Smallwood, Thomas Jefferson Jr.

PD-1288-15
PD-1288-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/28/2015 4:22:05 PM
Accepted 9/30/2015 2:30:25 PM
IN TITE ABEL ACOSTA
CLERK
COURT OF CIITMINAL APPEALS OF TEXAS
THOMAS SMALLWOOD, JR. S
APPELLANT s
$
V. s No.
s
$
THE STATE OF TEXAS, $
APPELLEE $
s$s
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
$s$
MICHAEI- LOGAN WARE
300 Burnett Street
Suite 160
Fort WorthoTX 76102
Telephone: 817/ 338 - 4100
September 30, 2015 Telecopier: 817/ 698- 0000
Texas State Bar Number:20864200
ATTORNEY FOR APPELLANT
IDIIN TI TIES O F I'AILTI ES AN_D--C*8!T{S]'L,
Ap¡rellant: 'l"homas Jefferson Srnallwood Jr.
Represented by: Michael Logan War.e (on appeal)
300 Burnett Street
Suite 160
Folt Worth, TXl6102
Appellee: The State of Texas
Represented by: Sharen Wilson, Criminal Distríct Aftorney
Debra A. Windsor, Assistant District Atton.rey (or.r
appeal)
401 W. Belknap
Fort Worth, TX16196
Trial Judge: The Honorable George William Gallagher-
Presiding Judge
396th Judicial District Court
Tarrant County, Texas
TAIìI,E OF CONTENTS
PAGE
INDEXOFAUTI{ORITIES. ..... iv
STATEMENT IIËGARDING ORAI- ARGUMENT I
STATEMENT OI" THE CASE . I
STA]'EMENT OIì PROCEDURAI- I]ISTORY 2
GROUNDS FOR REVIEV/ 2
ARGUMENT SUPPORTING GROUNDS FOR REVIEW J
CONCLUSION 21
CERTIFICATE OF COMPLIANCE 22
CERTIFICATE OF SERVICE 22
COURT OF APPEALS' OPINION (April 30, 20l s). . .. . APPENDTX A
COURT OF APPEALS ORDER DENYING MOTION FOR REHEARING
6,2015
(August .. ...
APPENDIX
COURT OF APPEALS OPINION SUBSTITUTING THI] APRIL 30,2015
OPINION (August 6,2015 . ...
APPENDIX C
COURT OF APPEALS ORDER DENYING MOTION FOIT RIìIIEARING
(August28,2015 .... AppENDtX D
INDEX OF AIJTHORITIES
Cases
Ansari v. State, 20l 5 Tex.App.LEXIS Sl g2 (Tex.App.-San Antoni o 20l 5) . . . . . 5
Anguish v. State,99l S.W.2d 883 (Tex.App.-llouston [1,t Dist]
1999, pet. refd) . .. .. 19_20
Blount v. State, 542 S.W.2d 164 (Tex.Crim .App. 1976) . . 17_20
Devínev. Srate,786 S.W.2d 268 (Tex.Crim.App. 1989) .. .. . 20
F'rancisv.StaÍe,36S.W.3d121(Tex.Cr.im.App.2000) ...... 5
I{entandez v. Sta t e, 20 I 3 Tex.App.LEXIS 929 I ('Iex.App. -Waco,
Ju1y25,2013)2000) .... t9
Jacksonv. Vírgínia,443 U.S.307 (1979) .......... 5
McDowell v. State,235 S.W.3d 294 (Tex.App.-Texarkana 2007,no pet.) . . . . . 20
Potíer v. Sratu, 2012 Tex.App.LEXlS 9473 (Tex.App.-Houston [1't Dist],
Nov. 15,2012,pet. dismissed(unpublished) .......20
Ramirez v. StaÍe,336 S.W.3d 846 (Tex.App.-Amarillo 2011,per..ref d) . . . . tS_tS
Smithv. State,949 S.W.2d333 (Tex.App.-Tyler 1996,pet.ref d) . ... .......20
Codes. Articles" Other
BlacklawDictionary,4'r'Edition .........17
TexasPenal Codeg22.021(a)(Z)(a)(ii) .... t5
Texas Penal Code 622.02l (aX2XAXiv) ... . 15
STAI.II]MTNTI-T-EGALì.D_LNGORAT,AIIGUMENT
'I'his case involves
cotnplex issues of fact and law.'l'he undersigned counsel believes
fhis CouI't's understancling of the relevant làctual and legal issues could be substantially
enhanced by oral argurnent. Appellanf requests oral argument.
STATEMENT OF THE CASE
Appellant pled not guilty to all counts of an eighteen count indictment, alleging
sexual assault and aggravated sexual assault, on various dates against the same
complainant.r Prior to jury selection, the State waived nine of the eighteen counts.
The remaining nine counts consisted ofthlee counts ofsexual assault and six counts
of aggravated sexual assault. The six aggravated counts alleged six discrete sexual
assaults purpolting to have occurred on various dates from August 2012 through
Novernber 2012. The agglavating eìernent of each of the six discrete aggravated
counts is alleged in identical statutory language, threatening to cause imrninent "death
or serious bodily".
The three discrete non-aggravated counts are alleged to have each occurred in
the niddle of tl.ris tirne period, in October 2012.
On Octobe¡ 24,2013, the jury convicted Appellant on all nine discr.ete counts
rThis was, in
fact, a reindictment. l'he original indictruent was fil'teen counts and contained no
"aggravating" language. Iloth indictments contained one counl ofindecency with a child which
was waived by the state (Clerk's Tr. at pp. 6-9 &. 12-14).
On October' 25,2013, the tlial couú sentenced Appellant to six lìfìy-year sentences,
on the aggravated counts, and three twenty-year sentences on the non-aggravated
counts. All sentences to lun concul.rently. Appellant tirnely appealed.
STATEMENT OF PROCEDURAL IIISTORY
ln an opinion, designated forpublication, handed down on April 30, 2015, the
Fort vy'orth court of Appeals affirmed Appellant's convictions on all nine counts.
Smallwood, Jr. y. State,20l5 Tex.App.LEXIS 4457 (Tex.App.ìior1 Worlh April 30,
2015). Appellanl liled a timely Motion for Rehearing. Or.r August 6,2015,the Court
of Appeals withdlew its original opinion and issued a new published opinion, again
affilrring all nine of Appellant's convictions. Smallwood, Jr. v. State, 2015
Tex.App.LEXIS 825 3 (Tex.App.Fort'ùy'oúh August 6, 20 1 5).
Appellant's tirnely Motion for.Rehearing on the Court's second published
opinion was denied on August 28,2015. This petition was then timely filed with the
Clerk of the Court of Criminal Appeals, to wit on September 28,Z0lS.
GROUND FOR REVIE\il
GROUND FOR REVIEW
THE COURT OF APPEALS REVERSIBLY ERRED IN I]OLDING
THAT THE EVIDENCE WAS LEGALLY SUFF'ICIENT TO
SUPPOIìT.'I.HIT ALLEGËD AGGIIAVATING ELEMENT IN EACIT
OF THE SIX DISCRETE AGGRAVATED SEXUAL ASSAULT
COUNTS.
REASONS F'OIì GRAN'I'ING IìEVIEW
In holding that the evidence was legally sufficient to suppod the alleged
aggravating elernent in each of the six disclete aggravated sexual assault counts, the
court of Appeals decided on irnpoftant question of state law in a way that conflicts
with the applicable decisions ofthe courl of criminal Appeals and the Suplerne court
of the United States as well as the Texas and the United States Constitution.
ARGUMENT SUPPORTING GTTOUND FOR IìEVIEW
Appellant was indicted on six discr.ete counts of aggravated sexual assault
alleged to have been committed against the same fifleen year old complainant
(Appellant's step-daughter). The indictment alleged specific "on or about" dates for
each of the six disclete counts. The lÌrst date alleged was in August 2012 andfhelast
was in November 2012. The indictment also alleged three discrete unaggravated
sexual assault counts, against the same complainant, which were alleged to have
occurred in the middle of this time period, in October 2012.
The six discrete aggravated counts each contained identical aggravating
language, which read as follows:
And the defendant by acts ol'words placed Alicia Carpenter in fear.that
death or selious bodily injury would be imminently inflicted or.r Alioia
Carpentel or Krista Carpenter.
(Clerk's'l'r. at pp. 6-B).
l'-irst, the State's evidence was legally insuffìcient to connect any of the
purported thleats attributed to Appellant to any of the six discrete counts of
aggravated sexual assault alleged in the indictr¡ent. "fhe court ofAppeals erroneously
analyzed,this evidentiary deficiency in its legal sufficiency analysis on rehealing by
stating:
'I"he unique facts
of this case lequile us to look at the threats as
continuing duling the comtnission of the assaults ovel. an extended
period of time.
Slip Op. on Rehearing Below at I 1.
The Couft below, therefore, erloneously deemed it unnecessary to analyze fhe
six aggravated counts as six disclete crirnes in which each element, including the
aggravating element, must be pl'oven beyond a reasonable doubt, which the State
clearly failed to do. Rather, in order to find the evidence legally sufficient, the Court
below elroneously analyzed the evidence as ifthe indictment alleged a single criminal
episode, that continued "over an extended period of tirne," rather than six separate,
discrete crirnes, each one of which has essential statutoly elements, each element of
which must be proven beyond a reasonable doubt. The lower court's analysis, in
essence, deletes the te¡m "imrninently inllicted" f¡oln the indictrnent and thc statute
by detennining that those words have no significance. The lower court's analysis also,
in el.ítct, adds the term "satne crirnir.ral episode" where the legislature dicl not itrclucle
ir.
