Theran Tremayne Blackwell v. State

Opinion issued January 31, 2006  

  In The  

Court of Appeals  

For The  

First District of Texas  

---

  NO. 01-03-01314-CR  

____________

THERAN TREMAYNE BLACKWELL, Appellant  

V.

THE STATE OF TEXAS, Appellee  

---

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 932330  

---

DISSENTING OPINION

          In its discussion of appellant’s first issue, the majority makes a series of critical mistakes that results in its erroneous conclusion that the trial court did not err in admitting the extraneous offense testimony of K.S. and C.R., which was offered by the State in its rebuttal case against appellant.

          The majority misidentifies evidence that bolstered appellant’s good character as evidence that appellant “lacked the intent to have sexual contact with [the complainant]” because appellant “was like a regular parent who did a good job of raising two other young boys.” (Emphasis added.) From this, the majority further errs in concluding that “[t]he defensive theory that appellant lacked the intent to commit the offense was thus introduced into the case and was subject, therefore, to rebuttal by the State.” (Emphasis added.) The majority also erroneously concludes that appellant “introduced the defensive theory that he was the victim of a frame-up by Melvina Stepherson.” Having erroneously concluded that “appellant propounded two defensive theories–that he lacked the intent to commit a sexual offense against [the complainant], and that he was the victim of a frame-up by Melvina Stepherson,” the majority further errs in concluding that the State’s rebuttal extraneous offenses “are sufficiently similar to the charged offense to be probative evidence of appellant’s intent to commit a sexual offense against [the complainant] and to refute the theory that appellant was the victim of a frame-up by Melvina Stepherson.” (Emphasis added.)

          As noted by the State itself, in its briefing to this Court, “[w]hen the State introduced evidence [that appellant] had sexually abused two other teenage boys, it rebutted Appellant’s suggestion that he was not the sort of person that would commit the charged offense.” Here, however, as discussed below, the State did not properly attempt to correct any such false-impression inferences created by the testimony of appellant’s witnesses through cross-examination of those witness. Rather, the State improperly “rebutted appellant’s suggestion” by calling two other witnesses to correct it with testimony about two notably dissimilar extraneous offenses, and the trial court reversibly erred in allowing the State to do so.

          Accordingly, I respectfully dissent.

The Issue Presented

          In his first issue, appellant argues that the trial court erred in admitting into evidence the State’s rebuttal testimony of K.S. and C.R. because their testimony concerned extraneous offenses and was offered to show only that appellant was “a sexual predator generally and that he was acting in conformity therewith during the commission of the offenses alleged in the indictment.”   

          In its response to appellant’s first issue, the State notes that, in anticipation of appellant’s impeachment of the complainant’s credibility, it elicited testimony from the complainant concerning his many inconsistent statements. In fact, appellant then did, as the State contends, cross-examine the complainant about his inconsistent statements and later called several witnesses “who claimed that [the complainant] was not a truthful person and had a reputation for dishonesty.” The State also notes that appellant “repeatedly elicited testimony that he had many girlfriends throughout his life.”

          In stark contrast to the majority’s characterization of appellant’s two defensive theories, the State concedes that “the defense’s two primary themes” at trial consisted of appellant’s effort to (1) “discredit [the complainant] and convince the jury he had fabricated his claims of sexual abuse and was not to be believed,” and (2) show that “appellant was not the kind of person who would sexually abuse young boys.” The State asserts that “[a]t the close of appellant’s case, he had (1) secured admissions from [the complainant] that he had told a number of people he lied about what appellant had done to him, (2) introduced a great deal of testimony that [the complainant] was not a truthful individual, and (3) sought to establish that he was the sort of man that had normal dating relationships with women and who therefore would not approach teenage boys.” The State contends that because its evidence that appellant had sexually abused two other boys “rebutted appellant’s suggestion that he was not the sort of person that would commit the charged offense,” the evidence “had relevance apart from character conformity and was admissible.”

          The extraneous offense testimony of K.S. and C.R. was not admissible to bolster the impeached testimony of the complainant. Thus, the issue squarely presented to this Court, and actually argued by the State itself, is whether the extraneous offense testimony of K.S. and C.R. was admissible to rebut any false impression-inferences created by the testimony of appellant’s witnesses that appellant “was not the sort of person that would commit the charged offense.”

