Kenneth Thomas v. The State of Texas--Appeal from 178th District Court of Harris County

Opinion issued October 12, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00782-CR

__________

KENNETH THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 926058

MEMORANDUM OPINION

A jury found appellant, Kenneth Thomas, guilty of sexual assault of a child, and the trial court sentenced him to 15 years in prison. In four points of error, appellant argues that (1) in violation of his federal and state constitutional rights to confront and cross-examine, the trial court excluded evidence regarding the complainant s ( P.T. s ) prior sexual relations and (2) the evidence was legally and factually insufficient because P.T. s testimony was not corroborated.

We affirm.

Background

P.T. was born on October 25, 1981 to Carla Thomas and Kenneth Thomas, the appellant. // The couple had another daughter, D.T., who is three years younger than P.T. They separated in the early 1990s, and the children remained with appellant in the family s home. Though appellant and Carla had joint custody of their daughters, appellant was the primary caretaker.

P.T. testified that, because of the separation, she would often go into her father s bedroom at night to talk about the separation and her daily activities. After talking, P.T. would often hug and kiss appellant before going to sleep. She testified that appellant eventually began to hug her for two to five minutes, while rubbing her back when she was about 12 years old. She testified that the hugs escalated to massages, where appellant eventually began touching her breasts, bottom, and vagina. When she was 13 or 14 years old, she testified that appellant began to perform oral sex on her. She estimated that, when she was 14 years old until she was 16 years old, appellant performed oral sex on her four or five times a week. She testified that appellant also used his penis to contact her vagina, and, when she was about 14 or 15 years old, appellant began engaging in intercourse with her. This abuse was alleged to have taken place over a span of eight years. P.T. testified that she did not tell anyone at the time that she was being abused by appellant because she was afraid of him. While attending college, P.T. told a friend that appellant had sexually abused her. The friend s parents contacted Child Protective Services ( CPS ), which began an investigation into the activity.

Appellant denied sexually assaulting P.T. He testified that, when P.T. was in high school, after discovering that she was sexually active, he did not allow her to attend a private school known for its elite volleyball program. When home during college, she told appellant that she may have contracted a sexually transmitted disease. Appellant testified that he told her that he would no longer pay for her extra expenses, like her cell phone bill, though she testified that he said he would no longer pay her medical bills. It was approximately two months after this confrontation that complainant told her college friend and made her statement to a CPS officer.

Appellant s other daughter, D.T., testified that she never saw anything that led her to believe that appellant had sexually assaulted P.T. She did, however, admit that appellant sometimes massaged her in a way that made her feel awkward. Appellant s sister and neighbor also testified that they never saw anything that would make them think that appellant had victimized P.T.

Before trial, appellant sought to introduce evidence that P.T. alleged having sexual encounters with her cousin, George, when she was in first grade and when she was around 14 or 15 years old. During an in camera hearing, defense counsel stated that George was contacted and denied the activities ever took place, and appellant wanted to admit the evidence in an attempt to impeach P.T. // The trial court excluded the evidence of P.T. s sexual relations with George because it would be highly inflammatory and because P.T. had never indicated that the allegations were false. //

Exclusion of Evidence

In points of error one and two, appellant contends that, in violation of his federal and state constitutional rights to confront and cross-examine, the trial court erred in ruling that P.T. s fabricated story about having sexual relations with her cousin was inadmissible to attack her credibility.

Standard of Review

A trial judge has broad discretion in deciding whether to admit or exclude evidence. Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). An appellate court will reverse a trial court s decision to exclude evidence only if the trial court abused its discretion. Id.; Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990). As long as the trial court s decision was within the zone of reasonable disagreement, the appellate court will not intercede. Montgomery, 810 S.W.2d at 391.

A trial court may exercise its discretion in excluding evidence only when the evidence s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, or needless presentation of cumulative evidence. Mozon, 991 S.W.2d at 846 47. Where the appellate court can say with confidence that by no reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the existence of a fact of consequence more or less probable than it would otherwise be then it can be said that the trial court abused its discretion to admit that evidence. Montgomery, 810 S.W.2d at 391.

Analysis

The Texas Rules of Evidence generally prohibit evidence of specific instances of an alleged victim s past sexual behavior in a prosecution for sexual assault, but such evidence must be admitted when constitutionally required. See Tex. R. Evid. 412(b)(2)(E). Appellant has asserted that he was denied the right to confront and cross-examine P.T. about allegations of previous sexual behavior in violation of the Confrontation Clauses in the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. I, 10.

When an appellant provides no explanation for construing the Texas Constitution as conferring greater protection in an area of law than the federal constitution, we will not address his state constitutional argument. See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex. Crim. App. 2000). This specifically applies when, as here, an appellant fails to point out any meaningful distinctions between the Confrontation Clauses in the federal and state constitutions. See Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997). Thus, the Court s analysis will be limited to the appellant s federal claim.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const. amend. VI; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110 (1974). Confrontation means more than being allowed to confront the witness physically. Davis, 415 U.S. at 315, 94 S. Ct. at 1110. Its fundamental purpose is to secure for the opponent the opportunity to cross-examine the accuser. Davis, 415 U.S. at 315 16, 94 S. Ct. at 1110.

Confrontation Clause issues must be considered on a case-by-case basis, carefully taking into account the defendant s right to cross-examine 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 the injection of cumulative or collateral evidence. Id.

