Leroy McDonald v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00483-CR
LEROY MCDONALD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1217644D
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Leroy McDonald appeals his convictions for three counts of
sexual assault of a child under the age of seventeen.2 In six points, McDonald
argues that the trial court erred by not granting his Batson challenge; by not
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.011(a)(2) (West 2011).
allowing evidence of the complainant’s past sexual history and alleged “prior
false” sexual abuse allegations to be introduced at trial; and by failing to sustain
multiple objections to the State’s closing argument. We will affirm.
II. BACKGROUND
The complainant in this case was fourteen years old in October 2009.
McDonald was her mother’s boyfriend and lived with the complainant, her mother
(“Mother”), complainant’s younger sister (“Sister”), and complainant’s aunt.
Mother is a nurse who works nights. In 2009, doctors diagnosed Sister with
leukemia, and Mother often stayed at Cook Children’s Hospital with Sister during
chemotherapy treatments, leaving the complainant in McDonald’s care.
During this time, with Mother’s attention and concern focused on Sister,
McDonald paid attention to the complainant. He took her to school and picked
her up, and he asked her about her day, her friends, and boys. Specifically, he
asked her if she had ever “done anything” with boys. The complainant testified
that McDonald made her feel important and that she was attracted to him.
One evening when Mother and Sister were not at home, the complainant
removed her clothes and went over to McDonald. According to the complainant,
McDonald digitally penetrated her sexual organ, telling her that he knew it was
wrong and that he would get in trouble if anybody found out. Later, McDonald
engaged in sexual intercourse with the complainant approximately ten times, and
he also had her perform oral sex on him and masturbate in front of him. By the
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complainant’s account, McDonald generally wore condoms during intercourse,
and he told the complainant they needed to keep their activities secret.
The complainant, who admittedly was feeling a great deal of guilt and
wanted the sexual contact to stop, eventually told C.S., a former girlfriend of her
father (“Father”), about the sexual activity between the complainant and
McDonald. The complainant asked C.S. to keep it a secret, but C.S. told Father.
Father called Mother, his ex-wife, told her about the sexual abuse, and instructed
her to call the police.
City of Grand Prairie Police Officer David Greisinger testified at trial.
According to Greisinger, his department assigned him to investigate the
complainant’s allegations in June 2010. During his investigation, he contacted
McDonald by phone. Greisinger said that McDonald told him over the phone that
he was having difficulty getting a ride, so Greisinger gave him his contact
information. Greisinger testified that McDonald called back a few days later but
again did not have a ride, so he could not come to the station for questioning. By
Greisinger’s account, he did not hear from McDonald again until after he was
arrested.
A jury found McDonald guilty of three counts of sexual assault of a child
under the age of seventeen and assessed punishment at two years’ confinement
on counts one and three of the State’s indictment, and ten years’ confinement on
count two, with a recommendation of a suspended sentence on count two. The
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trial court entered judgment accordingly and ordered that the sentences be
served consecutively. This appeal followed.
III. DISCUSSION
A. Batson Challenge
In his first point, McDonald argues that the trial court erred by failing to
grant his Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712 (1986). The State argues that McDonald failed to preserve this point for
our review. We agree with the State.
To preserve an issue for appeal, a party must make a timely and specific
objection. Tex. R. App. P. 33.1(a). For a Batson challenge to be timely, it must
be raised after the parties deliver their lists of strikes and before the court
impanels the jury. Tex. Code Crim. Proc. art. 35.261(a) (West 2006); Cooper v.
State, 791 S.W.2d 80, 81 (Tex. Crim. App. 1990). A jury is considered
impaneled when the members of the jury have been both selected and sworn.
Hill v. State, 827 S.W.2d 860, 864 (Tex. Crim. App.), cert. denied, 506 U.S. 905
(1992). In this case, trial counsel first raised his Batson challenge after the
parties had delivered their lists, the jury had been sworn, and the venirepanel
had been dismissed. Therefore, McDonald failed to preserve this issue for our
review and we overrule his first point.
