Opinion
14-21-00657-CR
11-30-2023
JOSHUA WHITTED, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish - Tex.R.App.P. 47.2(b)
On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1701400
Panel consists of Jewell, Hassan, and Wilson Justices.
MEMORANDUM OPINION
Randy Wilson, Justice.
In three issues, appellant Joshua Whitted appeals his conviction for the offense of Continuous Sexual Abuse of a Child, Akasha, the daughter of his girlfriend. We affirm.
To protect all the minors' identities, we have not used their actual names. See Tex. R. App. P. 9.8.
I. Factual and Procedural Background
On December 9, 2020, appellant was charged by indictment with the offense of continuous sexual abuse of a young child. Appellant pleaded not guilty, and his case was tried before a jury.
Immediately prior to trial, the trial court heard the State's Motion in Limine which sought to prevent unrestricted argument and testimony before the jury about Akasha's "history of being sexually abused . . . by anyone other than [appellant]," as well as "any evidence relating to whether [Akasha] has accused any person other than [appellant] of sexual misconduct." Appellant's counsel objected to the State's requests under Rule 412, which prohibits "specific instances of a victim's past sexual behavior." Specifically, appellant's counsel argued that one of Rule 412(b)'s exceptions applied, e.g. that the testimony either was necessary to rebut or explain scientific or medical evidence offered by the prosecutor, related to the Akasha's motive or bias, or was constitutionally required to be admitted under the Confrontation Clause. The trial court granted the motion, and accordingly advised the parties to approach the bench if and when seeking to address the subject matter. After the trial commenced, appellant's counsel sought to introduce (and the court refused) evidence pertaining to facts and allegations about prior abuse of Akasha by her older brother which had occurred before she moved in with appellant. Further details regarding these events at trial are discussed in the analysis section below, as the only issues raised on appeal concern these rulings.
Mother testified that she and appellant began dating in 2013. After about six months, they moved in together. At the time they moved in together, Mother had two children living with her - her daughter Akasha, who is the complainant in this case, and a son, Osmond, a few years younger than Akasha. Appellant's mother, Kelli Whitted, and appellant's grandmother, Janice, also lived in the home. Akasha was eight years old when she began living with the Whitted family.
Appellant, Mother, and Mother's children first lived together in a trailer on Margie Court in Tomball, Texas, along with Kelli and Janice, who suffered from Alzheimer's disease and dementia. A year later, when Akasha was nine years old, the group moved into a different trailer in the same neighborhood.
Appellant initially had a good relationship with Akasha-Mother testified that Akasha "treated [appellant] as if he was her dad." In her view, the relationship subsequently "became strained." Akasha testified that appellant "always seemed mad," and, when he got angry at Akasha, appellant would belittle her and call her names, including, "the N-word." Mother confirmed that appellant would call Akasha "derogatory names when she did something wrong" and that these names were "race-related" and "gender-related". Akasha further testified that appellant beat her with a belt, slapped her, and, as a form of punishment, required her to kneel on tile surfaces for extended periods of time.
Akasha testified that appellant's sexual abuse of Akasha began in the second trailer they shared on Margie Court, when Akasha was approximately nine years old. While Mother was at work, and as Akasha was kneeling on the bathroom floor, appellant entered, closed the door, and told Akasha to "turn around" while still on her knees. He then pulled down his shorts, began masturbating, and forced Akasha to "put his private part in [her] mouth." The abuse ended when appellant's mother, Kelli-who was then in the living room-called for Akasha. Asked how often appellant "put his private part in your mouth," Akasha recalled that it happened "[m]aybe like two more times."
In this same period, appellant also had penetrative sex with Akasha. As punishment, Akasha was again being made to kneel on the floor. Once again, Mother was at work and Kelli was in the living room. Appellant told Akasha to go into his bedroom, "take off [her] clothes and get under the covers." Appellant then removed his clothing, climbed into bed, and ordered Akasha to "get on top of him." Not wanting to "get hit," Akasha complied. Appellant then put his penis in Akasha's vagina. After 15 minutes, appellant told Akasha to get off of him; she dressed, exited the bedroom, and resumed kneeling. Akasha recalled this "same thing" happening "a few times" when she lived at the second trailer on Margie Court.
