what had happened to the Houston Police Department and to the Texas Department of State Health Services (TDSHS) , licens ing agency for massage therapists. After the TDSHS began its investigation, Appell ant voluntarily surrendered his licenses to be a massage therapist and to operate a massage therapy establishment.4 Appellant was indicted for the sexual assault of the complainant. He pleaded not guilty, and the case went to trial.
D uring voir dire, the defense spent a significant portion of its time questioning the venire regarding the members’ views relating to issues of fabrication by women claiming they have been sexual ly assault ed

. First, the defense asked the venire, row by row, whether they ha d ever heard of someone being falsely accused of sexual assault. Defense counsel had discussions with several venire members regarding instances of when they had heard of someone being falsely accused of sexual assault. The defense also asked the venir e, “ Who can think of a reason why a woman would falsely accuse a man of sexual assault? ” The venire members offered several reasons such as: “money,” “revenge,” “regret,” “anger,” and “blackmail.” The defense then asked each member of the venire to indi cate whether he or she strongly agreed or disagreed with the following statement: “ A woman would
not claim that she was sexually assaulted unless it was the truth. ” Defense counsel
then had each of the 65 venire members individually state his or her respo nse. At trial, Appellant’s defense focused on discrediting the complainant’s allegations by showing that, if the assault had o ccurred as she claimed, someone would have heard her say to Appellant , “Oh, hell no you don’t

. ” H.G. testified at5 trial. On c ross - examination, H.G., testified that she did not hear any talking during her massage and did not hear the complainant say, “Oh, hell no you don’t.” The complainant’s husband also testified at trial. On cross

- examination, the defense elicited testimon y from him that he had telephoned Appellant and threatened to file a lawsuit against him , thus suggesting a motive for the false
accusation

. During the presentation of its case, t he defense offered the testimony of the other massage therapist , P. Gerald o , who had been working on the day of the incident . She testified that Scripa Massage occupied a tiny space. It had a small lobby, two areas with massage tables, and a restroom. Because of its small footprint and its layout , s he stated that noise and co nversations in one part of the facility w ould be heard in other parts of the space . Geraldo testified that customers complained that they could hear other conversations during their massages. She stated that the two massage areas were part of one room th at had a divider separating the two spaces. The divider had an open space at the top and at the bottom. According to Geraldo, she could hear when people were speaking in the other massage area. She admitted, however, she could not hear everything that

w as said in the other area. Geraldo testified that she did not hear anything noteworthy while the complainant was having her massage. Geraldo stated that6 she remembered t he complainant leaving with her friend, H.G, that day. Geraldo testified that the co mplainant did not appear upset. The defense also offered the testimony of the husband and wife who had a massage after the complainant and H.G. left. They testified that they did not remember seeing anyone leave upset that day. They also stated that, d uring their massages, they were able to have a conversation using normal voices through the divider that separated the two massage areas. The defense also offered video evidence showing the interior of the facility. The defense emphasized the smallness of the space and showed that the divider between the two massage areas was made of a thin plastic material. The video also showed that there was a 13

- inch space at the top of the divider and a six

- inch space at the bottom. With the aid of a tape measurer , the video showed that the distance between the two massage tables was only 56 inches. The defense recalled the complainant to testify in an attempt to show that her allegations had changed over time

. The defense pointed out that, during the State’s
d irect examination of her, the complainant had testified that there were “ three different aspects of offensive activity ” that occurred at the time of the incident. These were (1) Appellant inserting his fingers into her vagina, (2) Appellant exposing his p enis, and (3) Appellant attempting to climb on top of her. The defense showed the complainant the police report that she had made following the7 incident. The complainant acknowledged that she had not stated in the police report that Appellant had attempt ed to climb on top of her, even though on direct examination she had testified that this was part of Appellant’s offensive activity. The State requested to introduce testimony from another woman who claimed that Appellant had touched her vaginal area whi le he was giving her a massage. The State asserted that it sought to introduce th e extraneous

