Defense Attorneys Fight Prosecutors Prejudicing the Jury with Extraneous Acts, Wrong, Crimes
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
It is the firm belief of among defense attorneys that a criminal defendant should only have to defend against the charge leveled in a charging instrument: a bill of information or a grand jury indictment. But that is not the case in nearly every sexual assault case, especially those involving children. The prosecution will generally find a way to introduce what is called “extraneous offense evidence,” which is uncharged sexual offenses or bad acts involving either the victim or someone else. Thus, a sexual assault defendant frequently finds himself having to defend against not only the crime charged but against uncharged acts as well. Extraneous offense evidence is the most prejudicial and damaging evidence that can be introduced into a sexual assault trial because it usually involves nothing more than the classic “he said/she said” evidence—evidence the State generally does not have sufficient probable cause to bring in an indictment. In fact, in many instances the accusations have been rejected either by the district attorney’s office or grand jury as being insufficient to formally indict.
Texas Rule of Evidence 404(b) is the primary statute governing the admission of “other crimes, wrongs or acts.” 404(b) prohibits extraneous offense evidence from being introduced at trial to prove the defendant is more likely than not to have committed the crime charged because that is the nature of his character. The statute, however, does permit the use of extraneous offense evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
This rule requires the prosecution, upon being served with a timely request by the defendant, to provide the defense notice of its intention to use extraneous offense evidence. 1/ The defendant can then file pre-trial written objections to the prosecution’s intention to use the extraneous offense evidence and request that the trial court provide findings of fact and conclusions of law as to why it will allow the evidence to be introduced at trial.
After proper objection, the trial court’s decision of whether or not to permit extraneous offense evidence is then governed by Texas Rule of Evidence 403. This rule requires the trial court to conduct a balancing test under which it weighs the probative value of the extraneous offense evidence against its undue prejudice, confusion of the issues, tendency to mislead the jury, and undue delay. 2/ The court is permitted to consider the following factors in its balancing analysis:
- The strength of evidence in making a fact more or less probable;
- The potential of the extraneous evidence to impress the jury in some irrational but indelible way;
- The amount of time the proponent needs to develop the evidence; and
- The strength of the proponent’s need for this evidence to prove a fact of consequence. 3/
Article 38.37 of the Texas Code of Criminal Procedure governs the use extraneous offense evidence in sexual assault cases where the victim is under the age of seventeen. This article permits such evidence when the trial court considers it relevant to (1) “the state of mind of the defendant and the child” and (2) “the previous and subsequent relationship between the defendant and the child.” As with Rule 404(b), the defendant must serve a timely request upon the prosecution of its intention to offer such evidence in its case in chief.
THE CURTIS BASS CASE
According to court documents, Curtis Bass was a popular minister in Harris County. He had an impeccable reputation among his flock and in the general community as a fine, upstanding citizen. Bass’ reputation was so stellar that when, in the fall of 1994, a 16-year-old church member told her mother, other family members and three educators where she attended school that Bass had sexually molested her in the church’s office in February of that year and again in the church’s parking lot in June of that year, no one believed her. 4/
Then in 1995 or 1996 a member of Bass’ congregation named Richard Parmer went to the church to help clean it. He took his five-year-old daughter with him. During the cleaning, Parmer opened the door to Bass’ office and found his daughter sitting in the minister’s lap with her dress pulled up above her waist. Surprised, Bass told the father the girl’s dress had ridden up and he was helping her straighten it out. 5/ The police were contacted but no charges were filed. 6/
In April 2002 an eleven-year-old church member went to the church, accompanied by her sister, to help clean it. Bass reportedly told the young girl to go inside the church with him to retrieve some cleaning supplies. The child said that after they entered the minister’s office, he touched her between the legs, kissed her on the lips, and fondled her breasts. The sexual activity ceased when Bass heard the outer front door of the church open. The girl told her sister about the incident once she got back outside the church and also told her mother when she got home. 7/ Once again no criminal charges were filed. 8/
