Sanford Hood v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-307-CR



SANFORD HOOD,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 104,494, HONORABLE JON N. WISSER, JUDGE PRESIDING

Appellant Sanford Hood was convicted of aggravated sexual assault of a child under the age of fourteen years. Tex. Penal Code Ann. § 22.021(a)(1)(A)(i)(B) (West 1989). After the jury found appellant guilty, the trial court assessed punishment at fifty years' imprisonment.

Six points of error are advanced. In the first three points of error, appellant contends that the trial court erred in excluding evidence that the twelve-year-old complainant, subsequent to the alleged offense, had requested and was given a prescription for birth control pills, and had indicated that she was sexually active between February 13 and 26, 1990. Appellant urges that he was denied cross-examination of the complainant as to this latter matter. In his fourth point of error, appellant asserts that the trial court erred in excluding evidence that the complainant claimed that before the date of the alleged offense, she had become pregnant as a result of sexual intercourse with appellant. The fifth point of error advances the contention that the trial court erred in admitting evidence of the "so-called sexual abuse syndrome." Lastly, appellant claims that the trial court erred in denying appellant access to a tape-recorded interview of the complainant for the purpose of cross-examination. We will affirm the conviction.

The sufficiency of the evidence to sustain the conviction is not challenged. A brief recitation of the facts will place the points of error in proper prospective. The complainant, L D , was twelve years and eight months old on January 2, 1990, when she testified that the alleged offense occurred. Appellant was forty-six years old when, in addition to other acts alleged in the indictment, he had vaginal and anal intercourse with L D . During much of 1988 and 1989, L D and her two sisters and a brother lived with their maternal grandmother, Jean Jones, and the grandmother's "boyfriend," Charles Hood, appellant's younger brother. The home was in Manor. L D 's mother lived there part of the time in question.

L D met appellant sometime in 1988 when he brought Charles home from work. Appellant owned a plumbing business and his brother worked for him. In 1989, appellant began dating Rhonda, L D 's mother, and about the same time he also began dating Minnie Horton. Appellant was separated from his wife, Lavoyne, a distant cousin and a close friend of Jean Jones. While Rhonda was dating appellant, she and her children often spent the night at appellant's house at 1038 Clayton Lane in Austin. Appellant took the children to the movies, skating, and attempted to teach them to drive an automobile. After Rhonda quit dating appellant, the children, including L D , continued to make weekend visits to appellant's house.

In the summer of 1989, Rhonda married Eddie Humphries. In November 1989, appellant returned to his wife. Minnie Horton moved into the house at 1038 Clayton. After Thanksgiving 1989, L D and her siblings ran away from their mother's home and began living again with their grandmother, Jean Jones, in Manor. According to L D , in 1988 or 1989, she began to have secret meetings with appellant. Sometimes, appellant would pick her up several blocks away from her grandmother's house and they would go to 1038 Clayton Lane. L D related that appellant met her on January 2, 1990, about 4:00 p.m., and drove to the Clayton Lane house where the alleged offense occurred.

Jean Jones testified that about 7:15 a.m. on January 22nd, she received a telephone call from Lavoyne Hood. As a result, she confronted L D and inquired why L D had called appellant's house earlier that morning. L D eventually responded that she had called appellant so they could "go and have sex." When asked about January 2, 1990, L D told her grandmother that she and appellant had gone "to Minnie's house" to have sex. The police were contacted.

On January 23, 1990, L D gave a written statement to the police, who referred her to the Planned Parenthood offices for a medical examination. On the same date, Dr. Roberta Braun conducted a pelvic examination of L D at the Planned Parenthood facilities. The examination was "compatible with someone who had been sexually active." A PAP smear also revealed the presence of trichomonas which is "considered a sexually transmitted disease." L D testified that appellant and George Jackson were the only individuals with whom she had been sexually active, and she had been with Jackson only once.