The legal sufficiency standard of.eview is highly defelencial and is viewed in
the light most favorable to the State. Jackson v. Virginia,443 U.S. 307 (lg7g).
l{owever, the State's evidence, in order to be legally sufficient, must not only rneet
the lelevant statute, it rnust be assigned to the specific allegations made in the
indictrnent. lf the indictmenl alleges multiple discrete offenses, the evidence must be
assigned to specific discrete counts, not simply to the "criminal episode.,, The
unanirnity cases make it clear that he proof of the elernents in a multi-count
indictment must be proven as to each individual discrete count. "An unanimousjury
verdict ensures that the jury agrees on factual elements underlying an offense-it is
nrore than lnere agreement on a violation of a statute." Francis v. State,36 S.W.3d
121, 125 (Tex.Crirn.App. 2000). See. also, Ansari v. State,20l5 Tex.App. LEXIS
8192 (Tex.App.-San Antonio 2015):
In Texas, the jury must "reach a unanilnous verdict about the specific
crime that the defendant comrnitted." Casio,353 S.W.3d at 771. This
rneans "the jury must agree upou a single and discrete incident that
would constitute the commission of the offense alleged."
Ansari, supra. at 8792.
The State's evidence is legally insufficient if they do not prove every element
ol'each cliscretc count, or ifthey p¡rove an offense different than the otie alleged in the
indictrnent, even ifthe oflense proven violates the sarxe statutoly plovision. Gollihar
v. State,46 S.W.3d 243 (Tex.Cr.im.App. 2001).
Although each ofthe nine counts in the case-at-bar. alleges a padicular "on or
about" date, it is clear frorn the State's evidence presented af trial, that the various
dates alleged in the indictrnent were chosen randomly and arbitrarily. V/ith the
exception of counts I and 2, the complainant's testimony describing the events is
extlemely sketchy and does not colrespond to any specifìc dates alleged. The State
does not have to prove the exact date an offense occurred, but in this case, the State's
evidence ofthe alleged aggravating element's in each of the six disclete aggravated
counts, does not correspond to any of the particular, discrete aggravated counts
alleged in the indictment. Therefole, the State, among other things, did not prove the
aggravating element in any of the discrete agglavated counts alleged, and the courl
below used the wtong analysis, by failing to tleat the counts as disc¡ete counts. The
purported threat that elevated each ofthe six aggravated counts had to be proven as
to each discrete count, not, as stated by the coult ofappeals "as continuing during the
cornmission of the assaults over ân extended peliod of time."
Tl.re State's key witness was their alleged cornplainant. ln lier testimony, she
described in some detail the first time she agleed to have sex with Appellant.
Although it is not clear, it is assun-red tl.rat the State intended the jury to infer that this
description applied to count(s) 1 and/or 2 of the indictment which wele alleged to
have occurred "on or about" August I0, 2012, the earliest date alleged in the
indictrnent. Accolding to the complainant, and viewing the evidence most favorably
to the State, these two disclete offenses (vaginal and oral assaults) took place at
Appellant's house in Grand Prairie, while complainant's twin brothers were asleep
in anothelroom. (R.Vol. 5 at 137).
The complainant described counts I andlor 2 as follows:
IPROSECUTOR]:Do you rernember the first night that sornething
happened with the defendant?
A. Yes. He said that _ to go there and just srnoke
weed with hirn. And then we did . . .
(R.Vol.5 at 136).
The cornplainant went 542 S.W.2d 164 (Tex.Crim .App.1976),an,,aggr.avated rape"
case, "two unarmed men, including appellant, forced their way into the house tr-ailer
of tlre prosecutrix, who was alone at the time.', Id. af 165.,,[T]he rnen dragged her
along the floor thlough the bathloorn into the bedroom . . . both men engaged in
sexual intercourse with hel'and then depart ed." Id. The victim, who was deaf, testified
that one of them told her "that if [she] told they would come back and kill [her.]".
The Court held that the evidence was legally insufficient to prove the
aggravating element:
. . . the only threater.red death was conditional [i.e., if she told] and at
some indefinite time in the future. 1'his threat [to kill her if she told] was
insufficient to satisfy the lequirement of the statute that the threat be
imminent. As stated in the practice commentary to Sec. 21.03:
"Note that the thleatened harm of Subsection (a)(1) must be
'imminent;" hence a thr.eat to harm someone at an indetermine tirne in
the future does not aggravate."
Id. at 166 (emphasis added) (notes ornitted).
As in the case-at-bar, the Court in Blount noted thal ,.[a] threat can be
communicated by action or conduct as well as words.".Id. at I66 (citations omitted).
t1
As in lllount, none ol'the alleged wolds ol actions attributed to Appellant by the
complainant in her testimoÍìy were imrninent thleats to cause death ol selious bodily
injuly to the conrplainant (Alicia Carpenter), ol l.rer.motl.rer, (Krista Car.penter). As the
complainant stated on cross-exalnination:
a. So it wasn'l, then, a direct thleat by Jeff to you was it?
A. I guess not.
a. Concerning threats fì'om Jeft did you tell us earlier today that the
threat was not out of his mouth but rather his actions?
A. He didn't, like, threaten me and say, oh, you're going to die if,
you know, you tell. It wasn't like that. I was just kind of like, you
know, don't tell, something bad will happen. I'll get the boys
taken away fì'om me. Something bad rnight happen to you. Your
mom rnight not believe you.
(R.Vol. 5 at226).
The purported words or actions at most implied a veiled conditional threat,
which is legally insufficient to meet the definition of imminent death or serious bodily
injury. See. Blount. supra.
InRamirezv. State,336 S.V/.3d 846 (Tex.App.-Arnarillo 201I,pet. refld), the
couft cited B/ounl with approval in the context of a duress delènse. "'l-he 'I'exas court
of criminal Appeals has determined that a threat of death at some indefinite time in
the futu.e js hsufl-pþ¡! lg_s¿Xiqry ûe recìuirement o .,, kl. at g51-52
(citing Blount at 166) (emphasis added).
The Rant i.rez Coul.t went on to explain:
. . . An imminent threat has two components of irnrnediacy. Anguish v.
State, 991 S.V/.2d 883, 886 (Tex.App.-IIouston [1,r Dist.] 1999, pet.
reld). Filst, the person making the thr.eat [by words or- actions] must
intend ar.rd be prepared to cany out the threat irnrnediately . . .
Id. at 851.
None of the words or actions attributed to Appellant by the complainant lneet
the "irnrninence" requirement of the statute undet which Appellant was indicted.
Nothing he purporledly said ol did could reasonably cause someone to believe death
or serious bodily injury to "Alicia carpenter" or "Krista carpenter" was imminent.
See,IJernandezv. State,2013 Tex.App. LEXlS929l (Tex.App.-V/aco,Iuly25,2013)
(unpublished) (citing, Blount with approval). ln l{ernantlez, the trial court correctly
excluded evidence offered by the defendant in support of his duress defense. The
court held that evidence of gang rnembership and previous cLimes were irrelevant in
establishing the element of the defendant's feal of irnrninent halrn to the defendant or
his farnily. In the case-at-bar, the state relied on testimony that Appellant clairned to
have connections with the Mexican rnalia and Mexican assassins and that he spoke
spanish . (R,vol. 5 at 52 &.YoL7 at 177). Asin Hernandez and, Blount,the State's
evidcnce was legally instrflìcient to establish an "irnminent" tlueât of doath or ser.ious
bodily injury to the cornplainant or her mother.
In McDowell v. State,235 S.W.3d 294, 297 (Tex.App.-Texarkana 2007, no
pet.), the court held that, "[a] threat rnade six r¡onths before the threatened event is
not an irnminent threat." ln Anguish v. State,991 S.W.2d gg3, gg6,g7 (Tex.App._
l-louston [1'r Dist.] 1999,pet. refld.), the court held that a threat made four days prior
to a robbery was not imminent. ln Stníth v. State,949 S.W.2d 333,336 (Tex.App.
Tyler 1996, pet. r'efd), the coult concluded that a threat made four months earlier was
not imminent.
A "fea. that death or serious bodily injury would be imminently inflicted', as
alleged in the indictrnent and as requiled by the applicable statute "requires a present
threat; threats of future harm alone are not sufficient." pol ier v. state,,2012Tex.App.
LEXIS 9473 (Tex.App.-Houston [1'1 Dist], Nov. 15, 2012, per. dismissed
(unpublished) (citing, Blount and Devine v. State, 786 S.W.2d 268, 270-71
(Tex.Crim.App. 1989).
Because there was never a threat of "imminent" death or serious bodily injury,
and because none of the purported non-eminent "threats" were connected by the
evidence to ar.ry ofthe six discrete aggravated counts, there was legally insulficie¡t
evidence that Appellant cornmitted any of the alleged offenses under the aggravated
cil'cumstances alìegecl in counts I -4 and B-9, in the indictment.
CONCLUSION
Appellant lespectfully requests that this Coufi glant l.ris Petition for
Discretionary Review and after a full hearing of the merits, reverse and render for
judgment of acquittal on Counts 1-4,8 &.9. In the alternative, Appellant requests that
this matter be leversed and relnanded to the Court of Appeals for a legal sufficiency
analysis rnade under the correct standard of review.
LAW OFFICtsS OF
MICHAEL LOGAN WARE
300 Burnett Street
Suire 160
Fort Worth, Texas 76102
Telephone: (817) 338-4100
Telecopier: (817) 698-0000
W¿¡ re(li)l¡litr99 S. Ct. 2781 , 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
2Jackson,443
U.S. at 319, 99 S. Ct. at 2789: Dobbs,434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence.3 Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of ihe evidence and substitute our judgment
for that of the factfinder.a lnstead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence when
viewed in the light most favorable to the verdict,5 We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution.6
ïhe standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.7
Complainant testified that Appellant had told her (1) that he knew people in
Mexico associated with the Mexican mafia and that they would kill her and her
mother without the killings being traced back to him and (2) a story about a man
3See Tex.
Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs,434
S.W.3d at 170.
a/sassi y.
Sfafe, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
sSorre//s y. Sfafe, 343 S.W.3d 152, 155 (Tex. Crim. App. 201'1); see
Temple v. State,390 S.W.3d 341, 360 (Tex. Crim.App.2013).
dJackson,443 U.S. at 326,
99 S. Ct at 2793; Dobbs,434 S.W.3d at 170.
Dobbs,434 S.W.3d af 170; Hooper v. State,214 S.W.3d 9, 13 (Tex. Crim.
7
\pp.2007).
who raped his babysitter and killed her after she told someone about the rape.
The outcry witness testified that Complainant had reported the Mexican mafia
threat to her and that Complainani had also told her that Appellant had
threatened to slit Complainant's throat and leave her in a ditch somewhere.
Appellant relies on Blount v. Sfafes and its progeny to argue that the threats
were not imminent because they were conditional. fhe Blount courl found
insufficient the attackers' telling the victim that if she told, they would come back
and kill her because the threat was conditional.s As the State points oul, Blount
relied on a former version of the statute that required not only that the threat was
made but that it "compelled submission to the rape."'o That language was
removed from the statute when it was later amended, and consequently, as the
State argues, it does not apply to this offense.11
Further, a child cannot consent to sexual contact or intercourse.l2 There is
no efement of compulsion required to be proved in the aggravated sexual assault
u542
S.W.2d'164 (Tex. Crim. App. 1976).
t/d.
at 165-66.
to/d.
at 165 (quotation marks omitted).
ltSee Tex. Penal Code Ann. g 22.021 (West Supp, 2014) (providing
elements of aggravated sexual assault); Nichols v. State,692 S.W.2d 178, 180
(Tex. App.-Waco 1985, pet. ref'd) (discussing the 1981 statutory amendment
removing the requirement of compelled submission).
12ln
re 8.W.,313 S.W.3d 818,823-24 (Tex. 2010).
10
or sexual assault of a child,13 Because Complainant was a child and not
competent to consent to sexual conduct, the threat of force went only to the
aggravating element that elevated the offense to a higher grade of felony and
therefore a higher range of punishment.la
The unique facts of this case require us to look at the threats within the
continuum of the offending course of conduct occurring over an extended period
of time. Complainant said in her outcry and repeated at trial that Appellant-who
for most of the period of the continuing offenses was a person lurking in the
background of her life-made various death threats to keep her participating
silently in the sexual relationship. She understood these threats to be continuing
threats of imminent harm at any time.15 The record supports that interpretation
under the unique facts of this case. We therefore overrule Appellant's first issue.
r3See ld; see a/so Tex. Penal Code Ann. S 22.011(a)(2) (West 2011),
$ 22.021 (a)(1 )(B), (2).
lo)ompare Tex. Penal Code Ann. 22.011(f) (West 2011) (providing that
S
sexual assault is a second-degree felony), and id. S 12.33 (providing range of
punishment for second-degree felonies), with ¡d. S 22.021(a)(2)(A)(ii), (e)
(providing that aggravated assault as alleged in this case is a first-degree felony),
and rd. $ 12.32 (providing range of punishment for first-degree felonies).
tusee, e.g., Curry v. Sfafe, 30 S.W.3d 394,406 (Tex. Crim. App. 2000)
(discussing the continuing nature of an abduction and holding that because a
witness testified that he saw Curry with a gun that night, "the jury could have
believed that Curry had that gun and used it during the course of the abduction to
prevent [the complainant's] liberation" and "the jury was free to dísbelieve [the
complainant'sl testimony thai Curry did not have a gun and that Curry did not
threaten him"),
Alleged Misstatement of the Law in Voir Dire
ln his second issue, Appellant argues that the State misstated the law
during voir dire and that this misstatement violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution and sections ten and
nineteen of article I of the Texas Constitution. To preserve a complaint for our
review, a party must have presented to the trial court a timely request, objection,
or motion that states the specific grounds for the desired ruling if they are not
apparent from the context of the request, objection, or motion.l6 Further, the trial
court must have ruled on the request, objection, or motion, either expressly or
implicitly, or the compla¡ning party must have objected to the trial court's refusal
to rule.17 We have carefully examined those portions of the record to which
Appellant directs us concerning what he describes as misrepresentations of the
law to the jury panel during voir dire. At no point did Appellant object or otherwise
call his complaint to the attention of the trial court. Consequently, he did not
preserve this issue for appellate review. We overrule Appellant's second issue.
Excluded Evidence About Complainant
ln his third, fourth, and fifth issues, Appellant argues that the trial court
reversibly erred by refusing to allow him to present the testimony of May,
16Tex.
R. App. P
33.1(aXf ); Everitt v. State,4O7 S.W.3d 259,262_.63
(Tex. Crim, App. 20'13); Sanchez y, Sfafe, 418 S.W.3d 302, 306 (Tex. App.-Fort
Worth 2013, pet. ref'd).
17Tex.
R. App P 33.1(aX2); Everitt, 407 S.W.3d at 263.
12
Redmon, and Brown that Complainant had made a prior false rape allegation
against a neighbor and that she was untruthful. Judge Cochran has explaíned,
Trials involving sexual assault may raise particular evidentiary
and constitutional concerns because the credibility of both the
complainant and defendant is a central, often dispositive, issue.
Sexual assault cases are frequently "he said, she said" trials in
which the jury must reach a unanimous verdict based solely upon
iwo diametrically different versions of an event, unaided by any
physical, scientific, or other corroborative evidence. Thus, the Rules
of Evidence, especially Rule 403, should be used sparingly to
exclude relevant, otherwise admissible evidence that might bear
upon the credibility of either the defendant or complainant in such
"he said, she said" cases. And Ïexas law, as well as the federal
constitution, requires great latitude when the evidence deals with a
witness's specific bias, motive, or interest to testify in a particular
fashion.
But, as the Supreme Court noted in Davis v. Alaska, there is
an important distinction between an attack on the general credibility
of a witness and a more particular attack on credibility that reveals
"possible biases, prejudices, or ulterior motives of the witness as
they may relate directly to issues or personalities in the case at
hand," Thus, under Dayrs, "the exposure of a witness' motivation in
testifying is a proper and important function of the constitutionally
protected right of cross-examination." However, as Justice Stewart
noted in concurrence, the Court neither held nor suggested that the
Constitution confers a right to impeach the general credibility of a
witness through otherwise prohibited modes of cross-examination.
Thus, the Dayrs Court did not hold that a defendant has an absolute
constitutionaf right to impeach the general credibility of a witness in
any fashion that he chooses. But the constitution is offended if the
state evidentiary rule would prohibit him from cross-examining a
witness concerning possible motives, bias, and prejudice to such an
extent that he could not present a vital defensive theory.18
lsHammer v. State, 296 S.W.3d 555, 561-63 (Tex. Crim. App. 2009)
(footnotes omitted).
A witness's credibility may be attacked in three ways: opinion or reputation
for general iruthfulness or untruthfulness and cross-examination on specific
instances of conduct that establish bias, sellinterest, or motive for testifying as
he or she did.re Opinion evidence is not the same as reputation evidence.20 As
this court has explained,
Reputation witnesses' testimony must be based on discussion w¡th
others about the subject, or on hearing others discuss the person's
reputation, and not just on personal knowledge. Rule 405 requires
only "substantial familiarity" with the reputation of the accused.2l
Reputation evidence, then, must necessarily be grounded in hearsay.22
An objection that the testimony of reputation evidence is hearsay and not based
on personal knowledge thus will not lie.23 Opinion testimony is governed by rule
of evidence 701 and must be based on personal observation.2a
Within this general framework, Judge Cochran, speaking for the
unanimous Hammer court, has explained why Texas, unlike many other states,
leTex.
R. Evid. 405, 608.
2osee
Tex. R. Evid. 405,701.
2lFerrell
v. State,968 S.W.2d 471,474 (Tex. App.-Fort Worth 1998, pet
ref'd) (citations omitted).
22See
id., see a/so Tex. R. Evid. 405.
23See
Tex. R. Evid. 405; Ferrelt, g68 S.W.2d at 474.
2aTex.
R. Evid. 701.
does not allow a defendant in a sexual assault case to impeach the complainant
with evidence of prior false accusations:
The theory for admitting prior false accusations of rape in a
sex-offense prosecution is frequently analogized to Aesop's story of
"The Boy Who Cried Wolf." A past false accusation makes it more
likely that the witness lacks credibility and thus should not be
believed concerning this accusatíon. But in Aesop's fable, there
really was a wolf, and it killed the sheep. The moral of that story was
"Nobody believes a liar . . even when he is telling the truth." A
criminal trial, however, is designed to find the truth about a specific
incident, not to decide whether someone has lied in the past about
the presence of wolves or about being raped. Prior false allegations
of rape do not tend to prove or disprove any of the elements of the
charged sexual offense.
Therefore, Texas, unlike some jurisdictions, has not created a
per se exception to Rule 608(b)'s general prohibition against
impeachment with specific instances of conduct to admit evidence of
the complainant's pr¡or false allegations of abuse or molestation.
The inferential chain of logic that is barred by Rule 608(b) is this:
The witness lied to his employer (or did some specific act of
dishonesty)
That specific conduct proves dishonest character;
Therefore, the witness is generally dishonest and should not
be believed in this case.
