James Lee Vanhoose v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00529-CR
NO. 03-17-00530-CR
James Lee Vanhoose, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NOS. CR2015-587 & CR2015-586, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
In trial court cause number CR2015-586, a jury convicted appellant James Lee
Vanhoose of the offenses of continuous sexual abuse of a child and indecency with a child by
contact and assessed punishment at 50 and 20 years’ imprisonment, respectively, for each offense.
See Tex. Penal Code §§ 21.02, 21.11(a)(1). In trial court cause number CR2015-587, the jury
convicted Vanhoose of two counts of the offense of obstruction or retaliation and assessed
punishment at two years’ imprisonment for each count.1 See id. § 36.06(c). On appeal, Vanhoose
asserts that the district court abused its discretion in excluding defensive evidence related to the
sexual abuse allegations.2 We will affirm the judgments of conviction.
1
The causes were consolidated in the court below for trial purposes.
2
In his brief, Vanhoose concedes that his issue on appeal “affect[s] only the sexual [abuse]
accusations.” Thus, he does not challenge his convictions in CR2015-587.
BACKGROUND
The complainant in the case, C.L., was Vanhoose’s stepdaughter. C.L., who was
fourteen years old at the time of trial, testified that when she was seven or eight years old, Vanhoose
began sexually abusing her. The abuse, which occurred over a period of approximately five years,
included multiple incidents of Vanhoose penetrating C.L.’s sexual organ with his sexual organ,
touching her breasts and genitals, and performing oral sex on her. In 2015, when C.L. was twelve
years old, she told her best friend, E.M., E.M.’s sister, and E.M.’s mother that Vanhoose was
sexually abusing her. Shortly thereafter, the abuse was reported to Child Protective Services (CPS).
C.L. was subsequently interviewed by Megan Smith, a forensic interviewer with the Children’s
Advocacy Center of Comal County, and she provided Smith with a detailed description of the abuse.
C.L. testified that, shortly after CPS became involved in the case, Vanhoose “apologized for
everything that he had done to me in previous years and he said he never meant to hurt me, never
meant for it to be this way.” Vanhoose subsequently left Texas and was later arrested in Arizona.
Following his arrest, Vanhoose provided a statement to the police in which he denied the abuse
but claimed that C.L. would sleep in his bed on multiple occasions and “grind on him” while he
slept. This “grinding,” as described by Vanhoose, was sexual in nature and included an incident in
which C.L. was not wearing underwear and was on top of Vanhoose while his sexual organ was
exposed to her. Vanhoose claimed that he was “drunk” when these incidents occurred.
After considering this and other evidence, which we discuss in more detail below,
the jury convicted Vanhoose of the charged offenses and assessed punishment as noted above.
The district court rendered judgment on the jury’s verdicts. These appeals followed.
2
DISCUSSION
During trial, the district court excluded evidence that Vanhoose argued would be
favorable to his defense, specifically: (1) testimony tending to show that Vanhoose had prohibited
C.L. from visiting the homes of her best friend, E.M., and an adult neighbor, Daniel Rios; (2) text
messages exchanged between C.L. and Rios; and (3) text messages that were exchanged between
C.L. and her friends. In his sole issue on appeal, Vanhoose asserts that the district court abused its
discretion in excluding this evidence.
Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Sandoval v. State,
409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). An abuse of discretion does not occur
unless the trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and
principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court’s ruling
unless it “falls outside the zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908
(Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 (“Before a reviewing court may reverse the
trial court’s decision, ‘it must find the trial court’s ruling was so clearly wrong as to lie outside the
zone within which reasonable people might disagree.’” (quoting Taylor v. State, 268 S.W.3d 571,
579 (Tex. Crim. App. 2008))). An evidentiary ruling will be upheld if it is correct on any theory of
law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.
3
Evidence of restrictions that Vanhoose had placed on C.L.