When Akasha was around 10 years old, she and the other residents of the trailer moved into a house on Sugarvine Lane, also in Tomball. There, appellant forced Akasha to perform oral sex "three or four" times and vaginally raped her "too many [times] to count." Akasha testified that the abuse occurred both in her room-which she shared with grandmother Janice and little brother Osmond- as well as in appellant's and Mother's bedroom when Mother was at work. Asked to explain how appellant was able to sexually assault her when other people were present in her bedroom, Akasha explained that Janice would be sleeping and "never really faced our way."
In early 2017, after she and her family had moved to Sugarvine Lane, Akasha disclosed to Mother what appellant was doing to her. Mother had prompted the conversation after she received a letter from the mother of one of Akasha's friends in which the friend's mother wrote that Akasha had told the friend "that her stepfather was abusing her." Testifying as the outcry witness pursuant to Article 38.072, Code of Criminal Procedure, Mother recounted what Akasha told her regarding the abuse that occurred at both Margie Court and Sugarvine Lane. Mother recounted Akasha's reluctance to share the details of the abuse with her mother, who described her daughter's demeanor during their conversation as follows: "[S]he didn't want to tell me. She didn't want to hurt me. And you could see it on her face. So it was more withdrawn, like, shy, withdrawn. Like she didn't want to say it."
This testimony largely coincided with Akasha's and included additional, lurid details-for example, that appellant would ejaculate in Akasha's mouth after having penetrative sex with her. These details stood out to Mother "[b]ecause everything [Akasha] was describing . . . [wa]s the type of stuff that [she and appellant] would do in the bedroom at that time."
The same day as Akasha's outcry to Mother, Mother confronted appellant. He denied any wrongdoing. Mother and her children continued to cohabitate with appellant, his mother, and grandmother. The following year, in 2018, Akasha told Mother that appellant had "done it again," and, when Mother confronted him, he pushed her against a door, impeded her breath, and said that if Mother ever accused him of abusing Akasha again he would kill her.
Akasha also recalled that the first adult she told about the abuse was her mother but that "[s]he didn't do anything," which made Akasha feel "[e]ven more unsafe than I already felt"
On April 26, 2018, Akasha was interviewed at the Children's Assessment Center ("CAC") in Houston, Texas, an advocacy center that specializes in "bringing] together all of the services that are necessary when there's an allegation of child sexual abuse." After testifying generally to the phenomenon of delayed outcry in child sexual abuse cases, Dr. Reena Isaac, the CAC's medical director, told the jury about her examination of Akasha in 2018. Although Dr. Isaac did not conduct a physical examination of Akasha-Akasha had "had a panic attack" while at the CAC, and Dr. Isaac "made the determination not to pursue [a physical examination], given her mental and emotional state at the time,"-she did speak with Akasha. Akasha told Dr. Isaac that she had been sexually abused by her "stepfather," and the reported contact was "genital-genital."
In addition to Dr. Isaac, Akasha also spoke with a forensic interviewer during her visit to the CAC. The interviewer, Ayrial Diop, left the CAC prior to appellant's trial and did not testify; instead, the CAC's director of forensic services, Lisa Bourgoyne, reviewed Diop's recorded interview of Akasha and told the jury that Diop had properly conducted the interview according to the CAC's standard protocol (e.g., asking open-ended questions). Bourgoyne further testified that Akasha's demeanor during the interview was consistent with the stages of disclosure in child-sexual-abuse cases.
Appellant's trial counsel defended the case on the theory that Akasha had fabricated the story of appellant's abuse of Akasha. In closing argument, trial counsel surmising that Akasha lied so as to be moved to an adoptive home. Moreover, based on the testimony of Kelli-the only witness who testified on appellant's behalf-appellant maintained that Akasha's allegations were improbable because the household rules on both Margie Court and Sugarvine Lane were that (1) "doors had to be left open by the children at all times, no matter where [the adults] were," and (2) if the children had to change clothes, they would do so alone in the bathroom. In closing argument, trial counsel argued that, in light of those household rules, "[t]here is no way somebody is going to do that [molest Akasha]".
The jury found appellant guilty as charged. After a short punishment phase, the trial court sentenced appellant to 43 years and two months in prison.
II. Issues and Analysis
A. The trial court's exclusion of evidence at trial.
At trial, appellant sought to ask complainant's mother, complainant, and appellant's mother about prior allegations of sexual abuse made against her older brother, Elijah.
We have used an alias to refer to Akasha's older brother.
