Landon Brodie Harris v. the State of Texas ( 2023 )

Opinion filed February 9, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00071-CR
__________
LANDON BRODIE HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Mitchell County, Texas
Trial Court Cause Nos. 8001A, 8002A, 8003A,
8005A, 8006A, 8008A, 8125, & 8126
MEMORANDUM OPINION
Landon Brodie Harris, Appellant, pleaded guilty to six counts of sexual
assault of a child and two counts of indecency with a child by sexual contact, each
offense a second-degree felony. See TEX. PENAL CODE ANN. § 22.011 (West Supp.
2022), § 21.11 (West 2019). He proceeded to a bench trial on punishment, where
the trial court sentenced him to sixteen years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice for each count, with each
sentence running concurrently.
Appellant raises three issues on appeal; all three issues relate to the trial
court’s refusal to admit a letter written by the victim, K.W. Appellant contends,
first, that the trial court abused its discretion in excluding the letter under Rule 412
of the Texas Rules of Evidence; second, that the exclusion of the letter violated
Appellant’s right to confront the victim; and third, that the exclusion of the letter
violated Appellant’s right to a fair sentencing proceeding. We affirm the judgments
of the trial court.
Factual and Procedural History
The local community regarded Appellant as an upstanding member of
Colorado City. He was an active member of Mitchell County 4-H and was named
“Friend of 4-H” in 2006. The Colorado City Chamber of Commerce named him
“citizen of the year” for 2007. In 2011, the Colorado City volunteer fire department
named Appellant an honorary fireman.
K.W. and his parents were neighbors of Appellant. Appellant sometimes
showed up two or three times a week to K.W.’s house for events, such as a barbecue,
or to pick K.W. up to help Appellant check cattle, unload feed, or work on a local
fundraiser. His neighbors did not anticipate him using this trust to sexually assault
their son, K.W., at least eight times from 2008 to 2010—when K.W. was fourteen
to sixteen years old. In 2010, K.W. ended the sexual relationship, but it was not until
2019 that K.W. opened up about the assaults in a letter he wrote to his parents. The
letter did not name Appellant; it was not until K.W.’s mother pressed that K.W. gave
Appellant’s name. K.W.’s parents then contacted the sheriff’s office, and they
opened an investigation.
The details of each encounter are unnecessary to repeat, but it is important to
note that Appellant argued that these encounters were consensual and that K.W. was
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not manipulated into sex despite his testimony. Appellant describes the presence or
absence of manipulation as the “key factual dispute” for the determination of
punishment. Because of this “key” fact, Appellant sought to introduce, in its
entirety, K.W.’s letter to his parents. But the letter contained more than the
circumstances of the assault; it was K.W.’s narrative of his life and formative
experiences from a young age to the time the letter was written, nine years after the
assaults ended. After a lengthy colloquy at the bench, the trial court only admitted
the portion of the letter that was directly related to the sexual assaults committed by
Appellant; the remaining contents of the letter were excluded. The trial court
announced on the record that it balanced the probative value of the letter against the
risk of unfair prejudice. The trial court further found that the excluded parts of the
letter were not relevant to punishment and ran the risk of injecting additional and
unnecessary information into sentencing. Appellant made a timely offer of proof
with the whole letter and asserted timely objections to the trial court’s rulings under
Rule 401, 402, 403, 412, the Due Process Clause, the Confrontation Clause, and the
right to effective assistance of counsel.
Standard of Review
We review the trial court’s exclusion of evidence under an abuse of discretion
standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Wall v.
State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Render v. State, 347 S.W.3d
905, 917 (Tex. App.—Eastland 2011, pet. ref’d). A trial court abuses its discretion
when it acts without reference to any guiding rules and principles or when it acts
arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669 (citing Montgomery v.
State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Therefore, we uphold a trial
court’s ruling on admissibility if it is within the “zone of reasonable disagreement.”
Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021) (quoting
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).
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However, when the admissibility of the evidence involves a constitutional
legal ruling, we apply a de novo standard of review to the constitutional legal ruling.
Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011); Wall, 184 S.W.3d
at 742–43; Smith v. State, 631 S.W.3d 484, 494 (Tex. App.—Eastland 2021, no pet.);
Render, 347 S.W.3d at 917. Although we review constitutional rulings de novo, we
still defer to the trial court’s determination of historical facts and credibility.
Woodall, 336 S.W.3d at 642.
Analysis
The three issues raised by Appellant focus on the trial court’s admission of
only a portion, rather than the entirety, of the letter written by K.W. to his parents.
