Opinion
No. 08-02-00091-CR.
May 13, 2004. DO NOT PUBLISH.
Appeal from 161st District Court of Ector County, Texas, (Tc# B-28,665).
Before Panel No. 4, BARAJAS, C.J., LARSEN, and McCLURE, JJ.
OPINION
Harry Leroy Hamrick, Jr. appeals his convictions of aggravated sexual assault (three counts). A jury found Appellant guilty of each count and the court assessed punishment at imprisonment for a term of forty years on each count. We affirm.
FACTUAL SUMMARY
In 1999, nine-year-old C.B. lived with her mother, father, uncle, brother, and sister. Appellant also lived in the house with them. At around 1 a.m. on October 15, Appellant awakened C.B. by shaking her and made her go outside with him. Appellant, who was drunk, escorted C.B. out of the home and down the street to a vacant house. Appellant wrapped his tee shirt around his hand and broke a window to get into the house. Once inside the house, Appellant made C.B. go into a bedroom where he told her that he was going to "pop her cherry." Appellant then sexually assaulted C.B. with his finger and penis. He also placed his penis in her mouth. C.B.'s back was scratched by nails on the floor of the bedroom. Appellant told C.B. that if she told anyone what he had done, he would tell everyone that it was a lie. After assaulting C.B. for two hours, Appellant and C.B. returned to her home. C.B. did not tell anyone what had happened for several weeks and only reported it after Appellant had moved out of her home. Prior to trial, the State filed a written motion in limine regarding any evidence showing sexual conduct of the victim with any person other than the defendant and any previous allegations made by the victim of any sexual contact with any person other than the defendant. The trial court granted the motion and required defense counsel to approach the bench before eliciting such evidence. During the defense case-in-chief, the trial court conducted a hearing outside the presence of the jury to determine whether the testimony of C.B.'s uncle, Eb Smith, should be admitted. Smith lived in C.B.'s home at the same time as Appellant. Sometime after January 24, 2000, he asked C.B. why she had accused Appellant of molesting her. C.B. did not answer the question at first but after Smith asked it several times, she said that she had done it in order to get attention. She then said that if Smith did not start acting nicer, he would be next. Smith understood C.B.'s statement to be a threat that she would make up something against him. He added the following statement:She had already done it against her grandfather, her father — her step-father, her little brother and me. Well, not and me, but that is what she was insinuating, or that is the way I took it.At the conclusion of the testimony, the trial court asked Appellant's counsel what portion of the testimony he believed was admissible. At first, counsel only identified Smith's testimony that C.B. admitted making up the accusation against Appellant in order to get attention. He specifically told the trial court that the outcry testimony against the grandfather, stepfather, and brother was not admissible. Counsel then added that C.B.'s threat to accuse Smith was also admissible. The trial court allowed Smith to testify that C.B. told him she had made up the accusation to get attention, but prohibited testimony that C.B. had accused anyone else or had threatened to falsely accuse Smith.