Request and Order Precluding Mother's Testimony
With the jury excused, counsel explained to the court his interest in questioning Mother about this allegation. He stated that the allegation was "[important" to "confront the witness" and "show a difference in what is potentially possible explanation for why the child was acting the way she was." The court permitted counsel to make a record by questioning Mother outside the jury's presence.
During the offer of proof Mother testified that, in 2014-when Akasha would have been about nine years old and Elijah fourteen years old-Akasha's younger brother, Osmond, "accused [Elijah] of sexual misconduct" against both Osmond and Akasha.
According to Mother, Akasha "denied it in the beginning" but later told appellant's mother, Kelli, that Elijah had abused her; however, when Mother asked Akasha about what Elijah had done, Akasha reportedly "couldn't really hardly make it through that."
Q. When [Akasha] made outcry to Mr. Whitted's mother about [Elijah] having abused her, were you made aware of that at the time?
A. I was. They called me at work, and I left work immediately to come home.
Q. Did you talk to [Akasha] about that?
A. I did.
Q. Did she tell you about the abuse as well?
A. She told me about a single instance. And that's -- she couldn't really hardly make it through that. So she didn't elaborate farther.
Q. Okay. But she did confirm what she had told Kelli Whitted?
A. Yes.
The State declined to ask Mother any questions but argued to the trial court that any testimony by Mother concerning Akasha's allegations against Elijah would be inadmissible for a number of reasons-specifically, the evidence was irrelevant, more prejudicial than probative, barred by Rule 412, and hearsay.
Appellant's trial counsel did not respond to these arguments or otherwise elaborate on his earlier argument for admitting this testimony. After appellant's offer of proof and these arguments, the trial court agreed that the evidence was hearsay and ruled in the State's favor.
Request and Ruling precluding Questions to Akasha
During cross-examination of Akasha, appellant's counsel asked the court for leave "to question the child about other instances where she was abused by her own brother and conversations that she had had with her mother with [sic] that." The State objected and argued that the testimony would be irrelevant, more prejudicial than probative, and inadmissible under Rule 412. The court denied trial counsel's request, at which point the following exchange occurred:
MR. ZAKES [APPELLANT'S COUNSEL]: Would I be able to ask her why she did not say anything about it? And would I also be able to ask her about if she lied to cover for her brother? There were accusations about it.
THE COURT: I didn't understand the last words after "brother."
MR. ZAKES: That she lied to cover up for her --
THE COURT: Keep your voice down.
MR. ZAKES: To cover up for her brother when there were allegations about it previously, back in 2014.
MR. WHITE [STATE'S COUNSEL]: It's the same request.
THE COURT: I'm not sure I understand what you're . . . She lied about what?
MR. ZAKES: It's my understanding that when her brother molested her in 2014 and before, that she would not tell the authorities about it. She lied to cover up for him. The original report was that the older brother had molested the younger brother. And then it was afterwards that she had --
THE COURT: What's the relevancy of all that to this case?
MR. ZAKES: Because if she is lying to cover up for somebody, it could be that she's still lying to cover up for somebody else who abused her, that she's putting the onus on the Defendant here.
MR. WHITE: And, Your Honor, that's also barred by the Rules of Evidence. You cannot use specific instances of conduct to attack one's character.
MR. LIBBY[APPELLANT'S COUNSEL]: Judge, I would also -- it would also explain the symptoms of this young girl's experiencing. She had -- it would also explain --
MR. ZAKES: Pull your mask off so everybody can hear you.
MR. LIBBY: It would also explain the symptoms that this girl's being treated for and that perhaps she was -- the abuse that happened, there's no doubt she was abused by her brother. So maybe that's what's causing the problems that she's having now. Maybe she's confused and doesn't want to put the finger on the brother. She was abused but not by him.
MR. WHITE: Judge, there's no evidence in the record about any effects that she's suffered. I purposely didn't ask those questions.
THE COURT: The state of the record, the request is denied. The objection's overruled.
Apart from this brief bench conference, while Akasha was on the witness stand, appellant's trial counsel did not request an opportunity to make an offer of proof or otherwise cross examine Akasha on the subject outside the presence of the jury. Appellant does not contend on appeal that the trial court refused to allow such an offer.
Precluding testimony from Kelli Whitted
Appellant called his mother to the stand. On cross-examination, Kelli said that they established household rules "to protect my son [appellant]" because Akasha's first outcry against appellant "wasn't believed." She added: "[I]t was to protect my son, which protected her Akasha also."