In January 2004 Bass’ first alleged sexual assault victim, the 16-year-old who by then was 26 years of age, was talking to a 22-year-old cousin who said she had also been molested by the minister. In August 2004 Bass’ first alleged sexual assault victim went to the police and filed a report in connection with her 1995 assaults. 9/ Bass was charged with two counts of indecency with a child. 10/
Curtis Bass was put to trial in July 2005. His defense attorney mounted an aggressive defense. In his opening statement, the attorney attacked the victim’s credibility, telling the jury that her accusations were “pure fantasy,” “pure fabrication,” and “not worthy of belief.” 11/ The defense attorney also told the jury that the prosecution may offer other “bizarre” sexual assault accusations in an effort to “prop up” the trial victim’s credibility. 12/
After the victim testified, the prosecution requested that the father of Bass’ five-year-old victim and the eleven-year-old victim be allowed to testify about the sexual abuse Bass allegedly committed against them. The trial court agreed to allow this extraneous offense evidence but instructed the jury that it could consider the evidence, first, if it found the prosecution had proven beyond a reasonable doubt that Bass had committed the other crimes; and, second, only if the extraneous offense evidence would aid the jury in determining motive, intent, opportunity, intent, plan and knowledge of the offense, and for no other purpose. 13/
Bass was convicted on both counts of indecency with a child. The jury recommended a 10-year probation on one count and 10 years of incarceration on the second count. The minister appealed to the 14th District Court of Appeal in Harris County. The appeals court noted at the outset that Bass had presented a “fabrication” defense, i.e., the victim concocted the accusations. 14/
Although the court of appeals recognized the longstanding precedents of the Texas Court of Criminal Appeals that the prosecution may rely upon extraneous offense evidence to rebut a defense theory, 15/ the appeals court said this evidentiary rule does not apply in cases where “fabrication” is raised as it was in the Bass case. 16/ The appeals court relied upon Webb V. State, an en banc precedent ruling it handed down seven years earlier that Rule 404(b) would be eviscerated if a defendant could not attack a sexual assault victim’s credibility on cross examination without fear of opening the door to extraneous offense evidence. 17/
The State argued that this en banc precedent was no longer viable because the Texas Court of Criminal Appeals had specifically ruled in the ensuing years that the defensive theories of retaliation, frame up, and lack of opportunity could be rebutted with extraneous offense evidence. 18/ The appeals court brushed aside the State’s argument and reversed Bass’ convictions, finding that a “fabrication” defense is distinguishable from frame up, retaliation, and lack of opportunity defenses. 19/ The court noted that while frame up and retaliation defenses have an element of a fabrication defense, a fabrication defense charges only that the victim is making up the allegation while a frame up defense implies a conspiracy against the defendant and retaliation implies the victim is striking back at the defendant in response to some action taken by the defendant. 20/
However, some fourteen months later in State v. Bargas (May 2008) the court of appeals issued a ruling which held that extraneous offense evidence could be used to rebut a fabrication defense when that defense is laced with a retaliatory motive. 21/ Perhaps the appeals court heard the impending footsteps of the Texas Court of Criminal Appeals who, at the request for the State, reversed the appeals court’s decision to grant Bass a new trial. 22/ Saying the appeals court had failed to appreciate the reason why extraneous offense evidence is admissible, the court of criminal appeals found no distinction between frame up, retaliation or fabrication defenses, especially in cases where the defendant opens the door to extraneous evidence as Bass did. 23/ The court reduced the issue to the following holding:
“Extraneous offense evidence is admissible if it has some logical relevance said from character conformity. In frame-up and retaliation cases, it is certainly true that proof of an extraneous offense might tend to disprove the defense allegation that the victim has some motive to fabricate her claims. But this is simply one way that the evidence tends to show that the allegations were not fabricated.
“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 that the victim [of the charged offense] fabricated her claims is less likely to be true. By showing that the victim’s allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and has logical relevance aside from character conformity.
