COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00532-CR
THOMAS JEFFERSON APPELLANT
SMALLWOOD, JR.
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1343309R
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OPINION ON APPELLANT’S MOTION FOR REHEARING
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After considering Appellant’s motion for rehearing, we deny the motion, but
we withdraw our opinion and judgment of April 30, 2015, and substitute the
following.
A jury convicted Appellant Thomas Jefferson Smallwood Jr. of six counts of
aggravated sexual assault of a child under seventeen years of age and three
counts of sexual assault of a child under seventeen years of age, all charged in a
single indictment, and assessed his punishment at fifty years’ confinement on
each aggravated sexual assault count and twenty years’ confinement on each
sexual assault count. The trial court sentenced him accordingly, ordering the
sentences to be served concurrently. Appellant brings five issues on appeal,
challenging the sufficiency of the evidence to show the aggravating element for
the six convictions of aggravated sexual assault of a child (counts one through
four, eight, and nine) and contending that the State misrepresented the law during
voir dire and that the trial court abused its discretion by excluding evidence of the
complainant’s prior rape accusation against a neighbor and the testimony of two
other witnesses. Because the evidence is sufficient to support the jury’s verdict
and because the trial court committed no reversible error, we affirm the trial
court’s judgments.
Brief Facts
Appellant and Complainant’s mother (Mother) had been a couple, had
shared a home with Complainant and her brother, and were the parents of twin
boys, Complainant’s younger half-brothers. Appellant and Mother parted ways
and went through a custody battle over the twins. On July, 4, 2012, Complainant,
who was fourteen years old at the time, was at Appellant’s home with her twin
brothers. Complainant and Mother were not getting along around this time.
Appellant told Complainant that he wanted to put Mother in a hole and hire some
Mexican assassins to hurt her. In the same conversation, Appellant suggested
2
that Complainant have sex with him to make Mother mad, but Complainant
refused his offer.
Later that same month, Complainant, along with her twin brothers, visited
Appellant’s parents in El Paso. During this trip, Complainant received messages
from someone who identified himself as “Jayylo” through Kik, an application on
her cell phone. Jayylo sent pictures of his penis to her. She responded by
“sen[ding] inappropriate pictures of [her] boobs.” She never gave Jayylo her
home address or her real name. Jayylo continued to send more pictures of
himself to her. When Complainant threatened to stop sending Jayylo pictures, he
threatened to send the photos she had sent him to her school and to the
mailboxes of Mother and her neighbors. Complainant noticed that the
background of one of the photos he sent her resembled a portion of Appellant’s
house. Complainant was then suspicious that Appellant was Jayylo.
She confronted Appellant, but he denied having a Kik account. About an
hour later, Appellant called Complainant back and asked her why he had pictures
of her boobs in his mailbox. Complainant started crying and told him what had
happened with Jayylo and that he had threatened her. Complainant also told
Appellant’s mother why she was crying, and Appellant got mad at Complainant
for telling his mother. Complainant turned fifteen years old while she was in El
Paso.
When Complainant returned home from El Paso, she began receiving text
messages from Jayylo sent directly to her cell phone number. Complainant
3
noticed that the first six digits of Jayylo’s phone number were the same as
Appellant’s cell phone number. Jayylo told her that he got her phone number
from one of her friends, which Complainant knew not to be true. Whenever
Complainant asked Jayylo who he really was, he would change his story of how
Complainant was supposed to know him and how old he was. Jayylo texted
Complainant almost every day at different times of the day. But she could never
get a response when she called him.
Jayylo continued threatening Complainant and demanded that she send
him more photos, have sex with Appellant, videotape it, and send the video to
Jayylo. Complainant refused. Jayylo put one of the photos Complainant had sent
him on a Facebook page he had created and threatened to add all of her friends
to that page. Appellant told Complainant that Jayylo was also contacting him, but
she never saw any of the messages that Appellant claimed to have received.
Appellant and Complainant spoke about the situation and decided to
acquiesce to Jayylo’s demands. Complainant and Appellant had sexual
intercourse in Appellant’s house while Complainant’s twin brothers were asleep.
