COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00416-CR
JOSHUA GOLLIDAY APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1379815D
----------
MEMORANDUM OPINION1
----------
A jury convicted Appellant Joshua Golliday of sexual assault and assessed
his punishment at two years’ confinement, recommending that the imposition of
the sentence be suspended and that Appellant be placed on community
supervision. The trial court sentenced Appellant to two years’ confinement,
1
See Tex. R. App. P. 47.4.
suspended imposition of his sentence, and placed him on community supervision
for seven years.
Appellant brings five points on appeal, complaining of limitations on his
right of cross-examination, limitations on his right to offer character evidence,
prosecuting counsel’s improper comment on his decision not to testify, and the
cumulative effect of the errors. Because the trial court reversibly erred in
preventing Appellant from presenting his defense by improperly limiting his right
to cross-examine witnesses concerning the complainant’s ability accurately to
understand and to recall the events of the evening, we reverse the trial court’s
judgment and remand this cause to the trial court.
Brief Facts
Appellant’s brother and the complainant were both tenants in the Depot
Apartments. In the late evening of January 4, 2013, Appellant, his brother, two of
their male friends, and the complainant were just outside or in the complainant’s
apartment. The men and the complainant had just met. Appellant’s brother went
home first, and then another friend also left. Eventually, the remaining friend left,
and Appellant drove the complainant to get some cigarettes. She also decided to
pick up a movie from Red Box. When the complainant and Appellant returned to
her apartment, she invited him in to watch the movie. They began to make out,
and here the stories diverge.
The complainant said that Appellant had sexual intercourse with her
without her consent. She called 911 and told the 911 operator that Appellant ran
2
as soon as she called the police. She followed him out of the apartment and
chased him while speaking on her phone to the 911 operator. The police
responded to the call, and the complainant went to the hospital, where she met
with a sexual assault nurse examiner (SANE). A detective interviewed
Appellant’s brother, and Appellant was eventually arrested and charged with
sexually assaulting the complainant.
Limitation of Cross-Examination of the Complainant and the SANE
In his first two points, Appellant argues that the trial court’s denial of his
right to cross-examine the complainant and the SANE was a violation of his
rights under the Confrontation and Due Process clauses of the state and federal
constitutions. The complainant testified before the jury that she had been
drinking that night. Appellant attempted to offer evidence that shortly after the
date of the alleged assault, she was treated at Millwood. Outside the presence
of the jury, the complainant testified that she knew that both the State and
Appellant’s counsel had her lengthy records from Millwood. She said that it was
possible that she had admitted to the staff at Millwood that she had not accepted
that she had been raped. The complainant told Millwood staff that she was “a
giant problem to everyone” and that she had had a panic attack and had taken
Xanax to cope. She told the SANE that she had herpes and suffered from
anxiety. The complainant also told the SANE that she was on medication at the
time of the alleged assault. The complainant testified in the voir dire hearing that
3
she is a recovering alcoholic and that she “drink[s] alcohol with everything,”
including Zoloft.
Appellant’s counsel stated,
Judge, we would submit that all of this testimony is relevant and
should come before the jury so the jury can get the whole picture of
the situation. So we’re offering—we’d like to ask these questions in
front of the jury.
The prosecutor’s objections to hearsay and relevancy and under rule
404 were sustained, and the jury was not allowed to hear any of this evidence.
Appellant clarified the trial court’s ruling, asking if the trial court was prohibiting
the defense from going into any of the matters raised in the offer of proof. The
trial court responded, “Correct,” and Appellant excepted to the trial court’s ruling.
When the SANE testified, Appellant made another offer of proof outside
the presence of the jury. The SANE testified in that proffer that the complainant
had told her that she took Xanax and Zoloft. The SANE also testified that mixing
Xanax with alcohol can cause certain effects, including memory distortion and
blackouts, as well as dramatic mood changes. The SANE additionally testified
in the proffer that the complainant had told her that she has problems with
anxiety and chronic problems with herpes.
Appellant argued that this information is relevant to explaining some of the
complainant’s behavior at the time of the incident tied directly to her ability to
remember parts of the evening specifically but inability to remember other parts.
The prosecutor objected that this proffered testimony was irrelevant and a
4
violation of rule 404. The trial court sustained the objection and excluded the
proffered testimony.
Rule 103 of the rules of evidence establishes the mode of preserving error
in the exclusion of evidence:
(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial
right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was
apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of
its substance by an offer of proof, unless the substance was
apparent from the context.2
When evidence is improperly admitted, objection is required to preserve the
complaint.3 When evidence is improperly excluded, no objection is required, but
a proper offer of proof is required.4 As the Holmes court has explained,
This court has recognized a distinction between the general
rule in Rule 103(a)(2) and the case in which the defendant is not
permitted to question a State’s witness about matters that might
affect the witness’s credibility.
In the latter case, “the defendant need not show what his
cross-examination of the witness would have affirmatively
2
Tex. R. Evid. 103 (emphasis added).
3
Id.
4
Id.; see, e.g., Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App.
2009).
5
established; he must merely establish what general subject matter
he desired to examine the witness about during his cross-
examination and, if challenged, show on the record why such
should be admitted into evidence.” In such a case the trial court’s
ruling has prevented a defendant from questioning a State’s witness
about subject matters which affect the witness’s credibility, that is,
matters which might show malice, ill feeling, ill will, bias, prejudice,
or animus.5
We therefore hold that Appellant’s complaints were preserved.6
Appellant’s defense was that the sexual activity was consensual. The
excluded testimony was offered to show the complainant’s ability to recall the
events and to explain her conduct on the night of the alleged assault.
