Bass v. State

• Decision Date: 08 March 2007
• Docket Number: No. 14-05-00865-CR.,No. 14-05-00855-CR.,14-05-00865-CR.,14-05-00855-CR.
• Citation: 222 S.W.3d 571
• Parties: Curtis Lee BASS, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

222 S.W.3d 571

Curtis Lee BASS, Appellant v. The STATE of Texas, Appellee.

No. 14-05-00865-CR.

No. 14-05-00855-CR.

Court of Appeals of Texas, Houston (14th Dist.).

March 8, 2007.

Robert A. Morrow, Spring, for appellants.

Kelly Ann Smith, Houston, for appellees.

Panel consists of Chief Justice HEDGES and Justices YATES and SEYMORE.

OPINION

CHARLES W. SEYMORE, Justice.

A jury found appellant, Curtis Lee Bass, guilty of two counts of indecency with a child and sentenced him to ten years' probation for one count and ten years' imprisonment for the other count. In four issues, appellant contends (1) the trial court erred by admitting evidence of extraneous offenses in violation of the Texas Rules of Evidence and due process, (2) the evidence is legally and factually insufficient to support the conviction, (3) the trial court erred by excluding testimony that the complainant had falsely accused another man of sexual assault, and (4) the trial court erred by excluding evidence that one of the extraneous offenses at issue was no-billed by a grand jury.

I. BACKGROUND

When complainant ("S.D.") was twenty-six years old, she accused appellant of subjecting her to indecent sexual contact. S.D. was sixteen-years old when the two incidents allegedly occurred. At the time of the incidents, appellant served as pastor to the church S.D. attended. S.D. also attended school with appellant's sons.

At trial, S.D. testified that both incidents occurred in 1994. First, on February 23, 1994, after school, appellant asked her to come by the church that day to help him with some paperwork. After they entered his office, he closed the door. He then massaged her shoulders, placed his hands on her hips, touched her breasts over her undershirt, touched her breasts under her undershirt, kissed her, and touched her vaginal area.

The second incident occurred on June 7, 1994, when S.D. went to the church to tell appellant to leave her alone. When she arrived, appellant was at the church entrance. He repeatedly invited S.D. into the church. However, she did not enter and told him that she had to leave. He then pulled her toward him and kissed her while touching her breasts, face, arms, and shoulders.

During fall 1994, S.D. told classmate, Crystal Wheeler, about the incidents. Wheeler repeated the allegations to her parents, who then informed school administrators. On November 7, 1994, S.D. met with the school principal, administrator, and secretary. S.D. testified the principal asked her in a sarcastic manner what appellant did to her, "smirking and laughing" after S.D. spoke. Afterwards, they escorted S.D. to another school building and told her to wait in an empty classroom. By the time the administrators retrieved S.D. from the classroom, school had been dismissed and her grandfather was waiting to pick her up. However, the administrators did not allow S.D. to speak to her grandfather. They led her back to the administration office where appellant was waiting. While the administrators asked S.D. to say what happened, appellant sat in the room smirking, tapping his foot, and crossing his legs. During this meeting, appellant asked S.D. if there was a window in his office. She said, "no." Appellant then told her there was a window in his office. The administrators told S.D. they thought she was lying.

On May 26, 1995, as S.D. walked to her friend's house, appellant drove by and stopped next to her. He told her that "he wanted to put it all behind us," "he wanted me to forgive him," "he was sorry," and "he did not mean to lie." S.D. further explained "did not mean to lie" referred to the confrontation in the school administration office.

During August 2004, S.D. reported the two episodes to the police. She also produced a personal journal that had relevant entries made during the time period in consideration.

II. ADMISSION OF EXTRANEOUS OFFENSES

In his first issue, appellant contends the trial court erred by admitting evidence of two extraneous offenses during the State's case-in-chief in violation of Texas Rule of Evidence 404(b) and appellant's due process rights. Appellant contends the extraneous offenses were inadmissable under Rule 404(b) because they were offered solely to establish character conformity. We agree.