Following Jayylo’s demands, Appellant and Complainant continued their sexual
relationship. They had sexual intercourse “eight to eleven times[,] [m]aybe more,”
from August 2012 to November 2012. These sexual encounters would occur at
either Appellant’s or Complainant’s home.
Complainant testified that she texted Jayylo that it was getting harder for
her to keep these incidents a secret, and shortly after she sent this text, Appellant
4
called her and told her that they did not “have to do it anymore.” Appellant then
told Complainant a story about
a girl who was babysitting this guy’s kids, and he ended up raping
her. And then she went to court, and then he pretended to be
somebody that he wasn’t and hit her up on Facebook and that they
met up thinking it was somebody else, and he killed her.
This story scared Complainant. At trial, she testified that Appellant knew people
from Mexico who were in the Mexican Mafia. Although Complainant testified that
Appellant never specifically threatened her, she also testified that he made it
clear that if he could hurt Mother, he could hurt Complainant too. In December
2012, Complainant made an outcry to Mother’s friend. Shortly afterward, the
decision to call the police was made. Appellant pled not guilty to all counts of an
eighteen-count indictment alleging that he had committed sexual assault and
aggravated sexual assault on various dates against Complainant.
Outside the presence of the jury, in an in-camera hearing, Appellant
presented evidence from Ricky May. May lived in Complainant’s neighborhood
around 2008 to 2009. He testified that when he was eighteen years old,
Complainant would contact him “through phone [and] text messaging, trying to get
[him] to have sexual intercourse with her” because she was “horny.” May refused
Complainant’s offer, but he heard that Complainant had told people in their
neighborhood that he had raped her, which he denied. May was never charged
with or arrested for rape. The State objected to May’s testimony on hearsay
grounds.
5
THE COURT: Response?
[PROSECUTOR]: Once again, Your Honor, this is an opinion based
upon hearsay. There’s no proof that she ever
said these things. And this is the type of
reputation and opinion evidence that is, I believe,
prohibited under 412 as is relating to sexual
conduct and it’s not fitting in one of the categories
that allows for past behavior to be admissible.
The trial court sustained the State’s objection, and May was not permitted to
testify in front of the jury.
Appellant also offered testimony from Jeannie Redmon outside the
presence of the jury. Redmon testified that she had known Complainant for
“[a]pproximately seven to eight years.” Redmon testified that Complainant was
“untruthful” because (1) she took items that belonged to Redmon’s daughter, told
Redmon that Redmon’s daughter had given her the items when in fact, Redmon’s
daughter had not, and instructed Redmon’s daughter to similarly lie; (2) she
would tell Redmon and her daughter that she was dating people whom she was
not dating; (3) she had said that a boy across the street had raped her; and
(4) she lied about giving out her phone number to boys at a waterpark when
Redmon asked her if she had done so. Redmon also testified that she thought
her daughter and Complainant had gone to pornographic websites on Redmon’s
home computer. Appellant offered Redmon’s testimony as her opinion on
Complainant’s truthfulness. The State objected to Redmon’s testimony:
We’ll object under rule 608 and 609, also 404. I think if this witness
knew [Complainant] presently, we would be legally okay with her
opinion that she’s untruthful, but I think four years ago is a little bit too
6
remote. And certainly, even if that was allowed, the rules, specifically
608(b)[,] disallow specific instances of conduct. So we would object
to any specific instances.
Additionally, it sounds like almost all of this is hearsay and,
except for perhaps the opinion as to truthfulness. But the porn use, I
don’t think we can say that this witness knows with her own personal
knowledge that it was definitely [Complainant]. I think perhaps she’s
basing that off of what her daughter has told her. And the same with
the false claim of rape, she’s admitted on cross she really does not
know what happened.
The trial court sustained the State’s objections, and Redmon was not permitted to
testify in front of the jury.
