Terry, John v. State

A FF1 kM 11); aII(l ( )pinion Filed Vlarch 26, 20 I 3.

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Qitinrt tif Appiah
FiftI! Thtrtrt uif rxas at tlla
No. 05-1 2-00279-CR
No. 05-I 2-00295-CR

JOHN TKRIfl’, Appellant
V.
TIlE S1X[F (iF i’FXAS. Appellee

On ApptuiI troni the 203rd .JudiciaI L)istrict Court
Dallas County, Texas
Trial Court Cause Nos. F09—16254—1’ & F09—16253—P

OPINION
Before Justices Lang—Micrs, Murphy, and Fillmore
Opinion by Justice Fillmore
A jury convicted John Terry of two offenses of aggravated sexual assault of a child and

assessed punishment on each offense of a S5000 fine and seven years’ imprisonment, but

recommended that the imprisonment be probated. In six issues, Terry argues the trial court (1)

violated Terry’s right to confront the witnesses against him and abused its discretion under the

rules of evidence by not allowing Terry to impeach witnesses with evidence of the complainant’s

motive to fabricate the charges against him, (2) erred by denying Terry’s motion for new trial.

(3 ) erred by permitting the State to impeach Terry on his post—arrest silence, and (4) violated

article 36.16 of the code of criminal procedure by amending one of the jury charges in the guilt

phase of the trial after reading the charge to the jury. We affirm the trial court’s judgment.
 Background’

Sit, who was lilleen years old at the time of trial
4 testified that Terry was her mother’s

stepbrother. From 2002 through 20()4. when S.13. was between six and eight years old, Terry

lived with SB. ‘s grandmother. L.T., and several other relatives. S.L1. and her brother, M.B..

would visit L.T. tbr weekends during the school year and for as long as a week during the

summer. S.B. testified that during the visits, Terry rubbed his penis on her “butt,” put his penis

in her mouth, and touched her chest.

When S.B. was thirteen yearn old, her mother tB., had a discussion with her about

Facebook and texting. T.B. testified that S.B. became angry and defensive and kept saying that

she was “not going to do anything like that.” T.B. asked S.B. if somebody had already “done

something” or “sent something” to her. 5.8. initially would not respond to T.B.’s questions.

After approximately two-and-one-halt’ hours. S.B. “shook her head” when T.B. asked if

somebody had done something to her. TB. began naming individuals. S.B. shook her head “no”

after each name. When T.B. named Terry, 5.8. shook her head “yes” and started crying. S.B.

told T.B. that Terry put his penis in her mouth and in her “bottom area” and rubbed her chest.

After the outcry, S.B. began attending counseling with Melissa Dobbins. Dobbins

testified at trial during the State’s case-in-chief and brought the records of her sessions with S.B.

The following morning, Terry’s counsel stated he had been provided documents “late yesterday”

relating to five additional counseling sessions that S.B. had with Dobbins. The record relating to

one of those sessions indicated that approximately nine months after S.B.’s outcry, T.B.

discussed with Dobbins a possible “sexting” incident involving S.B. and a “male peer” at school.

Terry has not challenged the suffidacy of the evidence to suppuit the convictions. Accordingly. we recite only those hots necomary to
t
address Terry’s complaints on appeal

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flw counseling records indicate T.B. told L)obbins that, when questioned about the incident. Sit.

became very emotional anti admitted she sent a picture to the boy.

Sit. had returned to school and was not present at trial at the time Ferry’s counsel raised

the issue of the additional counseling records. However, the trial court allowed Terry’s counsel

to question TB. outside the presence of the jury. T.B. testified that when she was “accusing”

S.B. of sending the picture, S.B. admitted doing so. However, S.B. later told T.B. that she said

“that because I guess that’s what you want to hear and that’s what everybody is accusing me of.”

S.B. then denied there was a picture and said it “was rumors.”

Terry’s counsel stated that he wanted to use the evidence to show S.B. initially admitted

to sending the picture, but later denied it. Terry’s counsel argued he should be allowed to cross-

examine 5.8. on the “sexting” incident because both the outcry against Terry and S.B.’s

admission that she sent a photograph occurred when T.B. was accusing or lecturing S.B. about

certain conduct. Because S.B. claimed she told T.B. what TB. “wanted to hear” pertaining to

the “sexting” incident, the jury could determine that S.B. also told T.B. what she wanted to hear

regarding the outcry against Terry. The trial court denied Terry’s request to question S.B. and

T.B. about the incident.

