Opinion
NO. 12-22-00195-CR
06-30-2023
W. Stephen Shires, Center, for Appellant. Jonathan H. Richey, for Appellee.
W. Stephen Shires, Center, for Appellant.
Jonathan H. Richey, for Appellee.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
James T. Worthen, Chief Justice
John Wesley Allen, Jr. appeals his conviction for continuous sexual abuse of a young child. In two issues, Appellant argues that (1) when the trial court overruled his motion to copy the forensic interview of the victim conducted by the local Child Advocacy Center, it abused its discretion because it improperly relied on an unconstitutional statute in reaching that decision and (2) the trial court abused its discretion by sustaining the State's objection to his attempt to elicit testimony from the victim about his sexual history. We affirm.
BACKGROUND
Appellant was charged by indictment with continuous sexual abuse of a young child and pleaded "not guilty." Prior to trial, Appellant filed a Motion to Permit Inspection/Copy of various pieces of the State's evidence, including the forensic interview of the victim conducted by the local Child Advocacy Center. Following a hearing on the matter, the trial court denied Appellant's motion. The matter proceeded to a jury trial. The jury found Appellant "guilty" as charged and, following a trial on punishment, assessed his punishment at imprisonment for life. The trial court sentenced Appellant accordingly, and this appeal followed.
CONSTITUTIONALITY OF ARTICLE 39.15(d)
In his first issue, Appellant argues that Texas Code of Criminal Procedure, Article 39.15(d), upon which the trial court partially relied in denying his motion to copy the forensic interview of the victim, is an unconstitutional violation to his procedural due process rights.
Appellant notes in his brief, as he argued to the trial court, that Article 39.15(c) is inapplicable under the facts of the instant case. Appellant acknowledges, however, that Texas Family Code, Section 264.408 similarly requires a trial court to deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce an electronic recording of an interview conducted by a child advocacy center, provided that the prosecuting attorney makes the electronic recording reasonably available to the defendant in the same manner as property or material may be made available to defendants, attorneys, and expert witnesses under Article 39.15(d). Compare Tex. Code Crim. Proc. Ann. art. 39.15(c) (West 2018) with Tex. Fam. Code Ann. § 264.408(d-1) (West Supp. 2022); see also State v. Esparza , 413 S.W.3d 81, 92 (Tex. Crim. App. 2013) ("Generally, appellate courts will not find compelling reasons to order further trial proceedings if the record reveals a valid legal basis for upholding the trial court's ruling, even if that basis was not articulated to the trial court").
In his brief Appellant states generally that his constitutional challenge to Article 39.15(d) is both "facial" and "as-applied." However, Appellant cites no evidence to support how the statute, as applied to him, is unconstitutional. Instead, Appellant observes in several hypothetical scenarios how the statute is "unduly burdensome" and "unnecessary" to defendants and their attorneys generally. But in no instance, does Appellant set forth that any such resultant burdens from the statute's application, in fact, befell him, his counsel, or his expert witness in this case. Because Appellant has not sought to demonstrate how the statute was unconstitutionally applied to him, as opposed to others hypothetically, his as-applied challenge is not sufficient. See State ex rel. Lykos v. Fine , 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) ("Because a statute may be valid as applied to one set of facts and invalid as applied to a different set of facts, a litigant must show that, in its operation, the challenged statute was unconstitutionally applied to him; that it may be unconstitutional as to others is not sufficient (or even relevant)").
Standard of Review
A trial court's ruling on pretrial discovery is reviewed for an abuse of discretion. Sopko v. State , 637 S.W.3d 252, 256 (Tex. App.–Fort Worth 2021, no pet.). Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14–15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. A party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute operates unconstitutionally in all of its applications. State ex rel. Lykos v. Fine , 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). In a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, rather than how it operates in practice. Id.
Governing Law
Texas Code of Criminal Procedure, Article 34.14 requires that the state produce certain material evidence in its possession in a criminal proceeding. See TEX. CODE CRIM. PROC. ANN. art 39.14(a) (West Supp. 2022). Article 34.14 sets forth that it is subject to the restrictions provided by Article 39.15 and Texas Family Code Section 264.408(d-1). See id. Section 264.408(d-1) provides that an electronic recording of an interview with a child under Section 264.408(d) is subject to production under Texas Code of Criminal Procedure, Article 39.14. See TEX. FAM. CODE ANN. § 264.408(d-1) (West Supp. 2022). However, Section 264.408(d-1) further provides that a court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce an electronic recording of such an interview, provided that the prosecuting attorney makes the electronic recording reasonably available to the defendant in the same manner as property or material may be made available to defendants, attorneys, and expert witnesses under Texas Code of Criminal Procedure, Article 39.15(d). See id. § 264.408(d-1). Article 39.15(d) provides that material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the material by the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial. See TEX. CODE CRIM. PROC. ANN. art. 39.15(d) (West 2018).