C.L.’s best friend, E.M., and her best friend’s sister, M.M., lived in the same
neighborhood as C.L. Defense counsel presented evidence tending to show that C.L.’s mother did
not want C.L. spending time with the girls or their family, and counsel attempted to present similar
evidence tending to show that Vanhoose had forbidden C.L. from visiting E.M.’s home and also the
home of Daniel Rios, an adult neighbor. However, when defense counsel attempted to ask C.L.,
“What was [Vanhoose’s] opinion of you going over” to the girls’ house, the State objected on the
basis of hearsay. In response, defense counsel asserted that the testimony was not offered to prove
the truth of the matter asserted but to show “the relationship between [C.L.] and [Vanhoose] at
the time all of this was occurring.” The district court disagreed, explaining to defense counsel,
“That may be the intent as to where the question is intended to go and what it’s supposed to
represent, but it’s still being offered for the purpose of him telling her not to go, so it’s the truth of
the matter being asserted by the statement.” The district court then sustained the State’s objection
to the evidence. Later, defense counsel also attempted to ask C.L., “Did [Vanhoose] ever tell you
to stay away from [Rios’s] house?” The State again objected on the basis of hearsay, and the district
court again sustained the objection.
We cannot conclude that the exclusion of this testimony as hearsay was an abuse of
discretion. Hearsay is a statement, other than one made by the declarant while testifying at trial, that
is offered to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d). “Matter
asserted” means “any matter a declarant explicitly asserts” and “any matter implied by a statement,
4
if the probative value of the statement as offered flows from the declarant’s belief about the matter.”
Tex. R. Evid. 801(c).
Here, the “matter asserted” by the defense was that Vanhoose had forbidden C.L.
from visiting E.M. and Rios. Defense counsel was attempting to elicit testimony that Vanhoose
had made statements to that effect. Thus, it would not have been outside the zone of reasonable
disagreement for the district court to conclude that C.L.’s testimony was being offered to prove the
truth of the matter asserted—that Vanhoose had forbidden C.L. from visiting E.M. and Rios. For
that reason, the district court did not abuse its discretion in excluding the testimony as hearsay.3 See
Tex. R. Evid. 801, 802.
Text messages exchanged between C.L. and Rios
Vanhoose also offered into evidence Defense Exhibit 2, a series of text messages that
were exchanged between C.L. and Rios, her adult next-door neighbor, in March and April 2015,
shortly before C.L. made her outcry. Vanhoose claimed that the texts were necessary for his defense
and admissible to show that there might have been “a possible alternate instigator or offender” in
3
For the first time on appeal, Vanhoose asserts that even if C.L.’s testimony was
inadmissible hearsay, its exclusion violated his constitutional rights to present a complete defense
and confront the witnesses against him. See U.S. Const. amend. VI; Hammer v. State, 296 S.W.3d 555,
561 (Tex. Crim. App. 2009). However, Vanhoose failed to raise this complaint in the court below.
The Court of Criminal Appeals has held that to preserve error on constitutional grounds, the
defendant must make a sufficiently specific objection on that basis so that the trial court has an
opportunity to consider that objection in its ruling. See Anderson v. State, 301 S.W.3d 276, 280
(Tex. Crim. App. 2009); Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005). Because
Vanhoose failed to give the district court that opportunity, he has not preserved that complaint
for our review. See Reyna, 168 S.W.3d at 179; see also Tex. R. App. P. 33.1(a); Alford v. State,
495 S.W.3d 63, 66 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
5
the case and that the police had mistakenly made Vanhoose “the center of the investigation from
the very beginning,” without conducting “a serious investigation of alternate suspects.” Vanhoose
further argued that the texts were admissible to show a possible motive for C.L. to “make up a story”
or “fabricate things” against her stepfather. The State argued in response that the evidence was more
prejudicial than probative. See Tex. R. Evid. 403. The district court agreed and excluded the
evidence on that basis.
Rule 403 provides that the trial court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” Tex. R. Evid. 403. “In weighing probative value against Rule 403 counterfactors, courts
must be sensitive to the special problems presented by ‘alternative perpetrator’ evidence.” Wiley v.
