LARRY JOE CROCKER, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND; Opinion issued December 11, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00245-CR
 
No. 05-08-00246-CR
 
............................
LARRY JOE CROCKER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F05-26125-H and F07-01205-H
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OPINION
Before Justices Bridges, O'Neill, and FitzGerald
Opinion By Justice Bridges
        Appellant Larry Joe Crocker was charged in two indictments with the offenses of indecency with a child by contact and indecency with a child by exposure. In a single trial, he was convicted of both offenses and appeals the convictions and accompanying sentences. We reverse the judgment of the trial court and remand for proceedings consistent with this opinion.
Background
 
        Complainant first met appellant when he was ten years old. Appellant was living in a church apartment at the time, later moved to a house, and then to an apartment complex. In March 2004, complainant's mother needed to go into the hospital to receive treatment for multiple sclerosis, and the complainant stayed with appellant in his apartment. The complainant testified that on that first day in the apartment, appellant took off all of his clothes and told the complainant he could do so as well. He further testified that appellant then went to his room and ignored the complainant until he also removed his clothing. At some point, they moved to the bedroom, where appellant showed the complainant the picture of a naked boy on the computer. Appellant talked about parts of the body and started touching his own penis. He told the complainant to start touching himself and, after touching themselves, appellant touched the complainant's penis with his hand and rubbed it. Then, appellant had the complainant rub appellant's penis. The complainant testified that throughout his seven day stay with appellant, appellant exposed himself and had the complainant touch himself and appellant. He told the complainant not to tell his mother what happened because the stress would kill her.
        The complainant's mother went back into the hospital for about a week in the fall of 2004 to receive treatment. The complainant testified that he again stayed with appellant and all the “same stuff” happened again. In early 2005, he told his mother what appellant had been doing.
        During trial, the complainant acknowledged that he had emotional problems and had been in and out of psychiatric facilities, on medication, and had undergone brain surgery in 2003. Some of the psychiatric hospitalizations occurred after the instant offenses allegedly occurred. The complainant, however, never told anyone about the abuse until he told his mother in 2005. The complainant denied making up the story about appellant because of his medical or psychiatric condition.
        Appellant called several witnesses at trial to rebut the trustworthiness of the complainant and his mother. Specifically, appellant called five members of the church who generally testified the complainant was not trustworthy. The principal at complainant's prior school testified and opined that complainant's mother was not a truthful person. Dr. Tim Branaman, a psychologist and professor, testified on behalf of the defense that complainant had fantasies of harm to himself and others and such fantasies may relate to claims of child abuse. Dr. Branaman further explained if someone is prescribed complainant's medications, it indicates he has a severe mental disorder and may be more prone to misperceiving reality, to impulse control problems, manipulation and deception and that these people are generally less reliable.
        After a hearing on the admissibility of extraneous acts, the State called Kyle Marshall on rebuttal. At the time of his testimony, Kyle was thirty-three years old. Kyle knew appellant when he was young and appellant was a minister at his local church. Kyle testified about three separate incidents with appellant. The first incident occurred in the summer of 1985, when Kyle was ten years old.
        The first incident involved a trip to Eagle Pass with appellant to give donations to an Indian tribe. After they had dropped off their donation, appellant, Kyle, and two other boys went down to the river and appellant swam naked in the river in front of the boys. Appellant asked the boys to also swim, but they all walked away.
        The second occasion occurred a short time after the first incident. Appellant and Kyle were completing a few things around the church. After they completed their tasks, appellant asked Kyle to swim in the baptistry with him. Appellant swam in the baptistry naked and Kyle joined him while also naked. They swam for five to ten minutes and then stopped, got their clothes on again, and left.
        The third incident happened that same summer. Appellant invited Kyle to go with him on an overnight camping trip. Appellant decided it was time to go for a swim and asked Kyle to join him. At that point, appellant removed his clothes and went swimming in the nude. Kyle eventually swam nude too. Kyle got out of the water after five to ten minutes and put his shorts back on. After appellant finished swimming, he remained in the nude. Appellant sat nude in a lawn chair and fished. Appellant allowed Kyle to drive his pickup truck around the pasture. Appellant was a passenger in the truck and remained nude. That night, Kyle and appellant slept in a small two-man tent. Kyle slept in his underwear under the covers. Appellant slept in the nude.
        Kyle stated specifically that he saw appellant's genitals on two of the three occasions, and that he felt uncomfortable on all three occasions. On cross-examination, Kyle agreed appellant never touched him or anyone inappropriately. He agreed appellant did not ask Kyle to touch him or suggest Kyle touch himself. Appellant did not display an overt arousal or an erection. Other than being nude, Kyle testified that appellant did not do anything to draw attention to himself. Kyle also testified that he told his parents about each incident after it had occurred.