Appellant also presented evidence from Denise Brown outside the
presence of the jury. Brown testified that Complainant was friends with her
daughter and that she knew Complainant in 2009 and 2010. Brown testified that
Complainant was untruthful because Complainant (1) spread rumors that Brown’s
daughter was pregnant and (2) took some fingernail polish belonging to Brown’s
daughter without permission. Brown also testified that Complainant was
flirtatious with boys and opined that Complainant was promiscuous.
Complainant’s friendship with Brown’s daughter ended when Brown’s daughter
began dating a boy whom Complainant had previously dated, and Complainant
began calling Brown’s daughter a “slut.” The State objected to Brown’s
testimony:
The State would object as to . . . this witness . . . having no personal
knowledge of the things that she has referenced as far as her basis
for determining this—[Complainant’s] credibility. She’s basing it upon
hearsay. So we would object under 608.
7
Also, as far as going into specific instances of conduct, she
doesn’t—she did not personally observe them or have personal
knowledge as to them.
Also, we’d object under 404, 403 as to her general
characterization of [Complainant’s being] boy crazy,
promiscuous. . . . [S]he has clearly demonstrated her own bias
towards [Complainant] where she does not apply the standard to her
own daughter as she does for [Complainant], even though they’re
engaged in the same conduct.
The trial court sustained the State’s rule 608 objection.
Sufficiency of the Evidence
In his first issue, Appellant argues that the evidence is insufficient to
support the jury’s determination that, during the alleged aggravated sexual
assaults, he, “by acts or words placed [Complainant] in fear that death or serious
bodily injury would be imminently inflicted on [her] or [her mother],” as alleged in
counts one through four, eight, and nine.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.1 This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
1
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
8
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. 2
The trier of fact is the sole judge of the weight and credibility of the
evidence.3 Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder.4 Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence when
viewed in the light most favorable to the verdict.5 We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution.6
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.7
2
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
3
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170.
4
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
5
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
6
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
7
Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
9
Complainant testified that Appellant had told her (1) that he knew people in
Mexico associated with the Mexican mafia and that they would kill her and her
mother without the killings being traced back to him and (2) a story about a man
who raped his babysitter and killed her after she told someone about the rape.
The outcry witness testified that Complainant had reported the Mexican mafia
threat to her and that Complainant had also told her that Appellant had
threatened to slit Complainant’s throat and leave her in a ditch somewhere.
Appellant relies on Blount v. State 8 and its progeny to argue that the threats
were not imminent because they were conditional. The Blount court found
insufficient the attackers’ telling the victim that if she told, they would come back
and kill her because the threat was conditional. 9 As the State points out, Blount
relied on a former version of the statute that required not only that the threat was
made but that it “compelled submission to the rape.” 10 That language was
removed from the statute when it was later amended, and consequently, as the
State argues, it does not apply to this offense. 11
8
542 S.W.2d 164 (Tex. Crim. App. 1976).
9
Id. at 165–66.
10
Id. at 165 (quotation marks omitted).
11
See Tex. Penal Code Ann. § 22.021 (West Supp. 2014) (providing
elements of aggravated sexual assault); Nichols v. State, 692 S.W.2d 178, 180
(Tex. App.—Waco 1985, pet. ref’d) (discussing the 1981 statutory amendment
removing the requirement of compelled submission).
10
Further, a child cannot consent to sexual contact or intercourse. 12 There is
no element of compulsion required to be proved in the aggravated sexual assault
or sexual assault of a child. 13 Because Complainant was a child and not
competent to consent to sexual conduct, the threat went only to the aggravating
element that elevated the offense to a higher grade of felony and therefore a
higher range of punishment. 14
The unique facts of this case require us to look at the threats as continuing
during the commission of the assaults over an extended period of time.
Complainant said in her outcry and repeated at trial that Appellant—who for most
of the period of the offenses was a person lurking in the background of her life—
made various death threats to keep her participating silently in the sexual
relationship. She understood these threats to be continuing threats of imminent
harm at any time. 15 The record supports that interpretation under the unique
facts of this case. We therefore overrule Appellant’s first issue.
12
In re B.W., 313 S.W.3d 818, 823–24 (Tex. 2010).
13
See id.; see also Tex. Penal Code Ann. § 22.011(a)(2) (West 2011),
§ 22.021(a)(1)(B), (2).
