Alfredo Lee Johnson v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed February 16, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00597-CR
ALFREDO LEE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1611787
MEMORANDUM OPINION
A jury convicted appellant Alfredo Lee Johnson of the first-degree felony of
continuous sexual abuse of a young child. Tex. Penal Code Ann. § 21.02(b), (h).1
The jury assessed punishment of imprisonment for life. Id. § 21.02(h). In three
issues, appellant contends (1) the jury charge was erroneous, (2) the trial court
1
The indictment alleges that the relevant time period is “on or about January 1, 2013
through on or about August 5, 2016.” While the statute has been amended since that time, the
amendments do not affect this case.
erred by admitting extraneous offense testimony from other accusers, and (3) the
trial court erred by excluding records and testimony regarding a prior sexual
assault against the complainant. We affirm.
I. BACKGROUND
Appellant was charged by indictment with the offense of continuous sexual
abuse of a young child. The complainant was his sixteen-year-old daughter.
Complainant testified that, when she was 10 years of age, her father started
sexually abusing her. He came into her bedroom, which she shared with her
younger brother, one morning to wake her for school and instead began touching
her culminating in his digital penetration of her vagina. Complainant described the
abuse as continuing over the next few years primarily when her father had the
opportunity to find her alone. Complainant also testified to another specific
instance when she was younger than fourteen years of age in which her father
attempted to insert his penis inside her vagina. Although he was not successful,
appellant’s penis contacted complainant’s vagina. Complainant told her mother of
the first instance of abuse, but her mother did not believe her. Complainant felt that
she was hurting her family and father, so she retracted the accusations made to her
mother and explained that she was having nightmares stemming from a recent,
unrelated sexual assault. 2
Complainant had been sexually assaulted by the brother of her aunt’s
husband (“M”) when she was 10 years old, just months before she alleged the
abuse by her father began. Complainant experienced nightmares because of the
sexual assault by M, for which her parents sent to her therapy. At trial, complainant
2
Complainant also later told a teacher at school about the abuse, who referred the matter
to Child Protective Services. Once complainant’s mother was made aware of complainant’s
allegations and spoke to complainant, she again retracted her accusations and blamed the
nightmares.
2
explained that when her mother did not believe her report of abuse by her father,
she told her parents that she was having nightmares of M again. The therapist she
saw, with her parents in attendance, believed complainant was transposing her
father with M because her father was waking her up while she was having
nightmares.
After she turned 14 years old, complainant’s family moved to a new home in
which complainant had her own room. At this point in time, complainant testified
that her father started sexually abusing her regularly in the mornings and began
penetrating her vagina with his penis.
When she was 16 years old, other young women who were social friends of
complainant at their church came forward and made accusations of sexual abuse
against appellant. Complainant and appellant were very involved in their church
where appellant served as a deacon. When complainant was asked directly about
her relationship with her father by another church member, she revealed that her
father had repeatedly raped and assaulted her. The charges in this case followed.
II. ANALYSIS
A. Charge error
In issue 1, appellant argues the jury charge was erroneous because it omitted
a definition for the offense of indecency with a child by contact, which is one of
the predicate offenses required to establish continuous sexual abuse of a young
child and one of the predicate offenses identified in the indictment. See Tex. Penal
Code Ann. § 21.02(c)(2). Appellant argues that omission of this definition was
egregiously harmful because the jury had no guidance on what the State was
required to prove to carry its burden of proof on the offense of indecency with a
child by contact. Therefore, appellant argues there was not a unanimous jury
3
verdict on each element of the charged offense. The State concedes the omission of
the definition was erroneous but argues there was no egregious harm.
1. Standard of review and applicable law
A claim of jury-charge error is reviewed in two steps. See Cortez v. State,
469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether there is
error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If
we find error, then we analyze that error for harm. Id. If a defendant does not
properly preserve error by objection, any error in the charge “should be reviewed
only for ‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513
(Tex. Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985)).
Code of Criminal Procedure article 36.14 provides that the trial court “shall .
. . deliver to the jury . . . a written charge distinctly setting forth the law applicable
to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14. “The purpose of the jury
charge is to inform the jury of the applicable law and guide them in its application
to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App.
2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). A
proper jury charge therefore consists of an abstract statement of the law and the
application paragraph(s). See Vasquez v. State, 389 S.W.3d 361, 366–67 (Tex.
Crim. App. 2012). The abstract paragraphs of a jury charge serve as a glossary to
help the jury understand the meaning of concepts and terms used in the application
paragraphs of the charge. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim.
App. 2012). Each statutory definition that affects the meaning of an element of the
offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321,
329 (Tex. Crim. App. 2009). The application paragraphs then apply the relevant
law, the definitions found in the abstract portion of the charge, and general legal
4
principles to the particular facts of the case. Vasquez, 389 S.W.3d at 366.
2. Erroneous charge
The jury charge here asked the jury whether it found appellant was guilty
beyond a reasonable doubt of the offense of continuous sexual abuse of a child. It
further instructed the jury that “in order to find [appellant] guilty beyond a
reasonable doubt of the offense of continuous sexual abuse of a child, you must
agree unanimously that the [appellant], during a period that is 30 or more days in
duration, committed two or more acts of sexual abuse.”
The jury charge defines “act of sexual abuse” as “any act that is a violation
of the penal law of aggravated sexual assault of a child or indecency with a child
by contact.” The jury charge then defines aggravated sexual assault of a child, but
not indecency with a child by contact.
The definition of “indecency with a child by contact” in the Penal Code3 is
“law applicable to the case” and should have been included in the charge because
the jury had to understand what “indecency with a child by contact” meant before
3
The offense of indecency with a child is defined in the Penal Code as follows:
(a) A person commits an offense if, with a child younger than 17 years of age,
whether the child is of the same or opposite sex and regardless of whether the
person knows the age of the child at the time of the offense, the person:
(1) engages in sexual contact with the child or causes the child to engage
in sexual contact; or
....
(c) In this section, “sexual contact” means the following acts, if committed with
the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the
anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching
through clothing, with the anus, breast, or any part of the genitals of a
person.
Tex. Penal Code Ann. § 21.11 (a), (c).
5
it could determine whether appellant had committed that offense. We conclude the
jury charge in this case was erroneous because it did not properly instruct the jury
regarding all the law applicable to the case. See Tex. Code Crim. Proc. Ann. art.
36.14.
3. Harm Analysis
An appellate court must apply the egregious harm standard to review an
erroneous jury charge when appellant’s trial counsel did not to object to the
relevant portion of the charge, as in this case. See Almanza, 686 S.W.2d at 171.
Under this standard, appellant “will obtain a reversal only if the error is so
egregious and created such harm that he has not had a fair and impartial trial[.]” Id.(internal quotations omitted).
Egregious harm must be based on a finding of actual, rather than theoretical,
harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). For actual
harm to be established, the charge error must have affected the very basis of the
case, deprived the defendant of a valuable right, or vitally affected a defensive
theory. Id. (internal quotations omitted). Under the egregious-harm standard, we
consider four factors: (1) the charge as a whole; (2) the state of the evidence,
including contested issues and the weight of the probative evidence; (3) the parties’
arguments; and (4) all other relevant information in the record. See id.The charge as a whole
We begin with the first Almanza factor—the charge itself. The charge, as we
have described above, omits the definition of indecency with a child by contact.
The fact the charge omitted a definition of one of the two types of sexual abuse
alleged to have been committed by appellant weighs in favor of a conclusion there
was egregious harm.
6
The state of the evidence
The application paragraph of the charge explains to the jury under what
conditions they could convict appellant of continuous sexual abuse of a young
child:
Now, if you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, [appellant] heretofore on or about the 1st day of
January, 2013 continuing through the 5th day of August, 2016, did
then and there unlawfully, during a period of time of thirty or more
days in duration, commit at least two acts of sexual abuse against a
child younger than fourteen years of age including an act
constituting the offense of indecency with a child by contact,
committed against [complainant] on or about January 1, 2013, and an
act constituting the offense of aggravated sexual assault of a child,
committed against [complainant] on or about August 5, 2016, and the
defendant was at least seventeen years of age at the time of the
commission of each of those acts, then you will find the defendant
guilty of continuous sexual abuse of a child, as charged in the
indictment.
(emphasis added). The State argues that even if the charge was erroneous there was
no harm to appellant. Arguing appellant’s conduct during the relevant time period
constituted aggravated sexual assault (as well as indecency with a child) and
aggravated sexual assault was defined in the statute, the State maintains that
appellant suffered no egregious harm. We agree.
The jury charge provided the following definition of aggravated sexual
assault of a child:
Our law provides that a person commits the offense of aggravated
sexual assault of a child if the person intentionally or knowingly:
(1) causes the penetration of the anus or sexual organ of a child
by any means;
(2) causes the penetration of the mouth of a child by the sexual
organ of the defendant;
7
(3) causes the sexual organ of a child to contact or penetrate the
mouth, anus, or sexual organ of another person, including the
defendant;
(4) causes the anus of a child to contact the mouth, anus, or
sexual organ of another person, including the defendant; or
(5) causes the mouth of a child to contact the anus or sexual
organ of another person, including the defendant; and
if the victim is younger than fourteen years of age.4
The complainant’s testimony at trial established that appellant first sexually
assaulted her when she was ten years of age. She testified that he entered her room,
which she shared with her brother at the time, began touching and rubbing her
thighs and stomach. He partially undressed the complainant and ultimately
penetrated her vagina with his fingers. Appellant’s digital penetration of
complainant’s sexual organ constitutes aggravated sexual assault of a child. Tex.
Penal Code Ann. § 22.021(a)(1)(B)(i) (penetration of sexual organ of child by any
means). Complainant testified that a week and half later appellant again penetrated
her sexual organ with his fingers, but without removing any of her clothing.
Complainant testified that when the family moved to a new apartment where
she had her own room that appellant would enter her room almost every day for a
two-to-three-year period and touch her sexually, though it was unclear from her
testimony whether the daily touching involved rubbing or penetration of her sexual
organ.5 She also testified to another specific instance, prior to her fourteenth
4
The definition in the jury charge is nearly identical to Penal Code section
22.021(a)(1)(B), defining the offense of aggravated sexual assault of a child. Tex. Penal Code
Ann. § 22.021(a)(1)(B).
5
Complainant testified that after she turned fourteen years of age, and as she began high
school, appellant’s sexual assaults escalated into nearly daily sexual abuse consisting of
appellant penetrating her vagina with his penis. However, appellant was charged with continuous
sexual abuse of a child younger than fourteen years of age. Therefore, the relevant conduct must
have occurred before complainant’s fourteenth birthday. The jury was repeatedly instructed
about this relevant time period and was aware that appellant’s conduct after complainant turned
8
birthday, in which appellant attempted to insert his penis into her vagina. Although
ultimately unsuccessful, appellant’s penis did contact complainant’s vagina. This
contact also constitutes aggravated sexual assault. Tex. Penal Code Ann.
§ 22.021(a)(1)(B)(iii) (causes sexual organ of child to contact sexual organ of
another person). Therefore, the evidence at trial supports the jury’s finding that
appellant committed at least two acts of sexual abuse—two or more instances of
aggravated sexual assault—during a period of time thirty days or more in duration.
Appellant’s defensive strategy was denial of any acts of sexual abuse against
complainant. He argued that complainant had been sexually abused by M
previously and had associated her lingering nightmares from her prior experience
with M to appellant. In finding appellant guilty beyond a reasonable doubt, the jury
could not have believed appellant’s defense, and instead believed complainant’s
testimony. Because the evidence adduced at trial supported the finding of the jury
that appellant committed at least two acts of aggravated sexual abuse against
complainant, the omission of the definition for “indecency with a child by contact”
weighs against a conclusion there was egregious harm.
The parties’ arguments
In closing arguments, the State specifically argued and described at least two
instances of conduct alleged to be aggravated sexual assault of a child. The
attorney for the State separately described the conduct it alleged to be “indecency
with a child” as “[t]he indecency with a child would be any of those offenses, but
anytime his fingers just touched the top of her vagina and did not get inserted into
fourteen could only be considered as evidence of an extraneous offense. Tex. Code Crim. Proc.
Ann. art. 38.37(b)(2) (“evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be admitted for its bearing on
relevant matters including . . . the previous and subsequent relationship between the defendant
and the child”).
9
her vagina.” The State also further argued that both offenses happened numerous
times and more than 30 days apart.
The jury therefore received testimony of multiple instances of aggravated
sexual assault offered by the complainant, as well as testimony of multiple
instances of indecency with a child. Even though the jury was never provided with
a definition of the offense of indecency with a child by contact, they heard
argument that the multiple instances of aggravated assault would support a
conviction of continuous sexual abuse of a young child. The parties’ arguments do
not support a determination of egregious harm.
Other relevant information in the record
Our review of the record does not reveal other information, such as jury
notes indicating the jury was confused about the charge, showing egregious harm.
Having weighed the relevant factors, we conclude the record does not show
that egregious harm resulted from any charge error in this case. Accordingly, we
overrule issue 1.
B. Extraneous offense testimony
In issue 2, appellant argues that although the law allows the State to offer
extraneous conduct evidence that it was error to admit such evidence because the
evidence was substantially more prejudicial than probative. See Tex. Code Crim.
Proc. Ann. art. 38.37; Tex. R. Evid. 403.
1. Standard of review and applicable law
We review a trial court’s ruling on the admissibility of evidence of
extraneous offenses for an abuse of discretion. See Pawlak v. State, 420 S.W.3d
807, 810 (Tex. Crim. App. 2013) (citing Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1990) (op. on reh’g)). We will affirm a trial court’s
10
evidentiary ruling that is within the zone of reasonable disagreement and correct
under any theory of law. See Pawlak, 420 S.W.3d at 810.
Generally, “an accused may not be tried for some collateral crime or for
being a criminal generally.” Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim.
App. 1991) (quoting Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App.
1983)). To that end, evidence of prior crimes, wrongs, or other acts that is
otherwise relevant is typically inadmissible to show that the defendant “acted in
accordance with the character” or had a propensity to commit the crime. Tex. R.
Evid. 404(b) (character evidence generally inadmissible); see also Tex. R. Evid.
401, 402. However, at a trial for continuous sexual abuse of a young child, such as
this one, the Code of Criminal Procedure does allow the admission of certain
extraneous offenses. See Tex. Code Crim. Proc. Ann. art. 38.37.
Article 38.37 describes the circumstances in which certain extraneous-act
evidence can be admitted:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a, evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) may be
admitted in the trial of an alleged offense described by Subsection
(a)(1) or (2) for any bearing the evidence has on relevant matters,
including the character of the defendant and acts performed in
conformity with the character of the defendant.
Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). Subsection (a)(1) lists eight specific
offenses, including Penal Code sections 21.02 (continuous sexual abuse of a young
child), 21.11 (indecency with a child), and 22.021(a)(1)(B) and (2) (aggravated
sexual assault of a child). Id. § 2(a)(1), (2). Before evidence of such offenses is
admitted, the court must first “(1) determine that the evidence likely to be admitted
at trial will be adequate to support a finding by the jury that the defendant
committed the separate offense beyond a reasonable doubt; and (2) conduct a
11
hearing out of the presence of the jury for that purpose.” Id. § 2-a. The State must
also provide notice to the defendant of its intent to introduce evidence under article
38.37. Id. § 3. The parties do not dispute that these statutory procedures were
followed.
Extraneous-offense evidence is not exempt from the scope of Texas Rule of
Evidence 403. Rule 403 states that the “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. The court of
criminal appeals has articulated a four-factor balancing test to determine whether
unfair prejudice substantially outweighs the probative value of an extraneous
offense under Rule 403:
(1) how compellingly the extraneous offense evidence serves to make
a fact of consequence more or less probable—a factor which is related
to the strength of the evidence presented by the proponent to show the
defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in
some irrational but nevertheless indelible way;”
(3) the time the proponent will need to develop the evidence, during
which the jury will be distracted from consideration of the indicted
offense; and
(4) the force of the proponent’s need for this evidence to prove a fact
of consequence, i.e., does the proponent have other probative
evidence available to him to help establish this fact, and is this fact
related to an issue in dispute.
De La Paz v. State, 279 S.W.3d 336, 348–49 (Tex. Crim. App. 2009) (citing Wyatt
v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)). The court also cautioned that
Rule 403 “should be used sparingly to exclude relevant, otherwise admissible
evidence that might bear upon the credibility of either the defendant or
12
complainant in such ‘he said, she said’ cases.” Hammer v. State, 296 S.W.3d 555,
562 (Tex. Crim. App. 2009). “[T]exas 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.” Id.Although the court of criminal appeals has held that “sexually related bad
acts and misconduct involving children are inherently inflammatory,” “the plain
language of Rule 403 does not allow a trial court to exclude otherwise relevant
evidence when that evidence is merely prejudicial.” Pawlak, 420 S.W.3d at 811
(citing Tex. R. Evid. 403). “Indeed, all evidence against a defendant is, by its very
nature, designed to be prejudicial.” Pawlak, 420 S.W.3d at 811. Rather, Rule 403
only authorizes a court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice[.]” Tex. R. Evid. 403
(emphasis added); see Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App.
2002) (trial court abuses its discretion in admitting otherwise relevant and
admissible testimony “only if the danger of unfair prejudice substantially
outweigh[s] the probative value of [the] testimony”).
2. Trial court did not abuse its discretion
Appellant argues generally that admitting the extraneous-offense testimony
subjected him to trial as a “criminal” because the jury focused on allegations
outside of those he was charged with in the indictment. The State responds that
appellant has offered no analysis for his allegations that admission of the
extraneous-offense evidence was error and maintains it was properly admitted.
The opinion of the court of criminal appeals in Wheeler v. State is
instructive. 67 S.W.3d at 886–89. Wheeler was indicted for aggravated sexual
assault of a child who was his daughter’s friend. Id. at 880. He presented various
defensive theories at trial, including that the complainant had “made up” the
13
allegations against him for profit, and that he lacked opportunity because he was
never alone with the complainant or, alternatively, it was impossible to commit the
offense “in a room full of people.” Id. at 887. At trial, the State called Wheeler’s
niece to testify about an incident nine years earlier, when she was six years old,
during which Wheeler inappropriately touched her in a “very similar” manner as
he had touched the complainant: underneath her clothes while family members
were nearby. Id. at 886–87.
The court determined that the niece’s testimony was relevant to rebut
Wheeler’s defensive theories, including by showing that the complainant was not
motivated by greed in her allegations that Wheeler had sexually assaulted her. Id.
at 887. “Extraneous sex offenses were and are still admissible if they fall into one
of the proper ‘exceptions’ to the ‘general rule’ barring their admission.” Id. at 887(citation omitted). The court further “recognized that in prosecutions for sexual
offenses, a successful conviction ‘often depend[s] primarily on whether the jury
believe[s] the complainant, turning the trial into a swearing match between the
complainant and defendant.’” Id. at 888 (citation omitted). The niece’s testimony
described an incident “quite similar to the charged event,” and it “provided, at a
minimum, the ‘small nudge’ towards contradicting [Wheeler’s] defensive theories
and towards proving that the molestation did indeed occur.” Id. (quoting
Montgomery, 810 S.W.2d at 381). The court held that the trial court did not abuse
its discretion in admitting the niece’s testimony under Rule 403. Id. at 889.
Here, the testimony from complainant and the three young women who
alleged they were abused by appellant is relevant to rebut appellant’s defensive
theory that complainant invented or imagined her allegations against appellant. See
Wheeler, 67 S.W.3d at 887; see also De La Paz, 279 S.W.3d at 348–49 (stating
first factor of Rule 403 balancing test). It is also evidence of appellant’s character
14
and propensity to act in conformity with his character, namely that he has a
propensity to sexually abuse young women of the same age and in the same
manner. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). The testimony thus
provided a “small nudge” towards contradicting appellant’s defensive theories and
in supporting complainant’s testimony that the abuse did occur. See Wheeler, 67
S.W.3d at 888. The testimony from complainant and the other three accusers did
not take an inordinate amount of time at trial or distract the jury. While the
testimony from complainant and the other three accusers was inflammatory, it was
relevant to allegations against appellant and the State needed the evidence to rebut
appellant’s defensive theory and demonstrate complainant’s credibility.
We conclude that the trial court did not abuse its discretion in admitting the
extraneous-offense testimony from complainant and the other three accusers. See
Tex. R. Evid. 403; see also Hammer, 296 S.W.3d at 562; Wheeler, 67 S.W.3d at
889.
We overrule issue 2.
C. Exclusion of evidence and testimony regarding a prior sexual assault of
complainant
In issue 3, appellant maintains that evidence regarding a prior sexual assault
of complainant was improperly excluded under Texas Rule of Evidence 412
despite having considerable probative value. As a result, appellant argues that his
constitutional rights were violated.
1. Standard of review and applicable law
As discussed above, we review a trial judge’s decision on the admissibility
of evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d
895, 908 (Tex. Crim. App. 2016).
15
Texas Rule of Evidence 412 generally provides that evidence of a victim’s
past sexual behavior is inadmissible in a prosecution for sexual assault or
aggravated sexual assault. Tex. R. Evid. 412(a). However, the rule allows the
admission of such evidence in certain circumstances including if the evidence
relates to the victim’s motive or bias or is constitutionally required to be admitted.
Tex. R. Evid. 412(b)(2)(C). The probative value of the evidence of previous sexual
conduct must outweigh the danger of unfair prejudice. Tex. R. Evid. 412(b)(3).
2. No reversible error discernible in the record
During pretrial motions, the State sought to exclude evidence appellant
intended to introduce of complainant’s prior sexual assault, the resulting therapy
and medical records related to that incident. Much of appellant’s argument focuses
on the initial exclusion by the trial court of the prior sexual assault during pretrial
hearings.6 However, the trial court advised appellant at the time that it would
revisit the ruling after examination of the complainant. Appellant concedes that
limited testimony about the prior sexual assault was admitted but argues it was
error that complainant’s medical records were redacted to exclude important
evidence. In appellant’s view, this exclusion was reversible error.
As the case developed at trial, complainant testified about her prior sexual
6
The State filed a motion in limine to exclude any evidence of prior sexual behavior
which the trial court heard as part of the pretrial proceedings. A motion in limine is a preliminary
matter and normally preserves nothing for appellate review. Fuller v. State, 253 S.W.3d 220, 232
(Tex. Crim. App. 2008). For error to be preserved with regard to the subject of a motion in
limine, an objection must be made at the time the subject is raised during trial. Id.; see also Allen
v. State, 473 S.W.3d 426, 442 (Tex. App.—Houston [14th Dist.] 2015), pet. dism’d,
improvidently granted, 517 S.W.3d 111 (Tex. Crim. App. 2017). “[A] ruling on a State’s motion
in limine that excludes defense evidence is subject to reconsideration throughout trial and that to
preserve error an offer of the evidence must be made at trial.” Allen, 473 S.W.3d at 442 (citing
Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)). The trial court stated on several
occasions that its ruling on the medical records and the testimony regarding the prior sexual
assault might change if the evidence proffered by the defense became relevant as testimony
progressed.
16
assault. Complainant testified she was sexually assaulted by M while she was
staying with her aunt. She testified that it was a one-time occurrence and was
unrelated to her allegations against her father. After the sexual assault, complainant
experienced nightmares in which M would chase her and try to hurt her.
Complainant testified that she took medication to help her with the nightmares and
that after some time she stopped having nightmares about M. She testified that
appellant was aware of the nightmares and ascribed her allegations of sexual
assault against appellant to her nightmares. She also testified that she was able to
differentiate from a nightmare and reality.
Appellant was able to cross-examine complainant about M’s sexual assault
of complainant, complainant’s therapy and the resulting diagnosis to establish his
defensive theory that complainant had been experiencing vicarious traumatization
(i.e., having nightmares about the prior sexual assault and then attributing the prior
attack to her father as he woke her up in the morning). Appellant’s briefing to this
court focuses on the limited nature of appellant’s cross-examination and the
exclusion of certain medical records. However, appellant made no offer of proof as
to the evidence that was not admitted at trial.
A party complaining of the trial court’s exclusion of evidence must comply
with Rule 103(a)(2) and make an “offer of proof,” unless the substance of the
evidence was apparent from the context within which questions were asked. Tex.
R. Evid. 103(a)(2); Allen v. State, 473 S.W.3d 426, 442 (Tex. App.—Houston
[14th Dist.] 2015), pet. dism’d, improvidently granted, 517 S.W.3d 111 (Tex.
Crim. App. 2017). The offer of proof may consist of a concise statement by
counsel, or it may be in question-and-answer form. If the offer of proof is made in
the form of a statement, the proffer must include a reasonably specific summary of
the evidence offered and must state the relevance of the evidence unless the
17
relevance is apparent, so that the court can determine whether the evidence is
relevant and admissible. Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.
