In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00197-CR
__________________
MICHAEL WAYNE KELLY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 17-10-12451-CR
__________________________________________________________________
MEMORANDUM OPINION
Following a jury trial, which resulted in his conviction for continuous sexual
abuse of children, Michael Wayne Kelly appealed.1 On appeal, Kelly argues that
various rulings by the trial court excluding evidence he wanted to develop on cross-
examination violated his constitutional right to confront the witnesses who testified
against him. But the record does not show the rulings Kelly challenges significantly
1
Tex. Penal Code Ann. § 21.02.
1
undermined his ability to develop evidence supporting his theory that the witnesses
who testified were lying about what they said he did.2 Because the trial court did not
violate Kelly’s rights under the Sixth Amendment by excluding the evidence he
complains about in his brief, we will affirm.
Background
To simplify the opinion, we limit our discussion of the evidence to the parts
we need to explain our resolution of the arguments Kelly included in his brief. The
testimony in the trial shows Selena and Kendall are Kelly’s daughters.3 Sam is
Selena’s mother. Kristen is Kendall’s mom. Selena and Kendall are the children the
State charged Kelly with molesting.
In Kelly’s sole issue, he argues the trial court excluded evidence he should
have been allowed to develop to prove that Kristen, Sam, Selena, and Kendall had
motives or biases to testify against him in his trial. According to Kelly, the
restrictions the trial court placed on his attorney kept his attorney from proving
Kristen, Sam, Selena, and Kendall had motives that led them to lie about what they
claimed he had done to molest Selena and Kendall when he cared for each child.
2
U.S. CONST. amend. VI.
3
To protect the privacy of the children and their respective families, we have
not identified the children or their mothers by using their real names. Instead, we
will use Selena as a pseudonym for Kelly’s oldest daughter; Sam as a pseudonym
for Selena’s mother; Kendall as a pseudonym for Kelly’s youngest daughter; and
Kristen as a pseudonym for Kendall’s mother.
2
Kelly supports his brief with four basic arguments. First, he argues that, had he been
allowed to conduct more thorough cross-examinations, he could have developed
more evidence than he did to prove what the witnesses said about what he did to
Selena and Kendall was not true. Second, he argues that by conducting more
thorough examinations, he could have shown that in January 2014, Kendall acquired
knowledge about sex, including the acts she attributed to him, from several children
touching her in places on her body that he contends would have informed her
knowledge about sex. Third, Kelly claims that had he been allowed to prove Kendall
first experienced sexual contacts with these children, he could have shown Kendall
lied to her mother when, in October 2014, she told her mother no one had ever
touched her private parts. Fourth, Kelly argues that had he been allowed to develop
evidence about the conduct between Kendall and the children, he could have shown
the types of acts she engaged in with them were much like those Kendall, several
months later, attributed to him.
Shortly before the State called its first witness, Kelly explained he wanted to
introduce evidence about the sexually related encounters between Kendall and the
children she was living with in January 2014 to develop testimony about what
happened in those encounters given what Kelly described about them to a school
counselor shortly after the encounters occurred. The prosecutor responded that
Kelly’s summary of what the counselor described failed to describe sexually related
3
conduct that resembled the acts Kendall attributed to him. After considering the
arguments and reviewing the counselor’s report, the trial court ruled Kelly’s attorney
could “not [] go into any allegations of [Kendall’s] prior sexual abuse or sexual
conduct . . . at this time.”
When Kelly’s attorney later tried to develop evidence when questioning
witnesses about the encounters Kendall experienced with the children she was living
with in January 2014, the trial court sustained the State’s objections. The trial court
also sustained the State’s objections to questions Kelly’s attorney tried to ask Selena
to develop what Kendall told Selena about what the children she was living with did
to her in the encounters that occurred in January 2014.
Standard of Review
Under the Rules of Evidence, “[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 [the
error was properly preserved under the rules of error preservation for appeal].” 4 But
rulings excluding “evidence are unconstitutional only if they ‘significantly
undermine fundamental elements of the accused’s defense.’”5 Thus, to prevail on his
Confrontation Clause claim when the complaints address whether the trial court
unduly restricted the scope of a defendant’s cross-examination, we must decide (1)
Tex. R. Evid. 103(a).
4
Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (quoting U.S. v.
5
Scheffer, 523 U.S. 303, 315 (1998)).
4
whether the trial court erred by excluding the evidence, and (2) whether the trial
court significantly undermined the defendant’s right to present his defense given all
the evidence admitted in the trial.6
Analysis
Kelly argues that by restricting his rights to conduct the cross he wanted, the
trial court significantly undermined the ability his attorney would have otherwise
enjoyed in proving that Selena and Kendall “had a motive and bias to make false
allegations against [him.]” For five reasons, we disagree.