14
Compare Tex. Penal Code Ann. § 22.011(f) (West 2011) (providing that
sexual assault is a second-degree felony), and id. § 12.33 (providing range of
punishment for second-degree felonies), with id. § 22.021(a)(2)(A)(ii), (e)
(providing that aggravated assault as alleged in this case is a first-degree felony),
and id. § 12.32 (providing range of punishment for first-degree felonies).
15
See, e.g., Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)
(discussing the continuing nature of an abduction and holding that because a
11
Alleged Misstatement of the Law in Voir Dire
In his second issue, Appellant argues that the State misstated the law
during voir dire and that this misstatement violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution and sections ten and
nineteen of article I of the Texas Constitution. To preserve a complaint for our
review, a party must have presented to the trial court a timely request, objection,
or motion that states the specific grounds for the desired ruling if they are not
apparent from the context of the request, objection, or motion. 16 Further, the trial
court must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court’s refusal
to rule. 17 We have carefully examined those portions of the record to which
Appellant directs us concerning what he describes as misrepresentations of the
law to the jury panel during voir dire. At no point did Appellant object or otherwise
call his complaint to the attention of the trial court. Consequently, he did not
preserve this issue for appellate review. We overrule Appellant’s second issue.
witness testified that he saw Curry with a gun that night, “the jury could have
believed that Curry had that gun and used it during the course of the abduction to
prevent [the complainant’s] liberation” and “the jury was free to disbelieve [the
complainant’s] testimony that Curry did not have a gun and that Curry did not
threaten him”).
16
Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d 259, 262–63
(Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort
Worth 2013, pet. ref’d).
17
Tex. R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263.
12
Excluded Evidence About Complainant
In his third, fourth, and fifth issues, Appellant argues that the trial court
reversibly erred by refusing to allow him to present the testimony of May,
Redmon, and Brown that Complainant had made a prior false rape allegation
against a neighbor and that she was untruthful. Judge Cochran has explained,
Trials involving sexual assault may raise particular evidentiary
and constitutional concerns because the credibility of both the
complainant and defendant is a central, often dispositive, issue.
Sexual assault cases are frequently “he said, she said” trials in
which the jury must reach a unanimous verdict based solely upon
two diametrically different versions of an event, unaided by any
physical, scientific, or other corroborative evidence. Thus, the Rules
of Evidence, especially Rule 403, should be used sparingly to
exclude relevant, otherwise admissible evidence that might bear
upon the credibility of either the defendant or complainant in such
“he said, she said” cases. And Texas law, as well as the federal
constitution, requires great latitude when the evidence deals with a
witness’s specific bias, motive, or interest to testify in a particular
fashion.
But, as the Supreme Court noted in Davis v. Alaska, there is
an important distinction between an attack on the general credibility
of a witness and a more particular attack on credibility that reveals
“possible biases, prejudices, or ulterior motives of the witness as
they may relate directly to issues or personalities in the case at
hand.” Thus, under Davis, “the exposure of a witness’ motivation in
testifying is a proper and important function of the constitutionally
protected right of cross-examination.” However, as Justice Stewart
noted in concurrence, the Court neither held nor suggested that the
Constitution confers a right to impeach the general credibility of a
witness through otherwise prohibited modes of cross-examination.
Thus, the Davis Court did not hold that a defendant has an absolute
constitutional right to impeach the general credibility of a witness in
any fashion that he chooses. But the constitution is offended if the
state evidentiary rule would prohibit him from cross-examining a
13
witness concerning possible motives, bias, and prejudice to such an
extent that he could not present a vital defensive theory. 18
A witness’s credibility may be attacked in three ways: opinion or reputation
for general truthfulness or untruthfulness and cross-examination on specific
instances of conduct that establish bias, self-interest, or motive for testifying as
he or she did. 19 Opinion evidence is not the same as reputation evidence. 20 As
this court has explained,
Reputation witnesses’ testimony must be based on discussion with
others about the subject, or on hearing others discuss the person’s
reputation, and not just on personal knowledge. Rule 405 requires
only “substantial familiarity” with the reputation of the accused. 21
Reputation evidence, then, must necessarily be grounded in hearsay. 22
An objection that the testimony of reputation evidence is hearsay and not based
on personal knowledge thus will not lie. 23 Opinion testimony is governed by rule
of evidence 701 and must be based on personal observation. 24
18
Hammer v. State, 296 S.W.3d 555, 561–63 (Tex. Crim. App. 2009)
(footnotes omitted).