FALSE ALLEGATION BY COMPLAINANT
In his sole point of error, Appellant contends that the trial court erred in excluding portions of Eb Smith's testimony because it limited Appellant's ability to challenge the complainant's credibility by showing bias and motive to falsely accuse Appellant. The State responds that Rule 412 (the "Rape Shield Law") precludes admission of the evidence. To the extent Appellant argues that Smith should have been allowed to testify that C.B. had accused others of sexual contact, his contention is waived. Appellant's counsel did not suggest that this testimony should be admitted and in fact specifically agreed with the trial court that it was inadmissible. Having failed to offer the evidence for admission, Appellant cannot now complain on appeal that the court erred by excluding it. See Tex.R.Evid. 103(a)(2); Tex.R.App.P. 33.1. We next consider the trial court's ruling with respect to Smith's testimony that C.B. had threatened to falsely accuse him. We reverse a trial court's decision to exclude evidence only if the trial court abused its discretion. Holloway v. State, 751 S.W.2d 866, 870 (Tex.Crim.App. 1988). A trial court abuses its discretion when its decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1991) (op. on reh'g). Under Rule 412, a complainant's sexual reputation or prior sexual behavior is generally not admissible in a prosecution for sexual assault. Tex.R.Evid. 412(a). But here, Smith's testimony did not concern C.B.'s sexual reputation or prior sexual behavior, but rather her threat to falsely accuse him if he did not change his behavior towards her. Therefore, Rule 412 is inapplicable. Instead, we believe the admission or exclusion of this evidence is governed by Rule 608(b), which provides:(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.Tex.R.Evid. 608(b). The Court of Criminal Appeals has considered whether the Confrontation Clause allows the admission of previous false accusations of sexual abuse against a person other than the defendant despite Rule 608(b)'s specific prohibition. Lopez v. State, 18 S.W.3d 220, 222-23 (Tex.Crim.App. 2000). The court rejected a per se exception to Rule 608(b) for sexual offenses, but recognized that this rule may on occasion conflict with an accused's right of confrontation. See Lopez, 18 S.W.3d at 222-23. In such a case, the Constitution will prevail over the rule. Id. at 222-23, Tex.R.Evid. 101(c). Courts must examine these cases on an individual basis to determine whether the Confrontation Clause demands the admissibility of certain evidence. Lopez, 18 S.W.3d at 225. In making this determination, the trial court must balance the probative value of the testimony against the risk its admission entails. Id. at 222. In Lopez, the court found that the defendant had a "heightened need" to impeach the complainant's credibility with evidence of the prior allegation because the trial was a typical "swearing match" between the defendant and the complainant. Id. at 225. Significantly, the prior allegation was not shown to be false. Further, the type of act alleged was unrelated to the sexual abuse allegation, and there was a high risk that it would confuse the jury and result in unfair prejudice. Id. at 225-26. Consequently, the court concluded that the trial court did not abuse its discretion by excluding the evidence. This case is more than a "swearing match" because the State adduced physical evidence which tended to support C.B.'s allegation against Appellant. When C.B. made her initial outcry to a teacher, she said that she had gotten scratches on her back from the floor when she was assaulted. She made the same statement to the case worker who interviewed her about the sexual assault and the case worker observed linear scratches on her back which were nearly healed. Sergeant Bobby Luffman of the Ector County Sheriff's Office investigated the offense. Based on information provided by C.B. and her parents, Luffman went to the vacant house where C.B. said the assault had occurred. Consistent with the information C.B. had provided in an earlier interview, Luffman found a broken window in the house and a bedroom which had nails sticking up through carpet padding. C.B. identified the bedroom as the same one where the assault had occurred and she pointed out the nails in the carpet padding as the objects which had scratched her back. C.B. had also told one of her interviewers that she was swollen and could not urinate the following morning. A sexual assault examination revealed that C.B. had healed tears in both the hymen and anal tissue. In the opinion of the sexual assault nurse examiner, these injuries were consistent with C.B.'s allegations. Additionally, trauma to C.B.'s female sexual organ could have caused swelling and difficulty in urinating. Given the corroborating evidence, the instant case does not involve a "heightened need" to impeach C.B.'s credibility with her threat to falsely accuse Smith. It is not entirely clear from Smith's testimony that C.B. threatened to accuse him of sexual assault as opposed to some other allegation. Thus, the trial court could have concluded that the evidence lacked probative value and would be unfairly prejudicial. Although reasonable minds can differ, an abuse of discretion is not shown. Even if the trial court erred by not admitting this evidence, it is harmless beyond a reasonable doubt. See Tex.R.App.P. 44.2(a). Under the constitutional error harm standard, we consider the entire record in a neutral light and determine "if there was a reasonable possibility that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question." Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000). Smith was permitted to testify that C.B. admitted to him she had made up the story in order to get attention. On direct examination by the prosecutor, Luffman volunteered that when he asked Appellant why C.B. had made these allegations against him, Appellant responded that C.B. had previously made allegations of sexual abuse against other people. Thus, the jury heard evidence that C.B. had falsely accused Appellant and others. Because Smith's testimony would have been cumulative of the evidence rejected by the jury, its exclusion did not move the jury from a state of non-persuasion to one of persuasion on the issue of C.B.'s credibility. Point of Error No. One is overruled and the judgment of the trial court is affirmed.