Irvin Hollis Ferree v. State , 2013 Tex. App. LEXIS 10609 ( 2013 )

Affirmed and Opinion filed August 22, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00286-CR
IRVIN HOLLIS FERREE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1292038
OPINION
Appellant Irvin Hollis Ferree appeals his conviction for aggravated sexual
assault of a child, challenging the trial court’s denial of appellant’s challenge for
cause to a venire member, the trial court’s evidentiary rulings, the trial court’s
alleged denial of appellant’s right to confront witnesses, and the trial court’s
alleged refusal to allow appellant to complete his offer of proof. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of aggravated
sexual assault of a child, the daughter of appellant’s live-in girlfriend. The
indictment alleged conduct occurring when the child was between the ages of five
and thirteen and living in the same household as appellant. Appellant pleaded “not
guilty” to the charged offense, but the jury returned a “guilty” verdict. Appellant
was sentenced to ninety-nine years’ confinement, and now appeals his conviction.
ISSUES AND ANALYSIS
In four issues, appellant asserts that (1) the trial court erred by denying
appellant’s challenge for cause to a venire member because he refused to consider
the full range of punishment; (2) the trial court committed reversible error when it
denied appellant’s request to offer proof of the complainant’s motive or bias based
on the complainant’s sexual activities with others as permitted by Texas Rule of
Evidence 412; (3) the trial court violated appellant’s Sixth Amendment right to
confront witnesses by precluding questions regarding the complainant’s prior
sexual conduct with others; and (4) the trial court erred by refusing to allow
appellant to complete his offer of proof.
Denial of Challenge for Cause
In appellant’s first issue, appellant asserts that the trial court improperly
denied his challenge for cause to venire member number 49 on the grounds that the
veniremember would not consider the full range of punishment. When reviewing a
trial court’s decision to deny a challenge for cause, we look at the entire record to
determine if there is sufficient evidence to support the ruling. See Davis v. State,
329 S.W.3d 798, 807 (Tex. Crim. App. 2010). The test is whether bias or
prejudice would substantially impair the venire member’s ability to carry out the
juror’s oath and judicial instructions in accordance with the law. Id. Before
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venire members may be excused for cause, the law must be explained to them, and
they must be asked whether they can follow that law, regardless of their personal
views. Id. The proponent of a challenge for cause has the burden of establishing
that the challenge is proper. Id. The proponent does not meet this burden until he
has shown that the venire member understood the requirements of the law and
could not overcome his or her prejudice well enough to follow the law. Id. We
review a trial court’s ruling on a challenge for cause with considerable deference
because the trial judge is in the best position to evaluate a venire member’s
demeanor and responses. Id. A trial judge’s ruling on a challenge for cause may
be reversed only for a clear abuse of discretion. Id. When the record indicates a
venire member’s answers were vacillating, unclear, or contradictory, we accord
particular deference to the trial court’s decision. Id.
Appellant points to a question posed to the venire panel as to whether the
venire members could consider probation as an appropriate punishment for a
person convicted of aggravated sexual assault. Various venire members responded
“no,” including number 49. Appellant further questioned these venire members.
As reflected by the record of the follow-up questions, number 49 first admitted that
he did not understand the question as it originally was posed because he believed
the question asked whether “parole” for five years was appropriate in lieu of five
years’ confinement. After trial counsel explained how probation would be applied,
number 49 indicated that he could not consider probation. The record reflects the
following exchange between trial counsel and number 49:
[Trial Counsel]: Would that be true even if the Judge were to instruct
you to consider it?
[Number 49]: He can instruct me to consider it, but still, to me, it’s
the severity of this type of felony, needs to be—I just don’t think
probation would be reasonable.
[Trial Counsel]: So you’re saying that it would just violate your
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conscience to do that; is that correct?
[Number 49]: Correct.
The trial court then questioned number 49:
[Trial Judge]: Without prejudging this case, the Court needs to know
if you can keep an open mind and consider the full range of
punishment, which includes, if the jury feels like this is a case that is
on the lower end, that they can recommend to the Court that he be
placed on supervision.
The question is simply this: Can you follow the Court’s instruction
and the law and consider not what you’ll give, but can you put it in
your mind and consider the full range of punishment.
[Number 49]: I could consider it, but I would not support it.
...
[Trial Judge]: I have got to follow the law and my question to you is
simply this: If the Court instructs you that is the law, will you follow
the law?
[Number 49]: I would follow the Court’s orders or instructions.
The trial court then denied appellant’s challenge for cause to number 49.