Appellant denied the offense alleged in the indictment. He testified that he had worked on January 2, 1990, digging a sewer line at 1611 Berene Street in Austin, and that he did not complete the job until 5:00 or 5:30 p.m. that day. Appellant introduced two invoices showing his purchase of materials on January 2, 1990. Minnie Horton testified that she did not work on January 2, 1990, and that she was home at 1038 Clayton Lane all day. She denied that appellant or L D were at her house on that day.

In his first point of error, appellant urges that the trial court erred in excluding evidence that on L D 's initial visit to the offices of Planned Parenthood she had requested and was given a prescription for birth control pills by Dr. Braun. In perfecting his bill of exception, appellant established, out of the jury's presence, the request and the execution of the prescription. Dr. Braun stated that L D indicated she was contemplating future sexual activity with a thirteen- or fourteen-year-old boy. L D did not indicate to the doctor that she had already had sex with the boy. The trial court sustained the State's objection on the basis of Rule 412. Tex. R. Crim. Evid. 412. This rule provides in pertinent part:

(b) In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:

(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;

(2) it is evidence (A) that is necessary to rebut or explain scientific or medical evidence offered by the state; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that related to the motive or bias of the alleged victim; (D) is admissible under rule 609; or (E) that is constitutionally required to be admitted; and

(3) its probative value outweighs the danger of unfair prejudice.

Tex. R. Crim. Evid. 412(b).

In his brief, appellant urges that the post-offense request for and the giving of a prescription for birth control pills were admissible under exceptions to rule 412(b). He contends that this testimony was admissible (1) to rebut or explain the medical examination offered by the State and (2) because it related to the motive or bias of L D . Tex. R. Crim. Evid. 412(b)(2)(A) & (C). When this testimony was proffered by appellant, he did not urge its admission on this basis. When it was excluded by the trial court, appellant did not object that the testimony was admissible as exceptions to rule 412(b). See Tex. R. App. P. 52(a). When trial objections do not comport with the complaints on appeal, nothing is presented for review. Fuller v. State, 827 S.W.2d 919, 928 (Tex. Crim. App. 1992); Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2914 (1991). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

Even if this were not true, appellant now merely asserts these exceptions to the rule and does not brief the contention in accordance with Rule 74(f). See Tex. R. App. P. 74(f). We also fail to see how the excluded testimony constitutes a specific instance of past sexual behavior as contemplated by Rule 412. If it does, then it does not rebut or explain the medical evidence offered by the State or show the motive or bias of L D . Error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected. Tex. R. Crim. Evid. 103(a). Point of error one is overruled.

In his second and third points of error, appellant urges that the trial court erred in excluding evidence and denying him the right to cross-examine L D about statements she made during a visit to the Planned Parenthood offices that she had been "sexually active" between February 13 and February 26, 1990. It appears that after L D 's initial visit to the Planned Parenthood offices on January 23, there were subsequent visits on February 7, 13, and 26, 1990. On these latter visits, she was asked whether she was "currently sexually active." On February 7 and 13, L D responded in the negative. On February 26, she gave an affirmative answer and stated that she used foam as a contraceptive. The trial court expressly excluded the evidence under Rule 412(b). Assuming that appellant offered the evidence or timely objected to the exclusion of the evidence on the basis of Rule 412(b)(2)(A), (C), we do not find that L D 's statement that she had been sexually active between February 13 and 26 rebutted or explained the medical evidence of a previous pelvic examination on January 23, or showed bias or prejudice.

The right of cross-examination is secured to the defendant in a criminal case by the federal and state constitutional guarantees of an accused's right to confront the witnesses against him. 24 Tex. Jur. 3d, Criminal Law § 3293 at 696 (1982). The Sixth Amendment's right of confrontation and cross-examination is a fundamental right and is applicable to the states by virtue of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965); Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991). The confrontation clause of the Sixth Amendment does not, however, prevent the trial court from imposing reasonable limits on the right of cross-examination. On the contrary, trial courts retain a wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on cross-examination, based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness's safety or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Ramos v. State, 819 S.W.2d 939, 941 (Tex. App.--Corpus Christi 1991, pet. ref'd). "[T]he confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish." Delaware v. Fenstorer, 474 U.S. 15, 20 (1985). Thus, the confrontation clause is not a talisman justifying forays into matters that are collateral to the issues at trial. See Gutierrez v. State, 764 S.W.2d 796, 799 (Tex. Crim. App. 1989); Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980).

