AFFIRM; and Opinion Filed August 11, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00127-CR
No. 05-13-00128-CR
LEWIS MICHAEL WALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 219-80388-2011, 219-80389-2011
MEMORANDUM OPINION
Before Justices Fillmore, Evans, and Lewis
Opinion by Justice Lewis
In a trial based on two indictments, the jury found appellant Lewis Michael Wall guilty of
two counts of prohibited sexual conduct, two counts of sexual assault of a child, and one count of
indecency with a child. The jury assessed his punishment at twenty years’ imprisonment each
for the prohibited sexual conduct and sexual assault counts and ten years’ imprisonment for the
indecency count. Appellant contends the trial court erred by denying his motion for new trial
and admitting certain prior consistent statements and character evidence. Appellant also
challenges the sufficiency of the evidence regarding instances of sexual assault and prohibited
conduct that involved oral sex. We issue this memorandum opinion because the law to be
applied in the case is well settled. TEX. R. APP. P. 47.4. We affirm the trial court’s judgments.
Background
Appellant married the complainant’s mother when the complainant was a baby; he
adopted the complainant when she was a teenager. She alleges appellant sexually abused her
from the time she was four years old until the summer after she graduated from high school.
During that time period, the complainant reported and then recanted reports of abuse three times.
When she was seven or eight years old, and living in Georgia with her mother and
appellant, the complainant told her mother appellant was touching her vagina. Her mother called
the police, and appellant moved out. But her mother was emotionally distraught, and the
complainant testified she recanted for her mother’s sake. Appellant then returned to the family
home.
After about six months, the complainant testified, the abuse started up again. Appellant’s
conduct escalated to oral sex and, by the time the complainant was sixteen years old, appellant
was having sexual intercourse with her. The complainant again told her mother; her mother
called the police, and appellant left the house. But after a few months the complainant recanted
again, after seeking help from appellant when she had been involved in an automobile accident.
Shortly after appellant moved back in with the complainant and her mother the second
time, he was laid off from his job. Appellant and the complainant moved to Texas and stayed for
several weeks at an apartment at the Shops at Legacy in Plano. The complainant testified
appellant continued to have sexual intercourse and oral sex with her at that apartment. After
those weeks at the Legacy apartment, the complainant’s mother joined them in Texas, and the
family moved to a new apartment.
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Soon after the move, when the complainant had started attending school in Plano, her
mother caused a report to be made to Child Protective Services. 1 The complainant underwent a
forensic interview, but she denied any abuse. At trial, she testified she had hoped for a fresh start
in Texas and wanted to avoid any further embarrassment.
Finally, after her high school graduation, the complainant confided the abuse to her
boyfriend during an argument. At his insistence, she told the boyfriend’s parents, and then the
police. The complainant moved in with her boyfriend’s family for the remainder of the summer.
She went on to attend college, and she had no further contact with appellant.
Appellant was found guilty of two counts of prohibited sexual conduct, two counts of
sexual assault of a child, and one count of indecency with a child. The jury assessed his
punishment at twenty years’ imprisonment each for the prohibited sexual conduct and sexual
assault counts and ten years’ imprisonment for the indecency count. This appeal followed.
Rule 705 Hearing
In his first issue, appellant complains the trial court erred in denying his motion for new
trial. Appellant contends he was denied a meaningful hearing to ascertain the expert opinions—
and the support for those opinions—to be proffered by the State’s expert from the Children’s
Advocacy Center, Janette Michaels. Appellant complains specifically that the State elicited only
general opinions from Michaels at the hearing, but at trial Michaels testified to undisclosed and
unsupported opinions concerning recantation statistics. At the hearing on appellant’s motion for
new trial, appellant’s expert testified that Michaels’s statistical testimony was incorrect.
We review the denial of a motion for new trial for an abuse of discretion. Smith v. State,
286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The defense is entitled to question a State expert
concerning the bases of her opinions:
1
The mother testified she told her doctor about the abuse, and he made a report to the police.
