NO. 12-06-00190-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CARLA DINGER, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION ON REHEARING
Appellant Carla Dinger filed a motion for rehearing, which is overruled. The court’s opinion of June 20, 2007 is hereby withdrawn, and the following opinion is substituted in its place.
Appellant Carla Dinger was convicted of sexual assault of a child and sentenced to twenty years of imprisonment with a fine of $10,000.00. In two issues, Appellant alleges that the trial court improperly limited her cross examination of two witnesses and that the trial court erroneously allowed the prosecution to present evidence of extraneous bad acts without first giving adequate notice. We affirm.
Background
On December 9, 2004, Appellant was charged by indictment with sexual assault of a child. The victim was her stepson, J.D. The offense charged related to one of many sexual encounters Appellant had with J.D., who was a teenager at the time of the encounters. As a result of her sexual encounters with J.D., Appellant became pregnant and bore a child, T.D, who was approximately five years old at the time of Appellant’s indictment. During their relationship, Appellant had also introduced J.D. to illegal drugs, regularly providing him with methamphetamine and showing him how to use it.
Appellant pleaded guilty to the offense on April 25, 2006 and elected to have her punishment assessed by a jury. That jury sentenced her to twenty years of imprisonment and fined her $10,000.00. This appeal followed.
Limits on Cross Examination
In her first issue, Appellant argues that the trial court improperly limited her cross examination of J.D. and his biological mother. Specifically, she contends that she should have been allowed to cross examine J.D. and his mother about J.D.’s alleged behavioral problems before his sexual relationship with Appellant and about J.D.’s mother’s plans to send J.D. to live with Appellant. Appellant argues further that by these limitations, the trial court denied her the opportunity to rebut the false impression created by these witnesses that J.D.’s mental health and drug abuse problems stemmed solely from his sexual relationship with Appellant and to rebut the false impression that Appellant “lured” J.D. away from his biological mother and into her own household.1 Appellant contends this testimony was relevant to punishment as mitigating evidence. Appellant also argues that her federal constitutional right to confront the witnesses against her was violated when the trial court limited her cross examination of these witnesses.2
Standard of Review
Generally, we review a trial court’s decision to exclude evidence under an abuse of discretion standard. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Absent an abuse of discretion, we will not reverse a trial court’s decision to exclude evidence. See Burden, 55 S.W.3d at 615. Under an abuse of discretion review, we will uphold the trial court’s ruling on the admission or exclusion of evidence if the ruling was proper under any legal theory or basis applicable to the case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).
The trial court prohibited these areas of cross examination on two grounds. First, the trial court ruled that the evidence in question was not relevant to punishment under article 37.07 of the Texas Code of Criminal Procedure.3 Second, the trial court ruled that the evidence in question should be excluded pursuant to Rule 403 of the Texas Rules of Evidence.4 Appellant challenges the trial court’s ruling that the evidence was not relevant to punishment under article 37.07. However, even if the evidence was relevant to punishment under article 37.07, evidence that runs afoul of Rule 403 may (and should) still be excluded. See Boone v. State, 60 S.W.3d 231, 239-40 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d). Appellant has not challenged the trial court’s Rule 403 ruling as improper under Rule 403 itself. Because the unchallenged Rule 403 ground supports the trial court’s overall ruling, we do not address whether the evidence was, in fact, relevant to punishment under article 37.07. The only remaining question is whether the Sixth Amendment to the United States Constitution trumps the trial court’s Rule 403 ruling.
Discussion
The Sixth Amendment provides in pertinent part that “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The right to confront opposing witnesses necessarily includes the right to cross examine. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). Cross examination serves three general purposes: (1) cross examination may serve to identify the witness with his community so that independent testimony may be sought and offered concerning the reputation of the witness for veracity within that community; (2) cross examination allows the jury to assess the credibility of the witness; and (3) cross examination allows facts to be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. See Alford v. United States, 282 U.S. 687, 691-92, 51 S. Ct. 218, 219, 75 L. Ed. 624 (1931). The right of confrontation is violated when appropriate cross examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996) (plurality opinion) (citing Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987)).
