Sim Stanley Bittick v. the State of Texas ( 2024 )

Affirmed and Opinion Filed February 16, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00882-CR
SIM STANLEY BITTICK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 071896
MEMORANDUM OPINION
Before Justices Molberg, Carlyle, and Smith
Opinion by Justice Molberg
Appellant Sim Bittick was indicted for continuous sexual abuse of a child
younger than fourteen and nine counts of aggravated sexual assault of a child. A
jury found Bittick guilty of continuous sexual abuse and eight of the counts of
aggravated sexual assault, and the trial court sentenced him to ninety-eight years’
confinement for each offense. In this appeal, Bittick argues the trial court abused its
discretion in overruling his rule 403 objections and admitting extraneous evidence
showing he (1) sexually assaulted his daughter and (2) solicited the murder of
witnesses in this case. We affirm in this memorandum opinion. See TEX. R. APP. P.
47.4.
Background
T.W., who was twenty-six years old at trial, testified Bittick was her
stepfather. She grew up being cared for by him and her mother, Tammy, until she
was fourteen or fifteen, when Bittick and Tammy divorced. With Tammy’s
permission, T.W. married and moved in with Jimmy Robertson when she was
sixteen. T.W. told Robertson that Bittick and Tammy sexually abused her when she
was younger, and she decided to report the abuse to the police. She said Robertson
was the first person she told about the abuse because, for the first time, she was no
longer living with Bittick or Tammy and she was “no longer in that house.” T.W.
had not reported the abuse previously because she was scared of Bittick and Tammy,
who repeatedly told her that “what goes on in this house, stays in this house.” She
was also scared that if she said anything, she would have to live “with strangers who
could do worse things,” because that is what Bittick and Tammy told her would
happen. Tammy explained to T.W. that she had to participate in these sex acts “to
help save her marriage,” so that Bittick would not leave. When she was younger,
T.W. did not realize this conduct was wrong, but by the time she was twelve, she
realized the conduct was wrong and abnormal.
T.W. testified her first memory of abuse was when she was about eight years
old. Tammy brought her into the master bedroom, asked her to undress, and directed
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her to perform oral sex on Bittick. T.W. said this happened almost every night
afterwards and that it occurred on at least a weekly basis. The abuse was not limited
to oral sex. T.W. said Bittick put his fingers on and inside her vagina, and that
Bittick and Tammy used vibrators both on and inside T.W.’s vagina. T.W. said
Bittick’s penis was never erect, and he never ejaculated.
T.W. testified the sexual abuse usually happened in Bittick and Tammy’s
bedroom, but not always. She said she remembered one occasion when Bittick woke
her up in the middle of the night, brought her into the living room, and sat her on his
lap. He “had porn playing on the TV and he would have me touch him, and he would
touch me.” Bittick rubbed her vagina with his fingers and also inserted them inside
her vagina. T.W. said Bittick was wearing a lady’s nightgown, which he did
regularly, but his penis was exposed, and Bittick had her rub it with her hands.
On another occasion, T.W. said Bittick and Tammy were watching T.W. use
a vibrator on herself in the living room when her grandmother came to the front door.
They told T.W. to run upstairs to her bedroom with the vibrator to hide.
T.W. said sometimes Bittick had her insert a strap-on dildo in Bittick’s anus.
Bittick and Tammy had a variety of dildos of different sizes, she testified, but they
only used the smaller ones on her. They also had a collection of pornography,
including magazines and DVDs, that they kept in the dresser in their bedroom and
on top of the dryer in the bathroom. Bittick and Tammy sometimes had T.W. watch
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pornography, which was “a lot of like stepfamily type stories and like lesbian type
stuff.”
T.W. said Bittick sometimes read T.W. erotic stories he found online. After
reading her stories, he had T.W. get on the bed where he used his fingers to touch
her vagina and inserted his fingers into her vagina. Bittick had T.W. rub his penis
and put her mouth on his penis.