A defendant is entitled to a fair opportunity to cross-examine a State's witness. However, cross-examination must comply with the rules of evidence and its scope lies within the sound discretion of the trial court. Wright v. State, 491 S.W.2d 936, 939 (Tex. Crim. App. 1973); Burrough v. State, 672 S.W.2d 860, 871 (Tex. App.--Corpus Christi 1984, no pet.); Morgan v. State, 644 S.W.2d 766, 772 (Tex. App.--Dallas 1982, no pet.); see also Tucker v. State, 771 S.W.2d 523, 531-32 (Tex. Crim. App. 1988). In the instant case, the trial court restricted the cross-examination of L D only to the extent of non-compliance with the rules of evidence.

Great latitude, of course, should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive, and animus upon the part of any witness testifying against him. Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987); Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984). The right of confrontation, however, does not prevent the trial court from imposing some limits on cross-examination into the bias of a witness. Hurd, 725 S.W.2d at 252. The trial court retains some discretion in deciding how and when bias may be proved, and what collateral evidence is admissible for that purpose. Green v. State, 676 S.W.2d 359, 363 (Tex. Crim. App. 1984). Texas courts have been reluctant to find prior sexual history evidence to be material. Boyle v. State, 829 S.W.2d 122, 128 (Tex. Crim. App. 1989). Generally, the application of rape shield laws do not unduly restrict an accused's substantive rights of confrontation. Pinson v. State, 778 S.W.2d 91, 95 (Tex. Crim. App. 1989); Allen v. State, 700 S.W.2d 924, 930 (Tex. Crim. App. 1985).

In the instant case, the trial court applied the two-part test for the admissibility of past sexual behavior. Boyle, 820 S.W.2d at 148. Moreover, appellant has failed to show a reasonable basis for believing that L D 's statement of sexual activity between February 13 and 26 was pertinent. Absent such a showing, questions or testimony regarding the statement were properly excluded. Appellant was not denied his right to cross-examination under either the federal or state constitutions. ⁽¹⁾ Points of error two and three are overruled.

In point of error four, appellant contends that the trial court erred by excluding evidence that the complainant claimed that she had been pregnant as a result of sexual intercourse with appellant prior to the date of the alleged offense. Appellant urges that the claim was a false prior accusation which rendered the evidence admissible. The State argues that the complainant's assertion was a disclosure, not an accusation, false or otherwise, and that the evidence was inadmissible.

Appellant appears to rely on the proposition that if the evidence shows that a complainant has previously made false accusations of sexual misconduct the trial court errs in excluding such testimony (assuming the proper predicates have been established). This is so even though specific acts of misconduct are generally inadmissible for impeachment purposes. See Giles v. Maryland, 386 U.S. 66, 75-76 (1967); Rushton v. State, 695 S.W.2d 591, 594 (Tex. App.--Corpus Christi 1985, pet. ref'd).

In March of 1990, L D was interviewed by Sally Williams, a counselor with the district attorney's office. L D stated that sometime in 1988 or 1989 she became pregnant by appellant, the only man with whom she had had sex at the time. ⁽²⁾

Her pregnancy was verified by a "home pregnancy kit" purchased by appellant. Minnie Horton, one of appellant's girlfriends, took L D to Brackenridge Hospital where a doctor confirmed her pregnancy. Later, appellant took her to a place "near Seton Hospital" where a lady in a white coat told L D she was pregnant. L D related that she subsequently had a miscarriage at appellant's house after a fall. Appellant cleaned up the blood clots and discharge. Williams's notes were made available to appellant before trial.