          It must be emphasized that the State, in its briefing to this Court, does not in any way contend that the extraneous offense testimony of K.S. and C.R. was admissible to rebut any defensive theory that “appellant lacked the intent to commit the offense” or that appellant was “the victim of a frame up by Melvina Stepherson.” In fact, the State, again in stark contrast to the majority, makes no attempt at all in its briefing to this Court to argue that the extraneous offenses are in any way similar to the offense charged in the instant case.   

Pertinent Testimony

          In the State’s case-in-chief, the complainant, a 13-year-old boy at the time of trial, testified that he had known appellant for almost his entire life and that he and his cousins, Glen and Fred Stepherson, would go to appellant’s house to watch movies and to play. On several different occasions, starting when he was around eight or nine years old, the complainant received permission from his grandmother, Melvina Stepherson, to spend the night at appellant’s house. The complainant slept in the same bed as appellant, and, one night, appellant woke the complainant to tell him that the complainant had wet the bed. After the complainant went to the bathroom to change clothing, appellant told him that he could either “get a whipping or take [his] clothes off.” The complainant told appellant that he would rather receive a whipping. After appellant struck him on the buttocks with a belt, the complainant, not wanting to be struck again, took off his clothes. Appellant then told the complainant to get some baby oil from the bathroom, and when the complainant returned, appellant was naked and told him to “rub [appellant] down with baby oil.” The complainant rubbed the oil on appellant’s chest, penis, and buttocks, and appellant rubbed the complainant’s penis and buttocks with baby oil. Appellant told the complainant not to tell anyone what had happened, and, because the complainant was scared, he did not tell anyone what had occurred.

          On eight or nine different occasions, appellant took the complainant for a ride in appellant’s car and gave the complainant alcoholic beverages to drink, which made the complainant feel dizzy and drowsy. Appellant told the complainant to remove his clothes, and appellant then pulled down his own pants and told the complainant to rub appellant’s penis. At the same time, appellant would rub the complainant’s penis with one hand and would drive the car with the other hand.

          The complainant further testified that, on at least five or six other occasions when they were at a recording studio, appellant took him to a back room, which had “some kind of fuzz” on the walls, and told the complainant to take off his clothes. Appellant removed his own clothes and instructed the complainant to rub appellant’s penis as appellant rubbed the complainant’s penis.

          Over appellant’s objections, the State, while still presenting its case-in-chief, elicited testimony from the complainant that one week prior to trial, he was at the house of Jeneko Vincent, who was the friend of Glen and Fred. While there, Vincent, Glen, Fred, and Eldrick Telfar, another friend, forced the complainant to make a videotape, in which he stated that the allegations that he had made against appellant were not true and that he was “just jealous of [his] cousins Glen and Fred because they were getting a lot of things from [appellant].” Later at Telfar’s house, they made the complainant write a letter, in which he stated that his uncle told him to make the allegations against appellant. The complainant explained that the four boys told him that they would pay him money to write the letter but that he did not want their money. The complainant stated that he made the tape and wrote the letter because the boys told him that the allegations against appellant would be in the news and that the complainant would not have any friends if he did not retract his allegations against appellant.

          Melvina Stepherson testified that she has raised the complainant since he was 11 months old because his mother was not a good mother to him. She explained that she was acquainted with appellant because he was a cousin of two of her granddaughters. She noted that appellant once bought tennis shoes for the complainant but that she did not think that such a purchase was odd because appellant “always bought things for [her] grandchildren.” She also noted that appellant would take the complainant out to eat, to the movies, and to appellant’s house to spend the night. Stepherson explained that, when the complainant was eight or nine years old, he first made allegations against appellant, but that she did not do anything about it because, at that time, she had just had a stroke and could not drive him anywhere.