T.W. testified sometimes she was alone with Bittick, and sometimes she was
alone with Tammy, but the occasions of abuse when she was alone with Bittick were
more numerous.
T.W. said in August 2005, when she was about nine-and-a-half, she
remembered Bittick causing the penetration of her vagina with a sex toy. In the same
time period, she remembered Bittick penetrating her mouth with his penis. Near her
tenth birthday, around January 2006, Bittick penetrated her vagina with his finger.
Around March 2006, just after T.W.’s birthday, she remembered Bittick penetrating
her vagina with a vibrator and putting his penis in her mouth. She recalled Bittick
putting his penis in her mouth in June 2006. T.W. also said that, when she was
eleven-and-a-half, around September 2007, Bittick touched her genitals and caused
her to contact his anus with a sex toy.
T.W. said these sorts of incidents of sexual abuse happened on a regular
basis—“every night almost” or multiple times a week—from the time she was
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around eight until she was twelve. She said “normally on the nights that it didn’t
occur” she was with her grandparents.
T.W. said she was no longer sexually abused once she was enrolled in
elementary school following being homeschooled. She said the abuse ceased when
she asked Bittick and Tammy to stop, after she “started to realize that it wasn’t
normal.”
On cross-examination, T.W. reiterated she did not talk to anybody about the
sexual abuse because she was told not to. T.W. acknowledged she did not tell a
series of doctors or, after she started school in fifth grade, her teachers, about the
abuse, and had told one doctor that she had not engaged in any sexual activity.
Defense counsel questioned her, noting that if the abuse occurred daily for four
years, that would be about 1,200 instances of abuse, and T.W. said that, yes, she was
telling the jury it happened about 1,200 times.
Defense counsel also questioned T.W. about her mental health history and
asked her how much time she spent in treatment. T.W. said she did not know if she
was at Texoma Care in 2011, and she said when she was about fourteen years old
she went to Glen Oaks twice and was released in April of 2010. T.W. said she went
to Glen Oaks because she deliberately overdosed. She believed her mental problems
were a result of the years of sexual abuse she endured. After she realized the abuse
was wrong, she experienced tremendous mental anguish and was still dealing with
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it at trial time. T.W. said she did not tell anybody who could have helped her that
she thought the abuse was the cause of her mental health problems.
Tammy, who was represented by counsel and had been charged with five
counts of aggravated sexual assault of a child, testified after being admonished about
her Fifth Amendment rights. She said she and Bittick broke up because she was
trying to get T.W. away from him “because I knew that he was molesting her.”
Tammy acknowledged she participated in the molestation.
Tammy said she was scared of Bittick because he had threatened to shoot her
parents if she did not do as he said. Tammy said the first instance of abuse was when
Bittick wanted T.W. to kiss his penis, and so Tammy gave T.W. directions to do just
that; she said Bittick’s penis contacted the inside of T.W.’s mouth and her lips. She
said this happened on a number of occasions. Tammy said that while she observed
Bittick use vibrators on T.W., she did not think he inserted them into her vagina.
She said on other occasions Bittick had T.W. use a strap-on to penetrate his anus.
The first time, T.W. started crying, and Tammy said she told her to leave and go to
bed. Bittick had T.W. try again just a couple more times because Tammy said T.W.
“wouldn’t tolerate it.”
Tammy said Bittick sometimes asked her to touch T.W., so she touched
T.W.’s legs and rubbed the outside of her vagina. She said T.W. was naked on these
occasions. Bittick wore shorts so loose his penis was exposed, and he frequently
wore women’s clothing, including nightgowns, capri pants, and bras.
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Tammy said that prior to the start of the period when T.W. was molested, she
and Bittick did not have sex toys. After they started molesting T.W., they got a
couple of vibrators and a small dildo. Tammy said pornography was sometimes part
of the sexual abuse of T.W. Bittick would watch pornographic videos knowing T.W.
would see, and he left pornographic books or magazines around the house for T.W.
to find.