First, the record shows the trial court allowed Kelly to prove that Selena and
Kendall each wanted Kendall to live with Kristen during and following the child
custody battle that had erupted involving Kendall’s parents. When Kelly’s attorney
cross-examined the witnesses who testified in Kelly’s trial, he established the
allegations against Kelly first came up in the context of a recently filed child custody
case between Kendall’s parents. For example, while cross-examining Kendall,
Kelly’s attorney developed that when Kendall was interviewed in October 2014 by
a forensic interviewer, Kristen told Kendall “the things that [she] needed to
remember to say[.]” The trial court also allowed Kelly’s attorney to cross-examine
witnesses about whether Selena had lied. On cross, Kelly’s attorney proved that
when Selena was first interviewed in November 2019 about claims of sexual abuse,
6
Scheffer, 523 U.S. at 315; Potier, 68 S.W.3d at 666.
5
she told the interviewer Kelly had never abused anyone. In Selena’s second
interview, which occurred in July 2016, Selena testified that what she told the
forensic interviewer during her first interview was a lie.7 While on cross, Kelly’s
attorney asked Selena to explain why she changed her account about what she
claimed Kelly had done. Selena testified she changed what she said because she had
feelings of guilt about her failure to protect Kendall given her role as Kendall’s big
sister. We conclude this evidence reflects the trial court did not prevent Kelly from
developing evidence to support his claims the witnesses had a motive to testify
against him in his trial.
Second, the record shows that Kelly called a neuropsychologist as an expert
witness. During his testimony, the expert explained why the incidence of false claims
of abuse increase when the claims arise against the backdrop of an impending suit
over the parent’s custodial rights. The neuropsychologist testified: “[A] sexual abuse
allegation in a child custody case is the back door to winning the case.” And he
testified, in cases where the dispute involves custody, the incidence of false claims
of sexual abuse soar to around fifty percent due to the risk that the child’s outcry
originated with the parent, not the child. Kelly’s expert explained that families that
are dysfunctional manipulate others to achieve their goals. He said “dysfunctional
7
In the first interview, which occurred in November 2014, Selena explained
that she said Kelly “did nothing to [her] and that he was a good guy.”
6
famil[ies are] destructive and use destructive methodologies to achieve their evil
intentions.” Kelly then linked the expert’s testimony to other testimony he developed
through his cross to show that Selena and Kendall both were raised by mothers
presiding over dysfunctional homes. Kelly’s expert explained that dysfunctional
family dynamics increase the rate of false allegations. According to the
neuropsychologist, when the child is a teenager, (which the evidence revealed was
true in Selena’s case when the claims arose), the risk of false allegations
increase. The expert also testified that the risk of false claims increases when
children are required to undergo multiple interviews (like Selena) when there are
allegations that someone has been sexually abused. Thus, Kelly did develop
evidence to support his claims of bias.
Third, the questions Kelly’s attorney asked when he cross-examined the
witnesses demonstrate he developed testimony to show Selena and Kristen were
raised in homes by mothers who created a great deal of dysfunction within their
respective homes. For example, on cross, Sam testified she has six children, uses
drugs, and is an alcoholic. Sam explained that until 2012, she was employed by a
sexually oriented business. Kelly also established information on cross-examining
witnesses that shows Kristen also had used various illegal drugs that impaired her
memory. Kristen explained that at age fifteen, she was hospitalized and treated for
drug abuse. And while Kristen was living with her boyfriend, she was aware that
7
people were using drugs in the home. Kristen also described the circumstances that
led to her seeing an attorney so she could obtain court-ordered custody rights to keep
Kendall. Kristen agreed that Kelly had alleged she has mental health issues and uses
drugs in the case he filed, which he hoped would lead to establishing his right to
keep Kendall. And Kristen explained that in a custody battle she had with another
man over another child, that the case ended when her boyfriend was awarded
custody. This testimony shows the trial court did allow Kelly’s attorney to develop
evidence to support his defense.
Fourth, the trial court did not abuse its discretion by finding the evidence
Kelly’s attorney wanted to develop concerning the alleged sexually related
encounters between Kendall and some children was not relevant. The record shows
the types of acts involved in Kendall’s encounters with the children are not like the
ones she attributed to him. And even if the acts had some relevance, introducing
evidence that would reveal a sexual-assault victim’s prior sexual conduct is
generally inadmissible.8 While it’s true that Rule 412 making such evidence
generally inadmissible is not a rule that has no exceptions, including one that makes
such evidence relevant if it tends to show “the victim’s motive or bias[,]” we are not
persuaded the trial court abused its discretion when it refused to apply the exception
Tex. R. Evid. 412(a)(2) (making specific instances of a victim’s past sexual
8
behavior generally inadmissible in criminal trials).
