Freddie Goines Beverly v. the State of Texas ( 2022 )

Affirm and Opinion Filed December 6, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00980-CR
FREDDIE GOINES BEVERLY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 19-90211-422-F
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Pedersen, III
A jury found appellant Freddie Goines Beverly guilty of aggravated sexual
assault. The finding was enhanced by two prior offenses, and the trial court assessed
appellant’s punishment at eighty years’ confinement in the Institutional Division of
the Texas Department of Criminal Justice. In a single issue, appellant argues the trial
court abused its discretion when it denied his request to recall and cross-examine the
complainant about her criminal record after the State opened the door to that
testimony. We affirm the trial court’s judgment.
Background
Before trial of the case began, the State offered a motion in limine, seeking an
order that—unless they first approached the bench for a hearing on the matter—
defense witnesses and attorneys would not:
mention, allude to, refer to, or begin to testify in any manner
whatsoever, or elicit testimony from witnesses regarding the following:
that [the complainant] has been arrested in the past for misdemeanor
and felony offenses, and that [the complainant] has had formal criminal
charges and/or convictions for offenses, and that [the complainant] is
currently on deferred adjudication probation for felony offenses, and
that [the complainant] is currently in the custody of and under court-
ordered treatment at SAFP (Texas Substance Abuse Felony Punishment
Facility).
Counsel for appellant did not object to the motion, and the trial court granted it.
The first witnesses at trial were Daniel and Jessica Smith, a married couple
who were driving home and came upon appellant punching the complainant in the
middle of an intersection in Forney. They stopped the car, and Mr. Smith yelled at
appellant to stop. Appellant ran away; Mr. Smith chased him and called 911. Mrs.
Smith, meanwhile tended to the complainant: the young woman had cuts, and her
face was swollen; she was naked from the waist down; and she was crying
hysterically. She told Mrs. Smith that appellant had tried to rape her. Mrs. Smith also
called 911. The police arrived quickly and arrested appellant.
The complainant testified to the events of that day. She had met appellant
earlier in the day, when she was visiting at his family’s home. She made two trips to
a convenience store with appellant and his nephew to buy beer and tobacco. She
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testified that she had had enough beer then, but appellant wanted to go back to the
store, so the two of them returned. Police officers—who testified they were
responding to a call about a couple drinking outside the store—arrived at the store
and drove the two of them home separately. Appellant came by the complainant’s
home later, and the two were walking together back to the store when appellant
suddenly began punching her, tore her shorts off, and attempted to penetrate her with
his penis. When he could not, he digitally penetrated her, and attempted to force her
to perform oral sex on him. She ran away, trying to reach an intersection where
someone could see and help her. She collapsed at the intersection where the Smiths
stopped.
After the complainant testified and was cross-examined, the State called
Susan Velez, a certified sexual assault nurse examiner (SANE), who examined the
complainant the following morning. Velez testified, using the report she created at
the time of the exam, to what the complainant told her, including that she had not
voluntarily ingested alcohol over the last twenty-four hours. The prosecutor asked
Velez to read the “Patient’s History of Events” from her report. For our purposes,
the relevant portion of that section of the report involved the time period before the
assault, when police were called to the convenience store. Velez read:
I was walking in my neighborhood. There’s only one really black guy
in the neighborhood, so he wanted to walk to the store with me. He had
got in trouble. . . . He got caught for having [an] open container so they
ran his record and mine. They let me go because my record is fucking
clean. They gave me a ride home.
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After the State rested, defense counsel asked to recall the complainant “for the
purpose of confronting her as to whether or not that is true or not true that she had,
had a clean record.” Counsel argued that the complainant had “multiple law
enforcement contacts” and thus what she had told the SANE created a false
impression for the jury. The trial court heard arguments from both sides but denied
appellant’s request to recall the complainant.
The jury found appellant guilty of aggravated sexual assault. Appellant
pleaded true to two enhancements, and the trial court sentenced him to eighty years’
confinement. This appeal followed.