Tammy said during these incidents of sexual abuse, she was typically
watching or sitting next to them, and sometimes she was naked as well.
Tammy said she participated because she was trying to protect her family, and
she was financially dependent on Bittick. She was afraid of Bittick, but there was
also a selfish element to her participation. After every instance of abuse, Tammy
said she and Bittick told T.W., “[W]hat goes on in our house, stays in our house.”
Tammy said they drilled this into T.W.’s head because they were scared T.W. would
tell someone and they would get caught.
Tammy testified Bittick’s job as a truck driver allowed him to be home almost
every night. Around the time T.W. was eight, when she started homeschooling,
Tammy said the abuse was not frequent, but a couple of times a month or more,
though there were times it was twice a week. The abuse continued until T.W., eleven
or twelve at the time, told Tammy she wanted it to stop, though Tammy also said
she “was tired of it” and said she thought the abuse would have stopped around that
time regardless.
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Tammy said T.W. did not have many friends over to their house while
growing up because she and Bittick were afraid T.W. would tell someone about the
abuse. She said when T.W. was younger, T.W. had no idea what they were doing
was wrong, but by the time she was eleven or twelve, she began to realize it was
wrong. Tammy said that leading up to that time, T.W. began exhibiting behavioral
problems and seemed to be depressed.
Tammy said she was willing to incriminate herself in front of the jury because
she “wanted to make things right, or try and make things right” and give T.W. some
peace.
On cross-examination, Tammy said she had bipolar disorder and depression
and was taking medication for these conditions. She said despite working for a
trucking company at one point, Bittick was not gone for long periods but only a day
or two at a time. Tammy said it was possible T.W. walked in on Bittick and Tammy
attempting to have sex or Tammy wearing the strap-on.
Tammy said her parents lived next door and that her father was a “tough guy”
who would take care of anything that affected her. She said she never told her father
that Bittick was threatening her because she was trying to protect her parents. Nor
did she tell her brother or Denison police. Tammy said the abuse did not happen
more than a thousand times, but twenty or twenty-five times. After she and Bittick
broke up, Tammy said she sometimes approached Bittick for help with money.
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Tammy testified she met with prosecutors three or four times for one to two
hours to prepare for her testimony.
Tammy said she started using methamphetamine around 2015, she became
addicted, and used it for about four years. Tammy rejected defense counsel’s
contention that she suggested Bittick bring T.W. into their sexual relationship and
that Bittick rejected her proposal.
Tammy testified she allowed fourteen-year-old T.W. to have a relationship
with a nineteen-year-old male before she realized how old he was. Tammy said she
herself later had a relationship with the same individual, and that T.W. “may have”
resented the fact that she was dating him. Tammy said she approved T.W.’s
marriage to Robertson, who was twenty-nine, because she was “trying to get [T.W.]
away from [Bittick]” and also because T.W. “deserved some happiness.” However,
she also said T.W. married Robertson after she and Bittick broke up. Tammy said
Bittick and Robertson did not get along and Bittick did not approve of him marrying
T.W. She said Bittick made a physical threat towards Robertson shortly before
Robertson and T.W. went to the Denison police to report the sexual abuse.
Tammy testified she spoke with Denison police in 2012 or 2013. She told
them Bittick was a good provider and T.W. was not comfortable around Bittick
because he was very strict. She said she told the police she neither observed Bittick
molest T.W. nor abused T.W. herself, and that T.W. had never made an outcry of
abuse. Tammy said she lied to the police.
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Tammy also told the police T.W. was prescribed Depakote for depression
when she was ten and a psychiatrist referred her to a specialty care center, Glen
Oaks, where she spent a week for treatment for suicidal ideation. T.W. also went to
her primary care doctor numerous times over the years but never made an outcry of
abuse.
Tammy rejected counsel’s suggestion she was “snitching” to get a break in
her own criminal cases but said, instead, she was telling the truth. She said she did
not know whether she was helping herself by testifying.
