Opinion
No. 05-07-00683-CR
Opinion Filed January 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-82577-05.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION ON REHEARING
We deny appellant's motion for rehearing. On our own motion, we withdraw our opinion dated August 26, 2008 and vacate our judgment of that date. This is now the opinion of the Court. The indictment charged Steven Kirk Mendenhall with aggravated sexual assault of a child and the lesser included offense of indecency with a child. A jury convicted appellant of aggravated sexual assault of a child and sentenced him to six years in prison. In his first two issues on appeal, appellant argues that the evidence is legally and factually insufficient to support the conviction. In his next four issues, he complains about the admission or exclusion of evidence. We affirm.
Legal and Factual Sufficiency
The indictment charged that appellant intentionally and knowingly caused the penetration of the female sexual organ of L.K., a child younger than fourteen years of age and not appellant's spouse, by means of appellant's finger. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2008). Appellant contends that the evidence is legally and factually insufficient to support the conviction because "the evidence establishes that the appellant was falsely accused of committing the alleged offense." We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). We view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id.; Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). On appeal, appellant essentially argues that the evidence is legally and factually insufficient because the complainant's testimony was the only evidence that appellant committed the offense and the evidence showed that she is not trustworthy. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). The jury is the exclusive judge of the facts proved and the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We may not substitute our judgment for that of the jury merely because we would have reached a different result. Lancon, 253 S.W.3d at 705. And we should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of demeanor and credibility. Id. The complainant, L.K., was thirteen years old when she testified at trial. She and appellant's daughter, M.M., became best friends in fifth grade. They spent almost every weekend together and had many sleepovers. L.K. testified that on Friday, January 21, 2005, she went to see a movie with M.M. and others and afterwards went to M.M's house to spend the night. She said appellant's wife was at home when they arrived and spent most of her time in the garage, presumably smoking. Appellant arrived home around 11:30 p.m. carrying a bag of vodka. He went upstairs soon after arriving home and came back downstairs "a lot of times" to get a drink. She heard appellant pouring a drink about five times. At some point, L.K., M.M., and M.M.'s sister fell asleep on the couch. L.K. awoke when appellant picked up M.M's sister and moved her to the recliner, but L.K. went right back to sleep. L.K. awoke again when she felt something go inside her vagina. She said appellant "went through my shorts the back way," and his hand went inside "[my] vagina hole." She rolled over and appellant's face was within six to eight inches of hers. His breath smelled like liquor. He quickly "kind of jogged" to the stairs, acting like he had just come down the stairs, and walked to the door to lock it. He came to L.K. and asked her if she wanted anything to eat or drink. She said "no" and appellant left and went to the downstairs bathroom. L.K. woke up M.M. to go to the bathroom with her. Although L.K. did not tell M.M. why she wanted to go to the bathroom, L.K. testified she wanted to see if she was bleeding because her vagina was hurting. L.K. noticed the bathroom door was "cracked," so she knocked on the door but no one answered. She walked in, and saw appellant sitting on the toilet with his pants down to his ankles. She did not know if appellant saw her. She shut the door and went to the garage to ask M.M.'s mother if she could use the telephone to call her mother. L.K. asked her mother to come get her, but M.M.'s mother offered to take her home. L.K. testified that it was about 4:30 a.m. when she got home. L.K.'s mother testified that L.K. was shaking and could barely talk to her when she got home. L.K. eventually was able to tell her mother about what happened. L.K.'s mother and stepfather talked to L.K. again, and then went to appellant's home to speak to him, leaving L.K. at home with a house guest. L.K.'s mother knocked on appellant's door several times, then pounded on the door. Eventually, M.M.'s younger sister opened the door. L.K.'s mother asked her to get her father, and, after a couple of minutes, M.M. came to the door. L.K.'s mother asked M.M. to get her mother or father. A few minutes later, M.M.'s mother came to the door, and L.K.'s mother asked to speak to appellant. When M.M.'s mother asked what happened, L.K.'s mother told her that appellant had molested L.K. M.M.'s mother went back inside to get appellant. He "cracked" open the door, stuck his head through the crack, and L.K.'s stepfather told him to step outside. Appellant