No. PD-0971-15 

 IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

______________________

KEN SCRIPA, 

Petitioner

vs. 

THE STATE OF TEXAS, 

Respondent

PETITION FOR DISCRETIONARY REVIEW

GERALD FRY

Texas Bar No. 07493800

801 Congress St., Suite 350

Houston, Texas 77002

Tel. (713) 222-0860

Fax (713) 224-3111

ATTORNEY FOR PETITIONER, 

KEN SCRIPA

PETITIONER DOES NOT REQUEST ORAL ARGUMENT 

PD-0971-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 9/4/2015 1:11:26 PM

Accepted 9/8/2015 11:12:43 AM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES & COUNSEL

Petitioner: Ken Scripa

 Trial Counsel: Judy Mingledorf

 430 Hwy 6 South, Suite 215

 Houston, Texas 77079

 Appellate Counsel : Gerald Fry

 801 Congress St., Suite 350

 Houston, Texas 77002

Respondent: State of Texas

 Trial Counsel: Collen Gaido

1201 Franklin Suite 600

Houston, Texas 77002

 Appellate Counsel: Alan Curry

 1201 Franklin, 6th Floor

 Houston, Texas 77002

 State Prosecuting Attorney: Lisa McMinn

 P.O. Box 12405

 Austin, TX 78711

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .........................................................ii

TABLE OF CONTENTS .........................................................................iii

INDEX OF AUTHORITIES.......................................................................iv

STATEMENT OF THE CASE.....................................................................1

STATEMENT ON ORAL ARGUMENT.........................................................i

ISSUES PRESENTED...............................................................................1

STATEMENT OF FACTS.......................................................................1-2

SUMMARY OF THE ARGUMENT..............................................................2

ARGUMENT......................................................................................2-4

Issue 1: Did The Court of Appeals err in ruling that the trial court did not abuse it’s 

discretion in admitting an extraneous offense against the Petitioner during the 

guilt-innocence stage of the trial in violation of Texas Rules of Evidence 

Section 404(b), 403 .....................................................................1

PRAYER.............................................................................................4

CERTIFICATE OF SERVICE.....................................................................4

CERTIFICATE OF COMPLIANCE ............................................................4

APPENDIX ..........................................................................................5

iii
 INDEX OF AUTHORITIES 

CASES

Caldwell v. State, 477 S.W.2d 877, (Tex. Crim. App. 1979)...................................3

Deleon v. State, 77 S.W.3d 300 (Tex. App. Austin 1st Dist, 2001)............................3

Pavlacka v. State, 892 S.W.2d 897, (Tex. Crim. App. 1994)...................................3

Webb v. State, 36 S.W.3d, (Tex. App. Houston 14th Dist. 2000)...............................3

Lewis v. State, 529 S.W.2d 533, (Tex. Crim. App. 1975) .......................................3

Turner v. State, 754 S.W.2d 668, (Tex. Crim. App. 1988).....................................4

STATUES

Texas Rules of Evidence Section 404(b)..........................................................3

Texas Rules of Evidence Section 403..............................................................3

iv
STATEMENT OF THE CASE

Petitioner was charged by an Indictment filed October 24, 2012 with the Sexual

Assault of an Adult, Karen Hatchett, by placing his fingers in the sexual organ of the 

Karen Hatchett, (CR-8). On May 19, 2014 the Petitioner plead not guilty to the 

Indictment and a jury was empaneled, (CR-321-326). The Jury Trial was from May 19, 

2014 until May 22, 2014. On May 21, 2014 the jury returned a guilty verdict, (CR-336). 

On May 22, 2014 the jury sentenced the Petitioner to 10 years in prison and a $10,000 

fine, (CR-348). Notice of Appeal was filed on May 22, 2014, (CR-355). Opinion issued 

on July 2, 2015 by the First court of appeals, (See Appendix). PDR due September 2, 

2015.

 ISSUE PRESENTED FOR REVIEW 

Issue 1: The Court of Appeals erred in ruling that the trial court did not abuse it’s 

discretion in admitting an extraneous offense against the Petitioner during the 

guilt-innocence stage of the trial in violation of Texas Rules of Evidence 

Section 404(b), 403 

 STATEMENT OF FACTS 

Petitioner is the owner of a massage business, Scripa Wellness Center. Complaint 

stated that on August 6, 2014 she went there for a massage. Complaint testified that the 

Appellant was giving her a massage and asked her to lay on her back and then shoved his 

fingers into her vagina, (3 RR 9-127). After the Petitioner presented testimony the State 

presented an extraneous offense of Jennifer Peterson being sexually assaulted by 

Petitioner during her massage on March 12, 2011.

1
She testified that Petitioner rubbed his penis, that was inside his shorts, against her hand, 

(4 RR 87) and then also touched her vagina, (4 RR 90) during her massage.

