Kenneth Dwayne Spradlin v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-220-CR
KENNETH DWAYNE SPRADLIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Kenneth Dwayne Spradlin of indecency with
a child by contact and assessed his punishment at five years’ confinement. The
trial court sentenced him accordingly. In one point, Appellant contends that the
trial court erred by “applying state evidentiary rule thereby denying [him] the
constitutional right to fully confront his accuser by questioning her about her
1
… See Tex. R. App. P. 47.4.
possible motives, bias, and prejudice to such an extent that [he] could not
present a vital defensive theory.” Because we hold that the trial court did not
abuse its discretion by excluding the proffered evidence, we affirm the trial
court’s judgment.
Outside the presence of the jury, Appellant offered evidence of a prior
sexual abuse complaint made by the complainant against Christopher Mark
Cain. The complainant testified outside the jury’s presence that Cain had been
a family friend, that she had told her school counselor in Granbury that he had
molested her, that she had never recanted, that she had never told Child
Protective Services (CPS) that it had not happened, that the police never talked
to her about the allegations, and that the incident “really happened.”
Cain testified outside the jury’s presence that the complainant and her
family had lived with his aunt in Johnson County, that the complainant’s family
members were “back stabbers,” and that in late 2004 or 2005, a CPS
caseworker called him and said “that there was a case against [him] through
them on supposedly touching [the complainant in the] wrong way.” He
testified that he had denied the allegation and never heard anymore about it
from CPS or the complainant’s family. He contended that the complainant’s
family fabricated the allegation against him because he had stopped helping
them. On cross-examination, when asked whether it was his testimony that he
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had never touched the complainant at all, even innocently, he answered,
“Pretty much.” He also admitted that he had been arrested for indecency with
a child, apparently involving another child.
Finally, the defense also offered Katy Love’s grand jury testimony outside
the jury’s presence. Her testimony provides that she had been a CPS
investigator in Johnson County for a little more than three years and that she
had never heard the complainant make an outcry against anyone other than
Appellant. Love also testified that she was not aware of the complainant ever
recanting any allegation of sexual abuse or of any tape containing a recantation.
Appellant explained that he wanted to put the evidence
on the record and show the Court that she did recant and that
that’s why [Cain] wasn’t prosecuted because of her recantation.
And we believe the fact that she said it and the fact that it got
recanted is admissible to show her habit, her motive for reasons for
making this story up against my client.
The trial court excluded all the evidence regarding the prior complaint. Later,
Appellant’s trial counsel “assert[ed] one more time the defense[‘s] desire to ask
those questions that were asked of [the complainant] outside the presence of
the jury and also the testimony of Christopher Cain and [Love’s grand jury
testimony] before the jury.” The trial court again excluded the evidence. That
afternoon, the jury received the case. The next morning, Appellant filed a
motion to allow extrinsic evidence, raising a constitutional complaint.
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We agree with the State that Appellant’s motion to allow extrinsic
evidence was untimely and that his constitutional complaint was not preserved,
but we believe that his earlier objections sufficiently preserved his complaints
under rules 404(b) and 412.2 However, nothing in the proffered evidence
indicates that the complainant recanted her accusations against Cain or that the
child had a motive to make up accusations against Appellant, who admitted to
former Texas DPS Officer Tony Scorcio that he had kissed the complainant on
numerous occasions and stated that he “might have” touched her breast. We
therefore hold that the trial court did not abuse its discretion by excluding the
proffered evidence. 3
We consequently overrule Appellant’s sole point and affirm the trial
court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 29, 2010
2
… See Tex. R. Evid. 404(b), 412(b)(2), (c).
3
… See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g).
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