- offense evidence to rebut Appellant’s fabrication defense. The prosecutor averred : It is clear both through cross - examination of the State’ s witnesses and thro ugh the testimony proffered by the defense itself that the defense to this case is fabrication, that the complainant and the witnesses that were there are fabricating this stor y. With that in mind, the State’ s position is that the extraneous offenses come in, that the extraneous witnesses should be allowed to testify

. The defense responded, “ We have not presented any evidence of a fabrication defense at this point. All we ’ ve done is put on witnesses who said they couldn ’ t hear. ” The defense further obje cted that the probative value of such evidence would be outweighed by unfair prejudice resulting from it. The trial court granted the State’s request to admit the extraneous

- offense evidence. After the defense had put on its last witness, t he State cal led J.P. to testify. Before J.P. testified, the trial court verbally gave the following limiting instruction to the jury, which was also included in the court’s written charge: You are further instructed that if there is any evidence before you in this ca se regarding the defendant committing an alleged offense or offenses other than the offense charged against him in this indictment8 or the indictment of this case, you cannot consider such evidence for any purpose unless you find from

— unless you find and be lieve beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, [plan] , knowledge, identity or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose. J.P. testified that , on March 12, 2011 , she went for a massage at Scripa Massage after obtaining an online coup on. J.P.’s boyfriend accompanied her and waited for her in the lobby while Appellant gave her the massage

. J.P. testified that Appellant spent the majority of the time massaging her buttocks with the sheet pulled down, which made her uncomfortable. Th en, w hile J.P. was lying on her stomach, Appellant pressed his genitalia into her hand. J.P. jerked her hand away. She stated that she did not leave because she thought it might have been a mistake when he was leaning over her. J.P. stated that Appell ant then told her to roll onto her back, and she complied. Appellant continued to massage J.P. She testified that Appellant massaged her upper body, her left leg, and then her right calf. She stated it all seemed normal. However, after massaging her ri ght calf for short time, Appellant quickly slid his hand up her leg and touched her genitalia

. J.P. told Appellant to take his hands off of her , and she left the massage

room. After they left , J.P. told her boyfriend what had happened. J.P. filed a

re port with the TDSHS regarding the incident.9 J.P.’s boyfriend , Evan, also testified. H e stated that, while in the waiting room, he could hear people speaking in the massage room, but he could not understand what they were saying. Evan said that after the y left, J.P. initially would not tell him what had happened. However, Eva n stated that J.P. soon began crying and told him what Appellant had done to her.
In her closing argument to the jury, defense counsel told the jury that no one may ever know why the complainant “ma d e up ” the sexual

- assault claim against Appellant. The defense stated that people make false claims for a variety of reasons, such as “ a psychotic episode, fantasy, imagination, anger, [or] depression

. . . .” The jury found Appellan t guilty of the offense of sexual assault. Following the punishment phase, the jury assessed Appellant’s punishment at 10 years in prison and a $10,000 fine. 2 This appeal followed. In one issue, Appellant complains that the trial court abused its discre tion in admitting evidence of the extraneous offense committed against J.P. More particularly, Appellant asserts that the extraneous

- offense

2 During the punishment phase, the jury heard from yet another woman, R.M., who testified that she was victimized by Appellant during a massage. R.M. testified that, in February 2008, she went to Scripa Massage for a pregnancy massage. She was seven months pregnant at the time. R.M. testified that, during the massage, Appellant placed his penis in her hand three separate times. She stated that she did not leave immediately because she was afraid.10 evidence was inadmissible under Rules of Evidence 404(b) and 403. 3 T EX
. R.
E VID
. 403, 61 T EX
. B.J. 374, 3 76 (Tex. & Tex. Crim. App. 1998, amended 2015) ; T EX
. R. E VID
. 404(b), 61 T EX
. B.J. 374, 3 78 (Tex. & Tex. Crim. App. 1998, amended 2015).