8
to the evidence Kelly wanted to develop during his trial. 9 As to relevance, the record
does not show there is any similarity between the sexual acts Kendall described to a
school counselor in January 2014 and those Kendall attributed to Kelly. 10 And even
if Kendall’s encounters with those children are relevant to show motive or bias, Rule
412 allows trial courts to exclude evidence regarding a victim’s prior sexual behavior
if admitting the evidence is unduly prejudicial to the issues the jury must decide in
the trial.11 We conclude the trial court did not abuse its discretion by excluding the
evidence about Kendall’s encounters with the children both because it was not
relevant and because admitting it would have been unduly prejudicial.
Fifth, Kelly had the right to call—but did not—witnesses to express opinions
about Selena’s and Kendall’s reputations for telling the truth. Calling reputation
witnesses is the manner the Rules of Evidence allows parties to prove a witness is
lying.12 Even then, the parties may not ask reputation witnesses to testify about prior
specific instances of conduct. 13 We conclude the trial court did prevent Kelly from
developing evidence relevant to his defense that Selena’s and Kendall’s accusations
against him were false. 14
9
Id. 412 (b)(2)(C).
10
See Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim. App. 2000).
11
Tex. R. Evid. 412(b)(3).
12
Id. 608(a).
13
Id. 608(b).
14
While the school counselor’s report, which describes the types of conduct
the children engaged in with Kendall, was never admitted into evidence in the trial,
9
To be sure, Kelly’s rights under the Sixth Amendment include the right “to be
confronted with the witnesses against him[.]” 15 The scope of that right is broad
enough that it requires trial courts to allow defendants to cross-examine witnesses
about matters that involve witness motive or bias.16 Here, Kelly elected not to call
any reputation witnesses in his trial. Additionally, the record demonstrates the trial
court allowed Kelly to develop evidence showing that Kristen, Sam, Selena, and
Kendall had reasons that might have led them to falsely accuse him of molesting
Selena and Kendall in order to help Kristen win custody of Kendall.
Boiling it down, the record shows the trial court did not allow Kelly’s attorney
to cross-examine witnesses on matters that related to Kendall’s sexual encounters
with others that he wanted to ask the witnesses about during his trial. But the Sixth
Amendment right to confront witnesses is not unqualified, so it does not require the
trial court to permit the defendant to cross-examine witnesses in every way he may
choose.17 Instead, the question we must answer is whether the restrictions placed on
the trial court marked the report to include it in the record for the purpose of appellate
review of the court’s rulings excluding evidence about the encounters between
Kendall and the children, encounters that occurred around January 2014.
15
U.S. CONST. amend. VI.
16
See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
17
See Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (noting
that trial courts may limit the scope and extent of cross-examination designed to
reveal the witness’s motive to testify falsely to a claim of molestation so long as
those restrictions do not infringe on the Confrontation Clause’s guarantee permitting
the defendant an effective cross); Tex. R. Evid. 412 (making evidence of previous
10
Kelly’s attorney kept Kelly from receiving “a fair opportunity to defend himself” in
his trial.18 We conclude the answer to that question is no. We come to that conclusion
even though we recognize a witness’s motivation to testify against someone is
particularly important to the defendant’s right to present evidence, given the
factfinder role in deciding what evidence it should believe at trial.19 Even so, trial
courts retain “wide latitude to impose reasonable limits on such cross examination
without violating the Confrontation Clause.” 20 On this record, the trial court allowed
Kelly to effectively cross-examine witnesses even though it created reasonable
restrictions to enforce the Rules.21
Conclusion
We conclude Kelly has not established he was deprived of the right to
effectively cross-examine the witnesses who testified against him at trial. For that
reason, the trial court’s judgment is
sexual conduct inadmissible in criminal cases that involve the prosecution of the
defendant for sexual assault absent exceptions that do not apply to Kelly).
18
Scheffer, 523 U.S. at 316.
19
See Tucker v. State, 771 S.W.2d 523, 531 (Tex. Crim. App. 1988).
20
Id. (citing Delaware v. Van Arsdale, 475 U.S. 673, 679 (1986)).
21
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in
original).
11
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on May 12, 2021
Opinion Delivered July 14, 2021
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
12