in the Matter of the Marriage of Maryhelen Morris and Donald Morris

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00042-CV ______________________________ IN THE MATTER OF THE MARRIAGE OF MARYHELEN MORRIS AND DONALD MORRIS On Appeal from the 62nd Judicial District Court Lamar County, Texas Trial Court No. 63,875 Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Grant O P I N I O N Donald Morris has filed an appeal from a Decree of Divorce. Morris's counsel has filed a motion in which he states that the parties have agreed to a settlement of the case which requires the entry of specific orders in connection with the division of property in the divorce. Therefore, the parties have asked this court to remand the case to the district court for the entry of appropriate orders in compliance with their settlement agreement. Pursuant to Tex. R. App. P. 42.1, the motion is granted. Based on the agreement of the parties, this appeal is dismissed and remanded to the trial court for further proceedings consistent with this opinion. Ben Z. Grant Justice Date Submitted: January 30, 2002 Date Decided: January 31, 2002 Do Not Publish n sex. After the defense presented its case, Britt testified as a rebuttal witness (1) that, several years earlier, while she was a minor, Mattox and several other men had sex with her. Mattox argues that the trial court committed reversible error by admitting evidence of extraneous offenses. We first address the admission of the testimony of C.H. The admission of extraneous-offense evidence is reviewed under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g). If the trial court admits the evidence in light of the factors enunciated in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), and the court's decision to admit the evidence is "within the zone of reasonable disagreement," the trial court's decision will be upheld. Rankin, 974 S.W.2d at 718. C.H. initially testified about an incident where Mattox had come into a bedroom with her and S.B. and asked them both to show him their breasts, and that S.B. did, but she did not. Mattox's counsel then asked to present a motion outside the presence of the jury. The trial court excused the jury, and counsel (1) asked for a mistrial because of her allegations about Mattox's actions toward her, and then (2) argued that the evidence was more prejudicial than probative. The objection/motion was overruled. Shortly thereafter, the State asked C.H. whether there were any other instances in which Mattox took inappropriate actions in the presence of her and the complainant. Counsel objected at that point based on improper character evidence, and the objection was overruled. At that point, no questions had been asked that would necessarily implicate improper character evidence, and thus the trial court correctly overruled the objection. The State then continued to question C.H., and in response to one of his questions about what had happened while C.H. and the complainant were together with Mattox, she described a scene in the complainant's bedroom where Mattox asked her for sexual favors in return for cigarettes and money. Mattox did not object to that testimony. After that exposition ended, the State then ask C.H. about another incident where Mattox had driven her and the complainant to a lake. After the question was asked, and in the midst of the answer, counsel objected because the testimony would constitute improper character evidence. The objection was overruled, and C.H. completed her testimony by explaining how Mattox had again asked her for sexual favors. The State referred to this testimony in its closing argument. Relevant evidence of a person's bad character is generally not admissible for the purpose of showing that he or she acted in conformity with his or her character. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 386-88 (op. on reh'g). In applying the Texas Rules of Evidence, however, the Texas Court of Criminal Appeals has also held that the evidence may be admissible when it is shown to be relevant to a noncharacter conformity issue of consequence in the case, such as establishing intent or rebutting a defensive theory. Robbins, 88 S.W.3d at 259; Montgomery, 810 S.W.2d at 387-88. (2) A trial court is in the best position to decide these admissibility questions, and appellate courts therefore review its decision under an abuse of discretion standard. Montgomery, 810 S.W.2d at 391. This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. See id. In a number of cases, evidence about extraneous bad acts or offenses allegedly committed by an accused has been held admissible to refute defensive theories raised by the accused. Wheeler v. State, 67 S.W.3d 879, 886-87 & n.18 (Tex. Crim. App. 2002) (noting that "[e]vidence of extraneous offenses committed by the accused has been held admissible . . . to refute a defensive theory raised by the accused") (quoting Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972); and referencing Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988) ("[p]robably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory")); see also Rodriguez v. State, No. 290-01, 2003 