The scope of appropriate cross examination is necessarily broad. Id. A defendant is entitled to pursue all avenues of cross examination reasonably calculated to expose a motive, bias, or interest for the witness to testify. Lewis v. State, 815 S.W.2d 560, 565 (Tex. Crim. App. 1991). It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial court from imposing any limits on defense counsel’s inquiry. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). On the contrary, trial courts retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross examination. Id. While the breadth of a trial court’s ability to limit cross examination has not been fully explored by our courts, it is clear that a trial court may limit cross examination when a subject is exhausted, or when the cross examination is designed to annoy, harass, or humiliate, or when the cross examination might endanger the personal safety of the witness. See Carroll, 916 S.W.2d at 498. Likewise, a trial court may limit cross examination to prevent unfair prejudice, confusion of the issues, or repetitive or marginally relevant interrogation. See id. (citing Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435).
“[T]he Confrontation Clause will prevail if there is a conflict between it and the Rules of Evidence.” Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). Rule 403 prohibits cross examination where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” See Tex. R. Evid. 403. It is clear from the language of the rule that Rule 403 falls within the exceptions to the right of confrontation that have been already delineated by our courts. See Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Carroll, 916 S.W.2d at 498. It is, therefore, equally clear that Rule 403 does not directly conflict with the Confrontation Clause. See Nevels v. State, 954 S.W.2d 154, 157 (Tex. App.–Waco 1997, pet. ref’d). Consequently, we are left with two questions. First, we must ascertain “whether the Confrontation Clause requires us to carve out a special exception to the Rules of Evidence for sexual offenses.” See Lopez, 18 S.W.3d at 223. Second, even if no general exception is required, we must consider whether the Confrontation Clause trumps Rule 403 “under the facts of this case.” See id. at 225.
Regarding our first question, the Texas Court of Criminal Appeals has previously been presented with a similar question in the context of a trial court’s limiting of cross examination based on Rule 608(b) of the Rules of Evidence.5 See id. at 223. After carefully considering the special nature of sexual offense cases and the wisdom behind Rule 608(b), the court stated as follows:
It makes no sense to say that certain factors will always be present in a case involving a sexual offense but will never be present in a case involving a different type of offense . . . . We see no reason to create a special exception to Rule 608(b) today. A more logical approach is to look at each individual case to determine whether the Confrontation Clause demands the admissibility of certain evidence.
Id. at 225. This logic seems equally applicable to Rule 403. Further, Rule 403 has been interpreted, in the context of a sexual offense case, as being in harmony with the Confrontation Clause. See Nevels, 954 S.W.2d at 157. Therefore, we decline to recognize a general exception to Rule 403 for sexual offense cases. Cf. Lopez, 18 S.W.3d at 225.
We now turn to the question of the application of the Confrontation Clause to “the facts of this case.” See id. “In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail.” Id. at 222. As stated above, Rule 403 prohibits cross examination where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” See Tex. R. Evid. 403. Therefore, by making a ruling based on Rule 403, the trial court balanced the pertinent factors in a manner consistent with that required by the Confrontation Clause. See Nevels, 954 S.W.2d at 157. Because that ruling has not been challenged on appeal, we need not review the trial court’s analysis.
The trial court found that the probative value of the testimony in question was substantially outweighed by Rule 403 concerns. Because Rule 403 falls within the exceptions to the right of confrontation that have been delineated by our courts, and because Rule 403 only allows for the exclusion of testimony where its probative value is substantially outweighed by concerns found within these exceptions, no additional weighing by this court is necessary. Testimony properly excluded under Rule 403 is also properly excluded under the Confrontation Clause. See Nevels, 954 S.W.2d at 157 (“The trial court found that the probative value of A.A.’s testimony regarding her employment as a stripper was substantially outweighed by its prejudicial effect. Consequently, because the trial court may limit the cross-examination of a witness for such reason without violating a criminal defendant’s constitutional right to confrontation of witnesses, we conclude that the trial court did not err in limiting Nevels’ cross-examination of A.A.”) (citing Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Carroll, 916 S.W.2d at 498). Therefore, because Appellant has not directly attacked the trial court’s Rule 403 ruling, we hold that the trial court did not err in limiting Appellant’s cross examination. We overrule Appellant’s first issue.