Appellant exercised a peremptory challenge against number 49. The trial court
denied appellant’s request for additional peremptory challenges, and appellant
noted that objectionable venire members remained on the panel, including venire
member number 1, who served on the jury. We presume, without deciding, that
appellant has preserved this issue for appellate review. See Davis, 329 S.W.3d at
807.
Both prosecutors and defense counsel may question a venire panel as to
whether venire members can consider the full range of punishment for a statutory
offense. Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010). A
question committing a venire member to consider the minimum punishment is
proper and permissible. Id. A party may challenge for cause any venire member
who expressly admits bias or who states an inability to consider the minimum
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punishment for a particular offense. Id. at 185. Opposing counsel or the trial
judge may then question the venire member further to ensure that the venire
member fully understands and appreciates the position that he is taking. Id. If the
record reflects that a venire member’s answers were vacillating, unclear, or
contradictory, then we defer to the trial court’s ruling. See id.; Smith v. State, 297
S.W.3d 260, 268 (Tex. Crim. App. 2009).
Although number 49 initially stated he could not consider probation, the
record reflects that, after further questioning by the trial court, number 49 also
stated that he could consider probation but “would not support it.” The trial court
then indicated that the court would be instructing the jury regarding the range of
punishment that they should consider and asked number 49 whether he would
follow the law. Number 49 responded that he would follow the trial court’s orders
and instructions. Appellant argues that the answers were not vacillating, unclear,
or contradictory. We disagree. Some of number 49’s answers indicated he would
not consider the full range of punishment even though instructed to do so, but other
answers indicated that number 49 would consider the full range of punishment as
instructed by the trial court. When, as in the case under review, a venire member’s
answers are vacillating, unclear, or contradictory, we defer to the trial court’s
ruling. See Gardner v. State, 306 S.W.3d 274, 296–97 (Tex. Crim. App. 2009);
Smith, 297 S.W.3d at 268–71. We conclude the trial court did not abuse its
discretion by denying appellant’s challenge for cause to venire member number 49.
See Gardner, 306 S.W.3d at 296–97; Smith, 297 S.W.3d at 268–71; Harvey v.
State, 123 S.W.3d 623, 635 (Tex. App.—Texarkana 2003, pet. ref’d). We overrule
appellant’s first issue.
Alleged Sixth Amendment Violation
In his third issue, appellant asserts that the trial court violated his Sixth
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Amendment right to confront witnesses when the trial court denied appellant the
opportunity to cross-examine the complainant about her sexual activities with
others. At no time before the trial court’s ruling that appellant would not be
allowed to cross-examine the complainant regarding these matters did appellant
invoke the Confrontation Clause of the United States Constitution or argue that the
Confrontation Clause required the admission of this evidence for purposes of
impeachment. After the State rested, appellant’s counsel stated in open court,
outside the presence of the jury, that appellant wanted “to append on [his] bill of
exceptions” and that appellant was “also objecting on the grounds rule violation
[sic] of confrontation.” The trial court responded, “Thank you.”
Nothing that appellant did before this exchange preserved error as to his
third issue. See Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005).
Presuming, without deciding, that appellant’s objection after the State rested was
sufficient to raise the complaint made the subject of his third issue, that objection
was untimely and did not preserve error. See Tex. R. App. P. 33.1(a); Deener v.
State 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref’d) (holding that error
must be preserved as to complaint based on Confrontation Clause by a timely and
specific objection). Moreover, appellant did not pursue the objection to an adverse
ruling. The trial court said, “thank you,” when appellant voiced his objection. But,
the trial court did not rule on the objection. The trial court’s response does not
constitute an adverse ruling sufficient to preserve error. See Tex. R. App. P. 33.1.
See also Cienfuegos v. State, 113 S.W.3d 481, 488–89 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (concluding that trial court’s ambiguous response of “I
understand,” did not constitute an adverse ruling). Concluding that appellant did
not preserve error in the trial court regarding his third issue, we overrule that issue.
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Alleged Denial of Opportunity to Make Offer of Proof
In his fourth issue, appellant complains that the trial court violated his right
to make an offer of proof by limiting the questioning of the complainant regarding
other sex partners. In his appellate brief, without citing any part of the appellate
record, appellant asserts that his trial counsel “‘fervently and continuously
requested the opportunity to make an offer of proof’ but was consistently thwarted
by the trial court.”1 Appellant asserts that the trial court erred in its “refusal to
permit a complete offer of proof,” but appellant does not cite or refer to an instance
in which the trial court allegedly committed this error.