WL 1534250, at *11 (Tex. Crim. App. Mar. 26, 2003) (Myers, J., dissenting). From the opening statements and throughout the testimony, Mattox's sole defensive theory was that the complainant was not telling the truth about any sexual activities between them. The reason suggested for her alleged lies was that she was angry about his version of parental discipline and wanted to move in order to live with her biological father in South Carolina. Clearly, C.H.'s testimony about the acts she observed between Mattox and S.B. were admissible to show that the acts occurred. C.H.'s testimony that Mattox had attempted to pay her to engage in similar acts and had attempted on one occasion to unbutton her pants while she was in the complainant's bedroom are a different issue. The State takes the position that this testimony tends to refute Mattox's defensive argument that S.B. had fabricated her testimony. In reviewing the admissibility of this evidence, we are confronted by opinions that have continually narrowed the scope of the rule and thereby broadened the range of evidence found to be admissible. In Wheeler, in reviewing testimony by another minor girl, the Court found that her testimony regarding an extraneous offense of sexual touching near other people was admissible to rebut a specified defensive theory that Wheeler did not have opportunity to make such contact with the alleged victim because he was never alone with her and the acts allegedly occurred while other persons were around. Wheeler, 67 S.W.3d at 885. The Texas Court of Criminal Appeals also stated that the evidence was admissible to rebut a "frame-up" theory by showing similar acts in a situation involving neither money nor revenge as possible motives for her testimony. Id. at 887. (3) This same defensive theory (lack of opportunity) was also used to validate the admission of extraneous offenses in Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001). In that case, the court also found that it was acceptable to look to the opening statement by defense counsel to glean the defensive theory and that evidence by other witnesses about alleged extraneous offenses committed against them while in the company of other people was admissible to refute his argument that he could not have committed the crime-because other people were always around. Reversing Powell v. State, No. 12-98-00049, 2000 WL 760988 (Tex. App.-Tyler May 31, 2000, op. on reh'g) (not designated for publication). The question before this Court is whether there is any viable, specific, defensive theory that this testimony was relevant to rebut-besides its relevance to show that Mattox acted in conformity with his (bad) character. In Wheeler, the court held that one of its reasons for finding the testimony admissible was that the complainant had been accused of fabricating the story in a conspiracy designed to attempt to obtain money. Wheeler, 67 S.W.3d at 887. Therefore, the court reasoned, the extraneous-offense testimony tended to contradict that theory by showing that other young girls with no such motives had been similarly treated by the defendant. In this case, the defensive theory was that S.B. had concocted the story in an attempt to create a situation where she could join her birth father in another state. If the testimony of C.H. rebuts a specific defensive theory, such evidence of similar acts was admissible in order to show that, as in Wheeler, other young girls with no such motive had been similarly treated. In making this determination, we review the evidence presented regarding the defensive theory. In the opening statement, Mattox introduced the theme, "she wanted to live with him [her birth father] because she had a freer lifestyle, and [he] let her do things she didn't get to do around here." This continued to be developed with witness Eddie Waggoner, who was asked, "How about if your mother thought that your real dad was a low down bad guy and he moved to another state and you wanted to get back with him, . . . ?" In questioning S.B., he asked, "Did [your birth father] ever talk to you about breaking up the family so that he could remarry [S.B.'s mother]?" Suzette Williams testified that S.B. had said she was going to get the defendant in trouble by saying that he molested her and that she wanted Williams to lie for her. S.B.'s aunt testified that S.B. had said she was lying, that S.B. was just mad at Jess, and that S.B. was saying this to get even because of him being so strict on her she wanted to live with her real dad. S.B.'s mother testified that S.B. told her that Jess did not do anything and that she was mad at him for "interfering in her father's relationship." Her mother also testified that S.B. had made up the lie because S.B. wanted to make her mother mad enough to let her go to South Carolina. Mattox testified that S.B. said if he "didn't get off of her back that she was going to go up and make the report that I was molesting her, . . . ." "I think that wanting to go up to be with her real father is motive enough." The primary defense to this case was that S.B. was lying and her motivation was to live with her biological father. Mattox