19
Tex. R. Evid. 405, 608.
20
See Tex. R. Evid. 405, 701.
21
Ferrell v. State, 968 S.W.2d 471, 474 (Tex. App.—Fort Worth 1998, pet.
ref’d) (citations omitted).
22
See id.; see also Tex. R. Evid. 405.
23
See Tex. R. Evid. 405; Ferrell, 968 S.W.2d at 474.
24
Tex. R. Evid. 701.
14
Within this general framework, Judge Cochran, speaking for the
unanimous Hammer court, has explained why Texas, unlike many other states,
does not allow a defendant in a sexual assault case to impeach the complainant
with evidence of prior false accusations:
The theory for admitting prior false accusations of rape in a
sex-offense prosecution is frequently analogized to Aesop’s story of
“The Boy Who Cried Wolf.” A past false accusation makes it more
likely that the witness lacks credibility and thus should not be
believed concerning this accusation. But in Aesop’s fable, there
really was a wolf, and it killed the sheep. The moral of that story was
“Nobody believes a liar . . . even when he is telling the truth.” A
criminal trial, however, is designed to find the truth about a specific
incident, not to decide whether someone has lied in the past about
the presence of wolves or about being raped. Prior false allegations
of rape do not tend to prove or disprove any of the elements of the
charged sexual offense.
Therefore, Texas, unlike some jurisdictions, has not created a
per se exception to Rule 608(b)’s general prohibition against
impeachment with specific instances of conduct to admit evidence of
the complainant’s prior false allegations of abuse or molestation.
The inferential chain of logic that is barred by Rule 608(b) is this:
The witness lied to his employer (or did some specific act of
dishonesty)
That specific conduct proves dishonest character;
Therefore, the witness is generally dishonest and should not
be believed in this case.
Applied to prior false accusations, the barred evidentiary chain is
this:
Complainant made a prior false accusation;
That specific conduct proves dishonest character;
Therefore, the complainant is generally dishonest and should
not be believed in this case.
15
This is precisely the prohibited propensity chain of logic—
“Once a thief, always a thief,” “Once a liar, always a liar”—that
underlies both Rules 404(b) and 608(b). A sexual assault
complainant is not a volunteer for an exercise in character
assassination. Several federal courts have held that exclusion of
this evidence, offered to attack the victim’s general credibility, does
not violate the Confrontation Clause.
If, however, the cross-examiner offers evidence of a prior false
accusation of sexual activity for some purpose other than a
propensity attack upon the witness’s general character for
truthfulness, it may well be admissible under our state evidentiary
rules.
For example, in Billodeau v. State, we held that the trial court
should have admitted evidence that the child complainant in that
aggravated sexual assault prosecution had made threats to falsely
accuse two neighbors of sexual molestation. We held that such
evidence supported the defensive theory that the complainant’s
motive in accusing the defendant of sexual molestation was “rage
and anger” when he was thwarted. Evidence of threats to accuse
others of sexual molestation when he displayed “rage and anger” at
being thwarted is some evidence of a common motive for accusing
the defendant of sexual molestation. The chain of logic is as follows:
The victim makes false accusations in certain circumstances
and for certain reasons;
Those circumstances and reasons are present in this case;
Therefore, the victim made a false accusation in this case.
One might even call this modus operandi evidence admissible
under Rule 404(b). Evidence of other acts or wrongs may be
admissible under Rule 404(b) to prove such matters as motive,
intent, scheme, or any other relevant purpose except conduct in
conformity with bad character. Even “the doctrine of chances” has
been invoked as a possible basis for admitting evidence of a victim’s
prior false accusation of rape. Similarly, evidence of a victim’s prior
sexual activity may be admissible under Rule 412, the Texas Rape
Shield Law, when offered to establish the victim’s motive or bias
against the defendant.