asked, "What's the problem?" When L.K.'s mother told him, appellant said, "I don't know what you're talking about." Then L.K.'s mother said, "Yes, you do . . . My god, it's written all over your face . . . Step outside." In response to the accusation that he sexually assaulted L.K., appellant said, "I wouldn't do that." He also said, "I'm not coming outside. . . . You can't prove it" and shut the door. M.M.'s mother opened the door again and asked L.K.'s mother if she could speak to L.K. L.K.'s mother and stepfather gave M.M.'s mother a ride to their house, where they allowed M.M.'s mother to ask L.K. questions about the incident. L.K. told M.M.'s mother the same thing she told her mother and stepfather. M.M.'s mother cried and said she would lose everything and would have to go back to work. After L.K.'s mother took M.M.'s mother home, she called 9-1-1. The police arrived early that morning and talked to L.K.'s mother and stepfather, but did not question L.K. about what happened. L.K. was interviewed at the Collin County Children's Advocacy Center and examined by a sexual assault nurse examiner. The examination did not reveal any physical evidence of abuse. L.K. testified that she had nightmares and flashbacks afterwards and slept with her parents. Her demeanor changed, and her parents enrolled her in counseling. Stacy Loggins, a criminalist with the Allen Police Department, testified that she collected the clothing that L.K. wore the night of the incident and did not find any traces of blood. She testified that she had an appointment to meet appellant's attorney at appellant's home to take photographs, but when she and the attorney arrived, no one came to the door. Allen Police Detective Phyllis Jackson testified that she interviewed appellant regarding the incident and he denied having committed the offense but gave inconsistent accounts of the events of that night. Catherine Jenkins, a forensic interviewer at the children's advocacy center, testified that she interviewed L.K. four days after the incident. In her interviews, she looks for "red flags" that indicate a child is being coached, such as whether the child is consistent in relating the details of the incident, and whether the child is able to provide sensory details (how things felt, what was going on around them). She testified that L.K. was able to provide details of the incident, her story was consistent throughout, and she provided sensory details. Jenkins did not see any red flags that L.K. had been coached. Appellant's cross-examination of the State's witnesses sought to prove that L.K. was untrustworthy and had made up the allegation against him. He called several witnesses to testify on his behalf, and many of those witnesses testified that L.K. had a bad reputation for truthfulness. One of L.K.'s former friends testified that L.K. asked her to lie and say that appellant had done the same thing to her. Appellant also played the videotape of L.K.'s forensic interview for the jury. M.M.'s mother testified that appellant could not have sexually assaulted L.K. without her seeing it because she was downstairs working in the kitchen or laundry room all night and could see the girls sleeping on the sofa. She testified that L.K. wanted to go home because she was bored, and that L.K. sang and danced on the ride home that night, kissed her goodbye, and asked if she could come back over the next morning for breakfast. And she testified that when she went back over to talk to L.K., she saw L.K. through the window dancing on the sofa, but when L.K. realized they were there, she jumped down and curled into a fetal position on the sofa. Appellant points out the lack of physical evidence to corroborate L.K.'s testimony, the witnesses' inconsistent accounts of the events of that night, and M.M.'s mother's testimony that she was watching the girls all night and nothing happened. Appellant further notes that several witnesses testified that L.K. had a bad reputation for being truthful. On the other hand, L.K.'s testimony was consistent with her statements to her mother, M.M.'s mother, and the forensic interviewer about what happened that night. And the forensic interviewer did not find any reason to believe that L.K. had been coached. The jury had the opportunity to hear the witnesses and consider their credibility and appellant's theory of the case. Reconciling conflicting testimony is within the jury's exclusive province. Lancon, 253 S.W.3d at 706; Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Having reviewed the evidence under the appropriate standards, we conclude that it is both legally and factually sufficient to support the verdict. We resolve appellant's first two issues against him.Evidentiary Rulings
We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). We will uphold the ruling if it lies within the zone of reasonable disagreement. Id.A. Alleged prior false accusation
In his third and fourth issues, appellant argues that the trial court erred by excluding evidence that L.K. "falsely accused" another man of sexual assault. Outside the presence of the jury, appellant offered the testimony of M.M.:Q. [M.M.], at some point on the 20th or the 21st of January of 2005 is what I'm talking about. Okay?