In a hearing outside the jury's presence, appellant's counsel interrogated L      D     about her interview with Williams and then sought to have that testimony produced before the jury. Appellant's counsel claimed that the statements were false because it would be shown that appellant had been sterile most of his life and that he could not have caused the pregnancy. No proof of sterility was offered at the time. When questioned by the trial court, appellant's counsel agreed that the defense theory was to show that L D was sexually active with one other person and the motive for the accusation against appellant was to cover up activity with a third person. The prosecutor objected to the admission on the basis of Rule 412(b). The objection was sustained.

Subsequently, before the jury, appellant testified that he was sterile, that he had no children though married twice, and that his wives had had children by other husbands. In the absence of the jury, appellant related that in 1977 he had been tested by an unidentified doctor who had informed him that he had a low sperm count. He had not been tested again. Thereafter, appellant reoffered L D 's testimony claiming a false prior accusation. The trial court sustained the State's objection based on Rules 412(b) and 608(b). Tex. R. Crim. Evid. 412(b), 608(b). ⁽³⁾

Even if rules prohibiting the admission of specific acts of misconduct for impeachment must give way to evidence of a previous false accusation of sexual misconduct, Giles, 386 U.S. at 75-76, appellant has failed to establish the falsity of L    D    's assertion that she had been impregnated by appellant. See Rushton, 695 S.W.2d at 594. This fact distinguishes the instant case from those cited by appellant. See Beckley v. State, 827 S.W.2d 74, 76-77 (Tex. App.--Fort Worth 1992, no pet.); Polvado v. State, 689 S.W.2d 945, 949-50 (Tex. App.--Houston [1st Dist.] 1985, pet. ref'd); Thomas v. State, 669 S.W.2d 420, 421-23 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd). Moreover, the issue of consent is clearly irrelevant to a prosecution under section 22.011(a)(2) of the Penal Code. Hernandez v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993).

Error may not be predicated upon a ruling excluding evidence unless a substantial right of the party is affected. Tex. R. Crim. Evid. 103(a). A trial court has broad discretion to admit or exclude evidence. That decision will not be overturned on appeal absent a showing of an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990). Point of error four is overruled.

In his fifth point of error, appellant contends that the trial court erred by admitting evidence of the "so-called child sexual abuse syndrome." Nancy Joe Bergeron, a counselor with the Rio Grande Counseling Center for two years, testified that she had a degree in Child Development and Family Living and a master's degree in Guidance and Counseling. She had counseled seventy children, fifty-five of whom had been sexually abused. During counseling sessions with L D , Bergeron found L D depressed, with feelings of guilt and fear, and observed that L D displayed anger in talking about certain subjects. She described these behavioral characteristics as being common among sexually abused children.

Appellant objected to this testimony before it was offered on the grounds that the witness was not sufficiently qualified to give such testimony; that the evidence was not relevant, and that, if it was, the probative value of the evidence was substantially outweighed by its prejudicial effect; and that the evidence was not of a specialized nature as to assist the jury in understanding the evidence or any issue of fact in the case. The decision whether to allow the testimony of an expert witness under Rule 702 is within the sound discretion of the trial court. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Tex. R. Crim. Evid. 702. The trial court's decision shall not be overturned except upon a showing of an abuse of that discretion. Amos v. State, 819 S.W.2d 156, 163 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 1959 (1992); McIntosh v. State, 855 S.W.2d 753, 767 (Tex. App.--Dallas 1993, pet. ref'd).

Other than to assert that Bergeron did not have the same qualifications as the expert witness in Duckett, appellant has not briefed the complaint that Bergeron was not qualified as a witness. See Tex. R. App. P. 74(b). The trial court has the discretion to determine whether a witness offered as an expert possesses the requisite qualifications. Steve v. State, 614 S.W.2d 137, 139 (Tex. Crim. App. 1981). The special knowledge that qualifies a witness to give an expert opinion may be achieved through a study of technical works, through specialized education and practical experience, or through a combination of these means. Holloway v. State, 613 S.W.2d 497, 501 (Tex. Crim. App. 1981); Trevino v. State, 783 S.W.2d 731, 733 (Tex. App.--San Antonio 1989, no pet.). In addition to her degrees, her experience, and the number of sexually abused children she counseled, Bergeron, a former pre-school teacher, continued to attend numerous seminars and do extensive reading in the field of child sexual abuse. The record supports the trial court's implicit determination that Bergeron possessed sufficient qualifications. Steve, 614 S.W.2d at 139; Trevino, 783 S.W.2d at 733-34.

