PD-1496-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
June 9, 2015 Transmitted 6/8/2015 5:39:23 PM
Accepted 6/9/2015 8:48:17 AM
NO. PD-1496-14 ABEL ACOSTA
CLERK
COA NO. 02-11-00253-CR
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
SECOND JUDICIAL DISTRICT
FT. WORTH, TEXAS
CHIEF JUSTICE SHARON KELLER, PRESIDING
JOE DALE JOHNSON
Petitioner
VS.
THE STATE OF TEXAS
Appellee
PETITIONER’S DISCRETIONARY REVIEW BRIEF
Jeff Eaves
State Bar No. 24045820
900 8th St., Ste. 1400
Wichita Falls, Texas 76301
Tel. (940) 322-2002
Fax: (940) 322-1001
Todd Greenwood
State Bar No. 24048111
813 8th St. Ste. 550-K
Wichita Falls, Texas 76301
Tel./Fax: (940) 689-0707
ATTORNEYS FOR PETITIONER
i
TABLE OF CONTENTS
SUBJECT PAGE
IDENTITY OF PARTIES AND COUNSEL……………………………………….i
TABLE OF CONTENTS…………………………………………………………..ii
INDEX OF AUTHORITIES……………………………………………………iv-v
STATEMENT OF THE CASE…………………………………………………….1
STATEMENT OF PROCEDURAL HISTORY…………………………………...2
STATEMENT REGARDING ORAL ARGUMENT……………………………...3
GROUND FOR REVIEW………………………………………………………….3
STATEMENT OF FACTS…………………………………………………………4
SUMMARY OF THE ARGUMENT………………………………………………8
ARGUMENT……………………………………………………………………...12
I. THIS ISSUE IS ABOUT THE ABUSE NOT THE ADJUDICATION…....14
II. THE EXCLUDED TESTIMONY WAS RELEVANT BECAUSE THE
LOGICAL CONNECTION/NEXUS BETWEEN THE COMPLAINANT’S
LONGSTANDING SEXUAL ABUSE OF HIS LITTLE SISTER AND THE
ALLEGATION IS MANIFEST…................................................................18
A. The state's position as adopted by the en banc majority does not address
the issue properly before this court……………………………………..19
B. The complainant’s longstanding abuse of his sister was logically
connected to the abuse he alleged against petitioner because it showed his
motive, means, opportunity and knowledge to fabricate the allegation...21
1. The prosecution created a false impression by characterizing
complainant as a typical, even innocent youth while vilifying
ii
petitioner as a manipulative, devious predator…………….……….21
2. It was petitioner’s constitutional right to cross examine the
complainant regarding the relationship of any mental condition for
which he received treatment to his motive to fabricate the
allegation…………………………………………………………….23
3. Petitioner was entitled to cross examine the complainant when he put
his credibility in issue by contradicting his own prior testimony and
that of his father…………………………………………….……….25
4. The superficial cross examination permitted into shoplifting, lying,
access to pornography and the like did not constitute confrontation
sufficient to allow petitioner to develop his defense………….……28
5. Cross examination that was allowed into the complainant’s having
surfed pornography did not constitute confrontation sufficient to allow
petitioner to develop his defense……………………………………29
III. THE EN BANC HOLDING RELIES ON READING OF THE RECORD
WHICH SELECTIVELY IGNORES INCONVENIENT FACTS….....31
IV. THE TRIAL COURT’S WIDE LATITUDE TO DETERMINE
CONSTITUTIONALLY-PROTECTED CONFRONTATION DOES
NOT INCLUDE DEPRIVING PETITIONER OF A “VIABLE
DEFENSIVE THEORY” LET ALONE HIS SOLE DEFENSE AT
TRIAL………………………………………………………………….40
CONCLUSION…………………………………….……………………………..43
PRAYER FOR RELIEF…………………………………………………………..44
CERTIFICATE OF SERVICE……………………………………………………45
CERTIFICATE OF COMPLIANCE……………………………………………...45
iii
INDEX OF AUTHORITIES
CASES PAGE
Chitwood v. State 350 S.W.3d 746 (Tex.App.—Amarillo
2011)…………………………………………..................................................26, 30
Delaware v. Van Arsdall, 475 U.S. 673 (1986)………..…………………….……42
Davis v. Alaska, 415 U.S. 308 (1974)………..…………..……………………….13
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009)……...13, 19, 26, 28, 40
Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010)………......…...25, 29, 31, 41
Holmes v. South Carolina, 547 U.S. 319 (2006)………………………………….29
Jackson v. State, 482 S.W. 2d 864 (Tex. Crim. App. 1972)…………....…………26
Koehler v. State, 679 S.W. 2d 6 (Tex. Crim. App. 1984)…………………………26
Pointer v. Texas, 380 U.S. 400 (1965)………………………………..………12, 31
Shelby v. State, 819 S.W. 2d 544 (Tex. Crim. App. 1991)…………..….………..42
Virts v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010)…………..………………24
CONSTITUTIONS, STATUTES, & RULES PAGE
Fifth Amendment, United States Constitution………..…………………..11, 30, 44
Sixth Amendment, United States Constitution………………………………..11, 44
Fourteenth Amendment, United States Constitution……………..……….11, 12, 44
Art. I, §10, Texas Constitution………………………..………………………11, 44
Art. I, §19, Texas Constitution…………………………….……….…………11, 44
iv
Texas Rule of Evidence 101(c)(West 2013)………………………………………13
Tex. R. Evid. 404 (b)………………………………...…..……………………11, 44
Tex. R. Evid. 412 (b)(1, 3)(C)………………………..…….…………….11, 26, 44
Tex. R. Evid. 608(b)…………………………………………………………..11, 13
Tex. R. Evid. 609……………………………………………………………...11, 13
Texas Rule of Appellate Procedure Rule 44.2(a)……………………………...11, 42
APPENDICES
APPENDIX A, Memorandum Opinion….…………………………………….A-1
APPENDIX B, En Banc Opinion………………………………………………B-1
APPENDIX C, En Banc Dissent ………………………………………………C-1
v
NO. PD-1496-14
COA NO. 02-11-00253-CR
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
DISCRETIONARY REVIEW BRIEF ON THE MERITS
FROM THE COURT OF APPEALS
SECOND JUDICIAL DISTRICT
FT. WORTH, TEXAS
JOE DALE JOHNSON
Petitioner
VS.
THE STATE OF TEXAS
Appellee
STATEMENT OF THE CASE
Petitioner seeks discretionary review of a 4-3 en banc decision of the Second
Court of Appeals affirming Petitioner’s convictions for Aggravated Sexual Assault
which upheld the trial court’s ruling that barred cross examination regarding the
complainant’s longstanding sexual abuse of his little sister. That abuse and the
circumstances attendant to it potentially gave the complainant motive, means,
knowledge and opportunity to fabricate his allegation against Petitioner. The
State’s case at trial relied entirely upon the witness’s bare and uncorroborated
allegation. Full and unfettered cross examination into the sexual abuse of
complainant’s sister was necessary to present Petitioner’s sole defense of
fabrication at trial.
