JOED LEE BARRERA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed October 31, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00218-CR
............................
JOED LEE BARRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00067-HM
.............................................................
OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Lang
                                                                                          
        A jury found the appellant, Joed Lee Barrera, guilty of aggravated sexual assault and assessed punishment at seventy-two years confinement. In two issues, Barrera asserts: 1) the district court abused its discretion in excluding relevant evidence and thereby deprived appellant of his right to cross-examination as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and 2) the district court abused its discretion in allowing the jurors to take notes. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Complainant spent Friday evening out drinking at a bar with friends. When complainant departed the bar, she went to a friend's apartment complex to attend a rooftop party. Complainant knew some people at the party, but did not know others, including the appellant.
        After about an hour at the party, complainant asked if anybody had a cigarette. Appellant approached complainant and offered to take her to buy cigarettes. Appellant drove complainant to buy cigarettes at a nearby gas station, but appeared to be lost on the way back to the apartment. Stopping his truck in a dark alley in a warehouse area, appellant told complainant to get out. She complied, thinking they were stopping to smoke a cigarette and get their bearings. Instead, appellant grabbed her arms and forced her to bend over the back of his truck. According to complainant, appellant forced her to engage in non-consensual anal sex, which caused her pain. Afterwards, appellant forced her back into the truck.         
        Appellant drove her directly back to the apartment complex, leading complainant to believe they had never been lost at all. While driving, appellant yelled at complainant, using profane language, and said that this was all her fault and that she better not say anything to anyone about what happened or he would kill her and her friend. Appellant ordered complainant out of his truck near her friend's apartment complex. Complainant reported the incident to her friend, who took her to the hospital where a rape exam was performed. The examining doctor noted physical signs consistent with complainant's account of the events. The appellant did not testify at the guilt stage of trial, but testified at the punishment phase of trial, stating he had engaged in consensual vaginal intercourse with complainant.
II. EXCLUSION OF EVIDENCE
 
        In his first issue, appellant argues the trial court abused its discretion by excluding evidence regarding complainant's conduct at the party. According to appellant, the evidence showed complainant was leaning on a rail around the deck, in a conversation with an unknown man who had his arms on either side of her and the man was kissing complainant on the cheek and neck. Also, according to appellant, the two were laughing and acting flirtatious.
        Specifically, appellant contends the evidence was probative of consent and showed that complainant “was not automatically adverse [sic] to romantic activities with a stranger.” At the same time, appellant argues kissing is clearly not “sexual behavior” and, thus, should not be excluded under Texas Rule of Criminal Evidence 412. Appellant also argues the evidence bears directly on “motive and bias” in complainant's trial testimony as to “whether her encounter with appellant was consensual.” Additionally, appellant asserts the exclusion of this evidence deprived him of his right of cross-examination as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The State asserts there was no abuse of discretion because the testimony is inadmissible under Texas Rule of Criminal Evidence 412 as prior sexual behavior of the victim. Further, the State contends the exclusion did not deprive appellant of his right of cross-examination.
        The trial court granted the State's motion in limine excluding the evidence. Appellant urged the admission of the evidence during trial and made an offer of proof. After hearing the evidence outside the presence of the jury, the trial court announced the prior ruling excluding the evidence would “stand the same” and the evidence “is not admissible.”
 
        A. Standard of Review
        A trial court's decision to exclude evidence is reviewed under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion as long as the decision to admit evidence is within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (en banc). The appeals court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If evidence exists supporting the decision to exclude evidence, there is no abuse of discretion, and the decision of the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.        
         B. Applicable Law
        Rule 412 of the Texas Rules of Criminal Evidence   See Footnote 1  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. Boyle v. State, 820 S.W.2d 122, 147-48 (Tex. Crim. App.1989) (en banc) (op. on reh'g), overruled on other grounds by Gordon v. State, 801 S.W.2d 899, 911 n.13 (Tex. Crim. App. 1990); Allen v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985) (en banc).
 