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Prior to the expert giving the expert’s opinion or disclosing the underlying facts or
data, a party against whom the opinion is offered upon request in a criminal case
shall, or in a civil case may, be permitted to conduct a voir dire examination
directed to the underlying facts or data upon which the opinion is based. This
examination shall be conducted out of the hearing of the jury.
TEX. R. EVID. 705(b). Our review of the record of the 705 hearing indicates that many of the
areas of questioning were indeed discussed very generally. Moreover, whenever appellant’s
counsel asked Michaels for authority for a proposition, the expert simply stated she had not
brought authorities with her.
The State contends appellant did not preserve his objection to Michaels’s testimony, but
appellant’s counsel did object to the generality of the State’s proffer of opinions and to the
witness’s inability to cite to any authority for her opinions. That said, appellant’s complaints on
appeal are limited to Michaels’s opinions on recantation. When that subject was addressed at the
hearing, appellant’s counsel stated:
Now I don't have a problem in general with generalized questions saying do
children recant. Are all recantations truthful.
I do acknowledge in the literature that people say children recant. You know, I
mean, I’m sure there are instances in which victims stick with their perpetrators.
How that would be applicable in this case can’t be asked in a generalized fashion.
It would have to be rooted to some facts in the case.
And although the witness’s lack of authority was addressed, counsel conceded there was an
adequate basis for the expert’s opinions on this issue, stating: “Recantations, I’ll take her word
that there’s a basis for that.” So in terms of recantation opinions that were expressed at the
hearing, we agree that appellant has not preserved error.
But appellant’s fundamental complaint in this Court is that Michaels was permitted to
express recantation opinions that were not disclosed at the hearing. On direct examination,
Michaels testified generally that recanting is “a lot of times part of the disclosure process.” On
cross, however, appellant’s counsel began challenging Michaels to give specifics concerning
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percentages of children who recant, and how many are valid. After eliciting agreement that
some recantations are valid and some are not, appellant’s counsel pressed on:
COUNSEL: Well, you know, you can’t sit here and say and cite a statistic about
that. I mean, do you have any reason to believe like what percentage of
recantations are invalid?
WITNESS: I’m not even sure what you’re asking me.
Q: You know, most of them? More than half? Less than half?
A: Of recantations how many are valid?
Q: Yeah.
A: My recollection of the research is that a majority of them are not valid.
Q: Okay. Do you have any sources for that?
A: Again, I did not bring literature today.
Thus, appellant’s counsel elicited the opinion that was not disclosed during the hearing. He
argues the questions were necessary once the witness testified on direct that recantation happens
“a lot.” But appellant did not object then to the undisclosed opinion. Instead he pressed the
witness for statistical corroboration on cross examination and ended up with the witness’s
“recollection” that was unfavorable to appellant. He succeeded in discrediting the “recollection”
when the expert could not cite authority for the opinion. But appellant cannot complain, in
essence, that the witness answered his question. When a question invites an inadmissible
response, any error is invited. See Jenkins v. State, 948 S.W.2d 769, 776 (Tex. App.—San
Antonio 1997, pet. ref’d); see also Gray v. State, No. 05-04-01269-CR, 2005 WL 1670715, at *9
(Tex. App.—Dallas July 19, 2005, no pet.) (not designated for publication) (“Defense counsel
elicited the first response by asking an open-ended question and cannot complain of error he
invited.”).
We conclude the trial court did not abuse its discretion in denying appellant’s motion for
new trial. We overrule his first issue.
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“Opening the Door”
In his second and third issues, appellant contends the trial court erred by admitting (a)
prior consistent statements of the complainant, and (b) testimony vouching for the complainant’s
character for truthfulness, when it was the State—and not appellant—who first addressed the
complainant’s credibility. We review a trial court’s decision to admit evidence for an abuse of
discretion. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).
