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Click here for the full text of this decision FACTS:Appellant was convicted of three counts of sexual assault of a child under 17. On appeal, he argued that the trial court improperly admitted evidence of sexual assault against a second child in violation of Rule 404(b) of the Texas Rules of Evidence. The court of appeals affirmed the trial court’s judgment. This court granted review to determine whether admission of the extraneous offense was error and, if so, whether it was harmful error. The sexual-assault convictions are based upon proof of sexual intercourse between appellant and 16-year-old Brittany. The state’s evidence at trial showed that appellant owned Capparelli’s, a small Italian restaurant. Between 1998 and 2001, appellant employed Brittany and Hailey, who was also 16, as waitresses. The state, over appellant’s numerous objections, offered testimony by Hailey about her alleged sexual relationship with appellant. HOLDING:Vacated and remanded to the court of appeals. The trial court admitted Hailey’s testimony about her sexual relationship with appellant as evidence of a common scheme or plan to have a sexual relationship with Brittany. However, the state failed to articulate any logical link between the sexual interlude with Hailey and an ultimate goal or plan to have a sexual relationship with Brittany. While, as the court of appeals pointed out, the two offenses share numerous characteristics, a series of similar acts are not enough to show a common plan or design. The court finds that the lower courts erred in finding the evidence of the sexual encounter with Hailey admissible under the “plan” exception to Texas Rule of Evidence 404(b). The court of appeals also found, however, that appellant “opened the door” by stating, “I would not do something like that,” and “I have never done anything of that sort with a 16 year old girl, period.” The court agrees. The state could introduce evidence of appellant’s sexual conduct with Hailey to rebut these sweeping statements disavowing any sexual misconduct with minors. While generally such evidence is admissible only during the state’s rebuttal, if extraneous offense evidence is improperly introduced during the state’s case-in-chief, any error may be cured by the defendant’s subsequent testimony which “opens the door” to rebuttal. However, the court agrees with appellant that the court’s limiting instruction, which allowed the jury to consider Hailey’s testimony as proof of appellant’s plan, combined with the state’s closing argument, improperly permitted the jury to consider this testimony for its substantive value. Because Hailey’s testimony was admissible only to rebut appellant’s blanket statement of good conduct with minors, the trial court should have given the jury an instruction that it could use that testimony only in assessing appellant’s credibility, not as any proof that he committed the charged offense or as any proof of some plan to have a sexual relationship with Brittany. Here, the court of appeals correctly determined that any harm caused by the error in admitting Hailey’s testimony was cured when appellant “opened the door” to its admission during his testimony. However, the trial court also committed error by allowing the state to use the extraneous offense as substantive evidence of the charged offense. Because the court of appeals did not assess the potential harmfulness of this testimony being misused for substantive purposes when it was admissible only to impeach appellant’s credibility, the court defers to that court to conduct this harm analysis. OPINION:Cochran, J., delivered the court’s opinion.

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