Extraneous
- Offense Evidence A. Standard of Review We review trial court rulings on the admissibility of evidence for abuse of discretion. Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). A trial court abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court does not abuse i ts discretion if its decision is within “the zone of reasonable disagreement.” Bigon v. State , 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
B. Rule 404(b)

3 Effective April 1, 2015, the Supreme Court of Texas has adopted amendments to the Texas Rules of Evidence. See 78 T EX
. B.J. 42, 42 (Tex. 2015). The changes to Rules 403 and 404 are styl istic. See id . at 49. All further citations to Rule s 403 and 404 in this opinion refer to the rule s as they existed during Appellant’s trial.11 Rule of Evidence 404(b) prohibits the admission of extran eous offenses to prove a person’ s character or to show that the person acted in conformity with that character. See T EX
. R. E VID
. 404(b). However, when a party “opens the door,” evidence that is otherwise inadmissible may become admissible. Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). A party opens the door by leaving a false impression with the jury that invites the other side to respond. Hayden v.
State , 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). When a party opens the door, opposing counsel is permitted to present evidence to correct the mistaken impression. Houston v. State , 208 S.W.3d 585, 591 (Tex. App.

— Austin 2006, no pet.); see Hayden , 296 S.W.3d at 554. “‘Rule 404(b) is a rule of inclusion rather than exclusion.’ ” De La Paz v. State , 279 S.W.3d 343 , 336 (Tex. Crim

. App. 2009) (quoting United States v.
Bowie , 232 F.3d 923, 929 (D.C. Cir. 2000)). “The rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad charac ter.” Id. (citing Rankin v. State , 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).
E xtraneous

- offense evidence may be admissible when it has relevance apart from character conformity. Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). E xtraneou s offenses may be admissible for some other purpose such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or12 absence of mistake or accident. T EX
. R. E VID
. 404(b); Montgomery v. State , 810 S.W.2d 372, 387

– 88 (Tex. Crim. App. 1990). However, t his list is illustrative; the
listed exceptions are neither mutually exclusive nor collectively exhaustive. See De La Paz , 279 S.W.3d at 343. In addition to the listed exceptions, one rationale allowing admission of character evidence is to rebut a defensive theory. Id. ; s ee also Moses v. State , 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) ( stating rebuttal of defensive theory is “one of the permissible purposes for which relevant evidence may be admitted under Rule 404(b)”). The Court of Criminal Appeals has determined that extraneous offenses are admissible to rebut a fabrication defense. See De La Paz , 279 S.W.3d at 3 49

– 50. In his brief, A ppellant claims that the State did not raise the defense of
fabrication because the defensive theory was not raised by his cross - examination of the complainant

. Appellant asserts, “ If the complainant is not vigorously cross

examined concerning fabricated testimony then an extraneous offense is not admissible on this ground .” Appellant’s assertion , however, is contrary to the holding in Bass v. State , 270 S.W.3d 557, 563 (Tex. Crim. App. 2008 ). There, the Court of Criminal Appeals held that remarks made by a defendant during opening statement, raising a defensive theory, may open the door to the a dmission of
extraneous

- offense evidence needed by the State to rebut th at theory. I d.13 Here, Appellant first raised the defensive theory of fabri cation during voir dire. Defense counsel spent much of her time questioning the venire members regarding thei r views on whether they believed sexual assault victims frequently fabricate their allegations and whether they knew anyone against whom false charges had been made . Defense counsel also solicit ed reasons from the venire for why a woman might fabricate ac cusations of sexual assault

. By thoroughly questioning the venire regarding issues related to fabrication, the defense indicated that the theory of fabrication was important to its case

. The d efense continued to advance the defense of fabrication durin g its cross examination of the State’s witnesses. Defense counsel questioned the complainant regarding why she went home to call the police, rather than going directly to a police station near Scripa Massage. The defense suggested that if the complainant had gone directly to a police station perhaps forensic evidence could have been collected from the complainant’s body. Counsel’s questioning suggested the complainant did not immediately report the crime or otherwise act like a victim because, in fact, n o assault was committed ; that is, it was fabricated by the complainant

. This theory was further suggested by the defense’s questioning of the complainant about why she had failed to tell police that Appellant had attempted to climb on top of her during th e incident.14 Under the defense’s cross