 SUMMARY OF THE ARGUMENT

 The trial court abused its discretion and committed reversible error by allowing 

the State to present in their rebuttal testimony the extraneous offense of the alleged sexual 

assault of Jennifer Peterson.

ARGUMENT

Issue 1: The Court of Appeals erred in ruling that the trial court did not abuse it’s 

discretion in admitting an extraneous offense against the Petitioner during the 

guilt-innocence stage of the trial in violation of Texas Rules of Evidence 

Section 404(b), 403

 

ARGUMENT AND AUTHORITIES

The standard of review is whether the trial court abused its discretion by allowing 

the extraneous offense evidence in over Petitioner’s objections. The Petitioner did not 

testify at the guilt-innocence stage of the jury trial. The State in rebuttal after the 

Defense rested brought Jennifer Peterson in to testify about an extraneous sexual offense 

that the Petitioner committed against her, (4 RR 75-94). Petitioner filed a Motion in 

Limine, ( 1 CR 282). The court granted this motion. The Court granted the State’s motion 

to allow the extraneous offense to come into evidence, (4 RR 59). The State claims that 

they are allowed to bring the extraneous offense in to rebut the defensive theory that the 

complaint fabricated her testimony, (RR 235-240). Texas Rules of Evidence 404(b) states, 

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

2
of a person in order to show action in conformity therewith”. Petitioner cross-examined 

the Complaint but the exercise of the right of cross-examination will not, in and of itself, 

open the door to the admission of extraneous offenses, Caldwell v. State, 477 S.W.2d 877, 

(Tex. Crim. App. 1979). The cross-examination must effectively contest a fact that 

testimony was offered to prove, Deleon v. State, 77 S.W.3d 300 (Tex. App. Austin 1st 

Dist., 2001). The cross-examination of the Complaint was not vigorous and no defensive 

theory was raised by this cross-examination. If the complainant is not vigorously crossexamined concerning fabricated testimony and the Petitioner didn’t testify then an 

extraneous offense is not admissible on this ground, Pavlacka v. State, 892 S.W.2d 897, 

(Tex. Crim. App. 1994), see also Lewis v. State, 529 S.W.2d 533, (Tex. Crim. App. 1975).

The Complaint was not cross-examined at all concerning fabrication, (3 RR 48-77, 83-

88). Webb v. State, 36 S.W.3d, (Tex. App. Houston 14th Dist.) held that testimony about 

an extraneous offense involving another person does not rehabilitate the complainant. 

The only purpose in admitting the extraneous offense was to show that Petitioner 

commits sexual assaults in general and therefore probably committed the sexual assault 

he is on trial for.

Even if this court determines that the evidence is relevant and not in violation of 

Texas Rules of Evidence 404(b), then the court must do a balancing act under Texas Rules 

of Evidence 403. Texas Rules of Evidence 403 states , although relevant evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, Deleon v. State, 77 S.W.3d 300 (Tex. App. Austin 1st Dist., 2001), see also 

3
Turner v. State, 754 S.W.2d 668, (Tex. Crim. App. 1988). Sexual extraneous offenses in a 

sexual assault trial tend to allow the jury to convict the Petitioner on the basis that he is a 

sexual predator. The probative value of the extraneous offense is very small and the 

danger of unfair prejudice is very high.

PRAYER FOR RELIEF

 For the above reasons, your Petitioner respectfully requests that this Court order 

the case reversed and render a judgment of acquittal. In the alternative, Petitioner prays 

that the case be remanded to the trial court for a new trial. 

 Respectfully submitted,

/S/ Gerald Fry 

Gerald Fry

Texas Bar Number 07493800

801 Congress, Suite 350

Houston, TX 77002

(713) 222-0860; (713) 224-3111 Fax

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Petitioner’s PDR Brief was emailed to the 

Alan Curry, Harris County District Attorney’s Appellate Section and emailed to the State 

Prosecuting Attorney, Lisa McMinn, on this the 4th day of September 2015. 

/S/ Gerald Fry 

Gerald Fry

CERTIFICATE OF COMPLIANCE

I hereby certify that this Petition conforms to the requirements of TRAP 9, and consists 

of 1,291 words per TRAP 9.4(i)(3).

/S/ Gerald Fry 

Gerald Fry

4 
APPENDIX

5

 
Opinion issued July 2, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00477-CR

———————————

KEN SCRIPA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case 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 TEX. PEN. CODE ANN. § 22.011(a)(1) (Vernon 2011).
2

Appellant raises one issue, asserting that the trial court abused 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 massage 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 at Scripa Massage, Appellant and a female 

massage therapist, P. Geraldo. After arriving 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 

complainant’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 threw the sheet off the 
3

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 was 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 complainant, 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 and 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), licensing agency 

for massage therapists. After the TDSHS began its investigation, Appellant 

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. 

During 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 sexually assaulted. First, the 

defense asked the venire, row by row, whether they had 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 venire, “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 indicate 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 response. 