After the State passed the witness, appellant's counsel sought permission from the court to question Kelli about Akasha's outcry against her older brother Elijah. Counsel argued the subject was relevant because it would allow Kelli the opportunity to tell the jury "why Akasha's allegation against appellant wasn't believed" and "the steps that Kelli took to protect Akasha after [Akasha] made [an] outcry to her about her brother having molested her." Appellant also argued that the court's hearsay ruling (precluding Mother's testimony) would not apply to Kelli because she was "the outcry witness, first person over 18 that [Akasha] told that her brother had molested her." The court did not rule on appellant's request and instead adjourned for the day.
When trial resumed the following day, the court permitted appellant's trial counsel to make its offer of proof concerning what Akasha had told Kelli about Elijah's misconduct. According to Kelli, Akasha alleged that Elijah "penetrated her vaginally and anally" but later refused to repeat these allegations when interviewed by Child Protective Services ("CPS") and the police. Kelli did not provide a time frame for when this outcry was made, but she maintained that, in response to it, she and the other adults living with Akasha established a household rule that "all doors were to be open at all times."
Q. What are the reasons that you did not believe the outcry by [Akasha] regarding your son, [Elijah]?
A. Am I allowed to give that testimony now?
Q. You can say whatever is -- is the truthful response.
A. I'm not restricted?
Q. There's no restriction right here. The jury's not present.
A. I didn't believe when I was told because [Akasha] had already told me about her brother [Elijah] penetrating her. Those aren't the words that she used, but -- I can use the words that she used. But he penetrated her vaginally and anally. And she had already been down.
And, also, it happened to her brother. But she specifically told me -she denied it when we took them down to CPS and made the police report when her brother made his outcry, she would not tell them anything. She denied anything about her brother [Elijah] . . .
And then when they moved in with us on Margie Court, right after they moved in, I had went with the kids somewhere and taken them somewhere and we were walking back up on the porch and [Osmond] had already walked in and [Akasha] said -- while we were standing on the porch, she said, My brother did that to me also. So we stood on the porch and talked about it. And she told me -- she didn't use the words that I used. She pointed. And I said "on" or "in." And she said "in."
And it had been going on -- she told me that it had been going on for years and that what they would do when they were at their green trailer is that they -- her mother, I guess, had pornography magazines and so forth, not playboy but the real -- I don't know the word for it --
THE COURT: Do you have any other questions?
A. -- kinky kinds, is the only other word that I can think of; and that all three of the children would imitate and do what was in those imaginations.
Q. (By Mr. Zakes) After that conversation, did you and [Mother] take steps to see that there was no way that somebody could do something with one of the kids in the house without being observed?
A. Yes. At that point -- because Joshua has a son also who's 12, and we didn't want him to be impacted by any of this either. And so we took the steps of, the children were never allowed with the door shut. All doors were to be open at all times. The only time the door -- a door was ever shut is when they walked into the bathroom. Only one person could be in there at a time.
***
THE COURT: Is there anything further on the issue of why she did not believe [Akasha]?
A. Well -
MR. ZAKES: That's -- that's all I have now, Judge.
THE COURT: All right. And for what purpose is this testimony being offered?
MR. ZAKES: It is part of confronting the -- the witness. Again, since [Akasha] said that this happened, this witness is showing how it is less likely because of what [Akasha] had said and done in the past and also because of the measures that the family had put in place to make sure that something like that wouldn't happen.
COURT'S RULING
THE COURT: All right. The request to go into this subject matter is denied. Are you going to have anything else in front of the jury of this witness?
B. Appellant's Complaints on Appeal
On appeal, appellant challenges the above rulings related to the exclusion of evidence of the Akasha's prior allegations of sexual abuse by her older brother. Though he lodges attacks to each of the three rulings precluding appellant's counsel from questioning each of the three witnesses on the topic, appellant's three issues do not run tandem with these three chronological events at trial. His first issue relates to all three rulings and witnesses, but only in as much as the trial court's rulings were based on the trial court's exclusion under Rule 412, sometimes known as the Rape Shield Rule. Appellant argues that Rule 412 is either inapplicable for one of two reasons (which were not argued to the trial court) or that one of two exceptions of Rule 412(b) apply to prevent its exclusionary effect. His second and third issues generally relate to the trial court's refusal to permit appellant's cross-examination on this topic as to the complainant. However, in his second issue, when appellant complains that the trial court committed reversible error under the Texas Rules of Evidence when it allegedly deprived appellant's trial counsel opportunity to cross-examine the complainant about prior sexual abuse, he also makes reference to the collateral witnesses, Mother and Kelli's testimony. Because the first and second issues generally relate to the same rulings and witnesses and are based on Texas law, we address his first and second issues together.