Appellant complains that the proffered expert testimony was not shown to be of such a specialized nature that it would help the jury to understand the evidence or a fact in issue in this case. Appellant has not specifically briefed this contention. See Tex. R. App. P. 74(f); Pierce v. State, 777 S.W.2d 399, 418 (Tex. Crim. App. 1989). Bergeron testified as to what specific behavioral characteristics are common among sexually abused children. This is not a matter of common knowledge. See Duckett, 797 S.W.2d at 917. Appellant's contention is without merit.

Appellant principally relies upon Duckett to sustain his point of error. He argues under Duckett that the expert testimony is not admissible as substantive evidence, and becomes admissible only where the child witness has been effectively impeached on matters concerning the circumstances of the alleged offense, and the proffered testimony specifically relates to the very matters upon which the witness was impeached. To the extent that Duckett may be so read, it has now been disapproved. Cohn, 849 S.W.2d at 819. Point of error five is overruled.

Lastly, appellant complains that the trial court erred in denying him access to a tape-recorded interview of the complainant. After L D testified on direct examination, appellant, upon request, was furnished the written statements of the witness given on January 23, 1990, for the purposes of cross-examination and possible impeachment. The written notes of counselor Bergeron were also given to appellant. Later, during the trial, the prosecutor informed the trial court of a taped interview with L D . After an in camera inspection of the tape, the trial court denied appellant's request for production and inspection of the tape.

Appellant asks this Court to review the tape recording to determine whether it contains any matter which is (1) inconsistent with L D 's testimony, (2) consistent with appellant's defenses, or (3) favorable to appellant on the issue of guilt or innocence. Appellant urges us to follow the procedure articulated in Cullen v. State, 719 S.W.2d 195 (Tex. Crim. App. 1986). Cullen did extend the Gaskin rule ⁽⁴⁾ to cover tape-recorded statements of a witness. Id. at 197; Menke v. State, 740 S.W.2d 861, 866 (Tex. App.--Houston [14th Dist.] 1987), cert. denied, 490 U.S. 1067 (1989). The Gaskin rule under which Cullen was decided has been subsumed by Rule 614 of the Texas Rules of Criminal Evidence. See Washington v. State, 856 S.W.2d 184, 188 n.4 (Tex. Crim. App. 1993). Rule 614 has expanded the Gaskin rule. 1 Steven Goode, Olin Guy Wellborn III, and M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 615.1 at 665-66 (Texas Practice, 2d ed. 1993) (hereinafter Goode). Tape-recorded statements are expressly within the scope of the rule. See Tex. R. Crim. Evid. 614(f)(2).

When interpreting Rule 614, it is appropriate to look to the prior interpretation of the Gaskin rule. Jenkins v. State, No. 71,040, slip op. 7 (Tex. Crim. App. May 5, 1993) (rehearing pending). The rule is more of a discovery rule than a rule of evidence. Goode, § 615.1 at 665. In the instant case, the State takes the position that the taped interview was the work-product of the prosecution and it was not required to produce the taped statement. See Tex. Code Crim. Proc. Ann. art. 39.14 (West 1979).

In Cullen, the Court of Criminal Appeals examined the scope of the work-product rule in determining whether the recording of interviews with witnesses are discoverable. 719 S.W.2d at 198; see also Washington, 856 S.W.2d at 188. At one extreme, a recording of a statement made by a witness without any questions by the interviewer is clearly discoverable. At the other extreme, a recording is not discoverable if it contains only comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case. If the recording falls within the two extremes, the trial court must examine it in camera, decide which portions are discoverable, and order a copy of the tape containing those portions to be delivered to the party requesting it. Washington, 856 S.W.2d at 198.