- examination , the complainant’s husband admitted that he had called Appellant and threatened to file a civil lawsuit. Such testimony suggest ed a motive for the complainant to fabricate the sexual

- assault allegations.
T he defense further developed its defensive theory of fabrication during the presentation of its evidence

. As had H.G., Geraldo testified that she did not hear the complainant say, “Oh, hell no you don’t

. ” This testimony tied in with other evidence off ered by the defense to demonstrate that it was highly unlikely that the complainant could have said this and not have been heard by either H.G. or Geraldo. The defense’s evidence suggested that the assault never occurred because no one heard the complaina nt make the statement despite the cramped quarters and the building’s acoustics. This in turn implied that the assault never occurred and that the complainant fabricated the allegations. Th is culminated in the presentation of the fabrication theory durin g closing argument : [I] magine any scenarios you can think of, anything where a man has just stuck his fingers into a woman’ s vagina and she says, “ Oh, hell no you don ’ t. ” Imagine any scenario where she says that nobody within an arm ’ s reach can hear her. There is no scenario where that can happen. Nobody heard her say that. She says she said that, but nobody heard her say that. She says he had his penis out. When she ’ s saying, “ Oh, hell no you don ’ t, ” her friend didn ’ t hear her, [Geraldo] didn ’ t hear her. And now, remember, this is a space that when measured

— I don ’ t know how long my arms are (indicating), but assuming they’ re a couple of feet each, that ’ s

— I mean my arm length is greater than the distance between these two massage tables. And there w as no obstacle to sound. There ’ s a 13

- inch gap along the ceiling (indicating), a 6

- inch gap in the bottom, gaps in the door and material like (indicating) would, if anything, certainly wouldn ’ t15 absorb any sound. I mean, there was nothing to prevent the s ound of [the complainant’s] voice carrying over to her friend next door. Yet, she heard nothing

. She heard nothing

. Now, [Geraldo] told you that she not only could hear voices and conversation. In fact, some of her

— some of her massage clients had compl ained, asked them to quit talking. It’ s disturbing me. She not only could hear sounds of voices when there was conversation, but she could even hear the sheets hit the floor. She could hear the table when it moved because it squeaked. And you could see those massage tables in the pictures. And you’ ll get the pictures back there, but you could see the massage tables. They’ re just

. . . like little plastic cots that sit up on t all legs. If you move on it, it’ s going to do something. She said it squeak ed. She said she could hear sheets hit the floor. So, is it possible somebody could say in the throes of being violated as described to you, that somebody could say the words, “ Oh, hell no you don ’ t, ” jump off the table, the sheet hits the floor, and nob ody heard anything? There ’ s something wrong here. There ’ s something wrong here. There ’ s some question here. (Emphasis in original.) In sum, the trial record shows that Appellant was not simply attempting to demonstrate that the complainant generally la cked credibility or had a reputation for untruthfulness; rather, the defense was making accusations that the complainant
had lied about a specific event

— Appellant’s penetration of her vagina with his fingers

— under a specific set of circumstances

. Given th e record , it is at least subject to reasonable disagreement whether the extraneous

- offense evidence was
admissible for the non

- character

- conformity purpose of rebutting A ppellant’s defensive theory that the complainant was lying about Appellant’s sexual as sault of her ; that is, that she had fabricated her testimony

. See See De La Paz , 279 S.W.3d
at 346

– 47. Thus, we hold that the court did not abuse its discretion in admitting16 the extraneous

- offense evidence under Rule 404(b) to rebut the defense ’s theory that the complainant was lying about the occurrence of the sexual assault. See i d.
at 347. C. Rule 403 Appellant further asserts that , even if he opened the door to the extraneous assault of J.P. , the evidence was nonethel ess inadmissible under Rule of E vidence
403. Rule 403 permits the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. T EX
. R. E VID
. 403. When undertaking a Rule 403 analysis, a trial court must balance the
fol lowing factors: (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 favors the admission of relevant evidence , and it carries the presumption that relevant evid ence will be more probative than prejudicial. Davis17 v. State , 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Martinez , 327 S.W.3d at 73 7

. Further, Rule 403 does not require exclusion of evidence because it creates prejudice; rather, it must be shown that th e prejudice is “unfair.” Martinez , 327 S.W.3d at 737; Mechler , 153 S.W.3d at 440. Rule 403 contemplates the exclusion of evidence only when a clear disparity exists between the degree of prejudice of
the offered evidence and its probative value. Davis , 329 S.W.3d at 806 ; Gayton v.
State , 331 S.W.3d 218, 227 (Tex. App.