Detective Steven Mackay testified he followed up on the allegations against
Bittick in 2020. Mackay said he searched Bittick’s work truck and found
pornographic DVDs, “a bra with gel inserts . . . that a male could wear,” an anal
plug, and “female underwear in a size a male could wear.”
The trial court conducted a hearing outside the presence of the jury on the
admissibility of evidence relating to Bittick’s sexual abuse of M.C., his daughter.
M.C. testified that on numerous occasions in 1993 and 1994, when she was a little
older than three years old, Bittick made her touch his penis. She said she usually
undressed and laid down beside him, and he would make her touch his penis. M.C.
said that at first these instances of abuse were infrequent, but over time, it “became
multiple times weekly.” M.C. said there were also times she would “have to lay on
top of him” while naked; on such occasions his penis was in contact with her body.
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She said his penis was never erect and there was no penetration, but he would rub
his flaccid penis on M.C.’s body.
M.C. said she was rewarded for “keeping my mouth shut” by being allowed
to take apart Bittick’s stereo. She did not think anything was wrong at the time
because Bittick was her father. But she said Bittick also told her she would be taken
by child protective services if she told anyone about his conduct.
When M.C. was four or five years old, Bittick began penetrating her vagina
with his fingers and objects. Once, she said, Bittick inserted a miniature bat into her
anus and caused bleeding that would not stop, and she had to be taken to the hospital.
M.C. said it was her recollection a report was made to the police and that Bittick was
arrested. Shortly afterwards, M.C.’s grandparents moved her out of state.
Bittick objected to M.C.’s testimony on the basis of rule 403, noting that the
allegations went back to the early 1990s, and asked for a running objection to her
testimony before the jury. The trial court overruled Bittick’s objection, stating that
“in light of the questioning of prior witnesses that basically the defense is that the
victim in this case made it up or is fabricating the story, I think that makes this
relevant.”
M.C. testified before the jury to the same facts described above. During her
testimony, the trial court instructed the jury as follows:
Evidence of a crime, wrong, or other act other than what somebody is
on trial for, is not admissible to prove a person’s character in order to
show that a particular -- that on a particular occasion the person acted
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in accordance with that character. It may be admissible, however, for
another purpose such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. And again, y’all will get this instruction again. But anything
dealing with this which is an act not alleged in this case, those are the
only purposes you can use it for. You can’t use it to prove a person’s
character in order to show that on a particular occasion a person acted
in accordance with that character.
On cross-examination, M.C. said she refreshed her recollection by watching a video
recording of a child protective services interview she did in 1995. She said that,
prior to watching the video, she would have only said Bittick penetrated her with his
fingers, but after watching it, she remembered Bittick used a bat, which she had
described in the interview simply as a stick. M.C. described the process of watching
the interview of her younger self as “unlock[ing] everything that I have put inside a
box that just came up black whenever I would think about it.” M.C. said her
grandmother told her the allegations were “all in her head.”
Sergeant Jessey Grissom testified that Bennie Gonzales, Bittick’s cellmate in
the Grayson County jail, wanted to speak with the police. Based on his conversation
with Gonzales, Grissom conducted an investigation for solicitation of murder that
ended up focusing on Bittick, and jail personnel placed a recording device in the cell
Bittick shared with Gonzales and other inmates. Grissom also said Gonzales
provided him notes listing persons Bittick wanted Gonzales to kill. After reviewing
the jail recordings and interviewing Gonzales, Grissom believed he had a case
against Bittick for solicitation of capital murder of T.W., Tammy, and Robertson.
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Lisa Beall testified she was in a relationship with Bittick for about ten years
until his arrest for these offenses. She said they did not have sex together but used
sex toys, including dildos. Beall said Bittick wore women’s clothing, including
underwear and dresses. After Bittick was arrested, Beall said she sometimes spoke
with him over the phone, and a recording of one of their calls was admitted during
her testimony, without objection, as State’s Exhibit 17. Beall testified that in one
call Bittick told her someone called Birdie was going to “take care of Tammy and
her family,” which she took to mean they would be killed. In State’s Exhibit 17,
Bittick can be heard to hand the phone to someone who introduces himself as Birdie
who tells Beall they might be meeting within the next month.
