Stanley Benjamin Green, Jr. v. The State of Texas--Appeal from 3rd District Court of Henderson County

NOS. 12-06-00402-CR

12-06-00403-CR

12-06-00404-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STANLEY BENJAMIN GREEN, JR., APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Stanley Benjamin Green, Jr. appeals his conviction for one count of aggravated sexual assault of a child and two counts of indecency with a child. In his sole issue, Appellant argues that the trial court reversibly erred by allowing the State to introduce evidence of extraneous offenses at trial. We affirm.

Background

Appellant, an official with the Church of Jesus Christ of Latter Day Saints in Athens, Texas, was charged by indictment with one count of aggravated sexual assault of a child and two counts of indecency with a child. The victim was a child whose parents were attendees of Appellant s local church. It was alleged that Appellant began molesting the child at the age of seven years old and continued to do so until the child reached the age of ten years old. The charges related to three of many instances of alleged sexual misconduct against the child by Appellant.

Appellant pleaded not guilty and was tried before a jury. The jury found Appellant guilty on all three counts. The jury assessed punishment at fifty years of imprisonment for the first count and twenty years of imprisonment for each of the other two counts. This appeal followed.

Admission of Extraneous Offense Testimony

In one issue, Appellant contends that the trial court reversibly erred by allowing the State to introduce evidence of extraneous offenses at trial. The specific evidence complained of is the testimony of two adult stepgrandchildren of Appellant. Both witnesses testified that Appellant, their stepgrandfather, had committed illicit sexual acts against them when they were children. Appellant argues that this evidence was admitted in violation of Rule 404 of the Texas Rules of Evidence because the only possible purpose for the admission of the testimony was to show character conformity. The State argues that this evidence was properly admitted to rebut the false impression created by Appellant, an elderly man and a church official, that he was a man of virtuous conduct who would not violate his marital vows and was sickened by the idea that he would ever commit illicit sexual acts with a child. Under Rule 404, extraneous offenses are generally not admissible at the guilt-innocence phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Tex. R. Evid. 404(b).

Standard of Review

A trial court s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Absent an abuse of discretion, we do not reverse a trial court s decision to admit evidence. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). Further, the trial court s decision will be upheld on appeal if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). This principle holds true even where the trial court has given an erroneous legal reason for its decision. Id.

Discussion

At trial, during his case in chief, Appellant introduced into evidence an audiotape recording of a police interview of Appellant on October 28, 2003. During that interview, the following dialogue occurred:

Appellant: I don t know of any sexual assault.

. . . .

Detective: Okay, all right.

Appellant: There s one thing I want to make sure.

Detective: [Okay.]

Appellant: There s a little girl sitting out there [that] I met forty years ago and she is graciously married to me. And for forty years I have been with her every single day of my life. We go to bed together at night, we get up in the morning. We ve gone to work for years and years and come home and, since we retired in 1990, we have been together every single moment of the day and night all those years. She s with me at everything I do and I would never violate [my] marriage agreement with her, ever. And whoever is making these absurd charges I want to know who they are and I want to know who they are right now.

. . . .

Appellant: Now, I can t think of a single person that I might of possibly, a child you say?

Detective: Yes.

Appellant: No way, Jose. No way.

. . . .

Detective: [Discusses specific alleged sexual acts and asks if Appellant committed the acts.]

Appellant: Oh my gosh, honestly, that s sickening!

(emphasis added). This audiotape recording allowed Appellant to place before the jury character evidence that he, a person already understood by the jury to be an elderly man and a church official, was a man of virtuous conduct who would not have violated his marital vows and was sickened by the idea that he would ever commit illicit sexual acts with a child. Following the admission of this audiotape recording, the State, over Appellant s objection, was allowed by the trial court to introduce the testimony of Appellant s stepgrandchildren as rebuttal evidence.

Rule 404 of the Texas Rules of Evidence states that [e]vidence of a person s character . . . is . . . admissible . . . for the purpose of proving action in conformity therewith . . . [where admitted] to rebut [similar evidence presented by the accused.] Tex. R. Evid. 404(a)(1)(A); see Waddell v. State, 873 S.W.2d 130, 137-38 (Tex. App. Beaumont 1994, pet. ref d) ( Rule 404(a)(1) stands as an independent and separate ground of admissibility under this record - the prosecution was rebutting the evidence of the defendant as to his sterling character and as to his traits of character that would absolutely prohibit his committing the indicted offense. ); see also Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993) ( Where the witness creates a false impression of law abiding behavior, he opens the door on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood. ). Because the challenged testimony was offered to rebut character evidence presented by Appellant, the trial court s decision to admit the testimony did not violate Rule 404. See id. Therefore, the trial court s decision was not an abuse of discretion under Rule 404. See Montgomery, 810 S.W.2d at 391. We overrule Appellant s sole issue.

Disposition

We affirm the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered March 26, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)