1
STATEMENT OF PROCEDURAL HISTORY
Petitioner was charged with two counts of aggravated sexual assault and one
count of Indecency with a Child. Petitioner pleaded not guilty and the case was
tried during the week of June 14, 2011.1 He was subsequently convicted and the
jury assessed consecutive life sentences in the Texas Department of Criminal
Justice on all three counts.2 The 89th District Court judge ruled that the sentences
were to run consecutively, and the judgments were signed and entered June 16,
2011.3
A panel of the Second Court of Appeals issued an opinion on February 14,
2013, reversing and rendering the Indecency with a Child by Contact conviction
and reversing and remanding the Aggravated Sexual Assault counts.4 The State
subsequently filed a motion for rehearing en banc on February 22, 2013. The
panel opinion was subsequently overturned on October 9, 2014 by the court sitting
en banc on the Aggravated Assault counts in a 4-3 decision of the court, affirming
the convictions and life sentences for counts one and two.5 Count three remained
reversed and rendered as the state confessed error. Petitioner seeks review of the
decision of the Court of Appeals regarding the en banc opinion reversing the panel
1 R.R. 1: 10.
2 R.R. 10: 40-41.
3
C.R. 169-177. Appendix A, Memorandum Op. at 11-13.
4
See Appendix A, Memorandum Op.
5 See Appendix B, En Banc Op.
2
opinion. Appellant’s Petition for Discretionary Review was granted on April 22,
2015.
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that the issue presented by the ruling of the appellate
court in this matter has profound consequences for all criminal cases based upon
accusation alone and consequently where the sole defense may be a full and
unfettered cross examination of the complainant. Therefore, oral argument should
be granted following full briefing of the issues.
GROUND FOR REVIEW
The Court of Appeals sitting en banc erred in overturning its memorandum
panel opinion holding that Appellant was deprived of the fundamental right to a
fair trial. Therefore, Due Process was denied when the trial court barred cross
examination of the State’s complaining witness on the eve of trial given: 1) the
State’s case against Petitioner was based almost entirely on this witness’s outcry
and Petitioner’s sole defense of fabrication at trial depended entirely upon the
Confrontation which was denied and 2) the court’s ruling together with the State’s
case in chief created a false impression of the complaining witness which
Petitioner was entitled to correct through cross examination.
3
STATEMENT OF FACTS
The complainant in this case was 12 years old when he accused Petitioner of
performing fellatio on him and allowing complainant to do the same to him. 6 The
complainant testified these acts occurred in Petitioner's home with no one else
present and no corroboration.7 Defendant had been convicted of two counts of
Aggravated Sodomy and Indecent Liberties with a child in Sedgwick County,
Kansas on August 20, 1980, and December 14, 1982.8 At the time he made the
allegation, the complainant had been sexually abusing his younger sister for a
number of years.9 He continued to sexually abuse his sister after he made this
allegation against Petitioner.10 His parents knew about the abuse of his sister
because he told them about it when it occurred.11 They had arranged counseling
specifically for this abuse of their daughter though there was contradictory
testimony between complainant and his father, who also testified, as well as within
complainant's own testimony.12
6 R.R. 7: 11,137-38.
7 Id. at 124.
8
R.R. 12: 10-15.
9 Id. at 160-61.
10 Id.
11 Id.
12 Id. at 44, 66, 160-62 (complaint ultimately testified outside the presence of the jury that he
abused his sister for years to include before and after the allegation against Petitioner and that his
parents had sought counseling in 2007 – not 2008 – when he was adjudicated for the sexual
abuse of his sister).
4
The complainant appears to have undergone additional counseling from
April 2008, after the State got around to formally adjudicating the complainant for
an instance of the longstanding sexual abuse of his sister.13 The complainant had
been put in counseling in 2007 by his parents for other reasons to include
repeatedly viewing internet pornography, shoplifting, problems with peers at
school and with his family members at home, and depression.14 He was also upset
with his father because he wanted a specific video game his father refused to
purchase for him.15
Petitioner, a board member at the church and in his fifties, let complainant
help him mow lawns when the complainant let it be known within a local church
that the complainant was looking for work.16 As time passed, the complainant
accepted more work mowing lawns with Petitioner including Petitioner’s own as
well as for other church members.17 The complainant claimed to have accepted
cash from Petitioner on several occasions.18 Petitioner and complainant also went
to local hockey games and the movies with Petitioner’s nephews as well as to the
13 Defense Exhibits 1-3 reference Defense Ex. 1, “Stipulation of Evidence,” COUNT 1: “That on
or about April 20, 2008, in Wichita County, Texas, I did then and there intentionally or
knowingly cause the penetration of the female sexual organ of Pseudonym 08-041630, a child
who was then and there younger than 14 (fourteen) years of age and not my spouse of myself by
my finger.” (admitted for record purposes only).
14 R.R. 7: 60-62, 65-69, 106, 148-49, 152, 156, 158, 160.
15 Id. at 46.
16 Id. at 28, 84.
17 Id. at 82.
18 Id. at 92, 94.
5
nephews’ home in Walters, Oklahoma, approximately 30 miles distant from
Burkburnett where complainant and Petitioner lived.19
The complainant walked over to Petitioner’s house on at least one
occasion.20 The complainant and the Petitioner apparently confided in one
another.21 This may have included the fact that Petitioner had been convicted of a
sexual offense with a teenage boy when he was in his twenties in Kansas or that
complainant had been sexually abusing his sister for some time. 22 The
complainant's father testified that he was bothered that his son seemed to be
spending time with Petitioner given his son had a father figure in his life.23 In the
summer of 2007 he limited his son’s contact with Petitioner because he felt they
were spending too much time together.24
Ultimately, complainant made the allegation which resulted in the charges
for which Petitioner now serves three consecutive life sentences.25 The
complainant made the allegation immediately after Petitioner presented the church
youth group with a Nintendo DS hand held video game instead of giving it to
complainant as a gift.26
19 Id. at 77-78, 81-82.
20 Id. at 30-31.
21 Id. at 101.
22 R.R. 9: 23-25; C.R. 42-44, 55-56 (judgment of conviction).
23 R.R.7: 30.
24 Id.
25 R.R. 10: 40-41.
26 R.R. 7: 109, 113.
6
The complainant approached a youth minister of the church after he learned
about the gift of the Nintendo DS, stating he was glad that the handheld game was
taken away from the youth group.27 According to the complainant, the youth
minister, unidentified in the record other than as “Jimmy,” told complainant,
“sounds a lot like something that happened to me.” 28 According to complainant
and his father, complainant made his allegation to “Jimmy” who then went to the
complainant’s household later that night to tell the complainant’s parents.
“Jimmy” was never interviewed by law enforcement and never called at trial.
“Jimmy” reportedly went to the complainant’s parents who, in turn, reported
the outcry to the Burkburnett Police Department.29 A forensic child interviewer for
Patsy’s House, the regional forensic facility which provides interviewers for
alleged cases of sexual abuse of children, was not available to interview
complainant according to the lead detective, Lahoma Vaughn.30 Vaughn, a
Burkburnett police detective then took on the dual role of lead detective and
forensic sexual assault interviewer.31
The detective did not interview the initial outcry witness, the church youth
minister known as “Jimmy,” even though he apparently had conveyed information
27 Id. at 114-115.
28 Id.
29 Id. at 117.
30 R.R. 8: 15.
31 Id. at 8: 65-66.
7
of his own molestation as a child to complainant.32 She did not interview the
Petitioner’s wife who lived in the home where most of the interaction between
complainant and the Petitioner took place and with whom complainant was not
getting along.33
Neither did she interview complainant’s counselor who he saw specifically
for the sexual abuse of his sister although complainant had been in counseling for
this longstanding sexual molestation for a period of years.34 She also did not
interview the pastor of the church where the alleged “grooming” had occurred over
a period of several months as the pastor, at the time of trial, actually claimed to be
unaware of the allegations.35
SUMMARY OF THE ARGUMENT
The twelve-year-old complainant claimed Petitioner sexually assaulted him
in Petitioner's home in April 2007 – or maybe in May or June.36 He testified this
happened with no one else present and with no other corroboration. The
complainant had been sexually abusing his little sister over a period of years prior
to the allegation and even as late as April 2008 when he was finally adjudicated by
32 Id. at 42.
33
Id. at 44.