Applied to prior false accusations, the barred evidentiary chain is
this:
Complainant made a prior false accusation;
That specific conduct proves dishonest character;
Therefore, the complainant is generally dishonest and should
not be believed in this case.
This is precisely the prohibited propensity chain of logic-
"Once a thief, always a thief," "Once a liar, always a liar"-that
underlies both Rules 404(b) and 608(b). A sexual assault
15
compla¡nant is not a volunteer for an exercise in character
assassination. Several federal courts have held that exclusion of
this evidence, offered to attack the victim's general credibility, does
not violate the Confrontation Clause.
lf, however, the cross-examiner offers evidence of a prior false
accusation of sexual activity for some purpose other than a
propensity atiack upon the witness's general character for
truthfulness, it may well be admissible under our state evidentiary
rules.
For example, in Billodeau y. Sfafe, we 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. We 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. Evidence of threats to accuse
others of sexual molestation when he displayed "rage and anger" at
being thwarted is some evidence of a common motive for accusing
the defendant of sexual molestation. The chain of logic is as follows:
The victim makes false accusations in certain circumstances
and for certain reasons;
Those circumstances and reasons are present in this case;
Therefore, the victim made a false accusation in this case.
One might even call this modus operand¡ ev¡dence admissible
under Rule 404(b). Evidence of other acts or wrongs may be
admissible under Rule 404(b) to prove such matters as motive,
intent, scheme, or any other relevant purpose except conduct in
conformity with bad character. Even "the doctrine of chances" has
been invoked as a possible basis for admitting evidence of a victim's
prior false accusation of rape. Similarly, evidence of a victim's prior
sexual activity may be admissible under Rule 412, lhe Texas Rape
Shield Law, when offered to establish the victim's motive or bias
against the defendant.
ln sum, several different state evidentiary rules permit the use
of prior false accusations when offered to show the witness's bias or
motive or for some other relevant, noncharacter purpose. The
Confrontation Clause mandate of Davrs v. Alaska is not inconsistent
16
with Texas evidence law. Thus, compliance with a rule of evidence
will, in most instances, avoid a constitutional question concerning ihe
admissibility of such evidence.25
We now examine the case at bar.
Prior Rape
Appeflant argues that the trial courl abused its discretion by excluding
May's testimony that he had heard a rumor that Complainant was telling people
that he had sexually assaulted her and Redmon's testimony pertaining to the
alleged incident. Appellant offered May's testimony under rule of evidence
404(b).26 While Appellant now argues that the trial court's ruling abridged certain
of his constitutional rights, at trial he spoke only of credibility and Rule 404(b).
Appellant's complaints at trial do not conform to his constitutional complaints on
appeal; we therefore do not address his constitutional complaints.2T
Additionally, May's testimony dealt with rumors on the street; it did not
constitute testimony of Complainant's reputation for truthfulness, nor were his
claims that he had heard that she was spreading rumors in any way
substantiated to provide a basis for an opinion that she was not worthy of belief
under oath. And to the e)dent that his testimony was intended to be evidence of
'uHammer,296 S.W.3d at 564-66 (footnotes omitted).
26lex. R. Evid. 404(b).
27see
Tex. R. App. P. 33.1(a)(1); Lovill v. Sfafe, 319 S.W.3d 687, 691-92
(Tex. Crim. App. 2009).
prior false accusations of sexual assault, such test¡mony is not admissible for the
purpose of showing her character conformity or propensity to lie,28
Although Appellant also argues that the evidence was admissible to show
motive and modus operandi, May candidly admiited that Complainant never
accused him to his face of raping her. His belief that she had accused him was
based on rumors that he had heard. The record does not establish confirmation
of May's belief that she falsely accused him of rape. Nor do the rumors he heard
suggest a motive for falsely accusing Appellant or a modus operandi. May said
that Complainant would ask him to have sex with her, and he refused. But we
cannot discern how the rumors he heard thai she was accusing him of rape were
ever verified. The record before this court therefore does not establish the
admissibilíty of this evidence of purported false accusations of rape under rule
404(b).
At trial, Appellant explained in seeking admission of the false accusation
testimony, "the false claim of rape is going to credibility." We hold that the
rumors of false rape accusations were not admissible, and based on the record
before us, that the trial court did not abuse its discretion in denying Appellant's
request to present this evidence before the jury. We overrule Appellant's third
issue.
28See
Hammer, 296 S.W.3d at 564.
1B
Redmon's and Brown's Opinion Testimony
ln his fourth and fifth issues, Appellant complains of the exclusion of the
testimony of Redmon and Brown concerning their opinions of Complainant's
credibility. As we understand the record, Appellant appears to have offered
these opinions by having the women explain specific acts that they suspected
had occurred and speculate on others. He did not offer their testimony on any
constitutional basis, We therefore do noi address the constitutional arguments
he raises on appeal.2e
Redmon's testimony was based on her belief that Complainant had lied
and had told Redmon's daughter to lie about having given Complainant things
that Complainant had stolen from Redmon's daughter. Redmon also believed
that Complainant had lied to her and to her daughter about dating, smoking
marijuana, and being raped. Appellant explained to the trial court that he was
offering Redmon's testimony as "possible opinion testimony on truthfulness."
Brown believed that Complainant had spread untruthful rumors about her
daughter and that she had stolen her daughter's nail polish. We are not clear on
the legal basis for which Appellant offered this evidence, other than as an opinion
of Complainant's truthfulness. Judge Keasler has explained for the Texas Court
of Criminal Appeals,
2esee
Tex. R. App P. 33.1(a)(1); Lovítt,319 S.W.3d at691-92
[A] less common notion of error preservation comes into play in this
case, although certainly not a novel one. Professors Goode,
Wellborn and Sharlot refer to it as "party responsibílity. "
They
explain it this way:
To the question, which pady has the responsibility
regarding any particular matter, it is infallibly accurate to
answer with another question: which pafty is
complaining now on appeal? This is because in a real
sense both parties are always responsible for the
application of any evidence rule to any evidence.
Whichever party complains on appeal about the trial
judge's action must, at the earliest opportunity, have
done everything necessary to bring to the judge's
attention the evidence rule in question and its precise
and proper application to the evidence in question.
The basis for party responsibility is, among other things, Appellate
Rule 33.'1 . lt provides that as a prerequisite to presenting a
complaint for appellate review, the record must show that the party
"stated the grounds for the ruling that (he) sought from the trial court
with sufficient specificity to make the trial couÍ aware of the
complaint." So it is not enough to tell the judge that evidence is
admissible. The proponent, if he is the losing party on appeal, must
have told the judge why the evidence was admissible,
We recently discussed this notion in Ma¡finez y. Sfafe. There,
the defendant moved to suppress oral statements due to the State's
failure to comply with Art. 20.17. -lhe State argued for the first time
on appeal that Art. 20.17 did not apply. We concluded that the State
forfeited this argument by failing to bring it to the trial judge's
attention. We explained that "both Texas Rule of Appellate
Procedure 33.1 and Texas Rule of Evidence 103 are 'judge-
protecting' rules of error preservation. The basic principle of both
rules is that of 'party responsibility."' We recognized that "the party
complaining on appeal (whether it be the State or the defendant)
about a trial court's admission, exclusion, or suppression of evidence
must, at the earlíest opportunity, have done everything necessary to
bring to the judge's attention the evidence rule or statute in question
and its precise and proper application to the evidence in question."
The issue, we said, "is not whether the appealing party is the State
or the defendant or whether the trial court's ruling is legally 'correct'
in every sense, but whether the complaining party on appeal brought
20
to the trial court's aitention the very complaint that party is now
making on appeal."
Similarly, in Willover y. Sfafe, the defendant sought to admit
two videotaped interviews of the victim. At trial,
it (was) clear that, although (the defendant) did not
aciually recite the specific rule of evidence he was
relying upon, (he) sought to admit the videotapes for
impeachment purposes. (He) did not argue, nor was
there any discussion at trial, that the tapes were not
hearsay or that the videotapes were admissible under
any exception to the hearsay rule other than Article
38.071 or for impeachment purposes.
On appeal, the defendant argued for the first time that the
videotapes were not hearsay. We relied on the notion of "party
responsibility" to reject this argument because "(i)n order to have
evidence admitted under a hearsay exception, the proponent of the
evidence must specify which exception he is relying upon." lt was
up to the defendant, we said, and ''not the trial court, to specify
which exception to the hearsay rule he was relying upon or to
specify how the evidence was not hearsay."
ln some cases, we have applied the "party responsibility"
theory without using those precise words. ln Clark v. Sfafe, the
State presented the testimony of Dr. James Grigson that the
defendant would be a future danger. The defendant sought at trial
to introduce a letter and accompany¡ng report which listed eleven
individuals convicted of capital murder whose sentences had later
been commuted or reduced. ln several of those cases, Dr. Grigson
had predicted that the individual would be a future danger. The trial
court refused to admit the evidence.
On appeal, the defendant argued that the excluded evidence
was admissible to impeach Dr. Grigson and show that his prior
future dangerousness predictions had turned out to be incorrect.
But the defendant had not articulated this basis for admission at trial.
At trial, he had argued the evidence was admissible to impeach
statements that Dr. Gr¡gson had made in Lubbock County. The
State had objected that the impeachment went to a collateral matter,
and the trial judge had agreed.
We rejected the defendant's argument on appeal because he
"did not clearly articulate" that he wanted to admit the evidence to
demonstrate Grigson's past mistakes in predicting future
dangerousness. We said that the trial judge "never had the
opportunity to rule upon (the defendant's) appellate rationale." Since
the defendant "did not sufficiently clearly expressly offer the
evidence for the purpose which he now claims on appeal,'' that
argument could not be raised on appeal.
