In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00232-CR
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WILLIE JOHN BOWIE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 30,624-A
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Willie John Bowie has filed a motion asking this Court to dismiss his appeal. Pursuant to Tex. R. App. P. 42.2, his motion is granted.
We dismiss the appeal.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 3, 2003
Date Decided: November 4, 2003
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New Roman"> N.B. visited the school nurse because her stomach was hurting. She finally told Oretha Ellis, the school nurse, what was happening because she was tired of what Benjamin was doing to her. Ellis contacted Children's Protective Services (CPS). At the Children's Assessment Center, N.B. told them what had happened. She was seen by a female physician, who took blood samples and examined her private part. She was taken from S.B.'s home to live with her father, where she lived for approximately eleven months. N.B. was returned to her mother's home about four weeks before trial.
N.B. had come to Ellis several times complaining of stomach problems. Specifically, she remembers N.B. coming in on a Friday and again on the following Monday. Ellis could perceive no stomach ailment, but did notice N.B. was "squirming" around, unable to sit still, which is a possible sign of a problem in the vaginal area. After some questioning, N.B. admitted to Ellis someone had touched her in the private area. Ellis notified the school principal, and CPS was called. S.B. was called from work to come in to the school; when told of what her daughter had reported, she became upset and asked N.B. why she had not told her about it.
Alicia Courtney was the CPS investigator in N.B.'s case. Her job is to talk with the kids, the parents, and the alleged individual who harmed the child. Consistent with normal procedure, N.B. was taken from her home, and Benjamin was asked to leave the home, which he did. Courtney received a report that Benjamin had, contrary to instructions, returned to the apartment. She said that S.B. did not, at first, believe N.B's report of abuse.
Sheela Lahoti, a pediatrician employed at the Children's Assessment Center, testified from notes that had been prepared by an examining nurse who was no longer employed at the Center. N.B. complained of pain on urination (dysuria), which would be associated with a urinary tract infection. This can be related to sexual abuse. In addition, N.B. complained of vaginal itching and pain in "her privacy." N.B. told the nurse Benjamin touched her on her private part with his "privacy area" and his hands, and on her "booty" with his "privacy part." This had been happening since she was six, and it hurt her. She said he put his "privacy part" in her and that sperm came out. The nurse examined both N.B.'s vaginal and anal areas. The anal exam was completely normal, and the examination of the vaginal area did not show definite signs of abuse, although Lahoti did testify that such physical signs would not always be present and that the physical findings would be consistent with what N.B. had told her.
S.B. testified for the defense. She married Benjamin in 1997, although they had lived together in different locations for several years before this. N.B. always lived with her when she lived with Benjamin. During the time period before their marriage, S.B. and Benjamin had separated for a time. They lived in several locations during this time, including locations on Greenspoint, Gessner, and Southmore Streets. She worked from very early in the morning until the early evening on Sundays, Mondays, and Tuesdays, for Metro Lift. Benjamin worked long hours for a moving company and B.F.I. during this period. The older children in the apartment were essentially responsible for the care of the younger children who lived there. She remembered being called at work on a Monday regarding N.B. and that she had to go to the school. S.B. was not told of the allegations until she arrived. After being told of the allegations of sexual abuse, she asked her daughter why she did not tell her about the abuse.
S.B. was asked if she believed N.B.' s allegations, to which she responded in the negative. Defense counsel, after some apparent confusion as to exactly what N.B. had previously alleged, attempted to present to the jury N.B.'s previous statement to her real father that her Uncle Tim had beaten up and raped S.B. S.B. testified N.B. told her later, "Oh, mama, I was just playing." The State objected, and the trial court did not admit the statement. S.B. admitted she told police Benjamin held a carpet cutter to her throat, which resulted in Benjamin being incarcerated for 121 days, but that S.B.'s statement was a lie. She also admitted that after CPS had instructed Benjamin not to return to the apartment, he did drive by and pick her up for work, although she denied he had any contact with the children.
D.B., S.B.'s brother and N.B.'s uncle, was also called as a defense witness. He had known Benjamin for about three years. He also lived in the apartment on Southmore and slept on a different couch in the living room. He testified other persons could not enter Tim's room, because only Tim had a key, and the room was kept locked when he was not there. D.B. testified that on the day in question, he recalls N.B. being upset with Benjamin because he would not give her any money and was make her take a bath and go to bed. He said there was no opportunity for sexual abuse while he was there. On cross-examination, he admitted to a prior criminal record.
In the only issue raised on appeal, Benjamin contends the trial court committed reversible error by denying admission before the jury of the testimony of a witness that N.B. had previously made a false allegation against regarding sexual misconduct.
