COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00253-CR
Joe Dale Johnson § From the 89th District Court
§ of Wichita County (48,790-C)
v. § February 14, 2013
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment. It is ordered that the judgment of the
trial court is reversed as to the indecency with a child by contact conviction and
sentence, that that conviction and sentence are set aside, and that Appellant is
acquitted of Count Three of the indictment. It is further ordered that the trial court’s
judgment is reversed as to the two aggravated sexual assaults alleged in Counts
One and Two of the indictment, and this case is remanded to the trial court for a
new trial on those two counts only.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Ann Dauphinot
2
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00253-CR
JOE DALE JOHNSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Joe Dale Johnson of two counts of aggravated
sexual assault of a child and one count of indecency with a child, enhanced, and
assessed his punishment at life imprisonment. The trial court sentenced him
accordingly. In three issues, Appellant argues (1) that the evidence is insufficient to
support his conviction for indecency with a child by contact because such alleged
1
See Tex. R. App. P. 47.4.
3
contact is subsumed in the first count of aggravated sexual assault of a child and
convictions for both violate double jeopardy protections; (2) that the trial court
abused its discretion by excluding evidence that the complainant had sexually
assaulted his younger sister; and (3) that the trial court abused its discretion by
admitting evidence of Appellant’s thirty-year-old prior conviction at the guilt phase of
trial. Because the evidence is insufficient to support both Count One and Count
Three, we reverse the trial court’s judgment as to Count Three, set aside Appellant’s
conviction and sentence for indecency with a child by contact, and enter a judgment
of acquittal on Count Three. Because the trial court reversibly erred by refusing to
allow Appellant to correct a confusing or misleading impression on the jury by
putting on evidence of the complainant’s prior, sexual misconduct, we reverse the
trial court’s judgment as to Counts One and Two and remand this cause to the trial
court for a new trial on those counts.
Background Facts
Complainant H.H. was a twelve-year-old boy who was participating in court-
ordered counseling for sexually molesting his ten-year-old sister over several years.
He had also been caught shoplifting and had strained relationships with his parents.
Appellant, a man in his fifties and a board member of the church that he and the
complainant attended, had previously been convicted of a sexual offense against a
teenage boy thirty years before in Kansas. Appellant and the complainant spent
time together, and the complainant accepted work mowing Appellant’s and other
church members’ lawns for pay. The complainant testified that Appellant had lured
4
him into Appellant’s study and that Appellant had seduced him into allowing
Appellant to perform fellatio on him and sought to have the complainant perform
fellatio on Appellant. The complainant eventually told the youth minister, who was
never interviewed by law enforcement and did not testify at trial, what had
happened. The youth minister went to the complainant’s parents to tell them what
their son had told him. The parents, in turn, reported what they had been told to the
Burkburnett Police Department. The purported offenses were alleged to have
occurred in April 2007.
At trial, Appellant sought to elicit testimony that the complainant had been
adjudicated delinquent for sexually molesting his ten-year-old sister and, among
other things, was in court-ordered counseling as a result. On appeal, Appellant
argues that the excluded evidence (1) was admissible to rebut the false impression
the State had left with the jury regarding the primary reason the complainant was in
counseling, thereby opening the door for the sexual abuse evidence; (2) impeached
the complainant’s testimony that his guilt in being the victim of sexual abuse was
relieved when he made his outcry; and (3) supported the defense’s theory that the
complainant had fabricated the abuse allegations against Appellant to get attention
and sympathy for himself. In the trial court, Appellant offered the evidence on the
basis that under the Sixth Amendment, cross-examination is the fundamental right
of a defendant, affecting due process. He argued that the evidence showed the
complainant’s mental state at the time he made the outcry and what he was in
counseling for. He also argued that the complainant’s past sexual behavior could be
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motive or bias for making the outcry, not only for deception, but to get attention, and
that the evidence was admissible to show the complainant’s knowledge of sexual
matters.
Double Jeopardy
In his third issue, Appellant argues that because the crime of indecency with a
child by contact, as alleged in Count Three of the indictment, was subsumed in the
crime of aggravated sexual assault of a child as alleged in Count One of the
indictment, the evidence is insufficient to show that Appellant committed a separate
indecency offense as alleged in the indictment. He further argues that having two
convictions rely on the same act of touching violates double jeopardy protections.