Bennie Gonzales, also known as Birdie, testified he was currently in prison
serving an eight-year sentence for assault and engaging in organized criminal
activity. He said he was in Grayson County jail in July and August of 2020, when
Bittick tried to hire him to kill T.W., her boyfriend, and “anybody in the way.” Over
Bittick’s reiterated rule 403 objection, Gonzales testified he and Bittick figured out
Gonzales’s wife was Tammy’s cousin and Bittick thought Gonzales would be able
to get close to her. Gonzales said that at first he did not agree to the killing, but he
changed his mind when he saw Bittick “wasn’t going to quit until he got something
done” because “he didn’t want them to make it to court.” Gonzales said that in
addition to having this connection to one of the targets, he thought Bittick sought
him out because Bittick believed he was “a bad criminal” involved in organized
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crime. He said Bittick talked about it “all day every day.” In exchange for the
killings, Gonzales was to receive from Bittick a trailer house and some land.
Gonzales testified he spoke with Beall on the phone to make sure she knew
that if he got out and carried out his end of Bittick’s bargain, he would “be able to
stay there without any problem.” He also said that at the time of that conversation,
he had already alerted the sheriff’s office about Bittick’s proposal.
Two jail cell recordings were also admitted through Gonzales’s testimony. In
the first, Gonzales can be heard telling Bittick he “would kill her” if he got out.
Gonzales asked Bittick repeatedly if he was sure, and Bittick responded, “yes” and
“I’m 100 percent.” Gonzales said Bittick could not tell anybody, and Bittick
responded, “I don’t even know who you are.” At one point, Gonzales stated, “Once
I kill her, there’s no turning back, bro.” Bittick responded, “I’ll be indebted to you
for the rest of my life.” Bittick said there would not be any remorse on his part and
that Gonzales did not have anything to worry about. Bittick told Gonzales the full
names of T.W. and Robertson, and he described T.W. as “the main thing” and
Robertson as “the outcry.” Bittick told Gonzales that none of T.W.’s allegations
were true. Gonzales asked Bittick who he “should do first,” and Bittick said T.W.
Bittick said he had a perfect alibi because he was in jail.
In the second recording, Gonzales expressed concern to Bittick about staying
on his property, and Bittick responded that he would introduce him to Beall on the
phone. Again discussing the proposed killings, Gonzales said that if the State did
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not have any witnesses, they could not get Bittick, and Bittick responded, “Exactly.”
Gonzales said once the job was done, he would contact Bittick and say something
like, “Hey, everything is good already,” and Bittick suggested, “The house is coming
along great.”
On cross-examination, Gonzales acknowledged he was serving eight-year
sentences for robbery and injury to a child or elderly person. He said he did not “get
a break” off the State’s initial plea bargain offer after he reported Bittick; although
he said the State’s initial offer was ten years, the lowered offer was not made for
coming forward with his report. Gonzales said he was not expecting further benefits
for his testimony.
The defense called Theodore Meason to testify. He said he was a prisoner
serving a life sentence for child molestation but had previously been in Grayson
County jail where he shared a cell with Bittick. He said he heard some discussion
about Bittick wanting witnesses to disappear, but he regarded it as “bragging” or
“talking” and did not think Bittick was serious.
T.W.’s grandfather, James Rogers, testified he lived next door to T.W. and
Bittick, and T.W. visited often, but she never told him she was being abused. On
cross-examination, he said T.W. never had friends over when she was younger and
was shy and withdrawn.