A trial court's decision to admit or exclude evidence is reviewed under the standard of abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Pina v. State, 38 S.W.3d 730, 736 (Tex. App.-Texarkana 2001, pet. ref'd). An abuse of discretion is shown when the trial court's determination is so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
In this case, there are competing legal principles to be applied. One is Tex. R. Evid. 608(b), which provides: "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." On the other hand, Tex. R. Evid. 607 permits the credibility of a witness to be attacked by any party. Another principle to be considered is the Confrontation Clause found in the Sixth and Fourteenth Amendments to the United States Constitution. U.S. Const. amends. VI, XIV. This clause guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This means more than mere physical confrontation; its essential purpose is to secure for the opponent the opportunity of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674, 683 (1986). In addition to being permitted to delve into the witness' story to test his or her perception and memory, cross-examination also affords defense counsel the opportunity to impeach, i.e., discredit, the witness. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 88 L.Ed.2d 15, 19 (1985).
However, neither the Confrontation Clause, nor the general principle of permitting the impeachment of the credibility of any witness, prevents a trial court from imposing limitations on a lawyer's inquiry into the potential bias of an opposing witness. The trial court maintains "broad discretion" to impose limitations based on harassment, prejudice, confusion of evidence, possible danger to the witness, and the injection of cumulative or collateral evidence. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The right guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. Van Arsdall, 475 U.S. at 679; Fensterer, 474 U.S. at 20. See also Booker v. State, 929 S.W.2d 57, 65 (Tex. App.-Beaumont 1996, pet. ref'd). The Texas Court of Criminal Appeals has recently recognized both the right, and the limitations on the right, of cross-examination. Issues regarding the Confrontation Clause must be examined on a case-by-case basis, taking into account both the defendant's right of cross-examination and risk factors associated with the admission of the evidence. When there is a conflict between the Confrontation Clause and the Rules of Evidence, the Constitution should control, but where possible, such inconsistency should be removed by reasonable construction. Lopez, 18 S.W.3d at 222-23.
In Lopez, the issue addressed was, in a case involving a sexual offense, whether the Confrontation Clause requires that previous false accusations of sexual abuse against a person other than the defendant be admissible, notwithstanding Tex. R. Evid. 608(b)'s specific prohibition. Id. at 223. The Court analyzed cases from other jurisdictions, many of which authorize a special exception in cases of sex offenses, allowing admission of prior false accusations of abuse by the complainant despite evidentiary rules to the contrary. Because Texas cases do not favor the creation of a special exception to the Rules of Evidence for sex offenses, and finding the rationale of the cases from other jurisdictions unpersuasive, the Texas Court of Criminal Appeals refused to create a per se exception to Rule 608(b) for such offenses. Id. at 225. However, the Court did recognize that the requirements of the Confrontation Clause may, occasionally, require that certain evidence be admissible notwithstanding that it should be excluded under the Rules of Evidence. Id. at 225. See also Puderbaugh v. State, 31 S.W.3d 683, 687 (Tex. App.-Beaumont 2000, pet. ref'd).
In order to make such a determination, the appellate court must balance the probative value of such evidence against the risks entailed by its admission. Id. at 225. In Lopez, the Court noted that the alleged incident had occurred when the alleged victim and the defendant were alone, and there was no other evidence pointing to the defendant's guilt. Id. at 225. We have a similar situation in the present case; the record shows there were no witnesses to the events allegedly occurring between N.B. and Benjamin. Further, while the medical evidence is not inconsistent with sexual abuse of the child, it does not conclusively establish that abuse or Benjamin's involvement. As was the case in Lopez, the trier of fact must make an evaluation of the credibility of the complainant in order to make its determination.
In Lopez, the complainant had previously allegedly falsely accused his mother of physical, rather than sexual, abuse, by throwing him against a washing machine. The Texas Court of Criminal Appeals determined this refusal to admit such evidence was not an abuse of discretion by the trial court because 1) the complaint was not established to be false; and 2) the allegation of such physical abuse had almost nothing in common with the allegations in question at trial, i.e., the aggravated sexual assault of a child by compelling the child to perform oral sex on the defendant. Id. at 226.
In the present case, N.B. denied ever telling anyone her Uncle Tim is the one who had sex with her; she further denied ever telling anyone her Uncle Tim beat up her mother and had sex with her. On the other hand, S.B. testified N.B. acknowledged making such statements and further acknowledged that she was "only playing" when she made them. As in Lopez, the evidence of the truth or falsity of the allegation was not conclusively established. Further, there is a dissimilarity, as in Lopez, between the activity alleged to have occurred in the allegedly false statement (which related to the alleged assault and sexual assault of the mother), and the allegations of sexual misconduct with a child, with which Benjamin was charged in this case. Although there was some indication in the record that defense counsel may have thought N.B. had previously falsely accused her uncle of sexual abuse, the record, as cited above, clearly shows the allegedly false prior accusation concerned her uncle and her mother, not the complainant.
We find the trial court did not abuse its discretion. This point is overruled.
The judgment of the trial court is affirmed.
Ben Z. Grant
Justice
Date Submitted: March 1, 2002
Date Decided: May 10, 2002
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