The record reflects that the trial court allowed appellant to make an offer of
proof outside of the jury’s presence as to the complainant’s answers to cross-
examination questions regarding the complainant’s other sexual partners, the ages
of those sexual partners, a pregnancy in June 2009, and a subsequent abortion. The
trial court allowed appellant to make his offer of proof. After appellant’s counsel
had an opportunity to ask all the questions that he wanted to pose to the
complainant in the offer of proof, the State asked the complainant some questions.
Appellant’s counsel then stated that he wanted to ask “a couple more questions on
a slightly different vein.” Appellant’s counsel asked the complainant about the
things other than for being sexually active for which she got in trouble with her
mother. The State objected to this question as being outside of the scope of
appellant’s offer of proof, and the trial court sustained the objection. Appellant’s
counsel then asserted that, in response to a question from the State, the
1
Appellant quotes from Spence v. State, a case in which the trial court erred by refusing to allow
appellant to make an offer of proof because the court found such evidence to be immaterial and
irrelevant to the case. See 758 S.W.2d 597, 599 (Tex. Crim. App. 1988).
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complainant had testified that she “got in trouble for getting pregnant.”2 The trial
court then denied appellant’s request to cross-examine the complainant about her
sexual activities with others. Appellant’s counsel added that he also was offering
the complainant’s purported testimony that she “got in trouble for getting
pregnant.” Appellant’s counsel did not request an opportunity to add to his offer of
proof or make another offer of proof, nor did appellant’s counsel object that he had
not completed his offer of proof. We conclude that appellant did not preserve error
in the trial court as to his fourth issue. See Andrade v. State, 246 S.W.3d 217, 226
(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Accordingly, we overrule
appellant’s fourth issue.
Denial of Appellant’s Request to Cross-examine the Complainant Regarding
Her Sexual Activities with Others
In his second issue, appellant contends that the trial court abused its
discretion by denying appellant’s request to offer proof of the complainant’s
motive or bias based on her sexual activities with others, as permitted by Texas
Rule of Evidence 412. A trial court’s evidentiary ruling is reviewed for abuse of
discretion. Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 1999). A
trial court abuses its discretion when its decision falls outside of the zone of
reasonable disagreement. Id.
In a prosecution for aggravated sexual assault, evidence of specific instances
of an alleged victim’s past sexual behavior is 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
2
Appellant has not cited and this court has not found testimony by the complainant that she got
in trouble for getting pregnant. In response to a question from the State during the offer of proof,
the complainant made an ambiguous response that could be interpreted as testimony that the
complainant got in trouble with her mother when she told her mother she was sexually active.
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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; 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). Appellant asserts that the
evidence he sought to elicit in his offer of proof is evidence that relates to the
motive or bias of the complainant because it shows that the complainant did not
like appellant and that she falsely accused appellant of abusing her to conceal her
sexual relationships with individuals other than appellant.
The State asserts that the trial court’s refusal to allow appellant to ask the
questions in his offer of proof is not error because appellant did not follow the
procedure delineated in Rule 412(c). For the purposes of our analysis, we
presume, without deciding, that appellant followed the procedures stated in Rule
412(c) and 412(d) and that the evidence in the offer of proof relates to the motive
or bias of the complainant.
In appellant’s offer of proof, under cross-examination, the complainant
testified as follows:
The complainant lied in her forensic interview about not having had
sex with individuals other than appellant.
The complainant had sexual relations with boys and men other than
appellant, but those individuals did not molest the complainant.
By denying that she had had sex with anyone other than appellant, the
complainant was not attempting to “put this on [appellant].”
The complainant became pregnant in the summer of 2009. She does
not know who fathered the unborn child, but she was “pretty sure”
appellant was the father.
The complainant had an abortion, but, at that time, she did not express
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to her mother or anyone else that appellant was molesting her.
The complainant understands that whoever got her pregnant could get
in “some kind of trouble.”
The complainant had sex with three individuals other than appellant,
one of whom the complainant says was seventeen years old at the
time, and another she thinks was seventeen years old at the time but
she is not one-hundred-percent sure. The complainant does not know
the age of the third person.
The complainant might have told another boyfriend that appellant had
molested her, but she did not remember that.
In response to questions from the State just after appellant’s offer of proof,
and outside of the presence of the jury, the complainant testified as follows:
The complainant got pregnant in June 2009, and told her mother about
the pregnancy as soon as the complainant discovered she was
pregnant.
The complainant’s mother was “kind of mad” and upset when she
learned of the pregnancy, but the complainant was not in trouble.