Portions of the deposition of Joe Cortez were also read to the jury. Cortez
testified he was a cellmate of Bittick in the Grayson County jail. He said Gonzales
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was his cousin. Cortez said he did not take Bittick’s talk about witnesses “going
away” seriously because, he said, Bittick was not in his right mind but was
heartbroken. Cortez said Bittick expressed that he wished he was dead—that he was
wishing harm on himself and not anybody else. He said Bittick said he wished his
relatives “that are putting this on him would just go away” and that he had not done
anything.
The jury charge included, among other things, accomplice witness testimony1
and jailhouse witness testimony2 instructions relating to the testimony of Tammy
and Gonzales respectively. As to extraneous offenses, the charge read as follows:
The State has introduced evidence of extraneous crimes or bad acts
other than the one charged in the indictment in this case. This evidence
was admitted only for the purpose of assisting you, if it does, for the
purpose of showing the defendant’s motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, if any. You cannot consider the testimony unless you find and
believe beyond a reasonable doubt that the defendant committed these
acts, if any, were committed [sic] and then only for the limited purpose
indicated above.
In closing, Bittick’s counsel argued, among other things, that T.W.’s
testimony did not “square up” for the following reasons: her claim she did not realize
the sexual abuse was wrong until she was twelve was unreasonable and incredible;
1
TEX. CODE CRIM. PROC. art. 38.14 (“A conviction cannot be had upon the testimony of an accomplice
unless corroborated by other evidence tending to connect the defendant with the offense committed; and
the corroboration is not sufficient if it merely shows the commission of the offense.”).
2
Id. art. 38.075(a) (“A defendant may not be convicted of an offense on the testimony of a person to
whom the defendant made a statement against the defendant’s interest during a time when the person was
imprisoned or confined in the same correctional facility as the defendant unless the testimony is
corroborated by other evidence tending to connect the defendant with the offense committed.”).
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that claim was inconsistent with her testimony that Bittick and Tammy told her she
would end up with a foster family if she told anyone; there was no physical evidence;
her testimony lacked precision about much of what she said, including where she
was living at particular times; her claim the abuse happened every night was
inconsistent with Tammy’s testimony and moreover would have meant 1,200
instances of abuse, which was incredible; T.W. was “significantly medicated” for
her mental condition; and T.W. had not told any of her doctors, teachers, or
grandparents she was being abused, despite numerous opportunities to do so.
Counsel also questioned Tammy’s testimony, pointing out she previously denied to
the police in 2013 that Bittick abused T.W. and also had a four-year
methamphetamine addiction. Counsel argued Tammy was “absolutely wheels off,”
was possibly “the real bad actor here,” and testified as she did to try to get a favorable
deal from the State.
The jury found Bittick guilty of continuous sexual abuse of a young child, not
guilty of aggravated sexual assault of a child in count two, and guilty of aggravated
sexual assault in counts three through ten. This appeal followed.
Discussion
To reiterate, Bittick argues the trial court abused its discretion by admitting
extraneous evidence of (1) M.C.’s allegations of sexual assault, and (2) Gonzales’s
allegations of solicitation of murder. He specifically argues the trial court erred by
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overruling his rule 403 objection to M.C.’s testimony because the bad acts alleged
were too remote, occurring decades prior, and too dissimilar to the allegations here.
Extraneous sexual assault
Upon the trial of continuous sexual abuse of a young child or aggravated
sexual assault of a child—notwithstanding evidentiary rules 404 and 405, and
subject to section 2-a of article 38.37 described below—evidence that the defendant
has committed a separate offense of, among other offenses, continuous sexual abuse
of a young child, indecency with a child, or aggravated sexual assault of a child, may
be admitted in the trial for any bearing the evidence has on relevant matters,
including the character of the defendant and acts performed in conformity with the
character of the defendant. TEX. CODE CRIM. PROC. art. 38.37, § 2. Section 2-a
requires the trial court to (1) determine that the evidence likely to be admitted at trial
will be adequate to support a finding by the jury that the defendant committed the
separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the
presence of the jury for that purpose. Id. art. 38.37, § 2-a.