“Our case law supports a decision that a defense opening statement, like that made in this case, opens the door to the admission of extraneous-offensive evidence, like that admitted in this case, to rebut the defense theory presented in the defense opening statement. This case law makes no categorical distinctions between ‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses.” 24/
THE BASS FALLOUT
In its original decision to reverse Bass’ convictions, the 14th Court of Appeals based its decision on a concern that any attempt on cross examination by defense counsel to question, in the slightest way, a victim’s veracity would open the door on rebuttal to extraneous offense evidence. The appeals court did not feel that Rule 404(b) should be read so literally, and that if it was, the evidentiary safeguards of the rule would be undermined. The appeals court was correct in its concern. Four months after the Court of Criminal Appeals reinstated Curtis Bass’ convictions it handed down yet another restrictive ruling which held that extraneous offense evidence can be admitted in rebuttal to any defense in a sexual assault case so long as the evidence is relevant beyond character conformity.(See: Newton v. State) 25/
Criminal defense attorneys now face a cruel dilemma in defending sexual assault cases. A “not guilty” plea—in effect, a “I didn’t do it” defense—could theoretically be construed by the State as opening the door to extraneous offense evidence. Clearly, a defendant cannot lightly decide to take the witness stand in his own defense to refute a victim’s sexual assault allegations when the State has extraneous offense evidence involving the child victim or similar, although uncharged, offenses involving an adult victim.
Defense attorneys must now be extremely circumspect in their opening statements and during cross examinations of the victim for fear of saying something, regardless of how slight, which can be construed as an attack on the victim’s veracity. Bass’ attorney kicked open the door to the extraneous offense evidence in his opening statement with the announcement of a “pure fabrication” defense and claims of Bass’ excellent character. However, it was a legitimate tactical decision because the attorney had information that the 16-year-old victim had previously made a false sexual assault allegation against someone else. 26/
But the attorney’s tactical choice ultimately proved costly because the trial court did not let the evidence of the false prior sexual assault allegation into evidence. At the time of Bass’ trial there was a general evidentiary rule that prior false sexual assault allegations could not be used to impeach the credibility of a sexual assault victim. 27/ The Texas Court of Criminal Appeals this past April qualified this evidentiary prohibition somewhat by saying that in some extreme circumstances Texas Rule of Evidence 608(b) would permit the impeachment of a sexual assault victim with a false prior sexual assault allegation. 28/
Since there is no ironclad guarantee that a false prior sexual assault allegation will be admitted under Texas’ impeachment statute, Rule 608(b), a criminal defense attorney must be very careful in crafting an opening statement if the State has noticed its intention to use extraneous offense evidence. In effect, once the State notices its intention to use extraneous evidence, a sexual assault defendant has only limited available defenses available to him. He cannot demonstrate good character toward himself or any bad character toward the victim without potentially opening the door to the extraneous offense evidence.
But the fundamental problem inherent in extraneous offense evidence is that too often it is unreliable. For example, a grand jury refused to indict Curtis Bass for indecency with a child in connection with the incident involving the 5-year-old girl. The grand jury heard all the evidence, including the version of the events by the girl’s father (just as he testified about at Bass’ trial), and found the evidence insufficient to issue an indictment. Bass’ jury never heard of the grand jury no-bill because the trial court would not admit it.
Still, even after hearing the 16-year-old victim’s story and the extraneous offense evidence, Bass’ jury must have had some concern about the sexual assault allegations. The jury recommended a10-year probation on one of the two counts, an indication the jury did not believe Bass was a serial pedophile as the State had attempted to portray him.
But Bass was nonetheless convicted and sent to prison. Why? Because the State in its closing argument told the jury that to find Bass not guilty, it would have to believe the 16-year-old sexual assault victim, her 22-year-old cousin, the 11-year-old victim, and the 5-year-old victim had all falsely accused Bass for no reason at all. The prosecutor told the jury:
“What you have to believe is that four people have come in here or four allegations had been made and that all those people have lied. [There’s] no reason for these people to come in here and tell you, except for one: that is it the truth. It is the hard, painful truth that this man sitting here betrayed their trust. He betrayed the trust of his congregation. He betrayed the trust of the people who believed in him. And most sadly of all, he betrayed the trust of children … There is no reason for you to have heard what you have heard and the pain that obviously it cost them to tell you that. There is no other reason than that it is the truth, that this man is guilty of indecency.” 29/
It is abundantly clear that Bass was not convicted solely on the basis of the two counts of indecency alleged in the indictment involving the 16-year-old victim. He was also convicted because the extraneous acts made him appear to be a serial pedophile—charges not alleged in the indictment. But was Curtis Bass a serial pedophile? The 16-year-old victim obviously had credibility issues. She had made at least one false prior sexual assault allegation—and her own mother, family, and educators did not believe her allegations against Bass in 1994. She waited ten years to file a police report—and she did so only after talking with a cousin who said she had also been molested by Bass. These two cousins apparently came to the conclusion that it was time to get the minister, to hold him accountable for his past misdeeds.