The record clearly shows that the sexual contact proved at trial occurred during and
as part of the aggravated sexual assault alleged in Count One. As the State
candidly concedes, to allow both convictions to stand would violate the double
jeopardy clause of the Constitution of the United States.2 Because the contact
alleged in Count Three was subsumed in the aggravated sexual assault of a child
alleged in Count One, we sustain Appellant’s third issue. We reverse the trial
court’s judgment as to Count Three, set aside Appellant’s conviction and
2
See U.S. Const. amend. V; Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct.
2221, 2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990)
(op. on reh’g).
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punishment for indecency with a child by contact as alleged in Count Three,3 and
enter a judgment of acquittal on Count Three.4
Evidentiary Issues
The Complainant’s Prior Bad Acts
In his first issue, Appellant contends that the trial court erred by excluding
evidence in violation of the Sixth Amendment, the Due Process Clause, and rules of
evidence 404(B) and 412 that the complainant had sexually assaulted his younger
sister. Appellant argues that “[t]he evidence that the alleged victim had sexually
molested his little sister was admissible because the State left a false impression
with the jury during its direct exam of the alleged victim and because it was
admissible to show his mental status at the time of his alleged outcry.”
The State concedes that Appellant preserved his constitutional complaint but
argues that he failed to preserve that portion of his complaint concerning the State’s
creating a false impression. After reviewing the record, we disagree. In offering the
evidence, defense counsel argued,
3
See Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008) (retaining
first-degree felony as “most serious offense” over second-degree felony with
identical sentence); Ex parte Pruitt, 233 S.W.3d 338, 348 (Tex. Crim. App. 2007)
(holding genital contact subsumed within alleged incident of penetration is lesser
included offense of penetration); Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim.
App. 2004) (holding penile contact with genitals in course of penile penetration
subsumed).
4
See Bigon, 252 S.W.3d at 373.
7
And the Merch case and others have said that the—the person’s
mental state at the time that, you know, he—he makes this outcry, I
think is relevant and what’s going on in his head. And he said that it
affected his mental state. That’s what he was in counseling for and so I
think it goes in for that.
Indeed, Appellant’s entire defense was an attempt to show that the State was
creating the false impression that the complainant was a victim, a child who was
emotionally distraught over being victimized and sufficiently innocent to be
embarrassed to discuss it. The State wanted to create the impression with the jury
that the complainant was truthful; Appellant wanted to show the jury that the
complainant was a liar. Appellant’s position throughout the trial, which he has
maintained on appeal, was that the State created the false impression that the
complainant was innocent in sexual matters. That was an impression that Appellant
sought to dispel at trial and now seeks to dispel on appeal. We therefore hold that
Appellant sufficiently preserved this entire issue for appellate review.
Outside the presence of the jury, the complainant testified that he had
sexually abused his younger sister both before and after Appellant’s sexual assaults
on him. The complainant also testified that his parents put him in counseling
because he was sexually abusing his sister. There was evidence that the
counseling was court-ordered as a result of the complainant’s sexual abuse of his
younger sister over several years. Sexual abuse of his sister was one of the things
that the complainant was struggling with in November 2007 and contributed to his
emotional difficulties. Before the jury, however, the complainant’s father testified
that the complainant was being bullied at school, suffering from depression, had a
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stressful relationship with his parents, and had been caught shoplifting. Watching
pornography was also an issue. The complainant’s father testified that those were
the reasons that he and his wife had placed the complainant in counseling,
although, when asked if the complainant was in counseling before April 2007, his
father testified that he could not remember when counseling began. The following
exchange occurred before the jury:
Q. Okay. And so he—you would agree with me that during the fall
of 2007, including November of ‘07—November of 2007, he was
dealing with a lot of issues, correct?