34 Id. at 44, 66, 160.
35 Id. at 110.
36 Id. at 83, 89, 122.
8
the State for an instance of this longstanding abuse.37 He had been repeatedly
accessed Internet pornography, shoplifted, had problems with peers at school and
with his family members at home, and was depressed.38 He had been in counseling
for some or all of these issues but undoubtedly for the longstanding sexual abuse of
his little sister because his parents had arranged this counseling in part for that
purpose.39 He was also upset with his father because he wanted a specific video
game his father refused to purchase for him.40
One reasonable interpretation of the facts appears to have been that
complainant exhibited sociopathic signs and fabricated his accusation and who the
State should perhaps have spent more time worrying about than Petitioner.
Another reasonable interpretation of facts is that the complainant was a very
troubled youth who lied, stole, frequented pornography and sexually abused his
little sister and consequently did not get along well with his peers or his family
members. Knowing exactly what disgust an accused sexual predator faces, he was
able to go from subject of disgust and derision to victim with a single lie.
The trial court's ruling meant the jury could not arrive at either of these
reasonable interpretations from the facts because they were deprived of access to
those facts which did not favor the State's preferred narrative. The effect of the
37 Id. at 149, 160-62.
38 Id. at 60-62, 65-69, 106, 148-49, 152, 156, 158, 160.
39 Id. at 160-61.
40 Id. at 46.
9
trial court's ruling, however, was even more prejudicial than that. When the jury
heard testimony regarding the complainant's lying, stealing, surfing pornography,
counseling and problems with his peers or his family members they were left to
conclude this was the result of the trauma an innocent youth was experiencing due
to the alleged assault by Petitioner.
At trial the State, through its questioning of the panel, opening statements,
the testimony of its witnesses and its closing arguments characterized Petitioner as
a predator who manipulated the complainant, an ordinary, if emotionally troubled
youth. Independent of the trial court's ruling denying confrontation, Petitioner was
entitled to rebut this mischaracterization on the basis of the false impression
created by the State. Hence, it was the combination of the trial court's ruling; the
State's representations, questions and arguments; and the complainant's testimony
which prevented Petitioner from developing his sole defense at trial. This
compromised the jury's ability to evaluate the evidence and consequently ensured a
result in favor of the State.
Were this not enough, the trial court subsequently admitted the testimony of
Glenn McCoy regarding Petitioner's 30-plus-year-old convictions from Sedgwick
County, Kansas, for sexual assault when Petitioner was in his twenties and McCoy
a teen.41 This conviction was ostensibly admitted for the purpose of rebutting the
41
R.R. 12: 10-15, State’s Trial Exhibit 6.
10
very fabrication defense which the trial court had prevented him from developing
by its ruling. The product of the fundamentally unfair trial which resulted was
three consecutive life sentences.42
Evidentiary rules such as Texas Rule of Evidence 608(b) and 609 protect
witnesses from having adjudications used against them only where constitutional
priorities do not trump. The risk of a contrary standard, such as that urged by the
State and the Court of Appeals in its en banc opinion risk that the fundamental
right of a fair trial may be deprived in cases in which accusation alone is deemed
legally sufficient and unprincipled complainants see the opportunity to manipulate
law enforcement and courts to their own ends.
Consequently, the trial court inhibited Petitioner from putting on a full
defense, thereby depriving Petitioner of the fundamental right of a fair trial ensured
by the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I
Sections 10 and 19 of the Texas Constitution. The denial of full and vigorous
Confrontation ensured by the Sixth Amendment of the U.S. Constitution, Article I
Section 10 and 19 of the Texas Constitution and Texas Rules of Evidence 404(B)
and 412 rose to the level of a violation of Due Process. It is plain such error cannot
be deemed harmless under Rule 44.2(a) of the Texas Rules of Appellate Procedure.
42
C.R. 169-177.
11
This case would appear to have ramifications that go well beyond the instant
facts. The risk of the ruling of the 89th District Court in this case as precedent in
the Second Judicial District, threatens the fundamental right of a fair trial in
“swearing match” cases. In these cases, an accusation alone is legally sufficient to
support a conviction.43 If prosecutors can use state evidentiary rules meant to
avoid the use of juvenile records under the auspices of protecting children or avoid
undue prejudice in order to keep facts from juries which demonstrate not only a
defense but the sole defense at trial, then Confrontation can be judicially set aside
and with it Due Process as it is conceived by the federal and state constitutions.
ARGUMENT
“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.”
- Pointer v. Texas, 380 U.S. 400, 405 (1965).
It is the law in every courtroom of every jurisdiction of the United States
that “[t]he Constitution is offended if the state evidentiary rule would prohibit [the
accused] from cross examining a witness concerning possible motives, bias and
43Tex. Code of Crim. Pro. 38.07 (West 2013). As this case illustrates, cross examination as the
“crucible of truth” will often be that much more important in such cases. Petitioner's defense
was much weaker prior to the complainant's admissions on the stand.
12
prejudice to such an extent that he could not present a vital defensive theory.” 44
Yet, as the court below recognized in its panel opinion just as the en banc dissent
recognized that this is precisely what the trial court did in this case.
During the briefing of this matter on appeal the State has repeatedly sought
to characterize the issue before this Court as narrowly limited to the complainant's
2008 adjudication for an instance of the sexual abuse of his sister. 45 However, the
sexual abuse extended over a period of years and occurred both before and after
the complainant accused Petitioner of assault.46
Just as the 2008 adjudication and any incident giving rise to it was properly
subject to cross examination because the constitutional priorities of Confrontation
and a fundamentally fair trial trump Texas Rule of Evidence 609,47 so specific
instances of conduct governed by Rule 608(b) which are properly subject to
Confrontation when a denial of Confrontation rises to the level of deprivation of
the fundamental right of a fair trial and therefore Due Process. The panel opinion
appropriately recognized what is manifest in this case after a brief review of the
facts: the State’s case was the complainant's unsupported, uncorroborated
allegation and he had motive, means, opportunity and knowledge regarding sexual
matters – specifically as a longstanding sexual abuser – to effectively fabricate an
44 Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App. 2009)(emphasis added) citing
Davis v. Alaska, 415 U.S. 308, 316 (1974).
45 Most recently at page 5 of its Reply to the Petition for Discretionary Review.
46 R.R. 7: 149, 168; R.R. 8: 44.
47 Tex. R. Evid. 101(c) (West 2013).
13
allegation because complainant did not receive the Nintendo DS game from
Petitioner.48 That opinion recognized that this case turned on the trial court’s
pretrial ruling that Petitioner could not cross examine the complainant regarding
his adjudication for sexual abuse of his little sister.49 Additionally, the opinion
recognized that Petitioner was independently entitled to rebut the false impression
created by the State in its characterization of the complainant as just another
innocent youth manipulated by a devious predator.50
I. THIS ISSUE IS ABOUT THE ABUSE NOT THE ADJUDICATION
The significance of the 2008 adjudication for a single instance of sexual
assault in April of that year is that the complainant continued to sexually abuse his
little sister approximately a year after he made his allegation that Petitioner abused
him. The State has treated the 2008 adjudication in its Appellee's brief and Reply
to the Petition for Discretionary Review as though it were the only abuse, and
therefore, the only issue on appeal. The pre-allegation, longstanding sexual abuse
of complainant's sister is approached as though it simply did not exist. That
approach to the facts was subsequently been taken up by the en banc majority,
though the opinion does at least acknowledge the complainant's revelations that
48
Appendix A, Memorandum Op. at 11-13.