Even if evidence of a defendant’s extraneous act is relevant under article
38.37, the trial court still must conduct a rule 403 balancing test upon proper
objection or request. Keller v. State, 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020,
pet. ref’d). Rule 403 provides that courts may exclude relevant evidence if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
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cumulative evidence. TEX. R. EVID. 403. Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence will be more probative
than prejudicial. Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).
In a rule 403 analysis, courts must balance (1) the inherent probative force of the
evidence—that is, how strongly it serves to make more or less probable the existence
of a fact of consequence to the litigation, with (2) the proponent’s need for the
evidence, against (3) any tendency of the evidence to suggest a decision on an
improper basis, commonly, an emotional one, (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); see also Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012).
We review the trial court’s decision to admit evidence, including its rule 403
ruling, under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727,
736 (Tex. Crim. App. 2010); see also Burgess v. State, No. 05-17-00271-CR, 2018
WL 3322886, at *4 (Tex. App.—Dallas July 6, 2018, pet. ref’d) (mem. op., not
designated for publication) (stating we reverse a trial court’s rule 403 balancing
rarely and only after a clear abuse of discretion). The trial court does not abuse its
discretion unless its determination lies outside the zone of reasonable disagreement.
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Martinez, 327 S.W.3d at 736. Furthermore, if the trial court’s evidentiary ruling is
correct on any theory of law applicable to the case, it will not be disturbed. De La
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Here, the probative force and the State’s need for the evidence of Bittick’s
assault of M.C. were substantial and weigh in favor of admission. The defense’s
theory of the case was fabrication, and T.W.’s credibility was therefore critical to
the State’s case. See Burgess, 2018 WL 3322886, at *4 (concluding probative value
and State’s need high when, among other things, credibility of complainant was
critical). Further, there was no physical evidence to support T.W.’s allegations, and
the defense highlighted this, beginning in opening statements when defense counsel
stated there was “nothing to corroborate the stories that you may be hearing.”
Although Tammy corroborated T.W.’s testimony, the defense attacked Tammy’s
credibility as well. In opening statements, for instance, defense counsel questioned
Tammy’s motives and emphasized that her story had changed over time. Tammy’s
testimony was also subject to the corroboration requirements of article 38.14, as the
jury was instructed in the charge. Moreover, the extraneous evidence at issue here
showed Bittick’s sexual interest in young girls in his care and prior sexual abuse of
a young girl. See Caston v. State, 549 S.W.3d 601, 612 (Tex. App.—Houston [1st
Dist.] 2017, no pet.) (“Because the evidence of prior sexual abuse of children ‘[is]
especially probative of [the defendant’s] propensity to sexually assault children,’ the
Rule 403 balancing test normally will not favor the exclusion of evidence of the
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defendant’s prior sexual assaults of children.”). M.C.’s testimony described
similarities between her abuse and that described by T.W., including the types of
sexual acts committed and the fact that Bittick’s penis was never erect. See Dennis
v. State, 178 S.W.3d 172, 180–81 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)
(concluding similarity of extraneous offense to charged offense made the extraneous
evidence relevant to rebut theory of fabrication).
In sum, the extraneous evidence of sexual abuse was highly probative because
Bittick was charged in this case for the continuous sexual abuse of his stepdaughter,
and the extraneous offense testimony tended to (1) make a fact of consequence more
probable and (2) show Bittick’s motive, opportunity, and intent to commit other,
similar incidents of sexual abuse against a child in his care. See Wishert v. State,