        The rule does not define the meaning of “sexual behavior.” However, the Court of Criminal Appeals, in interpreting the predecessor to rule 412, concluded the term “sexual conduct” should be “given its normal meaning and common usage.” Ex parte Rose, 704 S.W.2d 751, 755 (Tex. Crim. App. 1984) (en banc) (concluding that unless words and phrases have taken on a technical or particular meaning by legislative definition or otherwise, they should be read in context and construed according to the rules of grammar and common usage). In determining the admissibility of the evidence, the trial court decides whether the particular behavior sought to be admitted falls within the common meaning of “sexual behavior” under Texas Rule of Criminal Evidence 412. See Thomas v. State, 137 S.W.3d 792, 794-95 (Tex. App.-Waco 2004, no pet.) (applying dictionary definition of “sexual” to determine that a child sending a picture of herself in a swimsuit to a boy over the Internet is not within the meaning of “sexual behavior” in rule 412).
        The admissibility of an alleged victim's past sexual behavior is subject to a two-part test: (1) the evidence must fall within one of the five enumerated circumstances in rule 412(b)(2); and (2) its probative value must outweigh the danger of unfair prejudice. Boyle, 820 S.W.2d at 148; Tex. R. Crim. Evid. 412(b)(2), 412(b)(3). If the evidence of the victim's prior sexual behavior is not relevant, it is properly excluded. Tex. R. Crim. Evid. 402.
        When the evidence of past sexual behavior is offered under Texas Rule of Criminal Evidence 412(b)(2)(B) on the issue of consent, only “evidence of past sexual behavior with the accused” is admissible. Boyle, 820 S.W.2d at 149 (emphasis in original). When the evidence of prior behavior does not encompass any acts with the defendant, the evidence is not material to the consent issue and is inadmissible. Id. (excluding evidence of victim's sexual conduct with a third party when, “[i]n essence, appellant offer[ed] this testimony to prove that the victim acted in conformity with this behavior when in [appellant's] truck.”).         Under Texas Rule of Criminal Evidence 412(b)(2)(C), evidence of the victim's sexual behavior that “relates to the motive or bias of the alleged victim” is admissible, provided its probative value outweighs the danger of unfair prejudice. Tex. R. Crim. Evid. 412(b)(2)(C), 412(b)(3). Hale v. State provides an example of the application of this rule. Hale v. State, 140 S.W.3d 381, 395-96 (Tex. App.-Fort Worth 2004, pet. ref'd). In Hale, the court of appeals considered the argument that the offered evidence was probative of the victims' motive to lie. Yet, that court could find no evidence in the record to support the assertion. Id. (concluding there was no abuse of discretion in excluding evidence of past sexual behavior where there was “[n]o evidence in the record, or offered outside the jury's presence, suggest[ing] the boys were biased or motivated to lie about the assault.”).
        The exclusion of a victim's prior sexual history has been held to not generally violate the defendant's confrontation and cross-examination rights. See Allen, 700 S.W.2d at 930. In Allen, the Court of Criminal Appeals noted that there have been numerous attacks on rape shield laws as violative of the Sixth Amendment, but those attacks generally have been rejected. Id. Rape shield laws are not intended to exclude “highly relevant evidence and violate the defendant's right of confrontation[.]” Id. at 931. However, the United States Supreme Court has stated that “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (citing Mancusi v. Stubbs, 408 U.S. 204 (1972)); see also Allen, 700 S.W.2d at 931. The right to cross-examine to attack the credibility of a witness is “not inviolate.” Allen, 700 S.W.2d at 931 (citing Alford v. United States, 282 U.S. 687, 694 (1931)). The Sixth Amendment protects an accused's right to cross-examine a witness, but it does not prevent a trial court from limiting cross- examination on legitimate concerns such as harassment, prejudice, confusion of the issues, or to exclude evidence that is marginally relevant. See Kesterson v. Texas, 997 S.W.2d 290, 293 (Tex. App.-Dallas 1999, no pet.) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
        C. Application of Law to Facts
        Appellant makes two arguments regarding why evidence of complainant's behavior is admissible. First, appellant contends the evidence of the alleged kissing and flirting is probative of the issue of consent to the sexual contact that occurred between him and complainant. Second, appellant asserts the excluded evidence of complainant's kissing and flirting with another person is not evidence of sexual behavior subject to exclusion under Texas Rule of Criminal Evidence 412, but merely establishes her “openness to amorous advances by a stranger.” We cannot agree with appellant.         
        First, the Court of Criminal Appeals has determined evidence of a victim's sexual conduct with another man, whether a stranger or not, is not evidence of consent with appellant. See Boyle, 820 S.W.2d at 149. Second, appellant provides no support for his argument that the evidence is probative of the complainant's “motive and bias” in testifying about whether her encounter with appellant was consensual. Third, the trial court's ruling as to whether the excluded evidence was evidence of prior sexual behavior falls “within the zone of reasonable disagreement.” See Montgomery, 810 S.W.2d at 391. Based upon the authorities and the record, we cannot conclude the trial court abused its discretion in excluding the evidence under Texas Rule of Criminal Evidence 412. Even assuming the excluded evidence fit within an enumerated circumstance under Texas Rule of Criminal Evidence 412 whereby prior sexual behavior of the victim may be admissible, such as to prove “motive or bias” or consent, appellant has not demonstrated anywhere in the record evidence which meets the second prong of the test for admissibility, that “its probative value outweighs the danger of unfair prejudice.” See Boyle, 820 S.W.2d at 148; Tex. R. Crim. Evid. 412(b)(3).
        In addition to the arguments described above, appellant argues that the exclusion of the evidence of complainant's alleged kissing and flirting with another man deprived him of his right to cross-examination. We disagree. The trial court has discretion to limit cross-examination and exclude evidence based on legitimate interests in the trial process. See Chambers, 410 U.S. at 295; see also Allen, 700 S.W.2d at 931; Kesterson, 997 S.W.2d at 293. As we have already determined, the evidence was properly excluded by the trial court under Texas Rule of Criminal Evidence 412. Appellant has not articulated any other reason why cross-examination should have been allowed on this trial record. We cannot conclude that the exclusion of this evidence deprived appellant of his constitutional right of cross-examination. Barrera's first issue is decided against him.
 