offered evidence on this issue from the child's mother and aunt. Additionally, three other witnesses were questioned on this subject, including the child. Mattox also personally presented such evidence in his defense. Under these unusual circumstances, and applying the requisite abuse of discretion analysis, we conclude the trial court's decision to admit the evidence was within the zone of reasonable disagreement. Accordingly, error has not been shown. Mattox also argues on appeal that, under Texas Rule of Evidence 403, the evidence was unfairly prejudicial. See Tex. R. Evid. 403. However, except for the one instance set out specifically above, he did not make that argument at trial. In connection with the shirt-raising incident, the testimony was merely a part of the entire transaction and, as such, although it was obviously prejudicial, we perceive no reason that it would be unfairly prejudicial. We therefore conclude the trial court did not abuse its discretion by admitting the testimony. We cannot consider the other contentions in connection with the Rule 403 balancing test because that complaint was not brought to the trial court's attention by a timely and proper objection and, thus, the claimed error has not been preserved for our review. See Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997); Montgomery, 810 S.W.2d at 389. Britt's testimony Mattox also complains that the trial court abused its discretion by admitting the previously described testimony of Donetta Britt in rebuttal. The sole objection made to her testimony was "Objection, improper character, and relevance." The objection was overruled. As discussed above, this testimony was admissible to rebut Mattox's defensive theory that the complainant had fabricated her accusations so she could live with her biological father. Reopening the case Mattox finally contends the trial court erred by refusing to permit him to reopen his case to present more evidence. After both sides had rested and closed, Mattox asked the trial court to allow him to reopen his case: [Mattox's Counsel]: Your Honor, we would ask to reopen. THE COURT: Tell me about it. [Mattox's Counsel:] We have five witnesses, four of them dealing with this Britt lady, and one is dealing with an incident that [S.B.] had said she was going to run away and escape, and we were going to talk about that she had a plan and to go toward her ability to form a plan. A lot of the state's experts said she couldn't do that. . . . . THE COURT: Do I understand the state's objecting to this? [Prosecutor]: We are objecting strenuously, Your Honor. THE COURT: I'm going to sustain your objection and deny your request. [Mattox's Counsel]: We take exception. . . . . [Mattox's Counsel]: Your Honor, I want to reurge the motion to open. One of the witnesses is going to testify how he was dressed when he went across to get his sandwich at lunch on February 1st and 2nd. We review a trial court's refusal to allow a party to reopen its case-in-chief for abuse of discretion. See generally Peek v. State, 106 S.W.3d 72, 72, 75 (Tex. Crim. App. 2003). A trial court must reopen a case under Article 36.02 of the Texas Code of Criminal Procedure "only if the proffered evidence is 'necessary to a due administration of justice.'" Id. at 79 (quoting Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981)). The Texas Court of Criminal Appeals recently explained "due administration of justice" means the evidence sought to be introduced must be more than merely relevant: "a judge should reopen the case if the evidence would materially change the case in the proponent's favor." Peek, 106 S.W.3d at 79. In the case before us, the record does not demonstrate the evidence sought to be introduced during a reopening of Mattox's case would materially change the case in his favor. Under these facts, Mattox has not shown the trial court abused its discretion by denying his motion to reopen. We affirm the trial court's judgment. Jack Carter Justice Date Submitted: June 20, 2003 Date Decided: July 18, 2003 Do Not Publish 1. A short hearing outside the presence of the jury was held with Britt, during which her testimony was set out and briefly discussed. The trial court at that time sustained Mattox's objections to her testimony, but stated it might revisit the issue later, and then allowed the testimony as rebuttal. 2. The evidence must have relevance apart from character conformity, i.e., it must make more or less probable an elemental fact or fact that inferentially leads to an elemental fact or tends to disprove in the same way. Examples are to prove motive, opportunity, intent, preparation, blame, knowledge, identity, or absence of mistake or accident. Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex. Crim. App. 1990) (op. on reh'g). 3. Similarly, this Court has recently held that extraneous-offense evidence was admissible in a child sexual assault case when the defense was a lack of opportunity to commit the offense and all of the defendant's family testified they never saw the defendant do anything unusual with the complainant. Abshire v. State, 62 S.W.3d 857, 860 (Tex. App.-Texarkana 2001, pet. ref'd).