AFFIRM and Opinion Filed August 9, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-01226-CR ROGER ALLEN STULCE JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-80196-2013



### MEMORANDUM OPINION Before Chief Justice Wright, Justice Bridges, and Justice Evans Opinion by Chief Justice Wright A jury convicted Roger Allen Stulce Jr. of sexual assault and assessed a twenty-year sentence and a $10,000 fine. In his sole issue, appellant cont ends the trial court erred in admitting evidence of extraneous offenses in th e guilt/innocence phase of trial. We affirm. BACKGROUND Appellant was charged with sexually assaulting M.S., his wife at the time, on July 19, 2008. The State sought to elicit ex traneous offense testimony from M.S. about similar offenses that occurred during their marri age. After conducting pretrial hearings and listening to the proposed testimony of M.S., the trial court grante d the State permission to introduce testimony about two sexual assaults that o ccurred prior to the charged offe nse and also other contextual evidence. The trial court opined that both inci dents were contextual to the current charged–2– offense. The trial court denied the State pe rmission to go into incidents occurring after the charged offense. During trial, M.S. testified th e first incident occurred in 1998 when appellant was serving in the navy. According to M.S., appellant came ho me drunk and cornered he r in the bathroom of their apartment. Appellant asked her if he could penetrate her a nus with his penis and proceeded to do so after she refused permission. Appellant stopped when M.S.’s screams awoke their twoyear-old son who began crying outside the bathro om door. M.S. called the police but could not complete the call because appellant ripped the telephone cord out of the wall. M.S. then used a neighbor’s phone to contact the police. Although the police responded, M.S. chose not to press charges. As a result of the incident, the navy re quired appellant to attend anger management and other drug and alcohol abuse classes. M.S. testif ied that she believed appellant’s promise to not sexually assault her again. Following the first inci dent, M.S. testified that she and appellant had a normal marriage, which included a return to civ ilian life, appellant’s avoidance of alcohol, two additional children, and a move to Texas. The second incident occurred in March 2008. M.S. testified that appellant penetrated her anus without her consent after he returned from a business trip. Appellant attempted to justify his behavior by telling M.S. that he believed sh e had cheated on him while he was away. M.S. further testified that she did not report the incident because appella nt led her to believe that she could not survive financially on her own without him and that he would leave the country to avoid paying child support if she left him. M.S. testified that in the months preceding the charged offense, appellant resumed requests to penetrate her anus and would badger and harass her until she gave in. Although M.S. consented to some of the requests, it was with he avy restrictions and she did not consent to every request. Appellant began seeing a therapist and was prescribed Xanax. In July 2008, appellant–3– resumed drinking and began to pressure M.S. for anal sex. On July 13, 2008, appellant was taken to Green Oaks, a mental hea lth facility, after he told M.S. that he had confessed to his therapist that he was on the verge of sexually a ssaulting M.S. M.S. picked appellant up from Green Oaks on July 19, 2008. Shortly after they arrived home, appellant began asking for sex. M.S. and appellant engaged in consensual vagi nal intercourse for a short period but appellant then grabbed M.S.’s arm, rolled her over, and pe netrated her anus without her consent. M.S. testified the anal intercourse was very painful an d she begged him to stop. In response, appellant told her to shut up and be quiet . After finishing, appellant left the house and checked into a hotel. He later called M.S. and told her that he wa nted her to come to him so he could rape her. Because he told her he was suicidal and woul d kill anyone she brought with her, M.S. called police who performed a welfare check on appellant at the hotel. M.S. did not report the sexual assault to police at that time. Instead, M.S. p acked some of her belongings and took her three children to California. M.S. re ported the sexual assault eight da ys later from California because she felt safe there. M.S. briefly returned to Te xas to retrieve additiona l belongings. She felt it was safe to do so because appellant was in a ps ychiatric hospital. Upon her return, she found a message written in lipstick on a mirror at her home that renewed her fear. She discontinued prosecution as a result and returned to California. M.S. admitted that the police report she filed regarding the offense described it as vaginal in tercourse and a 2008 divorce petition she filed and withdrew in Collin County alleged appellant had sexually assaulted her but it did not describe the assault as anal sex. M.S. testified she later tried to reconcile with appellant but they eventually divorced in 2010. M.S. and appellant did not have cont act from 2010 to 2012. After learning new information in July 2012, M.S. contacted poli ce again and revived the current prosecution.–4– Although not disclosed to the jury, the new inform ation that caused M.S. to come forward was her learning that appellant had been charged with sexually assaulting several other women.