Extraneous Bad Act Evidence
In her second issue, Appellant complains that the trial court erroneously allowed the prosecution to present evidence of extraneous bad acts without first giving her the required notice pursuant to article 37.07, section 3(g).6
Standard of Review
We review claims challenging the admission of evidence of extraneous bad acts for an abuse of discretion. Wallace v. State, 135 S.W.3d 114, 118 (Tex. App.–Tyler 2004, no pet.). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. Absent an abuse of discretion, we will not reverse a trial court’s decision to admit such evidence. See Roethel v. State, 80 S.W.3d 276, 280 (Tex. App.–Austin 2002, no pet.). Under an abuse of discretion review, we will uphold the trial court’s ruling on the admission of such evidence if the ruling was proper under any legal theory or basis applicable to the case. See Martinez, 91 S.W.3d at 336.
If an abuse of discretion is found because the state’s notice to the defendant was unreasonable, a harm analysis is required under Texas Rule of Appellate Procedure 44.2. Wallace, 135 S.W.3d at 118. In this analysis, we examine the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. Id. In determining the latter, we will look at whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross examination or mitigating evidence. Id. at 118-19.
Discussion
Appellant complains of the trial court’s failure to suppress evidence of at least five separate bad acts. However, Appellant provides record citations regarding the admission of only one of these bad acts, that J.D. touched Appellant’s breast when he was approximately eleven years of age and Appellant did nothing to correct the touching.
Rule 38.1(h) of the Texas Rules of Appellate Procedure provides that an appellate brief shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” When an appellant does not adequately comply with Rule 38.1(h), nothing is presented for appellate review. See State v. Gonzalez, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993); Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d).
Because Appellant does not provide specific citations to the record indicating what particular admitted testimony she complains of, we cannot determine whether testimony regarding four of the five bad acts was ever admitted. “As an appellate court, it is not our task to pore through hundreds of pages of record in an attempt to verify an appellant’s claims.” Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995). Therefore, Appellant has failed to present for review any error regarding the admission of testimony relating to these four bad acts. See Alvarado, 912 S.W.2d at 210; Gonzalez, 855 S.W.2d at 697; Nguyen, 177 S.W.3d at 669.
In regard to the breast touching incident, the record reflects that Appellant and her lead trial counsel were both present at a deposition where this incident was explored extensively at least four months before her criminal trial. Under such circumstances, Appellant has failed to show that she was surprised by the substance of the testimony or that her ability to prepare cross examination or mitigating evidence was affected. Further, Appellant has presented no evidence of prosecutorial bad faith in failing to give the required notice. Therefore, the trial court’s error, if any, in admitting the testimony was harmless. See Wallace, 135 S.W.3d at 118-19. We overrule Appellant’s second issue.
Disposition
We affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 8, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 For the purpose of our review, we have assumed, without deciding, that a false impression was created by the testimony.
2 See U.S. Const. amend. VI (containing what is commonly referred to as the Confrontation Clause). The United States Supreme Court has held that, by way of the Fourteenth Amendment, the Sixth Amendment Confrontation Clause applies to state criminal prosecutions. See Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923 (1965).
3 Article 37.07 states in pertinent part as follows:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006).
4 Rule 403 reads as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
Tex. R. Evid. 403.
5 Rule 608(b) reads as follows:
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.
Tex. R. Evid. 608(b).
6 Section 3(g) provides as follows:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.
Footnote continued.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon 2006).