16
In sum, several different state evidentiary rules permit the use
of prior false accusations when offered to show the witness’s bias or
motive or for some other relevant, noncharacter purpose. The
Confrontation Clause mandate of Davis v. Alaska is not inconsistent
with Texas evidence law. Thus, compliance with a rule of evidence
will, in most instances, avoid a constitutional question concerning the
admissibility of such evidence. 25
We now examine the case at bar.
Prior Rape
Appellant argues that the trial court abused its discretion by excluding
May’s testimony that he had heard a rumor that Complainant was telling people
that he had sexually assaulted her and Redmon’s testimony pertaining to the
alleged incident. Appellant offered May’s testimony under rule of evidence
404(b). 26 While Appellant now argues that the trial court’s ruling abridged certain
of his constitutional rights, at trial he spoke only of credibility and Rule 404(b).
Appellant’s complaints at trial do not conform to his constitutional complaints on
appeal; we therefore do not address his constitutional complaints. 27
Additionally, May’s testimony dealt with rumors on the street; it did not
constitute testimony of Complainant’s reputation for truthfulness, nor were his
claims that he had heard that she was spreading rumors in any way
25
Hammer, 296 S.W.3d at 564–66 (footnotes omitted).
26
Tex. R. Evid. 404(b).
27
See Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691–92
(Tex. Crim. App. 2009).
17
substantiated to provide a basis for an opinion that she was not worthy of belief
under oath. And to the extent that his testimony was intended to be evidence of
prior false accusations of sexual assault, such testimony is not admissible for the
purpose of showing her character conformity or propensity to lie. 28
Although Appellant also argues that the evidence was admissible to show
motive and modus operandi, May candidly admitted that Complainant never
accused him to his face of raping her. His belief that she had accused him was
based on rumors that he had heard. The record does not establish confirmation
of May’s belief that she falsely accused him of rape. Nor do the rumors he heard
suggest a motive for falsely accusing Appellant or a modus operandi. May said
that Complainant would ask him to have sex with her, and he refused. But we
cannot discern how the rumors he heard that she was accusing him of rape were
ever verified. The record before this court therefore does not establish the
admissibility of this evidence of purported false accusations of rape under rule
404(b).
At trial, Appellant explained in seeking admission of the false accusation
testimony, “the false claim of rape is going to credibility.” We hold that the
rumors of false rape accusations were not admissible, and based on the record
before us, that the trial court did not abuse its discretion in denying Appellant’s
28
See Hammer, 296 S.W.3d at 564.
18
request to present this evidence before the jury. We overrule Appellant’s third
issue.
Redmon’s and Brown’s Opinion Testimony
In his fourth and fifth issues, Appellant complains of the exclusion of the
testimony of Redmon and Brown concerning their opinions of Complainant’s
credibility. As we understand the record, Appellant appears to have offered
these opinions by having the women explain specific acts that they suspected
had occurred and speculate on others. He did not offer their testimony on any
constitutional basis. We therefore do not address the constitutional arguments
he raises on appeal. 29
Redmon’s testimony was based on her belief that Complainant had lied
and had told Redmon’s daughter to lie about having given Complainant things
that Complainant had stolen from Redmon’s daughter. Redmon also believed
that Complainant had lied to her and to her daughter about dating, smoking
marijuana, and being raped. Appellant explained to the trial court that he was
offering Redmon’s testimony as “possible opinion testimony on truthfulness.”
Brown believed that Complainant had spread untruthful rumors about her
daughter and that she had stolen her daughter’s nail polish. We are not clear on
the legal basis for which Appellant offered this evidence, other than as an opinion
29
See Tex. R. App. P. 33.1(a)(1); Lovill, 319 S.W.3d at 691–92.