A. There were issues, yes.
Q. And he was having emotional difficulties, correct?
A. Yes.
Outside the presence of the jury, the complainant testified to the sexual abuse
of his sister. In the jury’s presence, he testified that Appellant had sexually abused
him. He also testified about his use of pornography and stealing. He said that he
had watched pornography for a long time. According to his father, the complainant
had viewed pornography at least since he was ten years old. But the complainant
also testified that he had gone four months without watching pornography until
Appellant influenced him to start watching pornography again. The complainant
also testified that he was angry at Appellant because Appellant had let him play with
a Nintendo DS that had been donated to the church but then took the DS away from
him. Then the complainant testified,
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Q. At some point you made the decision to tell someone about the
sexual acts [by Appellant against the complainant]?
A. Yes.
Q. Why did you decide to do that?
A. Because after the DS wasn’t allowed to come to the teen group,
I was at first pretty angry that I didn’t get the DS like I wanted,
but then I got to thinking about it and then I thanked Jimmy for
not letting us have it. That was the teen leader that didn’t allow it
to come through. And I told him that I was thankful for it[,] and
he said that—why are you glad that that didn’t happen? I said,
well, let’s just say I can’t tell you. And he said, well, that sounds
a lot like something that happened to me.
Q. And then—and then did you tell him what happened to you?
A. Yes.
Q. Did you tell him everything?
A. Yes.
Q. How did you feel when you told him?
A. I felt better, like a weight off my shoulders . . . .
The State argues that the rules of evidence and the family code prevented
impeachment by a juvenile adjudication and that the evidence was not relevant to
Appellant’s theory of fabrication. We disagree. The Texas Court of Criminal
Appeals has set out a hierarchy for situations in which there is a conflict between the
caselaw and its rules. Rule of Evidence 101(c) states that in criminal cases,
[h]ierarchical governance shall be in the following order: the
Constitution of the United States, those federal statutes that control
states under the supremacy clause, the Constitution of Texas, the
Code of Criminal Procedure and the Penal Code, civil statutes, these
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rules, and the common law. Where possible, inconsistency is to be
removed by reasonable construction.5
The Texas Court of Criminal Appeals addressed the appropriate balancing of
interests between rule 403 and a defendant’s right to confront and cross-examine
his accuser and to present his defense in a sexual assault case in Hammer v. State:
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.6
The Hammer court concluded that “the constitution is offended if the state
evidentiary rule would prohibit him from cross-examining a witness concerning
possible motives, bias, and prejudice to such an extent that he could not present a
vital defensive theory.”7
In presenting its case and in jury argument in the trial court, the State
repeatedly referred to the reluctance of a boy the complainant’s age to admit to the
5
Tex. R. Evid. 101(c).
6
296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (footnotes omitted).
7
Id. at 562–63.
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sexual acts that he claimed Appellant committed against him, essentially natural
shyness to speak of sexual matters. Further, the State repeatedly spoke of the
grooming that would cause an innocent young man to become the victim of a sexual
predator. Finally, the prosecutor began the State’s rebuttal final argument by
reminding the jury that he had told them during opening statement that “this case is
about a deviant man who took sexual advantage of a young boy . . . [,] how
[Appellant] took sexual advantage of [the complainant] for [Appellant’s] own
pleasure and . . . manipulated [the complainant,] . . . and these are the aftereffects
that you’ve heard about this week.” Final argument continued in this vein until the
very end.
The State left the impression with the jury that the complainant’s emotional
problems, watching pornography, conflict with his parents, and need for counseling
all arose as a result of his victimization by school bullies and by Appellant, who
caused him to participate in sexual activities. This was a false impression that
Appellant was entitled to rebut8 as part of his fundamental due process right to
confront and cross-examine witnesses against him in challenging the State’s case.9
8
See Renteria v. State, 206 S.W.3d 689, 697–98 (Tex. Crim. App. 2006)
(holding that exclusion of evidence showing the defendant’s remorse violated due
process by preventing defendant from rebutting the State’s case when the State left
jury with false impression and emphasized it).