III. JUROR NOTE-TAKING
 
        In his second issue, appellant argues the trial court abused its discretion by allowing the jurors to take notes during trial. Specifically, appellant argues that the trial court did not inform the parties prior to voir dire that note-taking would be allowed and failed to make a determination that note-taking would be helpful to the jury in this case. The State responds that because appellant failed to object, it did not preserve the issue for review. Additionally, the State argues, even if the issue had been preserved, the trial court did not abuse its discretion in allowing the jurors to take notes because it substantially complied with the “steps” articulated by the Court of Criminal Appeals in Price v. State, 887 S.W.2d 949, 954-55 (Tex. Crim. App. 1994) (en banc).
        A. Standard of Review
        The question of whether a judge has erred in allowing juror note-taking is reviewed for abuse of discretion. Hubbard v. State, 892 S.W.2d 909, 911 (Tex. Crim. App. 1995) (en banc); Johnson v. State, 887 S.W.2d 957, 958 (Tex. Crim. App. 1994) (en banc). Even if there were an abuse of discretion, the appellant must show that he suffered harm, unfairness or prejudice. Johnson, 887 S.W.2d at 958.
        B. Applicable Law                 
        The Court of Criminal Appeals has concluded a trial court has discretion to permit juror note- taking. Price, 887 S.W.2d at 954. The court was “confident the inherent risks of note-taking can be avoided if the trial judge takes the following steps[:]”
First, determine if juror note-taking would be beneficial in light of the factual and legal issues to be presented at the trial. . . .
 