Appellant argues that the trial court abused its discretion in excluding portions of the
letter and that the exclusion violated his rights under the Confrontation Clause and
Due Process Clause.
I. Admissibility of Letter
In Appellant’s first issue, he argues that the trial court erred when it excluded
all of the letter except for the portion related to the sexual assault of K.W. While
Appellant objected to the exclusion of the letter under a multitude of rules at trial,
he primarily argues Rule 412 on appeal. See TEX. R. EVID. 412 (known as the rape-
shield rule). Rule 412 governs the admissibility of the victim’s past sexual behavior.
The trial court ultimately found that the excluded portions of the letter fell within the
protections of Rule 412, that the contents thereof were not relevant with regard to
punishment, and that under Rule 403 the balancing of probative value against the
risk of unfair prejudice supported exclusion of the evidence. We may uphold the
trial court’s ruling on the admission or exclusion of evidence if the ruling was proper
under any legal theory or basis applicable to the case. Martinez v. State, 91 S.W.3d
331, 336 (Tex. Crim. App. 2002). As we discuss below, we conclude that the trial
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court did not abuse its discretion in excluding the evidence as irrelevant to
punishment.
A. Relevance: Applicable Law
The court analyzes evidence offered during punishment differently than in
guilt/innocence; evidence is relevant to punishment if it helps determine sentencing
for a particular defendant in a particular case. Hayden v. State, 296 S.W.3d 549, 552
(Tex. Crim. App. 2009); Hernandez v. State, No. 11-09-00065-CR, 2010 WL
4148359, at *2 (Tex. App.—Eastland Oct. 21, 2010, pet. ref’d) (mem. op., not
designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)
(West Supp. 2022). Thus, the admissibility of evidence during the punishment phase
of a noncapital felony trial is a function of policy, rather than a question of logical
relevance. Hayden, 296 S.W.3d at 552 (citing Rogers v. State, 991 S.W.2d 263, 265
(Tex. Crim. App. 1999)).
B. Relevance: Analysis
The letter can be generally divided into three categories. First, some parts of
the letter explained K.W.’s experiences and difficulties before or after the assaults
and did not directly discuss the sexual assaults or his sexuality. Second, some parts
of the letter dealt with his sexual disposition generally, such as learning about his
sexuality or telling others about his sexuality. Third, one part described K.W.’s life
during the time of the sexual assaults and his reaction to the assaults both during and
immediately thereafter. The letter, as admitted by the trial court, was heavily
redacted.
The excluded portions of the letter are neither material nor probative to
Appellant’s punishment. The portions that deal with K.W.’s experiences other than
his sexuality or sexual assaults are irrelevant. K.W.’s unrelated experiences before
or after the sexual assaults do not have a direct or logical connection to mitigating
Appellant’s conduct. The excluded content does not help the trial court determine
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the appropriate punishment to be assessed for Appellant’s conduct. And despite
Appellant’s argument that the exclusion of the whole letter was an abuse of
discretion, Appellant does not specifically argue that the parts of the letter that are
unrelated to K.W.’s sexuality are, in fact, relevant. Rather, his argument for
relevancy focuses on those parts regarding K.W.’s sexuality.
Appellant’s argument here is twofold. First, he contends that the letter made
it “apparent” that K.W.’s “self-loathing and disgust” stemmed entirely from his own
inner conflict and not from “anything [Appellant] did to him”; in other words,
whether the fact that K.W. purportedly struggled with homosexuality, rather than
Appellant’s conduct, was a mitigating factor. Second, Appellant argues that the
timeline of K.W.’s self-discovery shows him as a “willing participant” who was not
enticed or threatened.
The letter does show signs of K.W.’s inability to accept himself, even before
the assaults. However, the presence of these emotions prior to his assault does not
make it less likely that Appellant’s conduct affected K.W. post-assault. The
excluded portions had little additional probative value, which was substantially
outweighed by their unfair prejudice, and/or were irrelevant to the question of
punishment. At the bench, Appellant argued for admission of the entire letter.
[DEFENSE COUNSEL]: . . . I believe that his disgust was not
over what had happened to him, but he was conflicted in that he was
gay and he just could not tell his parents about it.
THE COURT: Mr. Hurley, the Court can’t remember the exact
case or statute, but our profession has progressed from where someone
who is a victim of sexual assault is tried because of their lifestyle.
That’s not permissible within evidence anymore.
Further, in the admitted portion of the letter, K.W. writes about when he
terminated his contact with Appellant at the age of sixteen. “I finally stood up to
him. And that began my absolute hate for him but most of all myself.” The trial
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court was free to consider this statement in weighing motive, intent, bias, and interest
and in considering responsibility for K.W.’s suffering. Any difference in opinion
that we might have as to the trial court’s ruling would be well within the zone of
reasonable disagreement.