Finally, in Jones v. Sfafe, the defendant sought at trial to admit
the grand jury testimony of a witness who asserted her Fifth
Amendment privilege against self-incrimination and refused to
testify. The State objected, claiming hearsay. We concluded that
the defendant failed to preserve error because he never specified
which portions of the witness's testimony he wanted to admit into
evidence. We said:
The trial court need never sort through challenged
evidence in order to segregate the admissible from the
excludable, nor is the trial court required to admit only
the former part or exclude only the latter part. lf
evidence is offered and challenged which contains
some of each, the trial court may safely admit it all or
exclude it all, and the losing party, no matter who he is,
will be made to suffer on appeal the consequences of
his insufficiently specific offer or objection. ln this case,
because the trial court chose to exclude the evidence,
appellant is the party adversely affected by his own
default. Because appellant failed to specify which
portion of the transcript he intended to introduce into
evidence, the court was presented with a proffer
containing both admissible and inadmissible evidence.
When evidence which is partially admissible and
partially inadmissible is excluded, a party may not
complain upon appeal unless the admissible evidence
was specifically offered.
Application
ln this case, Reyna argued to the trial judge that the evidence
should be admitted for "credibilíty." He said that he was "not offering
it to prove the truth of the matter asserted" and "not offering it to go
into her sexuality." lnstead, he argued, "l'm offering to it
22
demonstrate that as to prior sexual activities, that she made
allegations that there were prior sexual allegaiions, and recanted."
Reyna did not cite to any rules of evidence, cases, or
constitutional provisions. Reyna's references to "the truth of the
matter asserted" reflect that he was arg uing that the evidence was
not hearsay under Evidence Rule 801(d). His claim that he was not
offering it "to go into her sexuality" reffects his argument that the
evidence should not be excluded under Evidence Rule 412(b).
These arguments are both based on the Rules of Evidence.
Reyna's reference to "credibility" could be a reference to either the
Rules of Evidence or the Confrontafion Clause.
Reyna told the trial judge that the purpose of admitting the
evidence was to attack the victim's credibility, but he did not provide
the basis for admitting the evidence. He could have been relying on
the Rules of Evidence or the Confrontation Clause. lt was up to the
judge to discern some basis for admitting the evidence.
We have said that "(t)he purpose of requiring (an) objection is
to give to the trial court or the opposing party the opportunity to
correct the error or remove the basis for the objection." When a
defendant's objection encompasses complaints under both the
Texas Rules of Evidence and the Confrontation Clause, the
objection is not sufficiently specific to preserve error. An objection
on hearsay does not preserve error on Confrontation Clause
grounds.
Although this case involves a proffer of evidence rather than
an objection, the same rationale applies. Reyna did not argue that
the Confrontation Clause demanded admission of the evidence.
Reyna's arguments for admitting the evidence could refer to either
the Rules of Evidence or the Confrontation Clause. His arguments
about hearsay did not put the trial judge on notice that he was
making a Confrontation Clause argument. Because Reyna "did not
clearly articulate" that the Confrontation Clause demanded
admission of the evídence, the trial judge "never had the opportunity
to rule upon" this rationale. As the losing party, Reyna must "suffer
on appeal the consequences of his insufficiently specific offer."
Reyna did not do "everything necessary to bring to the judge's
attent¡on ihe evidence rule or statute in questior and its precise and
proper application to the evidence in question.
ln the case now before this court, Appellant offered the evidence on the
vague basis of "possible" opinion testimony. He did not sustain his burden of
explaining to the trial court on the record, and by extension to us, why Redmon,s
and Brown's testimony was admissible-whether under an evidentiary rule or
statute, as an exception to an evidentiary rule or statute, or under a constitutional
provision. We therefore overrule Appellant's fourth and fifth issues.
Gonclusion
Having overruled Appellant's five issues on appeal, we affirm the trial
court's judgments.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ,
GARDNER, J., and WALKER, J., concur without opinion.
PUBLISH
DELIVERED: April 30, 2015
3ÙReyna y. Sfafe, 168 S.W.3d 123, 176-79 (Tex. Crim. App. 2005)
(citations omitted).
24
APPENDIX B
Court of Appeals Order denying Appellee's
Motion for Rehearing dated
Augusf 6,2015
COURT OF APPEALS
SECOND DISTIIICT O}' TIIXAS
FOIìT WOIITH
NO. 02-13-00532-CR
Thomas Jefferson Smallwood, Jr. g From the 396th District Court
$ ofTarrant County (1343309R)
v. g August 6,2015
g Opinion by Justice Dauphinol
The State of Texas S (p)
JUDGMENT ON REHEARING
After considering the Appellant's motion for rehearing, we deny the motion.
We withdraw our April 30, 2015 opinion and judgment and substitute the
following.
This court has considered the record on appeal in this case and holds that
there was no error in the trial court's judgments. lt is ordered that the judgments
of the trial court are affirmed.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Lee Ann Dauphinot
Justice Lee Ann oauphinot
'_-
APPENDIX C
Court of Appeals Opinion dated August 6,,2015)
25
COURT OF APPBALS
SDCOND DISTRICT OF TEXAS
FOIIT WOIITII
NO. 02-13-00532-CR
THOMAS JEFFERSON APPELLANT
SMALLWOOD, JR.
THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1343309R
OPINION ON APPELLANT'S MOTION FOR REHEARING
After considering Appellant's motion for rehearing, we deny the motion, bul
we withdraw our opinion and judgment of April 30, 2015, and substitute the
following.
A jury convicted Appellant Thomas Jefferson Smallwood Jr, of six counts of
aggravated sexual assault of a child under seventeen years of age and three
counts of sexual assault of a child under seventeen years of age, all charged in a
single indictment, and assessed his punishment at fifty years' confinement on
each aggravated sexual assault count and twenty years' confinement on each
sexual assault count. The trial court sentenced hìm accordingly, ordering the
sentences to be served concurrently. Appellant brings five issues on appeal,
challenging the sufficiency of the evidence to show the aggravating element for
the six convictions of aggravated sexual assault of a child (counts one through
four, eight, and nine) and contending that the State misrepresented the law during
voir dire and that the trial court abused its discretion by excluding evidence of the
complainant's prior rape accusation against a neighbor and the testimony of two
other witnesses. Because the evidence is sufficient to support the jury's verdict
and because the trial court committed no reversible error, we affirm the trial
court's judgments.
Brief Facts
Appellant and Complainant's mother (Mother) had been a couple, had
shared a home with Complainant and her brother, and were the parents of twin
boys, Complainant's younger half-brothers. Appellant and Mother parted ways
and went through a custody battle over the twins. On July, 4,2012, Complainant,
who was fourteen years old at the time, was at Appellant's home with her twin
brothers. Complainant and Mother were not getting along around this time.
Appellant tofd Complainant that he wanted to put Mother in a hole and hire some
Mexican assassins to hu¡f her. ln the same conversation, Appellant suggested
that Complainant have sex with him to make Mother mad, but Complainant
refused his offer.
Later that same month, Complainant, along with her twin brothers, visited
Appellant's parents in El Paso. During this trip, Complainant received messages
from someone who identified himself as "Jayylo" through Kik, an application on
her cell phone. Jayylo sent pictures of his penis to her. She responded by
"sen[ding] inappropriate pictures of [her] boobs." She never gave Jayylo her
home address or her real name. Jayylo continued to send more pictures of
himself to her. When Complainant threatened io stop sending Jayylo pictures, he
threatened to send the photos she had sent him to her school and to the
mailboxes of Mother and her neighbors. Complainant noticed that the
background of one of the photos he sent her resembled a portion of Appellant's
house. Complainant was then suspicious that Appellant was Jayylo.
She confronted Appellant, but he denied having a Kik account. About an
hour later, Appellant called Complainant back and asked her why he had pictures
of her boobs in his mailbox. Complainant started crying and told him what had
happened with Jayylo and that he had threatened her. Complainant also told
Appellant's mother why she was crying, and Appellant got mad at Complainant
for telling his mother. Complainant turned fifteen years old while she was in El
Paso,
When Complainant returned home from El Paso, she began receiving text
messages from Jayylo sent directly to her cell phone number. Complaínant
noticed that the first six digits of Jayylo's phone number were the same as
Appellant's cell phone number. Jayylo told her that he got her phone number
from one of her friends, which Complainant knew not to be true. Whenever
Complainant asked Jayylo who he really was, he would change his story of how
Complainant was supposed to know him and how old he was. Jayylo texted
Complainant almost every day at different times of the day. But she could never
get a response when she called him.
Jayyfo continued threatening Complainant and demanded that she send
him more photos, have sex with Appellant, videotape it, and send the video to
Jayylo. Complainant refused. Jayylo put one of the photos Complainant had sent
him on a Facebook page he had created and threatened to add all of her friends
to that page. Appellant told Complainant that Jayylo was also contacting him, but
she never saw any of the messages that Appellant claimed to have received.
Appellant and Complainant spoke about the situation and decided to
acquiesce to Jayylo's demands. Complainant and Appellant had sexual
intercourse in Appellant's house while Complainant's twin brothers were asleep.
Following Jayylo's demands, Appellant and Complainant continued their sexual
relatíonship. They had sexual intercourse "eight to eleven times[,] [m]aybe more,"
from August 2012 to November 2012. These sexual encounters would occur at
either Appellant's or Complainant's home.
Complainant testified that she texted Jayylo that it was getting harder for
her to keep these incidents a secret, and shortly after she sent this tef, Appellant
called her and told her ihat they did not "have to do it anymore." Appellant then
told Complainant a story about
a girl who was babysitting this guy's kids, and he ended up raping
her. And then she went to court, and then he pretended to be
somebody that he wasn't and hit her up on Facebook and that they
met up thinkíng it was somebody else, and he killed her.