49 Id.
50
Id. at 7-8.
14
resulted from cross examination.51 At pretrial, the trial court had before it only this
juvenile court adjudication.52 However, the court became fully aware of the scope
of the longstanding abuse during the complainant's voir dire testimony.53
The State did not provide Petitioner information in its possession regarding
the complainant’s abuse of his sister until this matter was set for trial October
2009.54 Even then, the only information provided was the 2008 adjudication for a
single instance of abuse in April 2008.55 As it would turn out this was the
proverbial tip of the iceberg. At the subsequent pretrial following the continuance,
the State moved to bar cross examination into this abuse.56 In granting the motion
the court observed that the 2008 adjudication post-dated the complainant’s
allegation by approximately a year.57 Therefore, cross-examination into the
complainant’s abuse would have been prejudicial, potentially to both sides, given
the jury could well conclude that the complainant had been transferring the abuse
he suffered to his little sister.
When the complainant took the stand at trial but outside the presence of the
jury, counsel for the defense inquired of both the complainant and his father into
51 Appendix B, En Banc Op. at 6.
52 Appendix C at 4; R.R. 4: 7. The trial court later actually heard evidence contradicting this
basis for the court’s ruling yet did not reconsider that ruling. See R.R. 7: 58-63.
53 R.R., 7: 160-62.
54
R.R. 2: 14.
55
In fairness to the State, this may have been the only instance of which the prosecutor was
aware at the time.
56
R.R. 7: 61-62; 160-62.
57
Id. at 160-63.
15
the complainant’s abuse of his sister outside the presence of the jury. 58 Both
witnesses told different and contradictory stories which were initially roughly
similar in terms of general acts and dates but which broke down during the course
of the cross examination.59
Ultimately, the complainant admitted that he had been abusing his sister for
years before the allegation against Petitioner.60 He admitted that he had been
placed in some form of religious-based counseling for the abuse by his parents.61
He admitted that while he felt relieved by his allegation against Petitioner he did
not really feel bad about what he had done to his sister.62 Of course, the
complainant continued to abuse his sister up to a year after the allegation against
petitioner as the 2008 adjudication demonstrates.
This placed the trial court in a very different position than it had been at the
time of its pretrial ruling. The court had now heard testimony from the
complainant’s own mouth that the abuse of his sister had been ongoing,
longstanding, and had preceded his allegation against Petitioner by years. This
abrogated the court’s previous justification for not allowing cross examination into
the abuse. The trial court, however, did not reverse course.
58
Id. at 7: 58-62.
59
Id. at 61-62, 160-62.
60
Id. at 160-62.
61
Id.
62
Id. (characterizing his guilt for abusing her as “minute”).
16
The court had already heard testimony in the presence of the jury that the
complainant had been looking at internet pornography “numerous times,” was
dealing with social alienation by peers and had problems getting along with his
family, was depressed and had emotional problems for which he been in
counseling, and had been shoplifting and demanding trendy video games from his
father and Petitioner.63
Consequently, with the complainant’s revelation on voir dire, it suddenly
became apparent in the courtroom that the jury’s rational conclusions regarding the
testimony they had been allowed to hear took on a very different aspect in light of
the knowledge that the complainant had been sexually abusing his sister for years.
With the knowledge of longstanding, pre-allegation abuse, the jury could and
likely would conclude that the Petitioner had the motive, means and opportunity as
well as specific knowledge necessary to effectively fabricate an allegation to
transform himself from despised abuser to innocent, traumatized victim or in
retaliation for Petitioner giving the DS game to the youth group instead of to
complainant. Complainant stated that he was “pretty angry” that he did not get the
DS game from Petitioner.64 In the absence of this knowledge of longstanding
abuse on the other hand, the complainant appeared to have been an emotionally
struggling boy vulnerable to the machinations of a sexual predator, whose
63
R.R. 7: 142, 145, 148-49, 155, 158.
64
Id. at 146.
17
struggles and emotional problems were likely the result of the trauma of
Petitioner’s sexual assault.65
In other words, the ultimate outcome of deliberations came down to the
court’s willingness to reform its pretrial ruling in light of the new facts before it.
The court did not and gave no explanation despite the fact that the rationale for its
prior ruling manifestly no longer existed. Remarkably, the court went on to allow
testimony regarding Petitioner’s 30-plus year old adjudication for sexual abuse of a
teenager when he was in his twenties. The court’s stated reasoning was that
Petitioner had asserted fabrication even though he had not been allowed to develop
such a defense and had therefore opened the door to rebuttal.
II. THE EXCLUDED TESTIMONY WAS RELEVANT BECAUSE THE
LOGICAL CONNECTION/NEXUS BETWEEN THE COMPLAINANT’S
LONGSTANDING SEXUAL ABUSE OF HIS LITTLE SISTER AND
THE ALLEGATION IS MANIFEST.
The court below sitting en banc deems inquiry into complainant's sexual
abuse of his sister as not relevant.66 Texas Rule of Evidence 401 defines "relevant
evidence" as any evidence “having any tendency to make the existence of any fact
65
This longstanding abuse may also have shed light onto the peculiar investigation performed by
the Burkburnett Police Department in this case. The lead investigator in that case did not
interview the church youth minister to whom the complainant made the initial allegation, she
took on for herself the role of forensic interviewer though her experience in this capacity was
limited and the standard practice is to refer these matters to Patsy’s House, a regional facility that
performs these interviews. Id. at 8: 42, 56-57, 65-66. Even the complainant’s mother and
minister of the church were apparently never interviewed. Id. at 44, 66, 110, 160.
66
Appendix B, En Banc Op. at 14, note 2.
18
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”
This case was at its core a “swearing match.” These cases turn on credibility
because the prosecution’s case relies entirely on the testimony of its complaining
witness and the defense upon proof of fabrication through cross examination. The
jury is the sole arbiter of witness credibility. Consequently, this Court has held
that the Texas and federal constitutions mandate “great latitude when the evidence
deals with a witness’s potential bias, motive or interest to testify in a particular
fashion.”67 Similarly, this Court has held that the Rules of Evidence should be
used “sparingly to exclude relevant, otherwise admissible evidence that might bear
on the credibility of the defendant or complainant.”68
A. The State's Position as Adopted by the En Banc Majority Does Not
Address the Issue Properly before this Court.
The en banc opinion regarding counseling and which side “opened a door”
is a red herring. It is of no importance which party first brought up counseling.
Properly at issue is: (1) the deprivation caused by the trial court's ruling barring
inquiry into the complainant's longstanding sexual abuse of his little sister and (2)
the State’s strategy throughout the course of trial in depicting this case as one
67 Hammer, 296 S.W.3d at 561-62 (footnotes omitted).
68 Id.
19
involving a typical, innocent 12-year-old boy manipulated and then victimized by a
devious predator camouflaged by his position in a local church.
First, the longstanding abuse and the motive, means, opportunity and
knowledge it demonstrates is the issue, not the counseling the complainant
received for it and/or for other problems. Counseling has become a distraction on
appeal not only because it allows the State to avoid the issues but because it was
counseling that the trial court actually allowed the parties to inquire about when it
barred cross examination as to the abuse. Counseling is significant only in that it
was in the course of questioning about counseling that the complainant made his
revelation.69 From the point of the trial court's ruling barring cross examination the
constitutional deprivation requiring reversal was complete. Development of
Petitioner's sole defense at trial was barred and therefore admission of the
testimony of Glen McCoy regarding Petitioner's 30-plus year old conviction should
have been adjudged inadmissible to rebut the fabrication defense.
