Kelvin Lamont Peten v. State ( 2007 )

Opinion issued December 13, 2007

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00147-CR

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KELVIN LAMONT PETEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1009164

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MEMORANDUM OPINION

A jury found appellant, Kelvin Lamont Peten, guilty of the offense of aggravated sexual assault of a child under fourteen years of age ⁽¹⁾ and assessed his punishment at confinement for six years. In his sole point of error, appellant contends that the trial court erred in excluding evidence of the complainant's past "physical relationship" with her cousin in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. ⁽²⁾

We affirm.

Factual Background

The complainant testified that on August 7, 2004, when she was twelve years old, appellant, her uncle, picked her and her cousin up at their church and drove them to appellant's house. At this time, the complainant thought that her "Uncle Peten . . . was just a nice person." While she and her cousin watched a movie together in her cousin's room, appellant interrupted them and called for the complainant to come to his bedroom. The complainant could not remember why appellant summoned her, but appellant and she started talking and watching television together on his bed. Appellant then started to rub his hand up and down the bottom part of her leg. He laid his body over the complainant with his head near her vagina, removed the complainant's "skort" and underwear, and started to lick her vagina. The complainant asked him to get off of her, and she tried to push him off of her, but he was "too heavy." After approximately two minutes, appellant stopped and the complainant redressed. When she walked towards the door to leave, appellant placed his foot in front of the door, blocking her departure. When she asked appellant to remove his foot, he finally let her leave without saying anything. ⁽³⁾

The complainant went back to her cousin's room and told him what had happened. ⁽⁴⁾ Less than one hour later, appellant took the complainant home. That night, although the complainant called her older sister, who lived elsewhere, to tell her what had happened, her sister did not answer her telephone. The complainant explained that she did not tell her parents what had happened that night because she was "scared." Around 3:00 p.m. to 4:00 p.m. the next day, however, the complainant got in touch with her sister and told her what appellant had done to her. Later that night, after their mother returned home from work at around 10:00 p.m., the complainant and her sister told her how appellant had sexually assaulted the complainant.

Appellant testified that the complainant was in the bedroom alone with him for no more than two minutes and that she came in without being asked. ⁽⁵⁾ He denied that he had licked the complainant's vagina. Appellant explained that he could not have lain on his front side on top of the complainant because, at that time, he was suffering from keloids, an over-healing of the skin, which caused sharp pains on his chest.

Confrontation Clause

In his sole issue, appellant argues that the trial court violated the Confrontation Clause in limiting his counsel's cross-examination of the complainant's cousin because, if allowed, the cross-examination would have revealed "inconsistencies in the [complainant's] story."

During trial, the following exchange occurred between appellant's counsel and the complainant:

[Appellant's counsel]: Okay. Do you remember when the woman from Child Assessment Center was having the interview with you, she asked you if anybody else had ever touched you or if you touched anybody else ever before this incident. Do you recall her asking you that?

[The complainant]: Yes.

[Appellant's counsel]: And what was your answer?

[The complainant]: No.

(Emphasis added).

Later in the trial, while cross-examining the complainant's cousin, appellant attempted to introduce evidence that the complainant and her cousin had had "a physical relationship" with each other before the complainant's interview at the Children's Assessment Center. Appellant asserted that the testimony was admissible "to impeach the [complainant's] statement that nobody has ever touched her." The State objected to the testimony, and the trial court excused the jury while appellant's counsel made an offer of proof, after which appellant argued that the evidence was admissible because it demonstrated the "motive or bias of the alleged victim" to fabricate testimony. See Tex. R. Evid. 412(b)(2)(C). The State objected, and the trial court sustained the State's objection until such time as the parties conducted an in-camera hearing. ⁽⁶⁾ After the trial court heard the testimony of the complainant's cousin, appellant argued that the complainant's motivation in making allegations against appellant was an attempt "to bolster herself for [her cousin]--or for [her cousin's] affection." ⁽⁷⁾ Appellant's counsel also argued that because the complainant's cousin did not get along with appellant, the complainant had a motive to fabricate the allegations to get appellant "out of the house."

The court held that the testimony was irrelevant and inadmissible under Texas Rule of Evidence 412(b)(2)(C), and, even if relevant, it would be inadmissible because of its prejudicial nature. See Tex. R. Evid. 403, 412(b)(2)(C). Appellant then asserted that the trial court's refusal to introduce the testimony of the complainant's cousin violated the Confrontation Clause.

A trial court has discretion to decide the admissibility of evidence, and, absent an abuse of discretion, its rulings will not be overturned. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). To determine whether a trial court has abused its discretion, we consider "whether the [trial] court acted without reference to [the pertinent] guiding rules and principles; that is, whether the court acted arbitrarily or unreasonably." Fox v. State, 115 S.W.3d 550, 558 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd).

The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. As the United States Supreme Court has noted, "'[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974)); see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The Confrontation Clause has been made applicable to the states through the Fourteenth Amendment. ⁽⁸⁾ Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (citing Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068 (1965)).

Cross-examination is a cornerstone of the criminal trial process and, as such, an accused must be given wide latitude to explore a witness's story, to test the witness's perceptions and memory, and to impeach the witness's credibility. Guitierrez v. State, 764 S.W.2d 796, 799 (Tex. Crim. App. 1989). It is well-settled that the right of confrontation may be violated when a trial court improperly limits cross-examination. Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987).

However, a trial court retains wide latitude to impose reasonable limits on cross-examination based on, among other things, concerns about harassment, prejudice, confusion of the issues, the witness's safety, or interrrogation that is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Lopez, 18 S.W.3d at 222. Each Confrontation Clause issue must be considered on a case-by-case basis, and the defendant's right to cross-examine the witness must be weighed against any risk factors associated with the admission of the evidence. Lopez, 18 S.W.3d at 222. "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. In cases involving a charge of aggravated sexual assault, evidence of the prior sexual conduct of the complainant is admissible only when "its probative value outweighs the danger of unfair prejudice." Tex. R. Evid. 412(b)(3).

Here, it is true that the complainant testified that she had never been "touched" before. However, when asking the complainant her question, appellant's trial counsel never defined what she meant by the word "touch." Our review of the sealed in-camera testimony of the complainant's cousin reveals that the so-called "physical relationship" between the complainant and her cousin was minimal and did not include any sexual contact. Contrary to appellant's assertion, the line of cross-examination which appellant's trial counsel sought to employ simply would not have explained any bias or motive for the complainant, who was twelve years old at the time of the offense, to fabricate the explicit details of the sexual assault as described in her direct testimony.

Accordingly, we hold that the trial court did not err in limiting appellant's cross-examination of the complainant's cousin in violation of the Confrontation Clause.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

   Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

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

1.

See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii), (a)(2)(B) (Vernon Supp. 2007).

2.

See U.S. Const. amend. VI.

3.

The complainant's cousin testified that he heard the complainant "screaming . . .[,] Let me out of here . . . ."

4.

The complainant's cousin verified that the complainant immediately told him after returning from appellant's bedroom that appellant had licked the complainant's vagina.

5.

The complainant's cousin testified that he did not remember appellant calling for the complainant to come to appellant's bedroom. However, although he did not remember how long the complainant was in appellant's bedroom, when asked, "[D]id she just leave and come right back," he responded, "No, sir."

6.

The reporter's record of the testimony of the complainant's cousin taken in camera is filed under seal. See Tex. R. Evid. 412(d).

7. Appellant had also argued that the complainant's motivation in making allegations against appellant was to make her cousin "jealous" and "maybe . . . want to make [her cousin] want to do something."

8.

See U.S. Const. amend. XIV.