In the instant case, the trial court made an in camera inspection of the tape after the request for production, the objections and ensuing argument. The trial court refused the request for production and had the entire tape made a part of the appellate record. Our examination of the tape reflects that the recording was protected work-product. Part of the tape involves the prosecutor instructing the witness to tell the truth at trial, to be sure of her answers to questions, and not to guess. Other like instructions followed. The balance of the tape dealt with questions by the prosecutor or counselor Williams propounded to the witness. The taped interview was the apparent disclosure by L D to the prosecutor that she had been impregnated by appellant at a date earlier than that of the alleged offense. The questions principally concerned the pregnancy tests, the witness's fall, and the subsequent miscarriage. The tape was clearly not a recording of a statement made by a witness without questions by the interviewer. The trial court did not err in refusing the request for production. Id. at 190.

If it can be argued that the tape-recorded statement was producible under Rule 614, we conclude that any error in the trial court's action was harmless, even if it can be said that the recorded statement related to the subject matter concerning which the witness testified. Tex. R. Crim. Evid. 614(a). The test for harmfulness of any error under Rule 614 is whether the defendant was denied effective cross-examination and possible impeachment of the witness. Jenkins, No. 71, 040, slip op. at 12; see also Cullen, 719 S.W.2d at 196-98; Mayfield v. State, 758 S.W.2d 371, 375 (Tex. App.--Amarillo 1988, no pet.). There was no material inconsistency between L D 's testimony and her recorded statements. There was no value in the recording for purposes of impeachment, and this was particularly true in light of the trial court's decision, upon appellant's original request, to exclude evidence of extraneous sexual conduct between appellant and L D . There was nothing in the tape recording consistent with appellant's defense or favorable to him on the issue of guilt or innocence.

Sally Williams, a counselor with the prosecutor's office, was present during the taped interview. As noted in the discussion of point of error four, her notes were made available to appellant before the trial commenced. Appellant's counsel was afforded a pre-trial opportunity to interview the complainant, and before the conclusion of the guilt/innocence stage of the trial, the prosecutor's notes of the taped interview were made available to appellant. ⁽⁵⁾ Appellant was not denied effective cross-examination or possible impeachment of the witness. Point of error six is overruled.

The judgment is affirmed.

John F. Onion, Jr., Justice ⁽⁶⁾

Before Justices Jones, Kidd and Onion^*

Affirmed

Filed: June 15, 1994

Do Not Publish

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1.   Appellant has not cited and we have not found any judicial decision construing the state constitutional provision as imposing a greater level of protection than the federal standard discussed. Appellant has not presented any compelling argument for such action on our part, and we do not perceive any justification for doing so in the instant case. See Gonzales v. State, 818 S.W.2d 756, 764 (Tex. Crim. App. 1991); DeFreece v. State, 829 S.W.2d 251, 256 n.3 (Tex. App.--El Paso 1992), rev'd on other ground, 848 S.W.2d 150 (Tex. Crim. App. 1993).

2.   L D stated her single sexual encounter with George Jackson occurred after her pregnancy and subsequent miscarriage. She related that appellant and Jackson were the only men with whom she had sex.

3.   Tex. R. Crim. Evid. 608(b) provides:

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purposes of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

4.   Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1967).

5.   Notes by the interviewer or other persons are, of course, not the same as the written or taped statement of a witness for the purpose of cross-examination and possible impeachment.

6.   The indictment alleged three prior felony convictions for enhancement of punishment. The trial court apparently chose not to utilize these convictions in assessing punishment in this 1992 trial. At the penalty stage of the trial, appellant's counsel objected that the copy of a 1964 judgment of conviction from Bexar County furnished to him by the State did not contain the signature "of Judge John F. Onion, Jr., of course, who is long since deceased, on that judgment." (emphasis supplied). To borrow from Mark Twain, reports of my death have been "greatly exaggerated."