Appellant argues that the trial court’s exclusion of the evidence improperly
limited cross-examination that would reveal motive or bias of a witness and that it
therefore violated his Sixth Amendment protections, quoting 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
Texas 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.
5
Holmes, 323 S.W.3d at 168 (footnotes omitted).
6
See id.
6
But, as the Supreme Court noted in Davis v. Alaska, there is
an important distinction between an attack on the general credibility
of a 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.” Thus, under Davis, “the exposure of a witness’ motivation in
testifying is a proper and important function of the constitutionally
protected right of cross-examination.” However, as Justice Stewart
noted in concurrence, the Court neither held nor suggested that the
Constitution confers a right to impeach the general credibility of a
witness through otherwise prohibited modes of cross-examination.
Thus, the Davis Court did not hold that a defendant has an absolute
constitutional right to impeach the general credibility of a witness in
any fashion that he chooses. But 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
And in Carroll v. State, the Texas Court of Criminal Appeals stated:
The Constitutional right of confrontation is violated when
appropriate cross-examination is limited. The scope of appropriate
cross-examination is necessarily broad. 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. When
discussing the breadth of that scope we have held,
. . . [.] Evidence to show bias or interest of a witness in
a cause covers a wide range and the field of external
circumstances from which probable bias or interest may
be inferred is infinite. The rule encompasses all facts
and circumstances, which when tested by human
experience, tend to show that a witness may shade his
testimony for the purpose of helping to establish one
side of the cause only.8
7
296 S.W.3d 555, 561–63 (Tex. Crim. App. 2009) (footnotes and citations
omitted) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110
(1974)).
8
916 S.W.2d 494, 497–98 (Tex. Crim. App. 1996) (citations omitted).
7
As Appellant points out, these words of the Texas Court of Criminal Appeals are
applicable in this situation, where the trial court sustained the prosecutor’s
objections and limited Appellant’s right to cross-examination.
Appellant, citing the discussion of the issue in Virts v. State,9 argues that
this rule also applies to the ability to cross-examine a witness regarding a
mental state that might affect the witness’s ability accurately to perceive, to
recall, and to recount the events to which the witness is called to testify:
[T]his Court has often stated and discussed the fact that one of the
greatest constitutional rights that an accused person might have is
the right to confront and cross-examine the State’s witnesses . . . .
. . . [W]e believe that it is still necessary to point out, for
emphasis purposes, that the right of cross-examination by the
accused of a testifying State’s witness includes the right to impeach
the witness with relevant evidence that might reflect bias, interest,
prejudice, inconsistent statements, traits of character affecting
credibility, or evidence that might go to any impairment or disability
affecting the witness’s credibility.10
More recently, the Texas Court of Criminal Appeals has addressed the
right of a person charged with a criminal offense to cross-examine his accuser
on issues that would aid the jury in assessing the accuser’s credibility. In
Johnson v. State, the Court reminded us that a defendant has a constitutional
9
739 S.W.2d 25 (Tex. Crim. App. 1987).
10
Id. at 29.
8
right to present his defense to the jury so that the jury may weigh his evidence
along with the rest of the evidence presented.11
In the case now before this court, the issue of sexual intercourse was
uncontested. The only contested issue was consent. This case was a swearing
match between Appellant and the complainant, a traditional “he said, she said”
case. The complainant could remember some of the events of the evening but
not all, she had a history of erratic behavior, and she admitted that she had
ingested Xanax, Zoloft, and alcohol on the night in question. She also had a
history of inpatient treatment at Millwood, a hospital for treatment of addiction
and mental health problems. All of this evidence was provided to the SANE as
part of the complainant’s medical diagnosis and treatment, but Appellant was not
allowed to go into these issues before the jury. He was not allowed to present
his defense. We therefore hold that the trial court erred by excluding the
proffered evidence and thereby violating Appellant’s constitutional right to
present a defense.12
Under Texas Rule of Appellate Procedure 44.2(a), if the appellate record
reveals a constitutional error, we must reverse a judgment of conviction unless
11
490 S.W.3d 895, 910, 914–15 (Tex. Crim. App. 2016).
12
See Holmes, 323 S.W.3d at 173.
9
we determine beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.13
When the trial court sustained the prosecution’s objections to Appellant’s
attempts to offer evidence to challenge the complainant’s ability to remember the
events of the evening, her ability to accurately perceive the events, and her
erratic behavior that might have affected his perception of consent or lack of
consent; his attempts to offer medical reasons to explain the complainant’s
physical and emotional condition that evening; and, indeed, his attempts to offer
his entire defense, the trial court effectively deprived Appellant of his
constitutional rights to due process, to confront his accusers, and to offer a
defense. We hold that the trial court reversibly erred by preventing Appellant
from presenting this evidence to the jury. We sustain Appellant’s first two points.
Because our resolution of these two points is dispositive, we do not reach
Appellant’s remaining three points.14
Having sustained Appellant’s first two points, which are dispositive, we
reverse the judgment of the trial court and remand this case to the trial court for
proceedings consistent with this opinion.
13
Id. at 173–74.
14
See Tex. R. App. P. 47.1.
10
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
LIVINGSTON, C.J., dissents without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 13, 2016
11
Joshua Golliday v. State
Combined Opinion