The District Attorney’s Office in August 2004 knew the 16-year-old victim was not going away once she filed the police report. But the District Attorney’s office also knew it had a credibility problem with this victim: she had made a false prior sexual assault allegation and had waited ten years to bring charges against Bass. So prosecutors talked to the 22-year-old cousin who also said Bass had molested her and they found the old police report involving the 5-year-old victim. This evidence led them to the 11-year-old victim.
All this extraneous offense evidence buoyed prosecutors. The District Attorney’s office noticed its intention to use this evidence. Defense counsel took the bait: he raised the “pure fabrication” defense and made statements about Bass’ excellent character in his opening statement which conveniently opened the door to the extraneous offense evidence. It was clear sailing at that point for the prosecution. Prosecutors knew they could keep the victim’s false prior sexual assault allegation and the fact that the grand jury had refused to indict Bass in connection with the 5-year-old from being admitted into evidence under Rule 608(b). That paved the way for the prosecution’s successful closing argument that these four victims had no reason to lie because prosecutors had effectively kept out all evidence that at least two of the victims had lied.
Our advice is that once the State notices its intention to use extraneous offense evidence, defense counsel must, first, thoroughly investigate this evidence for any factual flaws, and, second, make every pre-trial effort to keep it out at the trial. Failing to do so means defense counsel will have to tread lightly through the trial so as not to open the door to the evidence, and whatever thoughts about a strenuous fabrication, frame-up, retaliation, or any other defense will probably have to be abandoned. Any attempt by the defense to question the veracity of the sexual assault victim will open the extraneous offense door. And that open door leads to often inevitable conviction.
1/ Hernandez v. State, 176 S.W.3d 821 (Tex.Crim.App. 2005)
2/ Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex.Crim.App. 2006)
3/ Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999)
4/ Bass v. State, 270 S.W.3d 557, 558 (Tex.Crim.App. 2008)
5/ Bass v. State, 222 S.W.3d 571, 577 (Tex.App.-Houston [14th Dist.] 2007)
6/ Bass, supra, 270 S.W.3d at 559
7/ Bass, supra, 222 S.W.3d at 577
8/ Bass, supra, 270 S.W.3d at 559
9/ Bass, supra, 270 S.W.3d at 558
10/ Bass, supra, 222 S.W.3d at 573
11/ Bass, supra, 270 S.W.3d 557
12/ Bass, supra, 270 S.W.3d at 558
13/ Bass, supra, 270 S.W.3d at 559
14/ Bass, supra, 222 S.W.3d at 575
15/ Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 1991)
16/ Bass, supra, 222 S.W.3d at 576
17/ Webb v. State, 36 S.W.3d 164, 181 n. 9 (Tex.App.-Houston [14th Dist.] 2000, pet. denied (en banc)
18/ Powell v. State, 63 S.W.3d 435 (Tex.Crim.app. 2001); Wheeler v. State, 67 S.W.3d 879 (Tex.Crim.App. 2002); Moses v. State, 105 S.W.3d 622 (Tex.Crim.App. 2003)
19/ Bass, supra, 222 S.W.3d at 577-78
20/ Bass, supra, 222 S.W.3d at 576-77
21/ State v. Bargas, 252 S.W.3d 879 (Tex.App.-Houston [14th] 2008)
22/ Bass, supra, 270 S.W.3d at 564
23/ Bass, supra, 270 S.W.3d at 562
24/ Bass, supra, 270 S.W.3d at 562-63
25/ Newton v. State, 275 S.W.3d 490 (Tex.Crim.App. 2009)
26/ Bass v. State, 2009 Tex.App. LEXIS 4736 (Tex.App.-Houston [14th Dist.] June 18, 2009) [Unpublished Opinion]
27/ Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000)
28/ Hammer v. State, 2009 Tex.Crim.App. LEXIS 513 (Tex.Crim.App. April 8, 2009)
29/ Bass, supra, 270 S.W.3d at 561-62
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair