Thomas Jefferson Smallwood, Jr. v. State ( 2015 )


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  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-13-00532-CR
    THOMAS JEFFERSON                                                    APPELLANT
    SMALLWOOD, JR.
    V.
    THE STATE OF TEXAS                                                        STATE
    ----------
    FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
    TRIAL COURT NO. 1343309R
    ----------
    OPINION ON APPELLANT’S MOTION FOR REHEARING
    ----------
    After considering Appellant’s motion for rehearing, we deny the motion, but
    we withdraw our opinion and judgment of April 30, 2015, and substitute the
    following.
    A jury convicted Appellant Thomas Jefferson Smallwood Jr. of six counts of
    aggravated sexual assault of a child under seventeen years of age and three
    counts of sexual assault of a child under seventeen years of age, all charged in a
    single indictment, and assessed his punishment at fifty years’ confinement on
    each aggravated sexual assault count and twenty years’ confinement on each
    sexual assault count. The trial court sentenced him accordingly, ordering the
    sentences to be served concurrently. Appellant brings five issues on appeal,
    challenging the sufficiency of the evidence to show the aggravating element for
    the six convictions of aggravated sexual assault of a child (counts one through
    four, eight, and nine) and contending that the State misrepresented the law during
    voir dire and that the trial court abused its discretion by excluding evidence of the
    complainant’s prior rape accusation against a neighbor and the testimony of two
    other witnesses. Because the evidence is sufficient to support the jury’s verdict
    and because the trial court committed no reversible error, we affirm the trial
    court’s judgments.
    Brief Facts
    Appellant and Complainant’s mother (Mother) had been a couple, had
    shared a home with Complainant and her brother, and were the parents of twin
    boys, Complainant’s younger half-brothers. Appellant and Mother parted ways
    and went through a custody battle over the twins. On July, 4, 2012, Complainant,
    who was fourteen years old at the time, was at Appellant’s home with her twin
    brothers.   Complainant and Mother were not getting along around this time.
    Appellant told Complainant that he wanted to put Mother in a hole and hire some
    Mexican assassins to hurt her. In the same conversation, Appellant suggested
    2
    that Complainant have sex with him to make Mother mad, but Complainant
    refused his offer.
    Later that same month, Complainant, along with her twin brothers, visited
    Appellant’s parents in El Paso. During this trip, Complainant received messages
    from someone who identified himself as “Jayylo” through Kik, an application on
    her cell phone. Jayylo sent pictures of his penis to her. She responded by
    “sen[ding] inappropriate pictures of [her] boobs.”   She never gave Jayylo her
    home address or her real name.       Jayylo continued to send more pictures of
    himself to her. When Complainant threatened to stop sending Jayylo pictures, he
    threatened to send the photos she had sent him to her school and to the
    mailboxes of Mother and her neighbors.           Complainant noticed that the
    background of one of the photos he sent her resembled a portion of Appellant’s
    house. Complainant was then suspicious that Appellant was Jayylo.
    She confronted Appellant, but he denied having a Kik account. About an
    hour later, Appellant called Complainant back and asked her why he had pictures
    of her boobs in his mailbox. Complainant started crying and told him what had
    happened with Jayylo and that he had threatened her. Complainant also told
    Appellant’s mother why she was crying, and Appellant got mad at Complainant
    for telling his mother. Complainant turned fifteen years old while she was in El
    Paso.
    When Complainant returned home from El Paso, she began receiving text
    messages from Jayylo sent directly to her cell phone number.        Complainant
    3
    noticed that the first six digits of Jayylo’s phone number were the same as
    Appellant’s cell phone number. Jayylo told her that he got her phone number
    from one of her friends, which Complainant knew not to be true.           Whenever
    Complainant asked Jayylo who he really was, he would change his story of how
    Complainant was supposed to know him and how old he was. Jayylo texted
    Complainant almost every day at different times of the day. But she could never
    get a response when she called him.
    Jayylo continued threatening Complainant and demanded that she send
    him more photos, have sex with Appellant, videotape it, and send the video to
    Jayylo. Complainant refused. Jayylo put one of the photos Complainant had sent
    him on a Facebook page he had created and threatened to add all of her friends
    to that page. Appellant told Complainant that Jayylo was also contacting him, but
    she never saw any of the messages that Appellant claimed to have received.
    Appellant and Complainant spoke about the situation and decided to
    acquiesce to Jayylo’s demands.          Complainant and Appellant had sexual
    intercourse in Appellant’s house while Complainant’s twin brothers were asleep.
    Following Jayylo’s demands, Appellant and Complainant continued their sexual
    relationship. They had sexual intercourse “eight to eleven times[,] [m]aybe more,”
    from August 2012 to November 2012. These sexual encounters would occur at
    either Appellant’s or Complainant’s home.
    Complainant testified that she texted Jayylo that it was getting harder for
    her to keep these incidents a secret, and shortly after she sent this text, Appellant
    4
    called her and told her that they did not “have to do it anymore.” Appellant then
    told Complainant a story about
    a girl who was babysitting this guy’s kids, and he ended up raping
    her. And then she went to court, and then he pretended to be
    somebody that he wasn’t and hit her up on Facebook and that they
    met up thinking it was somebody else, and he killed her.
    This story scared Complainant. At trial, she testified that Appellant knew people
    from Mexico who were in the Mexican Mafia. Although Complainant testified that
    Appellant never specifically threatened her, she also testified that he made it
    clear that if he could hurt Mother, he could hurt Complainant too. In December
    2012, Complainant made an outcry to Mother’s friend. Shortly afterward, the
    decision to call the police was made. Appellant pled not guilty to all counts of an
    eighteen-count indictment alleging that he had committed sexual assault and
    aggravated sexual assault on various dates against Complainant.
    Outside the presence of the jury, in an in-camera hearing, Appellant
    presented evidence from Ricky May. May lived in Complainant’s neighborhood
    around 2008 to 2009.      He testified that when he was eighteen years old,
    Complainant would contact him “through phone [and] text messaging, trying to get
    [him] to have sexual intercourse with her” because she was “horny.” May refused
    Complainant’s offer, but he heard that Complainant had told people in their
    neighborhood that he had raped her, which he denied. May was never charged
    with or arrested for rape. The State objected to May’s testimony on hearsay
    grounds.
    5
    THE COURT:               Response?
    [PROSECUTOR]: Once again, Your Honor, this is an opinion based
    upon hearsay. There’s no proof that she ever
    said these things.        And this is the type of
    reputation and opinion evidence that is, I believe,
    prohibited under 412 as is relating to sexual
    conduct and it’s not fitting in one of the categories
    that allows for past behavior to be admissible.
    The trial court sustained the State’s objection, and May was not permitted to
    testify in front of the jury.
    Appellant also offered testimony from Jeannie Redmon outside the
    presence of the jury.       Redmon testified that she had known Complainant for
    “[a]pproximately seven to eight years.” Redmon testified that Complainant was
    “untruthful” because (1) she took items that belonged to Redmon’s daughter, told
    Redmon that Redmon’s daughter had given her the items when in fact, Redmon’s
    daughter had not, and instructed Redmon’s daughter to similarly lie; (2) she
    would tell Redmon and her daughter that she was dating people whom she was
    not dating; (3) she had said that a boy across the street had raped her; and
    (4) she lied about giving out her phone number to boys at a waterpark when
    Redmon asked her if she had done so. Redmon also testified that she thought
    her daughter and Complainant had gone to pornographic websites on Redmon’s
    home computer.         Appellant offered Redmon’s testimony as her opinion on
    Complainant’s truthfulness. The State objected to Redmon’s testimony:
    We’ll object under rule 608 and 609, also 404. I think if this witness
    knew [Complainant] presently, we would be legally okay with her
    opinion that she’s untruthful, but I think four years ago is a little bit too
    6
    remote. And certainly, even if that was allowed, the rules, specifically
    608(b)[,] disallow specific instances of conduct. So we would object
    to any specific instances.
    Additionally, it sounds like almost all of this is hearsay and,
    except for perhaps the opinion as to truthfulness. But the porn use, I
    don’t think we can say that this witness knows with her own personal
    knowledge that it was definitely [Complainant]. I think perhaps she’s
    basing that off of what her daughter has told her. And the same with
    the false claim of rape, she’s admitted on cross she really does not
    know what happened.
    The trial court sustained the State’s objections, and Redmon was not permitted to
    testify in front of the jury.
    Appellant also presented evidence from Denise Brown outside the
    presence of the jury.       Brown testified that Complainant was friends with her
    daughter and that she knew Complainant in 2009 and 2010. Brown testified that
    Complainant was untruthful because Complainant (1) spread rumors that Brown’s
    daughter was pregnant and (2) took some fingernail polish belonging to Brown’s
    daughter without permission.            Brown also testified that Complainant was
    flirtatious   with   boys       and   opined   that   Complainant   was   promiscuous.
    Complainant’s friendship with Brown’s daughter ended when Brown’s daughter
    began dating a boy whom Complainant had previously dated, and Complainant
    began calling Brown’s daughter a “slut.”              The State objected to Brown’s
    testimony:
    The State would object as to . . . this witness . . . having no personal
    knowledge of the things that she has referenced as far as her basis
    for determining this—[Complainant’s] credibility. She’s basing it upon
    hearsay. So we would object under 608.
    7
    Also, as far as going into specific instances of conduct, she
    doesn’t—she did not personally observe them or have personal
    knowledge as to them.
    Also, we’d object under 404, 403 as to her general
    characterization     of  [Complainant’s   being]     boy    crazy,
    promiscuous. . . . [S]he has clearly demonstrated her own bias
    towards [Complainant] where she does not apply the standard to her
    own daughter as she does for [Complainant], even though they’re
    engaged in the same conduct.
    The trial court sustained the State’s rule 608 objection.
    Sufficiency of the Evidence
    In his first issue, Appellant argues that the evidence is insufficient to
    support the jury’s determination that, during the alleged aggravated sexual
    assaults, he, “by acts or words placed [Complainant] in fear that death or serious
    bodily injury would be imminently inflicted on [her] or [her mother],” as alleged in
    counts one through four, eight, and nine.
    In our due-process review of the sufficiency of the evidence to support a
    conviction, we view all the evidence in the light most favorable to the verdict to
    determine whether any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt.1 This standard gives full play
    to the responsibility of the trier of fact to resolve conflicts in the testimony, to
    1
    Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979);
    Dobbs v. State, 
    434 S.W.3d 166
    , 170 (Tex. Crim. App. 2014).
    8
    weigh the evidence, and to draw reasonable inferences from basic facts to
    ultimate facts. 2
    The trier of fact is the sole judge of the weight and credibility of the
    evidence.3 Thus, when performing an evidentiary sufficiency review, we may not
    re-evaluate the weight and credibility of the evidence and substitute our judgment
    for that of the factfinder.4    Instead, we determine whether the necessary
    inferences are reasonable based upon the cumulative force of the evidence when
    viewed in the light most favorable to the verdict.5 We must presume that the
    factfinder resolved any conflicting inferences in favor of the verdict and defer to
    that resolution.6
    The standard of review is the same for direct and circumstantial evidence
    cases; circumstantial evidence is as probative as direct evidence in establishing
    the guilt of an actor.7
    2
    
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789; 
    Dobbs, 434 S.W.3d at 170
    .
    3
    See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); 
    Dobbs, 434 S.W.3d at 170
    .
    4
    Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex. Crim. App. 2010).
    5
    Sorrells v. State, 
    343 S.W.3d 152
    , 155 (Tex. Crim. App. 2011); see
    Temple v. State, 
    390 S.W.3d 341
    , 360 (Tex. Crim. App. 2013).
    6
    
    Jackson, 443 U.S. at 326
    , 99 S. Ct. at 2793; 
    Dobbs, 434 S.W.3d at 170
    .
    7
    
    Dobbs, 434 S.W.3d at 170
    ; Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim.
    App. 2007).
    9
    Complainant testified that Appellant had told her (1) that he knew people in
    Mexico associated with the Mexican mafia and that they would kill her and her
    mother without the killings being traced back to him and (2) a story about a man
    who raped his babysitter and killed her after she told someone about the rape.
    The outcry witness testified that Complainant had reported the Mexican mafia
    threat to her and that Complainant had also told her that Appellant had
    threatened to slit Complainant’s throat and leave her in a ditch somewhere.
    Appellant relies on Blount v. State 8 and its progeny to argue that the threats
    were not imminent because they were conditional.           The Blount court found
    insufficient the attackers’ telling the victim that if she told, they would come back
    and kill her because the threat was conditional. 9 As the State points out, Blount
    relied on a former version of the statute that required not only that the threat was
    made but that it “compelled submission to the rape.” 10         That language was
    removed from the statute when it was later amended, and consequently, as the
    State argues, it does not apply to this offense. 11
    8
    
    542 S.W.2d 164
    (Tex. Crim. App. 1976).
    9
    
    Id. at 165–66.
          10
    
    Id. at 165
    (quotation marks omitted).
    11
    See Tex. Penal Code Ann. § 22.021 (West Supp. 2014) (providing
    elements of aggravated sexual assault); Nichols v. State, 
    692 S.W.2d 178
    , 180
    (Tex. App.—Waco 1985, pet. ref’d) (discussing the 1981 statutory amendment
    removing the requirement of compelled submission).
    10
    Further, a child cannot consent to sexual contact or intercourse. 12 There is
    no element of compulsion required to be proved in the aggravated sexual assault
    or sexual assault of a child. 13    Because Complainant was a child and not
    competent to consent to sexual conduct, the threat went only to the aggravating
    element that elevated the offense to a higher grade of felony and therefore a
    higher range of punishment. 14
    The unique facts of this case require us to look at the threats as continuing
    during the commission of the assaults over an extended period of time.
    Complainant said in her outcry and repeated at trial that Appellant—who for most
    of the period of the offenses was a person lurking in the background of her life—
    made various death threats to keep her participating silently in the sexual
    relationship. She understood these threats to be continuing threats of imminent
    harm at any time. 15 The record supports that interpretation under the unique
    facts of this case. We therefore overrule Appellant’s first issue.
    12
    In re B.W., 
    313 S.W.3d 818
    , 823–24 (Tex. 2010).
    13
    See id.; see also Tex. Penal Code Ann. § 22.011(a)(2) (West 2011),
    § 22.021(a)(1)(B), (2).
    14
    Compare Tex. Penal Code Ann. § 22.011(f) (West 2011) (providing that
    sexual assault is a second-degree felony), and 
    id. § 12.33
    (providing range of
    punishment for second-degree felonies), with 
    id. § 22.021(a)(2)(A)(ii),
    (e)
    (providing that aggravated assault as alleged in this case is a first-degree felony),
    and 
    id. § 12.32
    (providing range of punishment for first-degree felonies).
    15
    See, e.g., Curry v. State, 
    30 S.W.3d 394
    , 406 (Tex. Crim. App. 2000)
    (discussing the continuing nature of an abduction and holding that because a
    11
    Alleged Misstatement of the Law in Voir Dire
    In his second issue, Appellant argues that the State misstated the law
    during voir dire and that this misstatement violated his rights under the Sixth and
    Fourteenth Amendments to the United States Constitution and sections ten and
    nineteen of article I of the Texas Constitution. To preserve a complaint for our
    review, a party must have presented to the trial court a timely request, objection,
    or motion that states the specific grounds for the desired ruling if they are not
    apparent from the context of the request, objection, or motion. 16 Further, the trial
    court must have ruled on the request, objection, or motion, either expressly or
    implicitly, or the complaining party must have objected to the trial court’s refusal
    to rule. 17 We have carefully examined those portions of the record to which
    Appellant directs us concerning what he describes as misrepresentations of the
    law to the jury panel during voir dire. At no point did Appellant object or otherwise
    call his complaint to the attention of the trial court. Consequently, he did not
    preserve this issue for appellate review. We overrule Appellant’s second issue.
    witness testified that he saw Curry with a gun that night, “the jury could have
    believed that Curry had that gun and used it during the course of the abduction to
    prevent [the complainant’s] liberation” and “the jury was free to disbelieve [the
    complainant’s] testimony that Curry did not have a gun and that Curry did not
    threaten him”).
    16
    Tex. R. App. P. 33.1(a)(1); Everitt v. State, 
    407 S.W.3d 259
    , 262–63
    (Tex. Crim. App. 2013); Sanchez v. State, 
    418 S.W.3d 302
    , 306 (Tex. App.—Fort
    Worth 2013, pet. ref’d).
    17
    Tex. R. App. P. 33.1(a)(2); 
    Everitt, 407 S.W.3d at 263
    .
    12
    Excluded Evidence About Complainant
    In his third, fourth, and fifth issues, Appellant argues that the trial court
    reversibly erred by refusing to allow him to present the testimony of May,
    Redmon, and Brown that Complainant had made a prior false rape allegation
    against a neighbor and that she was untruthful. Judge Cochran has explained,
    Trials involving sexual assault may raise particular evidentiary
    and constitutional concerns because the credibility of both the
    complainant and defendant is a central, often dispositive, issue.
    Sexual assault cases are frequently “he said, she said” trials in
    which the jury must reach a unanimous verdict based solely upon
    two diametrically different versions of an event, unaided by any
    physical, scientific, or other corroborative evidence. Thus, the Rules
    of Evidence, especially Rule 403, should be used sparingly to
    exclude relevant, otherwise admissible evidence that might bear
    upon the credibility of either the defendant or complainant in such
    “he said, she said” cases. And Texas law, as well as the federal
    constitution, requires great latitude when the evidence deals with a
    witness’s specific bias, motive, or interest to testify in a particular
    fashion.
    But, as the Supreme Court noted in Davis v. Alaska, there is
    an important distinction between an attack on the general credibility
    of a witness and a more particular attack on credibility that reveals
    “possible biases, prejudices, or ulterior motives of the witness as
    they may relate directly to issues or personalities in the case at
    hand.” Thus, under Davis, “the exposure of a witness’ motivation in
    testifying is a proper and important function of the constitutionally
    protected right of cross-examination.” However, as Justice Stewart
    noted in concurrence, the Court neither held nor suggested that the
    Constitution confers a right to impeach the general credibility of a
    witness through otherwise prohibited modes of cross-examination.
    Thus, the Davis Court did not hold that a defendant has an absolute
    constitutional right to impeach the general credibility of a witness in
    any fashion that he chooses. But the constitution is offended if the
    state evidentiary rule would prohibit him from cross-examining a
    13
    witness concerning possible motives, bias, and prejudice to such an
    extent that he could not present a vital defensive theory. 18
    A witness’s credibility may be attacked in three ways: opinion or reputation
    for general truthfulness or untruthfulness and cross-examination on specific
    instances of conduct that establish bias, self-interest, or motive for testifying as
    he or she did. 19 Opinion evidence is not the same as reputation evidence. 20 As
    this court has explained,
    Reputation witnesses’ testimony must be based on discussion with
    others about the subject, or on hearing others discuss the person’s
    reputation, and not just on personal knowledge. Rule 405 requires
    only “substantial familiarity” with the reputation of the accused. 21
    Reputation evidence, then, must necessarily be grounded in hearsay. 22
    An objection that the testimony of reputation evidence is hearsay and not based
    on personal knowledge thus will not lie. 23 Opinion testimony is governed by rule
    of evidence 701 and must be based on personal observation. 24
    18
    Hammer v. State, 
    296 S.W.3d 555
    , 561–63 (Tex. Crim. App. 2009)
    (footnotes omitted).
    19
    Tex. R. Evid. 405, 608.
    20
    See Tex. R. Evid. 405, 701.
    21
    Ferrell v. State, 
    968 S.W.2d 471
    , 474 (Tex. App.—Fort Worth 1998, pet.
    ref’d) (citations omitted).
    22
    See id.; see also Tex. R. Evid. 405.
    23
    See Tex. R. Evid. 405; 
    Ferrell, 968 S.W.2d at 474
    .
    24
    Tex. R. Evid. 701.
    14
    Within this general framework, Judge Cochran, speaking for the
    unanimous Hammer court, has explained why Texas, unlike many other states,
    does not allow a defendant in a sexual assault case to impeach the complainant
    with evidence of prior false accusations:
    The theory for admitting prior false accusations of rape in a
    sex-offense prosecution is frequently analogized to Aesop’s story of
    “The Boy Who Cried Wolf.” A past false accusation makes it more
    likely that the witness lacks credibility and thus should not be
    believed concerning this accusation. But in Aesop’s fable, there
    really was a wolf, and it killed the sheep. The moral of that story was
    “Nobody believes a liar . . . even when he is telling the truth.” A
    criminal trial, however, is designed to find the truth about a specific
    incident, not to decide whether someone has lied in the past about
    the presence of wolves or about being raped. Prior false allegations
    of rape do not tend to prove or disprove any of the elements of the
    charged sexual offense.
    Therefore, Texas, unlike some jurisdictions, has not created a
    per se exception to Rule 608(b)’s general prohibition against
    impeachment with specific instances of conduct to admit evidence of
    the complainant’s prior false allegations of abuse or molestation.
    The inferential chain of logic that is barred by Rule 608(b) is this:
    The witness lied to his employer (or did some specific act of
    dishonesty)
    That specific conduct proves dishonest character;
    Therefore, the witness is generally dishonest and should not
    be believed in this case.
    Applied to prior false accusations, the barred evidentiary chain is
    this:
    Complainant made a prior false accusation;
    That specific conduct proves dishonest character;
    Therefore, the complainant is generally dishonest and should
    not be believed in this case.
    15
    This is precisely the prohibited propensity chain of logic—
    “Once a thief, always a thief,” “Once a liar, always a liar”—that
    underlies both Rules 404(b) and 608(b).           A sexual assault
    complainant is not a volunteer for an exercise in character
    assassination. Several federal courts have held that exclusion of
    this evidence, offered to attack the victim’s general credibility, does
    not violate the Confrontation Clause.
    If, however, the cross-examiner offers evidence of a prior false
    accusation of sexual activity for some purpose other than a
    propensity attack upon the witness’s general character for
    truthfulness, it may well be admissible under our state evidentiary
    rules.
    For example, in Billodeau v. State, we held that the trial court
    should have admitted evidence that the child complainant in that
    aggravated sexual assault prosecution had made threats to falsely
    accuse two neighbors of sexual molestation. We held that such
    evidence supported the defensive theory that the complainant’s
    motive in accusing the defendant of sexual molestation was “rage
    and anger” when he was thwarted. Evidence of threats to accuse
    others of sexual molestation when he displayed “rage and anger” at
    being thwarted is some evidence of a common motive for accusing
    the defendant of sexual molestation. The chain of logic is as follows:
    The victim makes false accusations in certain circumstances
    and for certain reasons;
    Those circumstances and reasons are present in this case;
    Therefore, the victim made a false accusation in this case.
    One might even call this modus operandi evidence admissible
    under Rule 404(b). Evidence of other acts or wrongs may be
    admissible under Rule 404(b) to prove such matters as motive,
    intent, scheme, or any other relevant purpose except conduct in
    conformity with bad character. Even “the doctrine of chances” has
    been invoked as a possible basis for admitting evidence of a victim’s
    prior false accusation of rape. Similarly, evidence of a victim’s prior
    sexual activity may be admissible under Rule 412, the Texas Rape
    Shield Law, when offered to establish the victim’s motive or bias
    against the defendant.
    16
    In sum, several different state evidentiary rules permit the use
    of prior false accusations when offered to show the witness’s bias or
    motive or for some other relevant, noncharacter purpose. The
    Confrontation Clause mandate of Davis v. Alaska is not inconsistent
    with Texas evidence law. Thus, compliance with a rule of evidence
    will, in most instances, avoid a constitutional question concerning the
    admissibility of such evidence. 25
    We now examine the case at bar.
    Prior Rape
    Appellant argues that the trial court abused its discretion by excluding
    May’s testimony that he had heard a rumor that Complainant was telling people
    that he had sexually assaulted her and Redmon’s testimony pertaining to the
    alleged incident.   Appellant offered May’s testimony under rule of evidence
    404(b). 26 While Appellant now argues that the trial court’s ruling abridged certain
    of his constitutional rights, at trial he spoke only of credibility and Rule 404(b).
    Appellant’s complaints at trial do not conform to his constitutional complaints on
    appeal; we therefore do not address his constitutional complaints. 27
    Additionally, May’s testimony dealt with rumors on the street; it did not
    constitute testimony of Complainant’s reputation for truthfulness, nor were his
    claims that he had heard that she was spreading rumors in any way
    25
    
    Hammer, 296 S.W.3d at 564
    –66 (footnotes omitted).
    26
    Tex. R. Evid. 404(b).
    27
    See Tex. R. App. P. 33.1(a)(1); Lovill v. State, 
    319 S.W.3d 687
    , 691–92
    (Tex. Crim. App. 2009).
    17
    substantiated to provide a basis for an opinion that she was not worthy of belief
    under oath. And to the extent that his testimony was intended to be evidence of
    prior false accusations of sexual assault, such testimony is not admissible for the
    purpose of showing her character conformity or propensity to lie. 28
    Although Appellant also argues that the evidence was admissible to show
    motive and modus operandi, May candidly admitted that Complainant never
    accused him to his face of raping her. His belief that she had accused him was
    based on rumors that he had heard. The record does not establish confirmation
    of May’s belief that she falsely accused him of rape. Nor do the rumors he heard
    suggest a motive for falsely accusing Appellant or a modus operandi. May said
    that Complainant would ask him to have sex with her, and he refused. But we
    cannot discern how the rumors he heard that she was accusing him of rape were
    ever verified.   The record before this court therefore does not establish the
    admissibility of this evidence of purported false accusations of rape under rule
    404(b).
    At trial, Appellant explained in seeking admission of the false accusation
    testimony, “the false claim of rape is going to credibility.”    We hold that the
    rumors of false rape accusations were not admissible, and based on the record
    before us, that the trial court did not abuse its discretion in denying Appellant’s
    28
    See 
    Hammer, 296 S.W.3d at 564
    .
    18
    request to present this evidence before the jury. We overrule Appellant’s third
    issue.
    Redmon’s and Brown’s Opinion Testimony
    In his fourth and fifth issues, Appellant complains of the exclusion of the
    testimony of Redmon and Brown concerning their opinions of Complainant’s
    credibility.   As we understand the record, Appellant appears to have offered
    these opinions by having the women explain specific acts that they suspected
    had occurred and speculate on others. He did not offer their testimony on any
    constitutional basis. We therefore do not address the constitutional arguments
    he raises on appeal. 29
    Redmon’s testimony was based on her belief that Complainant had lied
    and had told Redmon’s daughter to lie about having given Complainant things
    that Complainant had stolen from Redmon’s daughter. Redmon also believed
    that Complainant had lied to her and to her daughter about dating, smoking
    marijuana, and being raped. Appellant explained to the trial court that he was
    offering Redmon’s testimony as “possible opinion testimony on truthfulness.”
    Brown believed that Complainant had spread untruthful rumors about her
    daughter and that she had stolen her daughter’s nail polish. We are not clear on
    the legal basis for which Appellant offered this evidence, other than as an opinion
    29
    See Tex. R. App. P. 33.1(a)(1); 
    Lovill, 319 S.W.3d at 691
    –92.
    19
    of Complainant’s truthfulness. Judge Keasler has explained for the Texas Court
    of Criminal Appeals,
    [A] less common notion of error preservation comes into play in this
    case, although certainly not a novel one. Professors Goode,
    Wellborn and Sharlot refer to it as “party responsibility.” They
    explain it this way:
    To the question, which party has the responsibility
    regarding any particular matter, it is infallibly accurate to
    answer with another question:              which party is
    complaining now on appeal? This is because in a real
    sense both parties are always responsible for the
    application of any evidence rule to any evidence.
    Whichever party complains on appeal about the trial
    judge’s action must, at the earliest opportunity, have
    done everything necessary to bring to the judge’s
    attention the evidence rule in question and its precise
    and proper application to the evidence in question.
    The basis for party responsibility is, among other things, Appellate
    Rule 33.1. It provides that as a prerequisite to presenting a
    complaint for appellate review, the record must show that the party
    “stated the grounds for the ruling that (he) sought from the trial court
    with sufficient specificity to make the trial court aware of the
    complaint.” So it is not enough to tell the judge that evidence is
    admissible. The proponent, if he is the losing party on appeal, must
    have told the judge why the evidence was admissible.
    We recently discussed this notion in Martinez v. State. There,
    the defendant moved to suppress oral statements due to the State’s
    failure to comply with Art. 20.17. The State argued for the first time
    on appeal that Art. 20.17 did not apply. We concluded that the State
    forfeited this argument by failing to bring it to the trial judge’s
    attention.    We explained that “both Texas Rule of Appellate
    Procedure 33.1 and Texas Rule of Evidence 103 are ‘judge-
    protecting’ rules of error preservation. The basic principle of both
    rules is that of ‘party responsibility.’” We recognized that “the party
    complaining on appeal (whether it be the State or the defendant)
    about a trial court’s admission, exclusion, or suppression of evidence
    must, at the earliest opportunity, have done everything necessary to
    bring to the judge’s attention the evidence rule or statute in question
    20
    and its precise and proper application to the evidence in question.”
    The issue, we said, “is not whether the appealing party is the State
    or the defendant or whether the trial court’s ruling is legally ‘correct’
    in every sense, but whether the complaining party on appeal brought
    to the trial court’s attention the very complaint that party is now
    making on appeal.”
    Similarly, in Willover v. State, the defendant sought to admit
    two videotaped interviews of the victim. At trial,
    it (was) clear that, although (the defendant) did not
    actually recite the specific rule of evidence he was
    relying upon, (he) sought to admit the videotapes for
    impeachment purposes. (He) did not argue, nor was
    there any discussion at trial, that the tapes were not
    hearsay or that the videotapes were admissible under
    any exception to the hearsay rule other than Article
    38.071 or for impeachment purposes.
    On appeal, the defendant argued for the first time that the
    videotapes were not hearsay. We relied on the notion of “party
    responsibility” to reject this argument because “(i)n order to have
    evidence admitted under a hearsay exception, the proponent of the
    evidence must specify which exception he is relying upon.” It was
    up to the defendant, we said, and “not the trial court, to specify
    which exception to the hearsay rule he was relying upon or to
    specify how the evidence was not hearsay.”
    In some cases, we have applied the “party responsibility”
    theory without using those precise words. In Clark v. State, the
    State presented the testimony of Dr. James Grigson that the
    defendant would be a future danger. The defendant sought at trial
    to introduce a letter and accompanying report which listed eleven
    individuals convicted of capital murder whose sentences had later
    been commuted or reduced. In several of those cases, Dr. Grigson
    had predicted that the individual would be a future danger. The trial
    court refused to admit the evidence.
    On appeal, the defendant argued that the excluded evidence
    was admissible to impeach Dr. Grigson and show that his prior
    future dangerousness predictions had turned out to be incorrect.
    But the defendant had not articulated this basis for admission at trial.
    At trial, he had argued the evidence was admissible to impeach
    21
    statements that Dr. Grigson had made in Lubbock County. The
    State had objected that the impeachment went to a collateral matter,
    and the trial judge had agreed.
    We rejected the defendant’s argument on appeal because he
    “did not clearly articulate” that he wanted to admit the evidence to
    demonstrate Grigson’s past mistakes in predicting future
    dangerousness. We said that the trial judge “never had the
    opportunity to rule upon (the defendant’s) appellate rationale.” Since
    the defendant “did not sufficiently clearly expressly offer the
    evidence for the purpose which he now claims on appeal,” that
    argument could not be raised on appeal.
    Finally, in Jones v. State, the defendant sought at trial to admit
    the grand jury testimony of a witness who asserted her Fifth
    Amendment privilege against self-incrimination and refused to
    testify. The State objected, claiming hearsay. We concluded that
    the defendant failed to preserve error because he never specified
    which portions of the witness’s testimony he wanted to admit into
    evidence. We said:
    The trial court need never sort through challenged
    evidence in order to segregate the admissible from the
    excludable, nor is the trial court required to admit only
    the former part or exclude only the latter part. If
    evidence is offered and challenged which contains
    some of each, the trial court may safely admit it all or
    exclude it all, and the losing party, no matter who he is,
    will be made to suffer on appeal the consequences of
    his insufficiently specific offer or objection. In this case,
    because the trial court chose to exclude the evidence,
    appellant is the party adversely affected by his own
    default. Because appellant failed to specify which
    portion of the transcript he intended to introduce into
    evidence, the court was presented with a proffer
    containing both admissible and inadmissible evidence.
    When evidence which is partially admissible and
    partially inadmissible is excluded, a party may not
    complain upon appeal unless the admissible evidence
    was specifically offered.
    22
    Application
    In this case, Reyna argued to the trial judge that the evidence
    should be admitted for “credibility.” He said that he was “not offering
    it to prove the truth of the matter asserted” and “not offering it to go
    into her sexuality.”       Instead, he argued, “I’m offering it to
    demonstrate that as to prior sexual activities, that she made
    allegations that there were prior sexual allegations, and recanted.”
    Reyna did not cite to any rules of evidence, cases, or
    constitutional provisions. Reyna’s references to “the truth of the
    matter asserted” reflect that he was arguing that the evidence was
    not hearsay under Evidence Rule 801(d). His claim that he was not
    offering it “to go into her sexuality” reflects his argument that the
    evidence should not be excluded under Evidence Rule 412(b).
    These arguments are both based on the Rules of Evidence.
    Reyna’s reference to “credibility” could be a reference to either the
    Rules of Evidence or the Confrontation Clause.
    Reyna told the trial judge that the purpose of admitting the
    evidence was to attack the victim’s credibility, but he did not provide
    the basis for admitting the evidence. He could have been relying on
    the Rules of Evidence or the Confrontation Clause. It was up to the
    judge to discern some basis for admitting the evidence.
    We have said that “(t)he purpose of requiring (an) objection is
    to give to the trial court or the opposing party the opportunity to
    correct the error or remove the basis for the objection.” When a
    defendant’s objection encompasses complaints under both the
    Texas Rules of Evidence and the Confrontation Clause, the
    objection is not sufficiently specific to preserve error. An objection
    on hearsay does not preserve error on Confrontation Clause
    grounds.
    Although this case involves a proffer of evidence rather than
    an objection, the same rationale applies. Reyna did not argue that
    the Confrontation Clause demanded admission of the evidence.
    Reyna’s arguments for admitting the evidence could refer to either
    the Rules of Evidence or the Confrontation Clause. His arguments
    about hearsay did not put the trial judge on notice that he was
    making a Confrontation Clause argument. Because Reyna “did not
    clearly articulate” that the Confrontation Clause demanded
    admission of the evidence, the trial judge “never had the opportunity
    23
    to rule upon” this rationale. As the losing party, Reyna must “suffer
    on appeal the consequences of his insufficiently specific offer.”
    Reyna did not do “everything necessary to bring to the judge’s
    attention the evidence rule or statute in question and its precise and
    proper application to the evidence in question.” 30
    In the case now before this court, Appellant offered the evidence on the
    vague basis of “possible” opinion testimony. He did not sustain his burden of
    explaining to the trial court on the record, and by extension to us, why Redmon’s
    and Brown’s testimony was admissible—whether under an evidentiary rule or
    statute, as an exception to an evidentiary rule or statute, or under a constitutional
    provision. We therefore overrule Appellant’s fourth and fifth issues.
    Conclusion
    Having overruled Appellant’s five issues on appeal, we affirm the trial
    court’s judgments.
    /s/ Lee Ann Dauphinot
    LEE ANN DAUPHINOT
    JUSTICE
    PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
    PUBLISH
    DELIVERED: August 6, 2015
    30
    Reyna v. State, 
    168 S.W.3d 173
    , 176–79 (Tex. Crim. App. 2005)
    (citations omitted).
    24
    

Document Info

Docket Number: NO. 02-13-00532-CR

Judges: Dauphinot, Gardner, Walker

Filed Date: 8/10/2015

Precedential Status: Precedential

Modified Date: 8/31/2023