654 S.W.3d 317, 333 (Tex. App.—Eastland 2022, pet. ref’d).
On the other hand, we do not think this evidence had a significant tendency to
suggest a decision on an improper basis, confuse or distract the jury from the main
issues, or be given undue weight by the jury. Evidence of Bittick’s sexual abuse of
M.C. was no more inflammatory than the charged offense and was presented through
fewer details than the charged offense. Additionally, M.C. was the only witness to
testify about Bittick’s abuse of her. Nothing in the record suggests the jury was not
equipped to follow the instructions in the jury charge; indeed, the jury distinguished
between charged offenses, finding Bittick not guilty of one count of aggravated
sexual assault. Finally, the trial court gave, and the jury charge included, a rule
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404(b) instruction limiting the purposes for which the extraneous conduct could be
considered, despite the fact that, as discussed above, it could have been considered
for broader purposes under article 38.37. Accordingly, we conclude the trial court
did not abuse its discretion in overruling Bittick’s rule 403 objection to evidence that
he sexually abused M.C. Bittick’s first issue is overruled.
Extraneous solicitation of murder
Bittick also argues the trial court erred in admitting evidence Bittick solicited
the murder of witnesses in this case because the evidence had marginal probative
value but “tremendous potential to impress the jury in some irrational, yet indelible,
way” or to motivate them to convict Bittick on an improper basis.
Evidence of other crimes, wrongs, or acts is not admissible “to prove the
character of a person in order to show action in conformity therewith” but it may “be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” TEX. R.
EVID. 404(b). The exceptions listed under rule 404(b), which is a rule of inclusion
rather than exclusion, are neither mutually exclusive nor exhaustive. De La Paz,
279 S.W.3d at 342–43. The proponent of uncharged misconduct evidence need not
fit a given set of facts into one of the exceptions enumerated in rule 404(b), but the
proponent must be able to explain “the logical and legal rationales that support its
admission on a basis other than ‘bad character’ or propensity purpose.” Id. Any
conduct on the part of a person accused of a crime subsequent to its commission that
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indicates a consciousness of guilt may be received as a circumstance tending to prove
that he committed the act with which he is charged. State v. Villegas, 506 S.W.3d
717, 749 (Tex. App.—El Paso 2016), pet. dism’d, improvidently granted, 544
S.W.3d 375 (Tex. Crim. App. 2018) (per curiam). Even if relevant evidence is
offered for a permissible purpose under rule 404(b), a trial court should exclude it
from evidence if the probative value is substantially outweighed by the danger of
unfair prejudice. Dennis v. State, 178 S.W.3d 172, 180 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d).
Evidence that Bittick solicited the murder of witnesses against him was
probative of whether he committed the acts charged in this case because it indicated
his consciousness of guilt. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App.
1999) (“an attempt to tamper with a witness is evidence of ‘consciousness of guilt’”);
Villegas, 506 S.W.3d at 749. As above, the State had a need for this
extraneous-offense evidence, given that the complainant’s credibility was critical to
the State’s case, the defense’s theory was fabrication, there was no physical evidence
to corroborate the complainant’s testimony, and the credibility of the only other
eyewitness to the charged offense had also been called into question.
Further, nothing in the record suggests this evidence had a significant
tendency to suggest a decision on an improper basis, confuse or distract the jury from
the main issues, or be given undue weight by the jury. Although the State presented
this evidence through three witnesses and three exhibits, it took up a fraction of the
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time spent proving the allegations charged in the cases before us. Consideration of
Gonzales’s testimony was limited by both the rule 404(b) and jailhouse witness
testimony instructions. Evidence showing that Bittick sought the death of his
stepdaughter and ex-wife undoubtedly carried emotional weight and the danger of
impressing the jury in an indelible way. However, we cannot conclude this danger
substantially outweighed the evidence’s probative value. Accordingly, we conclude
the trial court did not abuse its discretion in overruling Bittick’s rule 403 objections
and admitting evidence of this extraneous conduct. Bittick’s second issue is
overruled.
Conclusion
Having overruled Bittick’s two issues, we affirm the trial court’s judgment.
/Ken Molberg/
220882F.U05 KEN MOLBERG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SIM STANLEY BITTICK, On Appeal from the 15th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-22-00882-CR V. Trial Court Cause No. 071896.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Molberg. Justices Carlyle and Smith
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 16th day of February, 2024.
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