A. Yes, ma'am.
Q. Did you and [L.K.] have a conversation about something that happened at her house Thursday night?
A. Yes, ma'am.
Q. What did she tell you happened?
A. She said — she told me and my mom that a man came into her room while she was sleeping and did something to her and it was — she said it was really bad. And we were like, "[L.K.], tell us." And she was just like, "It's just really bad." And she almost started crying and stuff.
Q. Did she ever elaborate and tell you what it was?
A. She said that they touched her coochie. That's what she would call it.
Q. Okay. Tell us what exactly — how the conversation happened.
A. We were driving from her house, and we were in the car, and she said that her stepfather's friends and her mom's friends were drunk and were doing drugs and stuff, and a man that she said was drunk and high walked into her room and touched her coochie. And she just acted like she was asleep and didn't feel like anything, and he walked out, and she kind of said that she just didn't — she just fell back asleep and acted like nothing happened.
Q. Is that all she said about it?
A. Yes, ma'am.
Q. Did you ever talk to her about that again?
A. No, ma'am.
Q. That's the only conversation you had with her about it?
A. I would kind of bring it up and say, so tell me what happened, and she would say, no, I don't want to talk about it, and she would get really serious.Later, outside the presence of the jury, L.K. testified:
Q. [L.K.], the night of January 21st, 2005 — do you know which night I'm talking about?
A. Yes.
Q. Would have been the Thursday night before this happened?
A. Yes.
Q. Were you and [M.M.] together that night?
A. Yes.
Q. Did you have a conversation with [M.M.] that night about one of your stepdad's friends coming in your room?
A. No.
Q. Never had any conversation with [M.M.] about that?
A. No.
Q. Did you have a conversation with anyone that night about somebody coming in your room?
A. No.Appellant proffered the evidence to show motive and "a previous pattern of her lying about false sexual allegations." Appellant did not cite to any rules of evidence, cases, or constitutional provisions for the admission of this evidence. He argued that it showed motive, which could have been based on rule 404(b), rule 412(b), or rule 613. See Tex. Rs. Evid. 404(b), 412(b), 613; Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005). The State objected to the testimony because it was "not relevant, 608, there's no foundation." Appellant responded by stating that before M.M.'s testimony would be allowed in, he would be required to call L.K. and ask her whether or not she made the statement. "And if she says that yes, it did happen, then I don't think it comes in and I'm not going to offer it. If she says it didn't happen, then I think it absolutely comes in and is relevant to show that she's made a false allegation before and that she's doing it this time." This is the predicate for admission of impeachment evidence. See Tex. R. Evid. 613. On appeal, appellant argues that the evidence was admissible under rule 404(b) to show "a pattern of false allegations made by the complainant about being sexually assaulted by men while she slept." He further contends that the evidence was not offered to prove L.K.'s character, but rather to prove her motive, plan, and pattern of false allegations. He argues that the "testimony was highly relevant evidence in resolving the issue of whether the Appellant was falsely accused of committing such offense." In his reply brief, appellant further contends that the evidence was admissible under rule 404(b) as modus operandi under the theory of the "doctrine of chances." The doctrine of chances is based on the common law rule of logical implausibility-that is, that the mere repetition of similar instances tends to reduce the possibility that this incident was done with innocent intent. See Fox v. State, 115 S.W.3d 550, 559-60 (Tex.App.