State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). “Although a defendant obviously has a right
to attempt to establish his innocence by showing that someone else committed the crime, he still
must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on
its own or in combination with other evidence in the record, to show a nexus between the crime
charged and the alleged ‘alternative perpetrator.’” Id. “It is not sufficient for a defendant merely to
offer up unsupported speculation that another person may have done the crime.” Id. at 407. “Such
speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its
findings based on emotion or prejudice.” Id.In this case, it would not have been outside the zone of reasonable disagreement for
the district court to find that the balance of Rule 403 factors weighed in favor of excluding the
6
evidence. The text messages were unquestionably inappropriate and disturbing. In them, Rios
discusses his romantic feelings toward C.L., calls her names such as “baby” and “my love,” and
discusses his desire to “kiss” and “hug” her. In one text, Rios even mentions “holding” C.L.
However, none of the messages tend to show that Rios had sexually assaulted or engaged in sexual
contact with C.L. at any point in time. Also, even if such an act could be inferred from the messages,
Vanhoose was accused of sexually abusing C.L. on multiple occasions over a period of several years.
There is no indication in the texts that Rios could have been the perpetrator of the abuse alleged in
the indictment. In both her trial testimony and in her interview with CPS, C.L. had identified
Vanhoose as the sole perpetrator of that abuse, and there is no contrary evidence in the record that,
when combined with the text messages, could support a finding that an alternative perpetrator was
responsible for the offenses that C.L. had accused Vanhoose of committing. See, e.g., Ex parte
Huddlestun, 505 S.W.3d 646, 660–61 (Tex. App.—Texarkana 2016, pet. ref’d) (explaining that
“the alternative perpetrator defense typically arises in ‘who done it’ cases where the complaining
witness does not know [her] attacker” or is “unsure” of assailant’s identity, not in cases where
victim has pre-existing relationship with assailant); Martinez v. State, 212 S.W.3d 411, 424 (Tex.
App.—Austin 2006, pet. ref’d) (concluding that trial court did not abuse its discretion in excluding
evidence that victim’s brother might have inappropriately touched and hugged victim because any
nexus between brother’s actions and charged offenses was “both meager and speculative”). In the
absence of any evidence showing the required nexus between Rios and the specific crimes charged,
the district court would not have abused its discretion in finding that the probative value of the text
messages was outweighed by their prejudicial effect. Because of the disturbing nature of the texts,
7
the district court could have reasonably found that they would have a strong tendency to distract
the jury from the central issue before it—whether Vanhoose had sexually abused C.L. as she had
claimed—and shift the jury’s focus to Rios and his relationship with C.L., even though the evidence
had no tendency to connect Rios to the charged offenses.
Finally, to the extent that the text messages might have had some tendency to show
that C.L. had a motive to fabricate her allegations against Vanhoose, the district court would not
have abused its discretion in finding that its probative value was substantially outweighed by unfair
prejudice under Rule 403. As the district court observed, the text messages were largely “one-sided”
conversations written by Rios to C.L. C.L. did not respond to many of Rios’s texts, and when she
did, her replies tended to be brief and vague in nature and thus conveyed little, if any, information
regarding her state of mind and motivations around the time of her outcry. For these reasons, the
district court did not abuse its discretion in refusing to admit the text messages, and the exclusion
of such “marginally relevant” and “highly speculative” evidence did not violate Vanhoose’s
constitutional right to present his defense. See Wiley, 74 S.W.3d at 407–08; Huddlestun, 505 S.W.3d
at 661–62; Ruiz v. State, 272 S.W.3d 819, 830 (Tex. App.—Austin 2008, no pet.); Martinez,
212 S.W.3d at 424; Michaelwicz v. State, 186 S.W.3d 601, 616–19 (Tex. App.—Austin 2006,
pet. ref’d).