        The State also called Fred Marshall, Kyle's father, in rebuttal. Fred testified that he knew about the incidents between his son and appellant. He affirmed that Kyle was ten years old at the time of the incidents. Fred testified that after the last incident, he and his wife talked with appellant. He said appellant did not deny the allegations and “handle[d] himself well in circumstances like that.” Fred said appellant explained, “On the nudity, he said that's how he did things.” Fred testified that, after the meeting, he asked appellant to seek professional help. After that meeting, Fred explained his family's involvement in the church drastically diminished.
        Fred also testified that both he and appellant were members of the Masons. Fred revealed appellant's conduct to a few of the Masons and a Masonic trial was held. Ultimately, appellant was not removed from his status as a Mason. Fred testified that neither he, his wife, nor Kyle were permitted to testify at the Masonic trial. On cross-examination, Fred testified that he regretted he did not go to the police.
        The jury found appellant guilty of both charges. Appellant was sentenced to five years in prison for the indecency by contact conviction. For the indecency by exposure conviction, appellant was sentenced to ten years imprisonment, probated for ten years. Appellant timely filed a motion for new trial, which was overruled by written order. This appeal ensued.
Analysis
 
        In fifteen issues, appellant challenges his convictions and accompanying sentences. In his first issue, appellant asks this court to determine whether the trial court erred by admitting, over objection, evidence of extraneous acts.
        We review rulings on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Generally, evidence of extraneous acts may not be used against an accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005); see also Tex. R. Evid. 404(b). Extraneous offense evidence is admissible, however, under rule 404(b) if the extraneous act is relevant to a fact of consequence apart from its tendency to demonstrate character conformity. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004).
        To assess the probative value, if any, that extraneous offense testimony has apart from its tendency to prove character conformity, we look to: (1) the availability of alternative sources of proof, and, more generally, the State's need for the evidence; (2) the closeness in time between the extraneous offense and the charged offense; and (3) the similarities between the extraneous offense and the charged offense. Kiser v. State, 893 S.W.2d 277, 281 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd). We conclude the State did not have alternative sources of proof available and, therefore, we review the second and third factors to determine the probative value of the extraneous acts. Sufficient similarity may be demonstrated by proximity in time and place or by a common mode of committing the offenses. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).                  In this case, the court held an admissibility hearing, outside the presence of the jury, to determine whether Kyle and Fred Marshall would be permitted to testify about alleged extraneous acts. After the proffer of testimony, appellant objected under Rule 404 that the testimony was being offered to show character conformity and lacked relevance to any particular issue in the case. Appellant's counsel further objected as to the relevance of the evidence being offered under Rules 401 and 402.
        In response to the objections, the State explained that it did not intend “to prove this under 404(b) to show character and conformity,” but wished to offer the evidence of extraneous acts “to rebut the Defense's theory of fabrication and motive.” The State continued that the extraneous act testimony was “relevant to show that it, in fact, wasn't a fabrication. It's being used specifically to rebut the theory of some sort of frame-up.” The trial court overruled appellant's objections and permitted Kyle and Fred Marshall to testify to the extraneous acts.
        The Court of Criminal Appeals has determined that extraneous offense evidence can be admissible to rebut the defensive theory of fabrication. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). In Bass, a jury convicted appellant of two counts of indecency with a child. The State's case rested primarily on the complainant's testimony that appellant molested her on church property where appellant was a pastor and on extraneous offense evidence that appellant molested two other girls on church property. Id. at 557. The complainant in Bass testified that appellant molested her in his church office and in the church parking lot. The extraneous offense evidence demonstrated that appellant molested a five-year old girl in his church office and later molested an eleven-year-old girl in his church office. The Bass court noted, “It seems obvious that, if the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, an affirmative defense allegation that the victim [of the charged offense] fabricated her claims is less likely to be true . . . . [T]he evidence directly rebuts the defensive claims and has logical relevance aside from character conformity.” Id. at 562-63 (emphasis added).
        Recently, the Court of Criminal appeals again determined that extraneous offenses were admissible to rebut a fabrication defense. De La Paz v. State, 279 S.W.3d 336, 350 (Tex. Crim. App. 2009). In De La Paz, the court focused on the similarities between the extraneous offenses and the charged offense. Id. at 348-49. The court also recognized that the extraneous offenses “occurred close in time to [the charged] offense: one just before, and one just after.” Id. at 349.
        Although we recognize the law established by the Court of Criminal Appeals in Bass and De La Paz, we conclude that those cases are distinguishable from the case before us. Here, the extraneous acts were not sufficiently similar to the charged offenses nor were they close in time, occurring nearly twenty years prior to the charged offenses.
        In this case, appellant was charged with indecency with a child, both by exposure and by contact. The complainant testified that, while in appellant's apartment, appellant took off all of his clothes and told the complainant he could do so as well. He further testified that appellant then went to his room and ignored the complainant until he also removed his clothing. At some point, they moved to the bedroom, where appellant showed the complainant the picture of a naked boy on the computer. Appellant talked about parts of the body and started touching his own penis. He told the complainant to start touching himself and, after touching themselves, appellant touched the complainant's penis with his hand and rubbed it. Then, appellant had the complainant rub appellant's penis. The complainant testified that throughout his seven day stay with appellant, appellant exposed himself and had the complainant touch himself and appellant.
