CROSSOVER: 404(b) Prior Sexual Misconduct Admissible to Rebut Fabrication Defense in Child-Abuse Trial

Treadway v. State, 12-25-00295-CR, July 31, 2026.

On appeal from 294th Judicial District Court, Van Zandt County, Texas

Synopsis

The Tyler Court of Appeals held that Rule 404(b) permitted the State to offer evidence of similar sexual conduct involving another child because the evidence had non-character relevance: it rebutted the defense theory that the complainant fabricated the allegation. The court further concluded that the trial court acted within its discretion under Rule 403 because the evidence was highly probative in a credibility-driven case and was not substantially outweighed by unfair prejudice.

Relevance to Family Law

Although Treadway is a criminal case, its evidentiary reasoning matters in family litigation whenever a party’s theory places fabrication, mistake, or accidental conduct at issue in a suit affecting the parent-child relationship, protective-order proceeding, divorce involving conservatorship restrictions, or even a property case in which alleged misconduct affects reimbursement, waste, or fiduciary-duty theories. The practical crossover is straightforward: when one side advances a theory that an allegation involving a child was invented, coached, or mistaken, Texas courts may permit otherwise sensitive “other acts” evidence if it is offered for a genuine non-propensity purpose and survives Rule 403 balancing.

Case Summary

Fact Summary

The defendant was tried for indecency with a child based on allegations by his stepdaughter that a series of early-morning “massages” escalated into sexual touching. According to the complainant, the contact began as back scratching, progressed to massages in her bedroom while others in the house were asleep, and eventually included touching of her breasts and vaginal area over clothing, followed by more intrusive conduct during later trips to Oklahoma and Louisiana. She testified that she initially trusted the defendant and did not immediately view the touching as intentional, but later concluded the conduct was not accidental and disclosed it.

The evidentiary significance of the case arose from the defense theory. The record reflected a pointed challenge to the complainant’s credibility, including evidence suggesting she may have wanted to change her story and attack on investigative gaps. In that setting, the State offered extraneous-act evidence involving the defendant’s conduct toward his niece. The appellate issue was whether that evidence was admissible, not to show character conformity, but to rebut the defense claim that the charged allegation had been fabricated.

Issues Decided

• Whether Texas Rule of Evidence 404(b) permits evidence of extraneous sexual conduct involving another child when offered to rebut a defensive theory that the complainant fabricated the allegation.
• Whether the trial court abused its discretion by concluding under Texas Rule of Evidence 403 that the probative value of the extraneous-act evidence was not substantially outweighed by the danger of unfair prejudice.
• More broadly, whether the trial court’s admission of the evidence fell within the zone of reasonable disagreement under the abuse-of-discretion standard.

Rules Applied

The court relied on the familiar framework governing extraneous-act evidence in Texas:

• Texas Rule of Evidence 404(b) bars use of other-act evidence to prove character conformity, but permits it for other relevant, non-propensity purposes.
• Texas Rule of Evidence 401 defines relevance as evidence tending to make a fact of consequence more or less probable.
• Texas Rule of Evidence 403 allows exclusion of relevant evidence only when its probative value is substantially outweighed by unfair prejudice or other listed dangers.

The court grounded its analysis in several core Court of Criminal Appeals decisions:

• De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009), for the abuse-of-discretion standard and the two-part inquiry asking whether the evidence is relevant to a non-propensity issue and whether Rule 403 nevertheless bars it.
• Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008), recognizing that extraneous-offense evidence may be admissible to rebut a defensive theory, including fabrication.
• Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001), likewise approving use of extraneous-act evidence to answer a fabrication defense.
• Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), for the principle that Rule 404(b)’s listed purposes are not exhaustive and that Rule 403 generally favors admissibility of relevant evidence.

Application

The court treated the admissibility question as turning on why the evidence was offered and how the defense had framed the case. This was not a record in which the State simply introduced prior sexual misconduct to say, in substance, “he did it before, so he did it again.” Instead, the defense made credibility and fabrication central themes. The complainant’s account was challenged through cross-examination, through evidence that she may have wished to change her story, and through criticism of the investigation. Once the defense theory became that the allegation was made up, the State was permitted to answer that theory with evidence having relevance apart from character conformity.

That is where the niece evidence came in. The appellate court concluded that similar conduct involving another child had logical force on the question whether the charged complainant’s account was fabricated. In other words, the evidence was admissible not because it showed a criminal disposition, but because it tended to rebut the specific defensive position that the allegations were invented.

The Rule 403 analysis followed the same path. In a child-sexual-abuse trial driven largely by credibility, the probative value of corroborative or fabrication-rebutting evidence is substantial. The court recognized the undeniable prejudicial potential of prior sexual misconduct evidence, but Rule 403 does not exclude evidence merely because it hurts. The question is whether the prejudice is unfair and whether it substantially outweighs probative value. Given the centrality of the fabrication defense, the similarity of the conduct, and the State’s need for the evidence in a case with limited direct witnesses, the trial court’s ruling remained within the zone of reasonable disagreement.