The Confrontation Issue
Appellant’s single issue complains of the trial court’s refusal to allow him to
confront the complainant concerning her criminal record. The court ruled that the
evidence elicited from the SANE’s report was not testimonial in nature and that
impeaching the complainant based on that statement would be improper.
At the outset, we have serious concerns about the State’s conduct that initiated
this issue. The defense complied with the State’s motion in limine and made no
reference to the complainant’s criminal history during its cross-examination of her.
Then, after the complainant had finished testifying, the State directed Velez to read
the section from her report that included the complainant’s assertion that her record
was clean. The issue is complicated by the fact that the statement came only
indirectly from the complainant, who was not under oath at the time that she made
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the statement to Velez.1 Regardless, we conclude that the State opened the door to
evidence about the complainant’s criminal history.
The State argues that appellant did not preserve this issue for our review
because he made neither a detailed offer of proof concerning the excluded evidence
nor a formal bill of exception. We disagree that the issue was not preserved. The trial
court discussed the precise issue with counsel at some length. Appellant’s counsel
confirmed his complaint and his request: that the complainant was on deferred
adjudication probation for more than one felony, that she had had multiple “law
enforcement contacts,” and that the statement read by the SANE was “just a
materially false statement.” Appellant’s counsel argued he should have the right to
confront the complainant about that statement. The discussions and arguments
before the court, involving counsel for the State as well as appellant’s counsel,
centered on whether the statement was testimonial or not, a matter at the heart of a
Confrontation Clause issue. See, e.g., Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim.
App. 2006) (admission of hearsay statement made by non-testifying declarant
violates Sixth Amendment if statement was testimonial and defendant lacked prior
opportunity for cross-examination). We conclude that appellant preserved his
confrontation complaint.
1
Indeed, the trial court stated that if the complainant had made the statement directly, “then I do think
at that point you would be able to impeach her through cross-examination.”
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Nevertheless, even if we were to assume—without deciding—that the trial
court’s ruling violated appellant’s confrontation rights, a violation of the
Confrontation Clause is subject to a harmless error analysis. Shelby v. State, 819
S.W.2d 544, 546 (Tex. Crim. App. 1991). When the error involves a trial court’s
unconstitutionally restricting cross-examination, we must first assume that the
damaging potential of the cross-examination had occurred. Davis v. State, 203
S.W.3d 845, 850 (Tex. Crim. App. 2006). In this case, that would mean assuming
that the complainant had been impeached with her criminal history. Then we must
ask whether admission of that impeachment evidence, considered within the context
of the trial as a whole, would likely have made a significant impact upon the mind
of an average juror. Id. Our answer to this question is informed by examining the
following factors: (1) the importance of the witness’s testimony in the prosecution’s
case; (2) whether the testimony was cumulative; (3) the presence or absence of
evidence corroborating the testimony of the witness on material points; (4) the extent
of cross-examination otherwise permitted; and (5) the overall strength of the
prosecution’s case. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
Accordingly, we assume that the complainant had been recalled in this case,
and that appellant had been able to impeach her with her multiple “law enforcement
contacts.” We evaluate the Van Arsdall factors as follows:
(1) We agree with appellant that the complainant’s testimony was
critical to the State’s case.
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(2) Any testimony that the complainant had a criminal record would not
have been cumulative, at least in part because—prior to the SANE
testimony—all witnesses and attorneys had complied with the State’s
limine motion.
(3) In significant respects, the complainant’s testimony concerning the
assault was corroborated: by the uninterested witnesses who came
upon her as she was being beaten by appellant, by police testimony that
officers found her clothing where she testified appellant had torn it off,
by her injuries showing that she had run from appellant and fallen in
the process. Indeed, as to the elements of the aggravated sexual assault,
the single uncorroborated element was the act of digital penetration.
(4) Appellant conducted a full cross-examination of the complaining
witness when she was on the stand. Appellant has not identified any
area of inquiry he was denied other than the complainant’s criminal
record.
