Graham, Edgar Lloyd v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EDGAR LLOYD GRAHAM, )

) No. 08-01-00291-CR

Appellant, )

) Appeal from the

v. )

) 238th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-25,970)

)

O P I N I O N

Edgar Lloyd Graham appeals jury convictions on one count of aggravated sexual assault of a child and one count of indecency with a child by exposure. The jury assessed punishment at 25 years= imprisonment on the aggravated sexual assault of a child offense and 3 years= imprisonment for the indecency with a child by exposure offense. We affirm.

On February 3, 2000, eleven-year-old T.A.T. wrote a letter to her school teacher, Ms. Singleton, that caused Ms. Singleton to suspect that T.A.T. had been sexually assaulted. Ms. Singleton reported the letter to a school counselor, who in turn contacted Child Protective Services (ACPS@). Angie Yarbar, a case worker with CPS, notified Detective Sheldon Johnson of the Midland Police Department of a possible child sex abuse case.

At trial, T.A.T. testified that at the time of the incidents, Appellant, her mother=s former boyfriend, was living with her family in Midland. T.A.T. stated that one day she finished taking a shower and was wearing a towel, she walked out of the bathroom towards her bedroom to collect her clothes. As T.A.T. was walking by, Appellant pulled her into her mother=s bedroom. Appellant pulled off T.A.T.=s towel, threw her on the bed, and sexually assaulted her by putting his penis into her vagina. T.A.T. testified that she told Appellant to stop. Appellant told T.A.T. not to move, that if she moved it was going to hurt, and not to tell anyone. T.AT. remembered that she was on the floor when Appellant stopped, that she felt pain, and that afterwards she threw up in the bathroom. T.A.T. also testified to at least one other incident between she and Appellant. Sometime before the sexual assault in her mother=s bedroom, T.A.T. recalled that Appellant exposed his penis in front of her while they were alone in the kitchen of the family=s home.

Detective Sheldon Johnson testified during the State=s case-in-chief that he started an investigation regarding T.A.T.=s allegations against Appellant based on the information CPS obtained from T.A.T. Detective Johnson first interviewed Appellant on February 3, 2000, at which time Appellant denied T.A.T.=s allegations. At a second interview on February 24, 2000, Appellant admitted that he had sexual contact with T.A.T. In this interview, Appellant stated that T.A.T. came out of the bathroom wearing a towel and he called her into his bedroom. Appellant asked her to drop her towel, which she did, and he rubbed his penis on her vagina. Appellant stated that this was the only instance of sexual contact between him and T.A.T. Appellant denied telling T.A.T. not to tell anyone about the abuse. At trial, however, Appellant recanted this confession and testified that he had lied to Detective Johnson at the February 24 interview, hoping that his confession would prevent CPS from removing T.A.T. and T.A.T.=s siblings from their mother. Appellant also denied exposing himself to T.A.T. According to Appellant=s testimony, Detective Johnson showed Appellant T.A.T.=s written statement, which described the details of her allegations. The State then called Detective Johnson as a rebuttal witness to refute Appellant=s testimony. Detective Johnson testified that Appellant was not given any details concerning T.A.T.=s allegations during the first interview nor was Appellant given any details before Appellant confessed at the second interview.

Appellant was charged with multiple counts of aggravated sexual assault of a minor, indecency with a child by exposure, and indecency with a child by contact. The jury found Appellant guilty of one count of aggravated sexual assault of a child and one count of indecency with a child by exposure.