        With regard to the extraneous acts, Kyle Marshall testified appellant never touched him. There was no testimony that appellant ignored Kyle until he removed his clothes. Kyle's testimony indicated appellant remained naked, but continued activities, such as fishing and allowing Kyle to drive his truck, while Kyle remained clothed. The extraneous acts did not take place in appellant's home and there was no mention that appellant showed Kyle a naked image of another boy. In the extraneous acts testimony, appellant did not ask Kyle to touch himself or appellant. Kyle testified that appellant did not display an overt arousal or an erection. Other than being nude, Kyle testified that appellant did nothing to draw attention to himself.
        Fred Marshall's testimony did not reveal any additional information about the extraneous acts. Fred essentially testified that he knew about the extraneous acts committed by appellant against his son, appellant did not deny the incidents when confronted, and Fred regretted his decision not to go to the police.
        Although it is a close call on the determination of whether the testimony provided by the Marshalls is sufficiently similar to the charged offenses to be relevant, apart from showing appellant's character or his actions in conformity therewith in violation of Rule 404(b), we conclude it is not sufficiently similar. Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992) (recognizing there will always be similarities in the commission of the same type of crime, but determining that the extraneous offenses were not so compellingly similar that an objective trier of fact could, upon examining only the similarities of the two offenses, conclude with any certitude that they were so alike as to identify both crimes as the work of the same person). See also Webb v. State, 36 S.W.3d 164, 180-81 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (extraneous offenses not admissible to rebut a claim that the State's complaining witness was not credible).
        But, unlike De La Paz, the extraneous acts did not occur in close proximity to the time of the charged offenses. See De La Paz, 279 S.W.3d at 349. Where the time between the charged and extraneous sexual acts is not bridged by intervening sexual misconduct of a similar nature, the extraneous offenses are not admissible. Bachoffer v. State, 633 S.W.2d 869, 872 (Tex. Crim. App. 1982). In an unpublished decision, our court determined that “[e]ven assuming appellant propounded a theory of fabrication, we fail to see, and the State fails to explain, how evidence of [a prior uncharged sexual assault] sixteen years earlier refutes such a theory.” Harrison v. State, 2004 WL 1663982, *6 (Tex. App.-Dallas, July 19, 2004). Like in Harrison, there is no proximity in time between the extraneous acts and the offenses at hand and no other offenses sufficient to show a continuing course of conduct by appellant. Id. (citing Bachoffer, 633 S.W.2d at 871-72 (unadjudicated extraneous offense occurring four years and four months earlier than tried offense, with no evidence of other intervening similar offense and no final conviction, inadmissible to rebut “frame-up” theory); James v. State, 554 S.W.2d 680, 682-83 (Tex. Crim. App. 1977) (extraneous offense occurring two years and nine months prior to offense being tried, with only certain similarities and no other intervening offenses, too remote in time to be admissible on issue of identity and alibi)).
        Due to the lack of similarity between the extraneous offenses and the charged offenses, the duration in time being almost twenty years between the uncharged and charged offenses, and the lack of evidence concerning a continuing course of conduct by appellant, we conclude the trial court abused its discretion in admitting the evidence of extraneous acts. See Tex. R. Evid. 404(b).
        We now turn to whether the admission of the evidence was harmful. We must disregard error in the admission of extraneous offense evidence if it did not affect a defendant's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If one cannot say with fair assurance that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. Carter v. State, 145 S.W.3d 702, 710 (Tex. App.-Dallas 2004, pet. ref'd).
        The introduction of extraneous offenses to the jury is inherently prejudicial and harms the defendant because it requires the defendant to defend against not only the offense charged, but also his uncharged actions. Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994); Carter, 145 S.W.3d at 710. The admission of the extraneous offenses also prejudices the defendant because of the jury's natural inclination to infer guilt of the charged offense from the extraneous offenses. Id. See also Montgomery v. State, 810 S.W.2d 372, 397 (Tex. Crim. App. 1990) (stating sexual misconduct involving children is inherently inflammatory and the danger of unfair prejudice from such testimony is substantial).
        Here, the main issues in this case were whether: (1) appellant “with the intent to arouse and gratify the sexual desire of the [appellant], intentionally and knowingly expose[d] the [appellant's] genitals, knowing that [complainant], a child younger than 17 years and not the defendant's spouse, was present” and (2) appellant “engage[d] in sexual contact with [complainant]..., a child younger than 17 years of age and not the spouse of the [appellant], by contact between the hand of the complainant and the genitals of the [appellant], with the intent to arouse and gratify the sexual desire of the [appellant].”
        Viewing the record as a whole, we are left with grave doubts as to whether the error had a substantial influence on the jury's verdict. Carter, 145 S.W.3d at 710. Under these circumstances, we cannot disregard the error as harmless. King, 953 S.W.2d at 271. We, therefore, affirm appellant's first issue. Because of our disposition of appellant's first issue, we need not reach appellant's remaining issues.
        We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080245F.U05