          Toward the beginning of its direct examination of Stepherson, the State, again while presenting its case-in-chief, asked her, “Now, as long as you have known . . . [appellant], have you ever known him to have a girlfriend?” Stepherson answered, “No.” Under appellant’s cross-examination, she testified that appellant had coached a football team, but that the complainant had not played on that team. She stated that two of her grandsons, Glen and Fred, had lived with appellant for about two years and that appellant had taken care of them. On re-direct examination, she testified that appellant’s football league was one in which “he got young boys to come and play on his football team.” She further testified that appellant was usually in the company of boys and men and that appellant bought Glen and Fred expensive items.

          In his defense, appellant called Britney Paley, one of the complainant’s cousins. Paley testified that, in her opinion, the complainant is not a truthful person. She stated that, approximately one year before the trial began, the complainant told her that the allegations he asserted against appellant were not true and that he made them up because appellant was mean. He also told Paley that he did not like appellant because appellant “didn’t do anything for him” and showed favoritism. She also stated that the complainant called her one week before the trial began and again told her that the complainant’s allegations against appellant were false. On both direct and cross-examination, Paley also testified that she had known appellant to have had many girlfriends.

          Eldrick Telfar testified that the complainant voluntarily made the videotape and wrote the letter in which the complainant admitted that his allegations against appellant were false. On cross-examination, Telfar admitted that appellant had previously bought him clothes and shoes and had taken him to the mall and the recording studio.

          Glen Stepherson testified that, in his opinion, the complainant was not a truthful person and that the complainant made the videotape and wrote the letter voluntarily. He explained that the complainant told him that he made the videotape and wrote the letter to help appellant because the allegations were not true. Glen also testified that appellant had helped to raise him, that appellant had done a good job doing so, and that appellant had had a number of girlfriends over the years.

          Appellant also presented the testimony of Jason Thomas, Jeneko Vincent, Brooke Austin, and Virginia Blackwell. Thomas, a friend of Glen, testified that he did not believe that the complainant was a truthful person and that the complainant told Thomas that he wrote the letter because he was sorry for lying and that he wanted appellant to be released from jail. Thomas also testified that his sister had dated appellant for a short time and that his sister had tattooed appellant’s nickname, “Pookie,” on her leg. Vincent testified that, in his opinion, the complainant was not a truthful person and that the complainant told him that he made the videotape because he made the allegations against appellant out of jealousy. Austin testified that, two months before trial began, the complainant told her that appellant had never touched him, that, in her opinion, the complainant was not a truthful person, and that appellant had had many girlfriends. Blackwell, appellant’s mother, testified that appellant had had many girlfriends over the years.

            In its rebuttal, the State then presented the testimony of K.S., a 16-year-old boy at the time of trial, and C.R., a 15-year-old boy at the time of trial. K.S. testified that, when he was 13 years old, he had sung in a three-boy group and had made an appointment to record music at appellant’s studio. K.S. and two friends went to the studio a few times to listen to other people record music, and, on about the seventh visit, appellant, whom K.S. knew as “Trey Black,” told K.S. that he wanted K.S. to sing individually in a soundproof room, while the other two boys waited in a room next door. Appellant told K.S. that K.S. was not singing loudly enough and that if K.S. “jacked off or bust[ed] a nut, it would make [him] sing louder.” Appellant told him to remove his clothes, and K.S. eventually complied because he thought that appellant would not allow him to leave unless he did so. Appellant then rubbed K.S.’s stomach and told him to masturbate, but K.S. refused. After a while, appellant let K.S. put his clothes back on and leave. When K.S. got home, he told his mother what appellant had done, and his mother reported the incident to the police department.

          C.R. testified that he knew the complainant because they used to live on the same street. On one occasion, when C.R. was 12 years old, appellant, whom C.R. knew as “Pookie Trey,” drove both the complainant and C.R. to the movies. Afterward, on the way back to their homes, appellant claimed that he was sick and stopped at his apartment. Because the complainant appeared to be asleep in the back seat, appellant told C.R. to go inside the apartment with him. Appellant went upstairs, while C.R. played a video game downstairs. Later, appellant called C.R. upstairs and told him that C.R. “needed to become a man.” They entered appellant’s bedroom, where a inflatable sex doll was lying on the floor. Appellant told C.R. that C.R. could not leave until he “fuck[ed] the doll.” Appellant told C.R. to take off his clothes and have sex with the doll until C.R. “nutted.” Appellant videotaped C.R. having sex with the doll, and when C.R. was finished, appellant told C.R. that C.R. “was a man now.”