-Houston [14st Dist.] 2002, pet. ref'd). Appellant contends that L.K.'s prior "false accusation" was admissible under the doctrine of chances to prove his defensive theory that she falsely accused him of committing this offense. He contends that both allegations are "remarkably similar" in that L.K. "claims that an intoxicated male, who was known to her family, entered the room where she was sleeping . . . and touched her vaginal area and then left." Because these specific arguments, other than the argument about motive and pattern, were not raised below, it was up to the trial court to discern appellant's basis for admitting the evidence. See Reyna, 168 S.W.3d at 179. The trial court noted the distinction between evidence offered as substantive evidence and evidence offered as impeachment. The court stated that he understood that appellant was offering the evidence "to help the jury determine credibility." Based on that understanding, the trial court concluded that rule 608(b) prohibited the evidence and sustained the State's objection. Appellant did not correct the trial court's understanding of his intent in offering the evidence. Additionally, appellant raised the doctrine of chances as a basis for admissibility for the first time in his reply brief, and we do not consider the merits of that issue. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex.App.-Dallas 2006, pet. denied) (new issue may not be raised for first time in reply brief). The rules of evidence prohibit the use of specific instances of the conduct of a witness for the purpose of attacking or supporting that witness's credibility. See Tex. R. Evid. 608(b); Lopez v. State, 18 S.W.3d 220, 225 (Tex.Crim.App. 2000). The Texas Court of Criminal Appeals has refused to establish an exception to that rule for sexual offense cases. Lopez, 18 S.W.3d at 225. However, the court recognized that such evidence may be admissible under the Confrontation Clause. See id. But appellant did not raise any constitutional issue below and that issue is not preserved for our review. See Tex. R. App. P. 33.1; Reyna, 168 S.W.3d at 179. Constitutional error is waived by failure to raise it at trial. Reyna, 168 S.W.3d at 179. Further, appellant has not shown that the trial court abused its discretion by excluding the evidence under rule 404(b). Evidence of other acts is not admissible as character evidence. See Tex. R. Evid. 404(b); Powell v. State, 63 S.W.3d 435, 439 (Tex.Crim.App. 2001); Chaddock v. State, 203 S.W.3d 916, 923 (Tex.App.-Dallas 2006, no pet.). But such evidence may be admissible if the evidence has relevance other than to show character conformity. Chaddock, 203 S.W.3d at 923. One example of relevance apart from character conformity is proof of motive. Tex. R. Evid. 404(b). Appellant argues that M.M.'s testimony was admissible to show motive, but appellant did not explain, either in the trial court or on appeal, how M.M.'s testimony that L.K. accused another man of sexually assaulting her shows her motive to falsely accuse appellant. See Johnston v. State, 145 S.W.3d 215, 220 (Tex.Crim.App. 2004) (for extraneous offense evidence to be admissible under rule 404(b) evidence must be relevant to fact of consequence apart from tendency to prove conduct in conformity with character). And challenging a witness's credibility does not automatically authorize admission of evidence of other acts. See Lopez, 18 S.W.3d at 225 ("the mere fact that an alleged [sexual assault] victim made prior false allegations does not automatically mean that she is fabricating the present charge" (internal quotations omitted)); Bargas v. State, 252 S.W.3d 876, 891 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Appellant did not make any argument or cite to any evidence that establishes a connection between her alleged false accusation of another man and a motive or reason for L.K. to falsely accuse appellant in this case. See Bargas, 252 S.W.3d at 891-92. It is at least subject to reasonable disagreement whether M.M.'s testimony was admissible for the noncharacter-conforming purpose of showing motive to falsely accuse appellant. See Bass v. State, Nos. PD-0494-07 PD-495-07, 2008 WL 4149701, at *6 (Tex.Crim.App. Sept. 10, 2008). As a result, the trial court did not abuse its discretion by excluding M.M.'s testimony on this basis. See id. Additionally, appellant's theory that the evidence was admissible "to show that [L.K. has] made a false allegation before and that she's doing it this time" and that "[i]t also shows a previous pattern of her lying about false sexual allegations" shows that the testimony was offered for a forbidden purpose-to show character conformity. See Tex. R. Evid. 404(b); Owens v. State, 827 S.W.2d 911, 916 (Tex.Crim.App. 1992). We resolve appellant's third and fourth issues against him.