It is Appellant’s contention that the letter, which stated that K.W. knew he
was gay before he was assaulted by Appellant, makes it less probable that K.W. was
enticed or threatened by Appellant but was, instead, a “willing participant.”
Contrary to Appellant’s contention, nothing in the letter indicates that K.W. was a
“willing participant.” Furthermore, even if it did and if such evidence was relevant
to Appellant’s punishment, the record shows that Appellant was permitted to explore
this topic during his cross-examination of K.W. During cross-examination, K.W.
acknowledged (as he did in an excluded portion of the letter) that, at the age of ten,
he knew he was gay.
To the extent that the trial court ruled that the excluded portions of the letter
were not relevant to punishment, we hold that the trial court did not abuse its
discretion.
C. Rules 412 and 403; Cumulative Evidence; Harmless Error
Moreover, even if the excluded evidence was relevant to punishment, the trial
court nonetheless did not abuse its discretion by excluding portions of the letter on
other grounds. The trial court correctly determined that sexual predisposition is
character evidence that has been barred in the past under Rule 412. See Harper v.
State, No. 02-15-00374-CR, 2016 WL 4045203, at *4–5 (Tex. App.—Fort Worth
July 28, 2016, no pet.) (mem. op., not designated for publication). K.M.’s letter is
five single-spaced pages in length. Importantly, only a portion related to K.M.’s
sexual preferences, and none discussed his past sexual behavior with persons other
than Appellant. Thus, not every excluded portion of the letter would be covered by
Rule 412. Rather than discussing whether the trial court erred in excluding the
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evidence under Rule 412 through a line-by-line analysis of the letter, we uphold the
trial court’s determination that all excluded portions of the letter were cumulative
and lacked relevance to punishment. See CRIM. PROC. art. 37.07, § 3(a)(1); TEX. R.
EVID. 403.
Furthermore, relevant evidence that is otherwise admissible at the punishment
phase under Article 37.07 is nonetheless inadmissible if it fails to comport with
Rule 403. Lamb v. State, 186 S.W.3d 136, 144 (Tex. App.—Houston [1st Dist.]
2005, no pet.); see Rogers, 991 S.W.2d at 266. Rule 403 of the Texas Rules of
Evidence “allows for the exclusion of otherwise relevant evidence when its
probative value ‘is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
or needless presentation of cumulative evidence.’” Shuffield v. State, 189 S.W.3d
782, 787 (Tex. Crim. App. 2006) (quoting former version of Rule 403). The danger
of unfair prejudice of K.M.’s sexual orientation, confusion of the issues, and
needless presentation of cumulative evidence already in the record and upon which
cross-examination could occur appears to be the core of the trial court’s ruling here.
The appropriate inquiry is “whether the probative value was substantially
outweighed by the danger of unfair prejudice or needless presentation of cumulative
evidence.” Williams v. State, 294 S.W.3d 674, 685 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). When conducting a Rule 403 balancing analysis, the trial court
should consider, but is not limited to, the following factors: (1) how probative is the
evidence; (2) the potential for the evidence to impress the jury in some irrational, but
nevertheless indelible way; (3) the time the proponent needs to develop the evidence;
and (4) the proponents need for the evidence. Shuffield, 189 S.W.3d at 787. From
the record we conclude that the probative value of the excluded portions of the letter
is minimal, and the proponent’s need for those excluded portions in order to develop
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the evidence through use of it in cross-examination is also minimal. The other Rule
403 considerations have little to no application here.
Importantly, the latitude allowed by the trial court in questioning permitted
Appellant adequate opportunity to cross-examine and make his points such that, if
there was error by the trial court in excluding portions of the letter, it was harmless.
Cross-examination regarding K.W.’s “coming out” letter would have been largely
cumulative. K.W. testified that he was homosexual and admitted his struggle in
telling his parents about that fact. He never testified that his homosexuality was
caused by Appellant; to the contrary, he stated that Appellant used the shame of
discovery of the incidents of sexual abuse to keep K.W. quiet. Appellant’s trial
counsel asked K.W. if he was trying to say that Appellant had turned him gay, and
K.W. stated “no.” Thus, some of the excluded portions of the letter were cumulative
of other evidence. We hold that the trial court did not abuse its discretion in refusing
admission under Rule 403 and ruling that the letter’s excluded portions were not
admissible in the punishment phase of the trial. To the extent exclusion was error,
based on the record, that error was harmless for the reasons that we have noted
above. See TEX. R. APP. P. 44.2(b). We overrule Appellant’s first issue.
