Opinion
No. 05-02-01279-CR
Opinion Filed January 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-01424-Ku. Affirmed.
Before Justices MOSELEY, FRANCIS, and LANG.
OPINION
A jury convicted Glen Earl Roth of aggravated sexual assault of a child under fourteen and assessed punishment at ten years in prison and a $10,000 fine. In four issues, appellant generally complains the trial court erred in (1) allowing an undisclosed expert to testify and (2) excluding certain evidence of child custody litigation that did not involve the complainant. We affirm. Because appellant does not challenge the sufficiency of the evidence, we will only briefly recount the facts. Appellant was married to M.L.'s aunt, Robin Henson. According to M.L., appellant began sexually abusing her when she was four years old and continued for the next six years. The abuse involved genital touching, oral sex, and digital and penile penetration. When M.L. was sixteen, she told her mother (Henson's sister) about the abuse. Appellant and Henson had been divorced for about four years at the time, but were involved in an acrimonious custody battle. At trial, appellant's defense was that M.L. made up the allegations to help her aunt in the custody litigation against appellant. In his first issue, appellant argues the trial court reversibly erred in allowing one of M.L.'s therapists, Rycke Marshall, to testify as an expert when the State failed to disclose Marshall on its list of expert witnesses. We disagree that Marshall was an undisclosed witness. Appellant filed a "Motion for List of State's Witnesses Prior to Trial." At a pretrial hearing, the trial court granted the motion and ordered the State to provide a list of witnesses, to "separate out the expert witnesses," and to provide the expert's address and area of expertise. The trial court specifically stated it was not ordering the State to provide addresses or telephone numbers for lay witnesses. In response, the State filed three lists: (1) the names of people who were present during the offense, (2) the names, addresses, and telephone numbers of therapists and psychiatrists that had seen M.L., and (3) the addresses, telephone numbers, and areas of expertise of two "expert witnesses." Marshall was disclosed on the therapist list, but she was not again named on the expert witness list. Appellant argues this omission necessitates reversal. Having considered the lists filed by the State in the context of the trial court's orders at the pretrial hearing, we conclude the State filed two expert witness lists, one of which was more defined in that it specifically addressed those therapists and psychiatrists who had seen M.L. Because the State disclosed Marshall on that list of experts, the trial court did not abuse its discretion in allowing her to testify. We reject the first issue. Appellant's second, third, and fourth issues involve complaints concerning the trial court's ruling to restrict the admission of evidence of the custody battle between appellant and Henson over their two daughters and in limiting his opening statement. Appellant complains the excluded evidence showed M.L., Henson, and M.L.'s mother were related and had a "common interest in the case," namely, to convict him. He complains the trial court's rulings violated various constitutional rights. Initially, we note that while appellant has detailed the evidence he sought to admit, he has not analyzed how the court's ruling with respect to each piece of evidence violated any specific constitutional right. Rather, he generally argues he was denied the right to demonstrate the bias, motive, and animus of M.L., his ex-wife, and M.L.'s mother. We limit our discussion to that issue. We review the trial court's decision to exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will not reverse a trial court as long as its ruling was within the "zone of reasonable disagreement." Id. The accused should be allowed great latitude in showing any fact that would tend to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him. Recer v. State, 821 S.W.2d 715, 717 (Tex. App.-Houston [14th Dist.] 1991, no pet.). The trial court has considerable discretion in determining how and when bias may be proved and what collateral evidence is material for that purpose. Id. The court may properly limit the scope of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App. 1997). Here, the trial court allowed the defense great latitude to show that M.L. lied to improve her aunt's position in the custody fight. In his opening statement, appellant told jurors that after he and Henson divorced, a lengthy custody battle ensued over their two girls; he believed Henson influenced M.L; and M.L. made a false outcry to help Henson improve her situation in the custody dispute. He then presented evidence that he and Henson divorced in 1995 after thirteen years of marriage and had been embroiled in a custody battle over their two daughters ever since. He cross-examined the State's witnesses on the closeness of the relationship between M.L., Henson, and M.L.'s mother. Appellant himself testified that M.L. falsely accused him so that he would be "labeled a sexual pervert so that my ex can take my children away from me." He also testified that Henson "had made it worth [M.L.'s] while" to make the false accusations. The evidence excluded by the trial court related to allegations that Henson had accused him of sexually abusing their daughter, Mariah; the Lubbock grand jury's no-bill in that case; and evidence regarding his visitation rights to Mariah and his other daughter. Appellant believes evidence of the no-bill is the equivalent of evidence that Henson falsely accused him. The trial court did not make such a correlation, and neither do we. Additionally, evidence that Henson had refused him visitation with Mariah despite a court order to the contrary is not relevant to the facts of this case. These issues were simply too collateral to be material to the case. We conclude the trial court allowed appellant to present relevant evidence pertaining to his defense that M.L., her mother, and her aunt orchestrated these charges to deny him access to his children and did not abuse its discretion in excluding other evidence. We reject his second issue. In his third issue, appellant complains the trial court did not allow him to cross-examine Henson on whether she falsely reported that he had abused another child and whether she falsely told M.L.'s mother that there was evidence Mariah had been sexually abused. Initially, we note appellant did not attempt to present any evidence that either of these matters were true. But, even assuming Henson made false allegations, the trial court acted within its discretion in limiting the cross-examination on that subject. The jury knew that Henson was, at the time of trial, involved in an acrimonious custody battle with appellant and could assess her credibility and motives in testifying against him as well as any influence she may have had over M.L. We reject the third issue. In his fourth issue, appellant complains the trial court erred in limiting his cross-examination of two witnesses in violation of Texas Rule of Evidence 107. He does not point us to any place in the record where he lodged an objection under rule 107. We have reviewed the citations provided by appellant, and he did not complain under rule 107. He argued the State had "opened the door" to the cross-examination and asserted the ruling violated various constitutional rights and the code of criminal procedure. Because his complaint on appeal is different than that presented below, we do not address it. See Routier v. State, 112 S.W.3d 554, 586 (Tex.Crim.App. 2003), petition for cert. filed, 72 U.S.L.W. 3422 (U.S. Dec. 9, 2003) (No. 03-866). We reject his fourth issue. We affirm the trial court's judgment.