Text messages exchanged between C.L. and her friends
During trial, CPS witnesses testified that when they spoke with C.L., she was
“demure,” “withdrawn,” “quiet,” and “shy.” Megan Smith, the forensic interviewer, also testified
that C.L. was uncomfortable discussing or describing sexual anatomy and “had a hard time even
8
saying the word porno.” Vanhoose characterized this and other testimony as an attempt by the State
to present a “false impression” of C.L. as “sexually naive.” In an effort to counter that portrayal,
Vanhoose offered into evidence Defense Exhibit 1, a series of text messages exchanged between
C.L. and her friends and acquaintances, many of which discussed matters of a sexual nature. The
State objected, arguing that the texts were inadmissible evidence of the victim’s past sexual
behavior, and the district court sustained the State’s objection.
Specific instances of a victim’s past sexual behavior is generally inadmissible at trial.
See Tex. R. Evid. 412(a)(2). It is admissible only if the probative value of the evidence outweighs
the danger of unfair prejudice and the evidence: (1) is necessary to rebut or explain scientific or
medical evidence offered by the prosecutor; (2) concerns past sexual behavior with the defendant
and is offered by the defendant to prove consent; (3) relates to the victim’s motive or bias; (4) is an
admissible criminal conviction under Rule 609; or (5) is constitutionally required to be admitted.
Tex. R. Evid. 412(b).
Vanhoose argued at trial that the evidence was constitutionally required to be
admitted because the exclusion of evidence showing “an alternative basis for a child victim’s
knowledge of sexual matters” implicates both the Sixth Amendment right of confrontation and
the Fourteenth Amendment due process right to a fair trial. See U.S. Const. amends. VI, XIV;
Hale v. State, 140 S.W.3d 381, 396 (Tex. App.—Fort Worth 2004, pet. ref’d). “The Constitution
requires, however, only the introduction of otherwise relevant and admissible evidence.” Hale,
140 S.W.3d at 396 (citing United States v. Nixon, 418 U.S. 683, 711 (1974)). “Thus, before
evidence of an alleged victim’s sexual behavior may be admitted under rule 412(b)(2)(E), the
9
defendant must first establish the relevancy of the evidence to a material issue in the case.” Id. “If
the evidence is not relevant, it is not admissible.” Id. (citing Tex. R. Evid. 402). “To show the
relevancy of a child victim’s prior sexual conduct as an alternate source of sexual knowledge, the
defendant must establish that the prior acts clearly occurred and that the acts so closely resembled
those of the present case that they could explain the victim’s knowledge about the sexual matters
in question.” Id.Here, the district court would not have abused its discretion in finding that neither
requirement was satisfied. The text messages consisted of sex talk between C.L. and a boy, attempts
by that boy to exchange sexual photos with C.L., and C.L.’s repeated rejection of those requests.
There were also discussions between C.L. and others referring to drug use, sexual history, and
claims by C.L. that she had been physically (not sexually) abused in the past. However, there is
nothing in the record to establish that the sexual acts described in the texts “clearly occurred” or that
they “so closely resembled those of the present case that they could explain [C.L.’s] knowledge
about the sexual matters in question.” Thus, it would not be outside the zone of reasonable
disagreement for the district court to find that the text messages were not relevant to a material issue
in the case. See Hernandez v. State, 327 S.W.3d 200, 206 (Tex. App.—San Antonio 2010, pet.
ref’d); Hale, 140 S.W.3d at 396. Moreover, to the extent that the text messages might have had
some marginal relevance to the issue of C.L.’s sexual knowledge, the district court would not have
abused its discretion in finding that the probative value of the evidence was outweighed by the
danger of unfair prejudice. The texts contained numerous references to various extraneous matters,
both sexual and non-sexual in nature, that had nothing to do with the facts of the case but could
10
serve only to unfairly prejudice the jury against C.L. and distract the jury from its central task of
determining the guilt or innocence of Vanhoose. See Robisheaux v. State, 483 S.W.3d 205, 224–25
(Tex. App.—Austin 2016, pet. ref’d). For these reasons, we cannot conclude that the district court
abused its discretion in excluding the text messages.
CONCLUSION
Having found no abuse of discretion in the district court’s evidentiary rulings, we
overrule Vanhoose’s sole issue on appeal. We affirm the district court’s judgments of conviction.
___________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Kelly
Affirmed
Filed: February 27, 2019
Do Not Publish
11