Holding

The court held that Rule 404(b) allowed admission of the defendant’s extraneous sexual conduct involving another child because the evidence had a permissible, non-character purpose: rebutting the defense theory that the complainant fabricated the accusation. Under De La Paz, Bass, and Powell, that is a recognized basis for admission.

The court also held that the trial court did not abuse its discretion under Rule 403. The evidence was undoubtedly prejudicial, but in the court’s view it was also highly probative in a case where the complainant’s credibility was directly attacked and fabrication was advanced as a defensive theory. Because the probative value was not substantially outweighed by unfair prejudice, admission of the evidence was affirmed.

Practical Application

For family lawyers, Treadway is less about criminal charging practice and more about evidentiary architecture. In SAPCRs, modification proceedings, emergency temporary orders, and protective-order hearings, a party may attempt to frame a child’s outcry as fabricated, influenced, mistaken, or recently contrived. Once that theory is affirmatively developed, the opposing side may have a stronger argument for admission of other-incident evidence, not to prove general bad character, but to rebut the asserted theory under a non-propensity rationale.

That does not mean every prior accusation or prior act comes in. Family courts still must perform the same two-step analysis: first, identify a genuine relevance basis independent of character conformity; second, conduct Rule 403 balancing with care, especially given the risk of mini-trials, jury misuse in jury-tried matters, and disproportionate prejudice in temporary hearings. But Treadway gives practitioners a clean reminder that evidentiary doors are often opened by the theory of the case. If you plead or try fabrication aggressively, you should expect the other side to test whether otherwise excludable “other acts” proof becomes admissible as rebuttal evidence.

In custody litigation, this most often surfaces where one parent contends that a child’s disclosure of inappropriate touching was invented, coached, or the product of household conflict. In divorce litigation, it may affect temporary orders, supervised-access requests, geographic restrictions, and appointment of professionals. In property litigation, the principle is broader: once a party advances a theory such as mistake, accident, or fabrication regarding a key event, prior similar conduct may become relevant for a non-propensity purpose, subject to Rule 403.

Checklists

Preserve and Frame the Evidentiary Purpose

• Identify the precise non-propensity purpose for the evidence before offering it.
• Tie the evidence to a live issue in the case, such as fabrication, mistake, lack of accident, knowledge, or intent.
• Avoid arguing the evidence as simple character proof.
• Make a clean record explaining why the evidence is relevant apart from conformity.
• Request a limiting instruction when appropriate.

Oppose Other-Acts Evidence Effectively

• Force the proponent to articulate the exact Rule 404(b) purpose.
• Argue that the asserted purpose is pretextual if the theory collapses into character conformity.
• Challenge whether fabrication, mistake, or another defensive theory is actually in the case.
• Emphasize dissimilarities, remoteness, or weak proof of the extraneous act.
• Develop a focused Rule 403 objection addressing unfair prejudice, confusion, undue weight, and trial-within-a-trial concerns.

Litigate Rule 403 in Family Cases

• Address the court’s need for the evidence in light of alternative proof.
• Show whether the issue can be proved through less inflammatory evidence.
• Explain how much time the evidence will consume and whether it will sidetrack the case.
• In bench proceedings, still make the Rule 403 record; do not assume the concern disappears.
• In jury-tried matters, request a limiting instruction tailored to the permitted purpose.

Avoid Opening the Door Unnecessarily

• Assess whether a fabrication theory is strategically necessary before advancing it.
• Recognize that aggressive attacks on a child’s credibility may strengthen admissibility of rebuttal evidence.
• Consider narrower impeachment theories that do not affirmatively inject fabrication.
• Prepare witnesses to avoid broad assertions that an event was “made up” unless the record supports that position.
• Revisit motions in limine after opening statements and cross-examination themes evolve.

Build a Family-Law Record for Review

• Obtain explicit rulings on Rule 404(b) and Rule 403.
• Offer or request a hearing outside the presence of the jury where applicable.
• Proffer excluded evidence by bill of exception if you are the proponent.
• Request findings or at least a stated basis for the ruling in close evidentiary calls.
• Renew objections if the evidence expands beyond the ground on which it was admitted.

Family Law Crossover

The procedural lesson from Treadway is that Texas evidentiary law permits “other acts” evidence when it serves a legitimate, non-character function, and one recognized function is rebutting a pleaded or tried theory of fabrication. In family law, that mechanism can arise when the court is asked to decide conservatorship, possession, protection, or temporary restrictions after one side affirmatively places the truthfulness of a child’s report or a party’s account at issue. The rule does not create a special family-law exception; rather, it imports the standard Rule 404(b) and Rule 403 framework into family litigation. The operative procedure is to identify the non-propensity purpose with precision, connect it to a fact of consequence made live by the pleadings or trial theories, and then require the court to weigh probative value against unfair prejudice, confusion, delay, and cumulative proof.

Citation

Treadway v. State, No. 12-25-00295-CR, ___ S.W.3d ___ (Tex. App.—Tyler July 31, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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