His third issue calls for reversal by launching a battery constitutional rights that he contends, for the first time on appeal, were violated when the court prevented his counsel from discussing the topic with complainant. We address the third issue separately.
C. Standard of Review
We review a trial judge's decision on the admissibility of evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). Absent an abuse of discretion, we will not disturb a trial court's decision to admit or exclude evidence. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. Id. This last principle predominates our resolution today.
D. Analysis
1. Whether the trial court reversibly erred in some manner when it excluded testimony of any witness about Akasha's prior outcry and alleged abuse by Elijah.
Under his first and second issue, appellant complains that the trial court reversibly erred when it excluded Mother's testimony on the basis that the evidence was admissible under Texas law. Although the State originally asserted the testimony should be excluded under Rule 412 in its motion in limine, after trial commenced the State also asserted other grounds for excluding evidence of Akasha's prior outcry and alleged abuse by Elijah. When the topic was raised outside the presence of the jury for the first time with Mother on the stand, the trial court referenced hearsay as one basis for its exclusion.
Apart from Rule 412's application to the proposed testimony, nothing precluded the court from refusing Mother's testimony of Akasha's statements to her and Kelli as out-of-court statements for which no exception had been asserted. Tex. R. Evid. 801, 802. Although appellant argues on appeal that Akasha's statements to Mother would be admissible as excited utterances under Rule 803(2), he did not make this argument to the trial court. Tex. R. App. P 33.1(a)(1)(A). The basis for our preservation requirements is revealed when we try to resolve unpreserved complaints while presuming they are preserved. For example, to determine whether the excited utterance hearsay exception applies, we consider whether "(1) the 'exciting event' [is] startling enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to the startling event [is] quick enough to avoid the possibility of fabrication; and (3) the resulting statement [is] sufficiently 'related to' the startling event, to ensure the reliability and trustworthiness of the statement." Price v. State, 502 S.W.3d 278, 283-84 (Tex. App.-Houston [14th Dist] 2016, no pet.) citing McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008). Even presuming appellant preserved an excited-utterance argument, because the record is devoid of any specific facts about the timing of an outcry to Mother we cannot find the trial court acted unreasonably for not finding the excited utterance exception applied. Nothing in the record compels us to conclude that the trial court was required to find the excited utterance exception applicable or otherwise conclude that its exclusion based on the hearsay exclusion was erroneous. See McCarty v. State, 257 S.W.3d at 241 (reviewing the predicate for an excited-utterance exception, including, inter alia, that "the 'exciting event' should be startling enough to evoke a truly spontaneous reaction from the declarant" and that "the reaction to the startling event should be quick enough to avoid the possibility of fabrication").
Also, under his first and second issues, appellant complains the trial court reversibly erred when it excluded cross examination of Akasha on the topic of her prior outcry and alleged abuse by Elijah. Appellant's counsel stated that "if she is lying to cover up for somebody, it could be that she's still lying to cover up for somebody else who abused her, that she's putting the onus on the Defendant here." In response, among other things, the State argued against using specific instances of conduct to attack Akasha's character. See Tex. R. Evid. 608(b). Even if we presume as appellant's trial contended that Akasha had lied in some respect to the prior allegation against her brother, we cannot conclude the trial court abused its discretion in determining such conduct may not be used to impeach her in appellant's case. See Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000) (holding that there was no exception, even in cases involving prior allegations of sexual assault, that Rule 608(b) mandates that "[specific acts not resulting in conviction may not be used to demonstrate the witness's untrustworthy nature.").
Appellant's trial counsel argument's to broach the subject on Akasha's cross-examination also included the ground that it was necessary "explain the symptoms that this girl's being treated for," which in context, was asserted to satisfy Rule 412(b)(2)(A)'s exception to the exclusion for evidence "necessary to rebut or explain scientific or medical evidence offered by the prosecutor." Because we decide this case without regard to Rule 412's application and the stated basis is not otherwise argued to support reversal we need not address this argument.