2009).
During complainant’s testimony, appellant was able to revisit the trial
court’s limine ruling as to complainant’s prior sexual assault:
[Defense Counsel]: In the event I’m not allowed to, it limits my
cross-examination and affects my ability to be effective, and it’s
material to this case. It’s literally my defensive theory that she was
raped by somebody else, abused by somebody else, she was
traumatized, has nightmares, experiences vicarious traumatization,
and [appellant] ends up here. That’s literally my theory of my case.
The State has elicited that from [complainant]. That’s literally my
theory. She said it on direct. That is part one of — part one of what I
need to address with the Court. Denying my ability to cross-examine
that would limit my right to confront — to confront [complainant].
Part two —
The Court: Okay.
[Defense Counsel]: Separate from saying that she was sexually
abused by another man literally around the same time and then has
nightmares and victim vicarious traumatization separate and apart
from that, medically — let’s assume that I don’t have to say anything
about [M]. Medically, it’s all over the therapy records, and it’s all
over the therapy records and medical records. About she gets off her
meds, she has these nightmares, and she puts the face of what
happened to her with [M] onto [appellant]. So re— not even
considering 412 or none of that, and [M] and all of that, when she gets
off her meds, she hallucinates. I have to inquire about that.
The Court: I have already said that you can.
...
[Defense Counsel]: So, here ends my request to amend your prior
rulings and allow me to inquire in a limited way, fine, I will. I have —
I will concede, but about I don’t know what limitations are there, but
it has to be more than what was previously allowed.
The Court: All right. So Defense, you can clarify on your cross-
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examination, for example, by stating, you mentioned that you were
sexually abused at your aunt’s home, that you’re not saying that that
was your father, correct?
[Defense Counsel]: Someone different, okay.
The Court: Okay. And then with regards to the CPS records, you can
say you mentioned something about a CPS case. That had nothing to
do with the defendant, your father, correct? Not correct? So, you
know, you can inquire in those two ways very simply to clarify that so
it’s not confusing for the jury whatsoever. And then the limitations
that I previously stated address all of the issues that you just brought
up right now. I stated that you could inquire into any depression that
she had, and the — subject to the limitations, and also discuss that she
had nightmares. And subject to the limitations with, you know, those
nightmares, and what they consisted of and whatnot the Court’s
already stated that you can address that and subject to the limitations
and not discussing [M]?
[Defense Counsel]: The only other — well, the idea that she is on her
meds and she gets off the meds and have nightmares, you limited my
cross –
The Court: Well if you want to say — ask her if she takes
medications and that she sometimes gets off the medications, that’s
fine. But that is it. And that is the limit of that. Period.
After this exchange, appellant did not object to the limitations or reassert any
further objections. The State further examined complainant on re-direct
specifically about the prior sexual assault by M following which appellant was
further able to cross-examine complainant about the sexual assault. To the extent
that the statements made by defense counsel in the exchange above constitute an
offer of proof, all the evidence described to the court as necessary to appellant’s
defense was later addressed by complainant in her testimony. If after
complainant’s testimony concluded there was still evidence appellant believed was
improperly excluded, appellant did not make an offer of proof so that this court
could evaluate the probative nature of the excluded evidence. Tex. R. Evid. 103(a);
Tex. R. App. P. 33.1. Therefore, we conclude appellant did not preserve error as to
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the exclusion or limitation of complainant’s testimony on her prior sexual assault.
Appellant also argues that he was precluded from offering medical records
of complainant’s therapy visits. However, the medical records of complainant’s
therapy visits and related treatment were not admitted into evidence and appellant
made no offer of proof to the trial court. See Tex. R. Evid. 103(a). Further,
appellant does not explain in his appellate briefing what information was excluded
by the trial court (to the extent it exceeded the scope of complainant’s testimony at
trial). See Tex. R. App. P. 38.1(i). Therefore, we conclude there was no error
preserved as to the trial court’s exclusion of complainant’s medical records from
her therapy visits.
We overrule issue 3.
III. CONCLUSION
We affirm the judgment of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
Do not Publish—Tex. R. App. P. 47.2(b).
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