Second, the trial judge should inform the parties, prior to voir dire, if the jurors will be permitted to take notes. If note-taking is to be allowed, the parties should be permitted to question the venire as to their ability to read, write or take notes. . . .
 
Third, the trial judge should admonish the jury, at the time it is impaneled, on note-taking. . . .
 
Fourth, the trial judge should provide the following instruction, or one substantially similar, in the jury charge at each phase of trial: [instruction omitted].
 
Id. at 954-55. Following the analysis required by the four “steps,” the Court of Criminal Appeals concluded in Price that, even though the trial court did not inform the parties prior to voir dire that jury note taking would be permitted, the actions of the trial court “substantially complied” with the four cautionary steps and there was no abuse of discretion. Id. at 955-56; see also Johnson v. State, 887 S.W.2d at 958 (no abuse of discretion); Hubbard, 892 S.W.2d at 911 (no abuse of discretion); Shannon v. State, 942 S.W.2d 591, 596 (Tex. Crim. App. 1996) (en banc) (no abuse of discretion).
        In Shannon, the Court of Criminal Appeals concluded because the appellant did not object to juror note-taking, he did not preserve the issue for appeal. Shannon, 942 S.W.2d at 596. While the record did not disclose whether the trial court informed the parties prior to voir dire that note- taking would be allowed, the trial court did give the jury an admonition regarding note-taking prior to the trial. Id. Additionally, the record did not reveal whether any jurors took notes or whether they utilized any notes in deliberations, and the court refused to speculate as to those facts. Id. The court concluded the appellant had failed to follow the procedural rule to preserve an issue for appeal. Id. To preserve an issue for appellate review, a party is required to show: (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a).
         C. Application of Law to Facts
        The record reflects at the end of voir dire and in the presence of counsel, the trial court told the chosen jurors that they would be allowed to take notes during trial. Appellant did not object, even after being asked if there was anything further to address after the jury was excused for the day. The next day, for two hours before the trial was commenced, the parties presented motions in limine to the trial court. Appellant did not object to juror note-taking at that time. After the jury was sworn, but prior to trial, the trial court gave a lengthy admonition about note-taking to the jury that was virtually identical to the admonition recommended by the Court of Criminal Appeals in Price. See Price, 887 S.W.2d at 954-55. Appellant did not object and announced ready for trial. We conclude, on this record, by not making a timely objection at trial, appellant did not preserve his point on appeal on the issue. See Tex. R. App. P. 33.1(a); Shannon, 942 S.W.2d at 596 (holding no preservation of error on the issue where “appellant did not make a timely objection at trial concerning the juror's note-taking.”).
        Even had the point been preserved, we conclude appellant has not demonstrated error by the trial court. In order to secure reversal, he would have to demonstrate both non-compliance with Price and harm, unfairness, or prejudice. See Price, 887 S.W.2d at 954-56; Johnson, 887 S.W.2d at 958. Appellant has not identified any evidence of harm, unfairness or prejudice to support reversal. We cannot conclude, on this record, that the trial court abused its discretion in allowing juror note-taking. Barrera's second issue is decided against him.
IV. CONCLUSION
 
        The trial court's judgment finding appellant Joed Lee Barrera guilty of aggravated sexual assault should be AFFIRMED.                                
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47
060218f.u05
 
                                                
 
Footnote 1 The rule provides, in pertinent part:        
 
Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases
 
(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
 
(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:
 
 
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
 
        (2) it is evidence
 
(A) that is necessary to rebut or explain scientific or medical evidence offered by the state;
(B) of 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;
        (C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609 [Impeachment by Evidence of Conviction of Crime]; or
        (E) that is constitutionally required to be admitted; and
 
 
 
(3) its probative value outweighs the danger of unfair prejudice.
 
                
        Tex. R. Crim. Evid. 412.