II. Confrontation Clause
In his second issue, Appellant argues that the trial court’s exclusion of most
of the letter violated his right to effectively confront K.W. Appellant contends that
the contents of the letter impeached K.W.’s credibility, which was a crucial part of
Appellant’s defense.
A. Applicable Law
The Confrontation Clause protects more than physically confronting the
witness. Davis v. Alaska, 415 U.S. 308, 315 (1974). Cross-examination is an
important right protected by the Sixth Amendment. Johnson v. State, 490 S.W.3d
895, 909 (Tex. Crim. App. 2016). The exclusion of potential impeachment evidence
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may infringe upon the accused’s confrontation rights. See Davis, 415 U.S. at 315–
16; Pointer v. Texas, 380 U.S. 400, 403–04 (1965); Johnson, 490 S.W.3d at 909;
Castillo v. State, 939 S.W.2d 754, 758 (Tex. App.—Houston [14th Dist.] 1997, pet.
ref’d). “[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). This means a
defendant may be permitted a wide scope of cross-examination, but he must
otherwise comply with the applicable Texas Rules of Evidence. Smith v. State,
No. 11-20-00002-CR, 2021 WL 5279414, at *3 (Tex. App.—Eastland Nov. 12,
2021, no pet.) (mem. op., not designated for publication). “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.” Hammer
v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). Therefore, “if a state
evidentiary rule prohibit[s] the defendant from cross-examining a witness
concerning possible motives, biases, and prejudices to such an extent he could not
present a vital defensive theory,” the Confrontation Clause may be violated.
Johnson, 490 S.W.3d at 910.
Each Confrontation Clause issue must be weighed on a case-by-case basis.
Hoyos v. State, 951 S.W.2d 503, 510 (Tex. App.—Houston [14th Dist.] 1997), aff’d,
982 S.W.2d 419 (Tex. Crim. App. 1998). The trial court maintains broad discretion
to impose reasonable limits to avoid harassment or confusion of the issues. Lewis v.
State, No. 11-16-00336-CR, 2018 WL 5986977, at *5 (Tex. App.—Eastland Nov.
15, 2018, no pet.) (mem. op., not designated for publication). The trial court must
balance the probative value of the evidence against risks that admission may entail.
Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).
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B. Analysis
A defendant is permitted to cross-examine a witness to show motive, bias, or
interest without undue limitation. Johnson, 490 S.W.3d at 910. However, after
reviewing the entire letter, we cannot conclude that the excluded evidence reveals
further motive, bias, or interest with respect to Appellant. The scope of bias, motive,
or interest is succinctly described in Carroll v. State.
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.
Carroll v. State, 916 S.W.2d 494, 497–98 (Tex. Crim. App. 1996) (quoting
Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim. App. 1972)).
In his brief, Appellant relies heavily upon Hammer in support of his
Confrontation Clause argument. Appellant argues that this is a classic “he said, she
said” situation as discussed in Hammer. See Hammer, 296 S.W.3d at 561–62. We
disagree. We note that Appellant here waived a jury trial and pled guilty to each of
the eight counts of sexual assault and indecency with a child of which he was
accused, and that exclusion of the evidence in question occurred during the
punishment phase before the trial court. As Appellant has admitted, the right to
cross-examine is not unqualified. Generally, the right to present evidence and cross-
examine witnesses under the Sixth Amendment does not conflict with the
corresponding rights under state evidentiary rules. Id. at 561–63. And it does not
here. As to the letter, which is the subject of Appellant’s complaint, the trial court
did not violate Appellant’s Sixth Amendment rights.
No excluded part of the letter relates to K.W.’s potential to shade his
testimony. None of the excluded portions reveal a hidden reason to forward
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K.W.’s perception of the events with ulterior motive, bias, or interest. Appellant is
not mentioned in the excluded portions of the letter. Alleging motive, bias, or
animus based on the letter’s life narrative is speculative at best. Appellant fails to
specifically describe any particular bias, motive, or interest revealed by K.W.
Although Appellant alludes to potential bias, motive, or animus in his brief, he
focuses on a general argument of the lack of credibility of K.W.
Furthermore, the letter contained highly personal details about K.W. and his
life, long after the assaults occurred. The trial court accurately noted that the letter
“just seems to add clutter that does not help the Court in trying to decide what is best
for the community and is the best result for punishment.” Balancing the minimal
probative value of the letter against the high potential for prejudice leads us to the
same conclusion as the trial court. Its exclusion did not infringe on Appellant’s
constitutional right to confront K.W.