STANDARD OF REVIEW Whether to admit extraneous offense evidence in the face of defense objections is a question for the trial court. De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The trial court’s determination to admit extraneous offense evidence is reviewed under an abuse of discretion standard. Id . The trial court’s ruling must be uphe ld if it lies w ithin the zone of reasonable disagreement. Id . The trial court’s ruling on extraneous offense evidence is generally within the zone of reasonable di sagreement if the evidence show s (1) the extraneous event is relevant to a material, non-propens ity issue, and (2) the probative value of the evidence is not substantially outweighed by the dang er of unfair prejudi ce, confusion of the issues, or misleading of the jury. Id

. ANALYSIS In his sole issue, appellant contends the tr ial court erred and abus ed its discretion in allowing the State to elicit M.S.’s testimony about the 1998 and March 2008 offenses because the State failed to prove beyond a reasonable doubt that the offenses occurred, the evidence was not admissible under rule of evid ence 404(b)(2), and the evidence s hould have been excluded as more prejudicial than probative under rule of ev idence 403. We will addre ss each of appellant’s contentions in order. Reasonable Doubt Appellant first contends the trial court erred in admitting M.S.’s extraneous offense testimony because the State failed to prove the extraneous offenses beyond a reasonable doubt.–5– Although appellant raised several ob jections to the proffered eviden ce, the record does not show he specifically obj ected in the tria l court on the ground he now raises on appeal. See T EX
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. P. 33.1 (requiring specific objection to preserve complaint for appellate review). Because he did not object to the sufficiency of the evid ence of the extraneous offenses, appellant has failed to preserve this complaint for appeal. See Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (legal theory on appeal must correspond to legal theory raised in tr ial court). Appellant also suggests that he should be entitled to a review of the legal sufficiency of the evidence regarding the extraneous offenses under the standard for legal sufficiency set forth
in Jackson v. Virginia , 443 U.S. 307 (1979). The State re sponds that extraneous offense evidence is not subject to legal sufficien cy review. We agree with the State. In reviewing a case for legal sufficiency of th e evidence, we consider all of the evidence in the light most favorable to the judgment to determine whether a jury, relying on the evidence and the reasonable inferences therefrom, was rati onally justified in finding the defendant guilty. See Jackson , 443 U.S. at 318–19; Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The jury is the sole judge of the credibility and weight of the evidence. See Jackson , 443 U.S. at 319; Temple , 390 S.W.3d at 360. Appellant cites no auth ority suggesting he is entitled to a Jackson review of the sufficiency of extraneous o ffense evidence nor is there any logical way to perform such a review consistent with the sta ndard and the jury’s role as factfinder. Instead of relying upon Jackson , we review the trial court’s assessment of the evidence under an abuse of discretion standard. See De La Paz , 279 S.W.3d at 343. When deciding whether to admit extraneous offense evidence du ring the guilt/innocence phase of trial, the trial court must make an initial determination that the jury could find beyon d a reasonable doubt that the defendant committed the extraneous offense. Harrell v. State , 884 S.W.2d 154, 160 (Tex. Crim. App. 1994). Further, upon the defendant’s reque st, the trial court must instruct the jury–6– not to consider the extraneous offense eviden ce admitted unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense. Delgado v. State , 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). The jury is the ultimat e trier of fact, and it al one determines if an extraneous offense has been proven beyond a reasonable doubt. See Mitchell v. State , 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (the trial judge has the re sponsibility of determining the threshold admissibility of extraneous offens es and the jury determines whether or not the State has proven the extraneous offense beyond a reasonable doubt). The record indicates that the trial court held pretrial hear ings and heard M.S.’s testimony detailing extraneous offenses similar to the char ged offense. The allege d perpetrator and victim are the same, all of the offenses involve sexual assault by penetration of the complainant’s anus, and the aftermath of each extraneous offense is comp arable or contextual to the charged offense. We conclude the record shows the trial cour t made the proper initial assessment of the extraneous offenses and the tria l court’s determination to admit the evidence is an implied determination that the jury could reasonabl y find beyond a reasonable doubt that appellant committed the extraneous offenses. See Harrell , 884 S.W.2d at 160; Jackson v. State , 65 S.W.3d 317, 321 (Tex. App.