19
of Complainant’s truthfulness. Judge Keasler has explained for the Texas Court
of Criminal Appeals,
[A] less common notion of error preservation comes into play in this
case, although certainly not a novel one. Professors Goode,
Wellborn and Sharlot refer to it as “party responsibility.” They
explain it this way:
To the question, which party has the responsibility
regarding any particular matter, it is infallibly accurate to
answer with another question: which party is
complaining now on appeal? This is because in a real
sense both parties are always responsible for the
application of any evidence rule to any evidence.
Whichever party complains on appeal about the trial
judge’s action must, at the earliest opportunity, have
done everything necessary to bring to the judge’s
attention the evidence rule in question and its precise
and proper application to the evidence in question.
The basis for party responsibility is, among other things, Appellate
Rule 33.1. It provides that as a prerequisite to presenting a
complaint for appellate review, the record must show that the party
“stated the grounds for the ruling that (he) sought from the trial court
with sufficient specificity to make the trial court aware of the
complaint.” So it is not enough to tell the judge that evidence is
admissible. The proponent, if he is the losing party on appeal, must
have told the judge why the evidence was admissible.
We recently discussed this notion in Martinez v. State. There,
the defendant moved to suppress oral statements due to the State’s
failure to comply with Art. 20.17. The State argued for the first time
on appeal that Art. 20.17 did not apply. We concluded that the State
forfeited this argument by failing to bring it to the trial judge’s
attention. We explained that “both Texas Rule of Appellate
Procedure 33.1 and Texas Rule of Evidence 103 are ‘judge-
protecting’ rules of error preservation. The basic principle of both
rules is that of ‘party responsibility.’” We recognized that “the party
complaining on appeal (whether it be the State or the defendant)
about a trial court’s admission, exclusion, or suppression of evidence
must, at the earliest opportunity, have done everything necessary to
bring to the judge’s attention the evidence rule or statute in question
20
and its precise and proper application to the evidence in question.”
The issue, we said, “is not whether the appealing party is the State
or the defendant or whether the trial court’s ruling is legally ‘correct’
in every sense, but whether the complaining party on appeal brought
to the trial court’s attention the very complaint that party is now
making on appeal.”
Similarly, in Willover v. State, the defendant sought to admit
two videotaped interviews of the victim. At trial,
it (was) clear that, although (the defendant) did not
actually recite the specific rule of evidence he was
relying upon, (he) sought to admit the videotapes for
impeachment purposes. (He) did not argue, nor was
there any discussion at trial, that the tapes were not
hearsay or that the videotapes were admissible under
any exception to the hearsay rule other than Article
38.071 or for impeachment purposes.
On appeal, the defendant argued for the first time that the
videotapes were not hearsay. We relied on the notion of “party
responsibility” to reject this argument because “(i)n order to have
evidence admitted under a hearsay exception, the proponent of the
evidence must specify which exception he is relying upon.” It was
up to the defendant, we said, and “not the trial court, to specify
which exception to the hearsay rule he was relying upon or to
specify how the evidence was not hearsay.”
In some cases, we have applied the “party responsibility”
theory without using those precise words. In Clark v. State, the
State presented the testimony of Dr. James Grigson that the
defendant would be a future danger. The defendant sought at trial
to introduce a letter and accompanying report which listed eleven
individuals convicted of capital murder whose sentences had later
been commuted or reduced. In several of those cases, Dr. Grigson
had predicted that the individual would be a future danger. The trial
court refused to admit the evidence.
On appeal, the defendant argued that the excluded evidence
was admissible to impeach Dr. Grigson and show that his prior
future dangerousness predictions had turned out to be incorrect.
But the defendant had not articulated this basis for admission at trial.
At trial, he had argued the evidence was admissible to impeach
21
statements that Dr. Grigson had made in Lubbock County. The
State had objected that the impeachment went to a collateral matter,
and the trial judge had agreed.
We rejected the defendant’s argument on appeal because he
“did not clearly articulate” that he wanted to admit the evidence to
demonstrate Grigson’s past mistakes in predicting future
dangerousness. We said that the trial judge “never had the
opportunity to rule upon (the defendant’s) appellate rationale.” Since
the defendant “did not sufficiently clearly expressly offer the
evidence for the purpose which he now claims on appeal,” that
argument could not be raised on appeal.