B. Exclusion of Evidence Regarding Complainant’s Sexual History
In his second point, McDonald argues that the trial court erred by ruling
that evidence of the complainant’s past sexual history and alleged “prior false”
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sexual abuse allegations were inadmissible. The State counters that the trial
court did not abuse its discretion by excluding this evidence because it did not fall
within any of the enumerated exceptions to the “rape shield” rule of evidence.
We agree with the State.
1. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343–44
(Tex. Crim. App. 2009); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on reh’g). As long as the trial court’s ruling falls within the zone
of reasonable disagreement, we will affirm its decision. Moses v. State, 105
S.W.3d 622, 627 (Tex. Crim. App. 2003). We must uphold the trial court’s
decision “[i]f the ruling was correct on any theory of law applicable to the case, in
light of what was before the trial court at the time the ruling was made.” Sauceda
v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); see also Johnson v.
State, 449 S.W.3d 240, 249 (Tex. App.—Fort Worth Oct. 9, 2014, pet. granted)
(op. on en banc reconsideration) (applying abuse-of-discretion standard to trial
court’s decision to admit evidence of sexual assault complainant’s past sexual
behavior).
2. Rape Shield
Rule 412 of the Texas Rules of Evidence, known as the “rape shield” law,
governs the admissibility of a complainant’s prior sexual conduct in a sexual
assault prosecution. Tex. R. Evid. 412; Hale v. State, 140 S.W.3d 381, 396 (Tex.
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App.—Fort Worth 2004, pet. ref’d). Rule 412 precludes evidence of specific
instances of the complainant’s past sexual behavior except under certain limited
circumstances. See Tex. R. Evid. 412(b). Because the complainant in this case
was younger than seventeen years of age at the time the alleged assaults
occurred, consent is not an issue or defense to the State’s allegations. See Tex.
Penal Code Ann. § 22.011(a)(2); Tex. R. Evid. 412(b)(2)(B). Nor is promiscuity a
defense under current law. McGlothlin v. State, 260 S.W.3d 124, 129 (Tex.
App.—Fort Worth 2008, pet. ref’d).
3. Scientific or Medical Evidence
In part of his second point, McDonald argues that the trial court erred by
not allowing him, via granting the State’s motion in limine to prohibit discussing
the complainant’s sexual history, to elicit testimony regarding the complainant’s
sexual history because the State’s expert witness who testified about the
complainant’s sexual assault exam said that the complainant “had only a partial
hymen.”
McDonald argues that this was “scientific or medical evidence” offered by
the State and that he should have been allowed to rebut this evidence under
Rule 412(b)(2)(A). See Tex. R. Evid. 412(b)(2)(A) (stating that evidence of
complainant’s sexual history is admissible if “necessary to rebut or explain
scientific or medical evidence offered by the prosecutor”). But McDonald did not
argue in the trial court that he wanted to elicit testimony, make opening
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argument, or otherwise introduce evidence to rebut “scientific or medical
evidence” intended to be offered by the State. Id.
At trial, McDonald specifically cited Rule 412(b)(2)(C) and argued that he
should be able to make opening arguments, and, ostensibly, elicit testimony at
trial concerning the complainant’s motives or “bias of the alleged victim in several
different ways.” Thus, to the extent that McDonald now brings a complaint that
he should have been able to introduce evidence to rebut or explain scientific or
medical evidence introduced by the State, his argument on appeal does not
comport with his argument at trial and he has forfeited this argument for our
review. See Miller v. State, 333 S.W.3d 352, 356 (Tex. App.—Fort Worth 2010,
pet. ref’d) (citing Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002)
(“[W]hen the objection made in the trial court does not comport with the argument
made on appeal, the appellant fails to preserve the argument for our review.”)).
4. Other Evidence of the Complainant’s Sexual History
In the remainder of his second point, McDonald argues “that the trial court
erred by excluding evidence of the [complainant’s] prior false allegations and
sexual history.” Specifically, McDonald argues that the trial court erred by not
allowing him to admit evidence of the complainant’s motive or bias in making her
allegations against McDonald.