Extraneous Offense Evidence

          A trial court’s admission of extraneous offense evidence is reviewed for an abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). As long as a trial court’s decision to admit evidence is within the “zone of reasonable disagreement,” there can be no abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

          Texas Rule of Evidence 404(b) embodies the well-established principle that an accused may be tried only for the offense for which he is charged and not for criminal propensities. Tex. R. Evid. 404(b); Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Consequently, extraneous offenses are not admissible at the guilt phase of a trial to prove that a defendant acted in conformity with his character in committing an offense. Tex. R. Evid. 404(b). An extraneous offense, however, has noncharacter-conformity relevance when it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). In other words, extraneous offense evidence that tends to make an elemental or evidentiary fact more or less probable or tends to rebut some defensive theory is relevant beyond its tendency to prove a person’s character or that he acted in conformity therewith. Rankin, 974 S.W.2d at 718; Montgomery, 810 S.W.2d at 386–87. Consequently, evidence of other crimes or extraneous misconduct may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. Tex. R. Evid. 404(b). These exceptions and others drawn from case law are neither exclusive nor exhaustive. Pondexter v. State, 942 S.W.2d 577, 583–84 (Tex. Crim. App. 1996). Such extraneous offense evidence may be relevant and admissible to rebut a defensive theory. Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994); Powell, 63 S.W.3d at 439; Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

            However, contrary to the majority’s analysis and conclusions, the State does not contend that the rebuttal testimony of K.S. and C.R. was admissible to prove motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. Rather, the State argues that the testimony of K.S. and C.R. “had relevance apart from character conformity and was admissible” because “[w]hen the State introduced evidence [that appellant] had sexually abused two other teenage boys, it rebutted [his] suggestion that he was not the type of person that would commit the charged offense.” The State notes that many of appellant’s witnesses testified that appellant had had many girlfriends over the years. It asserts that “[t]he point of introducing claims that appellant had had many girlfriends over the course of his life was to suggest to the jury that he was not the sort of person to be sexually interested in young boys.” The trial court explained its reasoning for admitting the rebuttal testimony as follows:

I think—and for the Appellate Court, generally it would be my view that this sort of thing should not come in; but it just seems to me that the impression in front of the jury is just so unfair if I don’t allow the State to rebut it. So, it’s just—I guess it gets down to a basic sense of fair play, and these rules are intended to give everybody a fair trial; the State as well as the Defense. So, I’m clearly not setting any precedent here because this is a very unique set of circumstances; but I am going to allow the State to go into it.  

          In regard to the rebuttal of such “false impressions,” the Texas Court of Criminal Appeals has explained that, when a witness presents a picture that an accused is not the type of person to commit a certain type of offense, the State “may impeach that witness’s testimony by cross-examining the witness concerning similar extraneous offenses.” Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002). However, as emphasized by the Court, “[t]he evidentiary caveat . . . is that the opponent must correct the ‘false impression’ through cross-examination of the witness who left the false impression, not by calling other witnesses to correct that false impression.” Id. Moreover, “[a]s a general rule, the defensive theory that the State wishes to rebut through the use of extraneous offense evidence must be elicited on direct examination by the defense and may not by elicited by ‘prompting or maneuvering’ by the State.” Id.; see also Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980).  

          In the instant case, it was the State, not appellant, that placed appellant’s sexual interest in women at issue. Although the State asserts that appellant introduced evidence that he had had many girlfriends to suggest that “he was not the sort of person to be sexually interested young boys,” the State, in its case-in-chief, asked Melvina Stepherson, “Now, as long as you have known . . . [appellant], have you ever known him to have a girlfriend?” Stepherson answered, “No.” It is well-settled that the State “may not rely on its own questioning” to get into collateral matters and extraneous offenses and bad acts “which would otherwise be inadmissible.” Shipman, 604 S.W.2d at 185. Although many of appellant’s witnesses did testify that he had had many girlfriends over the years, it was the State that prompted the issue by eliciting Stepherson’s contrary observation in its case-in-chief, apparently to suggest to the jury that appellant was not the sort of person to be sexually interested in women.   