Also under his first and second issue, appellant complains on appeal the trial court reversibly erred when it excluded Kelli Whitted's testimony. At trial, appellant's counsel argued "[Kelli testifying that Akasha initially accused Elijah of misconduct but later denied it when questioned by CPS and the police] is showing how it is less likely [appellant molested Akasha] because of what [Akasha] had said and done in the past."
The trial court permitted appellant to make its offer of proof concerning what Akasha had told Kelli about Elijah's misconduct. According to Kelli, Akasha alleged that Elijah "penetrated her vaginally and anally" but later refused to repeat these allegations when interviewed by CPS and the police. Appellant's counsel contended the outcry was admissible as an exception to hearsay. Tex. Code Crim. Proc. Art. 37.072. As with Mother's testimony, Kelli did not provide a time frame for when this outcry was made, but she maintained that, in response to it, she and the other adults living with Akasha established a household rule that "all doors were to be open at all times." Asked by the trial court to state a purpose for Kelli's testimony, appellant's counsel replied:
It is part of confronting the -- the witness. Again, since [Akasha] said that this happened, this witness is showing how it is less likely because of what [Akasha] had said and done in the past and also because of the measures that the family had put in place to make sure that something like that wouldn't happen.
The trial court denied the request regarding Akasha statements about Elijah but allowed counsel to question Kelli in front of the jury regarding the household rules for keeping doors open.
The trial court could have reasonably concluded that, like Mother's testimony, Kelli's assertions about what Akasha told her as it related to Elijah's abusiveness was inadmissible hearsay, Tex. R. Evid. 802. Kelli, reporting an extraneous outcry to serve appellant's defense, was not an "Outcry Witness" for which hearsay rules could be avoided under Article 38.072. Moreover, facts necessary to establish the excited utterance exception did not apply.
Additionally, trial counsel's express purpose for raising the subject of the prior outcry-"[Kelli testifying that Akasha initially accused Elijah of misconduct but later denied it when questioned by CPS and the police] is showing how it is less likely [appellant molested Akasha] because of what Akasha had said and done in the past,"-is barred under Rule 608, which restricts a party from "inquiring into or offering extrinsic evidence to prove specific instances of the witness's conduct in order to attack . . . the witness's character for truthfulness." Tex. R. Evid. 608(b).
In light of these considerations, and under the presumption that appellant did not preserve his Rule 412 argument or that Rule 412 otherwise did not apply to the case, the trial court did not err in refusing any of appellant's requests.
Finally, though we are reluctant to conclude appellant has properly preserved his Rule 412 argument, in an abundance of caution and in the interest of justice, we address the merits of appellant's argument that Rule 412's exceptions applied so that the trial court erred in refusing his offer.
Rule of Evidence 412 is a "rape shield" law intended to shield a sexual-assault victim from the introduction of highly embarrassing, prejudicial, and irrelevant evidence of prior sexual behavior. See Allen v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985); Kissoon v. State, No. 02-12-00289-CR, 2013 WL 4679195, at *2 (Tex. App.-Fort Worth Aug. 29, 2013, pet. ref d) (mem. op., not designated for publication). The rule prohibits the admission of evidence of a sexual-assault victim's previous sexual conduct unless it falls within five exceptions: (1) it is necessary to rebut or explain scientific or medical evidence offered by the State; (2) it concerns past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (3) it relates to the motive or bias of the alleged victim; (4) it is admissible under rule 609; or (5) it is constitutionally required to be admitted. Tex. R. Evid. 412(b)(2). Further, the probative value of the evidence must outweigh the danger of unfair prejudice. Tex. R. Evid. 412(b)(3).
Appellant's counsel offered various conclusions to the court about the facts pertaining to what occurred between Akasha and Elijah, but the court's determination under Rule 412 is based on an in camera review of evidence. Thus, our review of the trial court's rulings is not based on appellant's trial counsel's speculative assertions but rather we consider the propriety of the trial court's ruling at the time of appellant's last request, when it had the most proof available for its consideration that had been offered outside the presence of the jury. This evidence included the following:
Mother's testimony that, in 2014-when Akasha would have been about nine years old and Elijah 14 years old-Akasha's younger brother, Osmond, "accused [Elijah] of sexual misconduct."
Mother's testimony that in response to the allegation that Akasha "denied it in the beginning" but later told appellant's mother, Kelli Whitted, that Elijah had abused her.