In his brief, McDonald does not coherently separate out which evidence he
complains of not being admitted. Instead, McDonald summarily provides this
court with a recitation of the objections and offers of proof he made at trial, with
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little discussion or citation to authority as to why the evidence should have been
admitted. See Tex. R. App. P. 38.1(i) (requiring brief to contain a clear and
concise argument for the contentions made). The State, however, parses these
objections into identifiable categories of evidence. Thus, in the interest of justice,
we will address the remainder of McDonald’s second point as the State has. See
Burks v. State, 876 S.W.2d 877, 908 (Tex. Crim. App. 1994) (“[W]e find that no
error is preserved. However, in the interests of justice we will address
[petitioner’s] argument.”).
5. Evidence of Complainant’s Pregnancy
At trial, McDonald argued that he should have been allowed to introduce
evidence that the complainant was pregnant by a boy her age when she told C.S.
of McDonald’s alleged sexual assaults. Specifically, McDonald argued that
evidence of her being pregnant would have helped demonstrate that the
complainant had a bias or motive to “take the heat off of herself” with her parents
by alleging she had been the victim of a crime rather than having had
unprotected sex with her boyfriend. But as the State points out, when McDonald
had an opportunity to cross-examine the complainant outside the jury’s presence,
he did not question the complainant about her pregnancy, or her parents’
reaction to it. Furthermore, Mother and Father both testified at trial, and
McDonald did not ask for a hearing outside the jury’s presence to question them
about their reaction to the news of the complainant’s pregnancy. Moreover, the
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record indicates that the complainant never accused McDonald of being the
father of her child.
A trial court does not abuse its discretion by excluding evidence that a
sexual assault complainant is pregnant when evidence that the complainant
accused a defendant of sexual assault out of fear of disclosure of her pregnancy
from another sexual relationship is “either nonexistent or extremely thin.”
Stephens v. State, 978 S.W.2d 728, 734–35 (Tex. App.—Austin 1998, pet. ref’d).
Additionally, under rule 412(b)(2)(C), it was McDonald’s burden to demonstrate
that a definitive and logical link existed between the complainant’s past sexual
conduct and the alleged motive or bias, and he did not do so. See id.
(concluding that trial court properly excluded evidence that complainant was
pregnant with another man’s child when appellant allegedly sexually assaulted
her, reasoning that, among other things, the defendant failed to demonstrate a
definite and logical link between complainant’s past sexual conduct and any
alleged motive and bias); see also Tex. R. Evid. 412(b)(2)(C).
6. Alleged Previous “False” Accusations
McDonald also argued at the pretrial hearing on the State’s motion in
limine that the complainant in this case had made two previous false accusations
of sexual assault. Later, during trial and outside the jury’s presence, McDonald
took the complainant on voir dire and the following exchange occurred:
[Defense Counsel]: Do you recall having -- that you -- you have
actually made outcry allegations against two other people of sexual
assault, one of them was your cousin [C.]?
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[Complainant]: He is not my cousin.
[Defense Counsel]: Your friend [C.], your -- whatever he is, do you
recall that?
[Complainant]: It wasn’t a sexual assault. It was an inappropriate
incident.
[Defense Counsel]: Okay. And that happened before anything you
are alleging happened with [McDonald]?
[Complainant]: Yes, ma’am.
[Defense Counsel]: Excuse me?
[Complainant]: Yes, ma’am.
[Defense Counsel]: And then as far as your dad’s girlfriend’s son,
you allege that he sexually assaulted you in your anus?
[Complainant]: No, ma’am. Actually, that was my sister he -- yes,
ma’am. I just remember what happened, and I was in the same
room at the time that it happened.
[Defense Counsel]: Okay. And you know that PJ, you used to claim
that PJ would hump on you in a sexual manner?
[Complainant]: I can’t answer that.
[Defense Counsel]: You can’t answer that?
[Complainant]: No, ma’am.
[Defense Counsel]. Why?
[Complainant]: Because I don’t remember if I said that exactly. So I
am not going to say that I did.
[Defense Counsel]: Okay. The point is that you have accused at
least two other people of being sexually inappropriate with you, [C.]
and PJ?
[Complainant]. I guess you could say that.
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As the State points out, McDonald did not introduce evidence that these alleged
allegations were false, nor did he introduce evidence to contradict the
complainant’s testimony.
Evidence that a child has made accusations of sexual abuse against
another is not relevant or admissible in the absence of evidence that those other
accusations were false. See Hughes v. State, 850 S.W.2d 260, 262–63 (Tex.