This story scared Complainant. At trial, she testified that Appellant knew people
from Mexico who were in the Mexican Mafia. Although complainant testified that
Appellant never specifically threatened her, she also testified that he made it
clear that if he could hurt Mother, he could hurt Complainant too. ln December
2012, Complaínant made an outcry to Mother's friend. Shortly afterward, the
decision to call the police was made. Appellant pled not guilty to all counts of an
eighteen-count indictment alleging that he had committed sexual assault and
aggravated sexual assault on various dates against Complainant.
Outside the presence of the jury, in an in-camera hearing, Appellant
presented evidence from Ricky May. May lived in Complainant's neighborhood
around 2008 to 2009. He testified that when he was eighteen years old,
Complainant would contact him "through phone [and] text messaging, trying to get
[him] to have sexual intercourse with her" because she was "horny." May refused
Complainant's offer, but he heard that Complainant had told people in their
neighborhood that he had raped her, which he denied. May was never charged
with or arrested for rape. The State objected to May's testimony on hearsay
grounds.
THE COURT: Response?
IPROSECUTOR]: Once again, Your Honor, this is an opinion based
upon hearsay. There's no proof that she ever
said these things. And this is the type of
reputation and opinion evidence that is, I believe,
prohibited under 412 as is relating to sexual
conduct and it's not fitting in one of the categories
that allows for past behavior to be admissible.
The trial court sustained the State's objection, and May was not permitted to
testify in front of the jury.
Appellant also offered testimony from Jeannie Redmon outside the
presence of the jury. Redmon testified that she had known Complainant for
"[a]pproximately seven to eight years." Redmon testified that Complainant was
"untruthful" because (1) she took items that belonged to Redmon's daughter, told
Redmon that Redmon's daughter had given her the items when in fact, Redmon's
daughter had not, and instructed Redmon's daughter to similarly lie; (2) she
would tell Redmon and her daughter that she was dating people whom she was
not dating; (3) she had said that a boy across the street had raped her; and
(4) she lied about giving out her phone number to boys at a waterpark when
Redmon asked her if she had done so. Redmon also testified that she thought
her daughter and Complainant had gone to pornographic websites on Redmon's
home computer. Appellant offered Redmon's testimony as her opinion on
Complainant's truthfulness. The State objected to Redmon's testimony:
We'll object under rule 608 and 609, also 404. I think if this witness
knew [Complainant] presently, we would be legally okay wiih her
opinion that she's untruthful, but I think four years ago is a little bít too
remote. And certainly, even if that was allowed, the rules, specifically
608(b)l,l disallow specific instances of conduct. So we would object
to any specific instances.
Additionally, it sounds like almost all of this is hearsay and,
except for perhaps the opinion as to truthfulness. But the porn use, I
don't think we can say that this witness knows with her own personal
knowledge that it was definitely [Complainant]. lthink perhaps she's
basing that off of what her daughier has told her. And the same with
the false claim of rape, she's admitted on cross she really does noi
know what happened.
The trial court sustained the State's objections, and Redmon was not permitted to
testify in front of the jury.
Appellant also presented evidence from Denise Brown outside the
presence of the jury. Brown testified that Complainant was friends with her
daughter and that she knew Complainant in 2009 and 2010. Brown testified that
Complainant was untruthful because Complainant (1) spread rumors that Brown's
daughter was pregnant and (2) took some fingernail polish belonging to Brown,s
daughter without permission Brown also testified that Complainant was
flirtatious with boys and opined that Complainant was promiscuous.
Complainant's friendship with Brown's daughter ended when Brown's daughter
began dating a boy whom Complainant had previously dated, and Complainant
began calling Brown's daughter a "slut." The State objected to Brown's
testimony:
The State would object as to. . . this witness. . . having no personal
knowledge of the things that she has referenced as far as her basis
for determining this-[Complainant's] credibility. She's basing it upon
hearsay. So we would object under 608.
Also, as far as going into specific instances of conduct, she
doesn't-she did not personally observe them or have personal
knowledge as io them.
Also, we'd object under 404, 403 as to her general
characterization of [Complainant's being] boy crazy,
promiscuous. . . . [S]he has clearly demonstrated her own bias
towards [Complainant] where she does not apply the standard to her
own daughter as she does for [Complainant], even though they're
engaged in the same conduct.
The trial court sustained the State's rule 608 objection.
Sufficiency of the Evidence
ln his first issue, Appellant argues thai the evidence is insufficient to
support the jury's determination that, during the alleged aggravated sexual
assaults, he, "by acts or words placed [Complainant] in fear that death or serious
bodily injury would be imminently inflicted on [her] or [her mother]," as alleged in
counts one through four, eight, and nine.
ln our due-process review of the sufficiency of the evidence to support a
conviction, we view all the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.r This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
lJackson v. Virginia,443 U.S. 307,
319, 99 S. Ct. 2781 , 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
weigh the ev¡dence, and to draw reasonable inferences from basic facts to
ultimate facts.2
The trier of fact is the sole judge of the weight and credibility of the
evidence.3 Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder.a lnstead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of ihe evidence when
viewed in the light most favorable to the verdict.s We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution.6
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.T
2Jackson,443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs,434 S.W.3d at 170.
3See Tex.
Code Crim. Proc. Ann. art.38.04 (West 1979); Dobbs,434
S.W,3d at 170.
a/sassi y.
Sfafe, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010),
sSorre//s y. Sfafe, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State,390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
6Jackson,443 U.S.
at 326, 99 S. Ct. at 2793, Dobbs,434 S.W.3d at 170.
'Dobbs,434 S.W.3d at 170; Hooper v. State,214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
Complainant testified that Appellant had told her (1) that he knew people in
Mexico associated with the Mexican mafia and that they would kill her and her
mother without the killings being traced back to him and (2) a story about a man
who raped his babysitter and killed her after she told someone about the rape.
The outcry witness testified that Complainant had reported the Mexican mafia
threat to her and thai Complainant had also told her that Appellant had
threatened to slit Complainant's throat and leave her in a ditch somewhere.
Appellant relies on Blount v. Sfafes and its progeny to argue that the threats
were not imminent because they were conditional. îhe Blount court found
insufficient the attackers' telling the victim that if she told, they would come back
and kill her because the threat was conditional.e As the State points out, Blount
relied on a former version of the statute that required not only that the threat was
made but that ít "compelled submission to the rape."1o That language was
removed from the statute when it was later amended, and consequently, as the
State argues, it does not apply to this offense. 11
8542
S.W.2d 164 (Tex. Crim. App. 1976).
e/d.
at i65--66.
10!d.
at 165 (quotation marks omitted).
l1see Tex. Penal Code Ann. g 22.021 (West
Supp. 2014) (providing
elements of aggravated sexual assault); Nichols v. State,692 S.W.2d 178, 180
(Tex. App 1985, pet. ref'd) (discussing the 1 981 statutory amendment
-Waco
removing the requirement of compelled submission).
10
Further, a child cannot consent to sexual contact or intercourse.l2 There is
no element of compulsion required to be proved in the aggravated sexual assault
or sexual assault of a child.l3 Because Complainant was a child and not
competent to consent to sexual conduct, the threat went only to the aggravating
element that elevated the offense to a higher grade of felony and therefore a
higher range of punishment.la
The unique facts of this case require us to look at the threats as continuing
during the commission of the assaults over an extended period of time.
Complainant sa¡d in her outcry and repeated at trial that Appellant-who for most
of the period of the offenses was a person lurking in the background of her life-
made various death threats to keep her participating silently in the sexual
relationship. She understood these threats to be continuing threats of imminent
harm at any time. 15 The record supports that interpretation under the unique
facts of this case. We therefore overrule Appellant's first issue.
12ln
re 8.W.,3'13 S.W.3d 818,823-24 (Tex. 20 10).
l3See ld.; see a/so Tex. Penal
Code Ann. S 22.011(a)(2) (West 2011),
$ 22.021(a)(1)(B), (2)
laCompare Tex. Penal
Code Ann. S 22.011(f) (West 201 1) (providing that
sexual assault is a second-degree felony), and id. $ 12.33 (providing range of
punishment for second-degree felonies), with id. g 22.021(al(Z)(A)(ii), (e)
(providing that aggravated assault as alleged in this case is a firsldegree felony),
and rd. $ 12.32 (providing range of punishment for first-degree felonies).
tusee, e.g., Curry v. Sfafe, 30 S.W.3d
394, 406 (Tex. Crim. App. 2000)
(discussing the continuing nature of an abduction and holding that because a
Alfeged Misstatement of the Law in Voir Dire
ln his second issue, Appellant argues that the State misstated the law
during voir dire and that this misstatement violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution and sections ten and
nineteen of article I of the Texas Constitution. To preserve a compfaint for our
review, a party must have presented to the trial court a timely request, objection,
or motion that states the specific grounds for the desired ruling if they are not
apparent from the context of the request, objection, or motion. 16 Further, the trial
court must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court's refusal
to rule.17 We have carefully examined those portions of the record to which
Appellant directs us concerning what he describes as misrepresentations of the
law to the jury panel during voir dire. At no point did Appellant object or otherwise
call his complaint to the attention of the trial court. Consequently, he did not
preserve this issue for appellate review. We overrule Appellant's second issue.
witness testified that he saw Curry with a gun that night, "the jury could have
believed that Curry had that gun and used it during the course of the abduction to
prevent [the complainant's] liberation" and "the jury was free to disbelieve [the
complainant'sl testimony that Curry did not have a gun and that Curry did not
threaten him").
r6Tex.