In his sole issue for review, Appellant contends the trial court erred in denying him the right to challenge the credibility of the complainant. Specifically, Appellant complains that he was denied his right to confrontation under the Texas and U.S. Constitutions when he was precluded from admitting evidence that the victim made subsequent allegations of sexual misconduct against third parties.[1] Appellant also argues within his first issue that he should have been allowed to introduce the evidence regarding the subsequent allegations of sexual misconduct in order to show motive or bias of the complainant. This argument was not presented to the trial court nor was the court asked to rule on this basis. Thus, Appellant did not preserve this portion of his argument for appeal. Tex.R.App.P. 33.1. In addition, Appellant argues that the trial court=s decision to exclude the proffered evidence denied him due process of law in that due process involves the right to cross-examine a witness. We deem this argument waived on appeal for inadequate briefing and consider only the confrontation clause claims asserted. See Tex.R.App.P. 38.1(h); Hernandez v. State, 24 S.W.3d 846, 852 (Tex.App.--El Paso 2000, pet. ref=d).

Standard of Review

A trial court=s decision to exclude evidence is reviewed under the standard of abuse of discretion. Love v. State, 861 SW.2d 899, 903 (Tex.Crim.App. 1993). An abuse of discretion is shown when the trial court=s determination is so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992).

The Sixth Amendment to the U.S. Constitution guarantees the right of an accused in a criminal proceeding to be confronted with the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1109-10, 39 L. Ed. 2d 347 (1974). The Fourteenth Amendment to the U.S. Constitution makes the right to confrontation applicable to the states. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1067, 13 L. Ed. 2d 923 (1965). This right includes the opportunity for cross-examination. Davis, 415 U.S. at 315-16, 94 S. Ct. at 110. Similarly, the Texas Constitution provides that in all criminal prosecutions, the accused shall be confronted with the witnesses against him. Tex.Const. art. I, ' 10.[2] Confrontation clause challenges must be examined on a case-by-case basis, carefully taking into account the defendant=s right to cross-examination and the risk factors associated with admission of the evidence. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. Id. The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and injection of cumulative or collateral evidence. Id.

Texas Rule of Evidence 608(b) mandates that A[s]pecific 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). In Lopez, the Court of Criminal Appeals held that there is no per se exception to Rule 608(b) for sexual offenses. Lopez, 18 S.W.3d at 225. However, the Court acknowledged that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence, including Rule 608(b), would exclude. Id.

Applying Lopez Balancing

Appellant argues on appeal that the Confrontation Clause requires that T.AT.=s prior subsequent and allegedly false accusations of sexual misconduct against her brother and another person other than the Appellant were admissible notwithstanding Texas Rule of Evidence 608(b). In determining the admissible of this evidence, we must balance its probative value against the risk its admission entailed. See Lopez, 18 S.W.3d at 225. At trial, Appellant sought unsuccessfully to introduce evidence concerning the following specific incidents that occurred subsequent to T.A.T.=s allegations against Appellant: (1) CPS investigated T.A.T.=s allegation that her brother sexually assaulted her in October 2000; (2) CPS investigated T.A.T.=s allegation that her brother sexually assaulted her again in April 2001; and (3) T.A.T. alleged that a friend of the biological child of her foster parents asked her to have sex with him. On appeal, Appellant argues that T.A.T. made false accusations against her brother and the friend of T.A.T.=s foster family and that under a Lopez balancing test, the trial court should have admitted the evidence in Appellant=s bill of exceptions regarding the subsequent allegedly false allegations of sexual misconduct.

Outside the presence of the jury, T.A.T. testified that her brother put his penis inside her vagina on at least two occasions. T.A.T. could not remember when, where, or how many times this occurred. Appellant=s counsel also inquired into an allegation T.A.T. made while she lived with a foster family in Odessa. T.A.T. testified that a friend of the boy that lived in the foster family was spending the night at the house. The boy=s friend told her he wanted to have sex with her that night and T.A.T. refused. T.A.T. stated that nothing sexual happened and that afterwards she did not want to stay there anymore.

