Opinion
NO. 14-14-00934-CR
01-07-2016
LYNN ERIC CLARK, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas
Trial Court Cause No. 1370261
MEMORANDUM OPINION
This is an appeal from a conviction for aggravated sexual assault of a child. The only question presented is whether the trial court abused its discretion when it excluded evidence that the complainant had falsely accused a third person of sexual misconduct. We conclude that the trial court did not abuse its discretion, and we affirm the trial court's judgment.
BACKGROUND
The complainant accused appellant, her uncle, of penetrating her vagina with his finger when she was five or six years old. The complainant told her mother about the abuse when she was still a child, but the mother "thought that it was an accident" based on the complainant's descriptions.
Years later, when she was sixteen, the complainant discussed the events of her abuse with an older sister. The subject arose during a conversation over why their mother was refusing to buy the complainant tampons. When the sister suggested that tampons might be painful if the complainant's hymen were intact, the complainant responded that she could use a tampon "because of what [appellant] did." The sister pressed for more details, and after she learned of the abuse, the sister convinced the complainant to report the abuse to police.
Appellant was subsequently charged with aggravated sexual assault of a child, to which he pleaded not guilty. During his trial, his defensive theory was that the complainant had fabricated her story. Appellant attempted to show that the complainant had a history of lying and could not be trusted, but the trial court excluded much of his proffered evidence.
Appellant sought to introduce evidence that the complainant had falsely accused her cousin of making sexual advances towards her. Appellant developed this evidence outside the presence of the jury during a bill of exceptions, in which both the complainant and the cousin testified. The complainant claimed that when she was younger, around the age of thirteen, her cousin got drunk and suggested that they should have sex in a bathroom. The complainant reported the cousin's behavior to her family, but not to the police. The cousin denied that he ever propositioned the complainant.
The trial court determined that the evidence concerning the cousin was inadmissible. With that evidence excluded, appellant took the stand in his own defense and denied that he had ever sexually molested the complainant. He testified further that he actually had a friendly relationship with the complainant, explaining that she frequently wanted to sit on his lap and give him big hugs, even after the date of the alleged sexual assault.
STANDARD OF REVIEW
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its discretion when its decision is arbitrary or unreasonable, or when it falls outside the zone of reasonable disagreement. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). We examine the trial court's decision in light of what was before the trial court at the time the decision was made. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court's decision will be upheld if it is reasonably supported by the record and correct under any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
ANALYSIS
Sexual assault cases are frequently "he said, she said" trials, in which the jury must reach a verdict based solely on two diametrically opposed versions of an event, unaided by physical, scientific, or corroborating evidence. See Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App. 2009). In these sorts of "swearing matches," the credibility of the complainant and the defendant is often the central and dispositive issue. Id.
Our rules allow for a witness to be cross-examined on relevant matters that bear on the witness's credibility. See Tex. R. Evid. 611(b). Although the scope of cross-examination is generally regarded as broad, the cross-examiner's rights are not unqualified. See Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010); Hammer, 296 S.W.3d at 561. For example, Rule 608(b) provides that a witness's credibility may not be attacked with specific instances of past conduct, except for certain criminal convictions. See Tex. R. Evid. 608(b). This means that a cross-examiner may not elicit testimony that a witness has lied in the past for the sole purpose of showing that the witness is generally dishonest and should not be believed in the current case. See Hammer, 296 S.W.3d at 564.
If, however, the cross-examiner offers evidence that a witness has lied for some purpose other than to attack the witness's general character for truthfulness, the evidence may well be admissible. Id. at 565. Evidence of a witness's prior falsehoods may be offered, for instance, to show the witness's bias or motive, or some other relevant non-character purpose. Id. at 566; see also Tex. R. Evid. 613(b); Billodeau v. State, 277 S.W.3d 34, 42-43 (Tex. Crim. App. 2009).
In his brief, appellant argues that the trial court should have admitted the evidence about the cousin because it showed "not just that the complainant lacked credibility in general (which was certainly relevant), but that, for some reason, she tended to fabricate instances of sexual mistreatment." This argument lacks merit. Even if we assumed that the complainant had been untruthful when she accused her cousin of making sexual advances, evidence of the complainant's lie would not be admissible simply to show that the complainant was a dishonest person. Rule 608(b) plainly prohibits a cross-examiner from inquiring into specific instances of a witness's misconduct as a means of attacking the witness's credibility. Therefore, if appellant offered his evidence for the sole purpose of showing that the complainant was a liar, the trial court did not abuse its discretion by excluding the evidence. See Hammer, 296 S.W.3d at 564; Tollett v. State, 422 S.W.3d 886, 892-93 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (evidence that an officer had withheld information about an accidental discharge of a weapon in a prior and unrelated case was not admissible in a prosecution for DWI to show that the officer lacked credibility).
Appellant suggests that there was an additional reason for admitting the evidence, although he writes in his brief that "[i]t is impossible to ascertain exactly why the complainant in this case might be making up instances of sexual mistreatment." Appellant opines that the complainant may have lied about her cousin "to get attention or to impress her sister." Even if there were record support for one or both of these purported motivations, there is no evidence that either motivation was present when the complainant accused appellant of abusing her when she was five or six years old. The complainant actually testified that appellant was her "favorite" uncle, and that after she initially confided in her mother about the abuse, she wanted to "keep the peace" and not say "anything that would upset anybody."
There was no showing that the allegation involving the cousin had anything in common with the allegation involving appellant. Despite there being a kinship between the two men, the cousin was not appellant's son, and there was no evidence that the complainant might be biased against appellant because of a bias against the cousin. The acts alleged in each incident were also dissimilar; one involved the penetration of the complainant's vagina, whereas the other involved an oral proposition. Without proof that the two alleged incidents were similar, we could hardly conclude that the evidence concerning the cousin had any relevance or probative value. Accordingly, the trial court's decision to exclude the evidence was not an abuse of discretion. See Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim. App. 2000) (evidence that the child complainant may have lied about his mother being physically abusive towards him was not admissible at a trial in which a third-person defendant was accused of forcing the child complainant to perform oral sex).
We overrule appellant's sole issue.
CONCLUSION
The trial court's judgment is affirmed.
/s/ Tracy Christopher
Justice Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).