Mother's testimony "[Akasha] told me about a single instance. And that's -- she couldn't really hardly make it through that. So she didn't elaborate farther."
When seeking to cross examine Akasha, appellant's counsel stated outside the presence of the jury that he expected that through cross examination of Akasha he would prove that "when her brother molested her in 2014 and before, that she would not tell the authorities about it. She lied to cover up for him. The original report was that the older brother had molested the younger brother."
Kelli's testimony that Akasha alleged that Elijah "penetrated her vaginally and anally" but later refused to repeat these allegations when interviewed by CPS and the police.
Kelli's testimony that subsequently "when they moved in with us on Margie Court, right after they moved in, I had went with the kids somewhere and taken them somewhere and we were walking back up on the porch and [Osmond] had already walked in and [Akasha] said -
- while we were standing on the porch, she said, My brother did that to me also. So we stood on the porch and talked about it. And she told me -- she didn't use the words that I used. She pointed. And I said 'on' or 'in.' And she said 'in.'"
Kelli's testimony that during the conversation on the porch, Akasha reported the sexual conduct with her siblings had gone on for years "when they were at their green trailer", that Akasha's mother kept pornography magazines there, and that Akasha told her she and her brothers would imitate and do what was in them.
We have observed that Texas law requires great latitude when the evidence deals with a witness's specific bias, motive, or interest to testify in a particular fashion. Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009). Generally speaking, the Texas Rules of Evidence permit the defendant to cross-examine a witness for purported bias, interest, and motive without undue limitation or arbitrary prohibition. Ferree v. State, 416 S.W.3d 2, 10 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) citing Hammer v. State, 296 S.W.3d at 563.
Ten years ago, in Ferree, we were faced with a similar complaint, based on some of the same cases, Hammer and Billodeau, that appellant has cited for their legal pronouncements. We first consider our discussion in Ferree:
Appellant relies upon Hammer v. State, a case in which the trial court did not allow the defendant to present testimony and documentary evidence indicating the following:
• The complainant was angry with the defendant (her father) because he brought her to a hospital for a sexual-assault examination after she spent the night away from home.
•The complainant told one witness that a certain male sexually assaulted her during her night out. But, she told another witness she actually had sex with her boyfriend (of whom her father did not approve) that night and had lied about having sex with the other male to prevent the defendant from learning she was with her boyfriend.
• The complainant was so distraught by the defendant taking
her to be examined for sexual assault that she threatened suicide and was admitted to a state hospital. She was released from the state hospital shortly before the defendant allegedly assaulted her.
Hammer, 296 S.W.3d at 567. The Court of Criminal Appeals concluded the trial court erred by excluding this evidence because it was "strong support for [the defendant's] theory that [the complainant] had a motive to falsely accuse him of sexual molestation." Id. The high court also noted that this evidence demonstrated that the complainant was not above changing her story of a consensual sexual encounter with her boyfriend into a nonconsensual one with someone else to prevent her father from learning the truth, and presumably punishing her for running away and having sex with her boyfriend. Id. In Hammer, the excluded evidence strongly supported a possible motive for the complainant to fabricate her allegations and included evidence that the complainant had admitted to lying about being sexually assaulted by another male to prevent the defendant from learning she was with her boyfriend. See id. . . .
Appellant also relies upon Billodeau v. State. See 277 S.W.3d 34 (Tex. Crim. App. 2009). In that case, the Court of Criminal Appeals 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. See id. at 38. The high court 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. See id. at 42.Ferree v. State, 416 S.W.3d at 10-11. We distinguished the facts in the record of the Ferree case from those that the high court considered in Hammer and Billodeau, in part on the observation that the "evidence proffered in [Ferree] did not include any evidence that the complainant had falsely accused anyone of sexual molestation or that she had threatened to do so." Ferree v. State, 416 S.W.3d at 11. Our decision in Ferree ultimately rested in our application of Rule 412's balancing test. Tex. R. Evid. 412(b)(3). We concluded that the evidence provided in the offer of proof was "not highly probative of the complainant's motive or bias or of a specific bias, motive, or interest to testify in a particular fashion. . ." and that there was a "substantial danger of unfair prejudice from evidence of the complainant's sexual relationships with three other individuals, her pregnancy, and her abortion." Id. at 11. Two months ago, just ten years shy of the Ferree decision, we concluded in a case involving the same offense with which appellant is charged, that the trial court's exclusion of proffered anticipated testimony proving false the complainant's denial to the CAC that she was otherwise sexually active was not erroneous through our application of Rule 412(b)(3)'s balancing test. Lewis v. State, No. 14-21-00691-CR, 2023 WL 4873306, at *11-12 (Tex. App.-Houston [14th Dist] Aug. 1, 2023, pet. filed)(finding evidence that complainant provided a false statement to the CAC to prove complainant untrustworthy was "not compelling evidence to make a fact of consequence more or less probable, nor did appellant necessarily need the proffered testimony to attack [the complaint] as untruthful," and that the proffered "evidence had the potential to impress the jury in an irrational and indelible way, especially considering [the complainant's] young age when she and the witness had sex).