The complainant had an abortion in August 2009, and she was not in
trouble when her mother took her to get the abortion.
The first time the complainant told her mother that appellant had
molested her was in December 2009.
Before the complainant got pregnant, her mother knew she was
sexually active.
The complainant also gave an ambiguous answer in response to a question from
the State. We presume for the sake of argument that the complainant testified in
this answer that she got in trouble with her mother when she told her mother she
was sexually active.
The case under review involves a “he said, she said” trial. In such cases, the
Texas Rules of Evidence should be used sparingly to exclude relevant, otherwise
admissible evidence that might bear upon the credibility of either the defendant or
the complainant. Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009).
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And, Texas law requires great latitude when the evidence deals with a witness’s
specific bias, motive, or interest to testify in a particular fashion. Id. Generally
speaking, the Texas Rules of Evidence permit the defendant to cross-examine a
witness for purported bias, interest, and motive without undue limitation or
arbitrary prohibition. Id. at 563.
Appellant relies upon Hammer v. State, a case in which the trial court did
not allow the defendant to present testimony and documentary evidence indicating
the following:
The complainant was angry with the defendant (her father)
because he brought her to a hospital for a sexual-assault
examination after she spent the night away from home.
The complainant told one witness that a certain male sexually
assaulted her during her night out. But, she told another witness
she actually had sex with her boyfriend (of whom her father did
not approve) that night and had lied about having sex with the
other male to prevent the defendant from learning she was with
her boyfriend.
The complainant was so distraught by the defendant taking her
to be examined for sexual assault that she threatened suicide
and was admitted to a state hospital. She was released from the
state hospital shortly before the defendant allegedly assaulted
her.
Hammer, 296 S.W.3d at 567. The Court of Criminal Appeals concluded the trial
court erred by excluding this evidence because it was “strong support for [the
defendant’s] theory that [the complainant] had a motive to falsely accuse him of
sexual molestation.” Id. The high court also noted that this evidence demonstrated
that the complainant was not above changing her story of a consensual sexual
encounter with her boyfriend into a nonconsensual one with someone else to
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prevent her father from learning the truth, and presumably punishing her for
running away and having sex with her boyfriend.3 Id. In Hammer, the excluded
evidence strongly supported a possible motive for the complainant to fabricate her
allegations and included evidence that the complainant had admitted to lying about
being sexually assaulted by another male to prevent the defendant from learning
she was with her boyfriend. See id. The facts in Hammer are materially different
from those in the case under review. See id.
Appellant also relies upon Billodeau v. State. See 277 S.W.3d 34 (Tex.
Crim. App. 2009). In that case, the Court of Criminal Appeals held that the trial
court should have admitted evidence that the child-complainant in that aggravated
sexual assault prosecution had made threats to falsely accuse two neighbors of
sexual molestation. See id. at 238. The high court held that such evidence
supported the defensive theory that the complainant’s motive in accusing the
defendant of sexual molestation was “rage and anger” when he was thwarted. See
id. at 42. The evidence proffered in the case under review did not include any
evidence that the complainant had falsely accused anyone of sexual molestation or
that she had threatened to do so. The facts in Billodeau are materially different
from those in the case under review. See id.
Notably, the questions and answers in the offer of proof are not highly
probative of the complainant’s motive or bias or of a specific bias, motive, or
interest to testify in a particular fashion, and there is a substantial danger of unfair
3
The Court of Criminal Appeals also determined the following evidence should not have been
excluded because it had the potential to render the complainant's allegations of sexual assault
unbelievable under the doctrine of chances: (1) the complainant “told others that she had been
sexually molested by [all of] her mother’s boyfriends,” an accusation of an improbable set of
events; and (2) the complainant called her grandmother and informed her that five men were
holding her at knife-point and threatening to rape her but later admitted she fabricated the story.
Id. at 569–70.
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prejudice from evidence of the complainant’s sexual relationships with three other
individuals, her pregnancy, and her abortion. We conclude the trial court did not
abuse its discretion by impliedly concluding that the probative value of this
evidence did not outweigh the danger of unfair prejudice and, thus, the proffered
evidence was inadmissible under Rule 412. See Tex. R. Evid. 412; Ray v. State,
119 S.W.3d 454, 458 (Tex. App.—Fort Worth 2003, pet. ref’d); Stephens v. State,
978 S.W.2d 728, 734–35 (Tex. App.—Austin 1998, pet. ref’d). For these reasons,
we overrule appellant’s second issue.
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Donovan.
Publish — TEX. R. APP. P. 47.2(b).
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