—Waco 2001, no pet). The trial court’s charge instructed the jury to consider the extrane ous offenses only if it found beyond a reasonable doubt that appellant committe d the offenses and then only to establish “motive, opportunity, intent, prep aration, plan, knowledge, identit y, or absence of mistake or accident . . . and for no other purpose.” To the extent the jury may have considered the extraneous offenses in determining appellant’s guilt, we defer to its judgment on whether the State proved them beyond a reasonable doubt. See Mitchell , 931 S.W.2d at 954. Application of Rule 404(b)–7– Secondly, appellant contends that the State fail ed to show that either of the extraneous offenses were admissible under Texas Rule of Evidence 404(b)(2) an d thus constitute inadmissible character evidence. Appellant asse rts that he presented no defenses that would make the extraneous offense evidence admissible to rebut a defensive theory. Appellant further contends that the 1998 offense was too remo te to be probative under rule 404(b). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acte d in conformity therewith. T EX
. R. E VID . 404(b)(1). It may be admissible for other purposes, such as proof of motive, opportunity, inte nt, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. at 404(b)(2). The exceptions listed under Rule 404(b)(2) are neither mutually exclusive nor collec tively exhaustive. De La Paz , 279 S.W.3d at 343. Therefore, evidence of an extr aneous offense may be admissible for other noncharacter conformity purposes such as showing th e reason a sexual assault victim failed to report the assault promptly or rebutting a defensive theory. See Brown v. State , 657 S.W.2d 117, 119 (Tex. Crim. App. [Panel Op.] 1983) (explai ning failure to report sexual assault); Moses v. State , 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) (rebuttal of defensive theory). The appellate court will not disturb the trial court’s ru ling if the ruling is correct under any applicable theory, even if the trial court gave the wrong reason for the correct ruling. De La Paz , 279 S.W.3d at 344. Appellant asserts that the State’s proffer of extraneous offense evidence is impermissible character evidence pursuant to rule 404(b)(1) because the State did not advance a theory of admissibility within the exceptions of rule 404( b)(2). Although extraneous offense evidence is character evidence, rule 404 makes the evidence inadmissible only if it is used solely to show character conformity. See id . at 343. A supplemental reporter’s re cord of a pretrial hearing, filed after appellant filed his brief, shows the State did offer a proper rationale for admitting the evidence:–8– we believe that those offenses all show, go to his motive, go to his intent and to what the state has to prove of inten tionally and knowingly committing this act, and we believe that it goes to that issue as well as to the lack of consent issue in showing that despite the fact that she wa s with him and that she was consenting to some sexual acts she wasn’t consenting to al l sexual acts, and we believe that it’s relative for that purpose. Thus, the State did provide a rationale falling s quarely within the rule 404(b) exceptions for admitting the evidence. The trial court admitted the extraneous offenses as contextual evidence. Same transaction contextual evidence is evidence that is so intertwine d with the proof of the charged offense that excluding it would make the State’ s case incomplete or difficult to understand. See Prible v. State , 175 S.W.3d 724, 732 (Tex. Crim. App. 2005). Th e sexual assaults were part of a series of interactions between appellant and M.S. that culminated in the charged offense. Understanding the dynamics of the parties’ relationshi p was critical to the jury to evaluate what happened between them on July 19, 2008. The contextual evidence helps explain why M.S. delayed reporting the offense to police and why appellant’s actions should not be viewed as consensual activity or a mistake. Moreover, even if we assume that the 1998 offens e, in particular, is too remote to qualify as contextual evidence, as the State points out, ap pellant’s opening statemen t offered to the jury a theory that M.S. fabricated the July 19, 2008 sexua l assault. In his opening statement, appellant informed the jury that the only evidence the State would rely on is the “story” of M.S. Counsel used the word “story” twenty-thr ee times in his brief opening stat ement. Counsel accused M.S. of denying to the jury any scien tific or medical evidence and