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Click here for the full text of this decision FACTS:Authorities arrested Bobby Blake Newton and charged him with of indecency with a child and aggravated sexual assault by contact. At trial, the outcry witness, a psychotherapist who treated the child complainant referred to as Doe, testified outside the presence of the jury that her notes for a date certain stated that Doe disclosed “that [Newton] had sexually abused [Doe] in the past.” The complainant Doe is the daughter of Newton’s former wife. Doe testified that Newton first sexually abused her when she was 10 and awoke to find Newton touching her vagina. She said that he touched her in a similar manner “a couple of [other] times.” When Doe was around 12 years old, she said that she awoke to find Newton inserting his finger in her vagina. There were no other witnesses to these assaults. According to Doe, Newton did not say anything during the assaults, and he never threatened her or told her not to tell anyone. L.D., Newton’s former stepdaughter from a marriage before Newton’s marriage to Doe’s mother, also testified at trial. L.D. testified that Newton molested her over a seven-year period during the 1980s (about 25 years before the trial). Her first memory, she testified, was Newton forcing her to perform oral sex on him when she was 9 or 10 years old. On cross-examination, L.D. testified that Newton also had penetrated her vagina with his penis. She could not remember how many times Newton allegedly molested her, nor could she recall if he said anything during these sexual assaults. When she was in seventh grade, L.D. testified that she told her mother about Newton’s sexual abuse but her mother did not believe her. The next year, she told a teacher, and the school notified Child Protective Services, which investigated the allegations. According to L.D., she recanted because her mother pressured her to do so. L.D. testified that she later wrote Newton a letter that basically said, “Blake, I heard you got married, heard you got kids. Don’t do this to them.” As a result of the letter, Doe’s mother called L.D. to discuss the letter’s contents. L.D. started therapy in 2003, about three years before trial, because she had begun cutting herself. She was diagnosed with bipolar disorder, severe depression and anxiety. She attempted suicide when she first started therapy. A jury convicted Newton and assessed punishment at 20 years of imprisonment on the indecency count and 60 years of imprisonment on the aggravated sexual assault count. Newton appealed, contending in four issues that: 1. the court abused its discretion by admitting outcry testimony; 2. the court abused its discretion by admitting extraneous-offense evidence under Texas Rules of Evidence 404(b) and 403; and 3. legally insufficient evidence supported the conviction for indecency with a child. On original submission, the 10th Court of Appeals affirmed the trial court’s judgment. As authorized by Texas Rule of Appellate Procedure 50, the court issued a modified opinion within 30 days after Newton filed a petition for discretionary review. HOLDING:Reversed and remanded. Texas Code of Criminal Procedure Art. 38.072, the court stated, describes a proper outcry witness as “the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.” In its 1990 opinion Garcia v. State, the CCA construed Art. 38.072 to mean the first adult “to whom the child makes a statement that in some discernible manner describes the alleged offense.” This statement, the CCA added, “must be more than words which give a general allusion that something in the area of child abuse was going on.” The outcry witness, a psychotherapist who treated Doe, testified outside the presence of the jury that her notes for a date certain stated that Doe disclosed “that [Newton] had sexually abused [Doe] in the past.” Newton, the court stated, argued that the witness’ “testimony was a general conclusion of abuse that did not describe the act in a discernible manner.” But the court was not persuaded. Although the witness’ testimony, the court stated, did not specify the manner or means by which Newton “sexually abused” Doe, the statement did clearly allege sexual abuse and clearly identified Newton as the abuser. In view of the broad discretion afforded trial courts in the determination of who is a proper outcry witness, the court could not say that the court’s decision was outside the “zone of reasonable disagreement.” Newton contended in his second issue that the court abused its discretion by admitting L.D.’s testimony as evidence of an extraneous offense under Rule 404(b). The state responded that the complained-of evidence was admissible to rebut Newton’s defensive theory that the complainant had fabricated the allegations against him. The introduction of extraneous-offense evidence, the court stated, for a purpose other than character conformity, such as to rebut a defensive theory, does not by itself make the evidence admissible. The extraneous-offense evidence, the court stated, must also be relevant to a “fact of consequence” in the case. In this case, the court stated, the ultimate fact of consequence in dispute is whether Newton committed the offenses of indecency by sexual contact and aggravated sexual assault against Doe. The evidence of Newton’s 25-year-old extraneous offenses with L.D., the court stated, could not assist the jury in its determination of whether Newton committed the charged offenses against Doe, other than to show character conformity in violation of Rule 404(b). Thus, the court held that the trial court abused its discretion by admitting the extraneous-offense evidence pertaining to L.D. The court then determined that the trial court’s error in admitting the evidence was harmful, because “it had a substantial and injurious effect on the jury’s verdict.” L.D.’s testimony, the court stated, significantly bolstered the state’s case and prejudiced Newton. Although the jury could have viewed Doe’s testimony as credible by itself, L.D.’s damaging testimony almost certainly played a significant role in Newton’s conviction. The state’s emphasis on the extraneous offenses in closing argument augmented the harm to Newton, the court added. OPINION:Reyna, J.; Reyna and Vance, JJ. DISSENT:Gray, C.J. “As of April 30, 2007, the statewide average number of cases pending per intermediate appellate court justice was 99.2 cases. Justice Reyna had 148 pending cases as of May 31, 2007, down from 153 cases pending at the end of April. This is 43 pending cases more than Justice Vance, the justice on this Court with the next most pending cases. The problem is that a majority of this Court has developed a pattern of processing the same proceeding multiple times, some by choice and some by having been reversed by a higher court and the proceeding remanded for further review. . . “To keep up with our work, it is critical that we process each proceeding only one time. But we have issued an opinion in this proceeding before. . . And the prior memorandum opinion was unanimous in the decision to affirm the conviction. If the majority thought that result was wrong, why did the majority not just rewrite the opinion and judgment rather than voting to grant a motion to publish that prior memorandum opinion? . . . “Instead the majority waited to prepare its new opinion until we were put under the thirty-day deadline of Rule 50 after a petition for discretionary review was filed, a time in which the State does not have the opportunity to provide additional briefing nor do I have adequate time to conduct additional research. . . In that new opinion the majority now reverses the conviction. The majority must have something larger at work here than just getting to what the majority believes is the correct judgment, because there is no issue raised in the petition for discretionary review that had not already been presented to us. “But the result of whatever is at work is sub-standard based upon the history of the review of this Court’s work product by the higher courts. This is the most reversed court in the State. Based on the number of this Court’s decisions which have been reversed, this calendar year does not look good. And reversals in the last full calendar year made it an extraordinarily bad year. It is of little solace to me that in most of these reversals I had dissented to the majority’s opinion and judgment. And again I must dissent.”

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