Both rulings were an affront to the notion of Due Process through
fundamental fairness. No mention of counseling need ever have occurred to
warrant reversal on this basis and no discussion of false impressions or opened
doors need be explored. This matter can and should be resolved on the basis of the
69
R.R. 7: 160-62.
20
trial court's ruling alone to provide clarity to courts dealing with such attempts to
scuttle Confrontation in swearing match cases.
The State proceeded at trial by portraying complainant as a typical youth,
reluctant to talk about sexual matters, but who had been taken advantage of and
manipulated by a devious predator concealed by his role in a local church. This
was elaborately and accurately developed in briefing on this issue and addressed in
the dissent to the en banc opinion.70
B. Complainant’s longstanding abuse of his sister was logically
connected to the abuse he alleged against Petitioner because it
showed his motive, means, opportunity and knowledge to fabricate
the allegation.
The complainant’s longstanding sexual abuse of his sister and his allegation
against Petitioner manifestly demonstrated a logical connection between the
accusation and disgust the complainant faced because it demonstrated he had
motive, means and opportunity to fabricate the allegation as well as the specialized
knowledge to effectively do so.
1. The prosecution created a false impression by characterizing
complainant as a typical, even innocent youth while vilifying Petitioner
as a manipulative, devious predator.
First, contrary to the characterization of the en banc majority, the State bears
responsibility for the characterization of its complainant as a typical, innocent
youth manipulated and assaulted by a devious wolf in sheep’s clothing at the
70 Appendix C, En Banc Dissent. at 3-6.
21
Church of the Nazarene.71 The State’s case in chief was the complainant’s
testimony. By placing the complainant on the stand and presumably having some
idea of the substance of how he would testify, the State shares responsibility for
any false impression he might create.
Further, during jury selection, the prosecutor asked panelists about their
training or experience dealing with sexual abuse.72 The prosecutor asked if a
panelists experience confirmed a boy might be reluctant to admit it or to talk about
it. This was clearly creating a false impression because the implication is that the
complainant was shy and embarrassed due to his innocence and because the
prosecutor knew very well that this witness was anything but an ordinary twelve
year old. Additionally, the State asked a panelist what evidence she might expect
to see in a child sexual abuse case. The prosecutor then engaged in a colloquy with
the panelist regarding the likelihood of evidence with respect to counseling,
impliedly due to a youth having been sexually abused.73 This is contrary to the en
banc majority’s characterization in its opinion.74
71
Appendix B, En Banc Op. at 10.
72
R.R. 6: 67-68, 74-75
73
Id. at 68-75.
74
Appendix B, En Banc Op. at 10. The en banc opinion goes on to point out that “Johnson’s
counsel asserted during closing arguments that [the complainant’s] ‘emotional counseling’”
rather than for his sexual abuse of his sister. Id. This is a mischaracterization which ignores the
complainant’s own admission that he was in counseling for the sexual abuse of his sister and his
parents had put him there. R.R. 7: 160-62. However, even were this so, this would only matter if
the appellate court were determining whether there existed an interpretation of facts sufficient to
22
The prosecutor went on to ask multiple panelists about how children might
be likely to act “after they have been victimized.”75 The prosecutor then went into
intra-familial sexual abuse, issues of a child’s credibility, and the effect of abuse on
a child.76 Therefore, counseling had been raised as an issue by the State and a false
characterization of the complainant and Petitioner made by the State as early as
voir dire. Furthermore, complainant testified that he had been watching
pornography “numerous times” from the age of ten.77 According to complainant’s
father, the family lived in Delaware at that time, before complainant ever met
Petitioner.78
In opening the prosecutor asked the jury to “do [their] best to look at this
through the lens of a 12, 13-year-old boy” and through the eyes of a fifty-year-old
deviant pervert.79 He characterized Petitioner as “cunning and opportunistic” and
as “deceitful.”80 The prosecutor argued in closing in a similar vein.81 Hence, the
State independently 'opened any doors' that could possibly have been opened.
From that point the Defense was entitled to inquire into the abuse of the
complainant’s little sister in order to rebut the false impression created by the State.
support a verdict. Here, the analysis is whether the trial court was justified in keeping one side
of the facts from the fact finder.
75
R.R. 6: 73.
76
Id. at 48-51.
77
R.R. 7: 128.
78
R.R. 7: 45.
79
Id. at 16-17.
80
Id.
81
Appendix B, En Banc Op. at 11.
23
2. It was Petitioner’s constitutional right to cross examine the complainant
regarding the relationship of any mental condition for which he received
treatment to his motive to fabricate the allegation.
Second, the en banc majority reasons that because Petitioner was able to ask
about the complainants’ theft, pornography exposure, poor relations with peers and
family, that he wanted video games from his father and that he was in counseling
for ‘emotional problems,’ Petitioner had an adequate opportunity to show
Petitioner’s mental health.82 This ignores the purpose of allowing inquiry into the
mental health of a complainant articulated in Virts v. State.83
In that case, this Court held that the details of the condition and treatment
for which a complainant was subject to treatment were subject to cross
examination because those details and condition could demonstrate a motive to
fabricate.84 Allowing superficial cross examination which merely shows that the
complainant had some sort of ‘emotional problems’ and was in counseling for “just
dealing with stuff”’ and “everyday teenager stuff” and “he was depressed
somewhat,” and ‘the usual teenage stuff’ cannot be said to constitute cross
examination into any condition and treatment which might provide an a motive to
fabricate.85
82
Id. at 11-12
83
739 S.W.2d 25, 30 (Tex. Crim. App. 1987).
84
Id. at 28.
85
R.R. 7: 61.
24
Further, the en banc majority ignores that the complainant got on the stand
in voir dire and rebutted these very characterizations for his counseling, stating that
he was in counseling for repeatedly sexually abusing his little sister over a period
of years prior to the allegation and that his parents put him there for that reason.86
3. Petitioner was entitled to cross examine the complainant when he put
his credibility in issue by contradicting his own prior testimony and that of
his father.
Third, the en banc majority next focused narrowly on the complainant’s
statements that his allegation against Petitioner was a “weight off his shoulders”
but he felt “minute guilt” at years-long sexual abuse of his sister.87 The majority
stated that “the connection between his relief after telling someone about Petitioner
and his guilt about this sister is tenuous at best.”88 This recharacterizes the issue of
logical connection/nexus articulated in Irby v. State by placing it on the
relationship between these two inconsistent statements rather than on the
relationship of the years-long abuse of complainant’s sister to his allegation.89
Petitioner was entitled to cross examine the complainant when he made two
logically inconsistent statements, one in front of the jury and one outside their
presence because this put his credibility in issue. “The proper scope of cross-
examination includes ‘all facts and circumstances which, when tested by human
86
R.R. 7: 160-62.
87
Appendix B, En Banc Op. at 12.
88
Id.
89
327 S.W.3d 138, 145-54 (Tex. Crim. App. 2010).
25
experience, tend to show that a witness may shade his testimony for the purpose of
helping to establish one side of the cause only.’”90 Feeling relief by accusing
someone is clearly not consistent with “not” feeling guilty by hurting someone.
This put the complainant’s credibility in issue.
The lower court cites Chitwood v. State, for support.91 That case involved
an Appellant’s attempt to show that two complainants who had alleged sex acts
against him had had sex with another adult male on another occasion though one
disputed the incident.92 There was nothing more. The court concluded Appellant
merely sought to attack the complainants’ general credibility and that therefore the
cross examination could be irrelevant, embarrassing and potentially traumatizing.93
Hence, this line of cross examination was barred due to the utter absence of
any articulable motive constituting a “viable defensive theory” within the meaning
of Texas Rule of Evidence 412(b)(3) present under the facts of that case.94 Here,
the totality of facts clearly suggest motive, means, opportunity and knowledge.