Terry testified that he did not abuse S.B. He also offered evidence that the abuse could

not have occurred at the times and places described by S.B.

The jury convicted Terry of two offenses of aggravated sexual assault of a child. Terry

filed a motion for new trial asserting, among other grounds, that the trial court’s refusal to allow

him to recall and cross-examine T.B. and S.B. on the “sexting” incident violated his right to

confront the witnesses against him. After two non-evidentiary hearings, the trial court denied the

motion for new trial. At Terry’s request, the trial court made findings of fict and conclusions of

law. As relevant to this appeal, the trial court found (1) “sexting” is the sending of digital text

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issaies c uiiaiiilmi sieeci i\ C. pu Vocat ivc. or explicit sexual photographs: (2) S.B. told I .B.

that she had texted a sexual picture of herself to a boy; (3) S. B. later denied texting such a

pietul e (4) on the e e ot ti 1 al thc State infoi med the defense that no sexting’ had oeeui ied (S)

a hen S.B, and I B, tesli tied, the deflnse knew of the alIenation that SB. had “sexted,’’ and had

been told by the Slate it as not true. but did not crossexaminc S. B. or [1 . about it; ( ( ) the

additional therapy notes that were given to the defense atler S. B. and F. B. testi tied contained

relèrences to SB. having told LB. about “sexting” a picture of herself and later recanting, both

of which incidents were already known to the defense; (7) LB. testified, outside the presence of

the jury, about the “sextine’’ incident and testified S. B. had stated that she did not send a picture;

and (5) the trial court. relying on rule of evidence (0X( b). relused to allow the defense to recall

SB. and LB. to crossexamine them about S.B.’s lie. The trial court concluded S,B.’s lie did not

deal with a specific bias, motive, or interest to testify in a particular matter and the incident about

which she lied did not involve Terry. Rather, it was a specific act or conduct that Terry wanted

to use to impeach S.B. ‘s character for truthfulness and, thereibre. was inadmissible under rule of

evidence 605(b).

Cross-Examination of SB. and T.B.

In his tirst four issues, Terry alleges the trial court ciTed by denying his request to cross-

examine SB. and ‘F.B. about the “sexting” incident and by denying his motion fur new trial on

that ground. Relying on Hummer i. Slate. 296 S.W.3d 555 (Tex. (‘rim. App. 2009), Terry

argues the evidence that S.l3. lied to her mother about the “sexting” incident was admissible

because it established S.B.’s “motive to fabricate and her modus operandi when fabricating.”

Terry asserts the evidence was admissible under the rules of evidence and, because the rules of

evidence permitted the use of the evidence to impeach SB., he was denied his right to confront

the witnesses against him under the Sixth Amendment to the United States Constitution.
 Staiuksrd of Review

We review a trial court’s rulrng on the admission or exclusion of evidence under an abuse

of discretion standard. Tillmon n State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial

court abuses its discretion by excluding evidence only if its decision “lies outside tile ZOne of

reasonable disagreement.” Martinez v. State, 327 S.W.3d 727,736 (fex. Crim. App. 2010), ccii.

denied, 131 S. Ct. 2966 (2011); Montgomery v. State, 810 S.W.2d 372, 391 (fex. Crim. App.

1991) (op. on reh’g). We consider the ruling in light of what was before the trial court at the

time the ruling was made and uphold the trial court’s decision if it lies within the zone of

reasonable disagreement. Bilodeau v. State, 277 S.W.3d 34,39 (Ta. Crim. App. 2009).

We also review a trial court’s ruling on a motion lbr new trial for an abuse of discretion.

Maiden v. Suite, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). In conducting our review, we

may not substitute our judgment for that of the trial court Id. Rather, we decide only whether

the trial court’s decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could support the

trial court’s ruling. Id.

Analysti

The Sixth Amendme& right to confront witnesses also includes the right to cross-

examine witnesses to attack their general credibility or to show their possible bias, self-interest,

or motives in testifying. U.S. CONST. amend. VI; Hammer, 296 S.W.3d at 561 (citing Davis v.

Alaska, 415 U.S. 308, 316 (1974)). The scope of pennissible cross-examination is “necessarily

broad.” Carroll v. State. 916 S.W.2d 494,497 (rex. Crim. App. 1996); Revnolclc v. State, 371

S.W.3d 511, 520 (Ta. App.—Houston [1st Dist] 2012, pet ret”d). The broad scope of cross-

The Confrontation Clause of the Sixth Amendment gntees tIa “[ijn all criminal prosecutions the accused shall enjoy the right.
2 . . to
be confronted with the witnesses against 1dm..
..“
U.S. Cain. amend. vL

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examination clues lint mean, however, that a delàdant can explore every possible avenue of

inquiry. Delaware v. Van ArsdaJl, 475 u.s. 673, 679 (1986); Hammer, 296 S.W.3d at 561

(“This right is not unqualified, however; the trial judge has wide discretion in limiting the scope

and extent of cross-examination.”).

Generally, the Sixth Amendment right to present evidence and to cross-examine

witnesses does not conflict with the corresponding rights under state evidentiary rules. Hammer,

296 S.W.3d at 561 (citing United States v. Scheffer, 523 U.S. 303,316(1998); Potter v. State, 68

S.W.3d 657, 660-62 (rex. Crim. App. 2002)). Therefore, we can resolve most questions

regarding cross-examination by looking to the Texas Rules of Evidence. Hammer, 296 S.W.3d

at 561. “In those rare situations in which the applicable rule of evidence conflicts with a federal

constitutional right, Rule 101(c) [of the Texas Rules of Evidence] requires that the Constitution

of the United States controls over the evidentiary rule.” Jet; see also Bilodeau, 277 S.W.3d at

40. However. “[t]he Confrontation Clause mandate of Davis i’. Ala.cka 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.” ilwnmer, 296 S.W.3d at

566.

All witnesses may be cross-examined on any matter relevant to any issue in the case,

including credibility. TEX. R. EvID. 611(b). But, rule of evidence 608(b) prohibits cross-

examination on specific instances of conduct of a witness, other than a criminal conviction as

provided in rule 609(a), for the purpose of attacking the witness’s credibility. Thx. R. liviD.

608(b). Further, rule of evidence 412(b) provides that evidence of specific instances of conduct

relating to a complaining witness’s past sexual behavior is generally not admissible in a criminal

trial for aggravated sexual assault. TEx. It. EvID. 4 12(b). However, as relevant here, the

evidence may be admissible if it relates to the motive or bias of the complainant or is

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constitutionally required to he admitted arid its probative value outweighs the danger of unfair

prejudice. Ti€x. It. Eviu. 412(bX2XC)(E), (bX3); see also flx. K. liviD. 404(b), 613(b).

In sexual assault cases, the credibility of the complainant and the defendant are often

dispositve issues. hammer, 296 S.W.3d at 561- 62. However, a distinction must be made

between an attack on the general credibility of the 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.” Id. at 562 (quoting Davis, 415 u.s.
at 316). The dekndant does not have an absolute right to impeach the general credibility of a

witness, but the Constitution could be offended if a state evidentiary rule prohibited the

defendant from cross-examining a witness concerning possible motives, biases, and prejudices to

such an extent he could not present a vital defensive theory. Id. at 562—63; see also Billodeau,

277 5.W.3d at 4243.

It is undisputed that S.B. lied about the “sexting” incident, either in the first conversation

with T.B. in which she admitted “sexting” or in the later conversation in which she denied doing

so. However, the sexting” incident did not involve an accusation by S.B. against anybody.

Rather, the “sexting” incident related to alleged conduct by 5.B., did not involve Terry, and was

not logically connected to the allegations against Terry. This evidence is not relevant as proof of

bias, prejudice, or ulterior motive by S.B. to accuse Terry of sexually assaulting her years earlier.

See Lopez i Slate. IS S.W.3d 220. 225—26 (Ta. Crim. App. 2000) (“Without proof that the

prior accusation was false or that the two accusations were similar, the evidence fails to have any

probative value in impeaching [the complainant’s] credibility in this case.”). Rather, the
attempted impeachment was an attack on 5.B.’s general credibility La, SB. lied to her mother

about the sating incident, so it can be inferred that she is lying about Terry sexually assaulting

her. See Clc€v it Slate. 390 S.W.3d 1. 12—13 (Tex. App.—Texarkana 2012. no pet h.) (evidence

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teenaL’cr ied to her parents about \\ here she was oiii at night was not relevant as pi ool’ of bias,

plucliee, or ii Itenor motive lo rae eusmu defendant ol sexually assaultinu her).

The trial court found the evidence coneerninu the “sexting’’ incident involved a specific

instance ot conduct which Terry sought to present as a genera! attack on credibility and was,

therefore, inadmissible. See Ti’x. R. Evto, 608(b). This ruling was in the zone of reasonable

disagreement and. therefore, the trial court did not abuse its discretion in excluding the evidence.

I’ urther. because the evidence v as inadmissible, the trial coui-t di(l not abuse its discretion by

denying Tei-rv’s motion for new trial. We resolve Terry’s first four issues against him.

Post—Arrest Silence

In his filIh issue, Terry contends his rights under the Fifth Amendment to the United

States Constitution’
1 and article 1, section 10 of the Texas Constitution
5 were violated when the

trial court allo ed the prosecutor to impeach Terry on his post—arrest silence. TB. testified

without objection that Terry did not contact her or, to her knowledge, any Family members

following his arrest. In response to this testimony, Terry testified during his direct examination

that he had not spoken with S.B. or her family since his arrest because he understood “everybody

was looking for me, going to kill me” and because he “didn’t know what to say.”

On cross-examination, the prosecutor asked Terry why, if he was innocent, he did not call

TB. after his arrest and ask, “What’s happening?” Terry’s counsel objected on the ground the

prosecutor was “inappropriately trying to use Terry’sj silence against him.” The trial court

ihis ease hcrclire, distinwishable fom Ihininier in which the dclendant attempted to otIr cx deuce that the comphnrant was angt
xx oh the defendant, her lather, tir taking her to the hospital br a sexual assault exammatton because he wattled to prove the complainant had
sexual intercourse Ihrnrnrr’i’. 296 S.W.3d at rn/ fe complainant in JJiininO’r xx as evidently so upset that she threatened to commit suicide and
was admitted to a state hr spital. Jd. The complainant made the allegati nsagariist the defendant shortly after she was released from the hospital.
Jd. The court of cnnuiial appeals concluded this was strong evidence oh the complainant’s motive to falsely accuse the defendant of sexual
assault and the trial court erred by excluding it, It!.

The Fiflh Amendment provides, “No person shall he compelled in arty criminal case to be a witness against himselF...” Us. CONs’r.
amend, V.

Article I, section 0 of the l’exas (‘onstitutiolt provides, in relevant part, titan an accused in a crirnitial prosecution ‘‘shall lot be compelled
to give cx idence against himsel I’.’’’ Fox Ct iNSt . art I. 1(1.
ovemiled the objection, and Terry responded that he had heard “they were trying to kill me.”

hit’ prosecutor then asked Terry. without objection, whether lie contacted 1.1’. and his father

after his arrest. Terry said that he went to their house as soon as he was released from jail. The

prosecutor then returned to why Terry had not contacted T.B., asking, without objection, that “an

innocent man would call his sister and say, ‘What is going on here,’ wouldn’t he?” Terry

responded an innocent man would not.

When the same testimony is admitted without objection elsewhere during the trial, the

defendant waives any complaint he may have had regarding the admissibility of the testimony.

Lane v. State, 151 S.W.3d 188, 192—93 flex. Crim. App. 2004). By not objecting every time a

witness was questioned about Terry’s post-arrest silence, Terry waived any error by the trial

court in overruling his objection. We resolve Terry’s fifth issue against him.

Jury Charge

In his sixth issue, Teny contends the trial court violated article 36.16 of the code of

criminal procedure by amending the jury charge in cause number F09- 16253-P after the charge

had been read to the jury. in cause number P09-I 6253-P, Terry was charged with intentionally

and knowingly causing his sexual organ to contact and penetrate SB’s anus. The jury charge

prepared by the trial court stated, “A person commits the offense of aggravated sexual assault of

a child if he intentionally or knowingly causes the penetration of the anus of a child by any

means, and the victim is younger than 14 years of age.” The application paragraph of the charge

stated:

If you find and believe from the evidence beyond a reasonable doubt that the
defendant, John Terry, on or about July 8, 2004, in Dallas County, Texas,
unlawfully and knowingly or intentionally caused the penetration of the anus of
[S.B.], a child, who was not then his spouse, by an object, his sexual organ, and
that she at the time of the ofThnse, if any, was younger than 14 years of age, you
will find the defendant guilty of aggravated sexual assault of a child under the age
of 14, as charged in the indictment If you do not so find, or you have a
reasonable doubt thereof, you will find the defendant not guilty.
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Neither Terry nor the State made any objections to the charge.

When the trial court read the charge to the jury, it stated, “A person commits the offense

of aggravated sexual assault of a child if he intentionally or knowingly causes the contact or

penetration of the antis ala child by any means and the victim is younger than 14 years of age.”

(emphasis added). Terry did not object to the trial court’s inclusion of the wonts bethe contact” in

the charge as read to the jury. The triaL court read the application paragraph of the charge as

written.

After reading the charge, the trial court stated, “I have allotted 15 minutes per side for

argument. The State will open. Mr. —.“ At this point, the prosecutor requested to approach the

bench. After an off-the-record conference, the trial court stated it was amending the charge to

read “causes the contact or penetration” in both the definition of the offense and the application

paragraph. Terry’s counsel objected to the change, stating there had been no objection to the

charge at the charge conference. The trial court construed the objection as asserting it was “error

for me to change my charge after” it had been read. The trial court overruled the objection and

amended the charge.

Terry argues that article 36.16 of the code of criminal procedure prohibited the trial court

from amending the charge after it had been read to the jury. See TEX. CODE CRIM. PRoc. ANN.

art. 36.16 (West 2006). The applicable portion of article 36.16 provides. “After the argument

begins no further charge shall be given to the jury unless required by the improper argument of

counsel or the request of the jury, or unless the judge shall, in his discretion, permit the

introduction of other testimony....” Id. Terry asserts that none of the exceptions in the statute

apply and, therefore, the trial court committed reversible error by amending the charge.

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 Ilic court of criminal appeals has concluded that a trial court may withdraw and correct

its charge if ills convinced an erroneous charge has been given. Smith v. Stute, 898 S.W.2d 838,

854-55 (Ta Crim. App. 1995); Bustilos i’. State, 464 S.W.2d 118, 125 (Tex. Crim. App. 1971)

(“the court may bctbre verdict withdraw and correct its charge if convinced an erroneous charge

has been given”); Chcnnberx v. Stale, 379 S.W.2d 907, 908 (Tex. Crim. App. I 964) (“the court’s

amending [itsj charge in order to correctly state the law” does not constitute reversible error); see

aLco Gaines v. State, 710 S.W.2d 630,633 (Tex. App—Dallas 1986, pet. ref d) (“The court may,

after arguments have begun but before the verdict, withdraw and correct its charge if the court is

convinced that an erroneous charge has been given.”).

Terry did not object at trial when the trial court read the definition portion of the charge

to include contact with S.B.’s anus. Further, he did not complain in the trial court, and does not

complain on appeal, that the amendment made to the charge by the trial court was an incorrect

statement of the law. Rather, his only complaint is directed toward the timing of the amendment.

We conclude the trial court did not commit reversible error by amending the charge after it was

read to the jury but before closing arguments by the prosecutor. See Smith, 898 S.W.2d at 854—

55. We resolve Terry’s sixth issue against him.

We affirm the trial court’s judgments.

ROBERT M. FILLMORE
JUSTICE

Do Not Publish
TEx. K. App. P.47

I 20279F.U05

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 Qtiitrt uf pea1
.Fifti! uItrIrt uf ixa at JaI1a5
JUDGMENT

JOHN TERRY, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-1 2-00279-CR V. Trial Court Cause No. F09- 16254-P.
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS. Appellee Justices Lang-Miers and Murphy
Iartic ipating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

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26
Judgment entered this day of March, 2013.

ROBERT M. FILLMORE
JUSTICE
 QDIIrt of _Wea16
FiftI! Oitrict nf ixa at 1a11iui
JUDGMENT

JOHN TERRY, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-1 2-00295-CR Trial Court Cause No. F09-16253-P,
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appellee Justices Lang-Miers and Murphy
participating.

Based on the Court’s Opinion of this date, the judgment of the trial court is AFFIRMED.

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Judgment entered this day of March. 2013.

ROBERT M. FILLMORE
JUSTiCE