Finally, in Jones v. State, the defendant sought at trial to admit
the grand jury testimony of a witness who asserted her Fifth
Amendment privilege against self-incrimination and refused to
testify. The State objected, claiming hearsay. We concluded that
the defendant failed to preserve error because he never specified
which portions of the witness’s testimony he wanted to admit into
evidence. We said:
The trial court need never sort through challenged
evidence in order to segregate the admissible from the
excludable, nor is the trial court required to admit only
the former part or exclude only the latter part. If
evidence is offered and challenged which contains
some of each, the trial court may safely admit it all or
exclude it all, and the losing party, no matter who he is,
will be made to suffer on appeal the consequences of
his insufficiently specific offer or objection. In this case,
because the trial court chose to exclude the evidence,
appellant is the party adversely affected by his own
default. Because appellant failed to specify which
portion of the transcript he intended to introduce into
evidence, the court was presented with a proffer
containing both admissible and inadmissible evidence.
When evidence which is partially admissible and
partially inadmissible is excluded, a party may not
complain upon appeal unless the admissible evidence
was specifically offered.
22
Application
In this case, Reyna argued to the trial judge that the evidence
should be admitted for “credibility.” He said that he was “not offering
it to prove the truth of the matter asserted” and “not offering it to go
into her sexuality.” Instead, he argued, “I’m offering it to
demonstrate that as to prior sexual activities, that she made
allegations that there were prior sexual allegations, and recanted.”
Reyna did not cite to any rules of evidence, cases, or
constitutional provisions. Reyna’s references to “the truth of the
matter asserted” reflect that he was arguing that the evidence was
not hearsay under Evidence Rule 801(d). His claim that he was not
offering it “to go into her sexuality” reflects his argument that the
evidence should not be excluded under Evidence Rule 412(b).
These arguments are both based on the Rules of Evidence.
Reyna’s reference to “credibility” could be a reference to either the
Rules of Evidence or the Confrontation Clause.
Reyna told the trial judge that the purpose of admitting the
evidence was to attack the victim’s credibility, but he did not provide
the basis for admitting the evidence. He could have been relying on
the Rules of Evidence or the Confrontation Clause. It was up to the
judge to discern some basis for admitting the evidence.
We have said that “(t)he purpose of requiring (an) objection is
to give to the trial court or the opposing party the opportunity to
correct the error or remove the basis for the objection.” When a
defendant’s objection encompasses complaints under both the
Texas Rules of Evidence and the Confrontation Clause, the
objection is not sufficiently specific to preserve error. An objection
on hearsay does not preserve error on Confrontation Clause
grounds.
Although this case involves a proffer of evidence rather than
an objection, the same rationale applies. Reyna did not argue that
the Confrontation Clause demanded admission of the evidence.
Reyna’s arguments for admitting the evidence could refer to either
the Rules of Evidence or the Confrontation Clause. His arguments
about hearsay did not put the trial judge on notice that he was
making a Confrontation Clause argument. Because Reyna “did not
clearly articulate” that the Confrontation Clause demanded
admission of the evidence, the trial judge “never had the opportunity
23
to rule upon” this rationale. As the losing party, Reyna must “suffer
on appeal the consequences of his insufficiently specific offer.”
Reyna did not do “everything necessary to bring to the judge’s
attention the evidence rule or statute in question and its precise and
proper application to the evidence in question.” 30
In the case now before this court, Appellant offered the evidence on the
vague basis of “possible” opinion testimony. He did not sustain his burden of
explaining to the trial court on the record, and by extension to us, why Redmon’s
and Brown’s testimony was admissible—whether under an evidentiary rule or
statute, as an exception to an evidentiary rule or statute, or under a constitutional
provision. We therefore overrule Appellant’s fourth and fifth issues.
Conclusion
Having overruled Appellant’s five issues on appeal, we affirm the trial
court’s judgments.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: August 6, 2015
30
Reyna v. State, 168 S.W.3d 173, 176–79 (Tex. Crim. App. 2005)
(citations omitted).
24