— Austin 2011, pet. ref’d) (citing Hammer
v. State , 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)). Applying the first two factors , we examine the probative value of the evidence. The term “pr obative value” refers to “the inherent probative force of an item of evidence

— that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation

— coupled with the proponent’s need for that item of evidence .” Davis , 329 S.W.3d at 806 (citing Casey v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) ); Gigliobianco , 210 S.W.3d at 641. In our Rule 404(b) analysis, we determined that the extraneous

- offense evidence was probative to rebut A ppellant’s defensi ve theory of fabrication. See
Newton v. State , 301 S.W.3d 315, 320 (Tex. App.

— Waco 2009, pet. ref’d) . The extraneous offense is sufficiently similar to the charged offense to have probative value on this issue. Id

. ; Bargas v. State , 252 S.W.3d 876, 892

– 9 3 (Tex. App.

— Houston [14th Dist.] 2008, no pet.).18 Further more , the trial court could have concluded that the State’s need for the extraneous

- offense evidence was considerable. Whether the assault occurred at all was the contested issue. There were no eyewitnesses and no physical evidence available to corroborate the complainant’s testimony. See Newton , 301 S.W.3d at 320; Bargas , 252 S.W.3d at 893. With respect to the third factor, e xtraneous

- offense evidence of this nature does have a tendency to s uggest a verdict on an improper basis because of the inherently inflammatory and prejudicial nature of crimes of a sexual nature

. See
Newton , 301 S.W.3d at 320 . In addition, there is a tendency for evidence to suggest a decision on an improper basis when the subject matter is prior criminal conduct, particularly when the offenses are similar

. Likewise , with respect to the fourth factor

— “confusion of the issues”

— a slight possibility existed that the jury would focus on the prior assaultive conduct rather than focusing on the charged offense. However, the danger of unfair prejudice and confusion of the issues were
counter

- balanced by the trial court ’ s verbal and written limiting instruction. See id

. Nevertheless, th e s e two factor s weigh slightly in favor of exclusion of the evidence. Id. Under the fifth factor, we weigh any tendency of the evidence to be given undue weight by a jury that has not been properly equipped to evaluate the probative force of the evidence. This factor concerns “a tendency of a n item of19 evidence to be given undue weight by the jury on other than emotional grounds. For example, ‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence.” Gigliobianco , 210 S.W.3d at 641 ( citation omitted). Here, the complained

- of testimony was not prone to this tendency, as it concerned matters easily comprehensible by the average person

. This factor weighs in favor admissibility. The final factor concerns whether the presentation of t he extraneous offense evidence consumed an inordinate amount of time. See id. at 641

– 42. This factor focuses on the time needed “to develop the evidence, during which the jury [is] distracted from consideration of the indicted offense.” Mechler , 153 S.W .3d at 4 41

. Our review of the record shows that the testimony of J.P. and her boyfriend consisted of approximately 36 pages out of the approximately 350 pages comprising the presentation of evidence during the guilt

- innocence phase. This factor weighs in favor of admission. To summarize, four factors weigh in favor of admission and two factor s weigh only slightly in favor of exclusion. After review ing the record and weigh ing the necessary factors, we hold that the trial court did not abuse its discretio n under rule 403 in admitting the extraneous

- offense evidence

. We overrule Appellant’s sole issue.20 Conclusion We affirm the judgment of the trial court.

Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Higley and Massengale. Do not publish. T EX
. R. A PP
. P. 47.2(b).