In the instant case, the probative value of the proffered evidence is significantly diminished by the uncertainty about what actually occurred between Akasha, Elijah, and Osmond when they lived in the green trailer. Mother's version, Kelli's version, and the version of events that appellant's trial counsel's expected to show through cross examination of Akasha were inconsistent; so much so, that by the time the trial court considered appellant's last request to offer the evidence-with the most complete offer of proof, the uncertainty was cemented. Apart from the lack of clarity, no particular version presented compelling evidence to make a fact of consequence, particularly Akasha's truthfulness generally or with respect to her outcry against appellant, more or less probable. Moreover, there existed a possibility that Akasha would be "stigmatized" through the disclosure, particularly since the activity was incestuous. Gotcher v. State, 435 S.W.3d 367, 373 (Tex. App.- Texarkana 2014, no pet.) (citing Stephens v. State, 978 S.W.2d 728, 733 (Tex. App.- Austin 1998, pet. ref d)); see also Montgomery v. State, 415 S.W.3d 580, 584 (Tex. App.-Amarillo 2013, pet. ref d) (observing that "Rule 412 strives to balance a defendant's right to defend himself against the need to protect victims from undue public humiliation and ridicule").
Weighing the relevant factors we conclude that the probative value of the evidence, if any, of Akasha's sexual history or conduct with Elijah was substantially outweighed by the prejudicial effect of the evidence. See Tex. R. Evid. 403, 412(b)(3); see also Ferree v. State, 416 S.W.3d at 11.
For all of the reasons stated above, we overrule appellant's first and second issues.
2. Whether the trial court's exclusion of cross-examination of Akasha about her prior abuse or outcry violated appellant's constitutional rights.
Appellant's third issue, including all sub-issues, fails based on the state of the record and appellant's brief. The exclusion of a criminal defendant's evidence is constitutional error only if the evidence "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Potier v. State, 68 S.W.3d 657, 663-65 (Tex. Crim. App. 2002). Appellant failed to assert the Confrontation Clause as a basis for admitting the evidence through Akasha's cross-examination. Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App. 2018) (examining Reyna, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005); see also Linney v. State, 401 S.W.3d 764, 771 (Tex. App.-Houston [14th Dist] 2013, pet. ref d). An offer of proof-which is necessary to satisfy the error-preservation requirements of Rule of Evidence 103-does not substitute for this clear explanation, which is rooted in the error-preservation requirements of Rule 33.1 of the Texas Rules of Appellate Procedure. Golliday v. State, 560 S.W.3d at 669 (quoting Reyna 's discussion of the distinct purposes served by these two "judge protecting rules of error preservation"). Similarly, appellant never asserted the Constitutional Due Process argument as he does on appeal. Tex.R.App.P. 33.1. And though, unlike the previous two constitutional complaints, we entertain Constitutional Ineffective Assistance complaints made for the first time on appeal, our briefing standards still apply. See Tex.R.App.P. 38.1. To the extent appellant's Ineffective Assistance argument is asserted as a stand-alone basis for reversal we find that in one citation-free paragraph he has not properly assigned such error because appellant has neither cited any authority nor provided a discernable argument consistent with our jurisprudence on the subject. Id.
For reasons already discussed, to the extent his arguments under his third issue are raised in support of an exception to Rule 412, we need not address them because the trial court could have reasonably excluded the evidence on other theories applicable to the case. Tex. R. Evid. 412(b)(2)(E).
We therefore overrule appellant's third issue.
III. Conclusion
Having considered and overruled each of appellant's complaints on appeal we affirm the trial court's judgment in its entirety.