A. Rule of Evidence 404(b)

Pursuant to Rule 404(b), evidence of extraneous offenses is not admissible during the guilt-innocence phase of a trial to prove a defendant acted in conformity with his bad character. TEX. R. EVID. 404(b). However, extraneous-offense evidence may be "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" when it has relevance beyond character conformity. Id; Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.1991). Rebuttal of a defensive theory is also one of the permissible purposes for which evidence may be admitted under Rule 404(b). Moses, 105 S.W.3d at 626. "Probably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory." Crank v. State, 761 S.W.2d 328, 341 (Tex.Crim.App. 1988)) overruled on other grounds by Alford v. State, 866 S.W.2d 619 (Tex.Crim. App.1993)); see also Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001). When determining whether evidence of extraneous offenses is admissible to rebut defensive theories, a trial court may consider a defensive theory raised in an opening statement. See Powell, 63 S.W.3d at 439 (citing United States v. Bari, 750 F.2d 1169, 1180 (2d Cir.1984); United States v. Price, 617 F.2d 455, 459-60 (7th Cir.1979); United States v. Olsen, 589 F.2d 351, 352 (8th Cir.1978)). Extraneous offense evidence is admissible to rebut defensive theories raised by the State's witnesses during cross-examination. Ransom v. State, 920 S.W.2d 288, 301 (Tex.Crim.App.1994). However, merely introducing evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not render that evidence admissible. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App.1996) (en banc). The extraneous offense must also be relevant to a "fact of consequence" in the case. Id.

A trial court's decision to admit extraneous-offense evidence is reviewed for abuse of discretion. Moses v. State, 105 S.W.3d at 627. As long as the trial court's ruling was within the zone of reasonable disagreement, we must affirm. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991)). Whether extraneous-offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court. Id. We owe no less deference to the trial judge in making this decision than any other relevancy determination. Id.

B. Extraneous Offense Testimony

Before trial, the court granted appellant's motion in limine objecting to any evidence of extraneous offenses. During trial, out of the presence of the jury, the State informed the court regarding the substance of proposed extraneous-offense testimony and advised that the testimony was proffered for the purpose of rebutting appellant's claims regarding S.D.'s credibility. The State also noted that the extraneous offenses took place in the same church. The trial judge permitted the extraneous-offense testimony, concluding that the probative value outweighed any unfair prejudicial effect. The State then introduced testimony regarding incidents that involved appellant and two other children, J.P. and R.C.¹

First, Richard Parmer, a former member of appellant's church, testified about an incident involving appellant and his daughter, J.P. The incident occurred when she was five-years old. Parmer explained that he was helping clean at the church when he opened the door to appellant's office and found his daughter sitting in appellant's lap. J.P.'s dress was above her waist and appellant's hands were on her. After Parmer entered the office, appellant appeared surprised and said that J.P.'s dress had ridden up, and he was helping her straighten it.

R.C. then testified that on April 1, 2002, when she was eleven-years old, she was helping clean at the church with her sister. Appellant told her to go inside with him to get some cleaning supplies. After she entered appellant's office, he touched her between her legs, kissed her on the lips, and touched her breasts. He stopped when the church front door opened. Afterwards, they retrieved the cleaning supplies. Appellant instructed R.C. not to tell anyone. However, R.C. told her mother and sister about the incident that same day.

C. Analysis

Appellant argues the extraneous offenses were inadmissable under Texas Rule of Evidence 404(b) because they were offered solely to establish character conformity. Specifically, appellant contends extraneous-offenses are not admissible to rebut a fabrication defense and cites our decision in Webb v. State, 36 S.W.3d 164, 180-81 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (en banc). We agree with appellant.

In Webb, the fact issue in dispute was whether the defendant committed aggravated sexual assault of the complainant, a topless dancer. Id. at 180. At trial, the State presented testimony from another topless dancer, who had also been sexually assaulted by the defendant in a similar manner. Id. The trial court ruled extraneous-offense evidence was admissible because it was a "signature type" offense that showed "`opportunity, plan, maybe motive, scheme. . . .'" Id. However, we noted there was no dispute as to identity, motive, intent or any of the other Rule 404(b) exceptions. Id. The State contended the extraneous-offense evidence was offered for the purpose of challenging a defensive theory raised during cross-examination of the complainant that she was mistaken or unsure about the events due to her level of intoxication. Id. However, we explained that evidence of an extraneous offense against the other topless...