phot ographs of bruises or the crime scene by failing to timely report th e assault to police. As trial c ounsel told the jury: “Why is that significant? . . . All the evidence you expect to see in a case like this . Whether it ever existed or not, we don’t know if [M.S.’s] story is at all true , then she kept that evidence from you.” Trial counsel also alluded to changes in M.S.’s “sto ry” over the passage of time between the July 19,–9– 2008 sexual assault and the decision to prosecut e the sexual assault in 2012, pointing out the delay in reporting the offense and the police repor t stating that the sexual assault was vaginal assault rather than anal assault. During M.S.’s testimony, appellant built upon the defense advanced in opening statement. In cross-examining M.S., counsel in quired about the sexual hi story between appellant and M.S. during their marriage. Counsel asked if there was consensual anal sex during the marriage to which M.S. acknowledged there was. Counsel questioned M.S. about the difference between her trial testimony that alleged anal pe netration and her earlier police report and divorce petition that alleged nonconsensual vaginal intercourse. Counsel also questioned M.S. about her efforts to obtain alimony and a portion of appellant’s retirement plan in 2012. Appellant’s opening statement appears calculated to infer to the jury that M.S.’s account of the offense was not merely inconsistent, but untruthful. A defendant can open the door to the admission of extraneous offense evidence to rebut a defensive theory advanced in opening

statement. See Bass v. State , 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). The record shows appellant offered a defense th at M.S.’s accusations were fabricated or that the sexual activity was consensual. The ex traneous offense evidence was permissible under Rule 404(b) as illuminative of appellant’s intent and to rebut the defense’s insinuation that the charged offense either did not happen in the manner M.S. testified to or was consensual activity. See id .; Moses , 105 S.W.3d at 626; see also Garcia v. State , 201 S.W.3d 695, 703 (Tex. Crim. App. 2006) (“in cases in which the prior relati onship between the victim and the accused is a material issue, illustrating the nature of the relationship may be the purpose for which evidence of prior bad acts will be admissibl e”). As a result, we conclude appellant ha s not shown that the trial court’s determination to admit the te stimony lies outside the zone of reasonable disagreement. See Bass , 270 S.W.3d at 563.–10– Appellant next contends that the 1998 offens e should be inadmissible because it is too remote to be of probative value. We agree with appellant that the remoteness of an extraneous offense can significantly reduc e its probative value. See Gayton v. State , 331 S.W.3d 218, 226 (Tex. App.—Austin 2011, pet. ref’d). Probative value, however, is not reduced to zero by the passage of time and, unlike rule 403, rule 404(b) does not involve a weighing of probative value.
See Newton v. State , 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, pet. ref’d). As the State points out, appellant’s ci ted authorities predate th e adoption of the rules of evidence. The shift from common law authority to the rules of evidence involved a shift in sentiment from favoring exclusion of evidence to favoring inclusion of evidence. See Montgomery v. State , 810 S.W.2d 372, 375 (Tex. Crim. App. 1990). Rather than vi ewing remoteness as a bar under rule 404(b), we are persuaded it should be viewed as part of the balancing of probative value versus prejudicial effect under rule 403. See Newton , 301 S.W.3d at 318. Therefore, we find no abuse of discretion by the trial court. Application of Rule 403 Finally, appellant contends that the trial c ourt erred in admitting the extraneous offense evidence because the probative value of the extr aneous offenses is substantially outweighed by their prejudicial effect. We find no abuse of discretion. Even if evidence is admissible under Rule 404( b), a court may exclud e the evidence if its probative value is substa ntially outweighed by a dange r of unfair prejudice. See T EX