At trial, Appellant’s defense focused on discrediting the complainant’s 

allegations by showing that, if the assault had occurred as she claimed, someone 

would have heard her say to Appellant, “Oh, hell no you don’t.” H.G. testified at 
5

trial. On cross-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 testimony 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, the defense offered the testimony of the 

other massage therapist, P. Geraldo, 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, she stated that noise and conversations in one part of the 

facility would 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 that 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 

was said in the other area. Geraldo testified that she did not hear anything 

noteworthy while the complainant was having her massage. Geraldo stated that 
6

she remembered the complainant leaving with her friend, H.G, that day. Geraldo 

testified that the complainant 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, during 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 

direct 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 penis, and (3) Appellant attempting to climb on top of her. The 

defense showed the complainant the police report that she had made following the 
7

incident. The complainant acknowledged that she had not stated in the police 

report that Appellant had attempted 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 while he was giving her a 

massage. The State asserted that it sought to introduce the 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 

through 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 story. 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 objected 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, the State called 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 case regarding the defendant committing an alleged offense or

offenses other than the offense charged against him in this indictment 
8

or the indictment of this case, you cannot consider such evidence for 

any purpose unless you find from—unless you find and believe 

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 coupon. 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. Then, while 

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 Appellant 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 right 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 

report with the TDSHS regarding the incident.
9

J.P.’s boyfriend, Evan, also testified. He 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 they left, J.P. initially 

would not tell him what had happened. However, Evan 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 “made 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 Appellant 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 discretion 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 TEX. R.

EVID. 403, 61 TEX. B.J. 374, 376 (Tex. & Tex. Crim. App. 1998, amended 2015); 

TEX. R. EVID. 404(b), 61 TEX. B.J. 374, 378 (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 its 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 TEX. B.J. 42, 42 (Tex. 2015). The changes to Rules 

403 and 404 are stylistic. See id. at 49. All further citations to Rules 403 and 404 in this 

opinion refer to the rules as they existed during Appellant’s trial.
11

Rule of Evidence 404(b) prohibits the admission of extraneous offenses to 

prove a person’s character or to show that the person acted in conformity with that 

character. See TEX. R. EVID. 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 character.” Id. (citing Rankin v. State, 

974 S.W.2d 707, 709 (Tex. Crim. App. 1996)). 

Extraneous-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). Extraneous offenses may be admissible for some other purpose such as to 

show motive, opportunity, intent, preparation, plan, knowledge, identity, or 
12

absence of mistake or accident. TEX. R. EVID. 404(b); Montgomery v. State, 810 

S.W.2d 372, 387–88 (Tex. Crim. App. 1990). However, this 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.; see 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 349–50.

In his brief, Appellant 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 crossexamined 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 admission of 

extraneous-offense evidence needed by the State to rebut that theory. Id.
13

Here, Appellant first raised the defensive theory of fabrication during voir 

dire. Defense counsel spent much of her time questioning the venire members 

regarding their 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 solicited reasons from the venire for 

why a woman might fabricate accusations 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 defense continued to advance the defense of fabrication during its crossexamination 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, no 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 the 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 

suggested a motive for the complainant to fabricate the sexual-assault allegations. 

The 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 offered 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 complainant 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. This culminated in the presentation 

of the fabrication theory during 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 was 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’t 
15

absorb any sound. I mean, there was nothing to prevent the sound 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 complained, 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 tall legs. If 

you move on it, it’s going to do something. She said it squeaked. 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 nobody 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 lacked 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 the record, it is at least 

subject to reasonable disagreement whether the extraneous-offense evidence was 

admissible for the non-character-conformity purpose of rebutting Appellant’s 

defensive theory that the complainant was lying about Appellant’s sexual assault 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 admitting 
16

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 id. 

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 nonetheless inadmissible under Rule of Evidence 

403. Rule 403 permits the exclusion of otherwise relevant evidence when its 

probative value is substantially outweighed by the danger of unfair prejudice. TEX.

R. EVID. 403. When undertaking a Rule 403 analysis, a trial court must balance the 

following 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 evidence will be more probative than prejudicial. Davis 
17

v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Martinez, 327 S.W.3d at

737. Further, Rule 403 does not require exclusion of evidence because it creates 

prejudice; rather, it must be shown that the 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 “probative 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 Appellant’s defensive 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, 892–93 (Tex. App.—

Houston [14th Dist.] 2008, no pet.). 
18

Furthermore, 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, extraneous-offense evidence of this nature 

does have a tendency to suggest 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, these two factors 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 an item of 
19

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 the 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

441. 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 factors

weigh only slightly in favor of exclusion. After reviewing the record and weighing

the necessary factors, we hold that the trial court did not abuse its discretion under 

rule 403 in admitting the extraneous-offense evidence. 

We overrule Appellant’s sole issue.
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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. TEX. R. APP. P. 47.2(b).