9
See Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731
(2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful
12
The United States Supreme Court said in Pointer v. Texas,
There are few subjects, perhaps, upon which this Court and other
courts have been more nearly unanimous than in their expressions of
belief that the right of confrontation and cross-examination is an
essential and fundamental requirement for the kind of fair trial which is
this country’s constitutional goal. Indeed, we have expressly declared
that to deprive an accused of the right to cross-examine the witnesses
against him is a denial of the Fourteenth Amendment’s guarantee of
due process of law.10
Appellant was entitled to present his defense. As a fundamental right, the
Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense. The complainant had already been adjudicated delinquent for
sexually assaulting his younger sister. He was not particularly remorseful for that
conduct, and his actions resulted in strained relations with his parents and the need
for counseling. He was mad at Appellant, and, having been adjudicated delinquent
for sexually assaulting his younger sister, he knew firsthand or should have known
how damning and indefensible an accusation of sexual assault could be. Appellant
was entitled to correct the misleading characterization of the complainant that the
opportunity to present a complete defense.” (quoting Crane v. Kentucky, 476 U.S.
683, 690, 106 S. Ct. 2142, 2146 (1986)) (internal quotations and citations omitted));
see also California v. Trombetta, 467 U.S. 479, 486 n.6, 104 S. Ct. 2528, 2532 n.6
(1984) (“In related cases arising under the Sixth and Fourteenth Amendments, we
have recognized that criminal defendants are entitled to call witnesses on their own
behalf and to cross-examine witnesses who have testified on the government’s
behalf.” (citations omitted)); Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App.
2009) (op. on reh’g) (“[T]he trial court’s ruling disallowing cross-examination of the
State’s expert witness violated the defendant’s fundamental rights to a fair trial.”).
10
380 U.S. 400, 405, 85 S. Ct. 1065, 1068 (1965).
13
State had presented to the jury, but the trial court impermissibly limited his right to
cross-examine both the complainant and other witnesses against Appellant and to
present evidence. We therefore hold that the trial court abused its discretion by not
allowing Appellant to cross-examine the complainant and other adverse witnesses
with evidence of the complainant’s prior sexual victimization of his little sister.
Rule 44.2(a) of the Rules of Appellate Procedure provides that “[i]f the
appellate record in a criminal case reveals constitutional error that is subject to
harmless error review, the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable doubt that the error
did not contribute to the conviction or punishment.”11 Appellant was not allowed to
present his defense to the jury in any sense other than argument and innuendo. He
was not allowed to offer substantive evidence to rebut the picture of the complainant
painted by the State and to explain the bases of Appellant’s assertion that the
complainant was not the shy innocent who was devastated by sexual abuse
requiring counseling to repair the emotional damage. No scientific evidence, no
witness, no physical evidence, and no admission otherwise supported the
complainant’s allegations. It was simply a swearing match. We therefore cannot
say beyond a reasonable doubt that the error did not contribute to Appellant’s
convictions or punishment on the two remaining counts.
11
Tex. R. App. P. 44.2(a).
14
In summary, the State’s questioning of the complainant and his father painted
an incomplete and misleading picture of the complainant and the circumstances of
his outcry. By developing the testimony as it did, the State opened the door to
evidence that could have accurately conveyed why the complainant was in
counseling, what motivation he may have had to make up a false accusation, and
the degree to which he understood sexual matters and to which he personally
appreciated legal consequences imposed upon sex offenders.
It should be clear, however, that this opinion is not a green light for Appellant
in any subsequent retrial, or for other litigants in other similar cases, to explore in
detail the sexual exploits of the complainant or those in positions similar to that in
which the complainant finds himself in this case. It is the fact that, and the manner
in which, the State created a false impression that opened the door to evidence that
the complainant had sexual issues before he met Appellant. We stress that our
holding is confined to the record presented in this appeal. The details of the
complainant’s abuse of his sister, in terms of its nature, frequency, and duration,
may not be necessary to rebut the false impression that the complainant did not
have issues of a sexual nature before his alleged sexual encounter with Appellant.
With these reservations clearly understood, we sustain Appellant’s first issue, and
because of our disposition of this issue, we do not reach his second issue.12
12
See Tex. R. App. P. 47.1.
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Conclusion
Having sustained Appellant’s third issue, we reverse the trial court’s judgment
as to the indecency with a child by contact conviction and sentence, set aside that
conviction and sentence, and enter a judgment of acquittal as to Count Three of the
indictment. Having sustained Appellant’s first issue, we reverse the trial court’s
judgment as to the two aggravated sexual assaults alleged in Counts One and Two
of the indictment and remand this case to the trial court for a new trial on those
counts only.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 14, 2013
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