The complainant was sexually abusing his sister for years before the allegation and
up to a year after.95 At the very least his parents and sister have to have known
90
Koehler v. State, 679 S.W. 2d 6, 9 (Tex. Crim. App. 1984) citing Jackson v. State, 482 S.W. 2d
864, 868 (Tex. Crim. App. 1972) (emphasis added).
91
Appendix B, En Banc Op. at 12 citing 350 S.W.3d 746, 748 (Tex.App.—Amarillo 2011, no
pet.).
92
Id. at 47.
93
Chitwood, 350 S.W.3d at 748-49.
94
Id. at 748, citing Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009).
95
R.R. 7: 149, 162-63.
26
about it and he testified they did.96 He did not get along with his mother and was
not on speaking terms with her, was distant from his father, and (presumably) his
sister.97
He was having trouble with peers at school.98 His father characterized this
as “bullying” though it seems obvious that there can be sound reasons your peers
just do not like you very much.99 He had been caught shoplifting video games he
had been demanding from his father and Petitioner.100 He and Petitioner had
confided in one another.101 He was in counseling for the years-long sexual assault
of his sister which his parents had arranged for him at least in part for this
reason.102 He may or may not have been under investigation with the Burkburnett
Police Department or cooperating with them, though either might explain the
peculiar manner in which the investigation was handled.
An allegation of sexual assault timed as it was could have transformed the
complainant from despised, sociopath and incestuous predator to pitied victim
whose struggles were the result of Petitioner’s heinous assault. It could have
transformed him from suspect to cooperating informant. It is difficult to conceive
96
Id.
97
Id. at 60, 106, 148.
98
Id. at 61.
99
Id. at 59, 61-62, 65.
100
Id. at 58-59.
101
Id. at 118.
102
Id. at 160-63.
27
a set of facts that suggest a more viable defensive theory within the meaning of
Hammer v. State than those present here in regards to swearing match cases.
Again, the en banc majority depends upon an inaccurate version of the facts
to justify its conclusion that complainant’s testimony presents no motive to
fabricate. That is, that the only instance of abuse was the 2008 adjudication which
occurred after complainant’s allegation.103 This utterly ignores the complainant’s
own testimony.104 Essentially, the en banc majority picks and chooses among the
facts in order to determine what it, as fact finder, elects to believe.
4. The superficial cross examination permitted into shoplifting, lying,
access to pornography and the like did not constitute Confrontation
sufficient to allow Petitioner to develop a complete defense.
Fourth, the en banc majority reasons that because the cross examination that
was allowed as to the “being somewhat depressed,” theft, problems socializing,
and the like (“a glut of evidence”), Petitioner had adequate opportunity to show the
complainant had motive to “get attention” in order to “get himself out of trouble in
the eyes of his parents.”105 Limiting Petitioner’s defense in this manner effectively
eviscerated Petitioner’s core defense of fabrication leaving Petitioner to present
what the court would allow. The United States Supreme court ruled in Holmes v.
South Carolina that the Sixth Amendment guarantees defendants the right to
103
Appendix B, En Banc Op. at 6.
104
R.R. 7: 160-62.
105
Appendix B, En Banc Op. at 12.
28
present a complete defense.106 With such an incomplete defense, Petitioner was
left with hoping the jury would connect the dots and conclude there was something
more going on with this complainant.
Of course, parents might understandably be distracted from whatever recent
poor behavior a child has engaged in that the child claims to have been sexually
assaulted. That motive would seem to be potentially present in every case.
However, it is not in every case that the complainant has clear motive to redirect
what the totality of the facts suggest is considerable disgust which transformed the
complainant’s life or where he had considerable motive to redirect immediate
scrutiny given he would continue to sexually abuse his sister.107
The majority additionally argues that there is no logical connection or nexus
between an allegation and motive to fabricate just because it can be suggested it
would distract attention from a complainant’s other acts or because it would focus
attention on the complainant as cherished child rather than the child’s bad
behavior. The opinion invokes the Irby logical connection requirement for this
proposition.108 However, this characterization again ignores the facts of this case
and supplants them with those of another case involving an attempt merely to
engage in a mud-slinging expedition involving a witness’ “general credibility.”
106
Holmes v. South Carolina, 547 US 319, 324 (2006).
107
R.R. 7: 149, 160-62.
108 Appendix B, En Banc Op. at 13.
29
5. Cross examination that was allowed into the complainant’s having
surfed pornography did not constitute Confrontation sufficient to allow
Petitioner to develop his defense.
Fifth, the en banc majority argued that because Petitioner was able to ask
about the complainant’s having accessed Internet pornography, he had adequate
opportunity to show the complainant’s knowledge of sexual matters in order to
effectively fabricate an allegation.109 Again, the majority recharacterizes this case
as a Chitwood-like attack on general credibility while utterly ignoring the facts.
Having oneself sexually abused a victim for years and been subject to the
scorn and opprobrium that accompanies such conduct is distinct from doing what
virtually every 12-year-old boy who can get online is apt to do at some point.
These two things are distinct. Being a sexual abuser provides knowledge and
therefore means to effectively fabricate an allegation. To deem otherwise is
contrary to common sense and supplants the role of the jury. As a direct
consequence, the trial court’s ruling barring Confrontation was superseded by the
constitutional priority of the fundamental right to a fair trial from the point the
complainant admitted to the longstanding, pre-allegation abuse of his sister. This
Court has recognized independent bases over time under which Confrontation is
required in swearing match cases. It is a testament to the dramatic deprivation of
Due Process in this case that several of these bases are squarely implicated in this
109
Id.
30
case. Conversely, if the State is correct, then counsel for Petitioner was bound to
sit mute and these swearing match cases going forward are reduced to merely the
appearance of trial on the merits. In Texas, we will then have the portrayal of Due
Process but not the actuality. That is what a deprivation of Confrontation does to
everything a trial is about, as this Court recognized in Pointer.110
III. THE EN BANC HOLDING RELIES ON READING OF THE RECORD
WHICH SELECTIVELY IGNORES INCONVENIENT FACTS.
Although the En Banc majority at least acknowledges that the complainant
testified he had been sexually abusing his sister for years before his allegation
against Petitioner, it ignores this testimony in arriving at its holding. Again, Irby
only governs the 2008 adjudication which demonstrates the complainant's motive,
means, opportunity and knowledge to fabricate. This appeal is not narrowly about
the complainant's 2008 adjudication for sexual abuse of his little sister. It is
complainant's longstanding sexual abuse of his little sister, which occurred both for
years before his allegation and for at least approximately a year afterwards, which
is at issue. Obviously, the July 2008 incident which finally produced an
adjudication is afterward.111 In his own words, the complainant had been sexually
abusing his sister for years by 2007 when he made the allegation of abuse by
110
Pointer, 380 U.S. at 405.
111
The assault occurred in the April to June 2007 time frame. This is reflected in the indictment
and was the complainant's and father's own testimony although counsel for Petitioner at trial did
erroneously say “November 2007” several times during cross examination. R.R. 7: 83, 89, 122.
31
Petitioner.112 The State and en banc majority consistently cite to the complainant's
testimony earlier in the record together with his father's to the effect that this abuse
was more limited in scope, ignoring the complainant’s later testimony on cross
examination outside the presence of the jury.113
In a similar vein, the opinion inaccurately references the State's Brief and
Reply by stating complainant's counseling in fall 2007 “was based solely due to his
relationship with his parents.”114 Again, the complainant testified outside the
presence of the jury repeatedly that this counseling was for sexual abuse of his
sister and that his parents had arranged it for that purpose.115
The complainant made clear that he was in counseling for sexual abuse of
his sister before he made his allegation against Petitioner in 2007.116 Again, there
was previous contradictory testimony on this from the complainant's father. 117 It
seems clear from the adjudication of the April 2008 abuse that the complainant was
still molesting his sister up to a year after that allegation was made.