          Even assuming that appellant, by eliciting testimony that he in fact had had girlfriends in the past, somehow raised the defensive theory that he was not the type of person to sexually abuse young boys, the State would only have been “entitled to rebut that ‘false impression’ inference with cross-examination questions [of appellant’s witnesses] concerning allegations of similar misconduct toward another child.” Wheeler, 67 S.W.3d at 885–86. Here, however, the State did not attempt to correct any false impression by cross-examination of the witnesses who left the false impression. Rather, the State attempted to correct the false impression through the direct testimony of two other witnesses, K.S. and C.R., in its rebuttal case.

          Moreover, K.S.’s allegation that appellant rubbed K.S.’s stomach and told him to masturbate and C.R.’s allegation that appellant insisted that he have sex with a doll are not allegations of misconduct similar to the complainant’s allegations in the instant case, i.e., that of mutual masturbation.

          In sum, the State relied on its own questioning of Melvina Stepherson to get into the extraneous offense testimony of K.S. and C.R. Moreover, regardless of which side actually placed appellant’s sexual interest in women at issue, the State would only have been entitled to rebut any false impression inferences through cross-examination of the pertinent witness about allegations of similar misconduct toward other children. Here, the State presented testimony from other witnesses about allegations that were not similar to the complainant’s allegations. Accordingly, this Court should hold that the trial court erred in admitting the extraneous offense testimony of K.S. and C.R. Harm Analysis

          A trial court’s error in admitting evidence is generally non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Accordingly, it must be determined whether the error affected appellant’s substantial rights and, if not, the error must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected where the error had a substantial injurious effect or influence in determining the jury’s verdict. King, 953 S.W.2d at 271. A conviction due to non-constitutional error will not be overturned on appeal if, after examining the entire record, the appellate court has fair assurance that the error did not influence the jury, or its effect was slight. Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000). In conducting its analysis, an appellate court considers the nature of the evidence that supports the verdict, the character of the alleged error, and how the jury might consider it in connection with other evidence. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Additional considerations include jury instructions, the State’s theory of the case, the defense’s theory of the case, closing arguments, voir dire, and whether the State emphasized the error. Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). Finally, the presence of overwhelming evidence of guilt may also be considered. Id. at 357.

          The State’s rebuttal testimony of K.S. and C.R. undoubtedly had more than a slight effect upon the jury’s decision. In all, 16 witnesses testified over a four-day period in the guilt phase of the trial. Seven of those testified for the State in either its case-in-chief or rebuttal, and nine of those testified for appellant. Because there was no physical or otherwise corroborative evidence, the outcome of the trial depended solely upon whether the jury believed the complainant. A large portion of the closing arguments, both appellant’s and the State’s, was spent on discussing the credibility of the witnesses. In fact, although the trial court instructed the jury that it could only consider the testimony of K.S. and C.R. “in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant,” the State expressly argued that their testimony was presented “for the purpose of rebutting” the evidence presented by appellant that he was “a good guy” and that the complainant was “a liar.”

          After reviewing the entire record, it cannot be said that the impact of the testimony of K.S. and C.R. did not significantly impact the jury’s verdict because it was presented to improperly bolster the State’s case. See Webb v. State, 36 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (en banc) (holding that erroneous admission of extraneous sexual assault of third party was harmful where complainant and appellant were only witnesses to offense). Moreover, it cannot be said with fair assurance that the erroneous admission of the testimony of K.S. and C.R. did not influence the jury or that its admission did not affect appellant’s substantial rights. Accordingly, this Court should hold that the erroneous admission of the extraneous offense testimony of K.S. and C.R. resulted in reversible error.

Conclusion

          Because the trial court reversibly erred in admitting the extraneous offense testimony of K.S. and C.R. into evidence, this Court should sustain appellant’s first issue, reverse the judgment of the trial court, and remand this cause to the trial court for a new trial.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.  

Justice Jennings, dissenting.

Publish. Tex. R. App. P. 47.2(b).