App.—Fort Worth 1993, pet. ref’d), (reasoning that without a showing of falsity,
such evidence does not show an interest, bias, or motive to be untruthful); see
also Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000) (holding in
aggravated sexual assault prosecution, trial court did nor err by excluding
evidence that the complainant had previously accused his mother of physical
abuse when no evidence was offered to show that the earlier accusation was
false). Because McDonald did not show that any prior allegations of assaultive
sexual conduct made by the complainant in this case were false, the trial court
did not abuse its discretion by excluding such evidence. See Lopez, 18 S.W.3d
at 222.
7. Other Evidence of Complainant’s Sexual History
McDonald also seems to argue that the trial court erred by prohibiting the
testimony of two CPS workers who, according to McDonald’s second offer of
proof, would have testified about “sex toys, [] videos, and [the complainant]
having had sex with other . . . boys her age.”
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We agree with the State that this is precisely the type of evidence that
“rape shield” laws are designed to omit from cases involving sexual assault. See
Allen v. State, 700 S.W.2d 924, 932 (Tex. Crim. App. 1985) (“Courts have a
responsibility to protect the victim from questions not within the proper bounds of
cross-examination and which are designed only to harass, annoy[,] or
humiliate.”). Furthermore, McDonald did not establish a link between the
complainant’s alleged possession of sex toys and videos, and alleged sexual
relationships with boys her own age, and a motive or bias to lie about
McDonald’s alleged sexual assaults of her. See Ladesic v. State, 2007 WL
2963755, at *5 (Tex. App.—Fort Worth Oct. 11, 2007, no pet.) (not designated for
publication) (holding that defendant did not demonstrate a definite and logical link
between notes describing complainant’s sexual acts with other males and
alleged motive or bias). We overrule McDonald’s second point in its entirety.
C. Rule 412 Hearing
In his third point, McDonald argues that the trial court improperly failed to
hold the in camera hearing required by Texas Rule of Evidence 412(c). See Tex.
R. Evid. 412(c). This rule provides that when a defendant proposes to introduce
evidence concerning specific instances of the complainant’s past sexual behavior
and has informed the court out of hearing of the jury of his intent to do so, “[t]he
court must then conduct an in camera hearing, recorded by a court reporter, to
determine whether the proposed evidence is admissible.” Id. “In camera
hearing” denotes a judicial session held either in the judge’s chambers or in the
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courtroom with all spectators excluded. See LaPointe v. State, 166 S.W.3d 287,
293 (Tex. App.—Austin 2005, pet. dism’d). The purpose of the in camera
hearing is to ensure that the court “can first hear and evaluate the probity of
evidence of an alleged victim’s sexual history in a private setting before allowing
that sensitive information to be interjected into the public domain.” Id. at 295.
The record plainly refutes McDonald’s contention that the trial court did not
conduct a proper Rule 412 hearing. In fact, the trial court held two hearings that
complied with Rule 412. First, prior to trial and outside the presence of the jury,
the trial court allowed McDonald to make an offer of proof regarding his desired
opening arguments. McDonald stated in his offer that he would have made an
opening argument that the complainant in this case had a motive or bias in
alleging McDonald had sexually assaulted her. McDonald’s offer included his
statements that the complainant had previously made false allegations of sexual
assault, had a desire to cover up her pregnancy from a boy her age by making
these allegations, and had taken sexually explicit videos of herself on her
cellphone.
Again after the State closed and outside the jury’s presence, the trial court
conducted another hearing where the trial court permitted McDonald to make an
additional offer of proof. In this offer, McDonald said that he desired to call two
witnesses to testify that the complainant had had sex with boys her own age and
was found with sex toys and videos. He argued that this testimony would be
presented to demonstrate that the complainant had a motive or bias in accusing
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McDonald of the alleged sexual assault. McDonald represented that these two
witnesses had already been sworn but that he wanted to forgo calling the
witnesses if the trial court would not allow their testimony, and McDonald asked
for the State to agree to his offer of proof, which the State did.