R. App. P 33.1(a)(1); Everitt v. State,407 S.W.3d 25g,262-63
(Tex, Crim.4pp.2013); Sanchez y. Sfafe,41B S.W.3d 302,306 (Tex, App.-Fort
Wodh 2013, pet. ref'd).
17Tex.
R. App. p. 33.1(a)(2); Everitt, 407 S.W.3d at 263.
Excluded Evidence About Complainant
ln his third, fourth, and fifth issues, Appellani argues that the trial court
reversibly erred by refusing to allow him to present the testimony of May,
Redmon, and Brown that Complainant had made a prior false rape allegation
against a neighbor and that she was untruthful. Judge Cochran has explained,
Trials involving sexual assault may raise particufar evidentiary
and constitutional concerns because the credibility of both the
complainant and defendant is a central, often dispositive, issue.
Sexual assault cases are frequently "he said, she said" trials in
which the jury must reach a unanimous verdict based solely upon
two diametrically different versions of an event, unaided by any
physical, scientific, or other corroborative evidence. Thus, the Rules
of Evidence, especially Rule 403, should be used sparingly to
exclude relevant, otherwise admissible evidence that might bear
upon the credibilíty of either the defendant or complainant in such
"he said, she said" cases. And Texas law, as well as the federaf
constitution, requires great latitude when the evidence deals with a
witness's specific bias, motive, or interest to testify in a pariicular
fashion.
But, as the Supreme Court noted in Davis v. Alaska, there is
an important distinction between an attack on the general credibility
of a witness and a more particular attack on credibility that reveals
"possible biases, prejudices, or ulterior motives of the witness as
they may relate directly to issues or personalities in ihe case at
hand." Thus, under Dayis, "the exposure of a witness' motivation in
testifying is a proper and important function of the constitutionally
protecied right of cross-examination. "However, as Justice Stewarl
noted in concurrence, the Court neither held nor suggested that the
Constitution confers a right to impeach the general credibility of a
witness through otherwise prohibited modes of cross-examination.
ïhus, the Davrs Court did not hold that a defendant has an absolute
constitutional right to impeach the general credibility of a witness in
any fashion that he chooses. But the constitution is offended if the
state evidentiary rule would prohibit him from cross-examining a
13
witness concerning possible motives, bias, and prejudice to such an
extent that he could not preseni a vital defensive theory.î8
A witness's credibility may be attacked in three ways: opinion or reputation
for general truthfulness or untruthfulness and cross-examination on specifrc
instances of conduct that establish bias, self-interest, or mot¡ve for testifying as
he or she did.1s Opinion evidence is not the same as reputation evidence.20 As
this couri has explained,
Reputation witnesses' testimony must be based on discussion with
others about the subject, or on hearing others discuss the person's
reputation, and not just on personal knowledge. Rule 405 requires
only "substantial familiarity" with the reputation of the accused.2l
Reputation evidence, then, must necessarily be grounded in hearsay.22
An objection that the test¡mony of reputation evidence is hearsay and not based
on personal knowledge thus will not lie.23 Opinion testimony is governed by rule
of evidence 701 and must be based on personal observation.2a
tuHammer v. State, 296 S.W.3d 555, 56'1-63 (Tex. Crim. App. 2009)
(footnotes omitted).
leTex. R. Evid.
405, 608.
2oSee
Tex. R. Evid. 405,701 .
2lFerrell v. Sfafe,
968 S.W.2d 471, 474 (Tex. App.-Fort Worth 1998, pet.
ref'd) (citations omitted).
22See
id.; see a/so Tex. R. Evid. 405.
23See
Tex. R. Evid. 405: Ferrett, 968 S.W.2d al 47 4.
2aTex.
R. Evid. 701.
Within this general framework, Judge Cochran, speaking for the
unan¡mous Hammer court, has explained why Texas, unlike many other states,
does not allow a defendant in a sexual assault case to impeach the complainant
wiih evidence of prior false accusations:
ïhe theory for admitting prior false accusations of rape in a
sex-offense prosecution is frequently anafogized to Aesop's story of
"The Boy Who Cried Wolf." A past false accusation makes it more
likely that the witness lacks credibility and thus should not be
believed concerning this accusation. But in Aesop's fable, there
really was a wolf, and it killed the sheep. The moral of that story was
"Nobody believes a liar . . even when he is telling the truth." A
criminal trial, however, is designed to find the truth about a specific
incident, not to decide whether someone has lied in the past about
the presence of wolves or about being raped. Prior false allegations
of rape do not tend to prove or disprove any of the elements of the
charged sexual offense.
Therefore, Texas, unlike some jurisd¡ctions, has not created a
per se exception to Rule 608(b)'s general prohibition against
impeachment with specific instances of conduct to admit evidence of
the complainant's prior false allegations of abuse or molestation.
ïhe inferential chain of logic that is barred by Rule 608(b) is this:
The witness lied to his employer (or did some specific act of
dishonesty)
That specific conduct proves dishonest character;
Therefore, the witness is generally dishonest and should not
be believed in this case.
Applied to prior false accusations, the barred evidentiary chain is
this:
Complainant made a prior false accusation;
ïhat specific conduct proves dishonest character;
Therefore, the complainant is generally dishonest and should
not be believed in this case-
15
This is precisely the prohibited propensity chain of logic-
"Once a thief, always a thief," "Once a liar, always a liar"-that
underlies both Rules 404(b) and 608(b). A sexual assault
complainani ís not a volunteer for an exercise in character
assassination. Severaf federal courts have held that exclusion of
this evidence, offered to attack the victim's general credibility, does
not violate the Confrontation Clause.
lf, however, the cross-examiner offers evidence of a prior false
accusation of sexual activity for some purpose other than a
propensity attack upon the wiiness's general character for
truthfulness, it may well be admissible under our state evídentiary
rules.
For example, in Billodeau v. State, we 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. We 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. Evidence of threats to accuse
others of sexual molestation when he displayed "rage and anger" at
being thwarted is some evidence of a common motive for accusing
the defendant of sexual molestation. The chain of logic is as follows:
The victim makes false accusations in certain circumstances
and for certain reasons;
Those circumstances and reasons are present in this case;
Therefore, the victim made a false accusation in this case.
One might even call this modus operandi evidence admissible
under Rule 404(b). Evidence of other acts or wrongs may be
admissible under Rule 404(b) to prove such matters as motive,
intent, scheme, or any other relevant purpose except conduct in
conformity with bad character. Even "the doctrine of chances" has
been invoked as a possible basis for admitting evidence of a victim's
prior false accusation of rape. Similarly, evidence of a victim's prior
sexual activity may be admissible under Rule 412, fhe Texas Rape
Shield Law, when offered to establish the victim's motive or bias
against the defendant.
16
ln sum, several different state ev¡dentiary rufes permit the use
of prior false accusations when offered to show the witness's bias or
motive or for some other relevant, noncharacter purpose. The
Confrontation Clause mandate of Dayrs v. Alaska is not inconsistent
with Texas evidence law. Thus, compliance with a rule of evidence
will, in most instances, avoid a constitutional question concerning the
admissibility of such evidence.25
We now examine the case at bar.
Prior Rape
Appellant argues that the trial court abused its discretion by excluding
May's testimony that he had heard a rumor that Complainant was telling people
that he had sexually assaulted her and Redmon's testimony pertaining to the
afleged incident. Appellant offered May's testimony under rule of evidence
404(b).26 While Appellant now argues that the trial court's ruling abridged cefain
of his constitutional rights, at trial he spoke only of credibility and Rule 4O4(b).
Appellant's complaints at trial do not conform to his constitutional complaints on
appeal; we therefore do not address his constitutional complaints.2T
Additionally, May's testimony dealt with rumors on the street; it did not
constitute testimony of Complainant's repuiation for truthfulness, nor were his
claims that he had heard that she was spreadíng rumors in any way
2uHammer,296
S.W.3d at 564-€6 (footnotes omitted).
26Tex.
R. Evid.404(b).
27see
Tex. R.App P. 33.1(a)(1); Lovilt v. Sfafe, 319 S.W.3d 687,691-92
(Tex. Crim. App. 2009).
17
substantiated to provide a basis for an opinion that she was not worthy of belief
under oath. And to the extent that his testimony was intended to be evidence of
prior false accusations of sexual assault, such testimony is not admissibfe for the
purpose of showing her character conformity or propensity to lie.28
Although Appellant also argues that the evidence was admissible to show
motíve and modus operandi, May candidly admitted that Complainant never
accused him to his face of raping her. His belief that she had accused hlm was
based on rumors that he had heard. The record does not establish confirmation
of May's belief that she falsely accused him of rape. Nor do the rumors he heard
suggest a motive for falsely accusing Appellant or a modus operandi. May said
that Complainant would ask him to have sex with her, and he refused. But we
cannot discern how the rumors he heard that she was accusing him of rape were
ever verified. The record before this court therefore does not establish the
admissibility of this evidence of purported false accusations of rape under rule
404(b).
At trial, Appellant explained in seeking admission of the false accusation
testimony, "the false claim of rape is going to credibility." We hold that the
rumors of false rape accusations were not admissible, and based on the record
before us, that the trial court did not abuse its discretion in denying Appellant's
28See
Hammer 296 S.W.3d at 564.
1B
request to present this evidence before the jury. We overrule Appellant's third
issue.