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. 403. To determine whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, the tr ial court must balance six fact ors: (1) the inherent probative force of the proffered evidence; (2) the proponent’s need for the evidence ; (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–11– undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and (6) the likelihood th at 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). We analyze the Rule 403 factors as they apply to the extraneous offense evidence. We will uphold the trial court’s decision unless we find a clear disparity between the degree of prejudice of the offered eviden ce and its probative value. Hammer v. State , 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). Factor 1: Inherent Probative Force. M.S.’s testimony includes an extraneous offense that occurred nearly ten years pr ior to the charged offense. We already acknowledged that remoteness reduces probative value. The trial court could have reasonably found, however, that the reduction in the probative value of the 1998 extraneous offense eviden ce due to remoteness was offset by its contextual nature and the exceptional similarity between it and the charged offense. See Robisheaux v. State , 483 S.W.3d 205, 220 (Tex. App.—Austin 2016, pet. ref’d ) ; Newton , 301 S.W.3d at 320. This holds true for the March 2008 extraneous offense as well. At most, this factor slig htly favors exclusion. Factor 2: Proponent’s Need for Evidence. As appellant acknowledges, without physical evidence or eyewitness testimony, the State’ s case hinges on the cred ibility of M.S. See Newton , 301 S.W.3d at 320 (State had cons iderable need for extraneous offense evidence because State did not have physical evidence or eyewitness te stimony). Accordingly, this factor weighs heavily in favor of admission. Factor 3: Tendency of Evidence to Suggest Decision on an Improper Basis. Extraneous offenses of a sexual nature are inherently inflammatory and thus highly prejudicial. See Montgomery , 810 S.W.2d at 397. However, the impermi ssible inference of character conformity–12– can be minimized through a limiting instruction. Lane v. State , 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). The trial court did not provide a preliminary instructi on to the jury at the time the extraneous offense evidence was admitted. But, the trial court did instruct the jury in its charge and before deliberation that it could only consider the extraneous offense evidence if it believed appellant committed the offenses beyond a reasonabl e doubt and even then only for the specific purpose of determining appellant’s “motive, opportunity, intent, prep aration, plan, knowledge, identity, or absence of mistake or accident . . . a nd for no other purpose.” It is presumed that the jury followed those instructions. Resendiz v. State , 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). Like the first factor, this factor at most slightly favors exclusion. Factor 4: Tendency of Evidence to Confuse or Distract Jury. The testimony of M.S. about the extraneous offenses is contextual an d relevant to whether or not appellant sexually assaulted her without her consent. See Bass , 270 S.W.3d at 562–63 (evi dence was relevant where it showed defendant abused other children in similar fashion). This factor weighs in favor of admission. Factor 5: Tendency of Evidence to be Given Undue Weight by Jury. M.S.’s extraneous offense testimony was straightforward, easily unde rstandable, and it did not contain technical information that has a tendency to mislead a jury not skilled to understand the probative value of such evidence. See Gigliobianco , 210 S.W.3d at 641. This factor weighs in favor of admission. Factor 6: Likelihood that Evidence will be too Time-Consuming or Repetitive. The State’s direct examination of M.S. about the ex traneous offenses covered approximately seven pages of the trial transcript w ith an additional mention of them on one page of the redirect examination. The State’s case-in-chief consumes approximately forty-five pages and the entire guilt/innocence phase of trial span s roughly 125 pages. That amount s to less than one-tenth of the entire trial transcript and less than one-fifth of the State’s case-in-chief. See Lane , 933–13– S.W.2d at 520 (concluding extraneous offense tes timony that amounted to le ss than one-fifth of State’s case-in-chief not excessive). The testimony of M.S. was not repetitiv e. Therefore, this factor weighs in favor of admission. Summary of Factors. Out of the six factor s, only two somewhat favor exclusion. We, therefore, cannot say that ther e is a clear disparity between the degree of prejudice of the extraneous offense evidence and its probative value to lead us to find the trial court abused its discretion in admitting the extraneous offense evidence. Conclusion Having decided all of appellant’s contentions against him, we conclude the trial court did not abuse its discretion in admitting the ex traneous offense testimony at issue. See De La Paz , 279 S.W.3d at 343. We overrule appe llant’s sole issue on appeal. We affirm the trial court’s judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROGER ALLEN STULCE, JR., Appellant
No. 05-14-01226-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 380th Judicial District Court, Collin County, Texas Trial Court Cause No. 380-80196-2013. Opinion delivered by Chief Justice Wright. Justices Bridges and Evans participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered August 9, 2016.