In both instances, the trial court considered the evidence and made a
specific ruling that the testimony would be inadmissible under rule 412. These
types of hearing are the very type of hearing contemplated by rule 412(c). See
Mbata v. State, No. 03-12-00215-CR, 2014 WL 1285756, at *2 (Tex. App.—
Austin Mar. 26, 2014, pet. ref’d) (not designated for publication) (holding that trial
court properly conducted in camera hearing as required by rule 412 under almost
identical circumstances). We overrule McDonald’s third point.
D. Optional Completeness
In his fourth point, McDonald argues that the trial court erred by excluding
his videotaped statement made to Greisinger after he was arrested. McDonald
argues that the videotaped statement should have come in under Texas Rule of
Evidence 107 and because the statement was necessary to explain or contradict
acts or declarations first offered by the State. See Tex. R. Evid. 107. We
disagree.
Rule 107 is properly invoked when an opposing party reads part, but not
all, of a statement into evidence. Livingston v. State, 739 S.W.2d 311, 331–32
(Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988); Araiza v. State, 929
S.W.2d 552, 555–56 (Tex. App.—San Antonio 1996, pet. ref’d). In such an
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instance, the remainder of the statement “on the same subject” is admissible to
“reduce the possibility of the fact finder receiving a false impression.” Livingston,
739 S.W.2d at 331–32; Araiza, 929 S.W.2d at 555–56; see also Roman v. State,
503 S.W.2d 252, 253 (Tex. Crim. App. 1974).
Here, McDonald points to Greisinger’s testimony wherein he states that he
had contacted McDonald by phone and asked him to come to the police station
for questioning. McDonald told Greisinger that he was having difficulty finding a
ride. Greisinger testified that McDonald did not give a statement regarding the
alleged sexual assault over the phone and that he did not give a statement until
after he was arrested. Thus, the State did not introduce any part of McDonald’s
videotaped statement through Greisinger’s testimony. Therefore, there was no
need to reduce the possibility of the jury receiving a false impression. Livingston,
739 S.W.2d at 331–32.
Further, Greisinger’s testimony does not meet the exception to the
exclusion of self-serving declarations because the “statement [was not]
necessary to explain or contradict acts or declarations first offered by the State.”
Allridge v. State, 762 S.W.2d 146, 153 (Tex. Crim. App. 1988), cert. denied, 489
U.S. 1040 (1989).
McDonald’s argument is that because Greisinger testified that McDonald
did not speak to him over the phone, this testimony contradicts the fact that
McDonald did eventually give the videotaped statement. But contrary to
McDonald’s assertion, Greisinger’s testimony was that McDonald did not give
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him a statement regarding the alleged complaint until after he was arrested.
Thus, McDonald’s videotaped statement was not necessary to explain or
contradict Greisinger’s testimony—his testimony was consistent with what
McDonald now alleges on appeal. We overrule McDonald’s fourth point.
E. Objections to State’s Closing Argument
In his fifth and sixth points, McDonald argues that the trial court erred by
“failing to sustain” his objections to the State’s “improper argument at guilt-
innocence.” The State argues that in three of the instances complained of, the
trial court sustained McDonald’s objections and that in the fourth instance,
McDonald failed to obtain an adverse ruling, thus forfeiting the fourth objection
for our review. We agree with the State.
From our review of the record, it is evident that in three of the instances
complained of, the trial court sustained McDonald’s arguments. In two of them,
the trial court instructed the jury to disregard. See Bonner v. State, No. 02-10-
00059-CR, 2011 WL 3795245, at *7 (Tex. App.—Fort Worth Aug. 25, 2011, no
pet.) (mem. op, not designated for publication) (“[T]he trial court promptly
instructed the jury to disregard the complained-of statement, and we presume
that the jury followed that instruction.”). And in the fourth instance, as the State
argues, McDonald failed to obtain an adverse ruling. See Geuder v. State, 115
S.W.3d 11, 13 (Tex. Crim. App. 2003) (holding that an objection must be timely;
specific; pursued to an adverse ruling; and with two exceptions,
contemporaneous). We overrule McDonald’s fifth and sixth points.
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IV. CONCLUSION
Having overruled all six of McDonald’s points on appeal, we affirm the trial
court’s judgments.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 14, 2015
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