KENNY LEE MORRISON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01629-CR
No. 05-06-01630-CR
No. 05-06-01631-CR
............................
 
KENNY LEE MORRISON, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 59th District Court
Grayson County, Texas
Trial Court Cause Nos. 50455, 50456, 50504
.............................................................
 
OPINION
 
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Bridges
 
 
        Kenny Lee Morrison appeals his three sexual assault of a child convictions. In each case, the jury convicted appellant and sentenced him to fifteen years' confinement and a $450 fine. In two points of error, appellant argues the trial court erred in failing to submit a reasonable doubt instruction to the jury and in denying appellant's right to confront, cross-examine, and impeach witnesses. We affirm the trial court's judgments.
        Because appellant does not challenge the sufficiency of the evidence to support his convictions, only a brief recitation of the facts is necessary. Appellant was charged with penetrating the sexual organ of S.A.F., a child younger than seventeen, with his sexual organ and a vibrator, penetrating S.A.F.'s anus with his sexual organ, and penetrating the sexual organ of C.C., a child younger than seventeen, with his sexual organ. A jury convicted appellant in each case. These appeals followed.
        In his first point of error, appellant argues the trial court erred in failing to define “reasonable doubt” in its charge. A reasonable doubt definition is disfavored at the guilt-innocence stage of trial. See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (specifically overruling that part of Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) requiring “beyond a reasonable doubt” definition). Accordingly, the trial court in this case did not err in failing to give such a definition. We overrule appellant's first point of error.
        In his second point of error, appellant argues the trial court erred in denying appellant's right to confront, cross-examine, and impeach witnesses. Specifically, appellant complains the trial court prevented him from developing evidence of S.A.F. and C.C.'s previous sexual conduct under rule of evidence 412.
        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). 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.
        Rule of evidence 412 provides that reputation or opinion evidence of the past sexual behavior of an alleged victim of aggravated sexual assault is not admissible. Tex. R. Evid. 412(a). In a prosecution for 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 [rule 412];
(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 [pertaining to 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. Evid. 412(b). If the defendant proposes to introduce evidence of the alleged victim's past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing such evidence. Tex. R. Evid. 412(c). After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the evidence is admissible. Id.
        In this case, the trial court conducted a hearing outside of the presence of the jury at which appellant attempted to develop evidence that S.A.F. had previously accused another man of rape and then recanted her accusation. S.A.F. denied telling anyone that another man had raped her. In a separate hearing outside the jury's presence, Daven Bumgardner testified he had sex with S.A.F. in 2001 when he was sixteen years old. The trial court admitted this testimony that S.A.F. had sex prior to the physical examination in the underlying case to rebut medical evidence offered by the State. However, Bumgardner also denied that S.A.F. ever claimed she was raped by another man.
        In another 412 hearing, in an attempt to prove S.A.F. had accused another man of rape and later recanted, appellant called Victor Quintanilla. Quintanilla testified S.A.F. told Bumgardner “over the telephone at camp” that she had sex with another man, and Bumgardner later told Quintanilla about it. According to Quintanilla, S.A.F. later changed her story to a claim that the other man raped her, but Quintanilla himself never talked to S.A.F. about the alleged rape. However, Bumgardner denied that S.A.F. ever told him she had been raped by another man.
        As to C.C., appellant attempted to develop evidence that C.C. also had sex with Bumgardner. However, C.C. was not examined, and there was not medical evidence to rebut. As to both S.A.F. and C.C., appellant failed to demonstrate that either had a prior sexual history with appellant, how evidence of sexual relations with Bumgardner would demonstrate motive or bias on the part of either girl, or under what constitutional provision the admission of evidence of their relationships with Bumgardner would be required. See Tex. R. Evid. 412. Under these circumstances, we cannot conclude the trial court abused its discretion in refusing to admit evidence of S.A.F.'s and C.C.'s sexual conduct with Bumgardner or S.A.F.'s alleged “recantation.” See McDonald v. State, 179 S.W.3d 571 at 576. We overrule appellant's second point of error.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061629F.U05