The danger of this practice of choosing only the most convenient facts to
support one's position is that, from a hurried, skin-deep reading of the record, it
actually gives the appearance that complainant's abuse of his sister occurred after
112 R.R. 7: 160-62
113 R.R. 61-62, 160-62.
114 Appendix B, En Banc Op. at 10.
115 R.R. 7: 162.
116 Id.
117 Id. at 61-62
32
the alleged assault by Petitioner and so makes the complainant appear to have been
perverted into the status of a sexual abuser by his exposure to Petitioner.
Just to ensure that a complete reading of the record is the basis for this
honorable Court’s determination, the relevant portion of the complainant’s own
testimony from Volume Seven, pages 160-162 [emphasis added] follows:
"[Petitioner]: You said that you felt -- and I don't
know what your words were, but you
felt like you were relieved after you
told all of this [the allegation against
Petitioner] to Jimmy and the authorities
ties, correct?
"[Complainant]: Yes.
"[Petitioner]: You had been sexually abusing your
sister for a number of years, had you
not?
"[Complainant]: Yes
"[Petitioner]: Did you tell them every time that you
did that?
"[Complainant]: Who?
"[Petitioner]: You parents?
"[Complainant]: Yes. They knew.
"[Petitioner]: Every time?
"[Complainant]: Yes. I went through treatment so
they had to know.
33
"[Petitioner]: Well, I'm talking about in the fall of
2007.118
"[Complainant]: Back then? No they did not know.
"[Petitioner]: Okay. And did you have -- I'm trying to
-- did you feel guilt over that?
"[Complainant]: Yes.
"[Petitioner]: In the fall of 2007?
"[Complainant]: Minute guilt, yes.
"[Petitioner]: Minute guilt?
"[Complainant]: Yes.
"[Petitioner]: I'm trying to figure out how you will
feel this emotion is lifted off you
when somebody allegedly did some
thing to you, but you feel minute guilt
over your sister?
"[Complainant]: Was that a question?
"[Petitioner]: Yes.
"[Complainant]: I don't know.
"[Petitioner]: Okay. You -- you're not a sex addicts,
whether it be through watching
pornography or abusing your sister or
what you claim to have happened
with Joe, they didn't make you feel
guilt at all, did they?
118
Counsel for Petitioner mistakenly refers to the date of the alleged assault as fall or November
2007. It is undisputed that the alleged assault took place in the April to June 2007 time frame.
See supra n. 35. The date of indictment lists April 10, 2007. See C.R. 2.
34
"[Complainant]: Yes, they did.
"[Petitioner]: You didn't feel guilty with what you
did with Joe, did you? What you
claim you did with Joe?
"[Complainant]: Yes, I did.
"[Petitioner]: Alright, and after you released this
information and were relieved and felt
better about it, you continued to
abuse your sister, correct?
"[Complainant]: It wasn't the end, but they put -- my
parents put me in counseling for
that reason. That's why I was in
counseling at the Christ Care thing.
"[Petitioner]: In the -- in the Fall of 2007?
"[Complainant]: Yes, that's why I was in counseling.
"[Petitioner]: And that's one of the things you
were struggling with in November
of 2007?
"[Complainant]: Yes.
"[Petitioner]: And that was contributing to your
emotional difficulties?
"[Complainant]: A little bit, yes.
“[Petitioner]: I’ll pass the witness your honor.
“REDIRECT EXAMINATION
35
“[Prosecutor]: Heath, I want to – I want to clear up any confusion.
Are you saying that you were struggling with the
sexual abuse with Joe during November 2007 or what
was happening at home with your sister.
“[Complainant]: Both
“[Prosecutor]: When you started counseling, your parents didn’t
know about the sexual abuse with your sister or Joe,
did they?
“[Complainant]: They did not know about the sexual abuse with
Joe, but they knew about the sexual abuse of my
sister. They had guessed what was happening and
they wanted it to stop.
“[Prosecutor]: Okay.
“[Complainant]: And they were trying to find out through the counselor
if I had or not.”
The complainant also testified to the other problems he was having and for
which he was in counseling well before any allegation against Petitioner.119 The
complainant's father had already testified outside the presence of the jury that the
complainant had been in counseling at Christ Home Place Ministries (CHPM) in
May 2007 for issues which did not include the complainant's sexual abuse of his
little sister which, in his own words, would have been already years longstanding
at any point in the year 2007:
119
Id. at 156-60.
36
"Petitioner: Now, was your son undergoing any type
of counseling or therapy in the fall of
2007?
"Witness: Yes.
"Petitioner: Where at?
"Witness: Christ Home Place
"Petitioner: And what was it for?
"Witness: Just dealing with things.
"Petitioner: What things?
"Witness: School. I believe he was depressed
somewhat.
"Petitioner: What else?
"Witness: And the – I believe the pornography thing
came – thing came up.
"Petitioner: Okay. Was he being treated because of
sexual abuse to his sister?
"Witness: No.
"Petitioner: What was he depressed about?
"Witness: I have no idea, just everyday teenager
stuff, I guess.
"Petitioner: What problems was he dealing with at
school that he had to go to Christ Home
Place Ministries?
37
"Witness: Kids were bullying him. They would – I
know on one instance, some kid came up
behind him and ripped his new hoodie.
"Petitioner: Okay. Would it be fair to say that his emotional
state in November 2007 was not good?
"Witness: He was probably dealing – he was dealing with
some stuff.
"Petitioner: Okay. Would you – so his – he was depressed, he
was having relationship problems with his mother,
he was getting counseling, he was being bullied at
school. You would agree with me, he – he was
having emotional problems in November 2007
when he made this outcry?
"Witness: I guess that would be plausible to say.
"Petitioner: In November – in the fall of 2007, had you
caught him having any kind of sexual contact
with his sister?
"Witness: When?
"Petitioner: The fall of 2007.
"Witness: No. I'm sorry, let me take that back. No. It
was not May – not fall of 2007.”120
The complainant's father goes on to testify that he could not remember when
he and his wife placed their son in CHPM counseling, how long he had been in
120It seems possible that the mistaken reference to November may account for the complainant's
father's denial that his son was in fact in counseling for sexually abusing his sister at the time of
the allegation, as the complainant testified. There were at least two forms of counseling and all
this had happened some five years' prior.
38
treatment there, or if it preceded April 2007, the earliest possible point at which the
complainant testified the alleged assault could have occurred.121 The complainant
had testified he could not remember when the assault occurred and that it could
have been in April, May or June 2007, the time frame when the complainant and
State place the assault.122
It is undisputed that court-ordered counseling likely also occurred in 2008
after the State adjudicated an instance of the sexual abuse of complainant's little
sister that had already been going on for years by the time of the allegation. There
can be no question after a reading of the testimony which was kept from the jury
that the complainant's sexual abuse of his little sister was occurring well before his
allegation of assault by Petitioner. Petitioner was having a number of problems to
include his lying, use of pornography and the fact that he did not get along with his
peers and family members.