Under the heading of prior consistent statements, appellant complains that the trial court
admitted video interviews of the outcries the complainant made as a child in Georgia. Our rules
of evidence declare that a statement is not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is . . . consistent with the declarant’s
testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive.
TEX. R. EVID. 801(e)(1)(B). Appellant argues the interviews were inadmissible because the
evidence they were “offered to rebut” was offered by the State itself on direct.
Appellant also complains of the court allowing the State to call two witnesses to testify to
the complainant’s character for truthfulness. Rules concerning admissibility of character
evidence for truthfulness are similar to those for prior consistent statements. We begin with the
assumption that every witness has a truthful character. Michael v. State, 235 S.W.3d 723, 725
(Tex. Crim. App. 2007). If that character is attacked, then evidence may be offered of the
witness’s good character for truthfulness. Id.; see also TEX. R. EVID. 608(a)(2) (“evidence of
truthful character is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise”).
In both instances, appellant argues the evidence should not have been allowed in rebuttal
because it was the State, not the appellant, who first “opened the door” to evidence of the
complainant’s truthfulness. Our review of the record indicates the State did question the
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complainant concerning her earlier outcries and recantations during the State’s direct
examination. However, if the State anticipates an attack on the witness’s credibility, it may
address such issues and still introduce the witness’s prior consistent statement on rebuttal, so
long as the witness was actually “impeached on cross-examination with an express or implied
accusation of recent fabrication.” Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App.
2007).
Appellant argues the State could not have anticipated such an attack because he made no
opening statement, and the complainant was the first witness called at trial. The State points to
appellant’s voir dire questioning, in which appellant’s counsel asked the panel a series of
questions concerning the propensity of teenagers to fabricate stories. He asked, “Do you ever
think that it’s possible a teenager would lie or create a false scenario in order to get something
that they want?” He asked variations on the question, but all were rooted in fabrication: “Do
you think it’s possible that a teenager would construct a scenario?” or “construct a story” or
“construct scenarios that aren’t true?” He asked a potential juror, “What’s your reaction if I say
teenagers sometimes manufacture these stories?” He asked a parent of a teen, “Do you have
situations in which she’s concocted falsehoods?” And he asked a parent of grown children, “Did
you have any problems with them manufacturing stories when they were teenager[s]?” This line
of questioning fills approximately thirteen pages of the defense’s voir dire examination. 2
Appellant’s counsel argued at submission that challenges to credibility are both
ubiquitous and necessary in voir dire. He contends that treating every voir dire credibility
challenge as a suggestion of fabrication would allow admission of credibility-bolstering
2
In his reply brief, appellant argues that the State’s voir dire addressed recantations, so appellant was merely responding to that “open
door.” But appellant addressed recantations, responding to the State’s questions on the subject, in a portion of his voir dire separate and apart
from the portion dedicated to teenagers and fabrication.
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statements in every trial. The Hammons court addressed the distinction between a mere
challenge to credibility and a charge of fabrication:
There is no bright line between a general challenge to memory or credibility and a
suggestion of conscious fabrication, but the trial court should determine whether
the cross-examiner’s questions or the tenor of that questioning would reasonably
imply an intent by the witness to fabricate.
Hammons, 239 S.W.3d at 805. We apply this same test to appellant’s voir dire questioning. We
conclude appellant’s voir dire questions establish with certainty that appellant intended to paint
the complainant as a fabricator. And that intent is confirmed by the tenor of appellant’s cross-
examination of the complainant and his closing argument, where his counsel opined:
I think, however, this is a story. She got on a train that she couldn’t stop. She told
that story and she has to stick by it.
See id. at 806, n.20 (“Thus, the assertion, during closing argument, that the witness’s testimony
was affected by an improper motive, may confirm the correctness of the trial court’s decision to
admit a prior consistent statement.”).
We conclude the State correctly anticipated that appellant’s intent in this case was to
argue the complainant had fabricated her charges of abuse. Accordingly, the trial court did not
abuse its discretion in allowing the State to offer the complainant’s prior consistent statements in
rebuttal. We overrule appellant’s second issue.