Discussion
Appellant argues that Section 39.15(d) is facially unconstitutional because it violates his procedural due process rights. Specifically, he contends that, implicit in the requirements of procedural due process, is the right of the defendant to have possession or knowledge of the opposing evidence within a reasonable time frame and under the proper circumstances, which allows his counsel fully to prepare for trial. And, according to Appellant, Article 39.15(d) violates these requirements by placing unduly burdensome and unnecessary limitations on a defendant's ability to prepare for trial.
Appellant suggests that analysis of this issue in a procedural-due-process context is a "largely unexplored" issue of law. We disagree. In Gonzalez v. State , the First Court of Appeals similarly considered this issue, both in the context of a defendant's right to cross examination under the Confrontation Clause and, necessarily, with regard to his due process rights. See Gonzalez v. State , 522 S.W.3d 48, 57–58 (Tex. App.–Houston [1st Dist.] 2017, no pet.) (setting forth appellant's third issue with reference to both Amendments VI and XIV of United States Constitution ). In Gonzalez , Appellant argued that "his limited access to the [victims’] forensic interviews under Article 39.15 interfered with his counsel's and his expert's preparations[.]" Similarly, Appellant argues that Section 39.15(d) violates his procedural-due-process rights because it interferes with his right to have possession or knowledge of the opposing evidence within a reasonable time frame and under the proper circumstances so that his counsel fully can prepare for trial.
"[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes v. S. Carolina , 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L.Ed.2d 503 (2006). However, no state may deprive any person of life, liberty, or property, without due process of law. See U.S. CONST. amend. XIV. And evidentiary rules should not infringe upon defendant's ability to present a complete defense. See Holmes , 547 U.S. at 324, 126 S. Ct. at 1731 ; Smith v. State , 236 S.W.3d 282, 292 (Tex. App.–Houston [1st Dist.] 2007, pet. ref'd) ; see also Gonzalez , 522 S.W.3d at 60. Like the appellant in Gonzalez , Appellant relies heavily on the holding in Davis v. Alaska , 415 U.S. 308, 320, 94 S. Ct. 1105, 1112, 39 L.Ed.2d 347 (1974). In Davis , the Supreme Court sought to determine whether a defendant's rights under the Sixth Amendment's Confrontation Clause could overcome a state's interest in keeping juvenile records confidential. See id., 415 U.S. at 309, 94 S. Ct. at 1107. The Court held that under the specific facts presented, Davis's confrontation rights would be violated if he could not show the potential bias of the juvenile witness against him. Id. , 415 U.S. at 319, 94 S. Ct. at 1112. The facts before the court showed that the juvenile witness was on probation for burglarizing two cabins and had the potential for bias when an emptied safe was found near his family's property. Id. , 415 U.S. at 310–11, 317–18, 94 S. Ct. at 1107–08, 1111.
After extensive discussion of Davis , the court of appeals in Gonzalez noted that the court of criminal appeals held that Davis is limited by its facts because, there, the defendant completely was deprived of the opportunity to develop his theory of the witness's "patently obvious" bias or motive for testifying. See Gonzalez , 522 S.W.3d at 62 (citing Carmona v. State , 698 S.W.2d 100, 104–105 (Tex. Crim. App. 1985) ). Thus, it opined, Davis is not a per se rule mandating the reversal of a conviction limiting cross examination into juvenile offenses but a rationale that criminal defendants be allowed an effective cross examination. See Gonzalez , 522 S.W.3d at 62 (citing Carmona , 698 S.W.2d at 103–04 ). The court in Gonzalez decided that Davis addresses the admissibility of testimony when the questioner can show a logical connection between the testimony and the witness's bias, not the access a defendant must have to impeachment evidence generally in order to prepare for cross examination. See Gonzalez , 522 S.W.3d at 63. Thus, the court concluded that Davis was inapplicable to the issue of whether access to evidence without being afforded the opportunity to copy it is sufficient to allow for a defendant to prepare for cross examination. See id. (citing In re W.E.J , 494 S.W.3d 178, 180 (Tex. App.–Waco 2015, pet. denied) ). We agree with the reasoning of our sister courts both in Gonzalez and W.E.J. and likewise hold that Davis is limited by its facts and inapplicable to the issue Appellant raises in the case at hand.
We reiterate that we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily and the burden rests upon Appellant to establish that the statute is unconstitutional. See Ex parte Lo , 424 S.W.3d at 14–15. In spite of the denial of a motion to copy material evidence under the mandates set forth herein, Article 39.15(d) undoubtedly provides a defendant, his counsel, or his expert witness the opportunity to access and review information necessary to prepare for trial. See TEX. CODE CRIM. PROC. ANN. art 39.15(d). The fact that a defendant's counsel must review the information, as Appellant describes it, "in the den of the enemy" during normal business hours, rather than in the "comfortable confines of his office" whenever he chooses, does not serve to render Section 39.15(d) facially unconstitutional in violation of a defendant's procedural due process rights. See id. ; In re W.E.J , 494 S.W.3d at 180 ; cf. Powell v. Hocker , 516 S.W.3d 488, 497 n.15 (Tex. Crim. App. 2017) (analyzing different statutory provision prohibiting defendant from receiving copies of discovery material, court noted, "That it might be more convenient ... for a defendant to be able also ‘to have copies’ of those materials does not mean that a legislative ban on obtaining copies violates ... due process"). Thus, we hold that the trial court did not abuse its discretion in denying Appellant's motion based on its reliance on Section 39.15(d). Appellant's first issue is overruled.