Redmon's and Brown's Opinion Testimony
ln his fourth and fifth issues, Appellant complains of the exclusion of the
testimony of Redmon and Brown concerning their opinions of Complainant's
credibility. As we understand the record, Appellant appears to have offered
these opinions by having the women explain specific acts that they suspected
had occurred and speculate on others. He did not offer their testimony on any
constitutional basis. We therefore do not address the constiiutionaf arguments
he raises on appeal.2e
Redmon's testimony was based on her belief ihat Complainant had lied
and had told Redmon's daughter to lie about having given Complainant things
that Complainani had stolen from Redmon's daughter. Redmon also believed
that Complainant had lied to her and to her daughter about dating, smoking
marijuana, and being raped. Appellant explained to the trial court that he was
offering Redmon's test¡mony as "possibfe opinion testimony on truthfulness."
Brown believed that Complainant had spread untruthful rumors about her
daughter and that she had stolen her daughter's nail polish. We are not clear on
the legal basis for which Appellant offered this ev¡dence, other than as an opinion
2eSeeTex. R
App P.33.1(aX1); Lovitt,319 S.W.3d at.691-92
19
of Complainant's truthfulness. Judge Keasler has explained for the Ïexas Court
of Criminal Appeals,
[A] less common notion of error preservation comes into play in this
case, although certainly not a novel one. Professors Goode,
Wellborn and Sharlot refer to it as "party responsibility." They
explain it this way:
To the question, which party has the responsibility
regarding any particular matter, it is infallibly accurate to
answer with another question: which party is
complaining now on appeal? This is because in a real
sense both pafiies are always responsible for the
application of any evidence rule to any evidence.
Whichever party complains on appeal about the trial
judge's action must, at the earliest opportunity, have
done everything necessary to bring to the judge's
attention the evidence rule in question and its precise
and proper application to the evidence in question.
The basis for party responsibility is, among other things, Appellate
Rule 33.1 . lt provides that as a prerequisite to presenting a
complaint for appellate review, the record must show that the party
"stated the grounds for the ruling that (he) sought from the trial court
with sufficient specificity to make the trial court aware of the
complaint." So it is not enough to tell the judge that evidence is
admissible. The proponent, if he is the losing party on appeal, must
have told the judge why the evidence was admissible.
We recently discussed this notion in Ma¡tinez y. Sfafe. There,
the defendant moved to suppress oral statements due to the State's
failure to comply with Art. 20.17. The State argued for the first tíme
on appeal that Art. 20.17 did not apply. We concluded that the State
forfeited this argument by failing to bring it to the trial judge's
attention. We explained that "both Texas Rule of Appellate
Procedure 33.1 and Texas Rule of Evidence 103 are 'judge-
protecting' rules of error preservation. The basic principle of both
rules is that of 'party responsibility. "' We recognized that "the party
complaining on appeal (whether rt be the State or the defendant)
about a trial court's admissíon, exclusion, or suppression of evidence
must, at the earliest oppoñunity, have done everything necessary to
bring to the judge's attention the evidence rule or statute in question
20
and its precise and proper applicat¡on to the evidence in question."
The issue, we said, "is not whether the appealing party is the State
or the defendant or whether the trial court's ruling is legally 'correct'
in every sense, but whether the complaining party on appeal brought
to the trial court's attention the very complaint that party is now
making on appeal."
Similarly, in Willover v. State, the defendant soughi to admit
two videotaped interviews of the victim. At trial,
it (was) clear that, although (the defendant) did not
actualfy recite the specific rule of evidence he was
relying upon, (he) sought to admit the videotapes for
impeachment purposes. (He) did not argue, nor was
there any discussion at trial, that the tapes were not
hearsay or that the videotapes were admissible under
any exception to the hearsay rule other than Article
38.071 or for impeachment purposes.
On appeal, the defendant argued for the first time that the
videotapes were not hearsay. We relied on the notion of "party
responsibility" to reject this argument because "(i)n order to have
evidence admitted under a hearsay exception, the proponent of the
evidence must specify which exception he is relyíng upon." lt was
up to the defendant, we said, and "not the trial court, to specify
which exception to the hearsay rule he was relying upon or to
specify how the evidence was not hearsay."
ln some cases, we have applied the "party responsibility"
theory without using those precise words. ln Clark y. Sfafe, the
State presented the testimony of Dr. James Grigson that the
defendant would be a future danger. The defendant sought at trial
to introduce a letter and accompanying report which listed eleven
individuals convicted of capital murder whose sentences had later
been commuted or reduced. ln several of those cases, Dr. Grigson
had predicted that the individual would be a future danger. The trial
coud refused to admit the evidence.
On appeal, the defendant argued that the excluded evidence
was admissible to impeach Dr. Grigson and show that his prior
future dangerousness predictions had turned out to be incorrect.
But the defendant had not articulated this basis for admission at trial.
At trial, he had argued the evidence was admissible to impeach
21
statements that Dr. Grigson had made in Lubbock County. The
State had objected that the impeachment went to a collateral matter,
and the trial judge had agreed.
We rejected the defendant's argument on appeal because he
"did not clearly articulate" that he wanted to admit the evidence to
demonstrate Grigson's past mistakes in predicting future
dangerousness. We said that the trial judge "never had the
opportunity to rule upon (the defendant's) appellate rationale." Since
the defendant "did not sufficiently clearly expressly offer the
evidence for the purpose which he now claims on appeal," that
argument could not be raised on appeal.
Finally, in Jones v. Sfafe, the defendant sought at trial to admit
the grand jury testimony of a witness who asserted her Fifih
Amendment privilege against self-incrimination and refused to
testify. The State objected, claiming hearsay. We concluded that
the defendant failed to preserve error because he never specified
whích portions of the wítness's testimony he wanted to admit into
evidence. We said:
The trial court need never sort through challenged
evidence in order to segregate the admissible from the
excludable, nor is the trial court required to admit only
the former part or exclude only the latter part. lf
evidence is offered and challenged which contains
some of each, the trial court may safely admit it all or
exclude it all, and the losing party, no matter who he ís,
will be made to suffer on appeal the consequences of
his insufficiently specific offer or objection. ln this case,
because the trial court chose to exclude the evidence,
appellant is the party adversely affected by his own
default. Because appellant failed to specify which
portion of the transcript he intended to introduce into
evidence, the couÍ was presented with a proffer
containing both admissible and inadmissible evidence.
When evidence which is
partlally admissible and
partially inadmissible is excluded, a party may not
complain upon appeal unless the admissible evídence
was specifically offered.
22
Application
ln this case, Reyna argued to the trial judge that the evidence
should be admitted for "credibility." He said that he was "not offering
it to prove the truth of the matter asserted" and "not offering it to go
into her sexuality." lnstead, he argued, "l'm offering to it
demonstrate that as to prior sexual activities, that she made
allegations that there were prior sexual allegations, and recanted."
Reyna did not cite to any rules of evidence, cases, or
constitutional provisions. Reyna's references to "the truth of the
matter asserted" reflect that he was arguing that the evidence was
not hearsay under Evidence Rule 801(d). His claim that he was not
offer¡ng it "to go into her sexuality" reflects his argument that the
evidence should not be excluded under Evidence Rule 412(b).
These arguments are both based on the Rules of Evidence.
Reyna's reference to "credibility" could be a reference to either the
Rules of Evidence or the Confrontation Clause.
Reyna told the trial judge that the purpose of admitt¡ng the
evidence was to attack the victim's credibility, but he did not provide
the basis for admitting the evidence. He could have been relying on
the Rules of Evidence or the Confrontation Clause. lt was up to the
judge to discern some basis for admitting the evidence.
We have said that "(t)he purpose of requiring (an) objection is
to give to the trial court or the opposing party the opportunity to
correct the error or remove the basis for the objection." When a
defendani's objection encompasses complaints under both the
Texas Rules of Ëvidence and the Confrontation Clause, the
objection is not sufficiently specific to preserve error. An objection
on hearsay does not preserve error on Confrontation Clause
grounds.
Although this case involves a proffer of evidence rather than
an objection, the same rationale applies. Reyna did not argue that
the Confrontation Clause demanded admission of the evidence.
Reyna's arguments for admitting the evidence could refer to either
the Rules of Evidence or the Confrontation Clause. His arguments
about hearsay did not put the trial judge on notice that he was
making a Confrontation Clause argument. Because Reyna "did not
clearly articulate" that the Confrontation Clause demanded
admission of the evidence, the trial judge "never had the opportunity
to rule upon" this rationale. As the losing party, Reyna must "suffer
on appeal the consequences of his insufficiently specific offer,"
Reyna did not do "everything necessary to bring to the judge's
attention the evidence rule or statute in question and its precise and
proper application to the evidence in question.
ln the case now before this court, Appellant offered the evidence on the
vague basis of "possible" opinion iestimony. He did noi sustain his burden of
explaining to the trial court on the record, and by extension to us, why Redmon's
and Brown's testimony was admissibf e-whether under an evidentiary rule or
statute, as an exception to an evidentiary rule or statute, or under a constitutional
provision. We therefore overrule Appellant's fourth and fifth issues.
Conclusion
Having overruled Appellant's five issues on appeal, we affirm the trial
court's judgments.
isl Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: August 6, 2015
31Reyna v. State, 168 S.W.3d 173, 176-79 (Tex. Crim. App. 2005)
(citations omitted).
24
APPENDIX D
Court of Appeals Order denying Appellec's
Motion for Rehearing dated
August 28,2015
I ll i: i.tÛt,\
COURT OF APPBALS
StrCOND DISTRICT OF' TEXAS
FORI'WORTH
NO. 02-13-00532-CR
THOMAS JEFFERSON APPELLANT
SMALLWOOD, JR.
THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO- 1343309R
ORDER
We have considered "Appellant's Motion For Rehearing."
It is the opinion of the court that the motion for rehearing should be and is
hereby denied and that the opinion and judgment of August 6, 2015 stand
unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.
SIGNED August 28, 2015.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.