The test is similar for admission of the testimony of the two witnesses concerning
complainant’s character for truthfulness. When deciding whether to admit the testimony of such
witnesses,
the question for the trial judge is whether a reasonable juror would believe that a
witness’s character for truthfulness has been attacked by cross-examination,
evidence from other witnesses, or statements of counsel (e.g., during voir dire or
opening statements).
Michael, 235 S.W.3d at 728. We conclude appellant’s voir dire and cross-examination would
cause a reasonable juror to believe the complainant’s character for truthfulness had been
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attacked. See id. The trial court did not abuse its discretion in admitting the testimony of the
character witnesses. We overrule appellant’s third issue as well.
Sufficiency of Evidence
In his fourth issue, Wall contends the evidence is insufficient to establish he had oral sex
with the complainant at the time and place charged by the State. In reviewing a challenge to the
legal sufficiency of the evidence, we examine the evidence in the light most favorable to the
judgment to determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellant’s argument is based on two brief exchanges at trial. The first took place during
the complainant’s direct examination by the State:
Q: So what else would he do there in Plano when y’all first moved besides he
would have sexual intercourse with you? What other parts of his body would
touch you?
A: He would still make me give him oral sex like if I was on my period or
something.
Q: Make you put your mouth on his penis?
A: Yes, ma’am.
And then the second took place on the complainant’s cross examination by appellant’s counsel:
Q: As I understand it you get to Texas in what, about July of 2008?
A: June or July, yes, sir.
Q: And you move into the Legacy Shops, right?
A: Yes, sir.
Q: And you lived there for about what, two weeks before you go get Pam and
come back?
A: Yes, sir.
Q: And I guess part of that time you said you were on your period?
A: No.
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Appellant argues these exchanges prove he did not have oral sex with the complainant during the
time the family lived in the Legacy apartment, because the complainant testified she was not on
her period during those weeks.
We do not read the two exchanges to yield such certainty. When appellant’s counsel
asked the complainant what other parts of appellant’s body touched her during this specific time
period, she responded that appellant would still make her give appellant oral sex. She qualified
her answer only to explain when appellant demanded oral sex: “like if [the complainant] was on
[her] period or something.” (Emphasis added). But counsel did not follow up to determine when
“something” else would have occasioned appellant’s demand. Likewise, counsel did not clarify
the ambiguity created by his question: “And I guess part of that time you said you were on your
period?” Appellant assumes the complainant’s negative response meant she was not on her
period during the time she lived in the Legacy apartment. But her response could also have
meant that she had not said she was not on her period during that time—and, indeed, she had not
said that.
We conclude the complainant’s testimony relied upon by appellant did not exclude the
possibility that appellant engaged her in oral sex while they lived at the Legacy apartment. The
complainant’s testimony is sufficient, standing alone, to support the conviction. See TEX. CODE
CRIM. PROC. ANN. art. 38.07(b)(1) (West Supp. 2013). The jury’s duty is to determine the
credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d
900, 903 (Tex. Crim. App. 2012). Looking at the complainant’s testimony in the light most
favorable to the trial court’s judgment, we conclude a rational juror could have concluded
appellant was guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
We overrule appellant’s fourth issue.
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Conclusion
We have decided each of appellant’s issues against him. We affirm the trial court’s
judgments.
/David Lewis/
DAVID LEWIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130127F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LEWIS MICHAEL WALL, Appellant On Appeal from the 219th Judicial District
Court, Collin County, Texas
No. 05-13-00127-CR V. Trial Court Cause No. 219-80388-2011.
Opinion delivered by Justice Lewis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 11th day of August, 2014.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LEWIS MICHAEL WALL, Appellant On Appeal from the 219th Judicial District
Court, Collin County, Texas
No. 05-13-00128-CR V. Trial Court Cause No. 219-80389-2011.
Opinion delivered by Justice Lewis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 11th day of August, 2014.
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