(5) As we have related above, the State produced testimony from
uninterested witnesses who came upon appellant assaulting the
complainant; as a result, certain issues never implicated the
complainant’s credibility. The Smiths observed appellant’s violent
attack on her. Mr. Smith pursued appellant until he was arrested, so
there was no issue as to identity in the case. And Mrs. Smith testified
to the complainant’s emotional demeanor, physical injuries, and claim
of attempted rape. Police officers testified to finding the complainant’s
clothes and phone where she reported appellant had begun to attack her.
Appellant’s counsel’s closing argument largely attempted to raise a
doubt about the single issue of penetration and to have the jury consider
the lesser included offense of attempted sexual assault. To be sure,
counsel asked for a not guilty verdict, but his argument focused on
undermining the penetration element. His argument was based on the
SANE report’s indication that the complainant answered “no” when
asked whether penetration had occurred. The State showed the jury,
however, that when the complainant’s testimony was examined using
the legal understanding of the term penetration—the understanding the
jury received in its charge—she did testified that appellant digitally
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penetrated her.2 We conclude the State’s case against appellant was
very strong.
The Van Arsdall factors are not exclusive. Davis, 203 S.W.3d at 852. We have
considered two other factors concerning the context of the trial to assist us in
determining the effect the complainant’s impeachment would have had on the jury.
The first relates to conflicting evidence that could impact the complainant’s
credibility. Velez testified that she asked the complainant whether she had
voluntarily ingested alcohol over the last twenty-four hours and the complainant
replied that she had not. But jurors had already heard the complainant herself testify
that she drank beer that day. As a result, before any impeachment testimony
concerning her criminal record would have been offered, jurors may have already
2
This exchange occurred during the complainant’s testimony:
Q. So was he able to penetrate your vagina with his penis?
A. No. But he tried to arouse me by taking his fingers and licking them and like trying to
rub my clitoris.
Q. Let’s talk about that. The outer folds of your vagina, did his finger actually penetrate
there and touch your clitoris?
A. Yes.
And although the complainant had answered “no” to Velez’s initial question about penetration, she
reported the same conduct by appellant to Velez, saying that appellant “touched my clitoris.”
The jury was instructed:
“Female Sexual Organ” means and includes the vulva or tissue immediately surrounding
the vagina, the vagina, the female genitalia or any parts between the labia of the female
genitalia.
You are further instructed that penetration is complete, however slight.
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questioned whether the complainant was being completely truthful in her reporting
of facts to the nurse.
Finally, although we rejected the argument that error was not preserved in this
case, we must acknowledge that the State indirectly identified a significant issue in
our harm analysis. We do not know the specifics of the complainant’s criminal
history aside from the fact that she was on deferred adjudication probation “for some
felony offenses.” Without identification of those offenses, and any other aspects of
the complainant’s history that would be offered, we cannot realistically predict how
the impeachment evidence would affect jurors’ evaluation of the complainant’s
testimony concerning the aggravated sexual assault.
When we consider all of these factors, we conclude that—even if the trial
court’s refusal to allow appellant to cross-examine the complainant concerning her
criminal history violated his right to confrontation—there is no reasonable
possibility that the court’s error “moved the jury from a state of non-persuasion to
one of persuasion” concerning appellant’s guilt. See Davis, 203 S.W.3d at 852–53.
Instead, we conclude on the record before us, beyond a reasonable doubt, that the
error could not have contributed to appellant’s conviction. See TEX. R. APP. P.
44.2(a). We overrule appellant’s single issue.
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Conclusion
We affirm the trial court’s judgment.
210980f.u05 /Bill Pedersen, III//
BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FREDDIE GOINES BEVERLY, On Appeal from the 422nd Judicial
Appellant District Court, Kaufman County,
Texas
No. 05-21-00980-CR V. Trial Court Cause No. 19-90211-422-
F.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Pedersen, III. Justices Myers and
Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 6th day of December, 2022.
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