TESTIMONY REGARDING VICTIM'S PREVIOUS SEXUAL CONDUCT
In his second issue, Appellant argues that the trial court abused its discretion in sustaining the State's objection to his attempt to cross examine the victim about whether he had a sexual relationship with his then-girlfriend. Appellant contended that he should have been permitted to elicit such testimony to demonstrate the motive of the victim to fabricate the allegations against him in order to "emancipate" himself so that he could move out of Appellant's home and live with his girlfriend.
Standard of Review and Governing Law
A trial court has considerable discretion in determining whether to exclude or admit evidence. See Montgomery v. State , 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) ; State v. Dudley , 223 S.W.3d 717, 724 (Tex. App.–Tyler 2007, no pet.). Absent an abuse of discretion, we will not disturb a trial court's decision to admit or exclude evidence. See Martin v. State , 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. Id.
A defendant has the right to confront witnesses by cross examining them to attack their credibility, or to show their bias, self-interest, or motive in testifying. See Hammer v. State , 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). But evidence of a complaining witness's past, sexual behavior, either in the form of specific instances of conduct or reputation or opinion evidence, is not admissible in a criminal trial for sexual assault or aggravated sexual assault. See TEX. R. EVID. 412(a)(2) ; Dudley , 223 S.W.3d at 723–24. There are, however, exceptions to this rule when, among other things, the evidence relates to the motive or bias of the alleged victim. See TEX. R. EVID. 412(b)(2)(C) ; see also Chew v. State , 804 S.W.2d 633, 635 (Tex. App.–San Antonio 1991, pet. ref'd) ("The motives which operate on the mind of a witness while he testifies should never be regarded as immaterial or irrelevant"). But even if the evidence falls under one of these exceptions, its probative value still must outweigh the danger of unfair prejudice. See TEX. R. EVID. 412(b)(3).
Courts have applied Rule 412 in cases involving continuous sexual abuse of a child, despite the fact that the offense is not enumerated under the rule. See, e.g. , Faglie v. State , No. 03-17-00281-CR, 2019 WL 847812, at *2–5 (Tex. App.–Austin Feb. 22, 2019, pet. ref'd) (mem. op., not designated for publication). Appellant has not argued on appeal that Rule 412 does not apply under the facts of this case. See Tex. R. App. P. 33.1. Nonetheless, we conclude without deciding that Rule 412 properly is applied in continuous sexual abuse cases where, as here, the underlying instances of alleged sexual abuse consist of sexual assault and/or aggravated sexual assault. See Tex. Penal Code Ann. §§ 21.02(b)(1), (c)(3), (4) (West Supp. 2022).
Discussion
In the instant case, Appellant argues that the trial court prevented him from presenting evidence of the victim's motive to fabricate the allegations against him in order to "emancipate" himself so that he could move out of Appellant's home and live with his girlfriend. But under the facts of this case, evidence of the victim's prior sexual history with his girlfriend only would demonstrate that he was sexually active. See, e.g. , Seery v. State , No. 12-11-00095-CR, 2013 WL 683327, at *6 (Tex. App.–Tyler Feb. 21, 2013, pet. ref'd) (mem. op., not designated for publication). The victim's alleged desire to emancipate himself and live with his girlfriend may well have served as a motivating factor for him to fabricate the allegations against Appellant in order to avoid living with him in the future and, instead, live with his girlfriend. And Appellant was permitted to cross examine the victim on this basis, including his eliciting testimony that the victim spent the night with his girlfriend on several occasions. But the victim's prior sexual history does not tend to establish that he fabricated the story because he was having sexual intercourse with his girlfriend. See id. ; see also Chavira v. State , No. 12-03-00108-CR, 2004 WL 1418390, at *3 (Tex. App.–Tyler June 23, 2004, no pet.) (mem. op., not designated for publication) (no error in excluding victim's past sexual conduct because it did no more than show that she was sexually active and did not establish she had motive to falsely accuse defendant); Stephens v. State , 978 S.W.2d 728, 735 (Tex. App.–Austin 1998, pet. ref'd) (holding that appellant failed to demonstrate "definite and logical link" between complainant's sexual behavior and alleged motive). Therefore, because the facts of this case do not demonstrate a logical link between the victim's sexual behavior and his alleged motive to fabricate the allegations against Appellant, we hold that the trial court did not abuse its discretion in sustaining the State's objection to Appellant's attempted cross examination of the victim on that subject. Appellant's second issue is overruled.
DISPOSITION
Having overruled Appellant's first and second issues, we affirm the trial court's judgment.