These problems may well be the symptoms of a young sociopath dealing
with the opprobrium directed at a sexual predator or even the result of sexual abuse
tolerated within the family or even passed down. It may suggest motivations
stemming from a number of things other than sexual assault by Petitioner. It can
never be known because Confrontation was denied, leaving the State free to
121 Id. at 66.
122 Id. at 89, 122-24.
39
characterize the complainant as just another youth victimized by a pervert. At the
very least we know that the complainant was troubled prior to ever meeting
Petitioner. It is clear that by 2007 the complainant had motive, means and
opportunity to relieve himself of the opprobrium he was experiencing for sexually
abusing his sister and the knowledge to fabricate and allegation effectively so as to
portray himself as a victim, rather than a predator.
IV. THE TRIAL COURT’S WIDE LATITUDE TO DETERMINE
CONSTITUTIONALLY PROTECTED CONFRONTATION DOES
NOT INCLUDE DEPRIVING PETITIONER OF A “VIABLE
DEFENSIVE THEORY” LET ALONE HIS SOLE DEFENSE AT
TRIAL.
This Court has held that while the Texas and federal constitutions mandate
“great latitude when the evidence deals with a witness’s potential bias, motive or
interest to testify in a particular fashion” and the Supreme Court of the United
States “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[,]” “[t]he
Constitution is offended if the state evidentiary rule would prohibit [the accused]
from cross examining a witness concerning possible motives, bias and prejudice to
such an extent that he could not present a vital defensive theory.” 123 Specific to
admissions of juvenile adjudications, this Court has held that the defendant must
123 Hammer v. State, 296 S.W.3d at 561-63.
40
demonstrate “logical connection” or “nexus” between the allegation and the
witness' past sexual conduct.124
It is true Petitioner could say “the complainant fabricated his allegation” all
he wanted. However, the trial court's ruling barred him from asserting the defense.
Perversely and ironically, the ruling made any attempt to ask the complainant
about anything at all exacerbate the State's portrayal of complainant as a young
innocent manipulated by a devious predator.
In determining whether a defense was asserted/developed, asking about a
boy's exposure to Internet pornography, “emotional problems,” shoplifting, or
difficulty getting along with family and peers can hardly be likened to the
opportunity to show that the complainant was and had been (and as it turned out
would continue to) sexually abusing his little sister for years, that this was the
reason he did not get along well with his family members, potentially with his
peers, and that his theft and lying and blackmailing of Petitioner to get this
handheld game might well have been indicative and symptomatic of the fact that
he was a sociopath who knew firsthand the scorn of being a sexual abuser; how
effectively to go from being a despised predator to a victim with a falsified outcry.
124Irby, 327 S.W.3d at 145-54, (discussing law regarding admission of victim’s status as
probationer and concluding evidence not admissible because appellant failed to show “logical
connection” between the victim’s testimony about his sexual encounters with appellant and his
separate probationary status); cf. Arriola v. State, 969 S.W.2d 42, 43 (Tex. App.—Beaumont
1998, pet. ref’d) (holding evidence of specific instances of victim’s past sexual behavior
inadmissible because appellant failed to establish a “nexus between that conduct and a motive for
bringing false accusations”).
41
Van Arsdall provides that the trial court retains wide latitude to impose
reasonable limits on cross-examination “based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”125 However, this can
never be appropriate in a swearing match case where the accused is deprived of
cross examination into subject matter that suggests motive, means and opportunity
to fabricate.
A violation of the Confrontation Clause is subject to a harmless error
analysis.126 In the context of improper limitation of cross-examination, the Texas
Court of Criminal Appeals applies the three-pronged test established in Delaware
v. Van Arsdall.127 First, the appellate court must assume that the damaging
potential of the cross-examination was fully realized.128 Second, with that
assumption in mind, the appellate court must review the error in connection with
the following factors: (1) the importance of the witness’s testimony in the
prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points; (4) the extent of cross-examination otherwise permitted; and (5)
125 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
126 Tex. R. of App. Pro. Rule 44.2(a); Shelby v. State, 819 S.W. 2d 544, 546 (Tex. Crim. App.
1991) citing Van Arsdall, 475 U.S. at 684.
127
Shelby, 819 S.W. 2d at 547.
128
Van Arsdall, 475 U.S. at 684.
42
the overall strength of the prosecution’s case.129 Finally, in light of the first two
prongs, the appellate court must determine whether error was harmless beyond a
reasonable doubt.130 Applying this standard to the constitutional harmless analysis,
there was no biological, medical or forensic evidence presented at trial. The
complainant's outcry that Appellant had molested him was delayed for some six to
seven months. There were no other eyewitnesses to these sexual allegations and
there was nothing adduced at trial to corroborate the allegation. The complainant's
credibility was the main issue as to the weight of his testimony. That credibility
was in question after his testimony outside the presence of the jury when he was
impeached, contradicted himself, and made logically inconsistent statements.
Therefore, there can be no doubt that this error was not harmless beyond a
reasonable doubt to Appellant or that any considerations of efficiency or protection
of the witness can trump the constitutional priority of a full and unfettered cross
examination.
CONCLUSION
It is difficult to overstate the impact in this case of the trial court’s ruling
denying Confrontation. It cut off at the knees Petitioner’s sole defense at trial. It
excluded entirely any inquiry into the subject area which would have demonstrated
129
Id.
130
Id.
43
the motive, means and opportunity the complainant had to fabricate the allegation
against Petitioner as well as to demonstrate that he was a very different person than
the State, the complainant and his father made him out to be during voir dire and
trial.
Hence, the blanket denial of cross examination prevented the Petitioner his
opportunity to develop a complete defense of fabrication, his sole defense at trial.
Yet, the trial court allowed the extremely prejudicial testimony of the victim of
Petitioner’s convictions in the early 1980s to rebut the defensive theory that was
never fully developed. This violated his right of Confrontation under the Sixth
Amendment of the U.S. Constitution and Article I Sections 10 and 19 of the Texas
Constitution. It additionally denied him Due Process of Law under the Fifth and
Fourteenth Amendments of the U.S. Constitution and Article I Sections 10 and 19
of the Texas Constitution. This denial was additionally contrary to Texas Rules of
Evidence 404(b) and 412(b)(1)(C).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays
this Court grant discretionary review and, either summarily or after full briefing on
the merits reverse the ruling of the trial court on both counts of aggravated assault.
Respectfully submitted,
/s/ Jeff Eaves
Jeff Eaves
44
State Bar No. 24045820
900 8th St., Ste. 1400
Wichita Falls, Texas 76301
(940) 322-2002
Fax: (940) 322-1001
/s/ Todd Greenwood
Todd Greenwood
State Bar No. 24048111
813 8th St. Ste. 550-K
Wichita Falls, Texas 76301
Tel./Fax: (940) 689-0707
ATTORNEYS FOR PETITIONER
45
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of June 2015, a true and correct copy of
the foregoing Petition for Discretionary Review was hand delivered to Maureen
Shelton, District Attorney and Carey Jensen, Assistant District Attorney, Wichita
County Courthouse, Wichita Falls, Texas 79301 and emailed to Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, at
information@spa.texas.gov.
/s/ Jeff Eaves
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4, the undersigned certifies that this brief complies
with the type-volume limitations.
1. Exclusive of the exempted portions, this brief contains 10,192 words as
indicated by the word count function of Microsoft Word.
2. This brief has been prepared in proportionately spaced typeface in Times New
Roman, 14 pt. font except for footnotes which are in 12 pt. font.
3. If the Court requests, the undersigned will provide a print version of the brief
and/or copy of the word or line printout.
4. The undersigned understand a material misrepresentation in completing this
certificate, or circumvention, of the type-volume limits, may result in the Court’s
striking the brief and imposing sanctions against the person signing the brief.
Respectfully submitted,
/s/ Jeff Eaves
Jeff Eaves
/s/ Todd Greenwood
Todd Greenwood
46
APPENDIX A
47
APPENDIX B
48
APPENDIX C
49