In Lopez, the appellant was convicted of aggravated sexual assault of a child and indecency with a child. Id. The only evidence of Lopez s guilt came from accusations made by the complainant. Id. at 225. In order to impeach the complainant, Lopez sought to introduce evidence that the complainant had previously falsely accused his mother of physical abuse. Id. The Court of Criminal Appeals held that the trial court was not required to admit the evidence because the prior accusation had never been proven false, and the allegation that the complainant s mother had thrown him against a dishwasher was unlike his claim that the appellant had forced him to engage in oral sex. Id. at 225 26.

In Thomas v. State, 669 S.W.2d 420 (Tex. App. Houston [1st Dist.] 1984, pet. ref d), an appellant charged with aggravated rape of a child was allowed to introduce evidence that the complainant had made a previous allegation of rape that she later admitted was untrue. Id. at 422. The complainant was asked if she had told her family that she was raped by a tall, skinny man, and whether it was true. Id. She answered it was not. Id. This Court found that the complainant s credibility would have been cast in doubt by the admission of this testimony and that the jury should have been allowed to decide the issue. Id. at 423.

Here, unlike the complainant in Thomas, P.T. never admitted that her allegation of a sexual encounter with her cousin was false. She testified, in an in camera hearing, to participating in sexual activities with George in the first grade and when she was 14 or 15 years old. She did not retract or deny these statements at any time. There was no evidence offered by appellant to establish the falsity of P.T. s claim. The information regarding George s denial was introduced by defense counsel, and no proffer was made. The trial court is not required to admit evidence of a prior false accusation when the accusation was never shown to be false. Lopez, 18 S.W.3d at 225. Accordingly, we hold that the trial court did not abuse its discretion when it decided that evidence of P.T. s prior sexual history was inadmissible to attack her credibility.

We overrule points of error one and two.

Sufficiency

In points of error three and four, appellant argues that the evidence was legally and factually insufficient to support his conviction because P.T. s testimony was not corroborated.

Standard of Review

In reviewing a challenge to the legal sufficiency of the evidence to support a conviction, the standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). The reviewing court should not sit as a 13th juror in assessing the evidence, but rather it should ensure the rationality of the factfinder s decision. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This means that we do not reevaluate the weight and credibility of the evidence, but act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

In contrast, a factual sufficiency review requires a reviewing court to set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A court of appeals may not reverse a jury s decision simply because it disagrees with the result; the appellate court must defer to jury findings and may find the evidence factually insufficient only where necessary to prevent manifest injustice. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). This standard of review focuses on whether, reviewing all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We are required to consider the most important evidence that the appellant claims undermines the jury s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Analysis

The indictment charged appellant with unlawfully, intentionally and knowingly caus[ing] the sexual organ of [P.T.], a person younger than seventeen years of age and not his spouse, to contact the mouth of the Defendant. P.T. testified that, over the course of eight years, the appellant touched her vagina, put his mouth on her vagina, and penetrated her vagina with his penis. She recounted, in detail, her nighttime routine with her father that progressed from hugs to massaging to inappropriate touching that eventually led to oral sex and intercourse.

The testimony of a victim, standing alone, is sufficient evidence to support a sexual assault conviction. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). As long as the evidence provides the requisite proof needed to satisfy the elements of the offense charged, the evidence is legally sufficient. Bousquet v. State,47 S.W.3d 131, 137 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). Therefore, P.T. s testimony concerning the appellant s sexual activities was legally sufficient to support the conviction.

To rebut this evidence, appellant brought forth testimony from his other daughter, his sister, and a neighbor of 10 years who had lived next to appellant while the alleged activity took place. Appellant s other daughter, D.T., testified that she had not witnessed any sexual activity between appellant and P.T., nor had she observed any behavior by P.T. that would have led her to believe that P.T. was being abused. She did, however, testify to receiving massages from appellant that made her feel awkward. In addition, she found a letter that P.T. had written to her boyfriend in the sixth grade that mentioned appellant was sexually abusing her. D.T. testified that, when she found the letter, she confronted her sister, and P.T. denied that the abuse ever took place.

Appellant s sister, Cynthia Adams, testified that she spoke regularly with P.T. during the time of the alleged abuse and never noticed anything that would lead her to believe that P.T. was being victimized. Appellant s neighbor, Margarita Bermudez, also testified that she regularly saw and spoke with P.T. throughout the years that the alleged abuse took place and never noticed any unusual behavior. However, Dr. Julie Rambur, a clinical psychologist, testified that approximately one-third of sexual abuse victims are asymptomatic and function as if the abuse were not happening.

Appellant denied abusing his daughter and implied that her accusations may have been caused by his decision to stop paying for various expenses as punishment after she told him that she may have a sexually transmitted disease. But P.T. did not initiate the call to CPS and over two months had passed since her conversation with her father about possibly having a sexually transmitted disease.

The testimony by D.T., Cynthia Adams, Margarita Bermudez, and appellant does not require the verdict to be set aside. See Clewis, 922 S.W.2d at 129. The jury was justified in believing the testimony of P.T., and this Court s evaluation of the evidence should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of the witnesses testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Examined in a neutral light, the evidence does not appear so weak that the verdict is clearly wrong and manifestly unjust and that the contrary evidence is not so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

We overrule points of error three and four.

Conclusion

We affirm the trial court s judgment.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).