Also outside the presence of the jury, Appellant=s counsel offered the testimony of Tasha Finley, a case worker with the Texas Department of Protective and Regulatory Services (ATDPRS@). According to Ms. Finley, a friend of the biological child of T.A.T.=s foster parents made sexual remarks to T.A.T. that made T.A.T. feel uncomfortable. Based on T.A.T.=s allegation, Ms. Finley had concluded that T.A.T. needed to be moved. Ms. Finley stated that she talked with her supervisor and decided it would be in the best interest of T.A.T. and the foster family that T.A.T. be moved to another foster family without males. While there was no complete investigation done, Finley concluded that there was not a lot of truth to the allegation. Ms. Finley also expressed her reservations as to T.A.T.=s truthfulness to T.A.T.=s mother. On cross-examination, Ms. Finley admitted that her unit never investigated T.A.T.=s allegation, but rather decided that it would be better to move T.A.T. to a different foster family without males.

As to T.A.T.=s allegations against her older brother, Ms. Finley testified that her department had reason to believe that T.A.T.=s brother sexually assaulted her in October 2000 on at least one occasion. Without stating its reasons, Ms. Finley stated that her department had Aruled out@ the April 2001 incident. However, Ms. Finley also stated that her department continues to believe it is unsafe for T.A.T. to be around her brother.

The State argues on appeal that as in Lopez, the evidence of T.A.T.=s subsequent allegations of sexual misconduct by third parties was properly excluded. See Lopez, 18 S.W.3d at 220. In Lopez, the defendant was charged with aggravated sexual assault of a child and indecency with a child. Id. at 222. The complainant had previously made an allegedly false accusation of physical abuse against his mother. Id. at 221. The Court upheld the trial court=s decision to exclude this evidence on two grounds. First, the accusation was never shown to be false. Id. at 225. Second, the allegation had almost nothing in common with the allegation made against the defendant. Id. at 226. The Court found that A[w]ithout proof that the prior accusation was false or that the two accusations were similar, the evidence fails to have any probative value in impeaching [the victim=s] credibility . . . .@ Id. The Court concluded that under the facts of that case, the Confrontation Clause did not demand admissibility of evidence of which the probative value was extremely low, but the risk of undue prejudice and jury confusion was high. Lopez, 18 S.W.3d at 226.

In the present case, the truth or falsity of T.A.T.=s subsequent allegations was not conclusively established by the record. Ms. Finley testified that her department had reason to believe T.A.T=s October 2000 allegation against her brother. As to the April 2001 allegation, the record reflects that TDPRS Aruled out@ the abuse. As in Lopez, this evidence may indicate a lack of evidence to prove T.A.T.=s allegation at the time. See Lopez, 18. S.W.3d at 225-26. Further, Ms. Finley indicated that her department still believed that contact between T.A.T. and her brother was unsafe. With respect to T.A.T=s third allegation, i.e., sexual remarks made to T.A.T. while she resided with an Odessa foster family, Ms. Finley had serious reservations as to the veracity of T.A.T.=s allegation, but she conceded that her department never investigated the matter. The record does not indicate that TDPRS made a finding as to the falsity of T.A.T.=s allegations. Without proof that the three allegations were false, we conclude that this evidence had little, if any, probative value. Given that this evidence involved allegations of sexual misconduct which are arguably similar to the charges against Appellant, the risk of jury confusion was high. We find that the trial court did not abuse its discretion. Accordingly, Issue One is overruled.

We affirm the trial court=s judgment.

March 20, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] As Appellant notes in his brief, the record does not indicate a specific objection on grounds that the exclusion of the evidence in question violated his right to confrontation. However, we find that the issue was sufficiently preserved on the record for appellate review given that the trial judge=s rulings specifically addressed Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000), which is directly germane to Appellant=s issue on appeal. See Tex.R.App.P. 33.1.

[2] Appellant appeals under both the Texas and United States Constitutions. Appellant concedes that the Texas Constitution does not provide him greater protection than the federal constitution. Appellant fails to point out any distinction between the confrontation clauses of the federal and Texas Constitutions. See Lagrone v. State, 942 S.W.2d 602, 612 (Tex.Crim.App. 1997), cert. denied, 522 U.S. 917, 118 S. Ct. 305, 139 L. Ed. 2d 235 (1997). We, therefore, consider Appellant=s state and federal claims in a joint analysis and without distinction.