Notwithstanding the analysis above, Appellant was able to effectively
confront K.W. Many of the portions of the letter that allegedly impeached K.W.’s
credibility were developed at trial and are included in the record. A defendant’s
inability to present his case to the extent and form desired is not prejudicial when he
is not prevented from presenting the substance of his defense to the factfinder.
Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (citing United States v.
Willie, 941 F.2d 1384, 1398–99 (10th Cir. 1991)). Appellant sought to impeach
K.W.’s credibility as to whether Appellant manipulated him into feeling shame and
whether K.W. instigated any of the sexual assaults. Appellant testified that he never
threatened K.W. in any way. Further, Appellant was also able to ask the following
of K.W. on cross-examination:
• Whether K.W. asked Appellant to come over.
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• Whether K.W. wrote a letter that explained that he knew he was gay
around the age of ten, despite previous testimony that he was confused
about his sexuality around the age of fourteen.
• Whether K.W. was sexually aroused during the assaults.
• Whether it was K.W.’s decision to stop having sex with Appellant.
• Whether K.W. felt that the sexual assaults were his own fault, because
K.W. was “the one that was sexually aggressive and wanted the sexual
contact[.]”
Through Appellant’s testimony and his cross-examination of K.W., Appellant
largely achieved the impeachment he sought even without the entire letter being
admitted. Therefore, the trial court’s exclusion of portions of K.W.’s letter, even if
erroneous, was harmless under the circumstances. Appellant may not have
presented the evidence “to the extent and in the form he desired.” Potier, 68 S.W.3d
at 666 (quoting Willie, 941 F.2d at 1398–99). But the substance of his argument for
mitigation—that K.W. was “sexually aggressive” and complicit in the assaults,
reached the ears of the factfinder. The letter as admitted provided reasonable limits
and at the same time a fair opportunity to effectively cross-examine K.W. Therefore,
the trial court’s exclusion of parts of the letter did not violate Appellant’s
constitutional right to confront K.W. We overrule Appellant’s second issue.
III. Fair Trial
In his third issue, Appellant argues that the trial court’s exclusion of portions
of the letter violated his right to a fair sentencing proceeding. Appellant contends
that his inability to present the entirety of the letter deprived him of the right to
present a complete defense. We disagree.
A. Applicable Law
Rooted in the Fourteenth Amendment of the United States Constitution is the
meaningful opportunity for a criminal defendant to present a complete defense.
Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Washington v. Texas, 388 U.S.
1314, 19 (1967). A defendant’s right to present relevant evidence is subject to
reasonable restrictions and other legitimate interests of state criminal procedure.
United States v. Scheffer, 523 U.S. 303, 308 (1998); Potier, 68 S.W.3d at 659.
Evidentiary rules do not abridge the right to present a defense so long as the rules
invoked are not “arbitrary” or “disproportionate to the purposes they are designed to
serve.” Potier, 68 S.W.3d at 659 (citing Scheffer, 523 U.S. at 308). Even so,
exclusion of evidence is only unconstitutionally arbitrary or disproportionate where
it infringes upon a weighty interest of the accused. Scheffer, 523 U.S. at 308. A
court’s application of state evidentiary rules will not run afoul of the Constitution
when those evidentiary rules are not arbitrary and unjustified. Potier, 68 S.W.3d at
662.
B. Analysis
Much of the analysis in Appellant’s third issue overlaps with that of his first
and second issues discussed above. Requiring that evidence be relevant is far from
an arbitrary or unjustified evidentiary rule. The trial court can (and did) impose
reasonable limits in the interest of legitimate state criminal procedure in its exclusion
of evidence that it determined to be irrelevant. The trial court excluded the portions
of a letter that made no mention of Appellant and dealt with K.W.’s life before and
after the assaults. Even if these portions were minimally relevant, impeaching the
general credibility of the victim does not reflect a “weighty interest,” considering
Appellant was free to pursue this impeachment through other methods of cross-
examination. As we stated above, Appellant presented the substance of his defense.
The trial court’s limitation on the form of his defense did not amount to a
constitutional violation of due process. Therefore, we overrule Appellant’s third
issue.
Because the excluded portions of the letter either lacked relevance to the
decision of punishment, had little probative value, or were cumulative of other
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evidence and because the exclusion of that evidence did not violate Appellant’s right
to confront the victim or his right to a fair punishment proceeding, the trial court did
not abuse its discretion when it excluded the evidence.
This Court’s Ruling
We affirm the judgments of the trial court.
W. BRUCE WILLIAMS
JUSTICE
February 9, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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